CHAPTER 3: ANALYSING ADMINISTRATIVE LAW APPLIED IN LABOUR CASES
3.3 CONCLUSION
The purpose of this chapter has been to show the development of administrative action within the context of public-sector employment by discussing five cases.
In Fredericks the court left the question open as to whether administrative action applies.
However, it was recognised that the legislature expressly intended to provide the HC and LC
473 Chirwa SCA (note 317 above) para 65.
474 Hoexter (note 441 above) 60.
475 Ngcukaitobi and Brickhill (note 475 above) 792.
476 Quinot G (ed) Administrative Justice in South Africa: An Introduction (2015) 92.
477 Ngcukaitobi and Brickhill (note 475 above) 792.
with concurrent jurisdiction. Fredericks further recognised the court’s competence to hear a matter which is invoked through the pleadings.
In SAPU, the decision was accepted as an exercise of public power; because the decision was internal and not external in effect, the nature of the power fell more towards the employment side of the line and was not administrative in nature for the purposes of section 33 and PAJA.
SAPU further argued that it is no longer relevant to advance labour rights under administrative law and regard must be placed on the current constitutional dispensation.
POPCRU held that the decision to dismiss was sourced in statute and amounted to an exercise of public power. POPCRU further held that based on Fredericks and Fedlife the HC and LC had concurrent jurisdiction to hear disputes arising out of an employment setting.
The SCA in Chirwa provided a split decision and left the question unanswered as to whether the decision to dismiss was administrative action. For Mthiyane JA with Jafta JA concurring, the court had jurisdiction based on Fredericks but PAJA did not apply due to a lack of implementing legislation; therefore source of the power was not of a public nature but rather based in the employment contract. For Conradie JA, since the LRA now effectively protects public sector employees, based on the reasoning in SAPU, HC did not have jurisdiction and, therefore, the question as to whether the dismissal constituted administrative action was immaterial. For Cameron JA with Mpati DP concurring, the decision was administrative action because Transnet is a public entity, created by statute and every act, including dismissals, derives from its public, statutory character. Cameron JA further disagreed with Conradie JA, holding that the legislature had not expressly intended to limit rights, and, therefore, that no doctrine of constitutional law deprives one right over the other when one of the rights has greater amplitude than the other.
It was hoped that the majority in Chirwa would have provided clarity. However, strong policy guided reform was at play. In the majority judgment, Skweyiya J dealt only with jurisdictional grounds that the LRA provided a better route and that it was no longer necessary for administrative law to apply to labour cases in the HC. Ngcobo J, writing a separate majority, agreed with Skweyiya J on the jurisdictional issue, but then proceeded to follow the view of Mthiyane JA with Jafta JA in the SCA, suggesting that had there been implementing legislation, the decision would have amounted to administrative action.
For Langa CJ with O’Regan J concurring, the HC had jurisdiction under PAJA as pleaded and the judges disagreed with the policy-guided approach. Determining the dismissal as not
being administrative action, Langa CJ followed the approach in SAPU, finding the decision to be more internal and within the administration and thus lacking external legal effect.
The outcome in Gcaba
Van der Westhuizen J opted to provide a blanket approach to directing administrative law traffic away from the labour sphere. This has come at a cost to administrative law because it is not entirely clear how the court came to its conclusion on the administrative action question. It is not clear whether the court was applying the general meaning under section 33 or the specific statutory meaning under PAJA. The approach taken by the CC seems to be a deliberate avoidance of making a positive determination as to the nature of the decision qualifying the action as administrative for the purposes of section 33 and PAJA. It has been made clear by the same court in Bato Star that PAJA is to be applied directly as the default pathway to judicial review. The court’s avoidance does not accord with the settled principle of subsidiarity. Interestingly, the general rule makes no mention of the principle of legality, and,therefore, where there has been an exercise of public power, review legality would still be open.
Further uncertainty can be found where Van der Westhuizen J reasoned that it would have amounted to administrative action if the decision impacted on the public and had consequences for other citizens. The consequence of such a determination leaves administrative lawyers with uncertainty as to how the public impact factor fits in with the current element of ‘external effect’ under PAJA. At the same time when Gcaba was handed down, the same court applied the ‘direct, external legal effect’ element in Joseph. The court’s silence on the SAPU judgment providing similar meaning to ‘public impact’ and Langa CJ’s judgment in Chirwa on administrative action resulted in a baffling conclusion.
The issue of jurisdiction was put to rest where Van der Westhuizen J recognised the approach taken in Fredericks and by Langa CJ in Chirwa and held that jurisdiction is to be found on the basis of pleadings. This acknowledgment is important because it guides the courts to determine the nature of the claim as pleaded. Van der Westhuizens J’s conclusion that Gcaba failed to sustain a cause of action under PAJA remains unsatisfactory as he does not elaborate on the missing requirements in PAJA when coming to this conclusion.
However, Van der Westhuizen J recognised the interconnectedness of rights and that it was not uncommon for two or more rights to arise out of a single set of facts, an approach followed by Cameron JA in the Chirwa SCA. Van der Westhuizen J further disagreed with
the approach taken by the Chirwa majority that courts should not adopt a method of interpretation which has the effect of limiting rights.
In light of the court’s position on the above-mentioned views, the adoption of a general rule limiting the right to administrative justice seems odd and indicates that the same strong policy-guided reform that was present in Chirwa was at play in Gcaba. The effectiveness of the general rule is correctly expressed by Hoexter, Ngcukaitobi and Brickhill, namely, that administrative law will continue to apply in labour cases where an exercise of public power has been performed. Chapter 4 now turns to discussing various instances where administrative law still finds application in labour cases, providing public sector employees with the remedies and protections which they are constitutionally entitled to.