Gxolo v Harmony Gold Mine (Pty) Ltd and Another (J1124/2017) [2017] ZALCJHB 394 (27 October 2017)

Gxolo v Harmony Gold Mine (Pty) Ltd and Another (J1124/2017) [2017] ZALCJHB 394 (27 October 2017)

The applicant failed to establish a contractual term entitling him to a declaratory order setting aside his dismissal. The alleged defects in the disciplinary procedure did not amount to a material breach of contract, and the applicant did not substantiate the existence of an express or tacit contractual right not to be dismissed on incorrect charges. Even if such a term existed and was breached, the relief sought—retrospective re-employment—would not be available, especially given the lapse of time and absence of a tender of services. The application was dismissed as no legal basis for the relief was established.

Citation
[2017] ZALCJHB 394
Parties
Applicant: Jones Bonakele Gxolo; Respondent: Harmony Gold Mine (Pty) Ltd; Respondent: Commission for Conciliation, Mediation and Arbitration
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
27 October 2017
Case Number
J1124/2017
Procedural Posture
Declaratory Application / Unopposed Application for Declaratory Relief
Outcome
Application dismissed with no order as to costs.
Judges
Lagrange
Legal Topics
Unlawful Termination, Declaratory Relief, Disciplinary Procedure, Specific Performance
Labour Law Civil Procedure Unlawful Termination Declaratory Relief Disciplinary Procedure Specific Performance

Case Brief

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Parties

Jones Bonakele Gxolo

Applicant

Harmony Gold Mine (Pty) Ltd

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Procedural Posture

Declaratory Application / Unopposed Application for Declaratory Relief

Legal Issues

  1. 1 Whether the applicant's dismissal was unlawful due to alleged defects in the disciplinary process.
  2. 2 Whether the applicant is entitled to a declaratory order setting aside his dismissal and retrospective re-employment.
  3. 3 Whether the applicant established a contractual basis for the relief sought.

Ratio Decidendi

The applicant failed to establish a contractual term entitling him to a declaratory order setting aside his dismissal. The alleged defects in the disciplinary procedure did not amount to a material breach of contract, and the applicant did not substantiate the existence of an express or tacit contractual right not to be dismissed on incorrect charges. Even if such a term existed and was breached, the relief sought—retrospective re-employment—would not be available, especially given the lapse of time and absence of a tender of services. The application was dismissed as no legal basis for the relief was established.

Court Disposition

Application dismissed with no order as to costs.

Orders

  • The application is dismissed.
  • No order as to costs.