Full text loading...
n Stellenbosch Law Review = Stellenbosch Regstydskrif - Gcaba v The Minister for Safety and Security : concurrent jurisdiction now settled law?
[Discussion of Gcaba v Minister for Safety and Security 2010 1 SA 238 (CC)]
This paper seeks to critically analyse Gcaba v The Minister for Safety and Security 2010 1 SA 238 (CC). The central question which this paper seeks to answer, is where exactly Gcaba has taken the law, with respect to the intersection between administrative law and labour law, which has been a subject of much debate. The two most critical questions that the article seeks to deal with relate, firstly, to the question of concurrent jurisdiction between the Labour Court and the High Court in relation to labour matters; and secondly, to whether the conduct of a public service employer towards an employee can amount to administrative action, a matter which had been dealt with in Chirwa v Transnet Limited 2008 4 SA 365 (CC). Gcaba, it will be contended, has managed to confirm and concretise the correct position laid out in Chirwa that the conduct of a public service employer towards an employee does not necessarily amount to administrative action.
We will argue and demonstrate why we believe that Gcaba has not taken the law further than Chirwa with respect to concurrent jurisdiction. The paper will explain why Gcaba will not be the last case to deal with the issue of concurrent jurisdiction and why the matter is not settled law yet. To this extent, section 157(2) of the Labour Relations Act 66 of 1995 will be analysed in the light of the Constitutional Court's interpretation of the particular section in Gcaba and the minority views in the Chirwa judgment. Proposals will be made on how to resolve the interpretative challenges which have resurfaced in Gcaba.
Article metrics loading...