Malambo and Another v Head of Department: NW Department of Agriculture, Conservation, Environment and Tourism and Another (CA 1202/06) [2006] ZANWHC 69 (16 November 2006)

Malambo and Another v Head of Department: NW Department of Agriculture, Conservation, Environment and Tourism and Another (CA 1202/06) [2006] ZANWHC 69 (16 November 2006)

The court found that the applicants did not waive their right to object to the Department's failure to hold the disciplinary hearing within the prescribed 60-day period. The applicants expressly reserved their rights in correspondence and did not acquiesce to the late hearing. The Department's argument that the applicants' participation in scheduling amounted to waiver was rejected, as reservation of rights was consistently maintained. The court held that the applicants have a clear right not to be subjected to a disciplinary hearing held outside the prescribed period, a reasonable apprehension of harm, and no alternative remedy. The High Court was competent to grant the relief sought,...

Citation
[2006] ZANWHC 69
Parties
Applicant: Lovejoy Malambo; Applicant: Mogomotso Kgantsi; Respondent: Head of Department: NW Department of Agriculture, Conservation and Environment; Respondent: Mathews Fesoko N.O
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
16 November 2006
Case Number
CA 1202/06
Procedural Posture
Urgent Application / Application for Urgent Interdict Against Continuation of Disciplinary Proceedings
Outcome
Application granted. The respondents are interdicted from proceeding with disciplinary action against the applicants based on the charges, and the applicants' suspension is declared invalid.
Judges
A A Landman
Legal Topics
Disciplinary Procedure, Precautionary Suspension, Waiver of Rights, Interdict, Senior Management Service Handbook
Labour Law Civil Procedure Disciplinary Procedure Precautionary Suspension Waiver of Rights Interdict Senior Management Service Handbook

Case Brief

Summary, issues, holding and outcome

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Parties

Lovejoy Malambo

Applicant

Mogomotso Kgantsi

Applicant

Head of Department: NW Department of Agriculture, Conservation and Environment

Respondent

Mathews Fesoko N.O

Respondent

Procedural Posture

Urgent Application / Application for Urgent Interdict Against Continuation of Disciplinary Proceedings

Legal Issues

  1. 1 Whether the Department was entitled to proceed with disciplinary hearings against the applicants after failing to comply with the 60-day period prescribed by the Senior Management Service Handbook.
  2. 2 Whether the applicants waived their right to object to the late disciplinary hearing by participating in scheduling and preparation.
  3. 3 Whether the High Court has jurisdiction to interdict the continuation of the disciplinary hearing.

Ratio Decidendi

The court found that the applicants did not waive their right to object to the Department's failure to hold the disciplinary hearing within the prescribed 60-day period. The applicants expressly reserved their rights in correspondence and did not acquiesce to the late hearing. The Department's argument that the applicants' participation in scheduling amounted to waiver was rejected, as reservation of rights was consistently maintained. The court held that the applicants have a clear right not to be subjected to a disciplinary hearing held outside the prescribed period, a reasonable apprehension of harm, and no alternative remedy. The High Court was competent to grant the relief sought,...

Court Disposition

Application granted. The respondents are interdicted from proceeding with disciplinary action against the applicants based on the charges, and the applicants' suspension is declared invalid.

Orders

  • The Rules relating to service are dispensed with and the matter is treated as urgent in terms of Rule 6(12) of the Rules of this Court.
  • The first respondent is prohibited from taking disciplinary action against the applicants in respect of the charges contained in Annexures 'LM1' and 'LM2'.