South Africa Case Law

Ntombela v Community Scheme Ombud Service and Others (J1631/23)

Ntombela v Community Scheme Ombud Service and Others (J1631/23) [2024] ZALCJHB 121 (12 March 2024)

Court

Labour Court Johannesburg

Case number

J1631/23

Judge

Ngwenya

The applicant made a disclosure to the Audit and Risk Committee regarding alleged maladministration and malfeasance, which qualifies as a protected disclosure under the Protected Disclosure Act. There is no evidence of malice, reckless abandon, or ulterior motive, and the disclosure was made in good faith. The applicant was placed on suspension the day after the disclosure, satisfying the requirements for occupational detriment. The jurisdictional requirements for invoking section 188A(11) of the Labour Relations Act have been met. Accordingly, the internal disciplinary proceedings must be in…

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• Protected Disclosure
• Occupational Detriment
• Section 188a Lra
• Disciplinary Procedure
• Good Faith Disclosure

Mtweta v Transnet Freight Rail and Operating Division of Transnet (SOC) Limited (J 58/2024)

Mtweta v Transnet Freight Rail and Operating Division of Transnet (SOC) Limited (J 58/2024) [2024] ZALCJHB 17 (29 January 2024)

Court

Labour Court Johannesburg

Case number

J 58/2024

Judge

Tlhotlhalemaje

Urgent labour application to stop a disciplinary hearing was struck off for lack of urgency and self-created delay.

• Protected Disclosure Act
• Urgent Interdict
• Section 188a Lra
• Occupational Detriment
• Unfair Labour Practice
• Urgent-interdict

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…

Source excerpt

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

Kubheka v Member of the Executive Council: Human Settlements (Gauteng Provincial Government) and Another (J280/20)

Kubheka v Member of the Executive Council: Human Settlements (Gauteng Provincial Government) and Another (J280/20) [2020] ZALCJHB 93; (2021) 42 ILJ 1497 (LC) (5 May 2020)

Court

Labour Court Johannesburg

Case number

J280/20

Judge

P Nkutha-Nkontwana

The court held that the Department, having entered into a tripartite agreement for a pre-dismissal arbitration under section 188A of the LRA, is divested of its prerogative to institute any parallel in-house disciplinary hearing against the applicant pending the finalisation of the arbitration. The doctrine of election applies, preventing the Department from blowing hot and cold by pursuing two inconsistent disciplinary processes. The Department's attempt to distinguish the charges based on their source was rejected, as the statutory arbitration process is intended to expedite and consolidate…

Source excerpt

• Pre Dismissal Arbitration
• Section 188a Lra
• Doctrine Of Election
• Parallel Disciplinary Proceedings
• Interdict
• Jurisdiction Of Bargaining Council

Potgieter v Modikwa Platinum Mine and Others (J1892/2019)

Potgieter v Modikwa Platinum Mine and Others (J1892/2019) [2019] ZALCJHB 267 (8 October 2019)

Court

Labour Court Johannesburg

Case number

J1892/2019

Judge

Tlhotlhalemaje

The Court held that the applicant failed to establish any right to have his disciplinary proceedings conducted under section 188A of the Labour Relations Act, as such a process must be initiated by the employer or provided for in the employment contract or collective agreement. The applicant's lack of confidence in the fairness of the internal disciplinary hearing did not constitute exceptional circumstances warranting the Court's urgent intervention. Furthermore, the applicant did not satisfy the requirements of urgency, as no objective facts or explanations were provided to justify the abri…

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• Urgent Interdict
• Disciplinary Proceedings
• Section 188a Lra
• Misjoinder
• Costs Award

Mchuba v Passenger Rail Agency of South Africa (J392/14)

Mchuba v Passenger Rail Agency of South Africa (J392/14) [2016] ZALCJHB 73; [2016] 6 BLLR 612 (LC); (2016) 37 (ILJ) 1923 (LC) (2 March 2016)

Court

Labour Court Johannesburg

Case number

J392/14

Judge

Lallie

The Labour Court found that the respondent breached its contractual obligation by unilaterally abandoning the agreed pre-dismissal arbitration process after having elected to address the allegations of misconduct against the applicant in terms of section 188A of the Labour Relations Act. The disciplinary code, incorporated into the applicant's contract, provided for pre-dismissal arbitration as an option, and the respondent's conduct—approaching Tokiso and arranging the arbitration—constituted an election to follow that route. The applicant's participation amounted to consent by conduct. The…

Source excerpt

• Pre Dismissal Arbitration
• Breach Of Employment Contract
• Section 188a Lra
• Reinstatement
• Jurisdiction Labour Court

De Beer v Tupa 2012 (Pty) Ltd and Another (J 1547/14)

De Beer v Tupa 2012 (Pty) Ltd and Another (J 1547/14) [2014] ZALCJHB 247 (9 July 2014)

Court

Labour Court Johannesburg

Case number

J1547/14

Judge

Lallie

The Labour Court held that a dismissal breached a binding section 188A pre-dismissal arbitration agreement, set it aside, and reinstated the employee.

• Pre Dismissal Arbitration
• Section 188a Lra
• Unlawful Dismissal
• Costs Order
• Urgent Interdict
• Pre-dismissal-arbitration