O Thorpe Construction v Minister  of Labour (9380/2013) [2014] ZAWCHC 140; (2015) 36 ILJ 935 (WCC) (9 September 2014) per Davis J.

The High Court upheld the point in limine and found that it did not have jurisdiction after considering the argument of counsel for the bargaining council by considering a series of stages each of which required a careful analysis of certain provisions of the LRA; in particular s 157(1) and (2) which had to be interpreted through the prism of the LRA read as a whole. ‘The preamble to the LRA provides, inter alia, that the purpose of the Act is, ‘to establish the Labour Court and the Labour Appeal Court as superior courts, with exclusive jurisdiction to decide matters arising from the Act.’ Section 3 (a) of the LRA provides that any person applying this Act must interpret its provision to give effect to its primary objects’.

Excerpts

[21]     There is an exclusive power which is granted to the Labour Court. So much is clear from s 157 (1) of the LRA.  Furthermore in para 123, the court in Chirwa clearly indicated that s 157(2) had to be confined to instances ‘where a party relies directly on the provisions of the Bill of Rights.  This of course is subject to constitutional principle that …where legislation is enacted to give effect to a constitutional right to, the litigant may not bypass that legislation relied directly on the constitution without challenging that legislation as falling short of the constitutional standard.’  

[22]     The animating idea captured herein is the recognition of the principle of constitutional subsidiarity.  The dictum further eschews an argument that would so expand the range of constitutional litigation, otherwise constrained by the ambit of s 157(1), with the result that parallel jurisdiction would invariably be created.  In almost any case, in which the LRA applied, an applicant could then argue that there was a breach of legality; that is of a provision of the LRA and by extension of the Constitution.  In short, a breach of legality would occur in almost every case where it was alleged that there was a breach of or non-compliance with a provision of the LRA.

. . . . .

[24]    In the present case, the claim made by the applicants was that the Minister failed to comply with the LRA and, in particular with s 32; hence the relief sought by the applicants was for an order reviewing and setting aside the decision made by the Minister, pursuant to s 32 of the LRA. The very act of extension of a collective agreement to non-parties in the building industry constitutes the performance of a function provided for expressly in the LRA.   The Constitutional Court in Gcaba, supra, far from adopting a different approach to that set out by Ngcobo J in Chirwa, reinforced this conclusion, as is apparent from the following passages at para 70 – 72:

‘[70]    Section 157(1) confirms that the Labour Court has exclusive jurisdiction over any matter that the LRA prescribes should be determined by it.  That includes, amongst other things, reviews of the decisions of the CCMA under s 145.   Section 157(1) should, therefore, be given expansive content to protect the special status of the Labour Court, and s 157(2) should not be read to permit the High Court to have jurisdiction over these matters as well.

[71]      Section 157(2) confirms that the Labour Court has concurrent jurisdiction with the High Court in relation to alleged of threatened violations of fundamental rights entrenched in Ch. 2 of the Constitution and arising from employment and labour relations, any dispute over the constitutionality of any executive or administrative act or conduct by the State in its capacity as employer and the application of any law for the administration of which the minister is responsible.  The purpose of this provision is to extend the jurisdiction or the Labour Court to disputes concerning the alleged violation of any right entrenched in the Bill of Rights which arise from employment and labour relations, rather than to restrict or extend the jurisdiction of the High Court.  In doing so, s 157(2) has brought employment and labour relations disputes that arise from the violation of any right in the Bill of Rights within the reach of the Labour Court.  This power if the Labour Court is essential to its role as a specialist court that is charged with the responsibility to develop a coherent and evolving employment and labour relations jurisprudence.  Section 157(2) enhances the ability of the Labour Court to perform such a role.

[72]      Therefore, s 157(2) should not be understood to extend the jurisdiction of the High Court to determine issues which (as contemplated by s 157(1)) have been expressly conferred upon the Labour Court by the LRA.   Rather, it should be interpreted to mean that the Labour Court will be able to determine constitutional issues which arise before it, in the specific jurisdictional areas which have been created for it by the LRA, and which are covered by s 157 (2) (a), (b) and (c).’

[25]     It follows from this holding that, if as in this case, the cause of action concerns an alleged breach of  a provision of the LRA, it is a matter which falls within the exclusive jurisdiction of the Labour Court.