Maile and Others v Free State Provincial Legislature and Others (C183/2019) [2021] ZALCCT 17 (8 April 2021)

Maile and Others v Free State Provincial Legislature and Others (C183/2019) [2021] ZALCCT 17 (8 April 2021)

The Labour Court held that the applicants, as employees of a provincial legislature, are not public service employees and thus cannot rely on the Public Services Act for their appointment. Even if section 158(1)(h) of the LRA were available to them, the existence of alternative remedies under the LRA—specifically, the referral of a collective agreement dispute under section 24 and the unfair labour practice route under section 186(2)(a)—renders a legality review impermissible. The applicants failed to pursue these remedies. The application was therefore misconceived and had to be dismissed.

Citation
[2021] ZALCCT 17
Parties
Applicant: Pule Maile; Applicant: Malefane Lekgobo; Applicant: Gregory Mokate; Applicant: Mantombi Elizabeth Phindane; Respondent: The Free State Provincial Legislature; Respondent: The Speaker: The Free State Provincial Legislature: M Qabathe N.O.; Respondent: Goodwill Janras Mavuso
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
8 April 2021
Case Number
C183/2019
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed.
Judges
Rabkin-Naicker
Legal Topics
Section 158 1 H Review, Collective Agreement Interpretation, Unfair Labour Practice, Legality Review
Labour Law Civil Procedure Section 158 1 H Review Collective Agreement Interpretation Unfair Labour Practice Legality Review

Case Brief

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Parties

Pule Maile

Applicant

Malefane Lekgobo

Applicant

Gregory Mokate

Applicant

Mantombi Elizabeth Phindane

Applicant

The Free State Provincial Legislature

Respondent

The Speaker: The Free State Provincial Legislature: M Qabathe N.O.

Respondent

Goodwill Janras Mavuso

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the applicants are entitled to review the appointment decision under section 158(1)(h) of the LRA.
  2. 2 Whether the applicants had alternative remedies under the LRA and failed to pursue them.
  3. 3 Whether the principle of legality permits review where LRA remedies exist.

Ratio Decidendi

The Labour Court held that the applicants, as employees of a provincial legislature, are not public service employees and thus cannot rely on the Public Services Act for their appointment. Even if section 158(1)(h) of the LRA were available to them, the existence of alternative remedies under the LRA—specifically, the referral of a collective agreement dispute under section 24 and the unfair labour practice route under section 186(2)(a)—renders a legality review impermissible. The applicants failed to pursue these remedies. The application was therefore misconceived and had to be dismissed.

Court Disposition

Application dismissed.

Orders

  • The review application is dismissed.