Mosena and Others v Premier: Nothern Province and Others (J401/2000) [2001] ZALC 228 (1 January 2001)

Mosena and Others v Premier: Nothern Province and Others (J401/2000) [2001] ZALC 228 (1 January 2001)

The court held that clause 7.3(e) of Resolution No. 2 of 1999 expressly excludes the right to legal representation in disciplinary hearings for public servants, and there is no residual discretion for the presiding officer to permit legal representation. The applicants failed to establish a constitutional entitlement to legal representation, and the Administrative Justice Act 2000 was not yet in force and could not be relied upon. The collective bargaining agreement is constitutionally protected and binding, and choices made by the parties should be respected. The arguments based on previous case law were found to be inapplicable due to the express exclusion in the agreement. There was no...

Citation
[2001] ZALC 228
Parties
Applicant: Mosena, S G; Applicant: Rantete, M J; Applicant: Matjekana, K SM; Respondent: Premier: Northern Province; Respondent: Director-General, Northern Province; Respondent: Adv J G Rautenbach N.O.; Respondent: MEC for Department of Public Works, Northern Province; Respondent: Deputy Director General, Department of Public Works, Northern Province
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
1 January 2001
Case Number
J401/2000
Procedural Posture
Leave to Appeal / Application for Leave to Appeal After Dismissal of Initial Application
Outcome
Application for leave to appeal dismissed with costs.
Judges
Wallis AJ
Legal Topics
Disciplinary Proceedings, Collective Bargaining Agreements, Legal Representation, Constitutional Rights Limitation, Unfair Dismissal
Labour Law Administrative Law Disciplinary Proceedings Collective Bargaining Agreements Legal Representation Constitutional Rights Limitation Unfair Dismissal

Case Brief

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Parties

Mosena, S G

Applicant

Rantete, M J

Applicant

Matjekana, K SM

Applicant

Premier: Northern Province

Respondent

Director-General, Northern Province

Respondent

Adv J G Rautenbach N.O.

Respondent

MEC for Department of Public Works, Northern Province

Respondent

Deputy Director General, Department of Public Works, Northern Province

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal After Dismissal of Initial Application

Legal Issues

  1. 1 Whether clause 7.3(e) of Resolution No. 2 of 1999 excludes any right to legal representation in disciplinary hearings for public servants.
  2. 2 Whether there is a residual discretion for the presiding officer to permit legal representation in such hearings.
  3. 3 Whether the Constitution or Administrative Justice Act 2000 confers a general right to legal representation in administrative tribunals.

Ratio Decidendi

The court held that clause 7.3(e) of Resolution No. 2 of 1999 expressly excludes the right to legal representation in disciplinary hearings for public servants, and there is no residual discretion for the presiding officer to permit legal representation. The applicants failed to establish a constitutional entitlement to legal representation, and the Administrative Justice Act 2000 was not yet in force and could not be relied upon. The collective bargaining agreement is constitutionally protected and binding, and choices made by the parties should be respected. The arguments based on previous case law were found to be inapplicable due to the express exclusion in the agreement. There was no...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed.
  • The applicants are ordered to pay the costs.