Makhanya v University of Zululand - LexisNexis South Africa

32right, unlike the right that was asserted in Chirwa, but that is immaterial,because as I have said, jurisdiction is not dependent upon whether the claimis good or bad.[79] Both in Chirwa and in this case the right that was (and is now)asserted, is not an LRA right, but is one that falls within the ordinary powerof the high court to enforce. In this case it falls within the ordinary powerthat the high courts have to enforce contractual rights (expressly preservedby the BCEA). And in Chirwa it fell within the ordinary power that the highcourts have to enforce constitutional rights (expressly conferred by theConstitution and preserved in s 157(2) of the LRA).[80] Thus in all material respects the present claim corresponds with theclaim in Chirwa notwithstanding the factual distinctions. If the finding onthe jurisdictional issue in Chirwa was the ratio for the order that was madethen we are bound to apply it in this case and to dismiss the claim on thatground as the court below did. (That question did not arise in Makambibecause the claim in that case fell to be dismissed in any event.)[81] But what needs to be borne in mind, as Cameron JA reminds us inTrue Motives, 39 is that what binds a lower court is only the ratio of thedecision of a higher court and not what might have been said en passant(though views of a higher court that are expressed in that way are alwaysinstructive). My colleague dealt comprehensively in that case with theexplanation that Schreiner JA gave in Pretoria City Council v Levinson 40 of39See para 7 above.401949 (3) SA 305 (A).