Department of Justice v Hartzenberg (JA16/00) [2001] ZALAC 7; 2002 (1) SA 103 (LAC); [2001] 9 BLLR 986 (LAC); (2001) 22 ILJ 1806 (LAC) (5 June 2001)

Department of Justice v Hartzenberg (JA16/00) [2001] ZALAC 7; 2002 (1) SA 103 (LAC); [2001] 9 BLLR 986 (LAC); (2001) 22 ILJ 1806 (LAC) (5 June 2001)

The Labour Appeal Court found that the attempted reconstruction of the record was hopelessly inadequate for the proper determination of the appeal, particularly as credibility was central to the dispute. The court rejected both a partial rehearing and a reconstruction hearing as impractical and likely to generate further disputes. Balancing the prejudice to both parties, the court held that the Department's right of appeal was the overriding consideration. As all witnesses were available, a rehearing would allow the respondent to prove her case again and safeguard her position regarding costs. The court ordered that the judgments and orders of the Industrial Court be set aside and the...

Citation
[2001] ZALAC 7
Parties
Appellant: The Department of Justice; Respondent: Heidi Hartzenberg
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
5 June 2001
Case Number
JA16/00
Procedural Posture
Civil Appeal / Appeal From Industrial Court Judgment; Record Incomplete, Appeal Heard on Adequacy of Reconstruction
Outcome
Appeal upheld; judgments and orders of the Industrial Court set aside; matter remitted for rehearing de novo before the CCMA.
Judges
R.G. Comrie, RMM Zondo, K. van Dijkhorst
Legal Topics
Constructive Dismissal, Unfair Labour Practice, Appeal Record Reconstruction, Remittal for Rehearing
Labour Law Civil Procedure Constructive Dismissal Unfair Labour Practice Appeal Record Reconstruction Remittal for Rehearing

Case Brief

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Parties

The Department of Justice

Appellant

Heidi Hartzenberg

Respondent

Procedural Posture

Civil Appeal / Appeal From Industrial Court Judgment; Record Incomplete, Appeal Heard on Adequacy of Reconstruction

Legal Issues

  1. 1 Whether the appeal can be properly determined in the absence of a complete and certified record of the proceedings in the court a quo.
  2. 2 Whether the judgment in favour of the respondent should stand or the matter should be remitted for a hearing de novo.
  3. 3 What is the appropriate order regarding costs in light of the failed reconstruction and remittal.

Ratio Decidendi

The Labour Appeal Court found that the attempted reconstruction of the record was hopelessly inadequate for the proper determination of the appeal, particularly as credibility was central to the dispute. The court rejected both a partial rehearing and a reconstruction hearing as impractical and likely to generate further disputes. Balancing the prejudice to both parties, the court held that the Department's right of appeal was the overriding consideration. As all witnesses were available, a rehearing would allow the respondent to prove her case again and safeguard her position regarding costs. The court ordered that the judgments and orders of the Industrial Court be set aside and the...

Court Disposition

Appeal upheld; judgments and orders of the Industrial Court set aside; matter remitted for rehearing de novo before the CCMA.

Orders

  • The judgments and orders of the Court a quo are set aside.
  • The matter is referred to the Commission for Conciliation, Mediation and Arbitration for re-hearing de novo before a commissioner other than Mrs Grobbelaar.