HOSPERSA v MEC For Health (D218/03) [2003] ZALC 89; (2003) 24 ILJ 2320 (LC); [2003] 12 BLLR 1242 (LC) (13 October 2003)

HOSPERSA v MEC For Health (D218/03) [2003] ZALC 89; (2003) 24 ILJ 2320 (LC); [2003] 12 BLLR 1242 (LC) (13 October 2003)

The court found that the secondment agreement between the applicants and the respondent endured beyond the termination of the Resolution 8 collective agreement, conferring rights and obligations that could not be unilaterally terminated by the respondent. The second applicant was performing official duties for the first applicant under the secondment agreement and was not absent from official duties within the meaning of section 17(5)(a)(i) of the Public Service Act. The respondent's withdrawal of permission for secondment was unlawful and in breach of the agreement. The disciplinary code could have been applied, and the jurisdictional prerequisites for invoking section 17(5)(a)(i) were...

Citation
[2003] ZALC 89
Parties
Applicant: HOSPERSA; Applicant: Moultrie; Respondent: MEC For Health
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
13 October 2003
Case Number
D218/03
Procedural Posture
Urgent Application / Application for Declaratory and Interdictory Relief Following Disciplinary Action and Alleged Discharge by Operation of Law.
Outcome
Application granted. The second applicant was not lawfully discharged under section 17(5)(a)(i) of the Public Service Act. The respondent's actions were unlawful.
Judges
Pillay D
Legal Topics
Public Service Act, Secondment Agreements, Collective Agreements, Jurisdictional Prerequisites, Unfair Dismissal, Disciplinary Code
Labour Law Administrative Law Public Service Act Secondment Agreements Collective Agreements Jurisdictional Prerequisites Unfair Dismissal Disciplinary Code

Case Brief

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Parties

HOSPERSA

Applicant

Moultrie

Applicant

MEC For Health

Respondent

Procedural Posture

Urgent Application / Application for Declaratory and Interdictory Relief Following Disciplinary Action and Alleged Discharge by Operation of Law.

Legal Issues

  1. 1 Whether the second applicant was lawfully deemed discharged from public service under section 17(5)(a)(i) of the Public Service Act.
  2. 2 Whether the secondment agreement between the applicants and respondent endured beyond the termination of the Resolution 8 collective agreement.
  3. 3 Whether the disciplinary code should have been applied instead of section 17(5)(a)(i).

Ratio Decidendi

The court found that the secondment agreement between the applicants and the respondent endured beyond the termination of the Resolution 8 collective agreement, conferring rights and obligations that could not be unilaterally terminated by the respondent. The second applicant was performing official duties for the first applicant under the secondment agreement and was not absent from official duties within the meaning of section 17(5)(a)(i) of the Public Service Act. The respondent's withdrawal of permission for secondment was unlawful and in breach of the agreement. The disciplinary code could have been applied, and the jurisdictional prerequisites for invoking section 17(5)(a)(i) were...

Court Disposition

Application granted. The second applicant was not lawfully discharged under section 17(5)(a)(i) of the Public Service Act. The respondent's actions were unlawful.

Orders

  • The purported discharge of the second applicant for abscondment is set aside.
  • The respondents are interdicted from taking disciplinary steps against the second applicant by reason of his tendering services on the basis of secondment pending arbitration.