THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case number: 638/06
Reportable

In the matter between:

NOMTHA MAKAMBI
APPELLANT

and

THE MEMBER OF THE EXECUTIVE COUNCIL
THE DEPARTMENT OF EDUCATION,
EASTERN CAPE PROVINCE
RESPONDENT

CORAM:
FARLAM, NUGENT, MLAMBO, MAYA JJA et MHLANTLA
AJA

HEARD:
18 MARCH 2008

DELIVERED:
29 MAY 2008

SUMMARY:
Constitutional Law - whether High Court has jurisdiction to review
termination of emoluments and benefits of educator in state school.

Neutral citation: This judgment may be referred to as Makambi v MEC, Education,
Eastern Cape (638/06) [2008] ZASCA 61 (29 May 2008).

__________________________________________________

FARLAM JA

[1] This is an appeal from a judgment of Manjezi AJ sitting in the Bhisho
High Court.

[2] The appellant in this matter is an educator. She started her teaching
career with the Eastern Cape Department of Education in May 1997 when she
took up a temporary contract appointment at the Kubusie State School near
Stutterheim in the King William’s Town district. Although the period of her initial
appointment was from 22 May 1997 to 31 December 1997 she continued to
work at that school until early in 2004 when she was advised by the department
that she would be transferred to the Tyilekani Primary School.

[3] The letter she received from the department, which was dated 31 March
2004, read as follows:
‘RE: TEMPORARY PLACEMENT AS AN ADDITIONAL EDUCATOR:
PERSAL NO 53208862 YOURSELF: Ms NOMTHA MAKAMBI
1.
Kindly be informed that you will be placed additional to the establishment of TYILEKANI
PRIMARY SCHOOL until further notice.

2.
Your co-operation is highly appreciated.’

[4] The appellant thereafter discharged her duties as an educator at the
Tyilekani Primary School. In June 2004 she received a further letter from the
department dated 15 June 2004. In the heading to this letter she was reflected
as being on the staff establishment of the Kubusie State Primary School, the
school at which she had taught before being transferred to the Tyilekani Farm
School. The letter read as follows:
‘DECLARING YOURSELF IN ADDITION OF THE STAFF ESTABLISHMENT OF THE ABOVE
SHOOL

The post allocation of schools has been revised with effect from 1 January 2004.

After following the prescribed steps, you have been declared as in addition and must be
redeployed.

If it is known that a vacancy will occur in your school within six months, you will be considered
for the post and absorption will depend on the requirements of the post and your experience
and qualifications.

If you cannot be absorbed in a vacancy in your school the opportunity will be afforded to you to
apply for posts elsewhere in the District through a closed vacancy bulletin.

Meanwhile you are required to continue at your current school and to perform the duties that the
Principal requires you to perform, until you receive your placement letter.’

[5] From the commencement of the appellant’s employment in 1997 she
received her monthly emoluments and other concomitant benefits on the 20th of
each month. On 20 August 2004 she did not receive her emoluments and other
benefits. This was despite the fact that she had not received the further notice
referred to in the department’s letter of 31 March 2004 nor the placement letter
referred to in the department’s letter of 15 June 2004 nor any other notification.

[6] On 20 August 2004, accompanied by Mr Z.H. Mzili, the principal of the
Kubusie State School, the appellant had an interview with a Mr Tshabe, a
senior official of the department, who stated that the appellant was a temporary
educator and that the department was entitled to terminate her employment. On
23 August 2004 the principal, vice-chairperson and secretary of the Kubusie
State School wrote to the department requesting that the appellant be employed
as a permanent educator.

[7] On 7 October 2004, in a letter signed by the district director for the King
William’s Town district, the department wrote as follows to the appellant:
‘REQUEST FOR AMENDMENT OF NATURE OF APPOINTMENT FROM TEMPORARY TO
PERMANENT CS EDUCATOR: YOURSELF

Kindly be advised that the application for the change of your nature of appointment from
temporary to permanent CS educator has not been approved.

Your status therefore remains unchanged.’

[8] On 12 November 2004 the appellant brought an application as a matter
of urgency against the respondent, the member of the executive council for the
province of the Eastern Cape responsible for education, seeking, inter alia,
orders:
(a)
‘directing that the administrative action of the Respondent, in terminating
the payment of the [appellant’s] emoluments and the curtailment of her

concomitant benefits with effect from 1 August 2004 be judicially
reviewed and declared unlawful in terms of the provisions of the
Promotion of Administrative Justice Act 3 of 2000, and reinstating her
benefits associated with her employment by the Respondent with effect
from 1 August 2002’; and
(b)
‘declaring [her] status as an educator to be of a permanent nature’.

[9] In her founding affidavit the appellant contended that the department’s
conduct in terminating her emoluments in the way it did constituted ‘an unfair
labour practice as contemplated by section 8 of the Constitution’. (It was
common cause at the hearing of the appeal that what was meant was s 23 of
the Constitution.) She also contended that the department’s conduct constituted
‘administrative action which is unlawful, unreasonable and procedurally unfair
as is contemplated by section 33 of the Constitution’.

[10] The deponent to the answering affidavit filed on behalf of the respondent,
Mr Fikile Xasa, the district director of the department stationed in King William’s
Town, averred that the appellant was at all relevant times a temporary educator
in the employ of the department and that the department was entitled to
terminate her employment. Before dealing with the merits of her application,
however he raised three in limine objections to her application, two of which
were upheld by the court a quo. These were:

(1)
that she had not exhausted the internal remedies available to her because she had not
made use of the grievance procedure set forth in Chapter H of the Personal
Administrative Measures of the Education Labour Relations Council as required by s
7(2)(a) of the Promotion of Administrative Justice Act 3 of 2000; and

(2)
that the High Court did not have jurisdiction to hear the application as the administrative
action of which the appellant complained amounted to an unfair labour practice and
should have been dealt with in terms of s 191 of the Labour Relations Act 66 of 1995.

[11] Manjezi AJ, after hearing argument in the matter, made an order on 2
December 2004 dismissing the application with costs. As I have said he upheld
the two in limine objections summarised above. He added:
‘I find it therefore unnecessary to determine the merits of the application.’

[12] This appeal was originally set down for hearing on 13 November last
year but was removed from the roll and then set down for hearing on 18 March
this year at the request of the parties. The request was based on the fact that it
was anticipated that the ground covered by the second point in limine would be
decided by the Constitutional Court in Chirwa v Transnet Limited and Others,
the decision in which was expected towards the end of November last year. The
Constitutional Court’s decision was in fact delivered on 28 November 2007. It
has since been reported: see Chirwa v Transnet Ltd 2008 (3) BCLR 251 (CC).

[13] Ms Collett, who appeared for the appellant, endeavoured to distinguish
the present case from Chirwa because, as she put it, from the outset the
appellant did not base her case on its being a labour dispute as such but relied
on an alleged violation of her constitutional right to just administrative action,
unlike Ms Chirwa who first took her complaint to the Commission for
Conciliation, Mediation and Arbitration and only went to the High Court when
conciliation failed. While it is true that in this case, unlike in Chirwa, the
appellant did not first seek to initiate the process in the Commission for
Conciliation, Mediation and Arbitration, I do not think that is a material
distinction. Chirwa has held that a claimant in the position of the appellant (and
Mrs Chirwa) does not have an election, and thus the fact that the appellant did
not make an election is immaterial.

[14] Ms Collett also submitted, relying on the recent decisions of Revelas J in
the South Eastern Cape Local Division in Mkumatela v Nelson Mandela
Metropolitan Municipality, case no 2314/06,  delivered 28 January 2008, and
Froneman J in the Bhisho High Court in Nakin v MEC, Department of
Education, Eastern Cape Province, case no 77/2007, delivered on 22 February
2008 that the Constitutional Court in Chirwa did not overrule its earlier decision
in Fredericks v MEC for Education and Training, Eastern Cape, 2002 (2) SA
693 (CC), and that the appellant was entitled on the strength of that decision to
bring her claim in the High Court.

[15] It is true that the majority in Chirwa did not overrule Fredericks but were
content to distinguish it. For the purposes of considering Ms Collett’s

submission on this point it is necessary to have regard to the basis on which
Fredericks was distinguished in Skweyiya J’s judgment in order to ascertain
where he drew the line between the two cases and on which side of that line the
present case falls. The matter was dealt with in paras 56 to 61 of Skweyiya J’s
judgment. Para 58 includes the following:

‘Notably, the applicants in Fredericks expressly disavowed any reliance on section 23(1) of the
Constitution, which entrenches the right to a fair labour practice. Nor did the claimants in
Fredericks rely on the fair labour practice provisions of the LRA [the Labour Relations Act 66 of
1995] or any other provision of the LRA.’

It is correct that the appellant did not rely on any of the provisions of the LRA
but she did in terms rely on s 23(1) of the Constitution, which entrenches the
right to fair labour practices. As Skweyiya J put it (at para 66), ‘the LRA seeks to
regulate and give effect to’ this section of the Constitution.

[16] It is instructive in this regard to examine Ms Chirwa’s claim, which it was
held she could not bring in the High Court. As appears from para 157 of the
dissenting judgment of Langa CJ, with whom Mokgoro and O’Regan JJ
concurred, she contended that her dismissal was administrative action as
understood by the Promotion of Administrative Justice Act 3 of 2000 (which I
shall call in what follows ‘PAJA’). The administrative action of which she
complained contravened, so she alleged, (i) s 3(2)(b) of PAJA for failing to
provide proper notice; (ii) s 6(2)(a)(iii) of PAJA because the administrator who
took the decision to dismiss her was biased; (iii) s3(3)(a) of PAJA because she
was prevented from obtaining assistance or representation; (iv) s 6(2)(b) of
PAJA because a mandatory and material procedure prescribed by an
empowering provision was not complied with; and (v) s 6(2)(f)(i) because the
action taken against  her contravened another law. Ms Chirwa sought in respect
of the last two complaints to rely on items 8 and 9 of Schedule 8 to the LRA.
Because of this Skweyiya J held (at para 61) that ‘when she approached the
High Court she made it clear that her claim was based on a violation of the
provisions of the LRA’.

[17] When one compares the complaints set out in the appellant’s founding

affidavit, which I have summarised in para 9 above, with those on which Ms
Chirwa relied it is clear that it is not possible to hold that this case falls on the
Fredericks side of the line of distinction drawn in the Chirwa case. It follows that
Ms Collett’s submission that Fredericks applies cannot be upheld.

[18] Mr Bloem, who appeared for the respondent, contended before us that
the effect of the Chirwa decision is that the appellant may not pursue her claim
in the High Court and that the appeal accordingly falls to be dismissed. I think
that is correct.

[19] In the circumstances I am of the view that the appeal should fail. In view
of the fact that the appellant came to court to assert what she perceived to be
her rights under the Constitution I do not think that a costs order should have
been made against her in the court a quo nor should such an order be made in
this court.

[20] The following order is made:
1.
Subject to paragraph 2 the appeal is dismissed.

2.
The order made in the court a quo on 2 December 2004 is amended by
the deletion of paragraph 2 thereof.

_________________
IG FARLAM
JUDGE OF APPEAL

CONCUR:

MLAMBO JA)
MAYA JA)
MHLANTLA AJA)

NUGENT JA:
[21] I concur in the order that is proposed by my colleague but I prefer to set
out separately the reason for my concurrence lest it be misunderstood. The
problem that I have arises from the Constitutional Court’s recent decision in
Chirwa v Transnet Limited,1 which purported to distinguish, but not overrule, its
earlier contrary decision in Fredericks v MEC for Education and Training,
Eastern Cape.2 The Chirwa decision presents itself for application in this case –
which is materially indistinguishable from both Chirwa and Fredericks on the
jurisdictional question. But regrettably I can find no clear legal – as opposed to
policy – reason for the outcome in Chirwa. Nonetheless, as I explain presently
when elaborating upon the reasons for my conclusion, apart from its
jurisdictional ruling Chirwa indicates that the dismissal of a public-service
employee does not constitute administrative action. That finding is equally
applicable to this case and it is on that narrow basis that I agree that the appeal
should fail.

[22] The appellant was employed in the public service.  She claims that her
right to just administrative action – having its source in s 33 of the Constitution
and elaborated and codified in the Promotion of Administrative Justice Act 3 of
20003 (PAJA) – was infringed by her employer. She applied to the high court for
an order to remedy the alleged infringement. Her employer (for whom the
respondent has been nominally cited) objected to the jurisdiction of that court to
consider her claim and the objection succeeded. (The court below also ruled on
another preliminary point but that need not be dealt with.)

[23] Jurisdictional objections of the kind that are relevant to this case have
shown remarkable resilience. They were taken on similar grounds in four cases
that came before this court – Fedlife Assurance Ltd v Wolfaardt,4 United
National Public Servants Association of SA v Digomo NO,5 Boxer Superstores,
Mthatha v Mbenya6 and Transnet Ltd v Chirwa7 – and were consistently
dismissed. A similar objection was also unanimously dismissed by the

1 2008 (3) BCLR 251 (CC).
2 2002 (2) SA 693 (CC).
3 Minister of Health v New Clicks SA (Pty) Ltd 2006 (2) SA 311 (CC) para 95.
4 2002 (1) SA 49 (SCA).
5 [2005] 26 ILJ 1957 (SCA).
6 2007 (5) SA 450 (SCA).
7 [2007] 1 All SA 184 (SCA).

Constitutional Court in Fredericks v MEC for Education and Training, Eastern
Cape.8

[24] In Chirwa the claim (brought in the high court) was also for the
enforcement of the claimant’s constitutional right to just administrative action
(through the medium of PAJA) as it had been in all the cases to which I have
referred (but for Fedlife9). This court held that the claim fell within the ordinary
jurisdiction of the high court, but four members were equally divided on whether
the dismissal of the claimant constituted ‘administrative action’ as contemplated
by PAJA. (The conclusion reached by Conradie JA was decisive against the
claimant but it went off on other grounds.10)

[25] On appeal to the Constitutional Court the claimant’s appeal was
unanimously dismissed. Eight members of that court11 held that the high court
had no jurisdiction to consider the claim.  Seven of those members (Skweyiya J
excluded) went on to hold that the dismissal did not constitute administrative
action. A minority (Langa CJ with the concurrence of Mokgoro and O’Regan J)
held that the high court had jurisdiction to consider the claim but that the
dismissal did not constitute administrative action.

[26] It is the decision of the majority on the jurisdictional question that raises
the difficulty in this case. We are now confronted by two decisions of the
Constitutional Court – its unanimous decision in Fredericks and its majority
decision in Chirwa – that seem to oblige us to go in diametrically opposed
directions on that issue. That resulted in submissions being made by counsel
that were simple and symmetrical. Counsel for the respondent submitted that
the decision of the majority of the Constitutional Court in Chirwa obliges us to
uphold the jurisdictional objection (and thus dismiss the appeal). Counsel for the
appellant submitted that the unanimous decision of the Constitutional Court in
Fredericks (which was not overruled in Chirwa) obliges us to dismiss the
jurisdictional objection (and thus uphold the appeal). Counsel for the appellant
also submitted that this case is distinguishable from Chirwa but for reasons that

8 2002 (2) SA 693 (CC).
9 The claim in Fedlife was for the enforcement of a contractual right.
10 For a discussion of the judgment of Conradie JA in this court see D Holness and G Devenish: ‘The law in relation to
claims relating to dismissal: jurisprudential principle or legal pragmatism?’ (2008) 71 THRHR p. 142.
11 Moseneke DCJ, Madala, Ngcobo, Nkabinde, Sachs, Skweyiya and Van der Westhuizen JJ and Navsa AJ.

will become apparent I need not deal with that submission.

[27] Our rules of precedent require a court generally to follow the decisions of
a court of higher authority.  I do not think that rule is without limitations but it is
not necessary to explore those limitations in this case.

[28] What a court is to do when confronted with conflicting decisions of a
higher court has naturally received little attention in systems that observe the
ordinary rules of precedent.  But Salmond on Jurisprudence suggests the
following solution:12
‘Where authorities of equal standing are irreconcilably in conflict, a lower court has the same
freedom to pick and choose between them as the schizophrenic [higher] court itself. The lower
court may refuse to follow the later decision on the ground that it was arrived a per incuriam, or
it may follow such decision on the ground that it is the latest authority. Which of these two
courses the court adopts depends, or should depend, upon its own view of what the law ought
to be.’
The author describes the freedom that the higher court (and by extension the
lower court) has as follows:
‘Although the later court is not bound by the decision so given per incuriam, this does not mean
that it is bound by the first case. Perhaps in strict logic the first case should be binding, since it
should never have been departed from, and was only departed from per incuriam. However, this
is not the rule. The rule is that where there are previous inconsistent decisions of its own, the
court is free to follow either. It can follow the earlier, but equally, if it thinks fit, it can follow the
later.’

[29] It is in that context that an analysis of the decision in Chirwa becomes
necessary but some background is helpful to that analysis.

[30] Whether a court has jurisdiction (in the sense that is now relevant) to
consider a particular claim depends upon the nature of the rights that the
claimant seeks to enforce.  (Whether the claim is good or bad in law is
immaterial to the jurisdictional enquiry.13) I think it can be taken to be trite that a
claim for the enforcement of the constitutional right to just administrative action
(through the medium of PAJA) falls within the ordinary jurisdiction of the high
courts. Section 157(2) of the Labour Relations Act (LRA) confers concurrent

12 12 ed by PJ Fitzgerald p. 152-53.
13 Cf Langa CJ in Chirwa para 155.

jurisdiction on the Labour Court in respect of such claims in certain
circumstances.14 It follows that a claim that falls within the terms of that section
is capable of being pursued either in the high court or in the Labour Court. Any
suggestion that the effect of that section is to oust the ordinary jurisdiction of the
high courts in respect of such claims was firmly put to rest in Fredericks in the
following terms:15
‘Whatever else its import, s 157(2) cannot be interpreted as ousting the jurisdiction of the High
Court since it expressly provides for a concurrent jurisdiction.’
There are also various rights that are accorded to employees by the LRA that
are not enforceable in the high courts but only through the mechanisms that are
provided for in the LRA.

[31] The jurisprudential objections that were taken in the cases I have
referred to – and that was taken in this case – were all taken on the same basis.
In each case it was contended by the objector that the claim was not what it
purported to be (a claim for enforcement of the right to just administrative action
that fell within the jurisdiction of the high courts16) but was instead a claim for
enforcement of rights conferred upon the claimant by the LRA (which falls
outside the jurisdiction of the high courts). In effect the objectors purported to
substitute the claim that had been made with the claim that had not been made
by calling it the latter.

[32] But things cannot be made to be what they are not merely by calling
them something else and that applies as much to legal claims as to other
things. Where the lower courts construed the claim to be other than the claim
that it purported to be17 the objections were consistently upheld.  Where courts
dealt with the objection on the basis that the claims were indeed what they
purported to be the objections were consistently dismissed.18 In both cases the
outcome was inevitable, depending upon whether the claim was dealt with for

14 Section 157(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 and from labour relations;
(b) any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened
executive or administrative act or conduct, by the State in its capacity as an employer; and
(c)
the application of any law for the administration of which the Minister is responsible.’

15 Para 41.
16 But for Fedlife, in which the claim was for the enforcement of a contractual right.
17 Sometimes purporting to ‘characterise’ the claim but in truth substituting one claim for the other.
18 This court in Fedlife, Digomo, Boxer Superstores and Chirwa, and a unanimous Constitutional Court in Fredericks.

what it was, or whether it was substituted in effect with a claim that it was not.

[33] That problem did not arise in Chirwa – although there are passages in
the two majority judgments that might at face value suggest the contrary.19  One
thing is clear beyond a shadow of doubt – notwithstanding other difficulties I
have had interpreting those judgments – which is that the court construed the
claim as being one for the enforcement of the claimant’s constitutional right to
just administrative action (which is what the claim purported to be). For had the
claim been construed to be anything else the court would not have been
capable of finding (as both the majority and the minority found) that the
dismissal of the appellant did not constitute administrative action – the question
whether the dismissal constituted administrative action could simply not have
arisen.

[34] That the claim in that case was a claim for the enforcement of the
constitutional right to just administrative action must necessarily be the starting
point for the enquiry as to whether the high court had jurisdiction.
Notwithstanding close and repeated study of the majority judgments over a
considerable period of time I regret that I have not been able to discover a legal
basis for the finding that the high court has no jurisdiction over a claim of that
kind. I have already pointed out that it is trite that a claim for the enforcement of
the constitutional right to just administrative action falls within the ordinary
jurisdiction of the high courts. The fact that the claim arises from an employment
relationship does not place it within the exclusive jurisdiction reserved to the
Labour Court by s 157(1) of the LRA (as pointed out by Skweyiya J,20 citing with
approval the decision in Fredericks on that point.21)  And if the claim falls within
the ambit of s 157(2) then the ordinary jurisdiction of the high courts is expressly
preserved (as pointed out in Fredericks and not overruled by Chirwa).

[35] But if Chirwa and Fredericks were at one on the nature of the claim that
was in issue in each case, and on the proper construction of the applicable law,

19 See Skweyiya J at para 63 in which the word ‘claim’ is incorrectly used.  What was said in that paragraph to be the
claim was instead the allegations and submissions made by the claimant in support of her claim.   Also Ngcobo J at
para 125, which refers to what the ‘dispute concerns’ whereas the proper enquiry is what rights the claim seeks to
enforce.
20 Skweyiya J at para 25.
21 Fredericks para 40.

one is left with the question why the outcome in each case differed.

[36] In attempting to resolve that question I have not found it helpful to
scrutinise sentences, or even paragraphs, of the majority judgments in isolation,
because on the face of it there seem to me to be inconsistencies.  I think that
the import of Chirwa more easily becomes apparent from viewing the judgments
more broadly and as a whole. From that perspective it seems to me that the
distinction between that case and Fredericks does not lie in opposing views
held by the respective courts on the law but lies rather in the premise upon
which each was decided.

[37] I think a fair reading of the two judgments makes it clear that the majority
was of the view that the objective of the Act was both to encompass employees
in the public service and also to be exhaustive of their rights arising from their
employment, notwithstanding that the legislature had expressed itself to the
contrary in s 157(2).22  With that as its starting point the majority considered it to
be desirable as a matter of policy that such employees should pursue
complaints arising from their employment only through the mechanisms of the
Labour Relations Act and to attain that objective it decided that the high courts
must not exercise their ordinary jurisdiction in such cases.

[38] That construction of the judgments seems to me to be consistent with the
various references to what should or should not be permitted (expressed in
various ways)23 in contradistinction to what is or is not permitted by the statute.
It also explains why Fredericks was not overruled as a matter of law (the
majority distinguished it on its facts but I am unable to see how the factual
distinction that was relied upon could be material).  It is also the only
construction that would be consistent with the appeal by the majority to the
legislature to revisit s 157(2) of the LRA,24 for if the outcome that it considered
to be desirable had been one that the law dictated there would be no cause for
legislative intervention. Moreover, that construction of the majority judgments
seems to me to be expressly acknowledged by the observation of Skweyiya J

22 Ngcobo J observed that the word ‘concurrent’ in that section was ‘unfortunate’ for the achievement of the supposed
objective of the Act.
23 See Skweyiya J at paras 65, 66, 67 and 68 and Ngcobo J at paras 125 and 126.
24 See Skweyiya J at para 71.

that
‘although one should be ‘loathe [to deprive] a litigant of existing rights where she or he is
accorded more than one right by the Constitution or any other enabling legislation, it is
unsatisfactory that the High Court should be approached to decide review applications in terms
of PAJA where the LRA already regulates the same issue to be reviewed.’25

[39] While the outcome in Chirwa might indeed be desirable I am not at all
sure that this court is bound – or even permitted – to adopt and apply a
supposed policy if the legislature has not embodied that policy in law. I share
the following reservation that was expressed by the Chief Justice:26
‘We must be careful, as a court, not to substitute our preferred policy choices for those of the
Legislature. The Legislature is the democratically elected body entrusted with legislative powers
and this Court must respect the legislation it enacts, as long as the legislation does not offend
the Constitution.’

[40] Fortunately I have not found it necessary to confront that question in this
case. Applying the decision in Fredericks – which seems to me to be good law
until it is overruled or superseded by amending legislation – I think the appeal
must in any event be dismissed.

[41] Ten members of the Constitutional Court held in Chirwa that the
dismissal that was there in issue did not constitute administrative action as
contemplated by PAJA and on that ground alone the appeal in that case fell to
be dismissed. (If the high court did not have jurisdiction to pronounce upon the
merits of the claim then it seems to me that the Constitutional Court similarly
had no jurisdiction and its finding on that issue would not be authoritative but on
the approach that I take to the matter that difficulty does not arise.) On that
issue I think I am bound to follow the decision of the Constitutional Court27
whatever my own view might be on the matter. I do not think the conduct that is
complained of in this case is materially distinguishable from the conduct that

25 Para 40. Although the judgment of Conradie JA in this court is also difficult to deconstruct it seems to reflect a similar
approach.
26 Para 174.
27 By which I mean the ten members (excluding Skweyiya J) who decided that issue.

was in issue in Chirwa. It is on that ground that I agree that the appeal should
be dismissed and concur in the order proposed by my colleague.

____________________
R.W. NUGENT
JUDGE OF APPEAL

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

May 2007

STATUS: Immediate

Makambi v MEC for the Executive Council, Department of Education,
Eastern Cape Province
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 a claim by an employee for
the review of a decision of the provincial authorities to terminate her
employment benefits.

The employee had sought to assert her constitutional right to just
administrative action in seeking to review the decision.  In a similar case that
came before the Constitutional Court (in the matter of Chirwa v Transnet Ltd
2008 (3) BCLR 251 (CC)) that court held that employees in the public service
may not assert their constitutional right to just administrative action if the
conduct that was complained of arose from their employment.  It held that the
only recourse that they had was to pursue a claim under the Labour Relations
Act.

The SCA held that that decision was determinative of the case before it and
on that ground dismissed an appeal from the Bisho High Court that had
rejected the complainant’s claim.