Ndwedwe Municipality v Mngadi and Others (D963/09) [2013] ZALCD 30 (20 December 2013)

Ndwedwe Municipality v Mngadi and Others (D963/09) [2013] ZALCD 30 (20 December 2013)

The court found that the explanation for the delay in filing the answering affidavit was improbable and unreasonable, and condonation was refused. On the merits, the court held that the second respondent (commissioner) did not commit any defect as defined in section 145 of the Labour Relations Act. The commissioner properly considered the reasonableness of the instruction to reinstate Ms Luthuli, who had previously committed serious misconduct, and the applicant's inconsistent approach to discipline. The award was not one that a reasonable decision-maker could not have made. The review application was dismissed as the arbitration award was reasonable and supported by the evidence.

Citation
[2013] ZALCD 30
Parties
Applicant: Ndwedwe Municipality; Respondent: Gordon Sizwesihle Mngadi; Respondent: Commissioner H. Ndaba NO; Respondent: The South African Local Government Bargaining Council
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
20 December 2013
Case Number
D963/09
Procedural Posture
Review Application / Judgment on Review and Condonation
Outcome
Review application dismissed; condonation for late filing of answering affidavit refused.
Judges
Cele
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Condonation, Reasonableness of Instruction
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Condonation Reasonableness of Instruction

Case Brief

Summary, issues, holding and outcome

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Parties

Ndwedwe Municipality

Applicant

Gordon Sizwesihle Mngadi

Respondent

Commissioner H. Ndaba NO

Respondent

The South African Local Government Bargaining Council

Respondent

Procedural Posture

Review Application / Judgment on Review and Condonation

Legal Issues

  1. 1 Whether the arbitration award was reviewable on the grounds of unreasonableness or defect under section 145 of the Labour Relations Act.
  2. 2 Whether the instruction given to the first respondent was reasonable and lawful.
  3. 3 Whether the first respondent complied with the instruction prior to suspension and dismissal.

Ratio Decidendi

The court found that the explanation for the delay in filing the answering affidavit was improbable and unreasonable, and condonation was refused. On the merits, the court held that the second respondent (commissioner) did not commit any defect as defined in section 145 of the Labour Relations Act. The commissioner properly considered the reasonableness of the instruction to reinstate Ms Luthuli, who had previously committed serious misconduct, and the applicant's inconsistent approach to discipline. The award was not one that a reasonable decision-maker could not have made. The review application was dismissed as the arbitration award was reasonable and supported by the evidence.

Court Disposition

Review application dismissed; condonation for late filing of answering affidavit refused.

Orders

  • Condonation for the late filing of the answering affidavit is dismissed with no costs order.
  • The review application is dismissed.