Funani v MEC: Department of Education Eastern Cape Province and Another (479/2016) [2017] ZAECBHC 9 (12 October 2017)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, BHISHO

CASE NO: 479/2016

In the matter of:

NOMALEDI FUNANI Applicant versus THE MEC: DEPARTMENT OF EDUCATION EASTERN CAPE PROVINCE First Respondent THE HEAD: DEPARTMENT OF EDUCATION EASTERN CAPE PROVINCE Second Respondent

JUDGMENT

STRETCH J:

[1] The applicant retired as an educator with the Department of Education (“the Department”) at the end of 2013. During the course of her employment, and in September 2008 she suffered a stroke. In June 2009 she submitted an application for temporary incapacity leave for the period 20 July 2009 to 11 December 2009. The Department declined the application on 30 November 2009 on the grounds of insufficient evidence to motivate the application. Its letter of repudiation states the following:

‘You have 5 working days from the date of this notice to elect whether this unapproved temporary incapacity leave period must be allocated as unpaid leave or taken as annual leave, should you still have annual leave available to you. If you fail to notify the Department within the 5 requisite working days of your election, this unapproved temporary incapacity leave shall automatically be converted to unpaid leave. Once the unapproved temporary incapacity leave is allocated and captured as unpaid leave you will not later be able to convert such unpaid leave to annual leave.

Should you not be satisfied with the Department’s decision, you may lodge a grievance in terms of the standard internal dispute resolution procedures, as the official PILIR policy does not make provision for the appeal of any repudiation decision in respect of temporary incapacity leave, outside that of standard dispute resolution.’

[2] On 9 December 2009 the applicant declared a formal grievance with the Department through her Union, requesting the Department to suspend its decision pending the finalisation of the formal grievance procedure. It reads as follows:

‘In terms of Collective Agreement 13 of 1996 the district office has five (5) working days to reply in writing.

In the light of the aforegoing, please revert as a matter of extreme urgency and Naptosa rights remain strictly reserved to commence the formal procedure as anticipated and prescribed in terms of the labour laws.’

[3] The applicant did not prosecute her grievance in terms of the standard dispute resolution procedures as advised, or in any other way for that matter. Almost four years down the line, the applicant applied for, and was granted, early retirement (to commence on 31 December 2013), in terms of the provisions of the Employment of Educators Act 76 of 1998.

[4] The applicant retired on 31 December 2013.

[5] On 22 April 2014 the Department demanded R147 979,21 from the applicant, calculated as follows:

· Sick leave taken but declined for 20 July to 11 December 2009 R134 258,00 · Bonus overpaid for declined sick leave 11 246,33 · Bonus overpaid during strike participation 103,96 · Tax debt 2014 2 370,92

[6] On 20 May 2014 the applicant repudiated the claim with the following letter:

‘Unfortunately, I will not be paying the money due because during that period of time, I was recovering from a stroke. I had applied for Temporary Incapacity Leave in July 2009 and the department only replied late in November 2009. Therefore, it should not be any of my concern because fault is on the department’s side, I followed the correct procedure.

You can take the legal route.’

[7] Ironically, it transpired that the money which the applicant was refusing to pay back had not been paid to her in the first place. On 2 April 2015, the applicant, describing herself as an “employee” holding the rank of an “educator”, completed a standard 13 page document, the purpose of which was to enable an “employee, trade union or an employer, covered by the scope of the ELRC (the Education Labour Relations Council) constitution, to refer a dispute to the ELRC for resolution.”

[8] Therein she describes the nature of her dispute as one relating to the interpretation and application of a collective agreement, in that the Department had failed to pay her leave gratuity (in the sum of R144 591,16) and bonus upon her retirement as an educator. She alleges that the dispute arose on 2 April 2015 and that the applicable time frames had been complied with.

[9] On 9 April 2015, the applicant’s attorneys advised the Department that SARS was claiming tax from the applicant on the sum of R144 591,16, despite the fact that the Department had not paid her this money in respect of leave and a pro-rata bonus. SARS was ultimately assuaged by an IRP5 during February 2015 and withdrew its demand. However the applicant persisted in her view that she was entitled to the aforesaid sum in respect of leave, as well as a pro-rata bonus. The attorneys’

letter demanded payment of this money within ten days, failing which the applicant would refer a dispute to the bargaining council

(despite the fact that she had already done so a week earlier).

[10] The money was not forthcoming. Notwithstanding this, and on 21 July 2015 (two days before her matter was due to be heard under case no. PSES179-15/16EC), the applicant withdrew her dispute in the bargaining counsel and directed a second demand at the Department, this time threatening the launching of High Court proceedings if not met within ten days.

[11] The money was still not forthcoming. More than a year later, and on 2 September 2016, the applicant launched application proceedings in this court for the following relief:

1. That the administrative action of the Department of Education, Eastern Cape Province –

1.1 in declining the Applicant’s application for temporary incapacity leave for the period 20 July 2009 to 11 December 2009 in terms of Education Labour Relations Council Resolution 7 of 2001; and

1.2 in deducting the sum of R118 564,75 from the Applicant’s leave gratuity and pro rata bonus payable to her on her retirement as an educator on 31 December 2013;

be reviewed and declared unlawful and set aside.

2. That the Respondents pay to the Applicant her leave gratuity and pro rata bonus in the calculated aggregate sum of R118 564,75 together with interest thereon calculated at the legal rate from due date being 31 January 2014 to date of payment.

3. That the Respondents pay the cost of the application jointly and severally, the one paying the other to be absolved.

[12] In her affidavit the applicant contends that she withdrew her application in the bargaining council because

‘It was subsequently realised that the Bargaining Council did not have jurisdiction because I no longer fell within the scope of the Bargaining Council because I was no longer by definition an “employee”.’

[13] She also states that her temporary incapacity leave applications ought to have been processed in accordance with the due process outlined in the Education Labour Relations Council Collective Agreement 1 of 2007. Because they were not, her applications were not dealt with fairly, reasonably or lawfully. Accordingly it is contended that the Department’s conduct in failing to pay her leave gratuity and pro rata bonus constitutes administrative action within the contemplation of section 1 of the Promotion of Administrative Justice Act 2 of 2000 (“PAJA”); alternatively, that the applicant is in any event entitled to have

the statutory provisions governing the payment of leave gratuity in terms of Chapter J of the personnel administration measures

promulgated in terms of the Employment of Educators Act 76 of 1998 invoked. Either way, so the applicant argues, the Department remains indebted to her in respect of the leave gratuity, and that she has no alternative but to approach this court for relief. This approach she says is based upon a clear right in law to relief either in terms of PAJA; alternatively, in terms of the common law relating to statutory duties and obligations borne by the respondents.

[14] The application is opposed on three grounds:

a. that the applicant has failed to exhaust her internal remedies;

b. undue delay;

c. that the applicant has not established a cause of action for the relief sought.

[15] At the hearing of the application I invited the parties to address me on the question of this court’s jurisdiction. The parties appear to be ad idem that this court is seized with the matter, merely because the applicant is no longer an educator.

[16] I do not agree.

[17] The applicant has alleged that the Department’s failure/refusal to pay her leave pay and bonus amounts to conduct which is unfair, unreasonable and unlawful. In short, the conduct of which the applicant accuses the Department falls squarely within the definition of an unfair labour practice, defined at s186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA”) as

‘any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to

promotion, demotion, probation or training of an employee or relating to the provision of benefits to an employee.’

[18] The purpose of the LRA, as set forth in its preamble, is not only to promote and facilitate collective bargaining at the workplace and at sectoral level but to establish the Labour Court and the Labour Appeal Court as superior courts, with exclusive jurisdiction to decide matters arising from the Act.

[19] The question to ask then, is whether the dilemma in which the applicant finds herself eight years after her leave was refused and eight years after she was invited to approach the bargaining council, is a matter “arising from the Act”.

[20] In addressing this question it seems to once again have become necessary for this court to traverse what has already been stated by Van der Westhuizen J in the Constitutional Court in the Gcaba matter.[1] In my view it is virtually impossible to say anything more, or to convey what that court has expressed in a simpler manner. It is accordingly hoped that repetition of the salient points might have some salutary effect on what seems to have become the general view that PAJA is the new proverbial umbrella designed to cover a multitude of sins, anywhere, any place and any time.

[21] The applicant has elected not to sue in contract or within the auspices of some other form of relief, but to launch an application for review and a declaration of invalidity as provided for in PAJA.

[22] It is trite that whether or not this court has jurisdiction to hear a matter must be determined on an analysis of the pleadings and not on the substantive merits of the case itself. In the Gcaba matter the Constitutional Court expressed the principle as follows:[2]

‘In the event of the court’s jurisdiction being challenged at the outset (in limine), the applicant’s pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the court’s competence. While the pleadings – including, in motion proceedings, not only the formal terminology of the notice of motion, but also the contents of the supporting affidavits – must be interpreted to establish what the legal basis of the applicant’s claim is, it is not for the court to say that the facts asserted by the applicant would sustain another claim, cognisable only in another court. If, however, the pleadings, properly interpreted, establish that the applicant is asserting a claim under the LRA, one that is to be determined exclusively by the Labour Court, the High Court would lack jurisdiction. An applicant like Mr Gcaba, who is unable to plead facts that sustain a cause of administrative action that is cognisable by the High Court, should thus approach the Labour Court.

The applicant’s complaint was essentially rooted in the LRA, as it was based on conduct of an employer towards an employee which may have violated the right to fair labour practices. It was not based on administrative action. His complaint should have been adjudicated by the Labour Court.’

[23] I am accordingly enjoined to examine the pleadings which are contained in the notice of motion and the founding affidavit in order to extract from them what the legal basis is under which the applicant has sought to invoke this court’s competence to hear the matter, or whether this is a matter arising from the LRA.

[24] The notice of motion commences with a prayer for a declaratory order and for the decision which is subject to the declarator to be set aside. The subsequent prayers relate to the payment of the applicant’s leave gratuity and other benefits.

[25] As for the affidavit, no averment is even made that this court has jurisdiction as is the practice. Nor does it make any mention

as to the contractual basis of the applicant’s employment within the Department. There is also no mention that an employment contract has been breached. If the applicant had founded her application on an unlawful breach of her contract of employment (which, if properly pleaded, would have brought the matter within the purview of the jurisdiction of this court), I would have expected her to have outlined the terms of her contract of employment, and if available, to have annexed a written copy thereof. Also, I would have expected the applicant to have set out why she says the contract has been breached. As stated in Mbuwakho[3], it may for example well be the position that a dispute resolution process is set out in the contract itself which would obviously be significant in deciding whether or not it was breached.

[26] In the Boxer matter for example, Cameron JA held that the High Court had the power to hear the matter, as the employee had carefully formulated her claim to exclude any recourse to fairness, relying solely on contractual unlawfulness.

[27] The applicant in the matter before me has stated in her founding affidavit that her case is based upon a “clear right in law” to relief either in terms of PAJA; alternatively, in terms of the common law relating to the respondents’ statutory duties and obligations. This may be so. Such an averment still does not answer the question of whether or not the applicant’s dilemma is a “matter arising” from the LRA.

[28] Indeed, this type of alternative claim was fully dealt with in the case of Nonzamo Cleaning Services Co-operative v Appie and Others[4]. Similarly to the matter before me, the Full Court in that matter was faced with the question whether the High Court had jurisdiction to hear the matter or whether it was one which fell within the exclusive purview of the Labour Court, or forums purposefully established to deal exclusively with labour related matters.

[29] Erasmus J in delivering the unanimous judgment of that Court, found that on a reading of the application papers, the respondents had founded their cause of action on alleged unfair procedure adopted by the appellant in the workplace. He also found that what were referred to as the “grounds of review” in the respondents’ papers, as amplified by the averments of the first respondent, suggested that the respondents also rely on wrongful dismissal in breach of the contract of employment found in the provisions of the appellant’s statute. According to Erasmus J, this raised the unhappy spectre that the respondents’ claim fell partly within the jurisdiction of the Labour Court and partly within that of the High Court. That, according to the judge, was not the end of the matter however. In this respect the judgment reads as follows:

‘The respondents’ grounds of review must, however, be viewed as a whole within the structure of the application. They seek the review and setting aside of the decision of the appellant to terminate their membership of the cooperative, followed by their reinstatement. This relief falls within the dispute-resolution procedure of the LRA for unfair dismissal. Such relief is, however, inappropriate on a claim based on wrongful breach of contract. The relief sought by the applicants therefore

indicates that, in substance, their cause of action is one falling wholly within s191(1) of the LRA.

Furthermore, the relevant provisions of the Co-operatives Act and the appellant’s statute are designed to ensure fairness in the expulsion process. In the circumstances, it seems to me that the reference to the breach of the peremptory provisions of the Act in the respondents’ grounds of review … is not intended to found a substantive cause of action of wrongful dismissal, but serves merely to reinforce the respondents’ claim that the procedure followed by the appellant in their expulsion was unfair.

It follows that, on the authority of Chirwa[5], the whole of the respondents’ cause of action falls within the purview of the Labour Court, to the exclusion of the jurisdiction

of the High Court.’

[30] In terms of its first section, the primary objective of the LRA is to give effect to and to regulate fundamental rights conferred by section 23 of the Constitution. That provision, which is part of the Bill of Rights, declares that everyone has the right to fair labour practices. For present purposes, the area of operation of the LRA lies in s 185 which declares that every employee has the right not to be subjected to unfair labour practices. In terms of s 191(1), if there is a dispute about the fairness of a labour practice, the employee may refer the dispute either to a bargaining council or to a statutory council, or to the Commission for Conciliation, Mediation and Arbitration (the CCMA), depending on the circumstances. The council and the CCMA are enjoined to resolve the dispute through conciliation. If the council or the commission certifies that the dispute remains unresolved, it must either arbitrate the dispute or refer it to the Labour Court. The Labour Court has overall powers of review of those proceedings.[6] The specific provision of the LRA relating to the nature and the extent of the Labour Court’s jurisdiction, namely s 157, must be considered against this background. It reads thus:

(1) Subject to the Constitution and section 173, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.

(2) The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, arising from –

(a) employment and from labour relations;

(b) any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as an employer, and

(c) the application of any law for the administration of which the Minister is responsible.

[31] As stated by Erasmus J in Nonzamo[7], this enigmatic provision has given rise to considerable judicial interpretation, not always in consistent agreement. In my view the matter before me is uniquely similar to that which ultimately presented itself before the Constitutional Court in Chirwa. Chirwa had been dismissed from the services of the Transnet Pension Fund. She referred the dispute arising from her dismissal to the CCMA in terms of s 191 of the LRA. When conciliation failed she did not pursue the matter further under the LRA, but instead

approached the High Court where she sought the review and setting aside of the decision to dismiss her, together with reinstatement to her former position. After setting out the relevant facts, Chirwa concluded that the party who had decided to dismiss her had failed to comply with certain provisions of the LRA, and as such, his decision to dismiss her was reviewable in terms of ss 6(2)(b) and 6(2)(f)(i) of PAJA. Chirwa’s explanation for changing horses midstream and approaching the High Court was because she had two causes of action available to her, one in terms of labour legislation and the other flowing from section 33 of the Constitution, which guarantees everyone the right to administrative action which is lawful, reasonable and procedurally fair, read with the provisions of PAJA. She explained that she opted to approach the High Court for practical considerations and that this was her constitutional right as set forth at section 34 of the Constitution.

[32] The High Court assumed that it had jurisdiction in the matter, but did not reach this conclusion based on the alleged violations of PAJA as pleaded by the applicant. Instead, the High Court decided the matter on the basis of the common-law rules of natural justice, and concluded that the rules of natural justice had been breached.

[33] With the leave of the High Court the respondent (Transnet) appealed to the Supreme Court of Appeal where the respondent raised two issues:

a. Whether the dismissal was a matter which fell within the exclusive jurisdiction of the Labour Court in terms of s 157(1) of the LRA;

b. Whether the dismissal constituted administrative action as defined in PAJA.

[34] Mthiyane JA, with Jafta JA concurring, held that the High Court had concurrent jurisdiction with the Labour Court, but that the applicant had to fail because she had not established that her dismissal constituted administrative action as defined in section 1 of PAJA. The learned judge reasoned that from the papers it was clear that in terminating the applicant’s employment contract, Transnet did not exercise public power or perform a public function in terms of any legislation. The fact that Transnet, an organ of State, derived its powers to enter into a contract from a statute did not mean that its right to terminate the contract was also derived from public power. In concurring with the order, Conradie JA on the other hand, accepted without deciding that the dismissal constituted administrative action, but found that since the advent of the LRA, dismissals in the public domain are no longer to be dealt with as administrative acts, and that the intention evident from the LRA was to subject an unfair dismissal dispute to the dispute resolution mechanisms established by the LRA. Conradie JA relied upon a number of High Court decisions involving attempts by employees to bypass the Labour Court by grounding causes of action on violations of fundamental rights in the Constitution. In these cases it was held that the fact that the actions of an employer may have violated fundamental rights, did not alter the nature of the cause of action, which was found to have been labour related. Conradie JA accordingly held that the High Court had no jurisdiction as the claims in issue fell within the exclusive jurisdiction of the Labour Court.

[35] Cameron JA, in a dissenting judgment in which Mpati DP concurred, upheld the jurisdiction of the High Court.

[36] Chirwa took the majority decision of the SCA on appeal before the Constitutional Court. There Skweyiya J (writing for the

majority) agreed with Conradie JA’s conclusion, that even if the applicant had a cause of action under PAJA, she was nevertheless

limited to relief under the LRA, in that the complaint was a ‘quintessential LRA matter’ for which relief under PAJA

was not intended to be available. Skweyiya J succinctly pointed out that the purpose of labour law as embodied in the LRA was to provide a comprehensive system of dispute-resolution mechanisms, forums and remedies that are tailored to deal with all aspects of employment. It is envisaged as a ‘one-stop shop’ for all labour-related disputes, he said. He added that Chirwa was not at liberty to regulate the finely-tuned dispute resolution structures established by the LRA (my emphasis), and found that Chirwa did not have an election to proceed by way of the LRA on the one hand, or by way of PAJA on the other. She was also not entitled to have these choices available to her simply because of her status as a public sector employee.[8]

[37] In Chirwa then, the question whether the employee’s dilemma was as a result of conduct ‘arising’ from the LRA, was answered in the affirmative. I see no difference between the principles which were applied in Chirwa, and those which ought to be of application to this matter. That being the case, this court has no power to hear the matter.

[38] Ngcobo J, in a separate Chirwa judgment, expressed the view that the primary purpose of s 157(2) was not to confer jurisdiction on the High Court to deal with labour and employment related disputes, but rather to empower the Labour Court to deal with causes of action that are founded on the provisions of the Bill of Rights but which arise from labour and employment relations. I agree. It is clear that any cause of action based on PAJA in the employment and labour sector would fall into this category. Differently put, although the labour courts are specifically designed to specialise in and resolve labour and employment disputes only, in the event of those disputes manifesting elements of conduct which are also constitutionally administratively unfair, the Labour Court should, as a matter of logic, not be barred from dealing with constitutional matters, and to that end (only), has concurrent jurisdiction with the High Court as envisaged in section 157(2) of the LRA.

[39] Langa CJ concurred with the outcome reached by Skweyiya J, but for different reasons. In his view, the primary question which the Constitutional Court was enjoined to consider, was whether the applicant’s dismissal constituted administrative action within the meaning of s 33 of the Constitution and of PAJA. In considering this question Langa CJ emphasised the definition of administrative action in section 1 of PAJA. It reads as follows:

‘Any decision taken, or failure to take a decision, by-

(a) An organ of State, when-

(i) exercising a power in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation; ….

which adversely affects the rights of any person and which has a direct, external legal effect.’

[40] Langa CJ concluded that the applicant’s dismissal did not constitute the exercise of a ‘public’ power or the performance of a ‘public’ function, in the sense that it did not happen in terms of a specific legislative provision, and it was not likely to impact seriously and directly on the public by virtue of the manner in which it was carried out or by virtue of the class of public employee dismissed. It therefore did not constitute administrative action under PAJA.

[41] In the premises, even if I am not correct in my conclusion that the applicant ought to have pursued the relief she originally sought in the labour court forum to its ultimate conclusion, she is in any event not properly before me in this forum. The respondent’s failure to pay to her (as an isolated case) certain benefits and/or moneys arising directly from her contract of employment with the respondent does not constitute the exercise of a public power or the performance of a public function and does or has not, by virtue of the way in which it was carried out, impacted on the public or a class of public employee at all. Accordingly, it does not constitute administrative action in terms of PAJA as contended for by the respondent.

[42] Erasmus J, in writing for the full court in Nonzamo, arrived at the compelling conclusion that in Chirwa both Skweyiya J and Ngcobo J went to great lengths to emphasise that it is the purpose of the LRA to deal with all employment related matters involving allegations of unfairness, and that the LRA mechanisms are best suited to deal with such disputes. Both judges held that section 157, proactively interpreted, assigns exclusive jurisdiction to the Labour Court in matters falling within the ambit of the LRA. According to Erasmus J certain propositions are integral to the Chirwa matter. Applied to the matter before me, these propositions may be listed as follows:

(a) Any dispute determinable under s 191 read with s 185 of the LRA is for purposes of s 157(1) a dispute to be determined exclusively by the Labour Court.

(b) For that purpose the LRA dispute-resolution councils and the CCMA constitute ‘the Labour Court’.

(c) For the purposes of s 169 of the Constitution, the Labour Court so constituted is ‘another court’[9] and any matter ‘to be determined’ under the LRA is a matter assigned to such ‘court’ by an Act of Parliament.

(d) In effect then, the Labour Court has exclusive jurisdiction in respect of any alleged or threatened violation of any fundamental right entrenched in chapter 2 of the Constitution, arising from employment and labour relations, despite the fact that s 157(2) of the LRA states that the Labour Court has concurrent jurisdiction with the High Court in such matters.

[43] It has also been contended before me that the applicant has, in any event, failed to exhaust her internal remedies. As stated by Erasmus J in Nonzamo and on a narrow interpretation of Skweyiya’s J’s reasoning in Chirwa, Skweyiya J simply held that where a complainant in an employment dispute commenced proceedings under the LRA, she had to continue on that course and that, in such circumstances, the High Court lacked jurisdiction to subsequently entertain the dispute. On this construction of the judge’s reasoning, the decision in effect turned on election, and his extensive commentary on the law would be surplusage. Whilst I agree that the applicant in the matter before me has failed to exhaust her internal remedies as provided for in labour legislation and as cross referenced at ss 7(2)(a) of PAJA (indeed she barely pursued them), this is not the paramount reason why she is not properly before this court. The thrust of the Constitutional Court decisions in both Chirwa and Gcaba is this: that even if the applicant did exhaust her remedies before a bargaining council or the CCMA without success, she was not simply entitled to ‘forum shop’ and vent her frustration upon the High Court. She was constrained to remain within the ambit of the forum created by labour legislation, and move on to the Labour Court and the Labour Appeal Court if necessary.

[44] This court’s duty to strictly apply the principle of stare decisis cannot, in my view, have been expressed more clearly and authoritatively than by Erasmus J in the following words:

‘The Constitutional Court is the highest court in all constitutional matters. Its comments are read – and are intended to be read – as authoritative. The extensive and purposeful discussion by Skweyiya J on the status and function of the Labour Court is not simply obiter dictum but authoritative pronouncement on the law.’[10]

[45] For all these reasons then, the applicant’s claim falls to be dismissed with costs. I make that order.

I.T. STRETCH

JUDGE OF THE HIGH COURT

Counsel for the applicant: D. Mostert Instructed by: Hutton & Cook King Williams Town Ref. Mr G. Webb Tel. 043 6423410 Counsel for the respondents: N. Nabela Instructed by: The State Attorney Shared Legal Services King Williams Town Ref. 645/16-P10 (Ms Yako)

Date heard: 10 August 2017

Date handed down: 12 October 2017

[1]See Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC). Also see the unreported judgment of Griffiths J in this Division where these principles were repeated and applied not that long after the Gcaba judgment was handed down (Mbuwakho v South African Post Office (Pty) Ltd; ECM case no 1020/2006 handed down on 12 August 2010).

[1]See Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC).

Also see the unreported judgment of Griffiths J in this Division where these principles were repeated and applied not that long after the Gcaba judgment was handed down (Mbuwakho v South African Post Office (Pty) Ltd; ECM case no 1020/2006 handed down on 12 August 2010).

[2] At 263[75]-[76] See also Boxer Superstores Mthatha and Another v Mbenya 2007 (5) SA 450 (SCA) at 445 pars 11-13

[2] At 263[75]-[76]

See also Boxer Superstores Mthatha and Another v Mbenya 2007 (5) SA 450 (SCA) at 445 pars 11-13

[3] At [18]

[4] 2009 (3) SA 276 (CkHC)

[5] Chirwa v Transnet Ltd and Others 2008 (4) SA 367 (CC)

[6] See sections 158, 185 and 191 of the LRA.

[7] At 281[14]

[8] Chirwa supra paras 30, 36 and 65

[9] Section 169(b) of the Constitution states that a High Court may decide any other matter not assigned to another court by an Act of Parliament.

[10] Nonzamo (supra) at 289[36]