Mahlangu v Premier: Mpumalanga Provincial Government and Another (J 2757/011) [2011] ZALCJHB 106 (5 December 2011)
The court held that the applicant's challenge to the authority of the first respondent to discipline him had not been raised or considered in the internal disciplinary proceedings. The applicant bypassed the domestic process and sought relief prematurely. The chairperson of the disciplinary enquiry may still...
Source-derived case information.
- Citation
- [2011] ZALCJHB 106
- Parties
- Applicant: Dr Johnson Jerry Mahlangu; Respondent: Premier: Mpumalanga Provincial Government; Respondent: MEC: Department of Health Mpumalanga Provincial Government
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- J 2757/011
- Procedural Posture
- Urgent Application / Final Interdict Application
- Outcome
- Application dismissed with costs.
- Judges
- Van Niekerk
- Legal Topics
- Unlawful Suspension, Disciplinary Hearing, Jurisdiction of Labour Court
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr Johnson Jerry Mahlangu
Applicant
Premier: Mpumalanga Provincial Government
Respondent
MEC: Department of Health Mpumalanga Provincial Government
Respondent
Procedural Posture
Urgent Application / Final Interdict Application
Legal Issues
- 1 Whether the applicant's suspension and pending disciplinary hearing are unlawful.
- 2 Whether the Labour Court should intervene in domestic disciplinary proceedings before internal remedies are exhausted.
- 3 Whether the first respondent had authority to discipline the applicant.
Ratio Decidendi
The court held that the applicant's challenge to the authority of the first respondent to discipline him had not been raised or considered in the internal disciplinary proceedings. The applicant bypassed the domestic process and sought relief prematurely. The chairperson of the disciplinary enquiry may still entertain and rule on the issue of authority, and if necessary, the charges could be re-issued by the relevant authority. Therefore, the application was premature and did not warrant intervention by the Labour Court at this stage.
Court Disposition
Application dismissed with costs.
Orders
- The application is dismissed, with costs.
Full Case Text
Judgment text and source record
30 paragraphs
1
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Not reportable
CASE NO J 2757/011
In the matter between:
DR JOHNSON JERRY MAHLANGU ….............................................................Applicant
and
PREMIER: MPUMALANGA PROVINCIAL
GOVERNMENT …..................................................................................First Respondent
MEC: DEPARTMENT OF HEALTH
MPUMALANGA PROVINCIAL GOVERNMENT …..........................Second Respondent
Date of application: 2 December 2011
Date of judgment: 5 December 2011
JUDGMENT
___________________________________________________________________
VAN NIEKERK J
[1] This is an urgent application in which the applicant seeks a final interdict declaring his suspension and a pending disciplinary hearing unlawful.
[2[ The applicant was placed on suspension on 4 November 2011 after being afforded an opportunity to furnish reasons why he should not be suspended. The basis for the suspension and the subsequently convened disciplinary enquiry is a forensic audit report that had found gross financial irregularities in the Department of Health, which is headed by the applicant. The disciplinary enquiry that is the subject of this application was to have commenced on 28 November 2011, and has been postponed pending the outcome of these proceedings.
[3] The respondents contend that the application is not urgent. They rely inter alia on the proposition that this court, while it has the powers to intervene in domestic disciplinary hearings, will do so if and only
if the circumstances are exceptional, and a grave injustice not capable of being remedied, would result (see, for example, Mahlalela v Officer of the Pension Funds Adjudicator (2011) 32 ILJ 1932 (LC)). The respondents submit that the present application does not fall into this category.
[4] In the present instance, the applicant relies primarily for the relief that he seeks on a lack of authority on the part of the first respondent to discipline him. This is not a point that has been raised before or considered by the chairperson of the disciplinary hearing, even less is it the subject of a ruling. The applicant has, in effect, bypassed domestic proceedings to come to this court to seek a final order in respect of an issue that ought, in the first instance, to be the subject of a ruling in those proceedings. It may well be that the chairperson of the enquiry is prepared to entertain the applicant’s point and that he finds merit in it. In that event, it would be a simple matter to have the charges re-issued by the relevant authority. I express no views on this issue – for present purposes, it need only be said these proceedings are premature, and the application stands to be dismissed on that basis.
[5] Finally, there is no reason why costs should not follow the result.
I accordingly make the following order:
The application is dismissed, with costs.
ANDRE VAN NIEKERK
JUDGE OFTHE LABOUR COURT
Appearances:
For the applicant: Mr S Mhlungu, Werksmans Attorneys
For the respondents: Adv P Nkuta.