Makambi v Member of Executive of Council, The Department of Education, Eastern Cape Province (638/2006) [2008] ZASCA 61; [2008] 4 All SA 57 (SCA); 2008 (5) SA 449 (SCA); [2008] 8 BLLR 711 (SCA); (2008) 29 ILJ 2129 (SCA) (29 May 2008)

Makambi v Member of Executive of Council, The Department of Education, Eastern Cape Province (638/2006) [2008] ZASCA 61; [2008] 4 All SA 57 (SCA); 2008 (5) SA 449 (SCA); [2008] 8 BLLR 711 (SCA); (2008) 29 ILJ 2129 (SCA) (29 May 2008)

The Supreme Court of Appeal held that, following the Constitutional Court's decision in Chirwa v Transnet Ltd, the High Court does not have jurisdiction to review the termination of employment and benefits of a public-service employee where the dispute amounts to an unfair labour practice. The appellant's claim, although framed as a constitutional challenge under PAJA, was found to fall within the scope of the Labour Relations Act, which provides exclusive mechanisms for resolving such disputes. The court further held that the termination of the appellant's employment did not constitute administrative action as contemplated by PAJA. The appeal was dismissed, and the costs order against...

Citation
[2008] ZASCA 61
Parties
Appellant: Nomtha Makambi; Respondent: Member of the Executive Council, The Department of Education, Eastern Cape Province
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 May 2008
Case Number
638/2006
Procedural Posture
Civil Appeal / Appeal From Bhisho High Court Judgment
Outcome
Appeal dismissed; costs order against appellant in the court below set aside.
Judges
Farlam, Nugent, Mlambo, Maya, Mhlantla
Legal Topics
Jurisdiction of High Court, Promotion of Administrative Justice Act, Unfair Labour Practice, Termination of Employment, Concurrent Jurisdiction, Review of Administrative Action
Constitutional Law Labour Law Civil Procedure Jurisdiction of High Court Promotion of Administrative Justice Act Unfair Labour Practice Termination of Employment Concurrent Jurisdiction +1 more

Case Brief

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Parties

Nomtha Makambi

Appellant

Member of the Executive Council, The Department of Education, Eastern Cape Province

Respondent

Procedural Posture

Civil Appeal / Appeal From Bhisho High Court Judgment

Legal Issues

  1. 1 Whether the High Court has jurisdiction to review the termination of emoluments and benefits of an educator employed by the state.
  2. 2 Whether the termination of the appellant's employment and benefits constitutes administrative action subject to review under PAJA.
  3. 3 Whether the appellant was required to exhaust internal remedies before approaching the court.

Ratio Decidendi

The Supreme Court of Appeal held that, following the Constitutional Court's decision in Chirwa v Transnet Ltd, the High Court does not have jurisdiction to review the termination of employment and benefits of a public-service employee where the dispute amounts to an unfair labour practice. The appellant's claim, although framed as a constitutional challenge under PAJA, was found to fall within the scope of the Labour Relations Act, which provides exclusive mechanisms for resolving such disputes. The court further held that the termination of the appellant's employment did not constitute administrative action as contemplated by PAJA. The appeal was dismissed, and the costs order against...

Court Disposition

Appeal dismissed; costs order against appellant in the court below set aside.

Orders

  • Subject to paragraph 2, the appeal is dismissed.
  • The order made in the court a quo on 2 December 2004 is amended by the deletion of paragraph 2 thereof.