n Acta Juridica - Precedent, separation of powers and the Constitutional Court
|Article Title||Precedent, separation of powers and the Constitutional Court|
|© Publisher:||Juta Law Publishing|
|Publication Date||Jan 2012|
|Pages||148 - 169|
The Constitutional Court has recently pronounced in Gcaba v Minister for Safety and Security that administrative law, and its incarnation the Promotion of Administrative Justice Act 3 of 2000 (PAJA), have no application to public sector employment. Before Gcaba, the courts had not squarely confronted a fundamental issue concerning the relationship between labour law and administrative law: at the time when PAJA was enacted, the legislature was aware of the existence of the Labour Relations Act 66 of 1995 (the LRA) with its application to public sector employment contracts. Despite this, the legislature, in promulgating PAJA, did not expressly exclude decisions in this sphere from its reach. By not expressly excluding employment contracts from PAJA's reach, the legislature made a policy choice. It was a choice which had already been recognised, if not entrenched, in a previous decision of the Constitutional Court in Fredericks and Others v MEC for Education & Training, Eastern Cape and Others. In this contribution I will argue that the effect of the Gcaba decision was to overturn the earlier ruling of the court in Fredericks. This has ramifications: first, I argue that the Gcaba decision upsets a legislative choice; and second, the decision departs from binding precedent. I will argue that this has implications for democracy, the role of the legislature and the location of legislative policy-making. I will not enter the debate about whether the outcome in Gcaba was correct or preferable, but will note that the location of policy-making has profound implications for the legitimacy of any particular legislative policy outcomes.
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