Makhanya v University of Zululand - LexisNexis South Africa

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10[20] Much the same happened to Ms Chirwa, who was employed in thepublic sector. When Transnet terminated her employment Ms Chirwa at firstpursued a claim for infringement of her LRA right in the CCMA (she did nottake it to conclusion but that is not material). She then instituted a claim inthe high court for infringement of her constitutional right. It was because MsChirwa had pursued a claim for enforcement of her LRA right (in theCCMA) that the majority concluded, as I understand it, that the high courthad no power to consider her claim for enforcement of her constitutionalright.[21] But for the fact that the right that was asserted in each case wasdifferent – which is not material to the jurisdictional issue – the two casesare materially indistinguishable. It seems to me that what has confusedmatters in both cases is that a claim for enforcement of an LRA right hasbecome muddled with a separate claim for the enforcement of a right arisingoutside the LRA (in this case a claim for the enforcement of a contractualright and in Chirwa a claim for enforcement of a constitutional right).JURISDICTION GENERALLY[22] The power of a court to entertain a claim derives from the power thatall organised states assume to themselves to bring to an end disputesamongst their inhabitants that are capable of being resolved by resort to law.Disputes of that kind are brought to an end either by upholding a claim thatis brought before it by a claimant or by dismissing the claim. By so doing
11the order either permits or denies to the claimant the right to call into playthe apparatus of the state to enforce the claim.[23] The original power of the state to bring disputes to an end (its judicialauthority) is assigned in this country to the high courts by the Constitution. 18(I speak in general terms and do not deal with limitations that are notrelevant to this case.) Judicial power is the power both to uphold and todismiss a claim. It is sometimes overlooked that the dismissal of a claim isas much an exercise of judicial power as is the upholding of claim. A courtthat has no power to consider a claim has no power to do either (other thanto dismiss the claim for want of jurisdiction).[24] In general the high courts thus exercise the original authority of thestate to resolve all disputes, of any kind, that are capable of being resolvedby a resort to law, unless that authority has been assigned to another court.When a high court resolves a contractual claim it exercises that originaljurisdiction. When it considers a claim for enforcement of a constitutionalright it exercises that original jurisdiction. So too when it enforces astatutory right.[25] But the state might also create special courts to resolve disputes of aparticular kind. Generally those will be disputes concerning the infringementof rights that are created by the particular statute that creates the specialcourt (though that will not always be so). When a statute confers judicialpower upon a special court it will do so in one of two ways. It will do soeither by (a) conferring power on the special court and simultaneously (b)18Section 169 of the Constitution quoted above. Other courts have such powers as may be assigned to themby legislation.
Page 1 and 2: THE SUPREME COURT OF APPEALREPUBLIC
Page 4 and 5: 4[4] Whatever explanation is given
Page 6 and 7: 6ratio for the order that was made.
Page 8 and 9: 8ordinary power to consider claims
Page 12 and 13: 12excluding the ordinary power of t
Page 14 and 15: 14[31] The disposal of a jurisdicti
Page 16 and 17: 16Training, Eastern Cape, 23 and th
Page 18 and 19: 18TWO CLAIMS ARISING FROM COMMON FA
Page 20 and 21: 20occurred), could a plea of res ju
Page 22 and 23: 22present purposes. Upon that suppo
Page 24 and 25: 24The Second Unsound Proposition: A
Page 26 and 27: 26[62] The approach taken by the co
Page 28 and 29: 28should be the subject only of cla
Page 31 and 32: 31court found itself able to find t
Page 33 and 34: 33what constitutes the ratio of a c
Page 35 and 36: 35[88] While the ratio of a decisio
Page 37 and 38: 37CONCLUSIONS[94] To summarise, I a
Page 39 and 40: 39agreement had not been establishe

Makhanya v University of Zululand - LexisNexis South Africa

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