In the matter between:-
MRS M FREDERICKS
AND THE FURTHER APPLICANTS LISTED
IN ANNEXURE “A1” HERETO Appellants (Applicants a quo)
And
THE MEC EDUCATION AND TRAINING
FOR THE PROVINCE OF THE EASTERN CAPE First Respondent
PERMANENT SECRETARY – EDUCATION :
CULTURE AND SPORT, EASTERN CAPE Second Respondent
MINISTER OF EDUCATION OF THE
REPUBLIC OF SOUTH AFRICA Third Respondent (Respondents a quo)
APPLICATION FOR LEAVE TO APPEAL
BE PLEASED TO TAKE NOTICE that the abovenamed Appellants apply in terms of Rule 18 of the Rules of the above Honourable Court for leave to appeal against the decision of Their Lordships Mr Justice White and Mr Justice Ebrahim, given under case number 921/2000 in the High Court of South Africa, held at Bisho, which Judgment was handed down on 3 May 2001.
BE PLEASED TO TAKE NOTICE FURTHER that, insofar as the whole of the Judgment dealt with whether the issues were Constitutional Law issues or pure labour issues, the Appellants contending that the matter had to be decided on Constitutional principles, a copy of the judgment is annexed hereto in terms of Rule 18, marked “A”.
In terms of Rule 18(8)(b), the application for the Judges’ certificate is annexed hereto, marked “B” and the Respondent's answering affidavit thereto is annexed hereto, marked "C".
Their Lordships furnished a positive certificate and a copy of such certificate with the reasons is annexed hereto, marked “D”.
BE PLEASED TO TAKE NOTICE FURTHER that in terms of Rule 18(8)(d) the following information and/or argument is furnished:
1. The application before the Court a quo concerned the refusal by the MEC of the Department of Education and Training of voluntary severance packages of educators (teachers) in the employ of the Department in the Eastern Cape Province.
2. The Appellants sought an order declaring the decision by the First and/or Second Respondents not to grant voluntary severance packages to the Appellants to be set aside and for an order substituting the Court’s decision for the decision of the First and/or Second Respondents and to order that voluntary
severance packages be approved.
3. In the alternative an order was sought that the applications for voluntary severance packages (so-called “VSP’s”) be properly considered and also sought a cost award jointly and severally against the Respondents.
4. As is apparent from the judgment of the Court a quo the Respondents in essence did not dispute any of the factual allegations made by the Appellants and contended themselves with arguments in limine that the Court did not have jurisdiction to hear the matter and that the jurisdiction to entertain the application fell within the exclusive jurisdiction of the Labour Court.
5. Section 157(1) of the Labour Relations Act, No 66 of 1995 as amended in essence provides that subject to the Constitution and except where otherwise provided in the Act, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of the Act or in terms of any other law are to be determined by the Labour Court.
6. Section 157(2) of the Labour Relations Act provides that the Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa and arising from:
6.1. employment and from labour relations;
6.2. any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct by the State in its capacity as an employer;
6.3. the application of any law for the administration of which the Minister is responsible.
7. The Labour Relations Act does not purport to confer jurisdiction upon the Labour Court in general terms. The structure of the Act is rather to identify particular disputes or issues which may arise, and to provide for those particular issues and disputes to be referred to the Labour Court.
8. It is therefore clear that except under Section 157(2) of the Labour Relations Act, the Labour Court is not given jurisdiction in labour matters generally.
9. The agreement concluded at the collective level and referred to in the Judgment, namely Resolution 3 of 1996 (Government Gazette No 17226 of 31 May 1996 – Regulation Gazette No 5711) provided a procedure and an opportunity to allow educators who preferred to leave the service to do so and to create room for the absorption of educators who are in excess by applying for voluntary severance packages.
10. The process was to take place within the framework of post level ratio norms to be agreed upon from time to time.
11. The Appellants contended that all applications for VSP (subject to limited exceptions which are irrelevant for the current proceedings) were approved by the First Respondent and/or its delegates from the middle of 1996 to December 1996.
12. The practical manner of applying for voluntary severance was by the completion by one of the Appellants or any educator of an application form in the prescribed manner and for all practical purposes VSP’s were rubber stamped and approved by the First Respondent.
13. The Appellants allege that from approximately December 1996 the application process had unilaterally changed and applications were either not dealt with at all or turned down en masse. No reasons were advanced for the change in the manner in which VSP applications were handled, nor were any of the Appellants or any representative body ever informed as to such change.
14. The current Appellants were all unsuccessful and numerous educators lodged appeals to the First Respondent. The First Respondent either did not reply to the appeals at all, but in the few instances where a reply was forthcoming, it was simply to the effect that the Department of Education and Training had approved sufficient applications to enable it to reach the required educator-learner ratio.
15. The Appellants contend that their right to fair administrative hearings had been infringed, as well as their right to equality. They furthermore contend that the reasons forthcoming, in the instances where the appeals were replied to, were not proper or valid reasons and, in any event, ultra vires the provisions of
Resolution 3 in that it was only the National Minister that had the power to decide that educator-learner ratios had reached the level where VSP’s would no longer be allowed.
16. In fact there were such discontent with regards the refusal of VSP’s without reasons being given that the Second Respondent appointed a voluntary severance package task team to investigate the VSP’s.
17. The allegations in the application papers, relating to the findings of the task team, were not attacked by the Respondents. Amongst other things the task team, in its report stated that in most cases no criteria were used to recommend applications.
18. The report also suggested new criteria to be used from December 1996 onwards and it is the Appellants’ contention that even these criteria were never applied. In any event, none of the Appellants or any educator were
informed of these criteria and were not afforded the opportunity of having some input or discussion regarding the chosen criteria.
19. On the other hand Resolution 3 provided that the Department should seriously consider approving requests of personnel relating to the voluntary termination of service.
20. The Appellants further contend that during or about June 1996 the Permanent Secretary of the Department of Education and Culture distributed a circular to various heads of departments, teachers’ organizations or governing bodies in
which it is stated that any educator may apply for voluntary severance package and that “approval shall not be unreasonably withheld”.
21. The Appellants contended that their right to equality had been infringed in that educators who previously applied and whose personal and back-ground circumstances were the same as those of some of the present Appellants and who were granted VSP’s en masse, are discriminatory and no justification exists for the differential treatment.
22. The Appellants accordingly state that the decision not to grant VSP’s to the Appellants was arbitrarily, unreasonably made and not justified.
23. The Appellants contended that the First Respondent did not properly consider the applications and when the First Respondent purported to consider the applications, either incorrect criteria were used and the reasons given for non- approval fell short of fair administrative actions in that it did not constitute valid reasons or that the alleged reasons were inadequate or that they were ultra vires.
24. The Appellants further state in the application papers (which, as previously indicated, in broad terms were not disputed by the Respondents) that the legitimate expectation had been created by the Fist Respondent and the officials of the Department of Education that VSP’s would be granted on application.
25. It was therefore submitted that the First Respondent’s administrative actions were not justifiable in relation to the reasons given for it, ultra vires, grossly
unreasonable and mala fide.
26. The Appellants contended that at the time when it is alleged that the First and/or Second Respondents made the decision not to grant VSP’s the Promotion of Administrative Justice Act was not yet in force and consequently Section 23(2)(b) of Schedule 6 of the Constitution was operative.
27. The Appellants submit that the First and/or Second Respondents’ decision not to grant VSP’s was an infringement of the right to administrative action that is lawful, reasonable and procedurally fair.
28. The basis alleged was that the decision to initially grant severance packages to all educators and thereafter to refuse the applications of the present Appellants without adequate reason and/or acting ultra vires by not applying the principles as annunciated in Resolution 3 and/or not properly applying their minds to the matter at hand, constitutes an infringement of this Constitutional right.
29. As is apparent from the decision of the Court a quo there are conflicting decisions in the High and Labour Courts regarding the question of concurrent jurisdiction of the Labour Court in Constitutional matters.1
30. It is respectfully submitted that the Court a quo erred in not finding that the process of inviting offers for severance packages by various educators and the consideration of such applications in the circumstances as set out by the
1 See for instance: Naptosa & Others v Minister of Education, Western Cape Government & Others 2001 (4) BCLR 388 (C);
Mbayeka & Another v MEC for Welfare, Eastern Cape [2001] 1 All SA 567 (Tk);
Appellants (which, on the facts, are not disputed by the Respondents) constituted an infringement to the right to equality and the right to fair administrative hearing and consequently the Court should have held that the High Court had jurisdiction to entertain the matter as it concerned the protection of Constitutional rights.
31. It is submitted that the actions of First and/or Second Respondents, in refusing the VSP’s, does not constitute an unfair labour practice and does not relate to an act or omission and/or unfair conduct relating to provisions of benefits of employees.
Mgijima v Eastern Cape Appropriate Technology Unit & Another 2000 (2) SA 291 (Tk).
32. The Appellants accordingly contend that the Court a quo was incorrect in coming to the decision that the High Court had no jurisdiction to entertain the dispute, which in essence was a dispute concerning the infringement of the Constitutional rights to fair administrative hearings and equality. The Court a quo indicated that the dispute, being a labour dispute, should firstly be referred, in terms of Section 24(2) of the Labour Relations Act, to conciliation and if that is unsuccessful to arbitration.
33. It is further submitted that if this process were to be followed it emphasizes the nature of the dispute, namely Constitutional, as the Commissioner sitting during the arbitration would in any event not have jurisdiction to make findings such as
those that the Appellants seek, namely the reviewing and setting aside of a decision and the replacement of the decision of the First and Second Respondents.
34. Even the alternative order sought, namely that the applications for voluntary severance packages be properly considered is outside the statutory jurisdiction granted to arbitrators in terms of the Labour Relations Act.
35. In the circumstances it is submitted that the Appellants ought to be granted leave to appeal to the above Honourable Court against the decision of Their Lordships Mr Justice White and Mr Justice Ebrahim.
DATED at PORT ELIZABETH on this the 26th day of June 2001.
GREYVENSTEINS – NORTIER
Per:
Appellants’ Attorneys St George’s House 104 Park Drive PORT ELIZABETH Ref: R Geldenhuys Tel: 041 – 5859746 Fax: 041 - 5854861 Bisho Correspondents:
SMITH TABATA LOON &
CONNELLAN INC 126 Alexandria Road KING WILLIAM’S TOWN
Ref: Mr Pope/ysa/11/G124/008 Johannesburg:
BIELDERMANS INCORPORATED 24 Chester Road
PARKWOOD Ref: R Bielderman
To: The Registrar Constitutional Court Braam Park – Form 2 33 Hooft Street
BRAAMFONTEIN
And
To: THE STATE ATTORNEY Respondents’ Attorney Old Embassy Building 1 Prince Alfred Street KING WILLIAM’S TOWN
Ref: 324/2000-p7 (Mr Matiwane)
