Mgijima v Eastern Cape Appropriate Technology Unit and Another

• Jurisdiction: South Africa
• Judgment Date: 18 June 1999
• Citation: 2000 (2) SA 291 (TkH)

Mgijima v Eastern Cape Appropriate Technology Unit and Another
2000 (2) SA 291 (TkH)

2000 (2) SA p291

Citation	2000 (2) SA 291 (TkH)
Case No	1622/99
Court	Transkei High Court
Judge	van Zyl J
Heard	June 18, 1999
Judgment	June 18, 1999
Counsel	S M Mbenenge for the applicant.; P T Barratt for the first respondent.; N K Dukada for the second respondent.

Flynote : Sleutelwoorde

Jurisdiction — High Court — Whether High Court having concurrent jurisdiction with Labour Court in terms of s 157(2) of Labour Relations Act 66 of 1995 in respect of unfair dismissal by organ of State in its capacity as employer — Dispute about unfair dismissal 'matter' as envisaged by s 157(1) of Act and thus to be determined H exclusively by Labour Court — Not open to employee to raise what is essentially labour dispute in terms of Act as constitutional matter under provisions of s 157(2) — Substance of dispute to be determined — If characterised as 'matter' provided for in Act and if 'matter' in terms of s 157(1) to be determined by Labour Court, High Court precluded from exercising jurisdiction — Right not to be unfairly I dismissed also covering alleged procedural unfairness — Constitutional right to procedural fairness given effect to in Labour Court's jurisdiction to review governmental action falling within exclusive jurisdiction of Labour Court — Accordingly High Court not having concurrent jurisdiction to hear 'matter' as intended in s 157(2) of Act. J

2000 (2) SA p292

Labour law — Labour Relations Act 66 of 1995 — Labour Court — Exclusive A jurisdiction of in terms of s 157(1) of Act — Section 157(1) providing that Labour Court having 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 Labour Court' — Labour disputes for which specific dispute resolution procedures (including conciliation, arbitration and recourse to Labour Court) created constituting B 'matter' to be determined exclusively by Labour Court.

Headnote : Kopnota

The applicant applied for an order setting aside his dismissal (for alleged misconduct) by the first respondent on the grounds that it had amounted to an unfair labour practice, was contrary to the C provisions, in particular ss 185 and 188, of the Labour Relations Act 66 of 1995 (the Act), and infringed his constitutional right to fair labour practices and just administrative action (ss 23 and 33 of the Constitution of the Republic of South Africa Act 108 of 1996). The respondents (the second respondent being the Eastern Cape Premier) objected in limine that the High Court lacked D jurisdiction because under s 157(1) of the Act the Labour Court had exclusive jurisdiction in respect of all labour issues, including unfair dismissal, specifically dealt with in the Act. The applicant countered that, since the High Court and the Labour Court had concurrent jurisdiction in respect of the constitutionality of actions by the State as employer (s 157(2)(a) and (b)) and the dismissal had violated the applicant's E constitutional rights, the High Court retained its jurisdiction. (It was common cause that the first respondent was an organ of the State for the purposes of s 157(2).)

Held, that it was clear, having regard to the provisions of chap 8 of the Act, that the grounds relied on by the applicant for the setting aside of the first respondent's decision to terminate his employment fell within the ambit of 'unfair dismissal' as defined in F ss 185, 188(1)(b) and 188(2) of the Act. (At 299H/I - J.)

Held, further, that two questions arose in the context of the present matter: (1) whether a dispute about the fairness of a dismissal was a 'matter' that had to be determined by the Labour Court and (2) whether such a dispute could also form the basis of a constitutional matter as envisaged in s 157(2) of the Act. (At G 301I/J - 302A.)

Held, further, as to (1), that labour disputes covered by the provisions of the Act and for which specific dispute resolution systems were provided (which included conciliation, arbitration and the Labour Court) was a 'matter' to be determined exclusively by the Labour Court. Since the applicant's case was that he had been unfairly dismissed, the dispute between the parties was one as envisaged by H s 191 of the Act, which provided for a dispute resolution procedure that included conciliation/arbitration and the Labour Court. Accordingly it was a 'matter' as envisaged by s 157(1). The first question therefore had to be answered in the affirmative. (At 302G - 303A.)

Held, further, as to (2), that in passing the Act the I Legislature had clearly intended to create a specialist Court with exclusive jurisdiction in respect of those matters that were to be determined by it and that there were cogent policy considerations favouring the notion that the labour disputes envisaged by the Act had to be dealt with and resolved in terms of the Act. It was against this background that the applicant's contention that the first respondent had infringed his constitutional rights and that as a result there J

2000 (2) SA p293

was a dispute between the parties as envisaged in s 157(2) (which gave the Labour Court limited constitutional A jurisdiction) had to be examined. (At 304H/I - I/J and 306J - 307B/C.)

Held, further, that the purpose of the Legislature had been to give content to the right to fair labour practices by creating a special Court for that purpose. The Act had created a new and distinct regime and the available procedures and remedies had their origin in the said right. It could not have been the intention of the Legislature B to allow an employee to raise what was essentially a labour dispute in terms of the Act as a constitutional matter under the provisions of s 157(2). (At 308H/I - 309B.)

Held, further, that the substance of the dispute between the parties had to be determined for the purposes of s 157(2). What was in essence a labour dispute could not be labelled a constitutional dispute simply because the facts and issues raised could also support a C conclusion that the conduct of the employer amounted to a violation of entrenched constitutional rights: rather, it should in every case be determined whether the facts giving rise to the dispute and the issues between the parties had to be characterised as a 'matter' provided for in the Act and, if that 'matter' was in terms of s 157(1) to be determined by the Labour Court, the High Court was precluded from D exercising jurisdiction. (At 309D - F.)

Held, further, that s 157(2) provided for the enforcement of charter rights specifically dealt with by the Act and that words such as 'alleged violation' and 'any dispute' simply determined the manner in which an aggrieved party was entitled to invoke the protection thereof as entrenched in s 38 of the Constitution. The fact that the applicant alleged that the actions of E the first respondent constituted a violation of his fundamental right to just administrative action did not change the fact that the case dealt with a labour dispute as contemplated by the Act: procedural fairness as raised by the applicant formed part of the right not to be unfairly dismissed. (At 310A/B - D.)

Held, further, that the rights relating to just administrative action entrenched in s 33 of the Constitution had been given effect to in the Labour Court's jurisdiction to review F governmental action that fell within the exclusive jurisdiction of the Labour Court. (At 310D - D/E.)

Held, further, that the applicant could have raised his grievance about the reviewable act of the first respondent in terminating his services at the conciliation and arbitration stages: his complaint that he had been wrongly denied a postponement clearly fell within the concept of procedural fairness provided for in Schedule G 8 of the Act. It had been open to the applicant to raise his contentions regarding the reviewable irregularity in proceedings before the Labour Court acting in terms of s 158(1)(h). This review jurisdiction was a 'matter' as envisaged by s 157(1), with the result that the review powers of the High Court were ousted. (At 311E - F/G and 312B - C.)

Held, accordingly, that the argument that the High Court had H jurisdiction to hear the present matter because it concerned a constitutional issue had to fail: the dispute raised by the applicant was a matter that had to be determined by the Labour Court and the Labour Court had exclusive jurisdiction in all matters in respect of which the Act provided for recourse to the Labour Court as part of its dispute-resolving procedures. Application dismissed. (At 310D/E - E and 313G/H - H/I.) I

Cases Considered

Annotations

Reported cases

Coin Security Group (Pty) Ltd v SA National Union for Security Officers and Other Workers and Others 1998 (1) SA 685 (C) ((1998) 19 ILJ 43): dictum at 690B - C (SA) and 47H - I (ILJ) applied J

2000 (2) SA p294

Communication Workers Union v Telkom SA Ltd A and Another 1999 (2) SA 586 (T): dicta at 594G - H and 597H - I applied

Deutsch v Pinto (1997) 18 ILJ 1008 (LC): applied

Durban City Council v Minister of Labour and Another 1953 (3) SA 708 (N): dictum at 712A - B applied B

Ewing McDonald & Co Ltd v M&M Products Co 1991 (1) SA 252 (A): dictum at 256G applied

Farjas (Pty) Ltd and Another v Regional Land Claims Commissioner, KwaZulu-Natal 1998 (2) SA 900 (LCC) (1998 (5) BCLR 579): applied

Goodman Bros (Pty) Ltd v Transnet Ltd 1998 (4) SA 989 (W) (1998 (8) BCLR 1024): considered

Graaff-Reinet Municipality v Van Ryneveld's C Pass Irrigation Board 1950 (2) SA 420 (A): dictum at 424 applied

Independent Municipal and Allied Trade Union v Northern Pretoria Metropolitan Substructure and Others 1999 (2) SA 234 (T): discussed and applied

Kilpert v Buitendach and Another (1997) 18...