1 July 2009

Don't give up on the possibility of proceeding in the High Court in labour disputes in the public sector

If anybody thought that the Constitutional Court, in the matter of Chirwa v Transnet Ltd & Others, brought a definitive close to the possibility of proceeding in the High Court whenever a dispute arises between an employer and an employee in the public sector, think again.

The question of jurisdiction remains one that should be considered when evaluating where to proceed.

In Mlokoti v Amathole District Municipality & Another, an applicant for the position of Municipal Manager successfully approached the High Court for assistance when he was unsuccessful in his application.

Mr. Mlokoti was, by all accounts, the stronger of the two applicants eventually considered for the position. However, a decision was made to appoint the alternative applicant, Mr. Zenzile. This was apparently based on a decision taken by the ANC regional executive committee - outside of the deliberations of the special council meeting of the Amathole District Municipality where the municipal manager was appointed. The decision was then confirmed in a council meeting, without a vote being taken. Moreover, the decision was taken contrary to an adopted policy applicable to the appointment.

Various interesting questions arose from these facts, such as whether the decision to appoint a municipal manager was an administrative act, capable of being reviewed by the High Court, or whether it was a political decision of the Amathole District Municipality, not capable of review. The High Court determined that the decision was an administrative one, capable of review, and in fact reviewed and set aside the decision to appoint Mr. Zenzile, and appointed Mr. Mlokoti in his stead.

From the viewpoint of whether the High Court or the Labour Court should have jurisdiction, the judgment is also of interest. Judge Pickering found that Mr. Mlokoti was an external candidate for employment (he was previously employed by the Amathole District Municipality, but had not been in its employ for a while). As an external employee, he did not have any remedies under the Labour Relations Act. He did not rely on any rights contained in section 23(1) of the Constitution. As such, Chirwa was of no application to his case. The High Court could, therefore, hear his application to review the decision of the Amathole District Municipality not to appoint him as its municipal manager. The function of the Municipality when making such appointment was considered and found to have been administrative action.

Judge Pickering went further and evaluated the extent to which the earlier judgement of the Constitutional Court in Fredericks v MEC for Education and Training, Eastern Cape survived the decision in Chirwa. In Fredericks it was held that the Labour Court did not have exclusive jurisdiction in all matters arising from an employment relationship. The learned Judge concluded that Fredericks did survive and that an employee can still proceed in the High Court, depending on how she phrased her dispute.

It may, therefore, be possible to avoid Chirwa's limitations by formulating a claim carefully to fall outside of the Constitution or the Labour Relations Act. This may be achieved, for instance, if the administrative decision to be attacked was taken contrary to an existing policy, such as was the case in this Mlokoti decision.

Retha Beerman

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