Today the Constitutional Court granted a public sector employee leave to appeal against the High Court’s refusal to set aside his employer’s (the State) decision not to promote him but also dealt with multiple causes of action.   However, the Constitutional Court disallowed the appeal on the simple basis that the High Court did not have jurisdiction in the matter because the decision of the State was not administrative action and could not be reviewed as such in the High Court.   It was simply the decision of the State as employer and only affected one employee and should have been challenged as an alleged unfair labour practice in terms of the Labour Relations Act 1995, section 186(2).


In Gcaba v Minister of Safety & Security [2009] ZACC 26 it is interesting to read what the highest court in South Africa had to say about pleadings and different causes of action. It seems that employees do have a choice in many cases but that once a particular cause of action has been pleaded it may not be possible to change direction and rely on any other cause of action.

Extracts from the unanimous decision of Van der Westhuizen J (with footnotes omitted)

“[53]   First, it is undoubtedly correct that the same conduct may threaten or violate different constitutional rights and give rise to different causes of action in law, often even to be pursued in different courts or fora.   It speaks for itself that, for example, aggressive conduct of a sexual nature in the workplace could constitute a criminal offence, violate equality legislation, breach a contract, give rise to the actio iniuriarum in the law of delict and amount to an unfair labour practice.   Areas of law are labelled or named for purposes of systematic understanding and not necessarily on the basis of fundamental reasons for a separation.   Therefore, rigid compartmentalisation should be avoided”.

“[57]   . . . forum shopping by litigants is not desirable.   Once a litigant has chosen a particular cause of action and system of remedies (for example, the structures provided for by the LRA) she or he should not be allowed to abandon that cause as soon as a negative decision or event is encountered. . . .”.

“[73]   Furthermore, the LRA does not intend to destroy causes of action or remedies and section 157 should not be interpreted to do so.   Where a remedy lies in the High Court, section 157(2) cannot be read to mean that it no longer lies there and should not be read to mean as much.

Where the judgment of Ngcobo J in Chirwa speaks of a court for labour and employment disputes, it refers to labour and employment related disputes for which the LRA creates specific remedies.   It does not mean that all other remedies which might lie in other courts like the High Court and Equality Court, can no longer be adjudicated by those courts.   If only the Labour Court could deal with disputes arising out of all employment relations, remedies would be wiped out, because the Labour Court (being a creature of statute with only selected remedies and powers) does not have the power to deal with the common law or other statutory remedies”.

“[74]    The specific term “jurisdiction”, which has resulted in some controversy, has been defined as the ‘power or competence of a Court to hear and determine an issue between parties’.   This Court regularly has to decide whether it has jurisdiction over a matter, because it may decide only constitutional matters and issues connected with decisions on constitutional matters.   If a litigant raises a constitutional issue, this Court has jurisdiction, even though the issue may eventually be decided against the litigant”.

“[75]   Jurisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa, and not the substantive merits of the case.   If Mr Gcaba’s case were heard by the High Court, he would have failed for not being able to make out a case for the relief he sought, namely review of an administrative decision.   In the event of the Court’s jurisdiction being challenged at the outset (in limine), the applicant’s pleadings are the determining factor.   They contain the legal basis of the claim under which the applicant has chosen to invoke the court’s competence”.