Mkhize v Department of Correctional Services and Others (128/2014) [2015] ZASCA 7; (2015) 36 ILJ 1447 (SCA) (11 March 2015)

Mkhize v Department of Correctional Services and Others (128/2014) [2015] ZASCA 7; (2015) 36 ILJ 1447 (SCA) (11 March 2015)

The Supreme Court of Appeal held that the new evidence presented by Mr Sibiya, who confessed to giving false testimony against Mr Mkhize, was material and could potentially result in a miscarriage of justice. However, such evidence cannot be accepted at face value and must be tested through further arbitration proceedings. The court set aside the decisions of the Labour Court, Labour Appeal Court, and the arbitrator, and remitted the dispute to the General Public Services Sectoral Bargaining Council for a de novo determination of whether Mr Mkhize's dismissal was substantively unfair, limited to the merits and excluding technical time-bar arguments. The court declined to award costs at...

Citation
[2015] ZASCA 7
Parties
Appellant: Sithembiso Siphelele Mkhize; Respondent: Department of Correctional Services; Respondent: Silas Ramushowana N.O.; Respondent: General Public Services Sectoral Bargaining Council
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
11 March 2015
Case Number
128/2014
Procedural Posture
Civil Appeal / Appeal From Labour Court and Labour Appeal Court
Outcome
Appeal upheld; previous decisions set aside; dispute remitted for further arbitration.
Judges
Navsa, Lewis, Wallis, Pillay, Mayat
Legal Topics
Unfair Dismissal, Admission of New Evidence, Arbitration Remittal, Procedural Fairness, Substantive Fairness
Labour Law Civil Procedure Unfair Dismissal Admission of New Evidence Arbitration Remittal Procedural Fairness Substantive Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

Sithembiso Siphelele Mkhize

Appellant

Department of Correctional Services

Respondent

Silas Ramushowana N.O.

Respondent

General Public Services Sectoral Bargaining Council

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court and Labour Appeal Court

Legal Issues

  1. 1 Whether new evidence in the form of Mr Sibiya's affidavit should be admitted and tested in arbitration.
  2. 2 Whether the dismissal of Mr Mkhize was substantively unfair.
  3. 3 Whether the disciplinary proceedings were instituted out of time under the Department's disciplinary code.

Ratio Decidendi

The Supreme Court of Appeal held that the new evidence presented by Mr Sibiya, who confessed to giving false testimony against Mr Mkhize, was material and could potentially result in a miscarriage of justice. However, such evidence cannot be accepted at face value and must be tested through further arbitration proceedings. The court set aside the decisions of the Labour Court, Labour Appeal Court, and the arbitrator, and remitted the dispute to the General Public Services Sectoral Bargaining Council for a de novo determination of whether Mr Mkhize's dismissal was substantively unfair, limited to the merits and excluding technical time-bar arguments. The court declined to award costs at...

Court Disposition

Appeal upheld; previous decisions set aside; dispute remitted for further arbitration.

Orders

  • The appeal is upheld and the orders of the Labour Appeal Court, Labour Court, and arbitrator are set aside.
  • No order as to costs in the Labour Court and Labour Appeal Court.