The High Court still has jurisdiction in labour matters

May 1st, 2019
x
Bookmark

By Bayethe Maswazi

Before the Constitutional Court (CC) decision in Chirwa v Transnet Limited and Others 2008 (3) BCLR 251 (CC) it was easy to determine whether the High Court in a given labour matter has jurisdiction or not. This is because the CC decision in Fredericks and Others v MEC for Education and Training, Eastern Cape and Others 2002 (2) SA 693 (CC) clarified the issue. The fine principle in the Fredericks case, which is underpinned by a lucid analysis of the Labour Relations Act 66 of 1995 (the LRA), was understandably, confirmed by the Supreme Court of Appeal (SCA) in Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA). Both decisions agree that the High Court has concurrent jurisdiction with the Labour Court (LC) in matters, which are dealt with in s 157(2) of the LRA. Moreover, both decisions accept that s 157(1) does not deal with all labour matters, instead the High Court loses jurisdiction on the strength of s 157(1) of the LRA and the LRA specifically assigns the jurisdiction in respect of such a matter to the LC. Ironically, this principle seems to have been accepted in the Chirwa case, how the CC then proceeded to find that the Chirwa case was a matter where the jurisdiction of the High Court is ousted, remains one of the ironies of the case.

One would have thought that the principle in the Fredericks and Fedlife judgments delivered from two of South Africa’s most superior courts would settle any controversy that may have existed regarding the jurisdiction of the High Court in labour matters. However, it was not to be and to this day, the sorry legacy of the Chirwa judgment follows our jurisprudence.

In this article I examine the controversies relating to the jurisdiction of the High Court in labour matters, which have had many practitioners being careful – sometimes too careful – not to take matters concerning labour disputes before the High Court.

I do this by examining various concepts, which are important in the determination of the issue, and the problem precipitated by the misunderstanding of these concepts, particularly in relation to the Chirwa and Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC) cases. Later, with the assistance of the Constitution, I shall put the Fredericks, Chirwa and Gcaba cases in their proper context to illustrate that the Fredericks judgment remains good law while the Chirwa case seems to have been decided on its peculiar facts, which to some extent, were not properly interpreted. With regard to the Gcaba case, I will simply say that it is safe to assert that jurisdiction must be understood from the pleadings themselves, which is generally accepted, it adds nothing to the debate, but it will be necessary for me to support this contention and I will do so. But first, the concepts.

Jurisdiction

Jurisdiction as a legal concept refers to the power of a court to adjudicate a particular matter definitively, meaning by being able to decide the competing rights of the parties in that given matter, as opposed to merely inquiring on the issue of jurisdiction. What this means is that where a court decides a matter on its merits, by implication, it accepts that it has jurisdiction to hear the matter, otherwise a court with no jurisdiction has no entitlement to decide the merits of the matter.

Jurisdiction may arise in various guises, sometimes a cause of action will determine it, while in other instances, the territory where the cause of action arose, will be the guiding consideration. However, in this article, I am only concerned with jurisdiction as it pertains to the cause of action.

Because of the manner in which various courts have approached this issue, it is necessary that the above point is made, if only for taking the issues back to basics.

In the premises, therefore, a court that does not have jurisdiction does not have the power to decide the merits of the matter. This is important, for as I will illustrate – when dealing with the three cases mentioned – this salutary principle has not always been observed.

An example is apposite. If there was a court that deals exclusively with contractual disputes, a party who claims to be a victim of a breach of contract would be entitled to bring that dispute to such a court. In turn that court would exercise jurisdiction over that matter, this it will do purely on the basis that it is a contractual dispute based on the plaintiff’s pleaded case. The question then arises whether this change if the defendant pleads that there was never a contract between the parties and, therefore, the court does not have jurisdiction?

This notional plea, at least at first glance seems reasonable, since if there was no contract, surely there cannot be a contractual dispute and in consequence, the court lacks jurisdiction.

But if we restate the principles set out above, namely, that a court that does not have jurisdiction has no business in the merits of the matter and that jurisdiction is determined by the form of the pleadings, and not substance of the case, the inelegance in the defendant’s plea becomes glaring. To illustrate further, if there was no contract, the plaintiff does not have a cause of action, but the court does have jurisdiction, hence a finding that there was no contract between the parties. Otherwise, a court which does not have jurisdiction would have to decide the merits of the matter and thus offend quite egregiously, the very bedrock on which jurisdiction as a legal concept rests. It is not available then to the court, which does not have jurisdiction to inquire into the existence or otherwise of the contract between the parties, it is sufficient that the applicant has framed their pleadings to show that their case is one of contractual dispute. Whether this is true or not is not for the court, which does not have jurisdiction. It is for a court exercising its jurisdiction.

The doctrine of precedent

To restate the obvious, the doctrine of precedent holds that a court of lower status is bound by its own decisions and of those of the courts higher or superior to it. This principle seems uncontroversial, and in practice it often is. This for two reasons –

  • first, not everything said by a court of higher status is binding on a lower court, but only the reasoning underpinning what the court pronounces in response to the issue put before it, is; and
  • secondly, it is possible for the lower court to distinguish the reasoning of the higher court from the issue it must decide and thus hold itself free from the clutches of the doctrine of precedent in relation to the issue.

It is also possible for a lower court to conclude that what was said in a given case by the higher court, which at face value, seems binding, was not the reasoning underpinning the conclusion which the latter was required to decide, in other words, it had no precedential value.

All of this, in summary, means that in order to decide whether what the higher court held constitutes precedent, we must understand what the issue is that court had to decide on. In that case, we will find it easy to identify the reasoning that underpinned its answer to the question it was required to answer, in other words, its ratio decidendi. This is necessary to clarify since many times, the significance is often overlooked. This passage will be significant later.

The Constitution

Since the High Court derives its jurisdiction from the Constitution, we must look at the Constitution in order to answer the question of whether the jurisdiction of the High Court in labour matters is ousted as a matter of general principle. This is so because any statute that purports to deprive the High Court of jurisdiction, must do so consonant to the Constitution. Section 169 of the Constitution gives the High Court jurisdiction to decide constitutional matters, except where such matters are –

  • within the exclusive jurisdiction of the CC; or
  • are assigned to another court equivalent to the High Court.

In the same section we glean that the High Court has jurisdiction in respect of any other matter except a matter, which has been assigned to another court, irrespective of the status of such a court.

Therefore, just on the elementary reading of s 169 of the Constitution, it is not possible for the High Court to lose jurisdiction to any forum that is not a court of law, including the Commission for Conciliation, Mediation and Arbitration (CCMA) on the basis of the above constitutional framework.

The Fredericks case

This case concerned a refusal of the Department of Education, Eastern Cape to approve severance packages in respect of certain of its employees. Consequently, these employees approached the High Court seeking review of the refusal and other consequential relief. The High Court, per White J refused to hear them on the basis that their claim was a labour matter and thus the High Court lacked jurisdiction. The CC, on appeal, took a different view reasoning that the High Court has concurrent jurisdiction with the LC in respect of the dispute. Of importance to the decision in this matter is that the CC arrived at its decision anchored by s 169 of the Constitution, and held that since the CCMA is not a court in terms of s 169, the High Court’s jurisdiction is only ousted where the matter is assigned to the LC in terms of s 157(1). This decision was distinguished in the Chirwa case and was not overruled, which means it is still good law. Decisions of the various High Courts to the effect that the Chirwa case must be understood to have overruled the Fredericks case have been unpersuasive in their reasoning in this regard.

The Chirwa case

This matter concerned a dismissal of an employee for incapacity. She referred the matter to the CCMA whose proceedings she abandoned midstream and approached the High Court for a review of the decision arguing that it constitutes administrative action in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) since the decision violated the Code of Good Practice contained in sch 8 of the LRA. The High Court non-suited her, reasoning that her dispute was a labour matter and thus the High Court lacked jurisdiction. Her appeal to the SCA was met with the same fate albeit by a narrow majority. Similarly, the CC did likewise. The majority decision of the CC distinguished the Chirwa case from the Fredericks case, reasoning that she relied on the LC, while the Fredericks case did not. There is a lot to be said about the tenuous reasoning of the CC in the Chirwa case for distinguishing the Fredericks case, since reference to the Labour Code was only resorted to only for the purpose of establishing that the dismissal contravened a statute in terms of PAJA and not to anchor the entire application in the LRA. In any event, in the absence of any general principle that ousts the jurisdiction of the High Court in labour matters in the LRA, the conclusion in the Chirwa case, while clear on the facts, seems rather opaque in principle, which is why one must be hesitant to hail the Chirwa case as establishing a new principle regarding the subject of the jurisdiction of the High Court in labour matters.

The Gcaba case

Mr Gcaba applied for the position of the Station Commander, which he did not get as someone else was appointed. Aggrieved by this he challenged the failure to appoint him to the position, by way of review at the High Court, contending that the decision not to appoint him constituted administrative action in terms of PAJA. His case was one of review of an administrative action. The High Court for its part held that in the light of the Chirwa case, the High Court does not have jurisdiction since it was a labour matter. On appeal to the CC, the result did not change for a very interesting reason. The CC, after making the point about the doctrine of precedent and its importance for the rule of law, framed the issue before it as being whether the failure to appoint Mr Gcaba constituted administrative action contemplated in PAJA. The court then proceeded to answer this question in the negative. This means that the court said the dismissal did not constitute administrative action.

Unless I have missed something, it appears to me that this conclusion put paid to any issue before court, since it meant that Mr Gcaba had failed to make a case for the relief he sought. My analogy of a contractual dispute above regarding a court meant only for contractual disputes finds its practical application. Anything else that the court said including its interpretation of ss 157(1) and 157(2) of the LRA was said as by the way or what is called obiter dictum. This is the reason, in my view, why the Gcaba case made no contribution to the debate regarding the jurisdiction of the High Court in labour matters at all.

Conclusion

The jurisdiction of the High Court in all matters is no longer a matter of common law, s 169 of the Constitution clearly takes that responsibility. As the supreme law, the Constitution is unable to run parallel to the common law on any issue. If the Constitution tells us that the High Court has jurisdiction in all matters, except when such jurisdiction is assigned to another court in terms of legislation, we must wait for such legislation before we take away constitutionally awarded authority from the High Court. Section 157(1) does not take away the jurisdiction of the High Court in labour matters. Instead, the section tells us of the general approach applicable when assigning the jurisdiction to the LC. This approach can be expressed simply as meaning that where the LRA says a particular dispute is assigned to the LC, the latter has exclusive jurisdiction only in respect of that particular matter, surely not all labour matters. This is the best meaning of s 157(1). Both the Fredericks and Chirwa cases accepted this meaning.

Bayethe Maswazi BProc LLB (Fort Hare) is a legal practitioner at Mbabane & Sokutu Inc in East London.

This article was first published in De Rebus in 2019 (May) DR 16.

Loading...