Gcaba v Minister for Safety and Security and Others

• Jurisdiction: South Africa
• Citation: 2010 (1) SA 238 (CC)

Gcaba v Minister for Safety and Security and Others
2010 (1) SA 238 (CC)

2010 (1) SA p238

Citation	2010 (1) SA 238 (CC)
Case No	CCT 64/08
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
Heard	May 7, 2009
Judgment	October 7, 2009
Counsel	M Lowe SC (with M Osborne) for the applicant.; P Kennedy SC (with B Makola) for the respondents.

Flynote : Sleutelwoorde B

Labour law — Courts — Jurisdiction — High Court and Labour Court — Concurrent jurisdiction — Provision of LRA conferring concurrent jurisdiction over certain matters not to be interpreted to confer jurisdiction on High Court C over matters explicitly stated to fall under exclusive jurisdiction of Labour Court — Labour Relations Act, s 157(1) and (2).

Labour law — Courts — Jurisdiction — High Court and Labour Court — Concurrent jurisdiction — Labour dispute involving public servant — Whether conduct of State as employer amounting to administrative action and thus D justiciable by High Court — Conduct of State as employer, when having no direct consequences for citizens generally, not amounting to administrative action — Disputes arising from such conduct labour issues falling within exclusive jurisdiction of Labour Court.

Labour law — Courts — Jurisdiction — Labour Court — Exclusive jurisdiction over E matters deemed by LRA to fall under its purview — Provision conferring such jurisdiction to be interpreted to protect special status of Labour Court — Subsequent provision conferring concurrent jurisdiction on High Court and Labour Court in certain given circumstances not to be interpreted to also confer jurisdiction on High Court over matters falling within exclusive jurisdiction of Labour Court — However, where remedy lying with F High Court, latter provision not to be interpreted to deny it jurisdiction — Labour Relations Act, s 157(1) and (2).

Practice — Pleadings — Jurisdictional challenges — Jurisdiction to be assessed on pleadings, not on substantive merits of case.

Practice — Pleadings — Jurisdictional challenges — Labour matters — High Court G and Labour Court — If pleadings asserting claim falling within exclusive jurisdiction of Labour Court, High Court lacking jurisdiction — Labour Relations Act, s 157(1) and (2).

Headnote : Kopnota

This application for leave to appeal against a judgment of the Eastern Cape High Court, Grahamstown (the High Court), dealt with the jurisdiction of the H High Court and the Labour Court over labour-related matters, as well as with the question whether the conduct of a public-sector employer towards an employee amounted to administrative action. The applicant held the position of station commissioner in the South African Police Service. When the position was upgraded, he applied, was short-listed, and went through I the interview process, but he was not appointed. Dissatisfied, he lodged a grievance with SAPS, but later abandoned the internal process and elected to refer the dispute to the Safety and Security Sectoral Bargaining Council (Bargaining Council). After the failure of the representative of SAPS to attend the pre-arbitration meeting, he withdrew the dispute from the Bargaining Council and approached the High Court to review the decision of the National and Provincial Commissioners of SAPS not to promote and J appoint him as station commissioner, a decision which he regarded as

2010 (1) SA p239

administrative action. The High Court held that it lacked jurisdiction to A entertain the labour-related dispute, and dismissed the application.

The present judgment was the latest in a series of sometimes divergent judgments of the Constitutional Court, the Supreme Court of Appeal, and various High Courts that all dealt with the jurisdiction of the High Court and the Labour Court in respect of disputes between public sector B employees and their employers. Of particular relevance were the proper interpretation of the relevant provisions of the Constitution, the Labour Relations Act 66 of 1995 (the LRA), and the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

Held, that the same conduct may threaten different rights and give rise to different causes of action in law, often to be pursued in different courts. The C constitutional and legal order was one coherent system for the protection of rights, and legislation must not be interpreted to exclude or unduly limit rights. When, however, the Constitution itself recognised rights in different specific areas of law, and mandated the legislature to specifically create tailor-made rules and structures for those areas, it was preferable to use these. (Paragraphs [53] - [57] at 256E - 257E.) D

Held, further, that employment and labour-relationship issues did not generally amount to administrative action under PAJA: this was implicit in the constitutional recognition of the distinct rights to fair labour practices in s 23 (regulating the employment relationship between employer and employee), and just administrative action in s 33 (which dealt with the E relationship between the bureaucracy and citizens). When the conduct of the State as employer had no direct consequences for other citizens, it did not amount to administrative action. (Paragraph [64] at 259G - 260A.)

Held, further, that the failure to promote and appoint the appellant was not administrative action. If his case had been heard by the High Court, he would have failed for not being able to make out a case for the relief he F sought, namely review of an administrative decision. (Paragraph [68] at 261A - B.)

Held, further, that, as to the special dispute-resolution mechanisms created by the LRA, that s 157(1) provided that the Labour Court had exclusive jurisdiction over matters that the LRA prescribed should be determined by it, and that this provision had to be given content to protect the special status of the G Labour Court. On the other hand, s 157(2), which confirmed the concurrent jurisdiction of the Labour Court and High Court in the circumstances prescribed therein, could not be read to permit the High Court to have jurisdiction over those matters that fell within the exclusive purview of the Labour Court. (Paragraphs [70] - [72] at 261E - 262F.) H

Held, further, that the LRA did not destroy causes of action in respect of matters which might well be heard by the High Court, and that it should not be interpreted to do so. Where a remedy lay in the High Court, s 157(2) could not be read to mean that it no longer laid there. (Paragraph [73] at 262F - G.)

Held, further, that jurisdiction had to be assessed on the basis of the pleadings, I not the substantive merits of a case. If the pleadings asserted a claim under the LRA that had to be determined by the Labour Court, the High Court would lack jurisdiction. Someone like the appellant, who was unable to sustain a cause of action founded on administrative action that was cognisable by the High Court, thus had to approach the Labour Court. (Paragraph [75] at 263D - G.) Appeal dismissed. J

2010 (1) SA p240

Cases Considered

Annotations: A

Reported cases

Boxer Superstores Mthatha and Another v Mbenya 2007 (5) SA 450 (SCA): referred to

Chirwa v Transnet Ltd and Others 2008 (4) SA 367 (CC) (2008 (3) BCLR 251; (2008) 29 ILJ 73; [2008] 2 BLLR 97): discussed and applied

Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) (2004 (7) BCLR 735): applied B

De Villiers v Minister of Education, Western Cape, and Another 2009 (2) SA 619 (C): referred to

Engineering Council of SA and Another v City of Tshwane Metropolitan C Municipality and Another (2008) 29 ILJ 899 (T): referred to

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 1997 (2) SA 97 (CC) (1997 (1) BCLR 1): dictum in para [8] applied

Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA) ((2001) 22 ILJ 2407): applied D

Fraser v Absa Bank Ltd (National Director of Public Prosecutions as Amicus Curiae) 2007 (3) SA 484 (CC) (2007 (3) BCLR 219): referred to

Fredericks and Others v MEC for Education and Training, Eastern Cape, and Others 2002 (2) SA 693 (CC) (2002 (2) BCLR 113; (2002) 23 ILJ 81): discussed and applied E

Fredericks and Others v MEC Responsible for Education and Training in the Eastern Cape Province [2001] 11 BLLR 1269 (Ck): referred to

Graaff-Reinet Municipality v Van Ryneveld's Pass Irrigation Board 1950 (2) SA 420 (A): referred to

Hlope and Others v Minister of Safety and Security and Others (2006) 27 ILJ 1003 (LC) ([2006] 3 BLLR 297): referred to

Jones and Another v Telkom SA Ltd and Others (2006) 27 ILJ 911 (T) ([2006] 5 BLLR 513): referred to F

Kiva v Minister of Correctional Services and Another (2007) 28 ILJ 597 (E) ([2007] 1 BLLR 86): referred to

Kotze v National Commissioner, SA Police Service and Another (2008) 29 ILJ 1869 (T): referred to

MEC, Department of Education, Eastern Cape Province, and Another v Bodlani: In re Bodlani v MEC, Department of Education, Eastern Cape Province, and Another (2008) 29 ILJ 2160 (Tk): referred to G

Makambi v MEC for Education, Eastern Cape 2008 (5) SA 449 (SCA) ([2008] 4 All SA 57): referred to

Makhanya v University of Zululand 2010 (1) SA 62 (SCA): referred to

Mbashe Local Municipality and Another v Nyubuse (2008) 29 ILJ 2147 (E): referred to H

Mbayeka and Another v MEC for Welfare, Eastern Cape 2001 (4) BCLR 374 (Tk) ([2001] 1 All SA 567): referred to

Mcosini v Mancotywa and Another (1998) 19 ILJ 1413 (Tk): referred to

Mgijima v Eastern Cape Appropriate Technology Unit and Another 2000 (2) SA 291 (Tk): referred to I

Mogothle v Premier of the North West Province and Another [2009] 4 BLLR 331 (LC): referred to

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