Jacobs and Others v National Commissioner of South African Police Service and Another (J194/21) [2021] ZALCJHB 263 (17 March 2021)

Jacobs and Others v National Commissioner of South African Police Service and Another (J194/21) [2021] ZALCJHB 263 (17 March 2021)

The Labour Court found that the applicants, having made protected disclosures implicating the National Commissioner, were entitled to invoke section 188A(11) of the LRA. This provision mandates that upon such a request, the internal disciplinary enquiry must terminate and be replaced by a pre-dismissal arbitration conducted independently. The urgency was not self-created, as the applicants first attempted to resolve the jurisdictional issue internally before approaching the court. The chairperson's refusal to entertain the section 188A(11) objection and intention to deliver a verdict necessitated urgent intervention. The conduct of the chairperson, acting as employer, is reviewable on...

Citation
[2021] ZALCJHB 263
Parties
Applicant: Peter Anthony Jacobs; Applicant: Maperemisa Joseph Lekalakala; Applicant: Leon Albo Lombard; Applicant: Manogaran Gopal; Applicant: Isaac Walljee; Respondent: National Commissioner of South African Police Service; Respondent: Nneke Jim Ledwaba N.O
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
17 March 2021
Case Number
J194/21
Procedural Posture
Urgent Application / Final Interdict Application Before Labour Court
Outcome
Application granted. The internal disciplinary enquiry and verdict are reviewed and set aside. Respondents interdicted from proceeding pending section 188A arbitration. Costs awarded to applicants.
Judges
Nkutha-Nkontwana
Legal Topics
Pre Dismissal Arbitration, Protected Disclosure Act, Legality Review, Disciplinary Enquiry, Section 188a Lra
Labour Law Administrative Law Pre Dismissal Arbitration Protected Disclosure Act Legality Review Disciplinary Enquiry Section 188a Lra

Case Brief

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Parties

Peter Anthony Jacobs

Applicant

Maperemisa Joseph Lekalakala

Applicant

Leon Albo Lombard

Applicant

Manogaran Gopal

Applicant

Isaac Walljee

Applicant

National Commissioner of South African Police Service

Respondent

Nneke Jim Ledwaba N.O

Respondent

Procedural Posture

Urgent Application / Final Interdict Application Before Labour Court

Legal Issues

  1. 1 Whether the applicants are entitled to an order interdicting the internal disciplinary enquiry pending the outcome of the section 188A(11) referral.
  2. 2 Whether the invocation of section 188A(11) of the LRA divests the employer of the prerogative to proceed with the internal disciplinary enquiry.
  3. 3 Whether the conduct of the chairperson of the disciplinary enquiry is reviewable on grounds of legality.

Ratio Decidendi

The Labour Court found that the applicants, having made protected disclosures implicating the National Commissioner, were entitled to invoke section 188A(11) of the LRA. This provision mandates that upon such a request, the internal disciplinary enquiry must terminate and be replaced by a pre-dismissal arbitration conducted independently. The urgency was not self-created, as the applicants first attempted to resolve the jurisdictional issue internally before approaching the court. The chairperson's refusal to entertain the section 188A(11) objection and intention to deliver a verdict necessitated urgent intervention. The conduct of the chairperson, acting as employer, is reviewable on...

Court Disposition

Application granted. The internal disciplinary enquiry and verdict are reviewed and set aside. Respondents interdicted from proceeding pending section 188A arbitration. Costs awarded to applicants.

Orders

  • The internal disciplinary enquiry against the applicants, the conduct of the second respondent as chairperson, and the consequent verdict are reviewed and set aside.
  • The first and second respondents are interdicted from proceeding or instituting any internal disciplinary enquiry against the applicants pending finalisation of the section 188A pre-dismissal arbitration before the SSSBC.