Minister of Justice and Another v Bosch NO and Others (J1099/01) [2005] ZALC 95; (2006) 27 ILJ 166 (LC) (20 October 2005)

Minister of Justice and Another v Bosch NO and Others (J1099/01) [2005] ZALC 95; (2006) 27 ILJ 166 (LC) (20 October 2005)

The court held that the applicants were bound by the agreed grounds of review and could not challenge the finding that the withdrawal of judicial functions constituted a demotion. The applicants' arguments that the second respondent ceased to be an employee, lacked qualification, or had no legitimate expectation to continue as acting magistrate were rejected. The court found that the subsistence allowance was not a benefit unfairly withheld, as it was only payable when relief duty was performed. The award of sentimental damages was unjustified in the absence of a wrong, as the court could not interfere with the finding of unfair demotion due to the parties' agreement on the grounds of...

Citation
[2005] ZALC 95
Parties
Applicant: Minister of Justice; Applicant: Department of Justice; Respondent: Bosch, Dawie N.O.; Respondent: Wepener, Christo; Respondent: General Public Service Sectorial Bargaining Council
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
20 October 2005
Case Number
J1099/01
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Application succeeds in part; the finding of unfair labour practice relating to benefits and the monetary award are set aside, but the finding of unfair demotion stands.
Judges
Gush
Legal Topics
Unfair Labour Practice, Demotion, Jurisdiction of Bargaining Council, Subsistence Allowance, Sentimental Damages
Labour Law Civil Procedure Unfair Labour Practice Demotion Jurisdiction of Bargaining Council Subsistence Allowance Sentimental Damages

Case Brief

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Parties

Minister of Justice

Applicant

Department of Justice

Applicant

Bosch, Dawie N.O.

Respondent

Wepener, Christo

Respondent

General Public Service Sectorial Bargaining Council

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the first respondent's arbitration award should be reviewed and set aside on the grounds agreed by the parties.
  2. 2 Whether the withdrawal of judicial functions from the second respondent constituted a demotion.
  3. 3 Whether the provision of benefits, specifically subsistence allowance, was unfairly withheld.

Ratio Decidendi

The court held that the applicants were bound by the agreed grounds of review and could not challenge the finding that the withdrawal of judicial functions constituted a demotion. The applicants' arguments that the second respondent ceased to be an employee, lacked qualification, or had no legitimate expectation to continue as acting magistrate were rejected. The court found that the subsistence allowance was not a benefit unfairly withheld, as it was only payable when relief duty was performed. The award of sentimental damages was unjustified in the absence of a wrong, as the court could not interfere with the finding of unfair demotion due to the parties' agreement on the grounds of...

Court Disposition

Application succeeds in part; the finding of unfair labour practice relating to benefits and the monetary award are set aside, but the finding of unfair demotion stands.

Orders

  • The finding that the second applicant committed an unfair labour practice relating to the provision of benefits in terms of item 2(1) of Schedule 7 of the LRA is set aside.
  • The order that the applicant pay the second respondent an amount of R40,000.00 within forty-five days from the date of the award is set aside.