Makhanya v University of Zululand - LexisNexis South Africa

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28should be the subject only of claims under the LRA. That is also the constanttheme of the majority in Chirwa and the following is an example of whatwas said in that regard: 34‘Consistently with this objective the LRA brings all employees, whether employed in thepublic sector or private sector under it, except those specifically excluded. The powersgiven to the Labour Court under s 158(1)(h) to review the executive or administrativeacts of the State as an employer give effect to the intention to bring public sectoremployees under one comprehensive framework of law governing all employees. So toois the repeal of legislation such as the Public Service Labour Relations Act and theEducation Labour Relations Act. One of the manifest objects of the LRA is therefore tosubject all employees, whether in the public sector or the private sector, to its provisions,except those who are specifically excluded from its operation.’[69] If that is indeed the purpose of the legislation it would justify aconstruction of the legislation such as to deny to public sector employeesany rights other than those provided for in the LRA, which is theconstruction that the majority placed upon it. That construction, with itsconsequence that a claim arising outside the LRA is bad in law, will give fulleffect to that legislative purpose. On that finding alone any further claim thatmight yet be made along similar lines (whether in the high court or in theLabour Court) will be doomed to failure on that ground and the claimant willbe confined to pursuing his or her LRA rights only. But it begs the questionwhy the legislature should have denied a claimant his or her ordinary right toapproach a high court to consider such a claim, if only to have it dismissedbecause the claim is bad. It would be most odd if the legislature, havingresolved to deny employees rights arising outside the LRA, should also barthe courts from declaring that an employee has no such rights.34Para 102.
29[70] The explanation advanced by Cheadle for the jurisdictional findingarises from what he says the majority did in that regard. He says that themajority ‘characterised the decision to terminate Ms Chirwa’s employmentas a labour practice rather than as administrative action.’ What he says, as Iunderstand it, is that the majority regarded the claim that was before it as aclaim for the enforcement of LRA rights (enforceable only in a LabourForum) and not as a claim to enforce a constitutional right.[71] Before turning to that explanation there are two observations that Ineed to make. The first is that the claim that is before a court is a matter offact. When a claimant says that the claim arises from the infringement of thecommon law right to enforce a contract, then that is the claim, as a fact, andthe court must deal with it accordingly. When a claimant says that the claimis to enforce a right that is created by the LRA, then that is the claim that thecourt has before it, as a fact. When he or she says that the claim is to enforcea right derived from the Constitution then, as a fact, that is the claim. Thatthe claim might be a bad claim is beside the point.[72] The second observation is that a claim, which exists as a fact, is notcapable of being converted into a claim of a different kind by the mere useof language. Yet that is often what is sought to be done under the guise ofwhat is called ‘characterising’ the claim. Where that word is used to mean‘describing the distinctive character of’ the claim that is before the court, 35 asa fact, then its use is unexceptionable. But when it is used to describe analchemical process that purports to convert the claim into a claim of another35Concise Oxford Dictionary.
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 10 and 11: 10[20] Much the same happened to Ms
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 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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