Assume you are employed in the public sphere as a deputy director and your employer purports to terminate your employment.   Your employer then agrees to ‘pre-dismissal arbitration’, as provided in s 188A of the Labour Relations Act, 1995 [LRA], to determine the fairness thereof, but reneges on the agreement.   Do you have a cause of action based on your right to lawful, reasonable and procedurally fair administrative action in terms of the Constitution and the Promotion of Administrative Justice Act, 2000 [PAJA] ?

In a very recent judgment the Supreme Court of Appeal [SCA] reinforced the need to distinguish between the purpose of ss 23 and 33 of the Constitution.   Section 23 regulates the relations between employers and employees whereas s 33 deals with the relations between the state and its citizens.   Section 23 guarantees the right to ‘fair labour practices’ whereas section 33 guarantees ‘lawful, reasonable and procedurally fair administrative action’.

In Tshavhungwa v NDPP (328/09 & 593/08) [2009] ZASCA 136 (2 November 2009) Nugent JA, on behalf of a unanimous bench, disallowed an appeal from the judgment of Mavundla J in the North Gauteng High Court and reversed an order for costs against the NDPP.

It seems that the NDPP reneged on an agreement to refer a dispute to ‘pre-dismissal arbitration’ as provided for in section 188A of the LRA.  It was held that deputy director’s claims, including the purported termination of his employment, founded on an alleged breach of a constitutional right to lawful administrative action, were flawed because the termination of employment of an employee in the public sphere does not constitute ‘administrative action’.

Nugent JA specifically left open the question of whether s 33 of the Constitution has a residual effect:

“[17]     … It is sufficient to say that the application can succeed, whether by direct application of the Constitution, or by its indirect application through the provisions of the Act [PAJA], only if the conduct complained of by Tshavhungwa constitutes ‘administrative action’ as envisaged by the Constitution and the legislation.

[18]      In the course of its reasoning the court below gave some attention to that question with reference to the decision of the Constitutional Court in Chirwa v Transnet Ltd.   That decision, and others that followed upon it, has since been overtaken by the decision of that court in Gcaba v Minister of Safety and Security, which has helpfully clarified some of the issues that arose in Chirwa, and which is decisive of this case”.  [Footnotes ommitted]