Biyase v Sisonke District Municipality and Another (D 999/11) [2011] ZALCD 9; (2012) 33 ILJ 598 (LC) (28 November 2011)

Biyase v Sisonke District Municipality and Another (D 999/11) [2011] ZALCD 9; (2012) 33 ILJ 598 (LC) (28 November 2011)

The court found that the applicant was not afforded the required seven days to make representations before suspension, as mandated by regulation 6 of the Local Government: Disciplinary Regulations for Senior Managers, 2010. The municipality's failure to comply with this procedural requirement rendered the suspension unlawful. The court rejected the applicant's reliance on an implied common law right to fair dealing, following the Supreme Court of Appeal's decision in Mackenzie, which held that no such implied right exists unless specifically provided for. The applicant established a clear right to have his suspension declared unlawful and set aside, but did not establish a right to...

Citation
[2011] ZALCD 9
Parties
Applicant: TP Biyase; Respondent: Sisonke District Municipality; Respondent: NM Mabaso
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
28 November 2011
Case Number
D 999/11
Procedural Posture
Urgent Application / First Instance Judgment
Outcome
Application granted in part: suspension declared unlawful and set aside; reinstatement ordered; costs awarded to applicant.
Judges
A J Steenkamp
Legal Topics
Precautionary Suspension, Disciplinary Regulations, Contractual Rights, Unlawful Suspension
Labour Law Administrative Law Precautionary Suspension Disciplinary Regulations Contractual Rights Unlawful Suspension

Case Brief

Summary, issues, holding and outcome

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Parties

TP Biyase

Applicant

Sisonke District Municipality

Respondent

NM Mabaso

Respondent

Procedural Posture

Urgent Application / First Instance Judgment

Legal Issues

  1. 1 Whether the applicant's suspension complied with the Local Government: Disciplinary Regulations for Senior Managers, 2010.
  2. 2 Whether the applicant was afforded the required seven days to make representations before suspension.
  3. 3 Whether a common law right to fair dealing exists in employment contracts post-Mackenzie.

Ratio Decidendi

The court found that the applicant was not afforded the required seven days to make representations before suspension, as mandated by regulation 6 of the Local Government: Disciplinary Regulations for Senior Managers, 2010. The municipality's failure to comply with this procedural requirement rendered the suspension unlawful. The court rejected the applicant's reliance on an implied common law right to fair dealing, following the Supreme Court of Appeal's decision in Mackenzie, which held that no such implied right exists unless specifically provided for. The applicant established a clear right to have his suspension declared unlawful and set aside, but did not establish a right to...

Court Disposition

Application granted in part: suspension declared unlawful and set aside; reinstatement ordered; costs awarded to applicant.

Orders

  • The applicant’s suspension by the respondents on 1 November 2011 is declared unlawful.
  • The applicant’s suspension is set aside and the respondents are ordered to reinstate him.