SAOU obo Van Der Riet v MEC: Mpumalanga Province, Provincial Government Department of Education Bonakele Amos Majuba and Another (1269/2020) [2021] ZAMPMBHC 68 (9 February 2021)

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MBOMBELA (MAIN SEAT)

CASE NUMBER: 1269/2020

(1) REPORTABLE: YES / NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

DATE: 09/2/2021

SIGNATURE

SAOU obo FRANCOIS PIETER VAN DER RIET

Applicant

and

THE MEC: MPUMALANGA PROVINCE,

PROVINCIAL GOVERNMENT

DEPARTMENT OF EDUCATION: BONAKELE

AMOS MAJUBA

First Respondent

THE HEAD OF DEPARTMENT: MPUMALANGA

PROVINCE PROVINCIAL GOVERNMENT

DEPARTMENT OF EDUCATION: JABULANI

ROLLAND NKOSI (ACTING)

Second Respondent

JUDGMENT

GREYLING-COETZER AJ

INTRODUCTION

[1] This is an application wherein declaratory and interdictory relief is sought in respect of a specific date of retirement. In addition, this court’s jurisdiction to adjudicate over the merits of the application is in issue.

[2] The applicant is the Suid-Afrikaanse Onderwys Unie (“SAOU”), a trade union duly registered and incorporated in terms of the provisions of the Labour Relations Act 66 of 1995 (“the LRA”). This application is launched on behalf of its member, being Francois Pieter van der Riet (“Van der Riet”).

[3] The first respondent is the MEC of the Mpumalanga Provincial Government: Department of Education, and the second respondent is the Head of Department Mpumalanga Provincial Government: Department of Education, Jabulani Rolland Nkosi (Acting) (“the department”), so cited in their official capacities, the second respondent being Van der Riet’s employer.

[4] What stands to be determined is whether the High Court has jurisdiction to entertain this application, and if so, which legislative provision finds application in respect of Van der Riet’s retirement age. Differently put, what is the effective date of retirement of Van der Riet pursuant to his employment relationship with the department coming to an end through the efflux of time?

[5] It is common cause, alternatively not seriously disputed by the parties, that Van der Riet commenced his employment during 1979 and enjoyed uninterrupted service in a permanent department post for the past 40 (forty) years.

[6] Van der Riet’s retirement age and date is not determined in any letter of appointment and/or any written contract of employment. It is determined in legislation. Van der Riet turned 65 during March 2020.

JURISDICTION

[7] The applicant contends that this court has jurisdiction to adjudicate the merits of the application. It is contended on behalf of the respondents that the matter at hand is one that falls within the sphere of the jurisdiction of the Labour Court, as the Labour Court is the appropriate and designated court to decide labour disputes.

[8] According to the respondents, Van der Riet under a ploy approached this court with a claim for unfair dismissal, or an automatic unfair dismissal, premised on his age, and that he wishes to be re-instated. This, it is contended, is a remedy which falls within the ambit of the LRA and the realm of the Labour Court.

[9] In contrast, Van der Riet contends that his claim is not that of a dismissal, whether unfair or automatically unfair, nor does it pertain to a benefit and an unfair labour practice. Van der Riet categorises the dispute as whether the respondents lawfully terminated his employment contract by retiring him at the end of March 2020, instead of with effect from 1 January 2021.Thus he seeks specific performance of his employment contract in respect of retirement at the correct date.

[10] Section 169(1) of the Constitution states as follows:-

“(1) The High Court of South Africa may decide-

(a) ……

(b) any other matter not assigned to another court by an Act of Parliament.”

[11] Section 152 of the LRA confirms that the Labour Court is a designated court with a status similar to that of the High Court.[1] Section 157(1) of the LRA provides for the exclusive jurisdiction of the Labour Court in all matters which, in terms of the LRA or other law, are to be determined by the Labour Court. In this respect Section 157(1) states as follows:-

“(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.”

[12] Section 157(1) is lent context by Section 157(2), which states that:-

“(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, and arising from –

(a) employment and from labour relations;…”

[13] In the matter of Fedlife Assurance Ltd v Wolfaardt[2] Nugent JA held that:-

“… s 157(1) does not purport to confer exclusive jurisdiction upon the Labour Court generally in relation to matters concerning the

relationship between employer and employee.”

Therefore the High Court’s jurisdiction will not be ousted simply because a dispute is one that falls within the overall sphere of employment relations.[3]

[14] As set out in the matter of Gcaba v Minister for Safety and Security[4] the Constitutional Court found moreover that the High Court’s jurisdiction in respect of employment related disputes is ousted only where the dispute is one for which the LRA creates specific remedies, including for example unfair dismissal disputes. Sections 68(1), 77(2)(a) and 191 of the LRA are examples of instances wherein the Labour Court will exercise exclusive jurisdiction.

[15] Similarly, Section 77 of the Basic Conditions of Employment Act 75 of 1997 (“the BCEA”) provides as follows:-

“77 Jurisdiction of Labour Court

(1) Subject to the Constitution and the jurisdiction of the Labour Appeal Court, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters in terms of this Act.

…

(3) The Labour Court has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract.

(4) Subsection (1) does not prevent any person relying upon a provision of this Act to establish that a basic condition of employment constitutes a term of a contract of employment in any proceedings in a civil court or an arbitration held in terms of an agreement.

…”

[16] In Lewarne v Fochem International (Pty) Ltd[5] it was held that the provision of Section 77(1) does no more than confer a residual exclusive jurisdiction on the Labour Court to deal with those matters which the BCEA requires to be dealt with by the court.

[17] Therefore both the LRA and the BCEA expressly recognise that there are certain matters in respect of which the Labour Court and the High Court enjoys concurrent jurisdiction.

[18] From aforementioned it is clear that Section 157(1) does not confer exclusive jurisdiction on the Labour Court in every matter relating to a labour dispute. The Constitutional Court in the matter of Chirwa v Transnet Ltd and Others[6] denoted that the Labour Court and other specialist tribunals created under the LRA, are uniquely qualified to handle labour related disputes. In paragraph [47] of the aforesaid judgment, it is stated that the LRA was envisaged as a one-stop shop for all labour related disputes, but the provision of concurrent jurisdiction adds to, rather than detracts from, the Labour Court’s jurisdiction.[7]

[19] As held by the Constitutional Court in Baloyi v Public Protector and Others[8] this affords litigants an additional right to approach either court where the disputes fall within the ambit of those sections.[9]

[20] In determining the question as to whether this court enjoys jurisdiction to adjudicate over the merits of the application, it stands to be considered whether the claim is of such a nature that it falls within the exclusive jurisdiction of the Labour Court in terms of the LRA and/or the BCEA.

[21] Informed by that set out by the Constitutional Court in the matter of Gcaba (supra), an assessment of jurisdiction must be based on the applicant’s pleadings. In aforementioned respect it was held as follows:-

“In the event of the court's jurisdiction being challenged …, 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 also 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.”[10]

Applicant’s contentions in re Jurisdiction

[22] It is contended by the applicant, as set out above, that Van der Riet’s cause of action is founded on the unlawful termination of his employment when he was retired by the department at the end of March 2020, instead of retiring with effect from 1 January 2021. Aforesaid argument is contextualised by the common cause facts, and that all terms of a contract of employment are not always recorded in the letter of appointment and/or the written contract of employment. It is quite often also based on tacit and implied terms.[11]

[23] So too there are also terms and conditions incorporated, for example by legislative provisions. These will be read into the employment contract as if the parties have agreed thereto.[12]

[24] The applicant submits that paragraphs 2 and 3 of the notice of motion clearly seek an order that the retirement be 1 January 2021, and an interdict preventing the department from retiring Van der Riet before said date. Paragraph 3 of the founding affidavit deals with the purpose of the application, and the nature of the relief is repeated therein. This coincides with the relief set out in paragraphs 2 and 3 of the notice of motion.

[25] In dealing with the issue of a clear right in paragraph 6 of the founding affidavit, it is stated that the respondents (at date of signature thereof) are acting, or are intending to act, in breach of the provision of Van der Riet’s contract of employment, therefore unlawfully interfering in his contract of employment. It is contended that the reference in paragraph 7.4 of the answering affidavit to Van der Riet’s right to fair labour practices as provided for in the Constitution of the Republic of South Africa Act 108 of 1996 (“the Constitution”) does not change the true nature of the dispute and pleaded case.

[26] Van der Riet may have a claim pertaining to a fair labour practice, and particularly an unfair or automatic unfair dismissal as provided for in the LRA, but he is not pursuing same in this court.

[27] In paragraph 3.10 of the replying affidavit, Van der Riet pleads that it is not about fairness or unfairness in respect of his termination of service, but it is about the lawfulness of same. In conclusion it was argued that Van der Riet’s pleaded case is based on contract, notwithstanding the statement in paragraph 4.8 of the replying affidavit that Van der Riet is not relying on a contract but on the legislative provision governing his retirement.

Respondents’ contentions in re Jurisdiction

[28] It is contended on behalf of the respondents that this court is called upon to decide a labour dispute, as Van der Riet technically approached this court with a claim for an unfair dismissal or an automatic unfair dismissal premised on his age. Van der Riet really seeks an order of reinstatement and back-pay, which are provided for in terms of the LRA.

[29] On considering all the evidence (so the argument goes) relied on by Van der Riet in support of his claim, it is evident that Van der Riet’s claim is one founded in employment law. In following the approach set out in Gcaba (supra), it is contended that Van der Riet: (a) has not made any allegation that a common law right has been infringed; (b) has not alleged that there was a violation of any written contract of employment; (c) has not alleged a violation or breach of any implied term in his contract of employment and (d) relies on statutory provisions dealing with a condition of employment. Given that no law exists which would support Van der Riet’s claim of unlawful termination of his employment, the only interpretation avenue available to Van der Riet is what is provided for in the LRA.

[30] Referring to the matter of Democratic Municipal and Allied Workers Union of SA and Others v City of Johannesburg[13] it was contended that the principle is that if a litigant’s cause of action is a breach of an obligation provided for in the LRA, the litigant, as a general rule, should seek a remedy in the LRA. It cannot go outside of the LRA and invoke the common law for a remedy.

Discussion

[31] As already alluded to herein above, the same set of facts may give rise to several different causes of action. Per the examples set out in paragraph 14 herein above, the specific court will be easily identifiable or even prescribed. In the present context where more than one potential cause of action arises as a result of a labour dispute, a litigant may choose the cause of action he or she wishes to pursue, and prepare the pleadings accordingly. This is so as a termination of a contract of employment has the potential to found a claim for relief for infringement of the LRA and a claim for enforcement of a right that does not emanate from the LRA.

[32] A litigant cannot be said to be bound to pursue a specific cause of action just because it is available. As held by the Constitutional Court in Baloyi (supra), “…the fact that the cause of action is limited to certain fora must not be interpreted as obliging an applicant only to pursue that particular cause of action.”[14] It was similarly held that the mere potential for an unfair dismissal claim does not oblige a litigant to frame his or her claim as one of unfair dismissal and to approach the Labour Court, notwithstanding the fact that other potential causes of action exist.

[33] The respondents place reliance on the matter of Democratic Municipal and Allied Workers Union of SA and Others v City of Johannesburg[15] where Van Niekerk J, with reference to the Constitutional Court case of Steenkamp and Others v Edcon Ltd (National Union of Metal Workers of SA intervening)[16] where the Constitutional Court stated as follows:-

“…The principle is that, if a litigant’s cause of action is a breach of an obligation provided for in the LRA, the litigant as a general rule, should seek a remedy in the LRA. It cannot go outside the LRA and invoke the common law for a remedy. The cause of action based on a breach of an LRA obligation obliges the litigant to utilise the dispute resolution mechanisms of the LRA to obtain a remedy provided for the LRA.”

[34] In the matters of Lewarne (supra), South African Maritime Safety Authority v McKenzie[17] and Manana v King Sabata Dalindyebo Municipality[18] it was confirmed that a contractual claim arising from a breach of a contract of employment falls within the ordinary jurisdiction of the High Court, notwithstanding the fact that the contract is one of employment. The dictum in the matter of Makhanya v University of Zululand[19] restates this:-

“[11] The LRA creates certain rights for employees … Yet employees also have other rights, … arising from the general law. One is the right that everyone has (a right emanating from the common law) to insist upon performance of a contract.

[71] … When a claimant says that the claim arises from the infringement of the common-law right to enforce a contract, then that is the claim, as a fact, and the court must deal with it accordingly. When a claimant says that the claim is to enforce a right that is created by the LRA, then that is the claim that the court has before it, as a fact…”

[35] Even against aforesaid backdrop, the mere fact that the dispute which this court is called upon to determine is a labour dispute, or founded in employment law (as termed by the respondent) does not automatically preclude this court’s jurisdiction. Various rights attributed to employees exist independent of the LRA.

[36] As held in Baloyi (supra), Section 23 of the Constitution does not deprive employees of a common law right to enforce the terms of a fixed term contract of employment, and the LRA does not confine employees to the remedies for unfair dismissal as provided for in the LRA.

[37] As provided for in Section 77(3) of the BCEA, matters concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract that falls within the concurrent jurisdiction of the High Court and the Labour Court. A claim concerning a contract of employment, more specifically a term and condition of employment read into the contract of employment through legislative provisions, is identified by Van der Riet in his papers. While it is so that Van der Riet might also possess a cause of action founded on unfair dismissal, alternatively an automatically unfair dismissal, Van der Riet through the applicant has elected not to pursue those claims.

[38] The dispute cannot be categorised, as argued for by the respondents, as one of dismissal. This is so when regard is had to the fact that the dismissal issue is ordinarily an act unilaterally undertaken by an employer. In the present instance the employment relationship terminated by an efflux of time. The dispute therefore is when the efflux should have occurred.

[39] The employment of Van der Riet was governed by a contract of employment, which need not be in writing, but which employment contract’s terms are found in statute. This is not uncommon, as most employment contracts say nothing about retirement in the contract itself. Retirement is generally governed either by policy, pension fund rules or statute.

[40] The respondents allege that the applicant seeks re-instatement and thus cannot be considered in isolation in order to justify a finding that the cause of action is that of an unfair dismissal.

[41] Section 186(1) of the LRA sets out the meaning of “dismissal” and “unfair labour practice” as follow:

“(1) 'Dismissal' means that-

(a) an employer has terminated employment with or without notice;

(b) an employee employed in terms of a fixed-term contract of employment reasonably expected the employer-

(i) to renew a fixed-term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it;

(c) employer refused to allow an employee to resume work…

(d)

an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but

has refused to re-employ another; or

(e)

an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee; or

(f)

an employee terminated employment with or without notice because the new employer, after a transfer in terms of section 197 or section

197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.”

[42] When employment ends because the employee has reached the agreed or normal retirement age, the termination is not a dismissal within the definition and meaning of the statutory definition of “dismissal”.[20] The definition and meaning of “dismissal” as contained in Section 186 do not contemplate the coming to an end of an employment contract by the efflux of time. This is so as the contract of employment comes to an end without the employer having to do anything.

[43] In the matter of Schmahmann v Concept Communications Natal (Pty) Ltd[21] the court analysed the definition of “dismissal” as set out in Section 186, and concluded that in each instance of dismissal referred to therein the employer effects or causes the termination of the employee’s services. This is so when one has regard to the content of Section 186 where each paragraph contains an active verb governing the employer. The employer in each instance effects or causes the termination of the employee’s service.

[44] A dismissal is not something which an employee initiates, nor is it something that just happens. When an employer and an employee agree specifically or by implication in advance that the effluxion of time is to operate as the guillotine which severs the employment relationship, then it cannot be said that when this date arrives, there has been a dismissal by the employer, although the relationship and the contractual obligation are terminated. This is in my opinion so in respect of an agreed, alternatively normal, further alternatively statutory defined retirement age. An employee is not dismissed. That person is retirement by his or her employer on attaining the agreed normal age of retirement or statutory defined age of retirement.[22]

[45] Van der Riet’s claim is thus not of such a nature that it falls within the exclusive jurisdiction of the Labour Court in terms of the LRA and/or the BCEA thereby ousting this court’s jurisdiction.

EFFECTIVE RETIREMENT DATE

[46] In respect of the merits, the central issue for determination is whether Van der Riet’s effective retirement date is 1 January 2021 or 31 March 2020.

Applicant’s contentions in re Van der Riet’s date of retirement

[47] It is common cause that Van der Riet commenced his employment in 1979 at the Transvaal Education Department. At this point in time the Transvaal Ordinance provided, in Section 87(b)(i), as follows:-

“87. The service of a teacher appointed in a permanent capacity may be terminated as follows:

(a) …

(b) by the director

(i) …

(ii) …

(iii) subject to the provisions of the Pension Ordinance, on such teachers reaching the prescribed retiring age: provided if there be no prescribed retiring age for such teacher, the retiring age shall be deemed to be the age at which such teacher would have retired had the Pension Ordinance been applicable to him;

(c) …”

[48] Regulations were promulgated under the Transvaal Ordinance on 23 December 1953 and Administrative Notice No 1053. Regulation 44(1) of aforesaid regulations provided as follows:-

“A teacher who is a member of the fund shall have the right to retire on pension and shall subject to the provisions of the sub-regulation (2) be so retired on attaining the age of 65 years: Provided that if such teacher attains said age on any day of a year, he shall, for the application of this sub-regulation, be deemed to have obtained the said age on the first day of the next succeeding year.”

[49] Per the applicant, Van der Riet’s right to retire on 1 January 2021 is a vested right as Van der Riet commenced his employment under above circumstances provide for in the Transvaal Ordinance and Regulation 44. The Transvaal Ordinance was repealed by the Education Affairs Act (House of Assembly) 70 of 1988. Notwithstanding the repeal of the Transvaal Ordinance, Section 96A of the Education Affairs Act (House of Assembly) 70 of 1988 provided as follows:-

“(1) A person appointed in terms of any law repeal by this Act and who immediately prior to the fixed date was employed at a state aided school, shall from that date be deemed to have been appointed in terms of this Act to a subsidised post at a state aided school.

(2)

(a) The conditions of service subject to which such a person referred to in subsection (1) was serving immediately prior to the fixed date, shall not be affected to his detriment, and no such condition of service shall after that date be construed or applied in a way that is less favourable to the person concerned than the way in which it was construed or applied immediately prior to that date.”

[50] When the Education Affairs Act (House of Assembly) 70 of 1988 came into effect, so the argument goes, Van der Riet retained his retirement date of 1 January 2021.

[51] The Education Affairs Act (House of Assembly) 70 of 1988 was repealed by the Educators Employment Act of 138 of 1994 (Proclamation 138/1994), which was in turn repealed by section 37 of the Employment of Educators Act 76 of 1998.

[52] Section 10 of the Educators Employment Act of 138 of 1994 provided that:-

“(1)

(a) Subject to the provisions of this section, an educator shall have the right to retire, and shall be so retired, on the day on which the educator attains the age of 65 years.

(b) An educator who attains said age after the first day of a month shall be deemed to have attained that age on the first day of the following month.

(2) Notwithstanding the provisions of subsection (1) an educator who was in employment immediately before 2 September 1994 in terms of a law repealed by the Educators Employment Act, 1994 (promulgated under Proclamation Number 138 of 1994), shall have the right to retire on or after attaining the retirement age applicable to the educator immediately before the said date.”

[53] Based aforesaid, the applicant contends that when the Employment of Educators Act 76 of 1998 came into operation, Van der Riet retained his retirement date as provided for in the Transvaal Ordinance, being 1 January 2021.

[54] The applicant contends that aforesaid is so when one employs the Interpretation Act 33 of 1957 (as amended) (“the Interpretation Act”).

[55] On the strength of Section 12 on the Interpretation Act, the applicant argues that the effect of a repealed law is as follows:-

“(1) Where a law repeals and re-enacts with or without modifications, any provision of a former law, references in any other law to the provision so repealed shall, unless the contrary intention appears, be construed as references to the provision so re-enacted.

(2) Where a law repeals any other law, then unless the contrary intention appears, the repeal shall not-

(a)

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, forfeiture or punishment as is in this subsection mentioned,

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing law had not been passed.”

Respondents’ contentions in re Van der Riet’s date of retirement

[56] The Respondents’ in disagreement argue that the Transvaal Ordinance was repealed by the Education Affairs Act (House of Assembly) 70 of 1988. In addition, Government Notice R708 of 1990, dated 30 March 1990, further repealed all regulations, promulgations and notices, as well as instruction flowing from the Transvaal Ordinance. Aforesaid notice specifically confirmed the repeal of Administrative Notice No 1053 of 23 December 1953.

[57] Its common cause that the Educators Employment Act 138 of 1994 in turn repealed the Education Affairs Act (House of Assembly) 70 of 1988. The respondents contend, that the Education Affairs Act (House of Assembly) 70 of 1988 was repealed in its totality by the Educators Employment Act 138 of 1994.

[58] The respondents’ further place reliance on the Government Notice R1743 of 1995, which was issued under Proclamation 138/1994 (being the Educators Employment Act 138 of 1994). This notice confirmed the full repeal of the Transvaal Ordinance, particularly where it relates to conditions of service of education at colleges or education.

[59] On aforesaid basis the respondents argued that Regulation 44 did not survive years of statutory development, which is evident from aforesaid.

[60] The argument continues that the Educators Employment Act 138 of 1994 was replaced by the South African Schools Act 84 of 1996, which repealed Sections 3 and 65, as well as Chapter 7, of the Educators Employment Act 138 of 1994. Finally, the Employment of Educators Act 76 of 1998 became enacted, which Act specifically provides (in Chapter 2 thereof) for the conditions of service in respect of educators and the termination of service and retirement.

[61] Per Chapter 2, Sections 10(1) and (2) of the Employment of Educators Act 76 of 1998 provides as quoted in paragraph 52 above. The prevailing retirement date provision is thus Section 10(2) of the Employment of Educators Act 76 of 1998.

[62] It was submitted that Section 10(1)(a) and (b) of the Employment of Educators Act 76 of 1998 do not apply to the dispute, but Section 10(2) is the relevant consideration. Consequentially it was argued that Van der Riet was not employed and never became employed in terms

of the provisions of the Educators Employment Act 138 of 1994. Differently put, by the time that the Educators Employment Act 138 of 1994 saw the light in 1994, regulations under the Transvaal Ordinance had long been repealed in totality.

Applicable statutory provisions

[63] Although the majority of the statutory provisions have been quoted herein above, for an orderly analysis the relevant legislative provisions is again referred to below.

[64] Regulation 44(1) promulgated the Transvaal Ordinance, and provided that a teacher will retire at the end of the year in which said teacher attains the age of 65. With the coming into effect of the Education Affairs Act (House of Assembly) 70 of 1988, the Transvaal Ordinance was repealed, yet the Schedule thereof was silent in respect of the regulations.

[65] Section 111 of the Section of the Education Affairs Act (House of Assembly) 70 of 1988 provides as follows:-

“111 Proclamations, notices and regulations in force on fixed date

All regulations, proclamations, notices and instructions made, promulgated or issued under any law repealed by this Act, and which are in force immediately prior to the fixed date, shall, notwithstanding such repeal, remain in force, except in so far as they are incompatible or in conflict with this Act, until they are repealed, withdrawn or amended by the Minister by regulation, notice or instruction, as the case may be, made or issued under this Act.”

[66] Regulation 44(1) was, at this point, not yet repealed, nor was it incompatible or in conflict with the Education Affairs Act (House of Assembly) 70 of 1988.

[67] In addition Section 96A of the Education Affairs Act (House of Assembly) 70 of 1988 provided:-

“96A Conditions of service of persons appointed at stated aided schools under repealed laws

(a) The conditions of service subject to which such a person referred to in subsection (1) was serving immediately prior to the fixed date, shall not be affected to his detriment, and no such condition of service shall after that date be construed or applied in a way that is less favourable to the person concerned than the way in which it was construed or applied immediately prior to that date.[23]

(b) …” [Court emphasis]

[68] On the strength of Section 111 and Section 96A was as at the enactment of the Education Affairs Act (House of Assembly) 70 of 1988, Van de Riet was entitled to retire at the end of the year in which he turned 65, i.e. 1 January 2021.

[69] On 30 March 1990, and as correctly contended by the respondents Notice R708/1999 was issued in terms of the Education Affairs Act (House of Assembly) 70 of 1988. This repealed certain regulations, proclamations, notices and instructions inclusive of Regulation 44(1), as it was issued under Administrative Notice No 1053. Although Regulation 44 was repealed by aforementioned, Van der Riet’s right to retire still remained intact on the strength of that set out in Section 96A.

[70] On 2 September 1994 the Educators Employment Act 138 of 1994 (Proclamation 138 of 1994) came into effect. This Act repealed the Transvaal Ordinance to the extent that the provisions thereof relate to the employment of educators at teachers training colleges and Chapter 7 of the Education Affairs Act (House of Assembly) 70 of 1988. In terms of Section 9 of the Educators Employment Act 138 of 1994 (Proclamation 138 of 1994), retirement of educators would be prescribed. No further prescription was set out in the act.

[71] Section 29 of the Educators Employment Act 138 of 1994 (Proclamation 138 of 1994) dealt with the repeal of laws, which provided:-

“(1) Subject to the provision of subsection (2), the laws listed in the Schedule are hereby repealed to the extent indicated in the third column of the Schedule.

(2) Anything which was done or is deemed to have been done in terms of a provision of a law repealed by subsection (1) and which may or shall be done in terms of this Act shall be deemed to have been done in terms of the corresponding provision of this Act.

(3) All laws, regulations, notices and directives made or issued under any law repealed by this Act which were in force immediately prior to the commencement of this Act shall, notwithstanding such repeal, remain in force except insofar as they are incompatible with or in conflict with this Act, until they are repealed, withdrawn or amended by the Minister by regulation, notice or directive, as the case may be, made or issued under this Act.”

[72] Section 96A of the Education Affairs Act (House of Assembly) 70 of 1988 falls within the then repealed Chapter 7. Although Chapter 7 has been repealed, Section 96A (confirming Van der Riet’s right to retire at the end of the year in which he turned 65) was not in conflict or incompatible with the Educators Employment Act 138 of 1994 (Proclamation 138 of 1994) and therefore remained in force on the strength of Section 29(3) of the Educators Employment Act 138 of 1994 (Proclamation 138 of 1994).

[73] In terms of Government Notice R1743/1995 (issued under Proclamation 138/1994), the regulations promulgated under the Transvaal Ordinance, inclusive of Administrative Notice No 1053, was again repealed. So too were regulations promulgated under the Education Affairs Act (House of Assembly) 70 of 1988. Aforesaid is of no moment, considering that Administrative Notice No 1053 was already repealed in terms of Government Notice R708/1990 and no regulations promulgated under the Education Affairs Act (House of Assembly) 70 of 1988 has an impact on that set out in Section 96A of the Education Affairs Act (House of Assembly) 70 of 1988

[74] On 1 January 1997 the South African Schools Act 84 of 1996 commenced. This Act again repealed Sections 3, 65 and Chapter 7 of the Education Affairs Act (House of Assembly) 70 of 1988, and further amended Section 63 of the Educators Employment Act 138 of 1994 (Proclamation 138 of 1994), as set out in Schedule 2.

[75] On 2 October 1998 the Employment of Educators Act 76 of 1998 commenced. Section 37 it was provided that:-

37. Repeal of Act promulgated under Proclamation 138 of 1994, and savings

“(1) Subject to the provisions of subsection (2), the Educators' Employment Act, 1994, is hereby repealed.

(2) Anything done under the said Act and which could be done under a provision of this Act, shall be deemed to have been done under that provision.

(3) ...

(4) Notwithstanding the repeal of the said Act, the regulations which were made under the said Act and were in force immediately before the commencement of this Act, and which are not inconsistent with this Act, shall continue in force until they are repealed, withdrawn or amended by regulations made under section 35 of this Act.”

[76] Section 10 of the Employment of Educators Act 76 of 1998 provided as follows:-

10. Retirement

(1)

(b) An educator who attains the said age after the first day of a month shall be deemed to have attained that age on the first day of the following month.

(2) Notwithstanding the provisions of subsection (1), an educator who was in employment immediately before 2 September 1994 in terms of a law repealed by the Educators' Employment Act, 1994 (promulgated under Proclamation 138 of 1994), shall have the right to retire on or after attaining the retirement age applicable to the educator immediately before the said date.” [court emphasis]

[77] Immediately prior to 2 September 1994, Van der Riet was employed with the department in terms of Education Affairs Act (House of Assembly) 70 of 1988 on the strength of Section 113(2) thereof. Said section provides that:

“Anything done or deemed to have been done in terms of a provision of a law repealed by subsection (1) and which may or shall be done in terms of this Act, shall be deemed to have been done in terms of the corresponding provision of this Act.”

[78] So too Section 96A of the Education Affairs Act (House of Assembly) 70 of 1988 was still applicable to Van der Riet.

[79] The aforesaid, conclusion further finds support the Interpretation Act 33 of 1957 (as amended). Section 1 of the Interpretation Act is clear, in that:-

“(1) The provisions of this Act shall apply to the interpretation of every law (as in this Act defined) in force, at or after the commencement of this Act in the Republic or in any portion thereof, and to the interpretation of all bylaws, rules, regulations or orders made under the authority of any such law, unless there is something in the language or context of the law, bylaw, rule, regulation or

order repugnant to such provisions or unless the contrary intention appears therein.”

[80] Section 2 of the Interpretation Act defines a “law” to mean “any law, proclamation, ordinance, Act of Parliament or other enactment having the force of law”.

[81] With due regard to aforesaid and as set out in Section 12 quoted above, where a law repeals any other law, then unless the contrary intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed. Therefore, if Van der Riet enjoyed the right and privilege of being entitled to retire at the end of the year in which he turned 65, the mere repeal of Regulation 44 and the subsequent legislation enacted (dealt with herein above) shall not affect such right or privilege.

[82] On a proper consideration of that set out above, no contrary is set out. In addition, none of the aforementioned legislation was specifically enacted with retrospective effect. In my view, to interpret said legislation, and more particularly the Employment of Educators Act 76 of 1988, in such a manner would lead to an unfair and anomalous result.

[83] When new legislation comes into effect, existing rights or expectations of parties are often affected. New legislation which affects substantive rights will be presumed to have a prospective effect, unless it is possible to discern a clear legislative intent that it is to apply retrospectively. In this regard it was held in Veldman v Director of Public Prosecutions, Witwatersrand Local Division[24] at paragraph 26 as follows:-

“[26] Generally, legislation is not to be interpreted to extinguish existing rights and obligations. This is so unless the statute provides otherwise or its language clearly shows such a meaning. That legislation will affect only future matters and not take away existing rights is basic to notions of fairness and justice which are integral to the rule of law, a foundational principle of our Constitution. Also central to the rule of law is the principle of legality which requires that law must be certain, clear and stable. Legislative enactments are intended to 'give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed'.”

[84] On aforementioned basis, it can be regarded as the general rule that legislation, as far as possible, should be construed as operating only on facts which came into existence after the passing of such legislation.[25]

[85] Where legislation is repealed, and the new legislation comes into effect after an action was initiated but before completion, the rule would be that unless a contrary intention appears from the amending legislation, the old position remains intact.

[86] Further guidance can be found in Section 11 of the Interpretation Act 33 of 1957 (as amended), which provides that “(w)hen a law repeals wholly or partially any former law and substitutes provisions for the law so repealed, the repealed law shall remain in force until the substituted provisions come into operation.”

[87] In the present instance there is no suggestion of retrospectivity of Section 10 of the Employment of Educators Act 76 of 1998 and therefore, the only reasonable conclusion is that although Regulation 44 of the Transvaal Ordinance did not survive the legislative amendments supra, its repeal did not have the effect that Van der Riet lost the right and/or privilege to retire at the end of the year in which he turned 65.

[88] As held by Kentridge AJ in State v Mhlungu and Others:-[26]

“[65] First, there is a strong presumption that new legislation is not intended to be retroactive. By retroactive legislation is meant legislation which invalidates what was previously valid, or vice versa, ie which affects transactions completed before the new statute came into operation … It is legislation which enacts that 'as at a past date the law shall be taken to have been that which it was not'. See Shewan Tomes & Co Ltd v Commissioner of Customs and Excise 1955 (4) SA 305 (A) at 311H, per Schreiner ACJ. There is also a presumption against reading legislation as being retrospective in the sense that, while it takes effect only from its date of commencement, it impairs existing rights and obligations, eg by invalidating current contracts or impairing existing property rights. See Cape Town Municipality v F Robb & Co Ltd 1966 (4) SA 345 (C) at 351, per Corbett J. The general rule therefore is that a statute is as far as possible to be construed as operating only on facts which come into existence after its passing.”

[89] Against aforementioned and through the prism of the Bill of Rights as provided in Section 39(2) of the Constitution it’s not perspectivity or retrospectivity of legislation as such which stands at the centre, but the fair treatment befalling those affected, should the legislation be held to apply in such a manner. Having concluded as aforesaid, Van der Riet enjoys a clear right.

[90] In respect of an act of interference, it is common cause between the parties that Van der Riet was retired by the respondents at the end of March 2020. Van der Riet thus experienced an act of interference, which prejudices him in not having been able to continue with his employment until 1 January 2021. In addition Van der Riet did not reap the benefit of continued employment, as well as the retirement benefit which is calculated on average of a salary over 24 months preceding retirement.

[91] In respect of an alternative remedy, it was contended that Van der Riet enjoyed all the remedies under the LRA. In the circumstances, and having found that Van der Riet was entitled to elect the cause of action he intended to pursue, the LRA cannot be seen as a suitable alternative remedy in the absence of declaratory relief.

COSTS

[92] The applicant seeks costs on an attorney-and-client scale. It is trite that costs ordinarily follow the result, and a successful party is therefore entitled to his, her or its costs. The guiding principle is:-

“Costs are awarded to a successful party in order to indemnify him for the expense to which he has been through having been unjustly compelled either to initiate or to defend litigation, as the case may be. Owing to the unnecessary operation of taxation, such an order is seldom a complete indemnification; but that does not affect the principle on which it is based.”[27]

[93] The following was held in relation to costs on the attorney-and-client scale in Nel v Waterberg Landbouers Kooperatiewe Vereeniging:-[28]

“The true explanation of awards of attorney and client costs not expressly authorised by Statute seems to be that, by reason of special

considerations arising either from the circumstances which give rise to the action from the conduct of the losing party, the court, in a particular case considers it just, by means of such an order, to ensure more effectually that it can do by means of a judgment for party and party costs that the successful party will not be out of pocket in respect of the expenses caused to him by the litigation.

Theoretically, a party and party bill taxed in accordance with the tariff will be reasonably sufficient for that purpose. But in fact a party may have incurred expense which is reasonably necessary but is not chargeable in the party and party bill. See Hearle and McEwan v Mitchell’s Executor (1922 TPD 192).Therefore in a particular case the Court will try to ensure, as far as it can, that the successful party is recouped. I say ‘as far as it can’ because there may be a considerable difference between the amount of the attorney and client bill which a successful party is bound to pay to his own attorney and the amount of an attorney and client bill which has been taxed against the losing party …”

[94] It is also trite that costs are in the discretion of the court. The basic rules were again restated by the Constitutional Court in Ferreira v Levin NO and others; Vryenhoek and others v Powell NO and Others[29] as follows:-

“The Supreme Court has, over the years, developed a flexible approach to costs which proceeds from two basic principles, the first being that the award of costs, unless expressly otherwise enacted, is in the discretion of the presiding judicial officer, and the second that the successful party should, as a general rule, have his or her costs. Even this second principle is subject to the first. The second principle is subject to a large number of exceptions where the successful party is deprived of his or her costs. Without attempting either comprehensiveness or complete analytical accuracy, depriving successful parties of their costs can depend on circumstances such as, for example, the conduct of parties, the conduct of their legal representatives, whether a party achieves technical success only, the nature of litigants and the nature of proceedings.”

[95] Having regard to the aforementioned principles and the applicable circumstances of this matter, I am not persuaded that an attorney-and-client cost order is justified.

ORDER

[96] In the circumstances, I make the following order:-

1 It is declared that the retirement date of Van der Riet is 1 January 2021.

2 The respondents are directed to re-register Van der Riet as an employee, as he was at 31 March 2020, as from 1 April 2020, with the same benefits and backdated benefits until his retirement date of 1 January 2021.

3 The respondents are to pay the costs jointly and severally, the paying the other to be absolved.

DATE OF HEARING: 17 NOVEMBER 2020

DATE OF JUDGMENT: 09 FEBRUARY 2021

FOR THE APPLICANT: Adv GL van der Westhuizen

Instructed by Louw Erasmus Attorneys

c/o Du Toit Smuts and Partners

Ref: T Boshoff/ RAL/LOU298/0001 (LT2/20)

E-mail: louwrenaldo@gmail.com

& rlouw@dtsnp.co.za

FOR THE RESPONDENTS: Adv F Venter, together with Adv Z Gumede

Instructed by: Adendorff Theron Attorneys Inc

Ref: JJ Theron/C1066

E-mail: jacques@adendorfs.com

[1] Section 151(2) of the LRA

[2] 2002 (1) SA 49 (SCA) at par [25]

[3] Baloyi v Public Protector and Others 2021 (2) BCLR 101 (CC)

[4] 2010 (1) SA 238 (CC) at par [73]

[5] 2019 JDR 1750 (SCA) at par [7]

[6] [2007] ZACC 23; 2008 (4) SA 367 (CC)

[7] Gcaba (supra) at par [71]

[8] 2021 (2) BCLR 101 (CC)

[9] Baloyi (supra) at par [31]

[10] Gcaba (supra) at par [75]

[11] SEPPAWU obo Constable and Others v SAFCOL 2003 (3) BLLR 205 (LC)

[12] Grogan Workplace Law 11th Ed at p37

[13] (2020) 41 ILJ 912 (LC)

[14] At par [39]

[15] (2020) 41 ILJ 912 (LCA)

[16] 2016 (3) SA 251 (CC)

[17] 2010 (3) SA 601 (SCA)

[18] (2010) JDR 1423 (SCA)

[19] 2010 (1) SA 62 (SCA) at par [11] and [71]

[20] Schweitzer v Waco Distributors (a Division of Voltex) (1998) 19 ILJ 1573 (LC); Schmahmann v Concept Communications Natal (Pty) Ltd (1997) 18 ILJ 1333 (LC) and Coetzee v Moreesburgse Koringboere Kooperatief (1997) 18 ILJ 1341 (LC)

[21] (1997) 18 ILJ 1333 (LC)

[22] Badenhorst v GC Baars (Pty) Ltd (1995) 16 ILJ 1596 (IL)

[23] Commencement date 1 April 1990

[24] 2007 (3) SA 210 (CC)

[25] State v Mhlungu and Others [1995] ZACC 4; 1995 (3) SA 867 (CC) at par [65]

[26] [1995] ZACC 4; 1995 (3) SA 867 (CC) at par [65]

[27] Cilliers AC Law of Costs Butterworths p124; Thusie v Minister of Home Affairs and Another and 71 other cases 2011 (2) SA 561 (KZP) at 605 to 611

[28] 1956 AD 497 at 605

[29] 1996 (1) SA 984. (CC)