Gcaba v Minister of Safety and Security and Others

Gcaba v Minister of Safety and Security and Others, Constitutional Court Case Number CCT 64/08

Judgement Date: 07 October 2009-10-08

In this application for leave to appeal against a judgment of the Eastern Cape High Court, the Constitutional Court (the Court) brought clarity to the much vexed question of overlapping constitutional, administrative and labour law provisions regarding disputes between public sector employees and their employers. It also dispelled the notion that the Court’s previous ruling in Fredericks and Others v MECC for Education and Training, Eastern Cape & Others had been overruled by its decision in Chirwa v Transnet Ltd & Others. The main question that the court had to answer was whether decisions by Government as employee constituted administrative action.

The facts giving rise to this appeal were briefly that Mr. Gcaba had held the position of station commissioner in Grahamstown. When the position was upgraded, he applied and was shortlisted. He was interviewed but not appointed. The fourth respondent was appointed instead. Mr. Gcaba lodged a grievance with SAPS but later abandoned the process and elected to refer the dispute to the Safety and Security Sectoral Bargaining Council (Bargaining Council). After the failure of the representative of SAPS to attend the pre-arbitration meeting, Mr. Gcaba withdrew the dispute from the Bargaining Council and approached the High Court with an application to review the decision of SAPS not to appoint him as a station commissioner. High Court held that it had no jurisdiction to hear the application as it was a labour matter and accordingly dismissed the application.

The legislative framework within which the Court had to make a decision, are the Labour Relations Act (LRA) and the Promotion of Administrative Justice Act (PAJA). It was also necessary to give clarity on the two seminal cases of Chirwa and Fredericks already decided by the Court on the same issue, which appeared irreconcilable and had created confusion and misunderstanding on the jurisdiction of High Court to hear labour matters. In determining the two preliminary issues of whether a constitutional issue had been raised and whether it was in the interest of justice for the court to grant leave to appeal. The court determined that the interplay between administrative and labour law principles within the context of public sector employment lay at the centre of the case. This necessitated interpreting the LRA and PAJA which were both rooted in the Constitution. Accordingly, there was a constitutional issue to be determined and it was in the interest of justice to hear this case.

As far as the merits of the case were concerned, two issues had to be determined. The first was whether the failure to appoint Mr. Gcaba was an administrative action subject to review? The second was whether the High Court correctly decided that it had no jurisdiction to hear the matter.

The court held that generally labour and employment matters do not amount to administrative action within the meaning of PAJA. This principle is recognised in section 23 of the Constitution which regulates the employment relationship between employer and employee and section 33 of the Constitution which deals with the relationship between the state as bureaucracy and citizens. This view was supported by Chirwa where it was found that a dismissal was not an administrative action. Neither did it contradict the judgment in Fredericks, which left the question open. Accordingly, the failure to promote and appoint Mr Gcaba was a labour related issue, based on the right to a fair labour practice and was not an administrative action.

In dealing with the issue of jurisdiction, the court held that the proper interpretation of sections 157 (1) and (2) of the LRA is that the Labour Court and other LRA structures had been created as a special mechanism to adjudicate labour disputes such as unfair dismissals and not applications for administrative review. In contrast, the High Court adjudicated alleged violations of constitutional rights, administrative review applications and all other matters. Section 157 (1) should be given expansive content to protect the special status of the Labour Court and should not be read to permit the High Court to have jurisdiction over these matters as well. Similarly, section 157(2) enhanced the Labour Court’s ability to act as a special court charged with the responsibility to develop coherent and evolving employment and labour relations jurisprudence. The Court emphasised the fact that section 157 (2) should not be understood to extend the jurisdiction of the High Court to determine issues which had been expressly conferred upon the Labour Court by the LRA. It should rather be interpreted to extend the jurisdiction of the Labour Court to constitutional issues which arose in respect of those specific jurisdictional arrears which had been created for it by the LRA.

The Court held further that jurisdiction had to be determined on the pleadings and not on the substantive merits of a case. Mr. Gcaba had failed to plead facts that sustained a cause of administrative action that was cognisable by the High Court. He should therefore have approached the Labour Court. The court accordingly confirmed the order of the High Court, granted leave to appeal but the appeal was dismissed. No cost order was made against Mr. Gcaba as he had approached the court with a matter of considerable constitutional import in order to claim a fundamental right. To provide clarity and end the confusion created by the two cases decided earlier by the Court on the same issue, it was held that this judgement is the most recent authority.

October 2009
N Ntlokwana

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Published in: Centre for Constitutional Rights