It’s not only State Prosecutor Gerrie Nel that makes “mistakes” (otherwise known as a balls-up). Today the Constitutional Court handed down judgment in the case of Gcaba v Minister of Safety and Security, in effect overturning or “clarifying” previous judgments handed down in Fredericks (in 2002) and Chirwa (in 2007) without actually saying so explicitly.
This remarkable judgment, written by Justice Van der Westhuizen for a unanimous court, seems to lay some of the blame for the “confusion” (read “balls-up”) at the door of “courts judges, legal representatives and academics” (the Constitutional Court, of course, being blameless) for creating “complexity and confusion rather than clarity and guidance”. This is a bit cheeky, to say the least, as the Constitutional Court now seems to want to blame others for the balls-up entirely of the Constitutional Court’s own making.
One has to turn to the last page of the judgment to find an implicit (but oblique) acknowledgment that the Court might be overruling itself. There one finds this gem: “To the extent that this judgment may be interpreted to differ from Fredericks or Chirwa, it is the most recent authority” (and now thus binding precedent).
The question in Gcaba was whether a state employee (in this case a station commissioner in Grahamstown) could approach the High Court to review – on administrative law grounds – a decision not to appoint him to an upgraded post. As this was an employment matter – albeit one involving the state – should he not have been forced to approach the Labour Court instead as the Labour Court was specifically created to deal with labour relations issues in terms of the Labour Relations Act?
The problem was that in 2002 the Constitutional Court in Fredericks (in a unanimous judgment) had found that an employee could approach the High Court (instead of the Labour Court) to have a decision about retrenchments reviewed on administrative law grounds as this claim was based on the constitutional right to a just administrative action. In Chirwa (to simplify matters slightly) the Constitutional Court might or might not have had second thoughts about the wisdom of this approach, but instead of overturning Fredericks explicitly, it did what judges do when they want to change the law without admitting it: they tried to distinguish the facts of the two cases.
This created much confusion. Some lower court judges interpreted Chirwa as having overturned Fredericks while other judges tried to reconcile the two judgments, grappling with the “complexity and confusion” created, not by lower court judges, legal representatives or academics, but by the Constitutional Court itself!
Now finally the Constitutional Court has taken a stab at fixing the mess by finding that ordinarily the actions of an employer in the public sector would not amount to administrative action and would therefore not be reviewable in the High Court. Ordinary public servants, like members of the SAPS, will therefore not be able to have a decision not to appoint or promote them reviewed in the High Court on administrative law grounds. They will usually have to approach the Labour Court – unless they want to rely on other legal grounds like those found in contract law or the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).
This view, claims the Court, was consistent with the majority judgment in Chirwa “who did not decide this issue, but indicated a leaning in this directions”. Of course this is a bit disingenuous as the majority in Chirwa merely “leaned” in the direction of finding that on the facts of that particular case the conduct of the employer might not have constituted administrative action. Chirwa did not come close to annunciation the general rule which the Court announced today.
The Constitutional Court furthermore claims that its decision today does not contradict its decision in Fredericks which left open the issue of whether the actions of the state as an employer would constitute administrative action. I am not convinced that this is correct as the Constitutional Court in Fredericks seemed to accept that when the state acts as an employer it would, to some extent at least, be subject to the requirements of administrative law and hence that such actions could be reviewed in the High Court.
Not being a labour lawyer, I might be missing something, but I must confess I find the reasoning of the Constitutional Court in the decision handed down today rather unconvincing, overtly defensive and a bit weird (although I agree with the new rule announced today). While it claims that the decision is entirely in line with the two previous judgments, it nevertheless (in the passage quoted above) acknowledges that the judgment might be interpreted as overruling its previous judgments.
The Court also launches into a long lecture on the doctrine of precedent, stating that:
[P]recedents must be respected in order to ensure legal certainty and equality before the law. This is essential for the rule of law. Law cannot “rule” unless it is reasonably predictable. A highest court of appeal – and this Court in particular – has to be especially cautious as far as adherence to or deviation from its own previous decisions is concerned. It is the upper guardian of the letter, spirit and values of the Constitution. The Constitution is the supreme law and has had a major impact on the entire South African legal order – as it was intended to do. But it is young; so is the legislation following from it. As a jurisprudence develops, understanding may increase and interpretations may change. At the same time though, a single source of consistent, authoritative and binding decisions is essential for the development of a stable constitutional jurisprudence and for the effective protection of fundamental rights. This Court must not easily and without coherent and compelling reason deviate from its own previous decisions, or be seen to have done so. One exceptional instance where this principle may be invoked is when this Court’s earlier decisions have given rise to controversy or uncertainty, leading to conflicting decisions in the lower courts.
Why this lecture? If the Court is to be believed, this judgment does not tamper with its precedents: It merely clarifies its previous judgments so that lower court judges, legal practitioners and academics could be prevented from creating further “complexity and confusion rather than clarity and guidance”.
Maybe its because I am an academic, but I suspect the complexity and confusion is the result of a balls-up by the Constitutional Court. Pity it is not brave and confident enough to admit this.
I guess it is one of those judgments in which judges make mistakes. But what can we do – the precedent has been set.
I agree abou
“At the same time though, a single source of consistent, authoritative and binding decisions is essential for the development of a stable constitutional jurisprudence and for the effective protection of fundamental rights.”
Isn’t it Minister Redebe (sp) who has clearly and recently enunciated that precedents should not imply evolution or stasis within the law, or words to that effect. And isn’t that something some of us consider a threat.
Are you saying you think the CC is starting to fail us.
Legal history, be it Western, African, or Eastern, is replete with bad judgements. Mistakes are made by the courts, it happens. Of course a judge should always strive not to make mistakes, but it does happen. Given our wonderful legal framework (on paper, at least), there is usually the opportunity at some point in the future for these mistakes to be fixed somewhat.
Personally, I’d rather the CC (or any other court) be issuing precedent setting judgements which created a bit of confusion that can be cleared up later, than having the ANC ramming constitutional amendments through in order to suit them in their lust for power. So the CC (and other courts) created a bit of a mess. At least the rule of law was respected, and the CC is now taking steps to clear up the confusion. Much more preferable to having laws and precedents decided by political manouvering and survival needs.
Precedent is very important. But when the Court judgments are confusing or clearly wrong (as in this case) then it can be revisited but should be done openly and honestly – not by stealth. I do think the CC has had a tendency not to follow its precedent diligently – equality law is a case in point a.k.a. Jordan and Robinson cases.
In the Chirwa case, the CC judges had had strong tea and lapsed into an elective mood and missed the opportunity to take a definite stance that the LC and the LAC were specialist courts for adjudication of labour disputes of whatever nature. The contest was on expansion of jurisdictional space than focus on clear jurisprudential development. It had been a debate which Zondo sought to close long ago and other judges unimpressed, thinking he needs to create his enclave. He was correct. The guestion of forum shopping has confused labour law jurisprudence for a while.
I hope judges have recovered from elective judicial politics to high watermark dialogue. Nngobo, a labour law expert was dead correct and failed to win the day because of only two votes in chirwa. Certainly this decision was taken in the absence of Langa and friends.
Courts are entitled to solidify their inarticulate judgments. What I do know is that the court(CC) did not resolve the issue of exclusive jurisdiction in Chirwa but only settled the question that dismissal is not administrative action. elective politics took over!
Well, the law is not cast in indeconstructible mortar. It is for the judges to grow wider as the skies of clarity clear up. The forum shopping debate has been resolved. Labour law experts will start another academic debate for future resolution, provided we limits vote politics and increase the polemical lever.
Prof: I have to compliment you on something, although actually there are lots of things to compliment you on. You allow our posts to appear immediately. This allows a continuous flow of thought, allows instant communication. Good on ya! As my Aussie friends would say.
Let em buy their fancy cars. Even the disadvantaged will see it for what it is, eventually, Winnie’s statement about showy power not withstanding. Pehaps we should encourage this, why not Porches. (Re quote of the week). Whether they recognize it or not, or even care, its their Achille’s heel. We could actually be thankful they are making such oblivous asses of themselves.
See herewith: http://politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=145880&sn=Detail
To my mind the CC has stated the position clearly enough. The fact that PdV would have preferred a somewhat different manner of speech is neither insightful nor useful.
I think you have a point there professor.
But watch what Judge Cameron allready had to say about the CC – and constitutional academics:
http://www.theweekender.co.za/Articles/Content.aspx?id=83016
I hope the profs post is a new dawn.
I’m also not a labour lawyer – and cannot understand why this special labour court had to be created. With its own jurisdiction. And centered in Jo’bek. It only created this confusion. And ordinary workers has to go to the {EXTRA] expense of litigation in Jo’bek. Why?
Much of the confusion was created by people who wanted to litigate at the nearest and most convenient court – and then the opposition took the convenient and lekker point of jurisdiction. So wella…. – and all these cases! Totally unnecessary.
henri, perusal of the judgment will swipe your eyes of the mist of indifference and igonrance. just simply peruse the trail of judgments relating to the question of forum shopping in labour disputes you will be pregnant with knowledge. The Labour Court is a unitary court with universal geographical jurisdiction. This creates a harmonius legal jurisprudence unlike the fragmented high court system.
There are crucial lessons that can be drawn from this experience in our impending constitutional transformation
ISHMAEL MALALE says:
October 8, 2009 at 8:29 am
“henri, perusal of the judgment will swipe your eyes of the mist of indifference and igonrance. just simply peruse the trail of judgments relating to the question of forum shopping in labour disputes you will be pregnant with knowledge. The Labour Court is a unitary court with universal geographical jurisdiction. This creates a harmonius legal jurisprudence unlike the fragmented high court system.”
“There are crucial lessons that can be drawn from this experience in our impending constitutional transformation”
Sjoe!
Prof, to fully appreciate the extent of “balls up” made by the Concourt in Chirwa, you must read Nugent JA’s judgment in Makhanya v University of Zululand-which has been referred to with approval in Gcaba’s case. According to Nuggent JA, Chirwa is so confusing to the extent that there are two rationes that are mutually destructive.
“It follows that its (Concourt) decision to dismiss the claim is to be found in one or the other of those findings but it cannot be found in both. The difficulty with which we are confronted is to discover which of them it was. Because we are bound by whichever one provides the ratio of the decision…it would be a pity to dispose of it on the wrong ground.”
To find his way through, Nugent JA took an unprecedented step and decided that none of the findings of the Concourt were binding on him!
The problem of ‘forum shopping’ will not go away because concurrent jurisdiction is provided for in the Labour Relations Act (s157(2)) and the Basic Conditions of Employment Act (s77(3)).
@Ishmael
In Chirwa most judges concurred in Ngcobo’s judgment, hence his is a majority judgment. Langa CJ was present and he wrote a minority judgment holding that High Court has jusrisdcition but Ms Chirwa would not have succeeded because employer’s action was not an administrative action. By the way Langa’s minority reasoning in Chirwa has now been adopted by a unanimous court in Gcaba!
I agree Prof. The Justices really stuffed up in the last two cases which they then tried (unsuccessfully?) to blame to others. Pertaining to the paragraph you quoted which seems to overturn the decisions in Fredericks and Chirwa, I always wonder why Courts find it difficult to overturn bad precedents.
But we also need to be a little patient with our young Concourt and know that it will get better in time.
Sivakashi, you seem to make out that in your opinion, the Professor’s view that the Constitutional Court failed to openly concede that it created confusion is neither insightful nor helpful. With respect,I disagree with you.
I think that if the Professor’s views as regards the holdings in Fredericks, Chirwa and Gcaba can withstand scrutiny, then one grievance which people may have with the Constitutional Court is that it has refused to be held accountable for the undesirable implications of is questionable reasoning.
So one question seems to become: is there anything objectionable about judges that are loath to being held accountable for their somewhat dubious reckoning? I certainly think so. More specfically, I would proffer two reasons supportive of the view that we ought to take issue with judges that seek to deflect blame which is properly attributable to them. In the first place, although admittedly at something of a stretch, it strikes me that if the Professor’s analysis speaks to the mark, then the conduct of the judges in the Gcaba case amounts to an implicit claim of infallibility. In other words, they could be taken as saying that it is the lower courts that make mistakes, not the apex court.
Secondly, the conduct of the Constitutional Court judges could, in my view, be construed as an abuse of their authoritative positions insofar as it sought to hold lower courts responsible for its own stuff ups.
Thus it seems to me that the Professor’s analysis is at least helpful inasmuch as he seems to have levelled fair reproach at a court that apparently needs a lesson in jurisprudential humility.
Good afternoon guys,
Interesting views i must say. Does the principle of stare decisis apply in relation to the Constitutional Court??
the decision that was handed down by the Constitutional Court today in the Mazibuko case is somewhat worrying , i believe the court has deviated from the some principles it set in the TAC & Grootboom cases.
Cant wait for the Prof’ s analysis on that one *wink*
ISHMAEL MALALE says:
October 8, 2009 at 8:29 am
“ . . . . . . . “
I think it was Mzo that a while back emphasized that this was and English blog. With a twinkle in the eye, I respectfully ask Ishmael to adhere to his request.
PS: A reader suggests that the judgment could also be read as implicitly acknowledging the CC’s role in the confusion and takes me to task for wrongly putting in inverted commas a quote suggesting the court blames “lower courts”, when it in fact it refers to “courts”. Mea culpa. I have fixed it. In context the corrected quote does not seem to me to impact on the point I made, though.
The fact seem to me to differ on the issue. I have not read the Gcaba matter. but Chirwa.
The issue involve is where a decission to dismiss an employee, is considered as administrative in nature and the other whether the decision of the Executing Authority not to appoint an employee into a higher post.
it is here a process of trying to compare apples with pears:
dismissal
promotion
The issue as per Chirwa focussed on the termination of the employment contract, and I understand it to mean that although a employer perform administrative functions as part of its service delivery, it does not mean that all of its actions(in this case dismissal) would constitute an adminstritive action, similarly the fact that the employer functions as a court does not mean that all of its actions would be judicial of nature, therefore the fact that you work for government does not automatically make all of its actions administrative action.
I understand the decision to say that dismissalss or the termination of the contract is based on contractual principals rather than administrative law principals.
There also exist within practice in the Private sector no understanding that a dismissal functions as administrative action, it is therefore unfair to allow public sector employees an additional “remedy” where other employees of other sectors only have one remedy. It creates a sense of some employees being more equal than others.
The decision whether to Promote an employee to an higher Position is being regulated not by the Labour relations act but in terms of the Public Service Act. The Labour Relations Act merely clarify what an unfair Labour practice is and that the matter, if it falls within the definition, would be considered as and unfair Labour practice granting the appropriate bargaining council jurisdiction or not. This I consider to fall within the contract of employment.
However the case of promotion the final decision whether to promote is laid at the feet of the execting authority of the department. The decision of the Executing authority is therefore controlled by the Public Service Act (Giving the executing authority to appoint after consultation in certain instancesand therefore a discression to accept recommendations or not)and not in terms of the Labour Relations Act. Dismissals are also regulated in the Public Service Act, but the decision of the Execting Authority is more of an approval stamp once a decision has been taken in a disciplinary enquiry where an independent chairperson makes a decision whether the trust relationship is broken and the act make provision that the dismissal will take place with due observance of the labour relations act. The Public service act stipulate that the Executing Authority MUST implement the decision of the chairperson (this provision is missing when the Executing Authority decide on promotion/appointments subject to due observance of principals enshrined in the constitution)
with promotion there is no question about the trust relationship, merely whether an employee complies with the minimum requirements of the post, and whether the applicant is the most suitable person for the post, also remember that “promotion’ in the public service mean that an employee must still apply for the post and its not automatic that you will be shortlisted because you applied and therefore not automatic that you will be appointed.
Where the discretion is exercised i believe that the decision need to be made must be reasonable and I would view it administrative, and in the case of Discipline the decision of the chairperson only need top be implemented and therefore mechanical.
The process of the promotion is therefore the subject of a decisionmaking process where the Executing Authority exercise a discretion on recommendations made by shortlisting/interview panel, where he/she may deviate from the recommendations, where in the case of dismissal he/she must implement the decision of the independent chairperson and there exist no discretion.
In Chirwa the employee decided to make use of Labour Relations processes therefore electing to use the Labour court but later during the course decided to make use of the High court based on administrative law. this in my view is the type of conduct that needed to be stopped.
The fact that you have used the Labour relations processes does not divest an employee of any other common law remedies as they are seperate processes meaning that you can institute both commonlaw and labour remedies at the same time.
My understanding of Chirwa was that it did not create the precedent that an employee is divested of commonlaw remedies and therefore able to refer it to the High court.
Sorry therefore I cannot see that the Constitutional Court made a “Balls Up” in the Matter of Chirwa
Darnit…
read the Gcaba Matter. Court came to the same conclusion as per Chirwa. To be honest Prof I do not see any difference or anything different that can conclude that a “Balls up” have been made other than the court indicating that it is the most recent authority [Par 77]which I find to be a sentence which is unnecessary.
unless you are saying that the problem experienced is that the CC were vague in clarifying certain issues that it had to decide and that the CC should have clearly indicated that Chirwa overuled Frederiks by indicating that all cases involving the contract of employment is not administrative action.
I would have to think about this if the last paragraph is what is being said, because I do not believe that the mere fact that a person is an employee competely exclude administrative action whenever processes are enacted which affect his rights.
Gcaba seem to be asking to be appointed in the position and that put his matter completely within the ambit of the LRA=Labour court jurisdiction rather than dealing with the manner in which the decision was taken.
Darnit…
read the Gcaba Matter. Court came to the same conclusion as per Chirwa. To be honest Prof I do not see any difference or anything different that can conclude that a “Balls up” have been made other than the court indicating that it is the most recent authority [Par 77]which I find to be a sentence which is unnecessary.
unless you are saying that the problem experienced is that the CC were vague in clarifying certain issues that it had to decide and that the CC should have clearly indicated that Chirwa overuled Frederiks by indicating that all cases involving the contract of employment is not administrative action.
I would have to think about this if the last paragraph is what is being said, because I do not believe that the mere fact that a person is an employee competely exclude administrative action whenever processes are enacted which affect his rights.
Gcaba seem to be asking to be appointed in the position and that put his matter completely within the ambit of the LRA=Labour court jurisdiction rather than dealing with the manner in which the decision was taken.
The focus on Chirwa was also whether the standard of review should be that of PAJA and not the LRA. The court indicated that because of the Specialised nature of review under LRA that PAJA as general Legislation cannot trump provisions in the LRA.
@ ocmoses
…Now read Makhanya v Iniversity of Zululand (SCA judgment)
@ Bongs
read Makhanye.
the premise on mhakanye differ from Chirwa still.
Mhakanye focus on the contract.
The question as i understand wolfardt is whether the fair action arise directly from the contract. if the contract stipulate the process to dismiss. it would form part of contract and therefore be non compliance with a contractual provision. if the contract indicate the termination depends on policy. then policy equals mere guidelines. and guidelines the courts generally agree can be deviated from unless such deviation is in material aspect of the rights of the employee. guidelines therefore = LRA action rather than pure commonlw right based on contract.
I need to read the facts in the lillicrap. if the engineers was independent contractors, their contract would fall in ambit of contractual rather than a LRA right. If employees then unfortunately LRA right.
I believe that A court need to take preliminary facts in consideration before merely deciding whether its an LRA right. In CC matter of chirwa it was said that the fact that the fact that the institution is a State institution does not automatically make all its actions Administrative in nature.
I view therefore that the fact that a person is an employee does not automatically render the claim automatically an LRA right.
Chirwa deal with whether the matter before the court can be considered Administrative action leading to it being a constitutional matter with the claims focus being denial of her constitutinal right to fair administrative action.
if Dismissal dont lead to administrative action then no constitutional right to defend. if however the court concluded that the dismissal was an administrative action then her claim would have concurrently been a right that could be enforced under both PAJA and LRA. So Chirwas claim had to fail.
Clearly in Chirwa is the determination of what type of action the dismissal purported to be.
My problem with the current finding is that the employee should have tried to enforce his right before (seems to me he resigned). therefore he unilaterally decided to terminate his contract. Seems to me still to fall within the ambit of the LRA (Constructive dismissal) the LRA would therefore have exclusive jurisdiction as it is a dismissal as defined in the LRA.
The question therefore for me exist when the employee should be able to
exercise his right in terms of the contract. if he tries to enforce the contract via interdict, he may fail because other remedies in terms of the LRA is available. I would argue that if all internal remedies in trying resolve the matter has been complied with only then would he be able enforce his right in terms of the contract in the high court (issue of Salary not being paid directly in relation to the contents of the contract).
Concurrent jurisdiction is given to civil court where the claim arise from conditions of the contract.
In Fijen v CSIR the court said that the rule is that the employer should not act in any manner which forces the employee to terminate the contract of employment. A rule coming from english law. so my view is only if the contract make explicit provision for the procedure to be followed on termination or the manner whereby the employer would be forced to comply with a breach of contract would the employee have strict recourse to contract.
My view on Jurisdiction is that the court need to make a preliminary finding on the matter to determine whether jurisdiction exist.
with respect the Makhanye matter(focused on contractual right) before the judge differed from Chirwa (focused on right to adminstrative action)although both relate to a matter of dismissal. The questions however asked is different.
@ ocmoses
Where the (majority) Concourt got it wrong in Chirwa was to make a finding that High Court did not have jurisdiction to adjudicate Chirwa’s claim and at the same time found that her dismissal did not constitute administrative action. The correct finding, as eloquently expressed in Makhanya, was that High Court had jurisdiction to adjudicate PAJA claims and dismissed her claim because of her failure to meet the requirements of PAJA i.e. impugned action ought to be administrative action first.
Regarding contractual claims based on employment contract – it is not as clear as you may want it to be. In a recent SCA judgment the common law of contract was developed to include an implied term that every dismissal ought to be preceeded by a fair hearing. That entitles an employee to approach High Court to enforce that implied contractual term. According to Chirwa, such claim should be dealt with by LRA forums because it is nothing other than a claim of unfair dismissal-but according to Gcaba,if an employee relies specifically on the implied contractual term, High Court retains its inherent jurisdiction.
Unfortunately Chirwas claim was based on the right to fair administrative action.
RE implied term to be treated fairly
unfortunately those arise from the development of fair treatment of the employee (LRA right) and is not an specific term of the contract unless the contract stipulate the process that need to be followed.
My view is that the court in Gcaba is mistaken. Because the contractual term is implied it does not automatically put it in the ambit of the High court. My view is only when the terms of fair process arise directly from the contract would the particular stipulation be impugned and would the high court have jurisdiction.
I disagree however with the idea that just because the contract arise from an contract of employment that the LRA should automatically be the appropriate forum.
I also have the view that because the labour court is a specialist court the SCA should not even be dealing with Labour matters as the LAC are equal to it when dealing with issues relating to appeal. (I think the constitution make provision that the SCA is the highest court of appeal and this creates problems because of the specialist nature of Labour matters) So a person can appeal After the LAC to the SCA and they have created Balls-up in the past such as the Sidumo matter.
Leigh, sorry for delay, I’ve been away. Good post.
Sivakashi, no worries mate. And thank you.
Prof
I believe Chirwa left the constitutional dead and buried.
The right to Fair Labour Practice , The right to Fair administrative justice are both rights which interms of section 38 of the constitution are suppose to be protected by the courts.
Chirwa denies or limits this constitutional right without even discussing section 36 on limitation of rights.
State accountability is seriously diminished and abuse of power has increased. How unfortunate.
Aren’t people missing the point. There are two causes of action peculiar to Labour Law – unfair dismissal and unfair labour practices. Chirwa was a case of alleged unfair dismissal and Gcaba a case of an alleged unfair labour practice. Both of these should have been deal with by the specialist labour forums created by the LRA. Fredericks involves neither an unfair dismissal nor an unfair labour practicer and it it doubful that the Labour Court would have had jurisdiction to deal with his problem.