Judicial recourse by public sector employees : applying administrative law to labour cases.

Abstract

Within a public employment setting, both administrative and labour law jurisprudence continue to advance the fundamental rights and protections afforded to individuals by the Constitution under section 23 and 33. Although the Constitutional Court (arguably) seems to favour the determination of one right over another, there exists no legal basis – other than a policy basis – for such a direction. In the context of the employment of public officials, the Constitutional Court side-lined administrative law jurisprudence. The purpose of this dissertation is to explore whether public sector employees are still able to bring an application in a court of law under administrative law even when such is to be applied to quintessential labour cases. This dissertation has analysed the meaning of administrative action under section 33 and PAJA in Chapter 2 and, in Chapter 3, how the courts have approached administrative law within labour cases, uncovering important judicial arguments and direction. This leads to Chapter 4 where since Gcaba, case law and academic arguments have shown that the extent to which section 33 and PAJA apply to public-sector employment depends primarily on how one pleads. The research methodology used in advancing these objectives has comprised solely of desktop literature review of case law, statute, various text books and academic journal articles. In the absence of legislative intention to deny public sector employees their right to administrative justice, it is shown that it is not uncommon for more than one constitutional right to apply to one set of facts. It is argued that three causes of action exist under PAJA, the LRA and legality and that these causes of action are still available to litigants, even though the court in Gcaba provided the general rule that administrative law no longer applies. The Constitutional Court’s explicit recognition on pleadings has resulted in lower courts providing protection to public sector employees by hearing matters pleaded under PAJA or the principle of legality as the chosen forum. A new direction of administrative law jurisprudence is being realised by lower courts in labour cases, which correctly balances the intention of the legislature and favourably adds to the notion that rights are cumulative and complimentary of each other. Chapter 5 concludes all the relevant literature as well as providing several recommendations. Although PAJA and legality are applicable, the LRA should be the first port of call. It would be beneficial for the Constitutional Court to re-look at this area of law with the aim of advancing fundamental rights.