Two New
Leading Constitutional Cases
Chirwa v Transnet Limired
CCT78/06
-
application of Promotion of
Access to Justice Act and
concurrent jurisdiction of High
Court in labour disputes
IN THE CONSTITUTIONAL COURT
OF SOUTH AFRICA
Chirwa v Transnet Limited and
Others
Case CCT 78/06
Decided on 28 November 2007
Media Summary
--------------------------------------------------------------------
The following media summary
is provided to assist in
reporting this case and is not
binding on the Constitutional
Court or any member of the
Court.
Constitutional Court handed
down judgment in the matter of
Chirwa v Transnet Limited and
Others .
This matter deals with issues
that had long divided courts and
legal opinion concerning the
jurisdiction of the Labour Court
and the High Court to hear
certain disputes involving
employment and labour relations.
It arose from the dismissal of
the applicant, Ms Chirwa, on
22 November 2002. At the time
she was employed by Transnet
Limited in the capacity of human
resources executive manager of
the Transnet Pension Fund
Business Unit. The dismissal was
preceded by an enquiry held by
her supervisor, on the grounds
of inadequate performance,
incompetence and poor employee
relations. Ms Chirwa first
challenged her dismissal in the
Commission for Conciliation,
Mediation and Arbitration on the
basis that it was procedurally
unfair. After conciliation
failed, she did not pursue the
labour relations mechanisms
further, but rather approached
the High Court on the basis that
the dismissal violated her
constitutional right to just
administrative action, as given
effect to by the Promotion of
Administrative Justice Act (PAJA).
The High Court applied the
principles of natural justice
and found that the dismissal of
Ms Chirwa was unfair and granted
the order for her reinstatement.
Transnet appealed the order to
the Supreme Court of Appeal. The
majority of the court upheld the
appeal on the basis that the
dismissal of Ms Chirwa did not
fall to be reviewed under the
provisions of PAJA.
Ms Chirwa approached the
Constitutional Court, seeking
leave to appeal against the
decision of the Supreme Court of
Appeal. In this Court she relies
on her right to procedurally
fair administrative action. The
claim is based on the
proposition that since Transnet
is an organ of state, the
dismissal of its employee
necessarily amounts to an
exercise of public power, which
is reviewable under sections 3
and 6 of PAJA. In the
alternative Ms Chirwa relies on
section 195 of the Constitution,
which sets out the principles
that must guide public
administration in the carrying
out of its functions. These
include accountability,
professional ethics, fairness
and objectivity. This case
illustrates that a dismissal of
a public sector employee has
given rise to two causes of
action, one under the labour law
regime and the other under the
administrative justice regime.
Therefore, an additional issue
before this Court is whether the
High Court has concurrent
jurisdiction with the Labour
Court in matters that arise out
of an employment dispute, such
as in the present case.
Skweyiya J decided this
matter on the basis of
jurisdiction alone. He held that
Ms Chirwa’s claim is based on an
allegation of an unfair
dismissal for alleged poor work
performance and should therefore
have followed to the end the
procedures and remedies under
the Labour Relations Act (LRA),
which specifically regulate this
type of labour dispute. He found
that the High Court did not have
concurrent jurisdiction with the
Labour Court in this matter.
First, Ms Chirwa had expressly
relied on provisions of the LRA
in formulating her claim in the
lower courts as well as in this
Court. Second, an applicant
cannot be in a preferential
position, having access to
multiple forums, simply because
of her or his status as a public
sector employee. He concluded
that if Ms Chirwa were to be
allowed to depart from the
finely-tuned dispute resolution
mechanisms created by the LRA, a
dual system of law would be
perpetuated, one applicable in
the civil courts and the other
in the forums established by the
LRA. Therefore, to the extent
that PAJA and the LRA overlap,
Skweyiya J urges the legislature
to revisit the applicable
provisions.
Skweyiya J found that it was
unnecessary to decide the
question whether the dismissal
amounted to administrative
action. If however, this
determination needed to be made,
he agreed with the conclusion
reached by Ngcobo J that the
dismissal of Ms Chirwa by
Transnet does not amount to
administrative action. Finally,
Skweyiya J held that Ms Chirwa’s
reliance on section 195 of the
Constitution was misplaced. He
found that although the section
provides valuable interpretative
assistance it does not found a
right to bring an action.
Ngcobo J concurred in the
judgment of Skweyiya J, and
considered two further issues.
The first was whether the Labour
Court had concurrent
jurisdiction with the High Court
in the dispute in question; and
the second was whether the
conduct of Transnet in
dismissing Ms Chirwa constituted
administrative action under the
Constitution.
He noted that prior to the
enactment of the LRA there were
different statutes governing
labour and employment relations.
These multiple pieces of
legislation created
inconsistency and unnecessary
duplication of resources as well
as jurisdictional problems. He
held that one of the primary
objects of the LRA is to create
a comprehensive framework of law
governing the collective
relations between employers and
trade unions in all sectors of
the economy. Consistently with
this objective the LRA brings
all employees whether employed
in the public sector or private
sector under it, except those it
specifically excludes.
The other problem associated
with the old labour relations
regime was of overlapping and
competing jurisdictions and the
use of different courts to
adjudicate labour and employment
issues. This invariably led to
forum-shopping. A declared
purpose of the LRA is to
establish the Labour Court and
the Labour Appeal Court as
specialised superior courts with
exclusive jurisdiction to deal
with matters arising from the
LRA.
He further held that the
primary purpose of section
157(2) was not so much to confer
jurisdiction on the High Court
to deal with labour and
employment relations disputes,
but rather to empower the Labour
Court to deal with disputes
founded on the provisions of the
Bill of Rights that arise from
employment and labour relations.
In order to reconcile the
relevant provisions of the LRA
and the primary objects of the
LRA the provisions of section
157(2) must be confined to those
instances where a party relies
directly on the provisions of
the Bill of Rights. In the
present case he found that Ms
Chirwa relied upon a breach of
the provisions of the LRA and
that therefore the Labour Court
had exclusive jurisdiction.
Ngcobo J held that the
conduct of Transnet in
dismissing Ms Chirwa did not
constitute administrative
action. He therefore concluded
that the dispute between the
applicant and Transnet falls
within the exclusive
jurisdiction of the Labour
Court, and that the High Court
did not have jurisdiction in
respect of the applicant’s
claim.While previously
administrative law was used to
protect labour rights of
employees who were not covered
by the LRA, this was no longer
necessary as the LRA now
protects all employees including
public sector employees and
codifies the right to fair
labour practices.
Moseneke DCJ, Madala J, Navsa
AJ, Nkabinde J, Sachs J and Van
der Westhuizen J concur in the
judgments of Skweyiya and Ngcobo
JJ.
Chief Justice Langa, with
whom Justices O’Regan and
Mokgoro concur, wrote a separate
judgment agreeing with the
outcome, but disagreeing with
the reasoning. He did not accept
the finding of both Skweyiya J
and Ngcobo J that the High Court
did not have jurisdiction. In
his view, the issue had already
been decided by the
Constitutional Court in an
earlier case and there was no
way to distinguish Ms Chirwa’s
claim from the earlier matter.
He also found that the various
policy concerns expressed in the
majority judgments could not
justify departing from the clear
wording of the LRA. The Chief
Justice also considered whether
Ms Chirwa’s dismissal amounted
to administrative action. He
held that it did not both
because there was no legislative
source for the decision and
because the dismissal was not
the exercise of a public power
or the performance of a public
function. For these reasons he
agreed that the appeal should be
dismissed.
Read the judgment online
Sidumo v Rustenburg Platinum
Mines Ltd and Others
Case CCT 85/06
Decided on 05 October 2007
Media Summary
The following media summary is
provided to assist in reporting
this case and is not binding on
the Constitutional Court or any
member of the Court.
Constitutional Court handed down
judgment in the matter of Sidumo
v Rustenburg platinum mines ltd
and others.
On 5 October 2007 the
Constitutional Court delivered
judgment in this matter. The
judgment has been eagerly
awaited by employers and
employees. It is of special
significance to the Commission
for Conciliation, Mediation and
Arbitration (the CCMA) and to
the Congress of South African
Trade Unions (COSATU), which had
applied to intervene.
The case involved the dismissal,
more than seven years ago, of Mr
Sidumo by Rustenburg Platinum
Mines. Mr Sidumo was employed to
patrol the Mine’s high security
facility where precious metals
are separated from lower grade
concentrate. He was dismissed
for failing to apply established
search procedures. He contested
his dismissal and referred his
dismissal dispute to the CCMA in
terms of the compulsory
arbitration provisions of the
Labour Relations Act (the LRA).
The commissioner found that Mr
Sidumo was guilty of misconduct
but found that no dishonesty was
involved and took into account
his clean service record of 15
years and consequently
reinstated him with three
months’ compensation subject to
a written warning valid for
three months. The Mine applied
to the Labour Court to review
and set aside the award. The
Labour Court dismissed the
application. The Mine
unsuccessfully appealed against
the decision to the Labour
Appeal Court. The Mine then
appealed against that decision
to the Supreme Court of Appeal
where it was successful. The
Supreme Court of Appeal held
that the dismissal was fair. Mr
Sidumo, in turn, applied to this
Court for leave to appeal
against that decision.
A key finding of the Supreme
Court of Appeal was that in
deciding unfair dismissal
disputes commissioners of the
CCMA should approach the
employer’s sanction in relation
to misconduct with a measure of
deference because it is the
employer’s function in the first
place to impose a sanction.
In this Court four judgments
have been written. All agreed
that the Supreme Court of Appeal
decision must be overturned.
They are unanimous that, in
deciding a dismissal dispute, a
commissioner is not required to
defer to the decision of the
employer. The commissioner is,
however, not given the power to
consider afresh what he or she
would do but to decide whether
what the employer did was fair.
In reaching a decision the
commissioner must have regard to
all relevant circumstances. The
judgments differ, however, in
respect of certain aspects of
how the functioning of the
commissioner is to be
characterised.
Navsa AJ, with whom Moseneke DCJ,
Madala J, O’Regan J and Van der
Westhuizen J concurred, agreed
with the Supreme Court of Appeal
that compulsory arbitration
proceedings undertaken by the
CCMA constituted administrative
action, but held that it was not
subject to the provisions of the
Promotion of Administrative
Justice Act. The majority held
that in accordance with the
requirements of section 33 of
the Constitution, which provides
that everyone has the right to
administrative action that is
lawful, reasonable and
procedurally fair, and
considering the purpose of the
review provisions of the LRA,
the standard to be applied when
a decision by a commissioner on
a dismissal dispute is sought to
be reviewed is the following: Is
the decision reached by the
commissioner one that a
reasonable decision-maker could
not reach?
In applying this standard to the
facts of the case the majority
accepted that there had been no
evidence that loss had been
suffered by the Mine as a result
of Mr Sidumo’s misconduct. It
considered that the commissioner
erred in describing the
misconduct as a mistake or as
unintentional. It held, however,
that the commissioner was
correct to find that the absence
of dishonesty was significant.
It took the view that Mr
Sidumo’s failure to own up to
his misconduct should count
against him. It balanced this
against his clean and lengthy
service record and concluded
that having regard to the
reasoning of the commissioner,
based on the material before
him, it could be said that his
conclusion was one that a
reasonable decision-maker could
reach. The facts were such that
decision-makers acting
reasonably may reach different
conclusions.
Mr Sidumo’s application for
leave to appeal and COSATU’s
application to intervene were
granted. The appeals against the
decisions of the Supreme Court
of Appeal were upheld. All the
costs orders in the courts
before the present appeal were
set aside and substituted with
an order that no costs were to
be paid by any of the parties.
In respect of the present appeal
no order was made as to costs.
In a minority judgment in which
Mokgoro J, Nkabinde J and
Skweyiya J concurred, Ngcobo J
held that this case did not
require the Court to decide
whether the conduct of
arbitration proceedings by a
CCMA constitutes administrative
action. He held in any event
that the conduct of arbitration
by a CCMA commissioner
essentially involves the same
functions that are performed by
a court of law and is therefore
adjudicative and not
administrative in nature.
According to Ngcobo J this case
required the Court to give
meaning to the grounds upon
which arbitration awards by CCMA
commissioners may be reviewed by
the Labour Court. He emphasised
that in answering this question,
courts must be guided by the
principle that where legislation
which was enacted to give effect
to a constitutional right
specifies the grounds upon which
decisions of tribunals giving
effect to that legislation may
be reviewed, a court reviewing
the decision of that tribunal
should start with the
interpretation of the specific
grounds contained in the statute
in question. The grounds must be
construed in the light of the
primary objectives of the LRA
and the provisions of the
Constitution, in particular,
those entrenching the right to
fair labour practices. He
cautioned against developing a
standard of review based
directly on the Constitution and
thereby ignoring the specific
provisions of the LRA which set
out the specific grounds of
review.
Against this background, he held
that parties to CCMA
arbitrations had a right to have
their cases fully and fairly
determined. This required
commissioners to apply their
mind to the issues that are
material to the determination of
the disputes before them. He
held that where a commissioner
failed to have regard to a
matter which was material to the
dispute, the arbitration
proceedings could not in
principle be said to be fair. He
held that this constituted a
gross irregularity in the
conduct of the proceedings as
contemplated in section 145(2)(a)(ii)
of the LRA. He further held that
the ensuing award ought to be
set aside not because the result
is wrong but because the
commissioner has committed a
gross irregularity in the
conduct of the proceedings. He
further held that similarly,
where a commissioner rendered an
award which was manifestly
unfair, he or she exceeded his
or her powers under the LRA and
the resultant award must be set
aside on the grounds that the
commissioner has exceeded his or
her powers as contemplated in
section 145(2)(a)(iii)of the LRA.
On the facts of the case he
concluded that none of the
grounds of review contained in
the LRA had been established. He
accordingly concurred in the
order of Navsa J.
O’Regan J wrote a brief judgment
concurring in the judgment of
Navsa AJ. She differed with the
approach of Ngcobo J on the
question of whether the
decisions made by CCMA
commissioners were
administrative action or not.
She reasoned that there was no
reason why sections 33 and 34 of
the Constitution needed to
operate in a mutually exclusive
manner. She held that the CCMA
decisions were clearly governed
by section 34, and to answer the
question whether they were also
governed by section 33, she
considered the constitutional
purpose of that section. She
held that its purpose was to
ensure that administrative
action was compliant with the
constitutional standards of
lawfulness, reasonableness and
procedural fairness. As the CCMA
is an administrative tribunal
making adjudicative decisions,
she reasoned that it would be
consonant with our
constitutional framework for
those decisions to be reviewed
on the grounds provided for in
section 33. She agreed therefore
with Navsa AJ that the decisions
of CCMA commissioners were
administrative action.
In a separate judgment
supporting the outcome, Sachs J
held that pigeonholing the
conduct of a commissioner as
either “judicial function” or
“administrative action”
displayed undue subordination to
formal classification of rights,
and insufficient regard for the
manner in which rights overlap
and basic values animate and
bind discrete rights together.
In his view the function of the
commissioner is a hybrid one,
composed of an amalgam of the
separate but intermingling right
to fair labour practices, the
right to just administrative
action and the right of access
to court. He accordingly agreed
with both judgments as far as
they went in their separate
legal frames. Though different
in form they concurred on the
context, interests and values
involved. Formal trappings
aside, he had difficulty in
seeing how a reasonable
commissioner could act unfairly,
or a fair commissioner could
function unreasonably.
The Full judgment is available
here:
J-CCT85-06A.txt
THE RUSTENBURG TEST
HIGH NOON AT THE CONSTITUTIONAL
COURT
Z Sidumo & Congress of South
African Trade Unions v
Rustenburg Platinum Mines &
Others
We arranged for one of our
professional staff to attend at
the Constitutional Court earlier
today, when the Highest Court in
the land gave judgment in the
Rustenburg Platinum Mines
matter.
Readers will recall that the
Supreme Court of Appeal, in a
carefully reasoned (and fully
supported) decision, had
determined two issues of immense
import to those engaged in the
labour law field.
In the first instance, the SCA
determined that commissioners
must exercise caution in
determining whether a
disciplinary sanction imposed by
an employer is fair. Arbitrators
must apply "….a measure of
deference …." to the employer's
sanction because it is primarily
the function of the employer to
determine the proper sanction.
This was widely interpreted as
cementing a "reasonable
employer" test into our law. In
terms of which, it was only
those decisions that fell beyond
a broad range (or "band") of
possible reasonable decisions
that could be interfered with.
In the second instance, the SCA
found that the Promotion of
Administrative Justice Act, No 3
of 2000 (PAJA), applied to a
review of decisions of CCMA
commissioners. The importance of
this element was that the PAJA
provides far more extended
grounds of review.
In its outcome delivered this
morning, the Constitutional
Court has rejected the "fair
employer test" determined in the
Rustenburg case, and reverted
back to the test that the plain
wording of the LRA itself seems
to imply – the commissioner
decides.
The Constitutional Court has
determined that in approaching a
dismissal dispute, a
commissioner must do so
impartially. The commissioner
must take account of "….the
totality of circumstances". But,
in terms of the LRA, it is the
commissioner who must determine
whether a dismissal is fair or
not. A commissioner is "….not
given the power to consider
afresh what he or she would do,
but simply to decide whether
what the employer did was fair
or not. In arriving at a
decision a commissioner is not
required to defer to the
decision of the employer. What
is required is that he or she
must consider all relevant
circumstances." (our emphasis)
The Constitutional Court also
determined that the Promotion of
Administrative Justice Act did
not apply to the review of
arbitration awards made in terms
of the Labour Relations Act.
The Constitutional Court outcome
does have implications for
employers. In terms of the
earlier Supreme Court of Appeal
decision, which was rapidly
interpreted as a restatement of
the reasonable employer test
within South African labour law,
employers were comforted by a
broad test that contemplated a
range (or "band") within which
their decisions might fall,
before a CCMA commissioner could
interfere. By the same token,
the Constitutional Court outcome
does not signal a reversion to
administrative terror for
employers. Whilst the CCMA
commissioner will now be
required to determine whether
employers decision was fair, he
or she must do so against a
proper consideration of relevant
circumstances and as an
"impartial adjudicator". The
Constitutional Court judgment
will provide some guidance in
this regard, as will a more
focused consideration of both
the terms (and stated purpose)
of the Labour Relations Act and
the Code of Good Practice on
Dismissal.
So ultimately, it is the
commissioner's sense of fairness
that will now prevail, not the
employers view. We are back to
the third umpire, in keeping
with the quick and easy process
that forms the cornerstone of
dispute resolution under the
"new" Labour Relations Act.
R R PERROTT
5 OCTOBER 2007
The Full judgment is available
here:
J-CCT85-06A.txt
IN THE CONSTITUTIONAL COURT OF
SOUTH AFRICA
KZN MEC of Education v Pillay
Case CCT 51/06
Decided on 05 October 2007
Media Summary
The following media summary
is provided to assist in
reporting this case and is not
binding on the Constitutional
Court or any member of the
Court.
Constitutional Court handed down
judgment in the matter of KZN
MEC of Education v Pillay .
On 20 and 21 February the
Constitutional Court heard an
appeal from the KwaZulu-Natal
High Court concerning the right
of a learner to wear a nose stud
to school. In 2004 Sunali Pillay
returned to Durban Girls’ High
School from the spring holiday
with a small nose stud. After a
period of correspondence between
the school and Sunali Pillay’s
mother, Ms Pillay, the school
decided that Sunali Pillay
should not be allowed to wear
the stud. Ms Pillay took the
school and the KwaZulu-Natal MEC
for Education to the Equality
Court alleging that they had
unfairly discriminated against
Sunali Pillay and had violated
her religious and cultural
rights.
The Equality Court found that
the school had not unfairly
discriminated against Sunali
Pillay. On appeal, the High
Court overturned the decision,
finding that the school had
discriminated against Sunali
Pillay and that the
discrimination was unfair. The
High Court declared the decision
prohibiting the wearing of a
nose stud, in school, by
Hindu/Indian learners to be null
and void. Both the school and
the Department appealed directly
to this Court. After the appeal
was lodged, Sunali Pillay
completed her matric and left
the school.
Chief Justice Langa wrote the
majority judgment, concurred in
by Moseneke DCJ, Madala J,
Mokgoro J, Navsa AJ, Ngcobo J,
Nkabinde J, Sachs J, Skweyiya J
and Van der Westhuizen J, which
dismissed the appeal. He found
that it was in the interests of
justice for the Court to
consider the matter because of
the impact the decision would
have on schools across the
country.
He held that the rule
prohibiting the wearing of
jewellery had the potential for
indirect discrimination because
it allowed certain groups of
learners to express their
religious and cultural identity
freely, while denying that right
to others. The evidence before
the Court showed that the
wearing of a nose stud was a
voluntary practice that formed
part of Sunali Pillay’s South
Indian Tamil Hindu culture,
which itself was inseparably
intertwined with Hindu religion.
He emphasised that both
obligatory and voluntary
practices qualified for
protection under the Equality
Act. The school had therefore
interfered with Sunali Pillay’s
religion and culture. As that
burden was not imposed on
others, the school’s
interference amounted to
discrimination against Sunali
Pillay. What was relevant was
not whether the practice was
characterised as religious or
cultural, but the importance it
held for the individual in
question. Nor was it sufficient
to state that Sunali Pillay
could attend another school. Our
Constitution requires the
community to affirm and
reasonably accommodate
difference, not merely to
tolerate it as a last resort.
Langa CJ observed that the
school had taken meaningful
steps to accommodate diversity
in its community, and that
uniforms and school rules served
an important purpose in
education. However, this case
was not about uniforms in
general, but about a specific
exemption to a uniform. There
was no evidence that permitting
this particular exemption would
imperil uniformity or school
discipline in general. The fact
that granting an exemption to
Sunali Pillay might encourage
more learners to express their
religion or culture was to be
celebrated, not feared.
Accordingly, the Chief Justice
concluded that the school’s
discrimination against Sunali
Pillay was unfair. He granted an
order declaring that the refusal
by the school to grant her an
exemption from the Code unfairly
discriminated against her. In
addition, he ordered that the
school, in consultation with
learners, parents and staff,
amend the Code to provide for a
procedure to reasonably
accommodate religious and
cultural practices. The
Department was ordered to pay Ms
Pillay’s costs, while the other
parties had to bear their own
costs.
O’Regan J wrote a separate
judgment in which she dissented
in part from the order made by
the Court. She agreed with the
majority that the Code was
unfairly discriminatory because
it did not contain a clear
exemption procedure to ensure
that the uniform rules of the
Code did not result in unfair
discrimination. She therefore
concurred in the order made by
the Court which requires the
school to amend the Code on this
basis. She concluded that had Ms
Sunali Pillay not left the
school it would have been
appropriate for the matter to be
referred back to it for a proper
exemption procedure to be
followed. As Ms Sunali Pillay
had left the school, such an
order was no longer appropriate.
O’Regan J considered in some
detail the relationship between
religion and culture in our
constitutional scheme and
emphasised that our Constitution
required public educational
institutions to foster
environments in which learners
from different cultural and
religious backgrounds would feel
that they are equally respected
and valued.
The Full judgment is available
here:
J-CCT51-06A.txt
