Makhanya v University of Zululand - LexisNexis South Africa

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36(and vice versa) and it is perfectly clear that the high court has jurisdiction inthis case. That was held in Fedlife and the high courts’ ordinary powers insuch cases are also expressly preserved by the BCEA.[92] It seems to me in those circumstances that that could not have beenthe ratio of the majority (but for Skweyiya J) in Chirwa because on thematerial before the court its order cannot be justified on that ground. Therebeing only one other possibility that presents itself I must conclude that theclaim was dismissed because the termination of Mrs Chirwa’s employmentwas found not to have been administrative action with the consequence thatthe claim was bad in law.[93] Once more, so it seems to me, Chirwa, like all the cases that precededit, was not about jurisdiction at all. It was about whether there was a goodcause of action. In my view the least said about jurisdiction in such cases thebetter because, once that red-herring is out of the way, courts will be betterplaced to focus on the substantive issue that arises in such cases, which iswhether, and if so in what circumstances, employees might or might nothave rights that arise outside the LRA.
37CONCLUSIONS[94] To summarise, I am driven to conclude that the ratio for the order thatwas made in Chirwa (both of the minority and the majority, but forSkweyiya J) was that the termination of an employment contract in thecircumstances in which it occurred in that case, does not constitute‘administrative action’, and for that reason the claim was bad in law and itwas dismissed on that ground. The further views of the majority that thehigh court had no jurisdiction to consider the claim was not the ratio for theorder that it made and what was said by various members of the court in thatregard is thus not binding upon us. In those circumstances we are free todispose of this appeal on conventional principles.[95] In this case the claim is for the enforcement of the common law rightof a contracting party to exact performance of the contract. We know thisbecause that is what it says in the particulars of claim. Whether the claim is agood one or a bad one is immaterial. Nor may a court thwart the pursuit ofthe claim by denying access to a forum that has been provided by law. Aclaim of that kind clearly falls within the ordinary power of the high courtthat is derived from the Constitution and the jurisdictional objection shouldhave failed. The appeal must accordingly succeed.THE SPECIAL DEFENCE TO THE CLAIM IN THIS CASE[96] Counsel for Makhanya submitted that if that were to be our finding weshould remit the matter to the high court to decide the remaining issues,including the defence raised in the other special plea, because only thejurisdictional issue is before us.
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 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: 35[88] While the ratio of a decisio
Page 39 and 40: 39agreement had not been establishe

Makhanya v University of Zululand - LexisNexis South Africa

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