Nakin v MEC, Department of Education, Eastern Cape, and Another

• Jurisdiction: South Africa
• Judge: Froneman J
• Judgment Date: 22 February 2008
• Citation: 2008 (6) SA 320 (Ck)
• Docket Number: 77/2007
• Hearing Date: 05 February 2008
• Counsel: SA Collett for the applicant. MH Sishuba for the respondents.
• Court: Ciskei High Court

Nakin v MEC, Department of Education, Eastern Cape, and Another
2008 (6) SA 320 (Ck)

2008 (6) SA p320

Citation	2008 (6) SA 320 (Ck)
Case No	77/2007
Court	Ciskei High Court
Judge	Froneman J
Heard	February 5, 2008
Judgment	February 22, 2008
Counsel	SA Collett for the applicant.; MH Sishuba for the respondents.

Flynote : Sleutelwoorde E

Administrative law — Review — Administrative action — Claim for payment of money not easily falling into review proceedings, if at all.

Court — High Court — Jurisdiction — Labour matters — Concurrent jurisdiction F with Labour Court — Disputes arising from alleged infringements of constitutional rights by State acting in capacity as employer — Concurrent jurisdiction conferred on Labour Court and High Court by s 157(2) of Labour Relations Act 66 of 1995 to determine constitutional issues arising out of employment disputes - Quaere: Whether recent Constitutional Court decision overruling existing law.

G Court — High Court — Jurisdiction — Labour matters — Concurrent jurisdiction with Labour Court — Whether High Court having jurisdiction to entertain constitutional issue arising out of employment dispute — Applicant seeking implementation of remuneration benefits — Applicant alleging infringement of fundamental right — Applicant alleging further that respondents' inaction constituting administrative action as defined in Promotion of Administrative H Justice Act 3 of 2000 — High Court having jurisdiction to hear matter.

Headnote : Kopnota

In 1995 the applicant lost his post as school principal and was transferred to a post of lesser status, ie he was transferred from a post level 4 to a post level 3. The injustice was sought to be rectified by the department's (the respondents') approving a recommendation in 2002 that the applicant be I reinstated to a post level 4, with retrospective corrections to his salary and benefits. By 2007, when the department had not yet fully implemented the recommendation, the applicant launched the present application in the High Court for (i) a declaratory order that the department's failure to comply with approval of the recommendation amounted to administrative action under the provisions of the Promotion of Administrative Justice J Act 3 of 2000 (PAJA); (ii) an order reviewing and setting aside that conduct; and

2008 (6) SA p321

(iii) an order directing the department to give effect to the approved salary A and benefits adjustments. The department raised the point in limine that the High Court lacked jurisdiction to hear the matter as it was one which fell within the ambit of s 186(2) of the Labour Relations Act 66 of 1995 (LRA) and thus fell within the exclusive jurisdiction of the conciliation, arbitration and adjudication bodies established under the Act.

Held, as to the point in limine, that it had been established that the High Court B had concurrent jurisdiction with the Labour Court to determine employment matters which arose from the common-law contract of employment, as well as from the alleged or threatened violation of fundamental rights under the Constitution arising from employment and labour relations, disputes over the constitutionality of any executive or administrative acts or conduct by the State in its capacity as an employer, and disputes about the C application of labour laws. (Paragraph [4] at 324E.)

Held, further, that the High Court thus had jurisdiction to hear and determine the present matter. The applicant did not refer to any unfair labour practice under the LRA in his papers. The bare bones upon which he relied were that the department approved a recommendation to reinstate him to his previous post-level status and that it had failed to give effect to that decision. D In his founding papers he characterised that failure as administrative action that fell to be reviewed and set aside under the provisions of PAJA. Under s 38 of the Constitution of the Republic of South Africa, 1996, the allegation of the infringement of a fundamental right would be sufficient to clothe the High Court with jurisdiction to enquire whether the right to just administrative action had been infringed or not, and to grant appropriate E relief depending on its finding. (Paragraph [12] at 328E - H.)

Held, further, that it might be that the established law regarding the jurisdiction of the High Court to hear labour matters had been disturbed or overruled by the more recent Constitutional Court (CC) decision of Chirwa v Transnet Ltd and Others 2008 (4) SA 367 (CC) (2008 (3) BCLR 251). F However, Chirwa was a case about dismissal, which fact in itself might justify the conclusion that the present case - about the implementation of remuneration benefits - fell outside the scope of the majority decision in Chirwa. (Paragraphs [14] - [15] and [24] at 329C - G and 333B.)

Held, further, that lower courts (the High Courts and magistrates' courts) were entitled to expect that, when previously authoritative judgments of G the higher appellate courts of the country - in the present case, both the Constitutional Court and Supreme Court of Appeal - were overruled, the nature and extent of that overruling should be stated in clear and express terms. (Paragraph [28] at 334C - D.)

Held, further, as to the merits of the application, that in order to qualify as administrative action in terms of the provisions of PAJA, the alleged failure H of the department to implement the reinstatement of the applicant to post level 4 salary and other remuneration benefits since 1995 had to meet seven requirements: the failure had to be (i) a decision, (ii) by an organ of State, (iii) exercising a public power or performing a public function, (iv) in terms of any legislation, (v) that adversely affected someone's rights, (vi) which had a direct, external, legal effect, and (vii) that did not fall under any of the I exclusions listed in s 1 of PAJA. (Paragraph [47] at 340F - 341A.)

Held, further, that the important part of the relief the applicant sought was the payment of a sum of money he alleged the department owed him, not the declaratory order and administrative review he sought. That kind of claim for the payment of money did not fit easily, or perhaps at all, into review proceedings. (Paragraph [50] at 342G.) J

2008 (6) SA p322

A Held, further, that there existed a factual dispute about the amount of money that was owed to the applicant which could not be resolved on the papers. It was therefore appropriate to refer the matter to oral evidence on specific terms. (Paragraph [51] at 343D.)

Held, accordingly, that the matter had to be referred to oral evidence on specific terms. (Paragraph [52] at 343E.)

Cases Considered

Annotations B

Reported cases

Barkhuizen v Napier 2007 (5) SA 323 (CC) (2007 (7) BCLR 691): referred to

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687): referred to C

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449): referred to

Bloemfontein Town Council v Richter 1938 AD 195: referred to

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

Chirwa v Transnet Ltd and Others 2008 (4) SA 367 (CC) (2008 (3) BCLR 251): dictum in para [181] applied

Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA) ([2002] 2 All SA 295): dictum in para [22] applied

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional E Metropolitan Council and Others 1999 (1) SA 374 (CC) (1998 (12) BCLR 1458): 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): applied

Grey's Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and F Others 2005 (6) SA 313 (SCA) (2005 (10) BCLR 931): dictum in para [21] applied

Kaunda and Others v President of the Republic of South Africa and Others 2005 (4) SA 235 (CC) (2004 (10) BCLR 1009): referred to

Logbro Properties CC v Bedderson NO and Others 2003 (2) SA 460 (SCA) ([2003] 1 All SA 424): referred to

Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC) (2006 (1) BCLR 1): referred to G

Nel v Le Roux NO and Others 1996 (3) SA 562 (CC) (1996 (4) BCLR 592): referred to

Old Mutual Life Assurance Co SA Ltd v Gumbi 2007 (5) SA 552 (SCA): H referred to

Permanent Secretary, Dept of Education and Welfare, Eastern Cape, and Another v Ed-U-College (PE) (Section 21) Inc 2001 (2) SA 1 (CC) (2001 (2) BCLR 118): referred to

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059): I referred to

Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2) SA 359 (CC) (2005 (4) BCLR 301): referred to

S v Mabena and Another 2007 (1) SACR 482 (SCA): referred to

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC) ([2007] 12 BLLR 1097; (2007) 28 ILJ 2405; [2007] ZACC 22): J referred to

2008 (6) SA p323

Transnet Ltd and Others v Chirwa A 2007 (2) SA 198 (SCA) ([2007] 2 All SA 184; [2007] 1 BLLR 10; (2006) 27 ILJ 2294): referred to

United National Public Servants Association of South Africa v Digomo and Others [2005] 12 BLLR 1169 (SCA) ((2005) 26 ILJ 1957): referred to.

Unreported cases

MEC, Dept of Roads and Transport, Eastern Cape and Another v Giyose (EC B case No 1251/06, 6 September 2007): referred to.

Statutes Considered

Statutes

The Constitution of the Republic of South Africa Act, 1996, s 38: see Juta's Statutes of South C Africa 2007/8 vol 5 at 1-27

The Labour Relations Act 66 of 1995, s 186(2): see Juta's Statutes of South Africa 2007/8 vol 4...