Lekabe v Minister Department of Justice and Constitutional Development (J1092/08) [2009] ZALC 18; (2009) 30 ILJ 2444 (LC) (5 February 2009)

Lekabe v Minister Department of Justice and Constitutional Development (J1092/08) [2009] ZALC 18; (2009) 30 ILJ 2444 (LC) (5 February 2009)

The court held that clause 2.7(2)(c) of the Senior Management Service Handbook regulates the period of suspension, not the right to discipline. The employer does not lose the right to discipline the employee after 60 days; rather, the suspension falls away unless extended by the chairperson of the disciplinary hearing. The purpose of the clause is to prevent protracted suspensions that unfairly prejudice employees, not to bar disciplinary action. The applicant's application to interdict the disciplinary hearing was dismissed, but the court ordered that the suspension beyond 60 days was invalid and the applicant must be permitted to resume his duties.

Citation
[2009] ZALC 18
Parties
Applicant: Gosisephuthabatho Gustuv Lekabe; Respondent: Minister Department of Justice and Constitutional Development
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
5 February 2009
Case Number
J1092/08
Procedural Posture
Urgent Application / Judgment
Outcome
Application to interdict the disciplinary hearing dismissed; suspension beyond 60 days declared invalid; respondent ordered to permit applicant to resume duties; no order as to costs.
Judges
Molahlehi
Legal Topics
Precautionary Suspension, Disciplinary Code Interpretation, Unfair Labour Practice, Senior Management Service Handbook
Labour Law Civil Procedure Precautionary Suspension Disciplinary Code Interpretation Unfair Labour Practice Senior Management Service Handbook

Case Brief

Summary, issues, holding and outcome

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Parties

Gosisephuthabatho Gustuv Lekabe

Applicant

Minister Department of Justice and Constitutional Development

Respondent

Procedural Posture

Urgent Application / Judgment

Legal Issues

  1. 1 Whether clause 2.7(2)(c) of the Senior Management Service Handbook is peremptory regarding the holding of a disciplinary hearing within 60 days of suspension.
  2. 2 Whether the employer's right to discipline the employee lapses after 60 days of suspension.
  3. 3 Whether the suspension of the applicant became unlawful after 60 days.

Ratio Decidendi

The court held that clause 2.7(2)(c) of the Senior Management Service Handbook regulates the period of suspension, not the right to discipline. The employer does not lose the right to discipline the employee after 60 days; rather, the suspension falls away unless extended by the chairperson of the disciplinary hearing. The purpose of the clause is to prevent protracted suspensions that unfairly prejudice employees, not to bar disciplinary action. The applicant's application to interdict the disciplinary hearing was dismissed, but the court ordered that the suspension beyond 60 days was invalid and the applicant must be permitted to resume his duties.

Court Disposition

Application to interdict the disciplinary hearing dismissed; suspension beyond 60 days declared invalid; respondent ordered to permit applicant to resume duties; no order as to costs.

Orders

  • The applicant's application to interdict the respondent from proceeding with the disciplinary hearing is dismissed.
  • The period of suspension of the applicant from his duties has expired and accordingly the suspension beyond 60 days is invalid.