Msibi v Premier: of Free State Province (A286/2012) [2013] ZAFSHC 88 (30 May 2013)

Msibi v Premier: of Free State Province (A286/2012) [2013] ZAFSHC 88 (30 May 2013)

The court held that the termination of the applicant's employment contract as Head of Department does not constitute administrative action under PAJA. The relationship between the applicant and the respondent at the time of termination was that of employer and employee, and the decision did not have a direct external legal effect beyond the employment relationship. The applicant's seniority and the statutory nature of his contract do not alter the essential character of the dispute, which remains an employment matter governed by labour law. The applicant's remedy lies in the Labour Relations Act, not in administrative law review under PAJA. The application was therefore dismissed.

Citation
[2013] ZAFSHC 88
Parties
Applicant: Msibi M.S.; Respondent: Premier: Free State Province
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
30 May 2013
Case Number
A286/2012
Procedural Posture
Review Application / Appeal From Termination of Employment Contract; Review Under Rule 53
Outcome
Application dismissed with costs.
Judges
L.J. Lekale, M.H. Rampai
Legal Topics
Administrative Action Definition, Termination of Employment, Public Service Act, Promotion of Administrative Justice Act, Fair Labour Practices
Administrative Law Labour Law Administrative Action Definition Termination of Employment Public Service Act Promotion of Administrative Justice Act Fair Labour Practices

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Parties

Msibi M.S.

Applicant

Premier: Free State Province

Respondent

Procedural Posture

Review Application / Appeal From Termination of Employment Contract; Review Under Rule 53

Legal Issues

  1. 1 Does the termination of the applicant's employment contract constitute administrative action under PAJA and section 33 of the Constitution?
  2. 2 Is the applicant entitled to review of the termination under administrative law principles, or is the matter governed by labour law remedies?

Ratio Decidendi

The court held that the termination of the applicant's employment contract as Head of Department does not constitute administrative action under PAJA. The relationship between the applicant and the respondent at the time of termination was that of employer and employee, and the decision did not have a direct external legal effect beyond the employment relationship. The applicant's seniority and the statutory nature of his contract do not alter the essential character of the dispute, which remains an employment matter governed by labour law. The applicant's remedy lies in the Labour Relations Act, not in administrative law review under PAJA. The application was therefore dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.