IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case No. : CCT 64/08 High Court Case No. 2756/2006
In the matter between:
VUYILE JACKSON GCABA Applicant
and
THE MINISTER OF SAFETY AND SECURITY
NOMINE OFFICIO First Respondent
THE NATIONAL COMMISSIONER OF SOUTH AFRICAN POLICE SERVICES
NOMINE OFFICIO Second Respondent
THE PROVINCIAL COMMISSIONER OF SOUTH AFRICA POLICE SERVICES
NOMINE OFFICIO Third Respondent
MORGAN G GOVENDER Fourth Respondent
VAKALA MOYAKE Fifth Respondent
ANSWERING AFFIDAVIT: APPLICATION FOR RE-ENROLMENT
I, the undersigned,
ANDREW MICHAEL SMITH
state under oath that:
1. I am an attorney, duly admitted by the High Court. I am employed by Bowman Gilfillan, the attorneys for the Respondents. I have, since the commencement of the Applicant’s original application in the Grahamstown High Court, acted as the attorney responsible for handling this matter. I am duly authorised to depose to this affidavit and oppose the Applicant’s application on behalf of the Respondents.
2. The contents of this affidavit are both true and correct and, unless the context indicates otherwise, within my personal knowledge.
3. The structure of this affidavit is as follows. First, I will address the timing of the notice of motion and of this affidavit. Secondly, I will address, in overview, the merits of the application. Finally, I will respond to the individual allegations of the Applicant.
I. DELIVERY OF NOTICE OF OPPOSITION AND OF THIS AFFIDAVIT
4. The application for re-enrolment was received by me on 19 December 2008. The application did not provide for a date by which the Respondents’ notice of opposition had to be delivered. I was unable to obtain instructions from the Respondents as to their attitude to the application until Tuesday, 6 January 2009. On that date I was instructed by Adv Arthur Mphahlale of the SAPS Legal Services (whose confirmatory affidavit will be attached hereto) that the Respondents wish to oppose the merits of the application, but do not oppose the application for re-enrolment. Accordingly, a notice of opposition to that effect was delivered on that date. The notice of opposition was delivered within 10 court days of receipt of the application. It appears that the applicant’s application has been brought in terms of Rule 11 of the Rules of Court, and for this reason, the Respondents will deliver their opposing affidavit within 15 days of their notice of opposition. Should the application in fact be an application in terms of Rule 19, then the opposing affidavit will be delivered 15 days late. To the extent it is late, the Respondents seek condonation for the delay on the basis that it appears that the application was brought in terms of Rule 11. It is respectfully submitted that if the opposing affidavit is late, then the Applicant will suffer no real prejudice. It is also submitted that it is in the interests of justice that the Respondents’ opposition be placed before the Court.
II. THE MERITS OF THE APPLICATION – AN OVERVIEW
5. The Respondents agree with the concern raised on behalf of the Applicant that there has
been confusion in the lower courts arising from the apparent contradictions between this Court’s decision in Transnet v Chirwa 2008 (3) BCLR 251 (CC) (“Chirwa”) and Fredericks and others v MEC for Education and Training, Eastern Cape and others 2002 (2) SA 693 (CC) (“Fredericks”). In addition to the cases mentioned by the Applicant, the cases of Mbashe Local Municipality & another v Nyubuse (2008) 29 ILJ 2147 (E); MEC, Department of Education, Eastern Cape Province & another v Bodlani in re Bodlani v MEC, Department of Education, Eastern Cape Province and another (2008) 29 ILJ 2160 (Tk); and Kotze v National Commissioner, SA Police Service and others 2008 (29 (ILJ) 1869 (T) demonstrate divergent approaches to this question. A recent decision by the Labour Court by Van Niekerk J is attached hereto as “A1”. The only copy of the judgment, which is unreported, which I am able to find is missing page 8. I will endeavour to supply this page as soon as I am able to find it. The approach which that decision takes, coupled with the Supreme Court of Appeal decisions in Old Mutual Assurance Co SA v Gumbi [2007] 8 BLLR 669 (SCA), Boxer Superstores v Mthatha &
others [2007] 8 BLLR 693 (SCA), and Murrav Minister of Defence [2008] 6 BLLR 513 (SCA), seems to suggest that any employee can bring a dispute to the Labour Court and the High Court (and presumably the appropriate bargaining council or CCMA) which relates to a contractual right to fairness which is implied in every single employment contract. It appears therefore that, Chirwa has not definitively resolved the vexed issue of whether a public sector employee has additional rights to a private sector employee.
6. The Respondents have been and are involved in various cases both in the High Court and the Labour Court where these difficulties in the interpretation and application of the judgments in Chirwa and Fredericks have arisen. The Respondents would therefore with respect welcome further pronouncements and guidance by this Court to assist litigants and the lower courts in relation to resolving these difficulties.
7. The question arises, however, whether this case is an appropriate one for the resolution of such difficulties. It will be submitted, for reasons that are set out in a later part of this affidavit, that the facts of the present matter are in all material respects similar to those in Chirwa, for in both cases the applicants relied on the right to fair labour practices and invoked (at least initially) mechanisms aimed at resolving disputes concerning allegedly unfair labour practices under the Labour Relations Act (“LRA”). The reasoning in the majority judgment in Chirwa therefore applies to the present matter. Accordingly, the present matter may not be an appropriate one for determination by this Court to resolve the difficulties which have arisen in the interpretation and application of the apparently divergent decisions in Chirwa and Fredericks. Such a case may therefore be more
appropriate for this Court to consider and pronounce upon the issues, rather than the present one, which can and should (it is submitted) be resolved by a simple application of Chirwa.
8. The central issue raised by the Applicant is whether the decision not to promote the Applicant is capable of judicial review in terms of the Promotion of Administrative Justice Act, 3 of 2000 (PAJA) in the High Court.
9. The application for leave to appeal does not appear to contend (at least directly) that the decision taken (i.e. not to promote the Applicant) is indeed administrative action, and thus seek to distinguish the matter from the majority judgments in the Constitutional Court in the case of Chirwa. In the affidavit under reply, the Applicant states that his cause of action is primarily based on the right to just administrative action as well as PAJA. He does not set out any reasons why the decision is distinguishable from a decision to dismiss a public-sector employee such as in Chirwa, or from a decision to stop payments of salaries (such as in the case of Makambi v MEC Education, Eastern Cape 2008 (5) SA 449 (SCA)) or why it is more akin to the decision in Fredericks. All the applicant provides is a conclusion: that his cause of action is based on administrative rights, without explaining why this is so. For this reason alone, the Respondents submit that the application should fail.
10. Due to the Applicant not providing any detail as to why the actions of the SAPS are administrative action, the Respondents do not address that issue in any great detail. It suffices to state that they submit that the decision whether or not to promote someone (such as the present Applicant) within the public service is not administrative action.
Both the judgments of Ngcobo J and Langa CJ in Chirwa held that the employer’s decision to dismiss did not constitute administrative action. It must be pointed out that the decision of Murphy AJ (as he then was) in SA Police Union v National Commissioner of the SAPS (2005) 26 ILJ 2403 (LC) which related to the changing of shifts in the SAPS was approved by the Constitutional Court in the Chirwa case. That case found that such a decision was not administrative action. The judgment of Nugent JA (a separate but concurring judgment) in the Makambi case to which the Applicant refers decides that a decision to stop an educator’s salary is not administrative action. The full-bench decision of the Eastern Cape Division in Mbashe Local Municipality & another v Nyubuse (2008) 29 ILJ 2147 (E) found that the withholding of a public service employee’s salary was not administrative action. It is respectfully submitted that the same reasoning must apply to an employer’s decision not to promote an employee, such as the decision taken in
relation to the Applicant in the present matter. I must point out that a contrary approach was adopted in Kiva v Minister of Correctional Service & another [2006] JOL 18512 (E), but that judgment was delivered well before this Court’s judgment in Chirwa and is, it is respectfully submitted, inconsistent with Chirwa.
11. What the Applicant does raise in his application for leave to appeal, however, is whether the Constitutional Court decisions of Chirwa and Fredericks are contradictory. The Respondents respectfully submit that that question does not arise for determination on the facts in the present matter due to the following:
11.1 The Applicant expressly relies, in his original application to the High Court, upon the Labour Relations Act. In the majority judgment of Justice Skweyiya in Chirwa, the Constitutional Court distinguished the Chirwa matter from the decision in Fredericks on the basis that the claimant in the Fredericks case did not rely on the constitutional right to fair labour practices under the Constitution, nor on the LRA. The present Applicant in this application seeks to find a basis for the jurisdiction of the High Court in section 157(2) of the LRA. In paragraph 10 of his founding affidavit, the Applicant states:
“I respectfully submit that the Applicants are, by virtue of section 157(2) of the Labour Relations Act No 66 of 1995, entitled to approach the above Honourable Court for the relief which we seek.” (Underlining appears in the Affidavit).
11.2 In addition, the Applicant referred a dispute to the appropriate bargaining council about his non-promotion. The Applicant in this matter has withdrawn that referral. Importantly, in paragraph 99.4 of the Applicant’s Founding Affidavit he states as follows:
“I have been displaced and this is in conflict with my constitutional rights of equity and reasonableness, and in particular the right to fair labour practices.”
11.3 Paragraph 12 of the same affidavit relies on both the right to administrative justice and “the Constitution [which] also provides for a right to fair labour practice, given legislative effect by the Labour Relations Act 66 of 1995”.
(Underlining appears in the Affidavit).
11.4 It is clear, therefore, that the circumstances of this case are squarely on par with those in the Chirwa case. I must point out that this is exactly what Ms Chirwa had done in her application and the majority in this honourable Court found that once she had proceeded on that route, referring a dispute to the CCMA under the LRA, she should have followed it to its conclusion. The current Applicant referred a dispute to the Bargaining Council. The Bargaining Council would be able to address such a complaint fully, as any bargaining council is entitled in terms of the LRA, to resolve promotion disputes. The majority in this Court in Chirwa held that the jurisdiction of the High Court had been ousted, as it was a purely employment matter. I respectfully submit that the same reasoning applies here.
11.5 The decision to promote a public employee is one that, as with private employees, may be tested against the standards of rationality and fairness in terms of the LRA. The Applicant’s rights are fully catered for in terms of the LRA mechanisms and specialised tribunals, with skills suited to address such issues in a cost-effective and timeous manner. The Applicant’s referral to the bargaining council should have been prosecuted to its conclusion. There are no special circumstances which prevented him from proceeding on that route to its completion.
12. The Applicant then raises one additional point in his application for re-enrolment which is not contained in his application for leave to appeal. He states that a decision as to whether the Applicant should have been promoted cannot be determined by a Bargaining Council, as to do so would be in breach of section 169 of the Constitution.
This does not appear to be a ground of appeal. In any event, it ignores the fact that the LRA allows an employee in the public service to refer such a dispute to the Bargaining Council. It is respectfully submitted that a decision as to whether an employee should be promoted or not is not a constitutional issue which requires a High Court or court of equivalent status to decide it. It is not administrative action and to the extent that the applicant correctly relies on his constitutional right to fair labour practices, he must use the mechanisms provided for by the LRA and not seek to go behind the LRA. He has not challenged the constitutionality of the LRA and on the basis of SANDU v Minister of Defence and others 2007 (8) BCLR 863 (CC) must go the LRA route. On the basis that constitutional issues should be avoided if possible, there can be no need for a High Court to have to declare that the Respondents’ actions violated the Applicant’s rights to
administrative action. All the employee wants is the increased remuneration attached to being promoted to the level of director. That compensation can readily be awarded in a Bargaining Council, if the Applicant can prove his case. Accordingly, there is no need for a constitutional issue even to arise. Section 157(2) of the LRA read with section 158(h) – and the policy reasons set out in Chirwa – provide additional reasons why this matter could be determined by the Labour Court.
III. THE SPECIFIC ALLEGATIONS OF THE APPLICANT
AD PARAGRAPHS 1 – 11
13. The Respondents do not take issue with these paragraphs. The history of how, in the Applicant’s attorney’s words, the application was not well-prosecuted are not, in the main, in dispute. They are also set out in the affidavit to which I deposed which is dated 12 November 2008. I must point out that when I stated on behalf of the Respondent in the letter of 3 November 2008 that they could not proceed with the matter this was not due to any fault of theirs, but purely because, due to the Applicant’s conduct of the proceedings, there was no record and no submissions by it.
14. I must also point out that the Applicant has not explained the delay between 27 November and 19 December 2008. However, the Respondent does not take issue with the timing of the delivery of the affidavit.
AD PARAGRAPH 12
15. The Respondents agree that the matter should be re-enrolled. However, the Respondents submit that ultimately, the merits of the matter are so weak that application for leave to appeal should be dismissed.
AD PARAGRAPH 13
16. I admit the contents of this paragraph save for the last part of the last sentence from the words “disputes over constitutionality of any executive…”. Although it is not strictly speaking relevant for these purposes, the Respondents do not understand the High Court to have jurisdiction over those acts which are listed in that part of the last sentence which are denied. The Respondents do, however, view the matter as important for the reasons which are set out above.
AD PARAGRAPH 14
17. I admit the contents of this paragraph. As is set out above, there is confusion in the lower courts.
AD PARAGRAPH 15
18 I admit that Judge Froneman stated the words which are quoted in this paragraph.
AD PARAGRAPH 16
19 I admit the contents of this paragraph.
AD PARAGRAPH 17
20 I admit the contents of this paragraph.
AD PARAGRAPH 18
21 It is correct that this Court, in the Chirwa matter found that the High Court had no jurisdiction. I must point out, however, that the course of action which Chirwa followed – first proceeding to the bargaining council, and then relying on Labour Relations Act rights, as well as administrative acts, is identical to that applicable to the present Applicant. In the Respondents’ humble submission, the mere classification by an applicant of the matter as a labour or administrative matter is not sufficient to found jurisdiction. The principle in the Chirwa case is that all employment-related matters should be dealt with by the LRA mechanisms. The passage quoted from the judgment of Nugent JA, therefore, to the extent that it contradicts Chirwa, does not assist the Applicant. This is particularly so because Nugent JA held that a state employer’s action in failing to appoint an educator to a permanent post was not administrative action. His doubts as to whether there exists a legal (as opposed to policy) reason for the distinction between Fredericks and Chirwa are also irrelevant to the case made out in this matter.
The majority decision of the Supreme Court of Appeal in the Makambi case held that the facts of that matter fell on the Chirwa side of the fence rather than the Fredericks side.
The identical reasoning applies here.
AD PARAGRAPH 19
22 The conclusions in this paragraph are denied. This is not a case which is distinguishable from Fredericks. It falls squarely within the facts of Chirwa. The fact that this case concerns a promotion and not a dismissal serves only to show that this is not an administrative act.
AD PARAGRAPH 20
23 Although I agree that the matter should be re-enrolled, I dispute that it has good prospects of success for the reasons in this affidavit, as well as in the affidavit opposing the original application for leave to appeal. I admit that there are no material disputes of fact in the Constitutional Court. I obviously dispute that the High Court has concurrent jurisdiction in such a matter.
AD PARAGRAPH 21
24 The Applicant’s stated case is that he was relying on his rights to fair labour practices. It is clear that this is an action by an employer – the decision not to promote the employee – which has nothing to do with administrative law and everything to do with whether the employee has been treated fairly in not being promoted. To seek to dress this matter up as an administrative issue avoids the undeniable: the employee wishes his promotion to be confirmed because of alleged violations of his employment rights. Having set out on the path to vindicate those rights in the Bargaining Council, he should continue down that route.
AD PARAGRAPH 22
25 I dispute the contents of this paragraph. Once the matter is correctly classified, there can be no question of the High Court’s jurisdiction in Constitutional matters being ousted. The decision as to whether the Applicant should be appointed to a position in Grahamstown is not a constitutional matter.
AD PARAGRAPH 23
26 I admit the contents of this paragraph.
_______________________
ANDREW MICHAEL SMITH
I certify that the Deponent has acknowledged that he/she knows and understands the contents
of this affidavit which was signed and sworn to before me at on the day of 2009, the Regulations contained in Government Notice No. R1258 of 21 July
1972, as amended, having been complied with.
_____________________________
COMMISSIONER OF OATHS
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