South Africa Case Law

Hittler v Ethekwini Municipality and Others (D616/2024)

Hittler v Ethekwini Municipality and Others (D616/2024) [2025] ZALCD 2 (13 January 2025)

Court

Labour Court Durban

Case number

D616/2024

Judge

R Lagrange

The applicant failed to plead a clear legal basis for his claim, either as a contractual breach or as a legality review. While the municipality's conduct in proceeding with a parallel internal disciplinary enquiry and dismissing the applicant during a pending s 188A pre-dismissal arbitration was contrary to established principles, the applicant did not frame his case in terms of breach of contract or review for illegality. The Labour Court's jurisdiction is determined by the pleadings, and a bald assertion of unlawfulness is insufficient. Consequently, the application was struck off for lack…

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• Pre Dismissal Arbitration
• Jurisdiction Of Labour Court
• Unlawful Dismissal
• Specific Performance
• Protected Disclosures
• Costs Award

Khan v South African Police Service and Others (121530/2024)

Khan v South African Police Service and Others (121530/2024) [2024] ZALCJHB 488 (4 December 2024)

Court

Labour Court Johannesburg

Case number

121530/2024

Judge

L Vukeya

The Labour Court converted an urgent challenge to SAPS’s expeditious discipline into a formal disciplinary hearing under regulations 8 and 11.

• Expeditious Disciplinary Process
• Protected Disclosure
• Pre Dismissal Arbitration
• Collective Agreement
• Natural Justice
• Urgent Interdict

Petersen v Ethekwini Municipality (D310/2024)

Petersen v Ethekwini Municipality (D310/2024) [2024] ZALCD 21 (21 June 2024)

Court

Labour Court Durban

Case number

D310/2024

Judge

Allen-Yaman

The court found that the agreement to proceed with a s188A pre-dismissal arbitration was limited to the allegations of misconduct set out in the disciplinary notice and did not extend to the issue of the applicant's qualifications. The employer terminated the applicant's employment based on the non-fulfilment of a suspensive condition in his contract, not as a disciplinary sanction for misconduct. The applicant did not dispute the factual basis for the termination, and there was no evidence that the employer was obliged to treat the qualifications issue as misconduct or include it in the s188…

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• Pre Dismissal Arbitration
• Protected Disclosures Act
• Contractual Termination
• Disciplinary Procedure
• Collective Agreement
• Unlawful Dismissal

Chili v Minister of Police and Others (J199/24)

Chili v Minister of Police and Others (J199/24) [2024] ZALCJHB 536 (18 March 2024)

Court

Labour Court Johannesburg

Case number

J199/24

Judge

M T M Phehane

The application is moot because the applicant was dismissed at the conclusion of the second disciplinary hearing and notified of his dismissal. The applicant did not properly invoke section 188A(11) of the Labour Relations Act before the CCMA, and no pre-dismissal arbitration was pending. The Labour Court lacks jurisdiction to intervene in incomplete disciplinary hearings unless exceptional circumstances exist, which were not demonstrated. The applicant's conduct, including failure to comply with the Practice Manual, filing voluminous and defective papers, and retaining an unmeritorious appli…

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• Pre Dismissal Arbitration
• Protected Disclosure
• Jurisdiction Of Labour Court
• Unfair Dismissal
• Costs Award
• Practice Manual Compliance

Van Der Westhuizen v Oraclemed Health Investments (Pty) Ltd (J1330/2023)

Van Der Westhuizen v Oraclemed Health Investments (Pty) Ltd (J1330/2023) [2024] ZALCJHB 47 (26 January 2024)

Court

Labour Court Johannesburg

Case number

J1330/2023

Judge

M T M Phehane

Labour Court strike-off application was dismissed for lack of jurisdiction and urgency after the employee’s dismissal during protected-disclosure related proceedings.

• Protected Disclosure
• Pre Dismissal Arbitration
• Automatic Unfair Dismissal
• Urgency Requirements
• Jurisdiction Of Labour Court
• Labour-law

Ndlangana v Mine Health and Safety Council and Another (J770/22)

Ndlangana v Mine Health and Safety Council and Another (J770/22) [2022] ZALCJHB 193 (27 July 2022)

Court

Labour Court Johannesburg

Case number

J770/22

Judge

Nkutha-Nkontwana

The Labour Court held that section 188A(11) of the LRA can be invoked where an employee in good faith alleges a disciplinary inquiry contravenes the PDA.

• Protected Disclosure
• Pre Dismissal Arbitration
• Occupational Detriment
• Urgent Interdict
• Disciplinary Proceedings
• Labour-law

Mothata v Tshwane University of Technology and Others (84052/17)

Mothata v Tshwane University of Technology and Others (84052/17) [2021] ZAGPPHC 665 (8 October 2021)

Court

North Gauteng High Court, Pretoria

Case number

84052/17

Judge

MNGQIBISA-THUSI

The court found that clause 19 of the applicant's fixed-term employment contract required the first respondent to refer any dispute involving dismissal to independent final and binding arbitration if the applicant did not consent to dismissal. The applicant's participation in the internal disciplinary hearing did not amount to a waiver of his right to arbitration, as there was no unequivocal intention to abandon the right, and the non-variation clause prevented any oral alteration of the procedure. The first respondent breached the contract by dismissing the applicant through an internal disc…

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• Fixed Term Employment Contract
• Pre Dismissal Arbitration
• Waiver Of Rights
• Non Variation Clause
• Breach Of Contract
• Damages Quantification

Jacobs and Others v National Commissioner of South African Police Service and Another (J194/21)

Jacobs and Others v National Commissioner of South African Police Service and Another (J194/21) [2021] ZALCJHB 263 (17 March 2021)

Court

Labour Court Johannesburg

Case number

J194/21

Judge

Nkutha-Nkontwana

The Labour Court found that the applicants, having made protected disclosures implicating the National Commissioner, were entitled to invoke section 188A(11) of the LRA. This provision mandates that upon such a request, the internal disciplinary enquiry must terminate and be replaced by a pre-dismissal arbitration conducted independently. The urgency was not self-created, as the applicants first attempted to resolve the jurisdictional issue internally before approaching the court. The chairperson's refusal to entertain the section 188A(11) objection and intention to deliver a verdict necessit…

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• Pre Dismissal Arbitration
• Protected Disclosure Act
• Legality Review
• Disciplinary Enquiry
• Section 188a Lra

Solidarity obo Kruger v Transnet SOC Ltd t/a Transnet National Ports Authority and Others (DA17/2019)

Solidarity obo Kruger v Transnet SOC Ltd t/a Transnet National Ports Authority and Others (DA17/2019) [2020] ZALAC 49; [2021] 5 BLLR 484 (LAC); (2021) 42 ILJ 852 (LAC) (1 December 2020)

Court

Labour Appeal Court

Case number

DA17/2019

Judges

Phatshoane, Kathree-Setiloane, Savage

The Labour Appeal Court found that the arbitrator's conclusions regarding the employee's alleged gross negligence were not supported by the evidence. The employee took all reasonable steps to ensure full marine services on Christmas day, including instructing staff and escalating concerns about shortages. There was no reasonable basis to conclude that he should have foreseen Ms Mthethwa's absence or that he failed to report a known risk to his superiors. The arbitrator's finding that the employee's efforts were insufficient was not borne out by the facts. Regarding the threatening behaviour,…

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• Unfair Dismissal
• Pre Dismissal Arbitration
• Progressive Discipline
• Substantive Fairness
• Threatening Behaviour
• Remedy Of Reinstatement

South African Broadcasting Corporation SOC Ltd v Phasha (JA 36/2019)

South African Broadcasting Corporation SOC Ltd v Phasha (JA 36/2019) [2020] ZALAC 50; [2021] 3 BLLR 270 (LAC); (2021) 42 ILJ 816 (LAC) (27 November 2020)

Court

Labour Appeal Court

Case number

JA 36/2019

Judges

Phatshoane, Davis, Savage

The Labour Appeal Court held that SABC could not bypass a consented s 188A pre-dismissal arbitration by summarily dismissing the employee over recusal applications.

• Pre Dismissal Arbitration
• Specific Performance
• Summary Dismissal
• Contractual Breach
• Disciplinary Code Interpretation
• Labour-law