THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No 138/08

In the matter between:

JAN-PAUL KRIEL

Appellant

and

THE LEGAL AID BOARD

First Respondent
J K M MOSIME NO

Second Respondent
P HUNDERMARK NO

Third Respondent
W LAMBLEY                                                                               Fourth Respondent
THE LAW SOCIETY OF THE
NORTHERN PROVINCES

Fifth Respondent

Neutral citation: J P Kriel v The Legal Aid Board (138/08) [2009]
ZASCA 76 (1 June 2009)

Coram:
Mpati P, Cachalia, Mhlantla JJA, Leach and Bosielo AJJA

Heard:
27 February 2009

Delivered:  1 June 2009

Summary: Unlawful dismissal ─ application for review of dismissal
under an employment contract correctly refused as dismissal
not amounting to administrative action.

ORDER
____________________________________________________________

On appeal from: High Court, Pretoria (Seriti J sitting as a court of first
instance).

The appeal is dismissed with costs.

JUDGMENT
___________________________________________________________

MHLANTLA JA et LEACH AJA (Mpati P, Cachalia JA and Bosielo
AJA concurring):

[1] This is an appeal against a judgment of the High Court, Pretoria
(Seriti J) dismissing the appellant's review application on the grounds that
the first respondent’s decision to terminate the appellant’s employment
following a disciplinary proceeding did not amount to administrative
action and that the high court did not have jurisdiction to entertain the
application. The appeal is with the leave of this court.

[2] Although the court below determined that it lacked the necessary
jurisdiction to hear the matter, in our view that was not the real issue that
fell to be decided. Relying on a number of alleged irregularities that we
shall detail in due course, the appellant relied upon the Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA’) to assert his right to fair
administrative action by bringing review proceedings under Uniform rule

53 for an order setting aside his dismissal. But the jurisdiction of the high
court to hear reviews is unquestionable, and the true issue for decision in
our view is not whether the high court had jurisdiction to determine the
appellant’s application for a review but whether the dismissal of the
appellant constituted ‘administrative action’ as envisaged by PAJA. In
order to determine that issue, we turn to the relevant facts.

[3] The appellant, an attorney, was employed by the first respondent
on 1 August 1999. As at July 2002, he was employed as the head of the
Pretoria Legal Justice Centre and as the principal attorney was
responsible for the supervision of 13 candidate attorneys. He was
dismissed on 9 September 2004 following a disciplinary enquiry. His
problems commenced during July 2002 when Ms Flavia Isola (Ms Isola),
who was appointed to act as Justice Centre Executive, moved into the
Pretoria offices where he was based. According to the appellant, the
officials of the first respondent, including Ms Isola, had demanded that he
and his candidate attorneys sign new service contracts. They refused to do
so and, instead of referring the dispute to senior personnel of the first
respondent, approached Dyasons Attorneys for legal advice and
assistance. The appellant accused Ms Isola of placing undue pressure on
the candidate attorneys to sign the contracts, which in effect, would
amount to a cession of their contracts to her.

[4] Ms Isola called a staff meeting on 3 September 2002 scheduled for
07h30. By 08h15, she had not arrived and the appellant, who had waited
for her with other staff members, decided to leave for another
appointment. The meeting proceeded in his absence. At some stage he
failed to sign the attendance register, a system which had been introduced
by him.  According to the appellant, these were isolated incidents. His

failure to attend the meeting and to sign the attendance register formed
the basis of the first two charges of misconduct that Ms Isola initiated
against him.

[5] While these charges against the appellant were pending the
appellant obtained information that Ms Isola had been a principal of ten
candidate attorneys at the first respondent’s Benoni office and had
abandoned them to take up employment at the first respondent’s Pretoria
office. He conveyed this information to his attorneys who addressed a
letter to the Law Society of the Northern Provinces to the effect that by
abandoning the candidate attorneys she had contravened section 6 of the
Attorneys Act 53 of 1979. The Law Society never responded to the letter.
Ms Isola disputed these allegations and caused further charges to be
instituted against the appellant in respect of this complaint against her.

[6] During December 2002 the appellant was suspended pending the
institution of a disciplinary enquiry. The enquiry commenced on 25
March 2003 and the second respondent, a labour consultant, was
appointed as chairperson. His letter of authority to act as such was issued
on 30 April 2003 by the CEO. At the end of the enquiry, the appellant
was found guilty of misconduct. The second respondent recommended
that the appellant be dismissed. A month later he retracted his
recommendation and replaced it with a sanction of dismissal. The
appellant noted an appeal against both the recommendation and sanction.
The internal appeal, which was heard by the third respondent, was
dismissed. The fourth respondent notified the appellant of his dismissal in
writing on 9 September 2004.

[7] The appellant thereafter launched review proceedings in the high
court where he, inter alia, sought an order reviewing, correcting and
setting aside the decisions of the second and fourth respondents
dismissing him from the employ of the first respondent. At the hearing of
the application a point of law relating to the court’s jurisdiction to hear
the matter was raised by the first respondent. The learned Judge was
requested to decide that issue first.

[8] The court below relied on this court’s judgment in Transnet Ltd
and others v Chirwa1 which it incorrectly construed as having found that
a dismissed employee of an organ of State could not seek a remedy in
terms of PAJA but ought to seek relief in terms of the Labour Relations
Act 66 of 1995 (LRA). Relying on Sidumo and another v Rustenburg
Platinum Mines Ltd and others2 where it was held that the CCMA
arbitration proceedings did not constitute administrative action, the judge
held that the CCMA proceedings had the same attributes as a disciplinary
enquiry. He concluded that the disciplinary hearing and dismissal of the
appellant did not constitute administrative action and that the Labour
Court had exclusive jurisdiction to deal with the matter. He accordingly
dismissed the application.

[9] Those two findings are inconsistent. If the court below had no
jurisdiction to consider the claim then that ought to have been the end of
the matter and by its own finding on that issue it had no power to rule on
the merits. This court very recently said that the jurisdictional finding in
Chirwa was not the ratio for its order.3 Clearly the high court had

1 2007 (2) SA 198 (SCA).
2 2008 (2) SA 24 (CC); [2007] ZACC 22.
3 Makhanya v University of Zululand [2009] ZASCA 69.

jurisdiction to consider the claim, and as we said earlier, the real issue is
whether the dismissal constituted administrative action.

[10] In this court the appellant sought an order setting aside the finding
of the court below. In addition he sought an order setting aside the
findings of the disciplinary and appeal hearings and an order for his
reinstatement.

[11] It was incumbent upon the appellant to clearly set out in his
founding papers the cause of action upon which he relied. Unfortunately,
he did not do so. He, inter alia, stated that his application was brought in
terms of Uniform rule 53 read with the provisions of PAJA; he relied
upon the provisions of the Protected Disclosures Act 26 of 2000 and
alleged that the report about Ms Isola's conduct amounted to a protected
disclosure in terms of the Act. He also alleged that his dismissal and the
disciplinary process were unfair because the second respondent did not
have the requisite authority to act as chairperson of the enquiry. He
further relied on contractual rights, the common law, the Constitution and
upon the provisions of eight other statutes. He however failed to set out
the specific constitutional rights which had allegedly been violated, nor
did he set out the facts supporting such a conclusion. However,
essentially his cause of action is that:
(a)
His dismissal was unlawful and thus void. He was thus entitled to
relief in terms of PAJA;
(b)   His dismissal was unfair and unlawful as, due to an improper
delegation of authority, the chairperson of the disciplinary enquiry was
not entitled to act as such; and
(c)    His dismissal was unlawful and unfair as his report to the Law
Society had been protected under the Protected Disclosures Act.

[12]  It is common cause that the first respondent is an organ of State. It
is trite that the appellant can only be entitled to relief in terms of PAJA if
his dismissal amounted to administrative action. Counsel for the appellant
contended that the dismissal of the appellant was unlawful and void. It
was thus contended on behalf of the appellant that the first respondent
derived its power to dismiss from the Legal Aid Act 22 of 1969; that the
cause of action was in terms of the contract of employment and the
statute and that the dismissal under the Legal Aid Act therefore
constituted administrative action.

[13] This argument is without merit. The question whether an unfair
dismissal in the public sector amounts to administrative action has been
settled by the Constitutional Court in Chirwa v Transnet Ltd and others.4
The Constitutional Court held that public servants now enjoy the same
protection afforded employees in the private sector under the LRA. The
court further held that a public service employee could not have two
causes of action, one under the LRA and the other under PAJA, and that
the decision of an organ of state to dismiss an employee is not an
administrative act but involves the exercise of a contractual power.

[14] Writing for the majority in Chirwa Ngcobo J held:

'The subject-matter of the power involved here is the termination of a contract of
employment for poor work performance. The source of the power is the employment
contract between the applicant and Transnet. The nature of the power involved here is
therefore contractual. The fact that Transnet is a creature of statute does not detract
from the fact that in terminating the applicant's contract of employment, it was
exercising its contractual power. It does not involve the implementation of legislation

4 2008 (4) SA 367 (CC); [2007] ZACC 23.

which constitutes administrative action. The conduct of Transnet in terminating the
employment contract does not, in my view, constitute administration. It is more
concerned with labour and employment relations. The mere fact that Transnet is an
organ of State which exercises public power does not transform its conduct in
terminating the applicant's employment contract into administrative action. Section 33
is not concerned with every act of administration performed by an organ of State. It
follows therefore that the conduct of Transnet did not constitute administrative action
under s 33.
Support for the view that the termination of the employment of a public sector
employee does not constitute administrative action under section 33 can be found in
the structure of our Constitution. The Constitution draws a clear distinction between
administrative action on the one hand and employment and labour relations on the
other. It recognises that employment and labour relations and administrative action
are two different areas of law . . .
As pointed out earlier, the line of cases which hold that the power to dismiss amounts
to administrative action rely on Zenzile.5 This case and its progeny must be
understood in the light of our history. Historically, recourse was had to administrative
law in order to protect employees who did not enjoy the protection that private sector
employees enjoyed. Since the advent of the new constitutional order, all that has
changed. Section 23 of the Constitution guarantees to every employee, including
public sector employees, the right to fair labour practices. The LRA, the Employment
Equity Act, 1998, and the Basic Conditions of Employment Act, 1997, have codified
labour and employment rights. The purpose of the LRA and the Basic Conditions of
Employment Act is to give effect to and regulate the fundamental right to fair labour
practices conferred by section 23 of the Constitution. Both the LRA and the Basic
Conditions of Employment Act that were enacted to give effect to section 23, now
govern the public sector employees, except those who are specifically excluded from
its provisions. Labour and employment rights such as the right to a fair hearing,
substantive fairness and remedies for non-compliance are now codified in the LRA. It
is no longer necessary therefore to treat public sector employees differently and
subject them to the protection of administrative law.'6

5 Administrator, Transvaal and others v Zenzile and others 1991 (1) SA 21 (A).
6At paras 142, 143 and 148.

[15] The decision in Chirwa  led to this court, in circumstances not
dissimilar to the present, holding in Transman (Pty) Ltd v Dick and
Another7 that it could not review a termination of an employee’s
employment as it did not constitute administrative action.    A similar
conclusion was reached in Makambi v MEC for Education, Eastern
Cape.8

[16]   Counsel for the appellant however argued that Chirwa was
distinguishable from the present matter as the employee had there based
her claim solely upon the alleged unreasonableness of her dismissal and
the provisions of the LRA whereas the appellant had not  relied solely on
the unreasonableness of his dismissal but also on the law of contract as
well as the improper delegation of authority to the second respondent and
the irregular and unlawful actions and decisions of the respondents.

[17]   This argument cannot be accepted.   In Chirwa the appellant in fact
relied on far more than the provisions of the LRA and an allegation that
her dismissal had been unreasonable or unfair. As was pertinently
highlighted by Farlam JA in Makambi, Mrs Chirwa had also contended
that her dismissal constituted administrative action under PAJA and s 33
of the Constitution;  she had further alleged that the person who had taken
the decision which she sought to impugn had been biased; she had
complained that she had been prevented from obtaining assistance or
representation; she had alleged that there had been non-compliance with a
material procedure prescribed by an empowering provision; and, finally,
she had averred that certain provisions of the LRA had been violated.

7 [2009] ZASCA 38 at [16] - [19] and [23] - [27].
8 2008 (5) SA 449 (SCA); [2008] ZASCA 61.

[18]   Mrs Chirwa’s claim was in many respects strikingly similar to that
in the present matter. There is therefore no reason for the principle
expounded in Chirwa viz. that a dismissal from employment is not an
administrative act which can be reviewed, followed in both Makambi and
Transman, not to apply in the present case.

[19]       This conclusion in our view makes it unnecessary to decide the
remaining issues such as whether the appellant’s attempt to report Ms
Isola to the Law Society was a protected disclosure under the Protected
Disclosures Act 26 of 2000. The appellant’s allegation that such report
had been a protected disclosure was merely grist to the mill in respect of
his contention that he had been unfairly treated and that the decision to
dismiss him had been taken in the light of irrelevant considerations.
Indeed his argument is now that as the Law Society had never received
his complaint there had been no disclosure, and that he should therefore
not have been found guilty of disloyalty as he had not reported Ms Isola
to the Law Society. But even if the report was protected, and even if it
was impermissibly taken into account against the appellant, that in itself
did not give rise to a right of review. The fact remains that as the
dismissal did not constitute administrative action and its legality or
otherwise was not something to be determined by way of review
proceedings under PAJA.

[20]    By a parity of reasoning, it is also unnecessary to decide whether
the second respondent lacked the authority to adjudicate at the
disciplinary inquiry and whether there had been any impermissible
delegations of authority. The resolution of these issues is irrelevant to
whether the decision to dismiss amounted to administrative action which
could be reviewed.

[21]   Of course this does not mean that the appellant was left without a
remedy as it was open to him to challenge the termination of his
employment under the LRA. It may well have been permissible for him
to have brought a review of his dismissal in the Labour Court under s
158(1)(g) of that Act which provides for a review of any decision taken
or act performed ‘by the State as employer, on such grounds as are
permissible in law’. It was certainly open to him to contend that the
termination of his employment had constituted an unfair dismissal as
envisaged by s 185 and s 186 of the LRA.  In particular, if his
employment had indeed been terminated as he was a white Afrikaner as
he alleged had been the case, it would probably have amounted to an
automatically unfair dismissal under s 187(1)(f). Similarly, if his report to
the Law Society was protected under the Protected Disclosures Act, to
dismiss him as a result would probably also be automatically unfair under
s 187(1)(h).  By the same token, many of the other allegations relied on
by the appellant, if accepted, even if not necessarily leading to a finding
that his dismissal had been automatically unfair under s 187, could well
justify the conclusion that it was otherwise unfair under s 188.

[22]   It is both unnecessary and undesirable for this court to comment on
what the outcome of such proceedings would have been had they been
instituted, but the appellant clearly had remedies available to him under
the LRA which he could have brought in the Labour Court. For some
reason the appellant decided not to follow that route but to seek review
proceedings in the high court which, for the reasons given, could not
succeed.

[23]   Consequently, the court a quo correctly dismissed the application,
not on the basis that it lacked jurisdiction but as the appellant’s dismissal

from employment was not an administrative act and he had therefore
failed to establish his cause of action. Be that as it may, the order
dismissing the application cannot be disturbed.

[24] In the result the appeal is dismissed with costs.

_______________
N Z MHLANTLA
JUDGE OF APPEAL

___________________________
LE LEACH

ACTING JUDGE OF APPEAL

Appearances:

For Appellant

Ms A van der Walt

Ms S van der Walt

McLachlan & Co Inc, Garsfontein, Pretoria

Naudes Attorneys, Bloemfontein

For First to Fourth
Respondents

R G Beaton

Stegmanns Inc, Hatfield, Pretoria

Claude Reid Inc, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

PRESS RELEASE

1 June 2009

STATUS: Immediate

Jan-Paul Kriel v The Legal Aid Board and others
Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal today dismissed an appeal against a judgment
of the Pretoria High Court. The court held that the dismissal of the appellant
did not amount to an administrative act and he had therefore failed to
establish his cause of action.

The appellant, an attorney employed by the first respondent, was dismissed
following a disciplinary enquiry. The appellant relied on the provisions of the
Promotion of Administrative Justice Act 3 of 2000 to assert his right to fair
administrative action for an order setting aside his dismissal. He launched
proceedings in the high court where he sought an order to review, correct and
set aside the decision to dismiss him. A point of law relating to the court’s
jurisdiction to hear the matter was raised. In dismissing the application, the
high court held that the disciplinary hearing and dismissal did not constitute
administrative action and that the Labour Court had exclusive jurisdiction to
deal with the matter.

The SCA held that the true issue before it was not so much whether the high
court had jurisdiction to determine the application but rather whether the
dismissal constituted ‘administrative action’ as envisaged by PAJA. The SCA
held that a dismissal from employment is not an administrative act which can
be reviewed. It held further that the appellant was not left without a remedy as
it was open to him to challenge the termination under the Labour Relations
Act and to have brought a review of his dismissal in the Labour Court in terms
of section 158(1)(g).

The SCA concluded that the court a quo correctly dismissed the application,
not on the basis that it lacked jurisdiction but due to the fact that the dismissal
of the appellant did not constitute administrative action.

- - ends - -