THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR2217/20
In the matter between:
CITY OF JOHANNESBURG Applicant
and
ADVOCATE L.F. MUDAU N.O. First Respondent
MICHAEL BOIKANYO Second Respondent
Heard: 26 January 2023
Delivered:26 January 2024 (This judgment was handed down electronically by circulation t
2024.)
REASONS FOR ORDER
PHEHANE, J
[1] The applicant seeks the reasons for the order issued by this Court on 26
January 2023 dismissing its review application against the decision on appeal by the
first respondent.
Background
[2] The second respondent was employed by the applicant as a security guard.
He was summarily dismissed for having failed to disclose to the applicant at the time
he was employed, that he had a previous criminal conviction.
[3] Following his dismissal, the second respondent lodged an internal appeal
against his dismissal on the grounds that it was both procedurally and substantively
2
unfair. In essence, the second respondent alleged that the applicant failed to adhere
to the principle of audi alteram partem before dismissing him from employment in
that it failed to invoke and comply with its own disciplinary code and procedure which
is binding on it and is contained in a collective agreement termed the “South African
Local Government Bargaining C ouncil Disciplinary Procedure Collective A greement”
(the disciplinary code). It is common cause that no disciplinary hearing was held prior
to his dismissal.
[4] The first respondent was appointed as the chairperson of the appeal in terms
of the provisions of the disciplinary code. On determining the appeal by the second
respondent, the first respondent found that the applicant did not follow clause 7 of
the disciplinary code. In the circumstances, he found that the dismissal was both
procedurally and substantively unfair . He set aside the dismissal and ordered that
the first respondent be reinstated and be afforded an opportunity to state his case in
a disciplinary hearing that is formally constituted.
[5] The applicant brings this application to review and set aside the decision by
the first respondent on appeal. The review application is accompanied by an
application for condonation for its late filing.
[6] I have considered the condonation application and I am of the view that good
cause has been shown for the late filing of the review application. In the premises,
granted condonation for the late filing of the review application.
Grounds of appeal
[7] In its founding affidavit, the applicant states that the review is a legality review,
alternatively, a review in terms of the Promotion of Administrative Justice A ct,
1
further alternatively, a review at common law. Although the applicant does not
specifically plead that its review is in terms of the provisions of section 158(1)(h) of
the Labour Relations Act 2 (LRA), the content of the founding affidavit seems to
suggest this. Then there are the applicant’s heads of argument that state in
1 Act 3 of 2000.
2 Act 66 of 1995, as amended.
3
paragraph 5, that the review is in terms of section 158(1)(h) of the LRA. The grounds
of review it would appear, are contained in paragraphs 24 to 30 of the founding
affidavit under the narrow heading: “Defects in the Appeal Outcome”.3
[8] The grounds of review are that the first respondent ’s findings are irrational or
he exceeded his powers in several respects. In essence, the grounds of review are
that the first respondent did not consider and determine the merits of the dismissal of
the second respondent to its conclusion, thus did not ensure the expedi tious
resolution of the dispute. In addition, he exceeded his powers by reinstating the first
respondent, as clause 17.10 of the disciplinary code does not provide for a remittal
of the dispute. Furthermore, the applicant alleges that the first respondent failed to
deal with the substantive fairness of the dismissal and incorrectly found that
procedural and substantive unfairness overlapped.
[9] The first respondent opposes the review essentially, on the premise that the
there is no basis upon which to review the appeal outcome.
Evaluation
[10] The applicant does not deny that the disciplinary code and procedure is
binding on it. It accepts that the first respondent was appointed in terms of the
disciplinary code to determine the appeal.
[11] The first respondent sets out in great detail in his report containing the
outcome of the appeal, what steps the applicant ought to have taken in terms of the
disciplinary code to deal with the allegation against the first respondent. He
determines the appeal in terms of the provisions of the disciplinary code. His
decision is in terms of the provisions of clause17.10 of the disciplinary code which
reads thus:
3 See: Founding Affidavit at pp 8 to 10.
4
‘The presiding officer of the disciplinary appeal hearing shall have the power to
confirm, set aside any decision, determination of finding and to confirm, set aside or
reduce any sanction imposed by the presiding officer of the disciplinary hearing’.
[12] Although it is so, that there was no sanction imposed by a presiding officer of
the disciplinary hearing as no disciplinary hearing was held, I find that the first
respondent acted within the purview of clause 17.10 in setting aside the dismissal of
the first respondent. His decision effectively gives the applicant the opportunity to
“get it right” and follow the provisions of the disciplinary code. He is alive to the issue
that there is a case that the first respondent is to answer and emphasises that the
correct procedure as set out in the disciplinary code should be followed in so doing.
[13] In the circumstances, I find that the first respondent acted within the power
granted to him in the disciplinary code. He considered the facts before him, the
grounds of appeal and the provisions of the disciplinary code and made a decision in
line with the disciplinary code as he was empowered to do. Therefore, his decision is
rationally related to the purpose for which the power was given and his decision is
not arbitrary, capricious or taken in bad faith or with improper motive.
4
[14] In view of the afore -going, I find that the review is unmeritorious and that no
case is made out on the applicant’s case as pleaded for in a legality review. In the
premises, the review did not succeed.
[15] It is for these reasons that the review application was dismissed.
M. T. M. Phehane
Judge of the Labour Court of South Africa
4 Basson v Provincial Commissioner (Eastern Cape), Department of Correctional Services [2003] 4
BLLR 341 (LC).