Tshifhango and Another v Minister of Justice and Correctional Services and Others (JR951/16) [2017] ZALCJHB 97; (2017) 38 ILJ 2131 (LC) (23 March 2017)

Tshifhango and Another v Minister of Justice and Correctional Services and Others (JR951/16) [2017] ZALCJHB 97; (2017) 38 ILJ 2131 (LC) (23 March 2017)

The court held that although section 38 of the Public Service Act obliges the executing authority to correct an incorrect salary, the determination of whether an incorrect salary or level was awarded requires a factual assessment. This process must be conducted in accordance with the principle of legality, which demands procedural fairness, rationality, and reasonableness. The Applicants were not afforded an opportunity to make representations or provided with reasons before their salaries were downgraded. The Department's unilateral action was procedurally unfair and contrary to the requirements of legality. The decision to downgrade the Applicants' salary levels was reviewed and set...

Citation
[2017] ZALCJHB 97
Parties
Applicant: Tsakani Isabel Tshifhango; Applicant: Elizabeth Kuki Makhondo; Respondent: Minister of Justice and Correctional Services; Respondent: Director General: Justice and Constitutional Development; Respondent: Regional Head: Justice and Constitutional Development; Respondent: Acting Director Human Resources: Justice and Constitutional Development, Gauteng
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
23 March 2017
Case Number
JR 951/16
Procedural Posture
Review Application / Judgment
Outcome
Application granted. The decision to downgrade the Applicants from salary level 8 to salary level 7 is reviewed and set aside. The matter is remitted for proper process.
Judges
Prinsloo
Legal Topics
Public Service Act, Legality Review, Procedural Fairness, Salary Downgrading, Unilateral Change of Employment Terms
Labour Law Administrative Law Public Service Act Legality Review Procedural Fairness Salary Downgrading Unilateral Change of Employment Terms

Case Brief

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Parties

Tsakani Isabel Tshifhango

Applicant

Elizabeth Kuki Makhondo

Applicant

Minister of Justice and Correctional Services

Respondent

Director General: Justice and Constitutional Development

Respondent

Regional Head: Justice and Constitutional Development

Respondent

Acting Director Human Resources: Justice and Constitutional Development, Gauteng

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the decision to downgrade the Applicants' salary levels from 8 to 7 was lawful and procedurally fair.
  2. 2 Whether the Applicants were entitled to be consulted and given reasons before the downgrading.
  3. 3 Whether section 38 of the Public Service Act was correctly applied to the Applicants' circumstances.

Ratio Decidendi

The court held that although section 38 of the Public Service Act obliges the executing authority to correct an incorrect salary, the determination of whether an incorrect salary or level was awarded requires a factual assessment. This process must be conducted in accordance with the principle of legality, which demands procedural fairness, rationality, and reasonableness. The Applicants were not afforded an opportunity to make representations or provided with reasons before their salaries were downgraded. The Department's unilateral action was procedurally unfair and contrary to the requirements of legality. The decision to downgrade the Applicants' salary levels was reviewed and set...

Court Disposition

Application granted. The decision to downgrade the Applicants from salary level 8 to salary level 7 is reviewed and set aside. The matter is remitted for proper process.

Orders

  • The decision to downgrade the Applicants from salary level 8 to salary level 7 is reviewed and set aside.
  • The Respondents must provide the Applicants with reasons for the downgrading within 15 days of the order.