Kriel v The Legal Aid Board

The appellant, an attorney, was employed by the Legal Aid Board as head of the Pretoria Legal Justice Centre, responsible for supervising 13 candidate attorneys. His problems commenced in July 2002 when Ms Flavia Isola was appointed as Acting Justice Centre Executive. Disputes arose over demands that the appellant and his candidate attorneys sign new service contracts. The appellant failed to attend a staff meeting called by Ms Isola on 3 September 2002 and failed to sign an attendance register on some occasions. He also reported Ms Isola to the Law Society of the Northern Provinces, alleging she had abandoned ten candidate attorneys at the Benoni office. Ms Isola initiated disciplinary charges against him in respect of these incidents. The appellant was suspended in December 2002, and a disciplinary enquiry commenced on 25 March 2003 with J K M Mosime (second respondent) appointed as chairperson. The appellant was found guilty of misconduct and dismissed. The second respondent initially recommended dismissal, retracted this a month later, and replaced it with a sanction of dismissal. The appellant's internal appeal was dismissed by the third respondent, and he was formally notified of his dismissal on 9 September 2004 by the fourth respondent.

• Whether the dismissal of the appellant constituted 'administrative action' as envisaged by the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
• Whether the High Court had jurisdiction to review the dismissal under PAJA or whether the matter fell under the exclusive jurisdiction of the Labour Court
• Whether a public sector employee dismissed by an organ of State can seek review relief under PAJA or must pursue remedies under the Labour Relations Act 66 of 1995 (LRA)
• Whether the chairperson of the disciplinary enquiry had proper authority to act
• Whether the appellant's report to the Law Society constituted a protected disclosure under the Protected Disclosures Act 26 of 2000

The appeal was dismissed with costs. The Court upheld the dismissal of the application, though on different reasoning than the court below - not because the High Court lacked jurisdiction, but because the appellant's dismissal from employment was not an administrative act and he had therefore failed to establish his cause of action under PAJA.

The dismissal of an employee by an organ of State does not constitute administrative action as envisaged by PAJA but rather involves the exercise of a contractual power. The subject-matter of such dismissal is the termination of an employment contract; the source of the power is the employment contract; and the nature of the power is contractual, not administrative. Public sector employees are protected by the same labour law framework as private sector employees under the LRA and cannot pursue dual remedies under both PAJA and the LRA for the same dismissal. The mere fact that the employer is an organ of State exercising public power does not transform conduct in terminating an employment contract into administrative action. Constitutional section 33 is not concerned with every act of administration performed by an organ of State but draws a clear distinction between administrative action on the one hand and employment and labour relations on the other.

The Court observed that the appellant was not left without a remedy, noting it would probably have been permissible for him to bring a review in the Labour Court under s 158(1)(g) of the LRA. The Court commented that it was open to the appellant to contend his dismissal was unfair under ss 185-186 of the LRA. The Court further observed that if his allegations were accepted - that he was dismissed because he was a white Afrikaner - this would probably constitute automatically unfair dismissal under s 187(1)(f), and similarly if his report to the Law Society was protected and he was dismissed for it, this would probably be automatically unfair under s 187(1)(h). The Court noted many other allegations relied upon by the appellant, even if not leading to automatically unfair dismissal, could well justify a conclusion of unfairness under s 188. However, the Court stated it was unnecessary and undesirable to comment on what the outcome of such LRA proceedings would have been. The Court also noted it was unnecessary to decide whether the report to the Law Society was a protected disclosure, whether the second respondent lacked authority, or whether there were impermissible delegations, as these issues were irrelevant to whether the dismissal constituted administrative action.

This case is significant in South African law as it confirms and applies the Constitutional Court's principle in Chirwa v Transnet that the dismissal of public sector employees does not constitute administrative action reviewable under PAJA. It reinforces the unification of labour law protections between public and private sectors post-Constitution, clarifying that public sector employees must pursue remedies under the LRA rather than seeking administrative law review of dismissals. The case demonstrates that even where multiple alleged irregularities exist (improper delegation, bias, procedural violations, protected disclosures), these do not transform a contractual dismissal into administrative action. It provides important guidance on the distinction between administrative action and contractual employment relationships in the public sector, and emphasizes that section 33 of the Constitution is not concerned with every act of administration by an organ of State. The judgment also clarifies that while PAJA review may not be available, extensive remedies remain available to dismissed public employees through the LRA framework.