CHAPTER 4: POST GCABA, APPLYING ADMINISTRATIVE LAW TO LABOUR CASES
4.4. DUALITY OF PUBLIC SECTOR EMPLOYEES’ RIGHTS
4.4.2 CONSOLIDATION OF RIGHTS
Court, section 157(2) cannot be read to mean that it no longer lies there and should not be read to mean as much.’617 Van der Westhuizen J importantly held that, although the LC deals with ‘labour and employment related dispute for which the LRA created specific remedies, it does not mean however that all other remedies which might lie in other courts like the High Court or the Equality Court, can no longer be adjudicated by those courts.’618
In De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the Time Being and Another,619 Moseneke DCJ held in the circumstances within that case that
‘arbitration is the appropriate forum for the applicant and respondent to seek where the balance between dogma and tolerance should be struck.’620 The court reasoned, based on the Doctrine of Entanglement, that it would be inappropriate for the court to interfere pre- arbitration, especially considering that the line is close to the church’s doctrines and values.621 However, distinguishable to Fredericks, De Lange expressly disavowed her claim to unfair discrimination in order to escape the jurisdictional challenges.622
Moseneke DCJ, relying on the authority in Minister of Environmental Affairs and Tourism v George and Others623 held that:
‘the Equality Court proceedings based on her claim of unfair discrimination on the basis of sexual orientation as well as the arbitration agreement between the parties should have been consolidated before a single judge sitting as Equality Court and as High Court.’624
For Moseneke DCJ, the reasoning as to why the consolidation route would have been appropriate was because it serves the procedural requirements of Unfair Discrimination Act that discrimination matters must proceed to the Equality Court, as well as avoiding piecemeal litigation and cost.625
Arguably similar to the Equality Court, the LC is a specialised court giving effect to a constitutional right. Based on the authority of De Lange and George, it would be a stimulating approach to persons in future cases like Chirwa or Gcaba to consolidate their
617 Ibid.
618 Ibid.
619 2016 (2) SA 1 (CC).
620 Ibid para 43.
621 Ibid para 45.
622 Ibid para 52.
623 [2006] SCA 57 (RSA).
624 De Lange (note 622 above) para 58.
625 George (note 626 above) para 58.
claims to fair labour practices and administration action in the LC before a single judge sitting as LC and as HC. Consolidating claims of unfair labour practices and administrative action in the LC would not only be in line with Conradie JA’s approach in the SCA judgment in Chirwa but would also arguably be in line with section 158(1) (h) of the LRA.
Consolidation would also arguably balance the two rights, thus providing the fullest extent to constitutional rights.
However, this is not the approach that our CC has chosen as Van der Westhuizen J recognised that employment and labour relationship issues do not amount to administrative action within the meaning of PAJA because they are disparate claims,626 much like Moseneke DCJ recognised in De Lange.627 Since a litigant’s section 33 right is different to a section 23 right in substance, there is no legal reason as to why both rights should not be applicable.
Obviously, it is not uncommon in our law to have more than one cause of action arise out of a single set of facts and there is nothing in the Constitution which restricts or denies one right over the other when more than one right is applicable.
Hoexter states that when reading the Gcaba judgment initially, one would give a sigh of relief as the court started to fix up the alarming tendencies left in Chirwa.628The relief was short lived, however, as Gcaba opted to:
‘…direct employment related traffic away from administrative law and the High Court. This is evident from the court’s brief canvassing of the main policy considerations that its jurisdictional reasoning in Chirwa: the need for specialist regimes, the undesirability of forum-shopping and the dangers of encouraging a dual system of law.’629
Cheadle argues that ‘administrative justice depends on the existence of more specific rights such as equality and the right to fair labour practices.’630 Hoexter argues that Cheadle suggests that ‘because labour disputes are governed by a more specific right or ‘primary right’, section 33 of the Constitution has no work at all to do in relation to such disputes.’631 Cheadle further argues that, since section 33 has no relevance in the face of a more specific
626 Gcaba (note 507 above) para 64.
627 De Lange (note 622 above) para 59.
628 Hoexter (Note 505 above) 54.
629 Ibid 54; See Gcaba (note 507 above) paras 56-57.
630 Cheadle (note 611 above) 746-747.
631 Hoexter (note 505 above) 52-53.
right, ‘section 33 would have nothing to say to expropriation because section 25 of the Constitution specifically governs property rights.’632 Hoexter reasons, based on Cheadle’s argument, that section 33 would also have nothing to say in the ‘context of environmental matters, citizenship or trade as all of which are governed by a more specific or primary constitutional rights.’633 Hoexter criticises Cheadle in that ‘such reasoning misses the point about administrative law, which is that it is a general, overarching system that addressed the abuse of public power whenever it may be found, irrespective of the subject matter of the dispute.’634
Nugent JA Makhanya635 criticises Cheadle’s holding that, if the LRA trumps all other rights in all instances involving public sector employments, then it seems odd as to ‘why the legislature should have allowed a claimant his or her ordinary right to approach a High Court to consider such a claim to only then dismiss the claim for being bad in law.’636 For Nugent JA, when a claimant approaches a court to enforce a particular right derived from the Constitution, then that is a matter of fact. That the claim may be bad in law for not being able to make out a cause of action, however, is beside the point.637 Nugent JA goes further to state that, when a court denies a claimant the right to assert a claim, which is what the court in Chirwa had done, then for Nugent JA that approach would not be permissible as the court denies a legally recognised right which would factually not be correct.638
It is not unusual for two rights to be asserted arising from the same facts. For Nugent JA, much like in Chirwa and in Gcaba where there happens to be a termination of a contract of employment, it is trite that a claimant has the potential to found a claim for relief for infringement of the LRA right, which is enforceable only in a labour forum;639 however, Nugent JA does not suggest that this is the only potential claim in seeking enforcement because claimants also have a potential claim for the enforcement of a right that falls outside the LRA which are enforceable either in the HC or the LC.640
Nugent JA arguably recognises the possibility of consolidating both rights, holding that ‘it is the natural consequence of a claimant asserting two claims, each of which is capable of being
632 Ibid 53.
633 Ibid.
634 Ibid.
635 Makhanya (note 592 above).
636 Ibid para 69.
637 Ibid para 72.
638 Ibid para 73.
639 Ibid para 37.
640 Ibid.
brought in a different forum’.641 Moreover, even where two claims arise from a set of common facts and might be asserted, it should not evoke surprise or be unusual whether they are dealt with separately or in the alternative.642 A potential claimant is capable of pursuing both claims in the LC either simultaneously or in succession643 because, for Nugent JA, they are different claims. However, the judge does provide further clarity as to how one would go about asserting ones rights by holding that:
‘In one claim the Labour Court (as one of the Labour Forums) would be asked to enforce an LRA right (falling within the exclusive power of the Labour Forums).
And in the other claim it would be asked to enforce a right falling outside the LRA (but within the concurrent jurisdiction of the Labour Court). Similarly the claimant would have been capable of brining one claim ( the claim to enforce an LRA right) in a Labour Forum and to bring the other claim (for enforcement of the right arising outside the LRA) simultaneously, or sequentially, in the high court.’644
For Nugent JA, it is intelligible that where a litigant has only a single claim that is enforceable in two courts which have concurrent jurisdiction, an election must be made as to which court to use, and therefore ‘forum-shopping’ is specifically allowable in those instances.645 However, for Nugent JA, the position is entirely different when a litigant has two distinct claims where one is enforceable in one court and the other may be enforced in another.646 Therefore, denying a litigant as a matter of judicial policy appears to be unconstitutional.647 For Nugent JA, the law has designated the HC as a forum for pursuit of claims, and therefore a litigant may not be denied access to a court that the law allows.648 Nugent JA further recognised that, where a litigant approaches a court to advance their constitutional rights that are ultimately available to them, ‘a court cannot shy away from exercising its power to consider a claim before it simply because it considers the claim may lead to undesirable consequences.’649
641 Ibid para 39.
642 Ibid.
643 Ibid.
644 Ibid para 38.
645 Ibid para 61.
646 Ibid.
647 Ibid para 62.
648 Ibid para 64.
649 Ibid para 57.
The CC has opted to sticking to stronger policy reasoning as opposed to any legal reasoning as to why section 33 and PAJA no longer applies to employment and labour disputes. This approach is strange considering the remarks mentioned above by Van der Westhuizen J on advancing and protecting constitutional rights holistically. It is apparent that a litigant’s right to section 33 of the Constitution is the only right which the CC denies where the right to section 23 is also applicable under the same single set of facts. It does not necessarily mean that one is left without a remedy where, for instance, the LRA or PAJA does not apply in certain circumstances. The principle of legality, as mentioned above, has been gaining momentum in providing an alternative route in controlling decisions made by the administration within employment related circumstances. However, there are further instances where exceptions to the general rule provided by Gcaba have been identified, making the rule not entirely discouraging in cases where, for example, the LRA is not applicable to cases following a dismissal via operation of law.
Since Gcaba recognises that pleadings invoke the court’s competence to hear a particular dispute, there are cases where administrative law has been advanced in cases arising out of an employment setting. Gcaba does not definitively state that the LRA ‘must’ be applied first;
rather the court states that it is ‘preferable’ that the LRA is dealt with first. There are instances where litigants since Gcaba plead their cases under section 33 and PAJA and disavow any reliance on section 23 of the Constitution. The issue of pleadings will be dealt with in subsection 4.6 below.
There are circumstances where the LRA does not apply to cases dealing with dismissals via operation of law. The next subsection aims to determine those employees’ legal position and whether their circumstance fits into the exception to the general rule.