Mlungwana v Speaker: Eastern Cape Provincial Legislature (392/2008) [2015] ZAECBHC 11 (13 May 2015)

Mlungwana v Speaker: Eastern Cape Provincial Legislature (392/2008) [2015] ZAECBHC 11 (13 May 2015)

The court found that the plaintiff, by instituting review proceedings in the High Court rather than pursuing his internal appeal, expressly and impliedly abandoned his right to an internal appeal as provided for in the employer's code of conduct and section 7 of PAJA. The plaintiff's own affidavit and conduct demonstrated a clear election to pursue judicial review instead of exhausting internal remedies, amounting to a waiver of his right to appeal. The defendant successfully proved waiver on a balance of probabilities without calling witnesses, relying on the plaintiff's evidence and the undisputed facts. As a result, the plaintiff's employment was lawfully terminated, and he failed to...

Citation
[2015] ZAECBHC 11
Parties
Plaintiff: Luvuyo Mlungwana; Defendant: Speaker: Eastern Cape Provincial Legislature
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
13 May 2015
Case Number
392/2008
Procedural Posture
Civil Trial / Final Judgment
Outcome
Plaintiff's claim dismissed with costs.
Judges
Stretch
Legal Topics
Waiver of Rights, Specific Performance, Internal Remedy Exhaustion, Disciplinary Procedure, Jurisdiction, Breach of Contract
Labour Law Civil Procedure Waiver of Rights Specific Performance Internal Remedy Exhaustion Disciplinary Procedure Jurisdiction Breach of Contract

Case Brief

Summary, issues, holding and outcome

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Parties

Luvuyo Mlungwana

Plaintiff

Speaker: Eastern Cape Provincial Legislature

Defendant

Procedural Posture

Civil Trial / Final Judgment

Legal Issues

  1. 1 Whether the plaintiff abandoned or waived his right to an internal appeal against dismissal.
  2. 2 Whether the plaintiff is entitled to specific performance for unpaid salary based on an alleged ongoing employment contract.
  3. 3 Whether the defendant lawfully terminated the plaintiff's employment in accordance with the disciplinary code and statutory requirements.

Ratio Decidendi

The court found that the plaintiff, by instituting review proceedings in the High Court rather than pursuing his internal appeal, expressly and impliedly abandoned his right to an internal appeal as provided for in the employer's code of conduct and section 7 of PAJA. The plaintiff's own affidavit and conduct demonstrated a clear election to pursue judicial review instead of exhausting internal remedies, amounting to a waiver of his right to appeal. The defendant successfully proved waiver on a balance of probabilities without calling witnesses, relying on the plaintiff's evidence and the undisputed facts. As a result, the plaintiff's employment was lawfully terminated, and he failed to...

Court Disposition

Plaintiff's claim dismissed with costs.

Orders

  • The plaintiff's claim is dismissed with costs.