Nomtha Makambi v The Member of the Executive Council, The Department of Education, Eastern Cape Province

The appellant, Nomtha Makambi, was an educator who started teaching with the Eastern Cape Department of Education in May 1997 on a temporary contract at Kubusie State School. She continued teaching there until 2004 when she was transferred to Tyilekani Primary School by letter dated 31 March 2004. In June 2004, she received a letter declaring her in addition to the staff establishment, stating she must be redeployed. On 20 August 2004, without receiving further notice or a placement letter, her monthly emoluments and benefits ceased. When she met with departmental officials, they stated she was a temporary educator whose employment could be terminated. On 7 October 2004, her request to change her status from temporary to permanent was denied. On 12 November 2004, she brought an urgent application in the High Court seeking to review the termination of her emoluments as unlawful administrative action under PAJA and declaring her status as permanent.

• Whether the High Court has jurisdiction to review the termination of emoluments and benefits of an educator in a state school
• Whether the appellant's complaint constituted administrative action reviewable under the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
• Whether the matter should have been dealt with as an unfair labour practice under section 191 of the Labour Relations Act 66 of 1995
• Whether the appellant was required to exhaust internal remedies before approaching the court
• The applicability and distinction between Chirwa v Transnet Limited 2008 (3) BCLR 251 (CC) and Fredericks v MEC for Education and Training, Eastern Cape 2002 (2) SA 693 (CC)

The appeal was dismissed. The order made in the court a quo on 2 December 2004 was amended by deleting paragraph 2 thereof (the costs order). Each party to bear their own costs.

Where a public service employee's complaint involves the termination of employment or emoluments and is based on an alleged violation of the constitutional right to fair labour practices under section 23(1) of the Constitution, even when also framed as a violation of the right to just administrative action under section 33, the matter falls within the exclusive jurisdiction of the Labour Court under the Labour Relations Act 66 of 1995 and not within the jurisdiction of the High Court. Such complaints constitute labour disputes that must be resolved through the mechanisms provided in the LRA. Furthermore, the dismissal of a public service employee does not constitute administrative action as contemplated by PAJA.

Nugent JA, in his separate judgment, expressed significant reservations about the legal basis for the jurisdictional finding in Chirwa v Transnet Limited. He observed that he could not discover a clear legal (as opposed to policy) reason for the outcome in Chirwa. He noted that claims for enforcement of the constitutional right to just administrative action ordinarily fall within the jurisdiction of the High Court, and that section 157(2) of the LRA expressly provides for concurrent jurisdiction. Nugent JA suggested that the majority in Chirwa appeared to be motivated by policy considerations—that it would be desirable for public service employees to pursue employment complaints only through LRA mechanisms—rather than by what the statute actually provides. He cautioned: "We must be careful, as a court, not to substitute our preferred policy choices for those of the Legislature." He expressed doubt about whether courts are bound or even permitted to adopt a supposed policy if the legislature has not embodied that policy in law. However, he found it unnecessary to resolve this question definitively in this case. Nugent JA also noted the difficulty created by two apparently conflicting decisions of the Constitutional Court (Fredericks and Chirwa) on the jurisdictional issue, and suggested that when confronted with such conflict, a lower court has freedom to choose between them based on its view of what the law ought to be, though he did not need to exercise that freedom in this case.

This case is significant for clarifying the jurisdictional divide between the High Court and Labour Court in matters involving public service employees. It applies the Constitutional Court's decision in Chirwa v Transnet Limited, establishing that disputes arising from employment relationships in the public service that involve alleged unfair labour practices (even when couched as administrative action under PAJA) fall within the exclusive jurisdiction of the Labour Court under the Labour Relations Act. The case distinguishes Fredericks v MEC for Education on the basis that unlike in Fredericks, the appellant here expressly relied on section 23(1) of the Constitution (fair labour practices). It demonstrates that where an applicant frames their complaint as both administrative action and unfair labour practice, and relies on constitutional labour rights, the matter must be pursued through labour law mechanisms rather than administrative law remedies in the High Court. The case also illustrates judicial sensitivity to costs in constitutional litigation, with the court declining to award costs against a litigant seeking to vindicate perceived constitutional rights.