NOT REPORTABLE 
OF INTEREST TO OTHER JUDGES

IN THE HIGH COURT OF SOUTH AFRICA 
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between:

JUDGMENT

GAUNTLETT, A J:

The issues
Two fundamental matters are raised by this application, argued yesterday. The first involves, again, the respective jurisdictions of the High Court and the Labour Court, in the light in particular of recent Constitutional Court and Supreme Court of Appeal rulings in that respect. The second relates to the circumstances in which a court will intervene, by way of interdict or declaratory order, in the unterminated proceedings of another body, in this case, a disciplinary inquiry.

The applicant is the Director; Corporate Services of the first respondent, a municipal council. The second respondent is an independent attorney specialising in labour matters, engaged as the chairman of a disciplinary inquiry ("the inquiry") into the conduct of the applicant as an employee of the first respondent.

In the early evening of Monday, 3 November 2008, the applicant procured an urgent interim order from this court suspending the inquiry, pending the return day of an application for final relief. The initial order appears thereafter to have been adjusted and expanded, evidently following discussion between the parties and agreement between them relating to a timeframe. The ultimate order was made in these terms:

1. 	Dat die dissiplinere verkoor van die applikant voor die tweede respondent opgeskort word hangende die keerdag van die bevel nisi in die volgende paragraaf.

2.1 dat die dissiplinere verhoor van die appiikant voor die tweede respondent onbepaald uitgestel word; in die aiternatief tot 1.1 [sic] hierbo.

2.2 dat gemeide dissiplinere verhoor uitgestel word tot *n datum wat gereel word tussen die regsverteenwoordigers van die partye, tnaar nie minder as agt weke vanaf datum hiervan nie, op die voigende voorwaardes:-

2.2.1 dat die eerste respondent die volledige lys van inligting en dokumente waarna verwys word in Aanhangsel NLM4 blootle en beskikbaar stel binne 14 dae hiervan;

2.2.2 dat die appiikant binne 14 dae na sodanige blootlegging *n versoek om nadere besonderhede tot die klagstaat mag rig;

2.2.3    dat   die   eerste   respondent   binne   14   dae   op sodanige versoek reageer; en

2.2.4 dat die appiikant se skorsing uit diens van die eerste respondent, met voile betaling, verleng word tot en met afhandeling van die dissiplinere verhoor.

"2.1       dat eerste respondent die volledige lys van inligting en dokumente aangevra... blootle en beskikbaar stel...
2.2	dat die applikant geregtig sal wees om binne 14 dae na 	sodanige blootlegging *n versoek tot nadere besonderhede 	tot eerste respondent se klagstaat aan eerste respondent te 	mag rig;
2.3	dat eerste respondent binne 14 dae nadat hy sodanige 	versoek tot n ad ere besonderhede ontvang het, volledige 	daarop moet antwoord;
2.4	dat die dissiplinere verboor van applikant voor tweede 	respondent, of enige under voorsittende beampte wai eerste 	respondent mag aanwys, heropen word...

Thus in short, the applicant seeks final relief in the form of a declaratory order of invalidity in relation to the disciplinary inquiry conducted to date, alternatively a final mandatory interdict in the respects specified.

The latest amendment, it was explained in argument, has been occasioned by two developments: firstly that the inquiry continued, the second respondent completing the hearing of evidence by the first respondent on the evening of 3 November, while the High

It seems to me that the logical sequence of the issues between the parties is as follows:

2.	If not, does this court have jurisdiction to grant the relief sought?
3.	
Urgency

Is first respondent correct that this court lacks jurisdiction to grant the declaratory order and mandatory interdict the applicant seeks?

"157 Jurisdiction of Labour Court
(1)	Subject to the Constitution and section 173 and except 	where this Act provides otherwise, the Labour Court has 	exclusive jurisdiction in respect of all matters that 	elsewhere in terms of this Act or in terms of any other 	law are to be determined by the Labour Court,
(2)	The Labour Court has concurrent jurisdiction with the 	High Court in respect of any alleged or threatened 	violation of any fundamental right entrenched in Chapter 2 	of the Constitution of the Republic of South Africa, 1996, 	and arising from -

(a)	employment from Labour Relations;

(b)	any dispute over the constitutionality of any executive or 	administrative act or conduct, or any threatened executive 	of administrative act or conduct, by the State in its 	capacity as an employer;
(c)	the application of any law for the administration of which 	the minister is responsible."

The plurality of voices in the Supreme Court of Appeal and the Constitutional Court on this issue has compounded an inherently difficult inquiry.        The problem is that it is evident that the intention of the LRA itself is not to encompass in an exclusive dealing every potential aspect of the relations which arise between employer and employee, and hence, what is loosely termed employment law. On the other hand, it is evident that, mindful of the difficulties which had emerged in the past, the frarners of the LRA had the clear aim of creating an exclusive legal regime for matters which properly fall within the purview of the Act, and hence of the curial structure it creates, with a view to avoiding the worst anomalies of past legislative blurring.

1.	By pre-constitutional principle and authority, it is clear, the 	High Court has the power to grant declaratory orders and 	interdicts, relating to illegal and unlawful acts.
2.	At the level of principle, this would apply also to the 	conducting of disciplinary inquiries conducted as between 	employer and employee, whether statutory or otherwise.
3.	The LRA, however, has sought (in section 157(1)} to create an 	exclusive jurisdiction for the Labour Court in relation to 	matters within the purview of that Act, other than claims to 	constitutional rights made in terms of section 157{2). The 	former provision is both a dominant and default provision.
4.	Where a court is faced with a dispute as to whether a case properly falls within section 157(1) or (2), it will in each instance have to establish firstly whether that case involves a "matter" regulated by the LRA, and secondly whether, objectively characterised, it falls within the dominant and default provision of section 157(1), or within the excision created by section 157(2).
5.	In that regard, the court will have to put substance over form, bear in mind the danger of tactical contrivance in the presentation of cases, and apply, if necessary, the criterion of substantiality to matters where certain facts may point in one direction and others in another.

Against this background I turn to the relevant facts of the present matter in endeavouring to answer which side of the line I believe it falls.

The founding affidavit was clearly conceived in circumstances of urgency. I am mindful of that. The applicant did not however seek, in the interim order he himself proposed to the duty judge on 3 November, nor in the later adapted form of it, provision for an opportunity to supplement his founding papers. Nor did he thereafter, before the end of the relatively leisurely period of two weeks accorded for the filing of answering affidavits, seek to preempt the latter by supplementing the founding affidavits in any way. Only in reply - the answers by the respondents, including first respondent's jurisdictional objection, now to hand - did the applicant seek to make out the case on which he now primarily purports to rely. This is that, he contends, his constitutional rights - more particularly to administrative fairness - have been traduced by the conduct of the inquiry. It is on that basis, the applicant now contends, that the doors of the High Court stand wide to him, and a concurrence of jurisdiction with the Labour Court exists.

Counsel for the applicant fairly conceded in oral argument that circumstances such as these - where the applicant, had he wished, could have sought to supplement his case, and had ample opportunity to do so; where the parties themselves agreed on a timeframe for the conduct of these proceedings; where three sets of papers have now been filed before me; where I have been asked to determine the matter on the papers as they stand;   and with the replying affidavit filed just one court day before the hearing -militate against a new case made out on the papers in reply being permitted.

This is especially so when the founding affidavit is itself mindful of the jurisdictional problem. Paragraph 3 indeed asserts that the High Court has inherent jurisdiction, and:

The founding affidavit goes on to sketch the applicant's employment history, and asserts that in his employment he has been victimised:
“om van my ontslae te raak sodat my pos gevul kan word" 
by another with other political affiliations.

The case which is thus made out in the founding affidavit is one of alleged gross irregularities in a disciplinary inquiry (to which I revert later) conducted pursuant to the employment relationship. The applicant invokes, by implication, the right to be treated fairly in the inquiry and asserts that if the inquiry is completed, as matters currently stand he faces the prospect of being dismissed from his employment.

Section 158 against that background is then in these terms:

"158 Powers of Labour Court
(1)   The Labour Court may -
(a)   make any appropriate order, including -

(Hi) an order directing the performance of any particular act which order, when implemented, will remedy a wrong and give effect to the primary objects of this Act;
(iv)    a declaratory order.

(b)   order compliance with any provision of this Act;

(j) deal with all matters necessary or incidental to performing its functions in terms of this Act or any other law."

The suggestion in argument that the Labour Court is not as generally amenable to, or as available for, urgent proceedings at the

“ in the rare cases where injustice might otherwise result or where justice might not by other means be attained."

Applicant's argument in my view fails in this respect, because his complaints do not establish that injustice stands to result, in the sense contemplated, nor that justice might not by other means be attained, also in the sense contemplated I say this for the following reasons.

This notwithstanding, I was invited nonetheless to infer the allegation of bias. I cannot do so from the factual allegations made: that the second respondent continued to sit, despite being notified of the impending application to be made to the High Court. It is entirely open in law to persons in the position of second respondent to adopt the attitude that they are currently entitled to continue to sit, and will continue to do so until they are otherwise directed by a court of competent jurisdiction. The transcript of the proceedings shows that this stance was appropriately and clearly conveyed to the applicant's representative. This unfortunately elicited the less courteous and even less considered reply that this was exactly what the applicant was hoping for. That answer speaks volumes for the tactical and misguidedly assumptive approach adopted by the applicant - or on his behalf - in this matter.

Cumulative unfairness ?

But that again is not the end of the matter. The applicant also alleges that he was treated "unfairly" in a number of respects.

The second is that a renewed application for materially the same relief was unfairly dismissed on Monday 3 November (he was now also permitted legal representation). The complaint is that the application was not even read by the second respondent. This is correct - but the applicant forbears todisclose that (as the transcript shows) the second respondent inquired as to its ambit. When told that it sought to revisit an application made one (hearing) day before, the second respondent declined to entertain it - other than in relation to a claim for discovery, which he directed first be made to the first respondent and which he said he would determine if not resolved. (This latter aspect was not acknowledged either in the applicant's affidavit or the argument on his behalf: it was necessary for the court to establish the real facts from the transcript of proceedings.)

But, it is said, there has already been a fatal unfairness because the application for a postponement first lodged on 31 October - when the hearing itself commenced - was granted not for the indefinite period sought, nor the two months later suggested, but only until after the intervening weekend (that is, until 3 November).

Relations Act. If his employment rights pending the determination of those proceedings for any reason are in issue - for instance, because the first respondent, notwithstanding the institution of any arbitral or review procedure, seeks to act immediately and finally upon any decision it may make as regards sanctions - his ability to seek relief is clear.

Order

The application is dismissed with costs, including the costs of two counsel.

GAUNTLETT, AJ

Counsel for the applicant			TN POTGIETER, SC
							(with him, H Loots)

Counsel for the first respondent		DF IRISH, SC
							(with him R Steltzner)

No appearance for the second respondent.