Nyamane v MEC: Free State Department of Health (J34/2017) [2018] ZALCJHB 455; [2019] 12 BLLR 1371 (LC) (31 August 2018)

Nyamane v MEC: Free State Department of Health (J34/2017) [2018] ZALCJHB 455; [2019] 12 BLLR 1371 (LC) (31 August 2018)

The respondent's decision not to approve the applicant's reinstatement under section 17(3)(b) of the Public Service Act is reviewable on the principle of legality. The respondent failed to provide reasons or evidence that continued employment would be intolerable, as required by law and established precedent. The investigation report did not contain the respondent's own reasons, and no confirmatory affidavit was filed. The refusal to approve reinstatement was not rationally related to the statutory purpose, as the respondent did not properly consider all relevant circumstances or the good cause shown by the applicant. The requirements applicable to dismissal under the Labour Relations Act...

Citation
[2018] ZALCJHB 455
Parties
Applicant: M E Nyamane; Respondent: MEC: Free State Department of Health
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
31 August 2018
Case Number
J34/2017
Procedural Posture
Review Application / Judgment
Outcome
Application granted; respondent's decision reviewed and set aside; matter remitted for proper exercise of discretion; no order as to costs.
Judges
GN Moshoana
Legal Topics
Public Service Act Section 17, Good Cause Requirement, Legality Review, Rationality Principle, Failure to Approve Reinstatement
Labour Law Administrative Law Public Service Act Section 17 Good Cause Requirement Legality Review Rationality Principle Failure to Approve Reinstatement

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Parties

M E Nyamane

Applicant

MEC: Free State Department of Health

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the respondent's decision not to approve the applicant's reinstatement under section 17(3)(b) of the Public Service Act is reviewable on legality and rationality grounds.
  2. 2 Whether the respondent properly considered all relevant circumstances and good cause in refusing reinstatement.
  3. 3 Whether the requirements applicable to dismissal under the Labour Relations Act apply to deemed discharge under the Public Service Act.

Ratio Decidendi

The respondent's decision not to approve the applicant's reinstatement under section 17(3)(b) of the Public Service Act is reviewable on the principle of legality. The respondent failed to provide reasons or evidence that continued employment would be intolerable, as required by law and established precedent. The investigation report did not contain the respondent's own reasons, and no confirmatory affidavit was filed. The refusal to approve reinstatement was not rationally related to the statutory purpose, as the respondent did not properly consider all relevant circumstances or the good cause shown by the applicant. The requirements applicable to dismissal under the Labour Relations Act...

Court Disposition

Application granted; respondent's decision reviewed and set aside; matter remitted for proper exercise of discretion; no order as to costs.

Orders

  • The decision of the respondent not to approve the reinstatement of the applicant as required in section 17(3)(b) of the Public Service Act is reviewed and set aside.
  • The matter is remitted to the respondent for the proper exercise of the power contemplated in section 17(3)(b) of the Public Service Act.