Makhanya v University of Zululand

• Jurisdiction: South Africa
• Judge: Nugent JA, Lewis JA and Snyders JA
• Judgment Date: 29 May 2009
• Citation: 2010 (1) SA 62 (SCA)
• Docket Number: 218/08
• Hearing Date: 05 May 2009
• Counsel: R Pillemer for the appellant. LR Naidoo for the respondent.
• Court: Supreme Court of Appeal

Nugent JA (Lewis JA and Snyders JA concurring):

[1] Professor Makhanya instituted an action against the University of Zululand in the High Court at Durban. The particulars of claim were straightforward. Makhanya said that he had been employed by the C University under a contract of employment. He said that the University had purported to terminate the contract in breach of its terms. That notwithstanding, said Makhanya, he had continued to render his services, or at least he had tendered to do so. But the University had not paid him his remuneration and other moneys to which the contract entitled him, and he claimed orders compelling it to do so. (Two D separate claims were made, but they were in truth a single claim and I will refer to them together in the singular. An additional claim was made that does not feature in this appeal.)

The jurisdictional challenge E

[2] In a special plea the University challenged the jurisdiction of the High Court to consider the claim. The jurisdictional challenge is curious because claims for the enforcement of contracts are commonplace in the High Courts. Some eight years ago it was argued before this court - in Fedlife Assurance Ltd v Wolfaardt [1] - that claims for the enforcement of F contracts of employment had been excluded from the jurisdiction of the High Courts by the Labour Relations Act 66 of 1995 (LRA), but that argument was rejected, [2] and is not sought in this case to be revived. And if there is any residual doubt as to whether a High Court has the power to consider such a claim it is put to rest by s 77(3) of the Basic Conditions of Employment Act 75 of 1997 (BCEA), which was enacted G after the LRA, and which makes it perfectly clear that the High Courts have not been divested of their ordinary jurisdiction to enforce contracts of employment (the section confers equivalent jurisdiction on the Labour Court also to consider such claims).

[3] One asks in those circumstances on what basis the jurisdictional H objection could possibly have been taken? Because the objection was upheld by the court below, it dismissed the claim on that ground. This appeal is against that order and it is before us with the leave of that court.

[4] Whatever explanation is given invariably leads one back to the decision of the Constitutional Court in Chirwa v Transnet Ltd and Others, [3] in which the majority expressed the view that the High Court I

Nugent JA

A had no jurisdiction to consider the claim in that case. I will return to that decision in some detail later in this judgment.

[5] This case is not materially different to Chirwa - I will expand upon that later in this judgment - and any attempt to distinguish them on their facts would be no more than a makeweight. That is the difficulty that B now confronts us. On the one hand, Fedlife (which seems to have had the approval of that court) and the BCEA make it clear that the High Court has jurisdiction in this case. On the other hand, if we are bound to apply the view expressed by the majority in Chirwa, then we must reach the opposite conclusion.

C [6] The doctrine of precedent, which requires courts to follow the decisions of coordinate and higher courts, as Cameron JA said in this court in True Motives 84 (Pty) Ltd v Mahdi and Another, [4] is an intrinsic feature of the rule of law, which is in turn foundational to our Constitution. He went on to say:

D 'Without precedent there would be no certainty, no predictability and no coherence. The courts would operate in a tangle of unknowable considerations, which all too soon would become vulnerable to whim and fancy. Law would not rule. The operation of precedent, and its proper implementation, are therefore vital constitutional questions.'

E [7] He pointed out that 'at this tender stage of our legal development, the doctrine of precedent has special importance' and warned that 'this court should not lay itself open to the . . . complaint that it is violating the rule of law by illegitimately disregarding or evading [Constitutional Court] precedents'. [5] But he also observed that -

F 'it is well established that precedent is limited to the binding basis (or ratio decidendi) of previous decisions. The doctrine obliges courts of equivalent status and those subordinate in the hierarchy to follow only the binding basis of a previous decision. Anything in a judgment that is subsidiary is considered to be said along the wayside, or stated as part of the journey (obiter dictum), and is not binding on subsequent G courts.' [6]

[8] The law does not exist in discrete boxes, separate from one another. While its rules as they apply in various fields are often collected together under various headings, that is, for convenience of academic study and H treatment, that should not be allowed to disguise the fact that the law is a seamless web of rights and obligations that impact upon one another across those fields. If the ratio of Chirwa is as I have stated it, as the court below considered it to be, then the majority must be taken to have implicitly overruled the decision in Fedlife. And the express reservation in the BCEA of the ordinary power of a High Court to consider contractual I claims would need in some way to be explained. And the question would arise as to what further limitations it might impose on the ordinary power

Nugent JA

of the High Courts in other cases. And so it could go on, because a A domino that falls usually sets off a cascade.

[9] Apart from its jurisdictional finding the majority in Chirwa also found that the claim was bad in law. What is most striking about that case is that the two findings are mutually destructive and cannot both have provided the ratio for the order that was made. I deal with that more fully B later, but for the moment I need only say that if the High Court (and by extension the court on appeal) had no jurisdiction in the matter then that ought to have been an end of the matter: by its own decision it would have had no power to dismiss the claim on its merits. Conversely, if the ratio for the order was that the claim was bad in law, it follows that it C must have had the power to make that finding. The ratio may be one or the other but it cannot be both.

[10] For those reasons I think that we must be most circumspect before accepting without question that that was indeed the ratio of Chirwa, thereby taking this court along a path that it has not taken before, and for D the proper disposal of this appeal we cannot avoid enquiring into that question. That enquiry seems to me to be best undertaken by starting with first principles, which I do before turning to the decision in that case.

How the problem arises E

[11] The LRA creates certain rights for employees that include 'the right not to be unfairly dismissed and [not to be] subjected to unfair labour practices'. [7] I will refer to those rights interchangeably as 'LRA rights'. Yet employees also have other rights, in common with other people generally, arising from the general law. One is the right that everyone has (a right emanating from the common law) to insist upon performance of a contract. Another is the right that everyone has F (a right emanating from the Constitution and elaborated upon in the Promotion of Administrative Justice Act) to just administrative action. [8]

[12] Thus there is the potential (I emphasise that I refer only to the G potential) for three separate claims to arise when an employee's contract is terminated. One is for infringement of his or her LRA right. Another is for infringement of his or her common-law right. And where it occurs in the public sector, a third is for infringement of his or her constitutional right.

[13] An LRA right is enforceable only in the Commission for Conciliation, H Mediation and Arbitration (CCMA) [9] or in the Labour Court. [10]

Nugent JA

A (I will refer to them interchangeably as the 'labour forums', except where it becomes necessary to distinguish them.) The common-law right is enforceable in the High Courts [11] and in the Labour Court. [12] And the constitutional right is enforceable in the High Courts [13] and in the Labour Court. [14]

B [14] It is convenient to pause for a moment to make an observation with regard to the enforceability in the High Court of that constitutional right. There is some suggestion in the judgment of Ngcobo J in Chirwa that s 157(2) of the LRA might somehow have divested the High Courts of their ordinary power to consider claims to enforce a constitutional right C arising from employment (the claim that was made in Chirwa) [15] and in that context it was suggested that the use of the word 'concurrent' in s 157(2) might have been unfortunate. [16] That suggestion might be founded upon a misconception and I do not think it can be correct.

D [15] The section so far as it is now relevant reads as follows:

'157 Jurisdiction of Labour Court

(1) Subject to the Constitution and section 173, and except where 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.

E (2) The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any

Nugent JA

fundamental right entrenched in Chapter 2 of the Constitution of the A Republic of South Africa, 1996, and arising from -

(a)

employment and from labour relations. . . .'

[16] It is important to bear in mind that s 157(2) does not purport to confer jurisdiction on the High Courts. The power to consider claims for the alleged violation of constitutional rights, whether in the employment B sphere or otherwise, is assigned to them by the Constitution. Section 157(2) does no more than to confer equivalent jurisdiction...