Masinga v Minister of Justice Kwazulu Government (628/92) [1995] ZASCA 21; 1995 (3) SA 214 (AD); [1995] 2 All SA 350 (A); (1995) 16 ILJ 823 (A) (27 March 1995)

Masinga v Minister of Justice Kwazulu Government (628/92) [1995] ZASCA 21; 1995 (3) SA 214 (AD); [1995] 2 All SA 350 (A); (1995) 16 ILJ 823 (A) (27 March 1995)

The Supreme Court of Appeal found that the appellant's employment with the University of Natal was casual, temporary, and part-time, paid by the hour, and not governed by university conditions of service or a formal contract. There was no evidence that the appellant was required to give notice to terminate his employment or that his new position was incompatible with his suspended status in the department. The evidence indicated that the appellant could have resumed his duties with the department at a moment's notice if his suspension was lifted. The respondent failed to adduce evidence to contradict or qualify this position. Therefore, the appellant's assumption of temporary employment...

Citation
[1995] ZASCA 21
Parties
Appellant: Themba Masinga; Respondent: Minister of Justice Kwazulu Government
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 March 1995
Case Number
628/92
Procedural Posture
Civil Appeal / Appeal From Full Bench of Natal Provincial Division
Outcome
Appeal upheld. The appellant's discharge under section 19(29) of the KwaZulu Public Service Act was declared invalid.
Judges
E M Grosskopf, Vivier, Nienaber, Nicholas, Olivier
Legal Topics
Public Service Dismissal, Onus of Proof, Temporary Employment, Declaratory Relief
Labour Law Public Service Dismissal Onus of Proof Temporary Employment Declaratory Relief

Case Brief

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Parties

Themba Masinga

Appellant

Minister of Justice Kwazulu Government

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Bench of Natal Provincial Division

Legal Issues

  1. 1 Whether the appellant's assumption of temporary employment with the University of Natal constituted 'assumption of other employment' under section 19(29) of the KwaZulu Public Service Act, justifying deemed discharge for misconduct.
  2. 2 Whether the appellant's discharge from the KwaZulu Department of Justice was lawful under the Act.
  3. 3 Whether the appellant was entitled to a declarator that his dismissal was invalid.

Ratio Decidendi

The Supreme Court of Appeal found that the appellant's employment with the University of Natal was casual, temporary, and part-time, paid by the hour, and not governed by university conditions of service or a formal contract. There was no evidence that the appellant was required to give notice to terminate his employment or that his new position was incompatible with his suspended status in the department. The evidence indicated that the appellant could have resumed his duties with the department at a moment's notice if his suspension was lifted. The respondent failed to adduce evidence to contradict or qualify this position. Therefore, the appellant's assumption of temporary employment...

Court Disposition

Appeal upheld. The appellant's discharge under section 19(29) of the KwaZulu Public Service Act was declared invalid.

Orders

  • The appeal succeeds with costs.
  • The order of the court a quo is set aside and substituted with a declaration that the applicant's assumption of employment with the University of Natal on 19 October 1989 did not result in his discharge, in terms of section 19(29) of the Public Service Act, 1985 (KwaZulu), from the Public Service of KwaZulu...