Mogaladi and Another v Public Protector South Africa (J 528/21) [2021] ZALCJHB 64 (28 May 2021)

Mogaladi and Another v Public Protector South Africa (J 528/21) [2021] ZALCJHB 64 (28 May 2021)

The Labour Court held that the Public Protector, as an organ of state and employer, is bound by the final sanction imposed by the Chairperson of the disciplinary hearing in terms of the applicable Disciplinary Code and Procedure. The Code requires the Chairperson to determine and submit the final sanction for implementation; it does not permit the Public Protector to unilaterally alter or substitute the sanction, nor to invoke a secondary disciplinary process. The Public Protector's conduct in seeking to impose a dismissal contrary to the Chairperson's sanction constitutes unlawful self-help and is ultra vires the Code. The applicants have no internal right of appeal, and the only lawful...

Citation
[2021] ZALCJHB 64
Parties
Applicant: Ponatshego Mogaladi; Applicant: Lesedi Sekele; Respondent: Public Protector South Africa
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
28 May 2021
Case Number
J 528/21
Procedural Posture
Urgent Application / Final Interdict and Mandatory Order Sought on Urgent Basis
Outcome
Application granted. The Public Protector is interdicted from invoking a secondary disciplinary process and ordered to implement the Chairperson's final sanction. Each party to pay its own costs.
Judges
Tlhotlhalemaje
Legal Topics
Disciplinary Code and Procedure, Powers of State Employer, Ultra Vires, Final Sanction, Self Help, Constitutional Rights
Labour Law Administrative Law Disciplinary Code and Procedure Powers of State Employer Ultra Vires Final Sanction Self Help Constitutional Rights

Case Brief

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Parties

Ponatshego Mogaladi

Applicant

Lesedi Sekele

Applicant

Public Protector South Africa

Respondent

Procedural Posture

Urgent Application / Final Interdict and Mandatory Order Sought on Urgent Basis

Legal Issues

  1. 1 Whether the Public Protector may lawfully alter or substitute the sanction imposed by the Chairperson of a disciplinary hearing.
  2. 2 Whether the applicants are entitled to urgent relief preventing a secondary disciplinary process and compelling implementation of the Chairperson's sanction.
  3. 3 Whether the Public Protector's conduct constitutes unlawful self-help in breach of the applicable Disciplinary Code and Procedure.

Ratio Decidendi

The Labour Court held that the Public Protector, as an organ of state and employer, is bound by the final sanction imposed by the Chairperson of the disciplinary hearing in terms of the applicable Disciplinary Code and Procedure. The Code requires the Chairperson to determine and submit the final sanction for implementation; it does not permit the Public Protector to unilaterally alter or substitute the sanction, nor to invoke a secondary disciplinary process. The Public Protector's conduct in seeking to impose a dismissal contrary to the Chairperson's sanction constitutes unlawful self-help and is ultra vires the Code. The applicants have no internal right of appeal, and the only lawful...

Court Disposition

Application granted. The Public Protector is interdicted from invoking a secondary disciplinary process and ordered to implement the Chairperson's final sanction. Each party to pay its own costs.

Orders

  • Non-compliance with the forms and service contemplated in the Rules of Court is condoned; the matter is heard as urgent.
  • The Respondent is interdicted from invoking a secondary disciplinary process as intended in her correspondence dated 6 May 2021.