Johannesburg — THE Supreme Court of Appeal last week ruled that the high court has the jurisdiction to hear labour matters together with the Labour Court, in a departure from a precedent set by the Constitutional Court .

Appeal Judge Robert Nugent ruled on Friday that a 2007 Constitutional Court decision that the high court did not have jurisdiction in a certain matter was made as observations and thoughts, and was not binding.

Friday's judgment ends lingering doubts that high courts have jurisdiction to hear labour matters, along with designated labour courts. In giving his ruling, Nugent clarified a problematic judgment from the Constitutional Court that had left potential litigants unsure whether the high court could hear their case.

"The ... views of the majority that the high court had no jurisdiction to consider the claim was not the ratio for the order that it made and what was said by various members of the court in that regard is thus not binding upon us," Nugent said.

Ratio is a legal phrase that refers to the legal and social principles used by the court to compose the rationale of a particular judgment. It is binding on courts of lower jurisdiction.

The Constitutional Court, in its judgment between Petronella Chirwa and Transnet, ruled that labour courts, and not the high courts, must rule on labour disputes.

Nugent said the Constitutional Court's decision on whether the high court had jurisdiction was obiter, or made as observations and thoughts, and did not have to be followed.

What bound the lower court was only the rationale of the decision of a higher court and not what might have been said in passing, although the views of a higher court were always instructive, he said.

The Chirwa judgment ha s been a source of confusion. Law firm Bowman Gilfillan partner Chris Todd said courts had difficulty following the Chirwa judgment because it contrasted with a 2001 Constitution Court judgment which found the high court had concurrent jurisdiction with the Labour Court to determine employment matters which arose from the common law contract of employment. The judgment was an expression of a policy that people should not simultaneously pursue claims in the Labour Court and the high court, he said.

Friday's ruling came out of a case against the University of Zululand. Prof Edward Makhanya had instituted an action against the university, where he had been employed on contract, in the KwaZulu-Natal High Court in Durban. Makhanya said the university had purported to terminate the contract in breach of its terms. He had continued to render his services but the university had not paid him and he claimed orders compelling the institution to do so.

In a special plea , the university challenged the jurisdiction of the high court to consider the claim.

"The jurisdictional challenge is curious because claims for the enforcement of contracts are commonplace in the high courts," Nugent said. H e dismissed the special plea by the university . He also sent the matter back to the high court so it could deal with the remaining issues.