Mncube and Another v Foskor (Pty) Ltd and Another (749/2021) [2021] ZALCD 77 (8 December 2021)

Mncube and Another v Foskor (Pty) Ltd and Another (749/2021) [2021] ZALCD 77 (8 December 2021)

The court found that the applicants failed to establish exceptional circumstances warranting intervention in the incomplete disciplinary proceedings. The apprehension of bias was not substantiated by the evidence, and the appointment of the chairperson was consistent with company policy and supported by the relevant decision-maker's affidavit and documentary evidence. The applicants did not act with the necessary urgency, and no irreparable harm was demonstrated. The balance of convenience favoured the employer's right to proceed expeditiously with disciplinary action, and alternative remedies were available to the applicants under the Labour Relations Act. Consequently, the application...

Citation
[2021] ZALCD 77
Parties
Applicant: Sifiso Mncube; Applicant: Bisisiwe Evelyn Sithole; Respondent: Foskor (Pty) Ltd; Respondent: Adv. Paul Kirsten N.O.
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
8 December 2021
Case Number
749/2021
Procedural Posture
Urgent Application / Application for Interim Interdict Pending Review
Outcome
Application dismissed.
Judges
Hiralall AJ
Legal Topics
Recusal of Chairperson, Urgent Interdict, Disciplinary Proceedings, Exceptional Circumstances, Fair Dismissal, Balance of Convenience
Labour Law Civil Procedure Recusal of Chairperson Urgent Interdict Disciplinary Proceedings Exceptional Circumstances Fair Dismissal Balance of Convenience

Case Brief

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Parties

Sifiso Mncube

Applicant

Bisisiwe Evelyn Sithole

Applicant

Foskor (Pty) Ltd

Respondent

Adv. Paul Kirsten N.O.

Respondent

Procedural Posture

Urgent Application / Application for Interim Interdict Pending Review

Legal Issues

  1. 1 Whether the applicants have established exceptional circumstances justifying the Labour Court's intervention in incomplete disciplinary proceedings.
  2. 2 Whether the applicants have a prima facie right to an interim interdict staying disciplinary proceedings pending review of the chairperson's refusal to recuse himself.
  3. 3 Whether the applicants have demonstrated urgency and irreparable harm warranting interim relief.

Ratio Decidendi

The court found that the applicants failed to establish exceptional circumstances warranting intervention in the incomplete disciplinary proceedings. The apprehension of bias was not substantiated by the evidence, and the appointment of the chairperson was consistent with company policy and supported by the relevant decision-maker's affidavit and documentary evidence. The applicants did not act with the necessary urgency, and no irreparable harm was demonstrated. The balance of convenience favoured the employer's right to proceed expeditiously with disciplinary action, and alternative remedies were available to the applicants under the Labour Relations Act. Consequently, the application...

Court Disposition

Application dismissed.

Orders

  • The applicants’ application is dismissed.
  • Each party is to pay its own costs.