Ntswane and Another v Lenkabula in her capacity as Vice Chancellor (UNISA) and Others (J 426/23 ; JR 93/2023) [2023] ZALCJHB 124 (31 March 2023)

Ntswane and Another v Lenkabula in her capacity as Vice Chancellor (UNISA) and Others (J 426/23 ; JR 93/2023) [2023] ZALCJHB 124 (31 March 2023)

The court found that the applicants' contracts of employment clearly require that arbitrators for misconduct disputes be appointed by agreement between the parties, failing which the Chairperson of the Legal Practice Council may nominate. The respondents failed to demonstrate any attempt to reach agreement with the applicants on the appointment of arbitrators, rendering the subsequent appointments by the Legal Practice Council premature and invalid. The scheduling of disciplinary hearings in these circumstances violated both the court order and the contractual provisions. The applicants established urgency and the requirements for interim interdict, as they had no alternative effective...

Citation
[2023] ZALCJHB 124
Parties
Applicant: Lesley Ntswane; Applicant: Zwelibanzi Dlamini; Respondent: Puleng Lenkabula, in her capacity as Vice Chancellor (UNISA); Respondent: University of South Africa (UNISA); Respondent: Notokoza Kona (Nominee Officee); Respondent: Mosa MF Modiba (Nominee Officee); Respondent: Chairperson Legal Practice Council; Respondent: The Legal Practice Council
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
31 March 2023
Case Number
J 426/23 ; JR 93/2023
Procedural Posture
Urgent Application / Interim Interdict Pending Finalization of Rule Nisi
Outcome
Application granted. Interim interdict issued restraining respondents from proceeding with disciplinary hearings pending finalization of the rule nisi.
Judges
Z Lallie
Legal Topics
Interim Interdict, Disciplinary Proceedings, Contractual Arbitration Clause, Urgent Application, Precautionary Suspension
Labour Law Civil Procedure Interim Interdict Disciplinary Proceedings Contractual Arbitration Clause Urgent Application Precautionary Suspension

Case Brief

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Parties

Lesley Ntswane

Applicant

Zwelibanzi Dlamini

Applicant

Puleng Lenkabula, in her capacity as Vice Chancellor (UNISA)

Respondent

University of South Africa (UNISA)

Respondent

Notokoza Kona (Nominee Officee)

Respondent

Mosa MF Modiba (Nominee Officee)

Respondent

Chairperson Legal Practice Council

Respondent

The Legal Practice Council

Respondent

Procedural Posture

Urgent Application / Interim Interdict Pending Finalization of Rule Nisi

Legal Issues

  1. 1 Whether the respondents should be interdicted from proceeding with disciplinary hearings pending compliance with the arbitration clause in the applicants' contracts of employment.
  2. 2 Whether the respondents complied with clause 13.5 of the contracts of employment regarding the appointment of arbitrators.
  3. 3 Whether the application meets the requirements for urgency and interim relief.

Ratio Decidendi

The court found that the applicants' contracts of employment clearly require that arbitrators for misconduct disputes be appointed by agreement between the parties, failing which the Chairperson of the Legal Practice Council may nominate. The respondents failed to demonstrate any attempt to reach agreement with the applicants on the appointment of arbitrators, rendering the subsequent appointments by the Legal Practice Council premature and invalid. The scheduling of disciplinary hearings in these circumstances violated both the court order and the contractual provisions. The applicants established urgency and the requirements for interim interdict, as they had no alternative effective...

Court Disposition

Application granted. Interim interdict issued restraining respondents from proceeding with disciplinary hearings pending finalization of the rule nisi.

Orders

  • The application is heard as urgent in terms of Rules 8(1) and (2) of the Labour Court Rules.
  • Pending the hearing of the rule nisi and finalization of the matter under case number JR93/2023, the first and second respondents are interdicted and restrained from setting down disciplinary hearings against the applicants.