Transnet Ltd. and Others v Chirwa (024/05) [2006] ZASCA 177; [2007] 1 All SA 184 (SCA); 2007 (2) SA 198 (SCA); [2007] 1 BLLR 10 (SCA); (2006) 27 ILJ 2294 (SCA) (29 September 2006)

Transnet Ltd. and Others v Chirwa (024/05) [2006] ZASCA 177; [2007] 1 All SA 184 (SCA); 2007 (2) SA 198 (SCA); [2007] 1 BLLR 10 (SCA); (2006) 27 ILJ 2294 (SCA) (29 September 2006)

The Supreme Court of Appeal held that the High Court had jurisdiction to hear the matter because the respondent raised a constitutional issue, but that the termination of her employment by Transnet did not constitute administrative action under PAJA. The court found that Transnet, although an organ of state, acted in its capacity as employer and not in the exercise of public power or performance of a public function in terms of legislation when dismissing the respondent. The employment relationship was governed by contract and the LRA, not by administrative law. The court further held that the respondent could not bypass PAJA by relying directly on section 33 of the Constitution or the...

Citation
[2006] ZASCA 177
Parties
Appellant: Transnet Limited; Appellant: Transnet Pension Fund; Appellant: Patrick Ian Smith NO; Respondent: Petronella Nellie Nelisiwe Chirwa
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 2006
Case Number
024/05
Procedural Posture
Civil Appeal / Appeal From the Johannesburg High Court
Outcome
Appeal upheld; application dismissed with costs.
Judges
MPATI DP, CAMERON JA, MTHIYANE JA, CONRADIE JA, JAFTA JA
Legal Topics
Jurisdiction of Labour Court, Administrative Action Definition, Promotion of Administrative Justice Act, Fair Labour Practices, Exclusive Vs Concurrent Jurisdiction, Remedies for Unfair Dismissal
Labour Law Constitutional Law Jurisdiction of Labour Court Administrative Action Definition Promotion of Administrative Justice Act Fair Labour Practices Exclusive Vs Concurrent Jurisdiction Remedies for Unfair Dismissal

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Parties

Transnet Limited

Appellant

Transnet Pension Fund

Appellant

Patrick Ian Smith NO

Appellant

Petronella Nellie Nelisiwe Chirwa

Respondent

Procedural Posture

Civil Appeal / Appeal From the Johannesburg High Court

Legal Issues

  1. 1 Whether the High Court had jurisdiction to hear and determine the dismissal dispute given the provisions of section 157(1) of the Labour Relations Act.
  2. 2 Whether the termination of the respondent's employment constituted administrative action under section 1 of PAJA.
  3. 3 Whether the respondent was entitled to relief under PAJA or directly under section 33 of the Constitution.

Ratio Decidendi

The Supreme Court of Appeal held that the High Court had jurisdiction to hear the matter because the respondent raised a constitutional issue, but that the termination of her employment by Transnet did not constitute administrative action under PAJA. The court found that Transnet, although an organ of state, acted in its capacity as employer and not in the exercise of public power or performance of a public function in terms of legislation when dismissing the respondent. The employment relationship was governed by contract and the LRA, not by administrative law. The court further held that the respondent could not bypass PAJA by relying directly on section 33 of the Constitution or the...

Court Disposition

Appeal upheld; application dismissed with costs.

Orders

  • The appeal is upheld with costs, including costs consequent upon the employment of two counsel.
  • The order of the court a quo is replaced with: 'The application is dismissed with costs.'