Gcaba v Minister for Safety and Security and Others

• Jurisdiction: South Africa
• Court: Constitutional Court
• Judge: Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 07 October 2009
• Citation: 2010 (1) SA 238 (CC)
• Hearing Date: 07 May 2009
• Docket Number: CCT 64/08
• Counsel: M Lowe SC (with M Osborne) for the applicant. P Kennedy SC (with B Makola) for the respondents.

Van der Westhuizen J:

Introduction

[1] One of the purposes of law is to regulate and guide relations in a society. One of the ways it does so is by providing remedies and J

Van der Westhuizen J

A facilitating access to courts and other for a for the settlement of disputes. As supreme law, the Constitution protects basic rights. These include the rights to fair labour practices and to just administrative action. Legislation based on the Constitution is supposed to concretise and enhance the protection of these rights, amongst others, by providing for the speedy resolution of disputes in the workplace and by regulating B administrative conduct to ensure fairness.

[2] Yet the legislature, courts, legal representatives and academics often create complexity and confusion rather than clarity and guidance. In the case of fairly new legislation based on a young Constitution this is C perhaps understandable. Sometimes jurisprudence needs to develop along with the insight and wisdom emerging from a debate over some time. The legislature may also have to intervene in appropriate circumstances, for example, when incremental development results in uncertainty or an otherwise unsatisfactory situation.

D [3] The decisions of this court in Fredericks [1] and Chirwa, [2] as well as preceding jurisprudence of the Supreme Court of Appeal and other courts, [3] have resulted in differences of opinion in subsequent jurisprudence on the proper interpretation and application of overlapping constitutional, administrative and labour-law provisions and principles, especially with regard to disputes between public sector employees and E their employers. [4] This matter gives this court, as the highest court in all

Van der Westhuizen J

constitutional matters, [5] an opportunity to provide some clarity and A guidance, based on a proper interpretation of the relevant provisions of the Constitution, the Labour Relations Act (LRA) [6] and the Promotion of Administrative Justice Act (PAJA). [7]

[4] It is an application for leave to appeal against a judgment of Erasmus J in the Eastern Cape High Court in Grahamstown (High Court). The B main question is whether the High Court was correct in holding that it did not have jurisdiction to entertain the application to review and set aside the decision of the South African Police Service (SAPS) not to appoint Mr Gcaba, the applicant, as station commissioner in Grahamstown and in consequently dismissing the application.

[5] The determination of this question will be informed by the answers C to questions such as whether the decision not to appoint the applicant was administrative action and thus subject to administrative review, whether an applicant whose claim is based on a labour matter may approach a High Court or has to follow the channels provided for by the LRA and whether this court's decisions in Fredericks and Chirwa can be D reconciled.

Factual background

[6] During September 2003 the applicant was appointed as station commissioner, Grahamstown. He occupied this position until the end of E February 2006. When the position was upgraded, the applicant applied, was short-listed and went through the interview process. However, he was not appointed. The fourth respondent, Mr Govender, got the position instead.

Van der Westhuizen J

A [7] The applicant lodged a grievance with the SAPS, but later abandoned the process and elected to refer the dispute to the Safety and Security Sectoral Bargaining Council (Bargaining Council). After the failure of the representative of the SAPS to attend the pre-arbitration meeting, the applicant withdrew the dispute from the Bargaining Council and B approached the High Court with an application to review the decision of the second and third respondents (the National and Provincial Commissioners of the SAPS respectively) not to appoint him as station commissioner.

[8] Erasmus J held that the High Court lacked jurisdiction to entertain C the application, as it related to an employment matter. In the result, he dismissed the application. The High Court considered itself bound by this court's decision in Chirwa, as interpreted by the full bench of the Bhisho High Court in Nonzamo Cleaning Services v Appie. [8] In Nonzamo the Bhisho High Court held that, to the extent that Chirwa and Fredericks were mutually irreconcilable, Chirwa should be seen to have overruled D Fredericks.

Constitutional and legislative framework

[9] It is necessary to sketch the legislative framework within which the questions raised in this matter are to be determined.

E [10] The right to fair labour practices is enshrined in s 23 of the Constitution. [9] The LRA was promulgated pursuant thereto to provide particularity and content to s 23.

[11] The right to just administrative action is entrenched in s 33 of the Constitution. [10] It is specifically required in s 33(3) that national legislation be enacted to give effect to this right. PAJA was enacted to comply F with this mandate.

[12] The LRA created procedures and institutions to deal with labour disputes. The Labour Court is central in this regard. Section 157 of the LRA provides for the jurisdiction of the Labour Court as follows:

'(1) Subject to the Constitution and section 173, and except where G this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.

(2) The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental H right entrenched in Chapter 2 of the Constitution of the

Van der Westhuizen J

Republic of South Africa, 1996, and arising from - A

(a)

employment and from labour relations;

(b)

any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as an employer; and B

(c)

the application of any law for the administration of which the Minister is responsible.' [11]

[13] As to the Labour Appeal Court, s 173 of the LRA states:

'(1) Subject to the Constitution and despite any other law, the Labour Appeal Court has exclusive jurisdiction - C

(a)

to hear and determine all appeals against the final judgments and the final orders of the Labour Court; and

(b)

to decide any questions of law reserved in terms of section 158(4).

(4) A decision to which any two judges of the Labour Appeal Court D agree is the decision of the Court.'

[14] Section 191 of the LRA provides for the procedure regarding unfair dismissals and unfair labour practices. [12]

Van der Westhuizen J

A [15] In relation to the jurisdiction of High Courts, s 169 of the Constitution states:

Van der Westhuizen J

'A High Court may decide - A

(a)

any constitutional matter except a matter that -

(i)

only the Constitutional Court may decide; or

(ii)

is assigned by an Act of Parliament to another court of a status similar to a High Court; and

(b)

any other matter not assigned to another court by an Act of Parliament.' B

Issues

[16] Two preliminary issues have to be determined, namely whether a constitutional issue is raised and whether it is in the interests of justice for this court to grant leave to appeal. C

[17] This court may decide only constitutional matters and issues connected with decisions on constitutional matters. [13] The interplay between administrative and labour-law principles within the context of public sector employment is at the centre of this matter. It necessarily D involves the interpretation of the LRA and the PAJA, the origins of which are firmly rooted in the Constitution. Furthermore, this matter revolves around the interpretation of previous decisions of this court. A constitutional issue is therefore raised.

[18] Is it in the interests of justice to grant leave to appeal, especially in E view of the possible mootness of this matter? The position of Grahamstown station commissioner is now held by the fifth respondent, Mr Moyake. The applicant has accepted a posting to a different station; so too has the fourth respondent, Mr Govender. The parties disagree in their understanding of the present factual state of the dispute. However, F they agree that the importance of the issues requires a definitive pronouncement by this court. Although the resolution of the dispute between the applicant and the SAPS may appear to be an academic exercise, the jurisprudential implications of the matter dictate that it is in the interests of justice to hear it. It is not necessary to decide on the G different views of the parties as to the exact factual situation at present.

[19] As to the merits, the crisp issues for consideration by this court are - H

(a)

whether the failure to promote and appoint the applicant was administrative action subject to review; and

(b)

whether the High Court correctly decided that it had no jurisdiction to hear the matter. I

Van der Westhuizen J

Schools of thought in existing jurisprudence A

[20] This court's decisions in Fredericks [14] and Chirwa, [15] which gave rise to different interpretations in subsequent jurisprudence, [16] concerned litigation premised on the alleged infringement of the right to just administrative action. At the heart of the disputes were decisions by B public sector employers, which negatively affected employees and were therefore labour-related.

[21] Fredericks concerned the refusal by the Eastern Cape Department of Education to approve applications for voluntary retrenchment determined in terms of a collective bargaining agreement. [17] Chirwa dealt with C the dismissal by the Transnet Pension Fund, a division...