The relationship between PAJA and the Labour Relations Act with specific reference to Chirwa v Transnet Ltd & others [2008] 2 BLLR 97 (CC)

Abstract

Prior to the adoption of the Labour Relations Act 66 of 1995 (LRA), the Constitution of the Republic of South Africa, 1996 (Constitution) and subsequently the Promotion of Administrative Justice Act 3 of 2000 (PAJA), public sector employees were at an immense disadvantage since they did not enjoy the same benefits which accrued to private sector employees under the then Labour Relations Act 28 of 1956. Unfortunately an overlap was inadvertently created by these Acts, particularly with regard to employment related disputes in the public sector. As a result courts have long grappled with the question as to whether or not public sector employees could rely on administrative law principles in employment related disputes. This dissertation examines the relationship between the LRA, PAJA and the Constitution and specific reference is made to the Constitutional Court's judgment in Chirwa v Transnet Ltd & Others [2008] 2 BLLR 97 (CC). It notes the conflicting judicial decisions on the overlap between the LRA and PAJA and the subsequent applicability of PAJA in public sector employment disputes. The dissertation notes the difficulties in excluding PAJA in its entirety and whether it will be feasible for the LRA to surpass the applicability of PAJA, given the role of both labour law and administrative law in South Africa's constitutional dispensation, with their constitutionally entrenched international obligations in mind. In this regard, the author advances some proposals in relation to the best way forward on dealing with this complex interplay by keeping the minority judgment handed down in Chirwa at the forefront.