Kenoshi v Commissioner Matshaka and Others (JR 531/2019) [2022] ZALCJHB 233 (17 August 2022)

Kenoshi v Commissioner Matshaka and Others (JR 531/2019) [2022] ZALCJHB 233 (17 August 2022)

The court found that the applicant did not possess the required one-year post-basic trauma and emergency nursing qualification for the PN-B4 post, and her appointment at that level was erroneous. The correction of her rank and salary was not a demotion but a lawful adjustment to place her in a position for which she was qualified. The arbitrator was alive to the material facts, empathised with the applicant, and made a reasonable decision based on the evidence. The applicant's argument that her appointment constituted an administrative act requiring formal review was rejected, as the conduct of the third respondent did not amount to the exercise of public power. The application for review...

Citation
[2022] ZALCJHB 233
Parties
Applicant: Moepeng Joyce Miriam Kenoshi; Respondent: Commissioner L Matshaka; Respondent: Public Health & Social Development Sectoral Bargaining Council; Respondent: Department of Health-Gauteng
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
17 August 2022
Case Number
JR 531/2019
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed.
Judges
Van Niekerk
Legal Topics
Unfair Labour Practice, Demotion, Occupational Specific Dispensation, Administrative Act, Reviewable Irregularity
Labour Law Unfair Labour Practice Demotion Occupational Specific Dispensation Administrative Act Reviewable Irregularity

Case Brief

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Parties

Moepeng Joyce Miriam Kenoshi

Applicant

Commissioner L Matshaka

Respondent

Public Health & Social Development Sectoral Bargaining Council

Respondent

Department of Health-Gauteng

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the lowering of the applicant's rank from PN-B4 to PN-A7 constituted an unfair labour practice amounting to demotion.
  2. 2 Whether the arbitrator committed reviewable irregularities or misconduct in his award.
  3. 3 Whether the correction of the applicant's appointment required a formal review as an administrative act.

Ratio Decidendi

The court found that the applicant did not possess the required one-year post-basic trauma and emergency nursing qualification for the PN-B4 post, and her appointment at that level was erroneous. The correction of her rank and salary was not a demotion but a lawful adjustment to place her in a position for which she was qualified. The arbitrator was alive to the material facts, empathised with the applicant, and made a reasonable decision based on the evidence. The applicant's argument that her appointment constituted an administrative act requiring formal review was rejected, as the conduct of the third respondent did not amount to the exercise of public power. The application for review...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • Each party is to bear its own costs.