Promotion of Administrative Justice Act, 2000 and Discipline

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• Promotion of Administrative Justice Act, 2000 and
  Discipline
• presentation to
• Conference on Discipline Management in the Public
  Service 31 October 2006

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CONTENT

• Introduction
• Legislative Framework
• General Principles of PAJA
• Management of Discipline v PAJA (public sector)
  case development
• Concluding remarks

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INTRODUCTION

• Administrative law- a branch of public law
  dealing with firstly, rules conferring on
  administrators competence to exercise perform
  public function
• Secondly, these legal rules prescribes procedure
  to follow when exercising public function and
  ensure that action is within boundaries of law
• Thirdly, rules provide for control over action
  when power is exercised. Previously, emphasis was
  more on third function of admin law, ie control
  admin action via judicial review
• Given SAs past history, understandable why
  Constitutions expressed vision is to safeguard
  and protect individuals against abuse of power by
  organs of state
• This presentation attempts to find link between
  management of discipline and administrative law
  principles (in sec 33 of Constitution - now found
  in PAJA)
• Also looks at various public sector cases dealing
  with PAJA and employment relationships

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LEGISLATIVE FRAMEWORK

• Administrative Justice
• Sec 33 of Constitution - everyone has right to
  administrative action that is lawful, reasonable
  and procedurally fair. Written reasons must be
  given for administrative action. National
  legislation must be enacted to give effect to
  this right
• PAJA enacted to give effect to sec 33 of
  Constitution
• Discipline (public service)
• Public Service Act head of department is
  responsible for the management of discipline
• PSCBC Resolution 1 of 2003 (Disciplinary Code and
  Procedure) deals with disciplinary procedure for
  employees on levels 1-12 and Chapter 7 of SMS
  Handbook deal with disciplinary procedure for SMS
  members
• In both instances chairperson of hearing
  pronounces a sanction

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GENERAL PRINCIPLES OF PAJA

• PAJA requires administrators to -
• Follow fair procedure when making decision
• Give written reasons for decision
• Inform individuals of right to review or appeal
• PAJA gives individuals right to challenge
  administrative decisions in court
• PAJA ensures government is democratic,
  accountable, open and transparent, hence notion
  that PAJA advances Batho Pele principles
• Decision complies with PAJA if -
• Of administrative nature
• Made in terms of empowering provision
• Not specifically excluded by PAJA
• Taken by organ of state
• Adversely affect rights
• Having direct external legal effect

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MANAGEMENT OF DISCIPLINE V PAJA (public sector
context)- case development

• Fundamental question arises as to whether one may
  use PAJA to enforce employment rights (e.g during
  or after disciplinary proceedings)
• Note sec 23 of Constitution which protects, inter
  alia right to fair labour practices
• Number of cases recently highlighting issues
  relating to applicability or non-applicability of
  PAJA in employment related disputes
• Note sec 33 of Constitution - everyone has right
  to administrative action that is lawful,
  reasonable and procedurally fair (written reasons
  must be given for decision)
• Sec 1 of PAJA defines administrative action as
  decision by organ of state which adversely
  affects right of person and which has direct
  external legal effect

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MANAGEMENT OF DISCIPLINE V PAJA (public sector
context)- case development

• Number of cases recently referred to either High
  Court or Labour Court with arguments that
  employment related disputes are covered ito PAJA
  and that employees have additional remedies under
  PAJA
• Question always asked-
• whether particular dispute falls within scope of
  unfair labour practice (LRA applies - Labour
  Court) or whether dispute emanates from violation
  of right to fair administrative action (PAJA
  applies - High Court)
• Further question-
• whether PAJA (right to fair administrative
  action) provides employees with additional
  remedies to those in LRA

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MANAGEMENT OF DISCIPLINE V PAJA (public sector
context)- case development

• Discussion of recent interesting cases dealing
  with pertinent questions
• Can one use PAJA to fight an employment related
  dispute or are the remedies for employment
  related disputes only found in LRA?
• To what extent would PAJA apply when managing
  discipline in workplace?
• Case 1 PSA obo Hascke v MEC for Agriculture
  others
• Labour Court held that PAJA was not applicable to
  CCMA arbitrations
• NB quote from Judge
• Labour law is not administrative law. They
  may share many common characteristics. However,
  administrative law falls exclusively in the
  category of public law, whereas labour law has
  elements of administrative law, procedural law,
  private law and commercial law. Historically,
  recourse has been had to administrative law to
  advance labour rights where labour laws were
  inadequate.

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MANAGEMENT OF DISCIPLINE V PAJA (public sector
context)- case development

• Case 2 SA Police Union another v National
  Commissioner of the SAPS another
• Facts of the case
• Decision taken/challenged decision by SAPS
  Commissioner to introduce eight hour shift for
  members of SAPS
• Judgement
• Commissioners decision did not constitute
  administrative action.
• Administrative action and administrative law do
  not apply to private relationships between
  employer and employee
• Merely because a power had its origin in
  legislation, did not mean exercise of that power
  constituted administrative action for purposes of
  PAJA
• It was against public policy (contra bonos mores)
  that public sector employees should have
  additional remedies

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MANAGEMENT OF DISCIPLINE V PAJA (public sector
context)- case development

• SAPS decision was followed in Hlope v Minister of
  Safety and Security others
• Nel v SAPS arbitrator held that he was bound to
  follow a Labour Court decision in which it was
  held that provisions of PAJA are not applicable
  to employment related decisions by public sector
  employers

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MANAGEMENT OF DISCIPLINE V PAJA (public sector
context)- case development

• Case 3 Nell v Minister of Justice
  Constitutional Development
• Facts of the case
• Decision taken/challenged - dismissal of employee
  by DG
• Judgement
• High Court dismissed distinction between
  administrative law and labour law and held that
  it was wrong to characterise dispute as either
  labour or admin law and then decided that matter
  was to be decided in accordance with relevant
  body of law
• Certain forms of conduct constitute admin action
  even where it takes place in context of
  employment contract
• DGs action to dismiss constituted admin action
• DGs decision did not comply with sec 3 of PAJA
  and was reviewed and set aside employee
  reinstated in position he occupied

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MANAGEMENT OF DISCIPLINE V PAJA (public sector
context)- case development

• Case 4 Transnet Ltd other v Chirwa (Supreme
  Court of Appeal)
• Facts of case
• Decision taken/challenged - dismissal of employee
  by Transnet (an organ of state)
• Judgement (3 judgements)
• Mthiyane JA (Jafta JA concurred)
• Dismissal by Transnet was not admin action for
  purposes of PAJA
• Employment contract between Transnet and employee
  lacked public law character
• Conradie JA (Mpati DP concurred)
• Dismissal of employee constituted admin action
• Cameroon JA
• organ of state in exercising the power to dismiss
  engages in administrative action under PAJA

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CONCLUDING REMARKS

• Notable differences between approaches of our
  courts
• Labour Court - PAJA is not applicable in
  employment related disputes
• High Court - PAJA applies in employment related
  disputes
• Uncertainties still exist on whether PAJA is
  applicable in employment related disputes
• Fact that Supreme Court of Appeal is divided on
  the issue poses serious challenges
• Safer to comply with PAJA than take a risk of
  decision set aside if matter goes to High Court
  High Courts approach as seen from cases
  discussed
• Perhaps time is ripe for a PAJA amendment to
  bring certainty in our law

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Ndi a livhuwa/Thank youContact personAdv
Ailwei Mulaudzi, tel [phone],
Ailwei_at_dpsa.gov.za
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