THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 210/13

In the matter between:

THE PRESIDENT OF SOUTH AFRICA
First Appellant
MINISTER OF JUSTICE

Second Appellant
THE MAGISTRATES COMMISSION

Third Appellant
and
MACHIEL FREDERICK REINECKE
Respondent

Neutral citation: The President of RSA v Reinecke (210/13)[2014]
ZASCA 3 (28 February 2014)
Coram:
Mpati P, Wallis, Petse and Saldulker JJA and Van Zyl AJA.
Heard:
17 February 2014
Delivered: 28 February 2014
Summary: Magistrate – appointed as relief magistrate – removed from
work as relief magistrate and generally from performing judicial
functions – claim for damages based on repudiation of contract of
employment – whether magistrate an employee – whether magistrate can
claim constructive dismissal.

ORDER

On appeal from North Gauteng High Court, Pretoria (Pretorius J sitting
as court of first instance):
The appeal is upheld and the order of the court below is set aside and
replaced by an order dismissing the plaintiff’s claim. In both courts there
will be no order for costs.

JUDGMENT

Wallis JA (Mpati P, Petse and Saldulker JJA and Van Zyl AJA
concurring)
[1] In 1996 Mr Reinecke was appointed as a magistrate for the district
of Germiston. Although Germiston was his headquarters his duties were
those of a relief magistrate and he was sent to courts elsewhere in South
Africa, both within and without Gauteng, to relieve magistrates who
were indisposed, or absent, or to assist in clearing a backlog of cases.
Sometimes he acted in regional courts and sometimes as head of a
particular court. He lived in Pretoria. In September 2000, for personal
and business reasons, his wife and children moved to a plot some 40
kilometres outside Rustenberg, and it was his intention to join them. As
he was based in Germiston and spent most of his time in Gauteng and on
the East Rand, he was initially unable to do so. Instead he went to live in
Boksburg, whilst the bulk of the family’s household effects were placed
in storage.

[2] In October 2000 the Magistrates Commission advertised a number
of posts for magistrates throughout the country including one at
Randburg described as ‘magistrate (relief)’.1 Mr Reinecke applied for
this post as, at that time, the Randburg court provided relief magistrates
for the North West province and he expected to be undertaking relief
duties nearer the new family home outside Rustenburg. He made it clear
in his interview for the position that he did not want the post if it meant
that he would be performing relief duties primarily in Gauteng. He was
appointed as a magistrate in Randburg on 10 May 2001. However, his
appointment was not a happy one and on 2 January 2002 he resigned,
giving one month’s notice.

[3] Mr Reinecke contended that his resignation was brought about by
victimisation and discrimination against him by the chief magistrate at
Randburg, a Mr Booi.  He said that this rendered his working
circumstances intolerable and lead to his resignation. He claimed that
this was a constructive dismissal amounting to a repudiation of his
employment contract, which he accepted, as well as an unfair labour
practice. On that footing he sued the first appellant, the President of
South Africa (the President), and the second appellant, the Minister of
Justice and Constitutional Development (the Minister), for damages
based on the difference between the earnings he would have enjoyed as a
magistrate until his retirement at the age of 65 and his actual earnings
from employment during that period. At the trial he calculated that this
would amount to R9 460 270. His claim succeeded before Pretorius J,
who awarded damages in that sum, together with interest and costs. The
appeal is with her leave.

1 The same advertisement included two other posts in Randburg that did not involve the performance of
relief duties. Mr Reinecke did not apply for either of these posts.

[4] At the outset it is necessary to identify the legal basis for Mr
Reinecke’s claim as pleaded in the particulars of claim. He alleged that
his appointment as a magistrate at Germiston gave rise to an ‘agreement
of employment’ subject to conditions of service determined in the
regulations promulgated under s 16 of the Magistrates Act 90 of 1993
(the Magistrates Act). He said that Mr Booi’s conduct constituted a
repudiation of the agreement between himself and ‘the Defendant’,
without specifying which of the two defendants he was referring to,
which repudiation he had elected to accept by way of his resignation. In
addition to the damages claimed for loss of earnings there was a further
claim for injuria, but that was not upheld at the trial and, there being no
cross-appeal, nothing more need be said about it.

[5] Mr Reinecke’s pleaded claim was therefore one for damages
founded on the repudiation of a contract of employment, accepted by
him and giving rise to financial loss in the form of loss of income.
Counsel confirmed that this was the sole basis for the claim. This
formulation of the claim raised the question whether Mr Reinecke was an
employee of either the President or the Minister. They pleaded that he
was a judicial officer, as contemplated in the Constitution, occupying a
constitutional and statutory office. They denied that he was an employee
of either of them, or that a contract of employment existed between him
and either of them or the Department of Justice and Constitutional
Development.

[6] One would have expected this issue, so clearly identified in the
pleadings, to have been central to the conduct of the trial and the
argument in both courts. Instead it appears to have attracted very little

attention at the trial and was not dealt with in the judgment. Nor was it
addressed in the heads of argument and counsel were largely unprepared
to deal with it in oral argument. Responding to questions from the bench
they admitted that they had not anticipated that it would be necessary for
them to do so. This leaves this court in the invidious position of having
to deal with an issue of considerable importance for magistrates with
very little assistance. That is to be deplored. Nonetheless it cannot be
avoided.

[7] At the outset it is appropriate to record that this judgment deals
with the position of magistrates in the period between 1996, when Mr
Reinecke was first appointed, and 2002. More particularly it is concerned
with the position during 2001 and 2002, which was when the critical
events occurred. Nothing in the judgment affects the constitutional
position of magistrates as part of the judiciary and the judicial authority
of this country in terms of Chapter 8 of the Constitution. The narrow
question is simply whether at that time magistrates were employees of
the State in terms of contracts of employment. (It is not suggested that
Mr Reinecke’s situation was any different from that of any other
magistrate.) A finding that they were so employed does not impact upon
their independence, which is constitutionally guaranteed. 2  There are
many examples of independent judiciaries in other parts of the world,
such as Scandinavia, Germany and France, where the judges are
employees of the State but nonetheless independent. The European Court
of Justice3 and the Supreme Court in England have recently affirmed that
the requirement of judicial independence does not mean that part-time
recorders in England and Wales cannot be workers in terms of directives

2 Van Rooyen & others v The State & others (General Council of the Bar of SA Intervening) 2002 (5)
SA 246 (CC) (hereafter Van Rooyen).
3 O’Brien v Ministry of Justice [2012] IRLR 421 (ECJ) paras 39 and 51.

of the European Union dealing with employment matters, which apply to
those who are employed under a contract of employment.4

[8] Historically in South Africa magistrates were employees of the
State and part of the public service. Without needing to venture any
further into historical matters s 1(2) of the Public Service and Pensions
Act 29 of 1912 provided expressly that magistrates formed part of the
public service. By contrast, s 1(6) of the same statute specifically
excluded judges from the public service. That remained the position
under successive iterations of the Public Service Act up to and including
the Public Service Act 111 of 1984.5 Since 1944 the Minister of Justice
has appointed magistrates in terms of the provisions of s 9(1)(a) of the
Magistrates’ Courts Act 32 of 1944.6 This power of appointment of
magistrates, is now qualified by the provisions of the Magistrates Act,
and has been held to be constitutionally valid.7

[9]   The Hoexter Commission of Enquiry 8  recommended that
magistrates be removed from the ambit of the public service and that
their appointment, discipline and discharge be dealt with by advisory
bodies consisting of judicial officers.9 This led to the enactment of the
Magistrates Act in 1993. That marked a significant development in
regard to the position of magistrates. It established the Magistrates
Commission (the Commission) as an independent body,10 charged under

4 O’Brien v Ministry of Justice [2013] UKSC 6; [2013] 2 All ER 1 (SC) para 34.
5 The relevant statutory provisions were s 1(2) of the Public Service Act 27 of 1923; s 2(4) of the
Public Service Act 54 of 1957 and s 2(5) of the Public Service Act 111 of 1984.
6 Prior to that the Governor-General appointed magistrates.
7 Van Rooyen paras 102-110.
8 Commission of Enquiry into the Structure and Functioning of the Courts, part I of the Fifth Report
(1983) para 4.4.1.
9 Van Rooyen para 79.
10 In Van Rooyen paras 36-74 the Constitutional Court considered the composition and functioning of
the Commission and held that it is an independent body not under the control of the executive in the

s 4(a) with ensuring that the appointment, promotion, transfer and
discharge of magistrates takes place without favour or prejudice. The
Minister’s power to appoint magistrates was qualified by s 10, which
provided that he should only do so ‘after consultation’ with the
Commission. Whilst that imposed no obligation on the Minister to make
appointments in accordance with the recommendations of the
Commission, as might have been the case had the provision been that
appointments be made ‘in consultation’ with the Commission, it
nonetheless required the Minister to be receptive to the views of the
Commission.11

[10] The Magistrates Act imposed further important limitations on the
powers of the executive in relation to magistrates.  Their salaries were no
longer determined solely by the Minister and the Public Service
Commission, but by the Minister in consultation with the Commission
and after consultation with the Commission for Administration and with
the concurrence of the Minister of Public Expenditure (s 12(1)(a)). Three
years later the need to consult the Public Service Commission was
removed. 12  The conditions of service of magistrates were to be
determined by the Minister by way of regulations (ss 11 and 16(1)) after
receiving a recommendation from the Commission. Initially the role of

person of the Minister. The Commission became nominally the third defendant in the action and the
third appellant in the appeal but played no role in the proceedings.
11 The difference between the two expressions is correctly described in the following passage from para
17 of the judgment of Griesel J in McDonald & others v Minister of Minerals and Energy & others
2007 (5) SA 642 (C):  ‘where the law requires a functionary to act “in consultation with” another
functionary, this too means that there must be concurrence between the functionaries, unlike the
situation where a statute requires a functionary to act “after consultation” with another functionary,
where this requires no more than that the ultimate decision must be taken in good faith, after consulting
with and giving serious consideration to the views of the other functionary.’ See also Minister of
Health & another NO v New Clicks South Africa (Pty) Ltd & others (Treatment Action Campaign  &
another as Amici Curiae) 2006 (2) SA 311 (CC) paras 285 and 286 and Van Rooyen para 109.
12 This has subsequently been further amended so that the President determines magistrates’ salaries
after taking into consideration the recommendations of the Independent Commission on the
Remuneration of Public Office-bearers. However, that amendment occurred after the events that are in
issue in this case.

the Commission in regard to the suspension and discharge of magistrates
was limited to carrying out investigations regarding misconduct,
continued ill-health or incapacity of magistrates with a view to the
Minister taking a decision to suspend the magistrate and report to
Parliament on whether the magistrate should be removed from office
(s 4(1)(f) read with s 13(3)(a) of the Magistrates Act as originally
enacted).13 This was amended in 199614 to provide that the Commission
could provisionally suspend a magistrate pending an investigation into
the magistrate’s fitness to hold office (s 13(3)(a)). The Minister could
confirm that suspension if the Commission thereafter recommended that
the magistrate be removed from office and if the Minister did so the
Commission’s recommendation would then be referred to Parliament for
a decision whether to remove the magistrate from office (ss 13(3)(aA),
(c), (d) and 13(4)).

[11]  The Magistrates Act served an important purpose in that:
‘What is clear from a study of the Act is that Parliament was concerned to grant to
magistrates an independence and freedom from interference which they had not
previously enjoyed and to that extent at least to bring their position and conditions of
tenure and service closer to that of Judges.’15
In making provision for the establishment of the Commission, Parliament
foreshadowed the provisions of s 109 of the Interim Constitution,16 which
read:
‘There shall be a Magistrates Commission established by law to ensure that the
appointment, promotion, transfer or dismissal of, or disciplinary steps against
magistrates, take place without favour or prejudice, and that the applicable laws and

13 The grounds for discharge of a magistrate were the same as those of a member of the public service
and the process was similar to that which has applied to public servants since 1912, save that the
Commission discharges the functions that the Public Service Commission discharged in relation to
public servants.
14 By the Magistrates Amendment Act 35 of 1996.
15 Government Employees' Pension Fund v Strydom 2001 (3) SA 856 (SCA) para 20.
16 Constitution of the Republic of South Africa, Act 200 of 1993.

administrative directives in this regard are applied uniformly and properly, and to
ensure that no victimisation or improper influencing of magistrates occurs.’
This requirement was linked to s 96(3) of the Interim Constitution, which
provided that no person and no organ of state shall interfere with judicial
officers in the performance of their functions, thereby reinforcing the
long
established
legal
position
of
magistrates
namely
that,
notwithstanding their position within the public service, in the
performance of their judicial functions they were entirely independent
and free of influence from the administration.17 The Interim Constitution
thereby strengthened the position of all courts, including the magistrates’
courts, by providing them with institutional protection that they had
previously lacked.18

[12] The Magistrates Act did not, however, put an end to the status of
magistrates as employees within the general public service, although by
making special arrangements in relation to them, it removed them from
most of the provisions applicable to other public service employees in
terms of the Public Service Act. 19  Had it terminated their status as
employees that would have involved a radical alteration to the basis upon
which they had been appointed as magistrates. It would have converted
them from employees of the State to office bearers having no contractual

17 Schierhout v Union Government (Minister of Justice) 1919 AD 30, where Innes CJ (at 42-43) said:
‘The South Africa Act (sec. 101) regulates the tenure of office of Judges, who are removable only on
an address from both Houses of Parliament; and Act 29, 1912, sec. 1 (3), by specially including
magistrates in the Administrative and Clerical Division of the Public Service renders them amenable to
its own disciplinary provisions. That does not mean that in the discharge of their judicial functions they
are not absolutely independent. In the exercise of such functions they do not act as the servants of the
Crown within the meaning of the Crown Liabilities Act. They perform duties imposed upon them by
law, and the responsibility for their decisions rests upon them alone. They are judges, entitled to certain
protection even against the consequences of their own error; and any attempt to influence them in the
discharge of their magisterial duties, by any form of administrative pressure, would be most
reprehensible. But it does not follow that they are free from censure or punishment for what in the case
of an ordinary public servant would be misconduct, merely because it happens to be connected with
their judicial office.’
18 Van Rooyen para 54.
19 At that time Act 111 of 1984. Van Rooyen para 79.

link to the State and dependent solely on public law remedies to enforce
the rights vested in them by the Magistrates Act and the regulations made
thereunder. If that was the purpose of the legislation one would have
expected there to be clear language to that effect, as it would involve the
removal of existing rights and their substitution by uncertain other rights.
There is no such clear language in the Magistrates Act. On the contrary
s 18(3), which is part of the transitional and savings provisions, provides
that the conditions of service applicable to magistrates prior to the date of
commencement of s 12 of the Magistrates Act20 ‘shall not be affected to
his or her detriment’. This provision was protective of the established
legal rights of magistrates appointed prior to that date.21

[13]  As the following summary shows, the terms of the Magistrates Act
also indicate that the relationship of magistrates, once appointed, and the
State, as represented by the Department of Justice and Constitutional
Development, continued to be one of employment under a contract of
employment. I start with the objects for which the Commission was
established. They were to ensure that the appointment, promotion,
transfer and discharge or discipline of magistrates take place without
favour or prejudice. Although the word ‘appointment’ is more appropriate
to an office than an employment relationship, under regulation 3(1)(f) the
appointment is initially probationary, which is characteristic of
employment. 22  Promotion, transfer and discharge are typical of an
employment relationship. Office bearers are not ordinarily subject to
promotion or transfer. Salaries, rank and grade of magistrates were to be
determined by the Minister in consultation with the Commission. Again

20 11 March 1994.
21 Gibbs v Minister of Justice [2009] 4 All SA 109 (SCA) para 9.
22 The initial appointment of magistrates is temporary and probationary and based on contract. In
preparing this judgment I was furnished through the Commission with a copy of the contract that all
persons newly appointed as magistrates are required to sign.

questions of rank and grade are typical of employment especially in the
public service at any level of government. The manner in which
magistrates could be removed from office was set out in s 13, and in s 16
the Minister was empowered on the recommendation of the Commission
to issue regulations dealing with virtually every aspect of the life and
work of a magistrate. This included not only terms and conditions of
service but also the duties, powers, conduct, discipline, hours of
attendance, leave and pension entitlements of magistrates.23 The matters
that can be dealt with by regulation cover every aspect of a conventional
employment relationship.

[14] Although the Magistrates Act undoubtedly aimed at removing
magistrates from the public service and to some extent certainly has
achieved that, it is not clear that the severance has been complete. Under
s 16(1)(c) the regulations may determine the ‘creation of posts on the
fixed establishment’ and the ‘number, grading, regrading, designation,
redesignation or conversion of posts on the fixed establishment of any
magistrate’s office’. This is now dealt with under regulation 54 of the
regulations.24 The significance of this is that under s 1(1)(viii) of the
Public Service Act 1984 the ‘fixed establishment’ meant the posts created
for the normal and regular requirements of a department. Under ss 7(1)(a)
and (c) the public service consisted inter alia of the posts on the fixed
establishment. When that Act was repealed by the Public Service Act,
1994,25 the composition of the public service was defined in s 8(1(a) as
including persons who ‘are employed … in posts on the establishment of
departments’. Reference to the annual report of the Department of Justice

23 In making regulations the Minister is bound by the recommendations of the Commission. Van
Rooyen para 128.
24 Regulations for Judicial Officers in the Lower Courts published in terms of s 16 of the Magistrates
Act in GN R 361, GG 15524, 11 March 1994.
25 Promulgated under Proclamation 103 in GG 15791, 3 June 1994.

and Constitutional Development for 2002, the year of Mr Reinecke’s
resignation, shows that there were 1761 posts of magistrate on the
department’s fixed establishment.26 That does not suggest that magistrates
have been removed entirely from the public service, much less that they
have ceased to be employed by the State.

[15] What is more, when one reads the regulations actually promulgated
in 1993 under the Magistrates Act one finds that there have been few
dramatic changes to the actual working circumstances of magistrates. The
Magistrates Act and regulations are substantially similar to the provisions
of the Public Service Act 1984 and the public service code under the
latter. A few illustrations will suffice. Section 4(1)(a), which sets out the
primary purpose of the Commission and the language of which is echoed
in s 109 of the Interim Constitution, reflects the provisions of s 10(1)(a)
of the Public Service Act 1984. Section 12(6), which provides that the
salary of a magistrate shall not be reduced except by Act of Parliament,
was taken over from s 28 of the 1984 Act and had counterparts in all
earlier statutes governing the public service. 27  In some respects the
regulations incorporate provisions of the public service regulations or the
public service code, for example in respect of leave under regulation 38;
leave gratuities under regulation 39; the use of official quarters under
regulation 40(2) and certain provisions in regard to transport between the
magistrate’s home and place of duty under regulation 44. Magistrates are
also members of the same pension fund and medical scheme as members
of the public service. All these are indicia that, notwithstanding their
whole or partial detachment from the public service, magistrates have not
ceased to be employees of the State. There is accordingly substance to Mr

26 The 2012 report reflects 1935 posts on the fixed establishment of the department.
27 See s 22 of the Public Service Act 54 of 1957; s 14 of the Public Service Act 27 of 1923 and s 71 of
the Public Service and Pensions Act 29 of 1912.

Reinecke’s contention that from the time he became a magistrate he was
an employee of the State.

[16] However, it is unnecessary to make a final decision in this regard,
and perhaps unwise to do so in the light of the absence of full and proper
argument, because that conclusion would not on its own serve to resolve
the dispute in favour of Mr Reinecke. The reason is that any contract only
arose after his appointment as a magistrate and was overlain with
elements that derived not from contract but from the Magistrates Act and
the regulations made thereunder. In advancing his claim Mr Reinecke
sought to rely solely upon contractual elements of the relationship and to
disregard the statutory elements governing his appointment and the basis
upon which he could be discharged from his post. In my view that is
impermissible. It is true that in Mustapha v Receiver of Revenue,
Lichtenburg 28  this court held that relationships entered into under
statutory powers or with statutory bodies could nonetheless, when
disputes arose, be dealt with as being purely contractual in nature.
However, that view was subject to a powerful dissent by Schreiner JA
against the artificiality of the line being drawn between the exercise of
statutory powers and the resultant contract,29 and has subsequently been
overruled.30 The correct view is that one cannot divorce a contract arising
from the performance of statutory functions and the exercise of statutory
powers from its statutory background. Sometimes the contractual aspects
will be crucial 31  and sometimes the statutory. Which are the more
important will depend upon the facts giving rise to the dispute. When

28 Mustapha v Receiver of Revenue, Lichtenburg 1958 (3) SA 343 (AD) at 356G-357C. See also the
discussion by Cora Hoexter ‘Contracts in Administrative Law: Life after Formalism’ (2004) 121 SALJ
595 at 602-604.
29 At 347D-G.
30 Logbro Properties CC v Bedderson NO & others 2003 (2) SA 460 (SCA).
31 Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC & others 2001 (3) SA
1013 (SCA).

there is a breach of the basis upon which the magistrate’s employment (in
the broad sense) is regulated, if the magistrate is an employee of the State
it will often be difficult to determine whether the remedies for that breach
are to be found in contract or in public law.

[17]  Mr Reinecke relied upon the fact that he applied for a post
advertised as that of a relief magistrate at Randburg. He made it clear
when interviewed by the Commission that he was only interested in being
appointed to the position if it was a relief position and he would not be
confined to performing relief duties in Gauteng. Had he discovered after
being appointed as a magistrate in Randburg that he had been appointed
to one of the posts advertised at the same time, but not involving relief
duties or to some other post entirely, he would have been entitled to
object. If his objection had been ignored there can be no doubt that he
could have challenged the recommendation by the Commission and the
decision of the Minister, under s 9 of the Magistrates’ Courts Act, to
appoint him to a post he had not sought. Subject to any possible
obligation to follow the grievance procedures in the regulations, that
challenge would have been advanced by way of judicial review in the
high court. In other words he would have needed to resort to public law
remedies, not contractual remedies, in order to resolve the issue. That
example illustrates the point that the appropriate remedy for any
grievance Mr Reinecke had, or any other magistrate might have had,
relating to their appointment as a magistrate would ordinarily have been a
public law remedy such as a mandamus, or an interdict or proceedings by
way of judicial review, and not a contractual remedy.

[18] An example of a situation where a contractual remedy could
possibly have been appropriate is furnished by the first complaint that Mr

Reinecke levelled at Mr Booi. Immediately upon his appointment as a
magistrate in Randburg he lodged a claim for payment of a relocation
allowance in terms of regulations 23(1)(g) and (h) of the regulations. Mr
Booi took the view that the claim was unjustified because Mr Reinecke’s
wife and children had already moved to the new family home near
Rustenburg before he even applied for the post in Randburg. Whether Mr
Booi was right or wrong in that view is immaterial. There was a
legitimate dispute over Mr Reinecke’s entitlement to be paid this amount,
which came to some R18 000. The dispute was over a simple financial
claim for payment of an amount that was either due to him or not in terms
of any contract of employment. There was no reason for him not to
pursue it by way of a claim in the appropriate magistrates’ court.

[19] What then was the appropriate remedy for Mr Reinecke’s
grievances in the present instance? He made various complaints about Mr
Booi’s conduct, but the straw that broke the camel’s back came when Mr
Booi summarily and without consultation, decided on 8 October 2001
that from that time on Mr Reinecke would no longer undertake relief
work and his functions would be performed only at the Randburg
Magistrates’ Court. Flowing from that Mr Booi advised the regional
office of the department to terminate payments of Mr Reinecke’s standing
advance and to recover past payments from his salary. The final blow was
that when Mr Reinecke reported for work at Randburg he was not
allocated any judicial work other than a few postponements and was
required to undertake work of an administrative nature. In substance the
judicial side of his work was removed.

[20] Such conduct on the part of the employer in a conventional
situation of employment is a repudiation of the contract of employment.32
It was argued on behalf of Mr Reinecke that it was equally the case in
regard to his employment as a magistrate. There are however a number of
difficulties with this argument. In the same way as his appointment had
followed a statutory process with advertisement and interview leading to
a recommendation by the Commission accepted by the Minister, the
process for the discharge of a magistrate from service is a statutory one.
At the time, that is, in 2001, it involved the following. First, the grounds
of discharge were limited to misconduct, continued ill-health or
incapacity to carry out the duties of the office efficiently (s 13(3)(aA) of
the Magistrates Act) 33. Second, discharge could only occur after an
enquiry and recommendation by the Commission and the provisional
suspension of the magistrate (s 13(3)(a)). Third, the Minister was obliged
to accept the recommendation of the Commission (s 13(3)(aA)).34 Fourth,
the Minister had to place a report before Parliament giving the reasons for
the magistrate’s suspension (s 13(3)(c)). Fifth, Parliament had to resolve
either to restore the magistrate to office or that the magistrate be removed
(s 13(3)(d)) and the Minister was obliged to act upon that resolution and
remove the magistrate.35

[21] It follows that the process for dismissing a magistrate was at the
time (and remains) a statutory process. Non-compliance with any part of
that process would have been remediable (and still would be remediable)

32 Stewart Wrightson (Pty) Ltd v Thorpe 1974 (4) SA 67 (D) at 77H-78H. This court expressly
approved Miller J’s approach in the subsequent appeal. Stewart Wrightson (Pty) Ltd v Thorpe 1977 (2)
SA 943 (AD) at 951G-H. In Union Government (Minister of Justice) v Schierhout 1922 AD 179 at 184
it was held that similar treatment of a magistrate was degrading.
33 This provision has subsequently been amended although the grounds for discharge remain the same.
The section is referred to as it stood at the time.
34 This is a power combined with a duty. Van Rooyen paras 181 and 182.
35 Van Rooyen para 186.

at the instance of the magistrate by resort to the high court. It would, for
example, have been open to Mr Reinecke to apply for an interdict
restraining Mr Booi from implementing his decision to remove him from
relief work and to prevent the removal of the allowance or any deductions
being made from his salary by way of recoupment of past payments of
the allowance. But these are public law remedies appropriate to the
resolution of a public law dispute. They are not contractual remedies,
which are not appropriate to such a dispute.

[22]   Conspicuous in the provisions regarding the discharge of a
magistrate is that the chief magistrate at the court where the magistrate is
stationed has no role to play in it. In practical terms Mr Booi had no
power to dismiss Mr Reinecke. How then can his conduct be invoked as
constituting a repudiation of the latter’s contract of employment as a
magistrate? It would be entirely anomalous to hold that conduct by
someone, who had no power to appoint or to discharge the magistrate,
could nonetheless provide contractual grounds upon which the magistrate
subjected to such conduct could terminate their appointment as a
magistrate and claim damages. Yet that is the proposition that lies at the
heart of Mr Reinecke’s case. It could only be correct if Mr Reinecke had
no other remedy available to him.

[23] I do not think that Mr Reinecke can contend that there was no
remedy other than resignation available to him in response to Mr Booi’s
conduct. He had available, and used in relation to his financial claims, the
grievance procedures laid down in the regulations to address this type of
situation. If those were unsatisfactory he could have sued to recover the
amounts due to him. He could also have taken any adverse decision by
the Commission on review. He could have approached the high court for

interdictory relief in response to Mr Booi removing him from relief work
and allocating him largely administrative duties. Those steps would have
brought home to the Commission the seriousness of the situation and
enabled it to take remedial steps to address the problems. Had the
Commission disregarded his grievances, he could have sought a
mandamus to compel them to deal with them. If Mr Booi’s treatment of
him caused the health problems of which he complained, an action for
damages based on the failure of the employer to take reasonable steps to
protect employees from suffering injury or ill-health in consequence of
their working circumstances would have been available. He could have
exercised, as he did, his right to take sick leave. In other words there were
a number of remedies available to him to enforce his rights and resolve
his grievances. I leave aside for present purposes whether he might have
had remedies available under the Labour Relations Act 66 of 1995 (the
LRA) as that raises other issues.

[24] It follows that, even if he was employed under a contract of
employment, it would be inappropriate for Mr Reinecke to have the
benefit of a contractual remedy sounding in damages in addition to the
public law remedies that were already available to him. The recognition
of such a remedy in this case would place him in a significantly better
position than a conventional employee. For such an employee the
acceptance of a repudiation of the contract of employment constitutes an
unfair dismissal in terms of s 186(e) of the LRA.36 A dispute over that
dismissal must follow the procedures laid down in the LRA and the
claimant’s entitlement to relief is limited to at most the payment of two
years’ salary. Originally Mr Reinecke referred the dispute over his
resignation to the CCMA on the basis that he had been constructively

36 Jooste v Transnet Ltd t/a South African Airways (1995) 16 ILJ 629 (LAC) at 636-638.

dismissed. He sought an order restoring him to his former position as a
magistrate in Germiston, alternatively payment of two years’ salary.
However, after a commissioner ruled in another case involving a
magistrate that they were not employees as defined in the LRA, he
abandoned those proceedings and brought the present action in which he
claimed a loss of income over a period of thirty years.

[25]  In argument counsel sought to justify this claim by reference to the
decision of this court in Fedlife Assurance Ltd v Wolfaardt,37 where it
was accepted that the existence of remedies for unfair dismissal under the
LRA does not exclude contractual claims or the pursuit of such claims in
the ordinary courts rather than the structures of the LRA. However, the
majority judgment in Wolfaardt was based upon a finding that the
circumstances of that case – a purported premature termination of a fixed
term contract of employment, accepted as a repudiation of that contract –
did not fall within the definition of a dismissal in the LRA, more
particularly within s 186(b) of that definition.38 Neither that case, nor the
later decision in South African Maritime Safety Authority v McKenzie,39
considered the situation of a constructive dismissal falling within s 186(e)
of the LRA.40 Nor did they consider the problems surrounding claims for
damages by former employees, calculated on the footing that, but for the
alleged repudiation of the employment contract, the employee would
have enjoyed secure employment until retirement. Such claims raise
difficult questions of causation, remoteness and the proper method for

37 Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA).
38 Para 18.
39 South African Maritime Safety Authority v McKenzie 2010 (3) SA 601 (SCA).
40 In Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58; [2012] 2 All ER
278 (SC) the Supreme Court, by a majority, held that a contractual claim based on a failure to observe
the contractually agreed terms regarding procedures leading up to dismissal was precluded by the terms
of the legislation that afforded a statutory claim for unfair dismissal.

computing damages.41 In the present instance, for example, Mr Reinecke
calculated his claim on the same basis as a claim for loss of earnings in a
personal injury claim. That was manifestly inappropriate as was
demonstrated when questions were posed in the course of the appeal
about the validity of the allowances for contingencies. Wolfaardt does not
provide support for Mr Reinecke’s claim.

[26] In the circumstances the appeal succeeds and the order of the court
below is altered to one dismissing the claim. As this is a matter involving
the employment relationship in both courts there will be no order for
costs.

M J D WALLIS
JUDGE OF APPEAL

41 Catherine Barnard and Louise Merrett ‘Winners and Losers: Edwards and the Law of Unfair
Dismissal’ [2013] 72 CLJ 313 at 335-340.

Appearances

For appellants:
M M Rip SC (with him Ms B Matlejoane)
Instructed by:
The State Attorney, Pretoria and Bloemfontein

For respondent:
N Davis SC (with him R Strydom and Ms L
Coetzee)
Instructed
by:
Combrink
Kgatshe
Inc,
Rustenburg

Rosendorff Reitz Barry, Bloemfontein.