IN THE HIGH COURT OF ESWATINI
JUDGMENT
Case No. 1779/2019
SENZO MSIBI APPLICANT
And
THE TEACHING SERVICE COMMISSION 1ST RESPONDENT
THE ATTORNEY GENERAL 2ND RESPONDENT
In Re:
SENZO MSIBI APPLICANT
And
THE TEACHING SERVICE COMMISSION 1ST RESPONDENT
THE ATTORNEY GENERAL 2ND RESPONDENT
Neutral citation: Senzo Msibi Vs The Teaching Service Commission and Another (1779/2019) [2020] SZHC 10 [27th January 2020]
Coram: MLANGENI J
Heard: 17th December 2019
Delivered: 27th January 2020
SUMMARY
Administrative Law – Application to review the decision in terms of which the Applicant was being transferred to another workstation.
Civil Procedure – Applicant launching an interlocutory application for stay of execution of the decision to transfer him to another school.
Requirements for a stay of execution discussed.
Question arose whether common law review has survived the advent of The Constitution, Section 33 of which specifically refers to “administrative justice”. A further and related question is whether the decision to transfer an employee is administrative or contractual.
Held: Section 33 of The Constitution has brought finis to common law review, the effect of which is that administrative decisions are now reviewable only in terms of the constitution.
Held, further: In approaching this court on the basis of the common law the Applicant is before the wrong forum, and therefore has no prospects of success in the main application.
Application for stay dismissed, costs to be in the cause of the main application (if the Applicant is minded to proceed with same).
JUDGMENT
[1] The Applicant is a teacher, and therefore subject to the authority of the First Respondent, The Teaching Service Commission (TSC). His workstation is Mbuluzi High School where he occupies the position of Deputy Head teacher. On the 4th January 2019 the TSC promoted the Applicant to the position of Head teacher and assigned him to Siphumelele High School. The Applicant declined the promotion and resisted the transfer. The reasons for his stance are not relevant for purposes of this judgment. Subsequently, he was transferred from Mbuluzi High School to Malunge High School as Deputy Head teacher. Once again he resisted the transfer and on the 4th February 2019 he launched an urgent application in the Industrial Court seeking to interdict the transfer. This application was not prosecuted to finality.
[2] On the 30th October 2019 the Applicant instituted an urgent application in this court seeking a review of the decision to transfer him from Mbuluzi to Malunge, as well as an order to be reinstated as deputy head teacher at Mbuluzi High School. Subsequently, he launched the present interlocutory application in which he seeks a stay of the transfer to Malunge High School, pending finalization of the application for review which is pending in this court.
[3] It is settled that an order for stay of execution is discretionary. His Lordship Fakudze J. 1, quoting Tebbutt J. with approval, put the position in this manner –
“The court will generally speaking grant a stay of execution where real and substantial justice requires such a stay or put otherwise, where injustice would otherwise be done…...”.
It is equally settled that the discretion has to be exercised judiciously and judicially 2. The onus is upon the Applicant to show that if execution was allowed to proceed he or she stands to suffer irreparable harm 3. In casu, the Applicant argues that irreparable harm would be occasioned once his position at Mbuluzi High School is assigned to someone else, as the review application would then be rendered academic.
[4] Where the Applicant seeks a stay of execution pending the outcome of on-going process, in this case the review application, it has to show that there are prospects of success in that process. This is obviously because if there are no such prospects the stay of execution would be of no useful purpose. My immediate focus, therefore, is to determine whether there are prospects of success in the application for review that is pending before this court.
[5] The Respondents’ opposition to the application stands on two legs. Firstly, it is that the effect of Section 33 of the Constitution was to dispense with common law review, so that review can now only be in terms of the said Section. Section 33 (1) provides as follows –
“A person appearing before any administrative authority has a right to be heard and to be treated justly and fairly in accordance with the requirements of fundamental justice or fairness and has a right to apply to a court of law in respect of any decision taken against that person with which that person is aggrieved”.
It is of significance that the heading of the Section is “RIGHT TO ADMINISTRATIVE JUSTICE”.
[6] It is apparent that in this jurisdiction the courts have not unequivocally spelt out whether judicial review remains in the realm of the common law or has been subsumed in the constitutional provision quoted above. The Respondents argue that common law review cannot co-exist with the review as promulgated in the constitution, and that the latter must now be accepted as the only regime. In South Africa the courts, after an era of much equivocation, finally settled the issue and decided that the only legal framework and basis for judicial review is the constitution 4, per Section 33 thereof. The constitutional court in that jurisdiction, in the case of BatoStar Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 5, emphatically articulated the position as follows –
“…….There are not two systems of law regulating administrative action – the common law and the Constitution – but only one system of law grounded in the constitution. The courts’ power to review administrative action no longer flows directly from the common law but from ………the Constitution itself. The grundnorm of administrative law is now to be found in the first place not in the doctrine of Ultra Vires, nor in the doctrine of Parliamentary Sovereignty, no in the Common Law itself, but in the principles of our Constitution”.
[7] I am highly persuaded by the position that has been adopted by the highest court in the Republic of South Africa, the Constitutional Court, on the subject, as espoused in the judgments referred to above 7. Our constitution is the supreme law of the land 8 and where it has decreed with irresistible clarity and certainty there is no need to look beyond it. I am of the view that common law review has died, and I therefore cannot uphold the Applicant’s position that he can still approach this court on the basis of its inherent common law power.
To do so would, in the context of the present proceedings and like cases, have the effect of undermining the Constitution. The positon that I am adopting must not be seen as derogating from the power of the Industrial Court to review employer – employee decisions to determine issues of procedural fairness. It also has nothing to do with the efficacy of Rule 53 of the High Court rules, which still defines the procedure for seeking judicial review.
[8] The second leg of the Respondents’ opposition is that the decision to transfer the Applicant is ex contractu and not administrative 9. In order words it arises out of the contract of employment, and therefore not reviewable in the common law courts. As I have stated above, such decisions are reviewable through the processes that are enshrined in the Industrial Relations Act 2000 as amended. This, in my view, is consistent with the notion of exclusivity on which there is an abundance of discourse. In this context I make reference to the astute observations of Skweyiya J. in the case of Chirwa v Transnet Limited and others 10.
“41. It is my view that the existence of a purpose – built employment framework in the form of the LRA and associated legislation infers that labour processes and forums should take precedence over non – purpose – built processes and forums in situations involving employment – related matters. At the least, litigation in terms of the LRA should be seen as the more appropriate route to pursue. Where an alternative cause of action can be sustained in matters arising out of an employment relationship ……it is in the first instance through the mechanisms established by the LRA that the employee should pursue her or his claim”.
[9] On the basis of the aforegoing, has the Applicant established prospects of success in the pending application for review? In my view he has come to the wrong forum, and therefore has no prospects of success. It follows, therefore, that the application for stay of execution stands to be dismissed. I therefore make the following order –
9.1 Application dismissed.
9.2 Costs to be in the main application (if the Applicant is minded to proceed with same).
______________________
MLANGENI J
For The Applicant : Mr S.B. Dlamini
For the Respondents : Mr M. Vilakati
