Author: GilesFiles

State organs: Review own decisions on legality principle

 Essence State organs must use legality review as opposed to review under PAJA when seeking to set aside its own decisions.  Judgment State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd (CCT254/16) [2017] ZACC 40 (14 November 2017).  Allowed appeal in part from judgment in SCA dated 30 September 2016  Judges Coram: Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J – Judgments: Madlanga J and Pretorius AJ (unanimous)  Related books Significance Section 33 of the Constitution creates rights enjoyed only by private persons and that excludes the State.  PAJA was enacted pursuant to s33(3) to give effect to the rights in ss33(1) and (2) and PAJA must therefore be interpreted through the prism of s33 of the Constitution. Summary Discussion by GilesFiles A truly landmark decision explaining why organs of state cannot review their own decisions in terms of PAJA.  But in addition it was explained why even though the contract was declared to be invalid s172 of the Constitution empowered the Court to make any order that is just and equitable.  So despite that declaration it did not have the effect of divesting Gijima of rights to which – but for the declaration of invalidity – it might have been entitled.  As an aside it is interesting to note that...

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Void ab initio: Dismissal unlawful and legality principle

The labour court declared a purported dismissal as void ab initio which meant that it was regarded as not having taken place and in effect the employee was still employed.  The employer breached contractual obligations that required more than simply having the right to be heard.  There was a clear and material breach of the contractual right to a disciplinary inquiry where the chairperson must determine the issue of fairness. So the purported dismissal was ultra vires the PSA and the exceptional circumstances warranted urgent relief. Comment: This judgment neatly demonstrates the difference between the public sector and purpose of the LRA that does not impose undue procedural obligations on senior management in private enterprise.  In the public service there are many rules and regulations that insist on procedures that would not usually be tolerated in the private sector.  The result is that in the public sector employees have much greater protection against unlawful and unfair procedures.  This accounts for the numerous suspension on full pay and disciplinary ‘hearings’ that drag on for many months if not years.  Unfortunately this all happens at the cost of the taxpayers. Kolobe v MEC: Department of Health: North West Province (J2747/17) [2017] ZALCJHB 407 (9 November 2017) – Lagrange J. Judgment (without footnotes) Background [1] This is an urgent application to declare the applicant’s dismissal unlawful and void ab initio. [2] The...

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Racial remarks: Punish employee or protect business?

Racial remarks: The manager was dismissed, presumably without notice, for reasons related to his conduct.  Management alleged he was insubordinate and made a racial or racist remark. Management took it upon themselves to prove on clear and convincing evidence not only the validity of the reasons but also the fairness thereof. In a sense they also regarded the conduct as sufficiently serious to amount to a material breach of contract.  In the absence of proof of such a material breach management would be acting against public policy by not terminating the contract lawfully on notice. So even if the reasons were valid, did his conduct seriously damage or destroy the necessary relationship of trust and confidence?  The labour appeal court has in the past made it very clear that it is not the function of management to punish employees. Management should enforce rules and standards that protect the enterprise interests. Today the matter is being argued in the constitutional court and it will be interesting to see the outcome. Perhaps management should have given some thought to adopting the statutory procedure in s189 of the Labour Relations Act (LRA) and based the reason for dismissal on operational requirements.  This would have ensured that the interests of the enterprise were protected whilst ensuring that the employee did not forfeit any of his rights to reasonable notice and severance pay in...

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Student protest action: Biowatch principle on costs

Student protest action: The Constitutional Court granted leave to appeal and upheld the appeal of three students who had been ordered to pay legal costs by Lowe J in the high court.  Various fundamental rights were considered, including freedom of expression, assembly, demonstration, picketing and property.  The remedial powers of the Constitutional Court were considered together with the exercise of judicial discretion in awarding costs.  This included instances in which an appeal court may interfere with a discretionary order.  The application of the Biowatch principle on costs was considered in the context of the failure to exercise discretion judicially in the constitutional context. Ferguson and Others v Rhodes University (CCT187/17) [2017] ZACC 39 (7 November 2017) Coram: Mogoeng CJ, Zondo DCJ, Cameron J, Froneman J, Jafta J, Kathree Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J and Zondi AJ Full judgment (without footnotes) [1] Universities play an important enabling, facilitating, and critically reflective role in most democratic societies. They are often the locus for the birth and incubation of new ideas and provide in many ways the enabling environment where a society can engage in dialogue about the kind of future it wishes to embrace. This process can often be robust. It involves a contestation of ideas and ideologies and, at times, the passion and emotion with which a social issue is embraced may well lead to conflict that...

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Audi alteram partem rule: Application in employment disputes

Audi alteram partem rule (hear the other side): Reviewing an award at the instance of a former employee the Steenkamp J in the labour court upheld the award after deciding that it was not unreasonable.  It is very refreshing to read a judgment that clearly expresses the legal principles.  The general manager was summarily dismissed in Germany whilst being ‘trained’.  Back in this country and after being ‘tacitly’ reinstated he was allowed to respond to various allegations during a process conducted by a neutral third person.  It was decided that there was a valid and fair reason related to ‘gross’ misconduct to dismiss him summarily.  Steenkamp J rejected arguments concerning various issues raised by the former general manager during the review, including: jurisdiction; double jeopardy; hearsay evidence; and the arbiter’s alleged gross misconduct. Comment: The audi alteram partem rule developed as part of our common law.  The rule is based on the principle of natural justice.  But parliament may alter or modify that rule or principle by legislation.  The Labour Relations Act (LRA) gives effect to the constitutional right to fair labour practices.  It also has regard to the ILO Termination Convention of 1982 and the applicable Recommendation.  So the LRA provides that employees who contend that they have been unfairly dismissed must be allowed to refer their disputes to an external neutral body.  In our country this is the...

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