SABC CEO Dali Mpofu's court action challenging his suspension has brought to light conflicting judgments on the jurisdiction of the high court to hear labour disputes, writes Ernest Mabuza in Business Day.

Ernest Mabuza writes in  Business Day:

SABC CEO Dali Mpofu's court action challenging his suspension has brought to light conflicting judgments on the jurisdiction of the high court to hear labour disputes.

Two conflicting Constitutional Court rulings on the jurisdiction of the high court in labour disputes have left the jurisdiction issue unresolved.

Judge Antonie Gildenhuys had this problem with Mpofu's application for the special meetings of the board of directors of the SABC on June 2 and June 11 to be declared unlawful and resolutions taken on those dates to be of no force or effect.

SABC CEO Dali Mpofu's court action challenging his suspension has brought to light conflicting judgments on the jurisdiction of the high court to hear labour disputes.Gildenhuys dismissed Mpofu's application last week.

The board's advocate argued Mpofu's complaint was entirely an employment matter in which the high court had no jurisdiction or ought to decline to exercise its jurisdiction.

This issue of jurisdiction in disputes involving employment and labour relations has for long been the subject of differing legal opinion.

In his judgment, Gildenhuys said that in the cases of Fredericks and Chirwa, heard by the Constitutional Court in 2001 and 2007 respectively, the applicants were employed by public bodies. They complained about decisions taken by their employers arising out of their employment relationship.

"In the Fredericks case, it was held that the jurisdiction of the high court to determine disputes arising from alleged infringements of constitutional rights by the state acting in its capacity as an employer was not ousted by section 157(1) of the Labour Relations Act (LRA) simply because the dispute was one falling within the overall sphere of employment relations.

"In the Chirwa case … it was held that in instances of conduct by an organ of state in its capacity as an employer, the primary purposes of section 157(2) was not to confer jurisdiction on high courts to deal with employment disputes but to empower the Labour Court to adjudicate disputes founded on the provisions of the bill of rights that arise from employment relations."

Gildenhuys said the dichotomy between the two judgments received the attention of the Supreme Court of Appeal in its May 29 decision on the case of Nomtha Makambi against the Eastern Cape education MEC. In that case, the appeal court had to decide whether the high court had jurisdiction to review the termination of payments and benefits of a teacher in a state school. The appeal court dismissed her application.

Gildenhuys said the appeal court judgment left the jurisdiction issue unresolved. But Gildenhuys said the reasoning in Chirwa could not be thrust on him in Mpofu's case. In the Chirwa case, the Constitutional Court held that Petronella Chirwa's claim was based on an allegation of an unfair dismissal for alleged poor work performance, and so should have followed to the end the procedures and remedies under the LRA.

The court also found the high court did not have concurrent jurisdiction with the Labour Court in that matter.

"The facts are different. I am called upon to decide the legal validity of the decision to suspend Mr Mpofu, not to pronounce on the merits of the fairness of the decision.

"In other words, I must determine whether the decision taken by the nonexecutive directors is in law a decision of the SABC board.

"There is no specific provision in the Labour Relations Act for dealing with that kind of issue. I can think of no policy consideration that such an issue belongs in the Labour Court. The issue involves company law more than labour law," Gildenhuys said.

Gildenhuys said the high court had jurisdiction to determine the validity of the meetings and the decisions taken.

"It does not extend — because of Mr Mpofu's right to challenge the fairness of the decision to suspend him before the Commission for Conciliation, Mediation and Arbitration — to any of his complaints concerning the fairness thereof.

"It would follow that his complaints of unfair procedure, malice, ulterior motives, and the like, might well be beyond the jurisdiction of this court. I am not called upon to decide this question, and I refrain from doing so."

In her application, Makambi claimed her employer infringed her right to just administrative action, having its source in section 33 of the constitution and codified in the Promotion of Administrative Justice Act.

Her employer succeeded in objecting to the jurisdiction of that court to consider her claim.

The appeal court heard the appeal and dismissed it and the Constitutional Court unanimously dismissed her appeal.

Eight members of the Constitutional Court held the high court had no jurisdiction to consider the claim. Seven members held the dismissal did not constitute administrative action while a minority led by Chief Justice Pius Langa held that the high court had jurisdiction to consider the claim but that the dismissal did not constitute administrative action. 
 
"It is the decision of the majority on the jurisdictional question that raises the difficulty in this case. We are now confronted by two decisions of the Constitutional Court — its unanimous decision in Fredericks' case and its majority decision in Chirwa's — that seem to oblige us to go in diametrically opposed directions on that issue," Judge Robert Nugent noted in the Makambi judgment.

* Mabuza is Business Day's Legal Affairs Correspondent.  This article first appeared in Business Day on 7 August 2008.