DENOSA obo van der Merwe v Department of Health and Social Development (J1282/09) [2010] ZALC 293 (30 August 2010)

DENOSA obo van der Merwe v Department of Health and Social Development (J1282/09) [2010] ZALC 293 (30 August 2010)

The court found, on the probabilities, that the respondent had made an undertaking during the grievance conciliation to recall the interviews and allow the applicant to be interviewed for the disputed post. The respondent failed to provide a confirmatory affidavit from a material witness, which weighed against its version. The respondent's reliance on a defective application was not sustainable, as the applicant's explanation for the certification dates was plausible and the panel's records did not support the respondent's claim. Even if the application was defective, the applicant should have been afforded an opportunity to remedy the defect, especially given the respondent's concession...

Citation
[2010] ZALC 293
Parties
Applicant: DENOSA obo J E Van der Merwe; Respondent: Department of Health and Social Development
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
30 August 2010
Case Number
J1282/09
Procedural Posture
Urgent Application / Return Date for Confirmation of Rule Nisi
Outcome
Rule nisi confirmed with costs in favour of the applicant.
Judges
Bhoola
Legal Topics
Unfair Labour Practice, Urgent Interdict, Selection and Appointment, Grievance Procedure
Labour Law Civil Procedure Unfair Labour Practice Urgent Interdict Selection and Appointment Grievance Procedure

Case Brief

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Parties

DENOSA obo J E Van der Merwe

Applicant

Department of Health and Social Development

Respondent

Procedural Posture

Urgent Application / Return Date for Confirmation of Rule Nisi

Legal Issues

  1. 1 Whether the respondent undertook to recall the interviews and grant the applicant an opportunity to be interviewed for the disputed post.
  2. 2 Whether the applicant was unfairly excluded from the shortlisting process for the Assistant Director Sedibeng District post.
  3. 3 Whether the respondent's reliance on a defective application as the reason for exclusion is sustainable.

Ratio Decidendi

The court found, on the probabilities, that the respondent had made an undertaking during the grievance conciliation to recall the interviews and allow the applicant to be interviewed for the disputed post. The respondent failed to provide a confirmatory affidavit from a material witness, which weighed against its version. The respondent's reliance on a defective application was not sustainable, as the applicant's explanation for the certification dates was plausible and the panel's records did not support the respondent's claim. Even if the application was defective, the applicant should have been afforded an opportunity to remedy the defect, especially given the respondent's concession...

Court Disposition

Rule nisi confirmed with costs in favour of the applicant.

Orders

  • The respondent is directed to recall the job interviews for the post of Assistant Director Sedibeng District, reference number 7067765.
  • The respondent must grant Ms Van der Merwe an opportunity to be interviewed for the post.