Dlamini and Others v Independent Police Investigative Directorate and Another (J1782/15) [2016] ZALCJHB 452 (29 April 2016)

Dlamini and Others v Independent Police Investigative Directorate and Another (J1782/15) [2016] ZALCJHB 452 (29 April 2016)

The court found that the precautionary transfer of the first and third applicants was implemented from 1 September 2015 and that, regardless of any interim order, the 60-day period stipulated in the SMS handbook had expired long before the hearing. The SMS handbook clearly provides that any extension of a precautionary transfer beyond 60 days must be effected by the chairperson of a disciplinary enquiry, not unilaterally by the employer. Since no such extension was granted, the continued transfer was unlawful. The court rejected the respondents' argument regarding the calculation of the 60-day period and found no merit in the claim that the applicants came before the court with unclean...

Citation
[2016] ZALCJHB 452
Parties
Applicant: Moses Zakhele Dlamini; Applicant: Nkgabe Antonette Mphago; Applicant: Pule Viceroy Maoka; Respondent: Independent Police Investigative Directorate; Respondent: Ketsabae Kgamanyane
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
29 April 2016
Case Number
J1782/15
Procedural Posture
Urgent Application / Application for Declaratory Relief Regarding Lawfulness of Precautionary Transfer
Outcome
Application granted; continued precautionary transfer declared unlawful; applicants to resume duties; costs awarded against respondents.
Judges
Van Niekerk
Legal Topics
Precautionary Transfer, Disciplinary Procedure, Sms Handbook, Unlawful Suspension
Labour Law Precautionary Transfer Disciplinary Procedure Sms Handbook Unlawful Suspension

Case Brief

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Parties

Moses Zakhele Dlamini

Applicant

Nkgabe Antonette Mphago

Applicant

Pule Viceroy Maoka

Applicant

Independent Police Investigative Directorate

Respondent

Ketsabae Kgamanyane

Respondent

Procedural Posture

Urgent Application / Application for Declaratory Relief Regarding Lawfulness of Precautionary Transfer

Legal Issues

  1. 1 Whether the continued precautionary transfer of the first and third applicants beyond the 60-day period stipulated in the SMS handbook is unlawful.
  2. 2 Whether the respondents were entitled to extend the precautionary transfer without the chairperson of a disciplinary enquiry's approval.
  3. 3 Whether the applicants have an adequate alternative remedy in the bargaining council.

Ratio Decidendi

The court found that the precautionary transfer of the first and third applicants was implemented from 1 September 2015 and that, regardless of any interim order, the 60-day period stipulated in the SMS handbook had expired long before the hearing. The SMS handbook clearly provides that any extension of a precautionary transfer beyond 60 days must be effected by the chairperson of a disciplinary enquiry, not unilaterally by the employer. Since no such extension was granted, the continued transfer was unlawful. The court rejected the respondents' argument regarding the calculation of the 60-day period and found no merit in the claim that the applicants came before the court with unclean...

Court Disposition

Application granted; continued precautionary transfer declared unlawful; applicants to resume duties; costs awarded against respondents.

Orders

  • It is declared that the continued precautionary transfer of the first and third applicants is unlawful.
  • The first respondent is ordered to permit the first and third applicants to resume their duties in their respective permanent posts within one week of the date of this order.