Mkasi v Department of Health: Kwazulu-Natal (D657/2019) [2019] ZALCD 5; [2019] 9 BLLR 926 (LC); (2019) 40 ILJ 2576 (LC) (31 May 2019)

Mkasi v Department of Health: Kwazulu-Natal (D657/2019) [2019] ZALCD 5; [2019] 9 BLLR 926 (LC); (2019) 40 ILJ 2576 (LC) (31 May 2019)

The court found that the applicant had established urgency and a right to review the chairperson's ruling, particularly regarding the waiver issue, which had not been properly determined. The chairperson was not functus officio as he had failed to rule on the waiver, and the employer's delay in charging the applicant was unexplained and potentially amounted to a waiver of the right to discipline. The applicant demonstrated a prima facie case for review and would suffer prejudice if the disciplinary hearing proceeded before the review was finalised. The court held that absolution from the instance was not competent in the absence of enabling law, and that the applicant's constitutional...

Citation
[2019] ZALCD 5
Parties
Applicant: Willie Steve Mkasi; Respondent: Department of Health: Kwazulu-Natal; Respondent: Advocate C.M Kulati N.O
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
31 May 2019
Case Number
D657/2019
Procedural Posture
Urgent Application / Application for Interdict Pending Review
Outcome
Application granted. The disciplinary hearing is interdicted pending the finalisation of the review application. Costs awarded against the first respondent.
Judges
Cele
Legal Topics
Urgent Interdict, Disciplinary Hearing, Functus Officio, Waiver of Discipline, Absolution From Instance
Labour Law Civil Procedure Urgent Interdict Disciplinary Hearing Functus Officio Waiver of Discipline Absolution From Instance

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 12 Party arguments 2
Sign in to unlock

Parties

Willie Steve Mkasi

Applicant

Department of Health: Kwazulu-Natal

Respondent

Advocate C.M Kulati N.O

Respondent

Procedural Posture

Urgent Application / Application for Interdict Pending Review

Legal Issues

  1. 1 Whether the applicant is entitled to an urgent interdict restraining continuation of the disciplinary hearing pending review.
  2. 2 Whether the chairperson of the disciplinary hearing was functus officio regarding the waiver issue.
  3. 3 Whether absolution from the instance is competent in internal disciplinary hearings.

Ratio Decidendi

The court found that the applicant had established urgency and a right to review the chairperson's ruling, particularly regarding the waiver issue, which had not been properly determined. The chairperson was not functus officio as he had failed to rule on the waiver, and the employer's delay in charging the applicant was unexplained and potentially amounted to a waiver of the right to discipline. The applicant demonstrated a prima facie case for review and would suffer prejudice if the disciplinary hearing proceeded before the review was finalised. The court held that absolution from the instance was not competent in the absence of enabling law, and that the applicant's constitutional...

Court Disposition

Application granted. The disciplinary hearing is interdicted pending the finalisation of the review application. Costs awarded against the first respondent.

Orders

  • The order is granted as prayed for in paragraphs 1 and 2(1) of the notice of motion.
  • The first respondent is ordered to pay the costs of the application.