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[2011] ZALCJHB 106
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Mahlangu v Premier: Mpumalanga Provincial Government and Another (J 2757/011) [2011] ZALCJHB 106 (5 December 2011)
1
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
Not reportable
CASE NO J 2757/011
In
the matter between:
DR
JOHNSON JERRY MAHLANGU
….............................................................
Applicant
and
PREMIER:
MPUMALANGA PROVINCIAL
GOVERNMENT
…..................................................................................
First
Respondent
MEC:
DEPARTMENT OF HEALTH
MPUMALANGA PROVINCIAL
GOVERNMENT
…..........................
Second
Respondent
Date of application: 2
December 2011
Date of judgment: 5
December 2011
JUDGMENT
___________________________________________________________________
VAN
NIEKERK J
[1] This is an urgent
application in which the applicant seeks a final interdict declaring
his suspension and a pending disciplinary
hearing unlawful.
[2[ The applicant was
placed on suspension on 4 November 2011 after being afforded an
opportunity to furnish reasons why he should
not be suspended. The
basis for the suspension and the subsequently convened disciplinary
enquiry is a forensic audit report that
had found gross financial
irregularities in the Department of Health, which is headed by the
applicant. The disciplinary enquiry
that is the subject of this
application was to have commenced on 28 November 2011, and has been
postponed pending the outcome of
these proceedings.
[3] The respondents
contend that the application is not urgent. They rely
inter alia
on the proposition that this court, while it has the powers to
intervene in domestic disciplinary hearings, will do so if and only
if the circumstances are exceptional, and a grave injustice not
capable of being remedied, would result (see, for example,
Mahlalela
v Officer of the Pension Funds Adjudicator
(2011) 32
ILJ
1932
(LC)). The respondents submit that the present application does not
fall into this category.
[4] In the present
instance, the applicant relies primarily for the relief that he seeks
on a lack of authority on the part of the
first respondent to
discipline him. This is not a point that has been raised before or
considered by the chairperson of the disciplinary
hearing, even less
is it the subject of a ruling. The applicant has, in effect, bypassed
domestic proceedings to come to this court
to seek a final order in
respect of an issue that ought, in the first instance, to be the
subject of a ruling in those proceedings.
It may well be that the
chairperson of the enquiry is prepared to entertain the applicant’s
point and that he finds merit
in it. In that event, it would be a
simple matter to have the charges re-issued by the relevant
authority. I express no views on
this issue – for present
purposes, it need only be said these proceedings are premature, and
the application stands to be
dismissed on that basis.
[5] Finally, there is no
reason why costs should not follow the result.
I accordingly make the
following order:
The application is
dismissed, with costs.
ANDRE VAN NIEKERK
JUDGE OFTHE LABOUR
COURT
Appearances:
For the applicant: Mr S
Mhlungu, Werksmans Attorneys
For the respondents: Adv
P Nkuta.