Tsengwa v Knysna Municipality (C457/14)  ZALCCT 33 (16 April 2015) per Rabkin-Naicker J.
Even if arbiters acting under the SALGBC’s jurisdiction think employers have not complied with their obligations under Clause 6(3) of the Disciplinary Procedure and Code Collective Agreement (DPCCA) they are not empowered to issue a declaratory order to nullify the disciplinary action taken against the employee. Rabkin-Naicker J declined to follow an earlier judgment of Steenkamp J in Samwu obo Jacobs v City of Cape Town  10 BLLR 1011 (LC). In that judgment it was not in dispute that the City failed to comply with the three-month time stipulation; that it did not apply for condonation; that the provisions of the Code are peremptory; and that they form part of the employee’s conditions of service. “In deciding that he did not have the power to issue a declaratory to the effect that the disciplinary hearing was null and void, the arbitrator failed to deal with the dispute before him. He also exceeded his powers. This had the effect that the conclusion he reached was so unreasonable that no reasonable arbitrator could have reached the same conclusion.”