Public Servants Association v Department of Home Affairs (J189/2012) [2015] ZALCJHB 406 (12 November 2015) per Tlhotlhalemaje AJ.

Excerpts from judgment

“[20] Flowing from the decisions in Chirwa and Gcaba v Minister of Safety and Security and Others[13] , it is generally accepted that the conduct of the state in its capacity as an employer does not constitute an administrative action. Thus employment disputes between the state and its employees should ordinarily be dealt with in terms of the dispute resolution mechanisms created by the LRA or other relevant labour related legislation.

There may however be instances where the Court may depart from the general rule. This would obviously be dependent on

  • the nature of the decision sought to be impugned,
  • the source upon which the decision was taken, and
  • whether the power exercised was in terms of a contract or a statute[14]

[21] Applying the above principles to the facts of this case, the question to be determined is what is the legal nature of the Applicant’s challenge to the impugned decisions.

It is noted in this case that the Applicant chose not to frame its dispute as pertaining to an unfair labour practice disputes within the meaning contemplated in section 186(2)(a) of the LRA[15].

The Applicant further chose not to pursue the claim in terms of section 34 of the Basic Conditions of Employment Act[16] (The BCEA). Its reasoning was that it does not seek to attack the review of the performance ratings or the decision to review the performance ratings.

The attack is primarily against the decision to effect deductions after payments were made in terms of the review process.

Thus the issue for the Applicant was the legality of the impugned decision.

[22] To the extent that it was contended on behalf of the Respondents that the nature of the dispute fell squarely within the meaning of an unfair labour practice as contemplated in section 186(2)(a) of the LRA, the Labour Appeal Court (Per Musi AJA) in Apollo Tyres South Africa (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others[17] held that;

“In IMATU obo Venter v Umhlathuze Municipality, the Labour Court followed the Protekon approach. It then concluded that:

‘The more plausible interpretation is that the term “benefits” was intended to refer to advantages conferred on employees which did not originate from contractual or statutory entitlements, but which have been granted at the employer’s discretion.’

It seems to me that the court in IMATU was concerned that if benefits include a statutory or contractual right or entitlement, the right to strike may be curtailed. As pointed out above employees will have an election to strike or go the arbitration/adjudication route in respect of many rights disputes.

In my view, the better approach would be to interpret the term benefit to include a right or entitlement to which the employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer’s discretion.

In my judgment “benefit” in section 186(2)(a) of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer’s discretion.

In as far as Hospersa, GS4 Security and Scheepers postulate a different approach they are, with respect, wrong.”[18]

[23]      Ordinarily in line with the above dictum, the Applicant’s dispute would fall squarely within the realm of section 186(2)(a) of the LRA, as the subject of the dispute is payment in respect performance bonuses, which was an issue regulated and ‘granted’ in terms of the Policy.

However, since on the Respondent’s version the decision to deduct the payments made or not to make payments was predicated on the provisions of section 38 of the PSA, and since further the impugned decision is not attacked on the basis of fairness, the legal basis for challenging the decision is that whilst the Director General was empowered to determine the amount of the instalments payable in respect of the deductions, the decision to effect those deductions and reverse the incorrect payments lay with the Minister, and further that in terms of the provisions of section 38 of the PSA, all affected persons should be afforded a fair hearing  before a decision was made.

[24]      It therefore follows that the legal nature of the Applicant’s challenge to the impugned decisions is one for judicial review under the principle of legality, which the Court has jurisdiction to determine under the provisions of section 158(1)(h). 

This is so in that it becomes irrelevant whether the decision sought to be impugned is administrative or not, as the principle of legality is applicable to all exercises of public power and not only to “administrative action” as defined in PAJA.  It is thus required that all exercises of public power are, at a minimum, lawful and rational .  To the extent that the decision sought to be impugned has its source in legislation, regulations and the Policy of the Department, this Court therefore has the requisite jurisdiction and powers of review under the provisions of section 158(1)(h) of the LRA.”