Willie Steve Mkasi v Department of Health: KwaZulu-Natal and Advocate C.M Kulati N.O

The applicant was an employee of the Department of Health: KwaZulu-Natal. He was suspended and faced three misconduct charges relating to allegations of assault on a colleague, Mr Chambers, on 15 September 2017. The employer charged him approximately eight months after his suspension. The disciplinary hearing was presided over by the second respondent (Advocate Kulati). After the employer closed its case, the applicant made substantive applications seeking to: (1) quash the charges based on waiver of discipline due to delayed prosecution (60 days had elapsed from suspension before charges were laid); (2) quash the charges because the employer had elected to proceed by way of a formal grievance but then charged the applicant while the grievance was still pending; and (3) obtain absolution from the instance. The second respondent dismissed all three applications and ordered the disciplinary enquiry to proceed. The applicant instituted review proceedings under section 158(1)(h) of the LRA and requested that the disciplinary enquiry be held in abeyance pending the review. Both respondents refused to postpone the hearing, prompting this urgent application for an interdict.

• Whether the court has jurisdiction under section 158(1)(h) of the LRA to review decisions taken by a chairperson of an internal disciplinary hearing
• Whether the chairperson was functus officio regarding the waiver issue
• Whether the employer waived its right to discipline the applicant due to unreasonable delay in instituting disciplinary proceedings
• Whether absolution from the instance is a competent order in internal disciplinary hearings
• Whether the applicant had exhausted internal remedies before seeking review
• Whether an interdict stopping the disciplinary hearing pending the review application should be granted

1. The order is granted as prayed for in paragraphs 1 and 2(1) of the notice of motion (interdict restraining the disciplinary hearing pending finalization of the review application). 2. The first respondent is ordered to pay the costs.

1. A presiding officer of an internal disciplinary hearing acts qua employer, and their decisions are subject to review under section 158(1)(h) of the LRA on grounds listed in PAJA, common law grounds relating to domestic/contractual proceedings, and constitutional principles of legality. 2. An unreasonable delay by an employer in instituting disciplinary proceedings, without adequate explanation, can result in the employer waiving its right to discipline the employee. 3. Where the jurisdiction of a tribunal is dependent on the existence of particular jurisdictional facts that are the subject of a pending review application, and the review has reasonable prospects of success with potential to dispose of the proceedings entirely, an interdict restraining continuation of those proceedings pending the review is appropriate to prevent the review right from becoming academic rather than real. 4. A chairperson who has not actually ruled on an issue raised before them is not functus officio regarding that issue.

The Court made several important obiter observations: (1) It is arguably unconstitutional that employees in disciplinary hearings must choose between closing their case without leading evidence (risking adverse findings) or testifying (risking self-incrimination), whereas such choices need not be made in criminal or civil matters - this constitutional challenge has not yet been determined. (2) The distinction in labour law regarding the presumption of innocence until proven guilty may lack a rational basis and could be subject to constitutional challenge. (3) While absolution from the instance is currently not a competent order in CCMA arbitration proceedings or internal disciplinary hearings, a presiding officer who complies with section 138(1) of the LRA and deals with a matter fairly and quickly by granting such relief cannot necessarily be said to be acting ultra vires if enabling law existed and the case warranted it. (4) The Court suggested sympathy for the argument that the right to silence until proven guilty should apply in labour disputes, though no such constitutional challenge has yet succeeded.

This case is significant in South African labour law as it: (1) confirms that decisions of disciplinary hearing chairpersons are reviewable under section 158(1)(h) of the LRA as they act qua employer; (2) reinforces the principle that unreasonable, unexplained delays in instituting disciplinary proceedings can constitute waiver of the employer's right to discipline; (3) addresses the controversial question of whether absolution from the instance is available in internal disciplinary hearings (finding it generally not competent but leaving open the possibility of a constitutional challenge); (4) establishes that where a review application has reasonable prospects of success and could dispose of disciplinary proceedings entirely, an interdict is appropriate to prevent the review right from becoming academic; and (5) balances the employer's right to conduct disciplinary proceedings against the employee's right to procedural fairness and review of potentially irregular decisions.