Baloyi v Member of the Executive Committee for Health and Social Development, Limpopo and Others

Mr Gezani Julius Baloyi was employed by the Limpopo Department of Health and Social Development for approximately 19 years and held a senior artisan superintendent position. He was charged with misconduct relating to the requisition, servicing and payment for waste incinerators at clinics in Limpopo, allegedly for services not required or not rendered. He maintained that he acted on the instructions of his superior, Dr Wasilota, and that payment was authorised by other officials. During the disciplinary hearing, key witnesses were allegedly prevented from testifying, and a defence witness was excluded. He was dismissed in February 2005. An unfair dismissal dispute was arbitrated under the Public Health and Welfare Sectoral Bargaining Council, where the arbitrator upheld the dismissal. When Mr Baloyi sought review in the Labour Court, the arbitration record had been lost and could not be reconstructed. Despite this, the Labour Court dismissed the review on the merits. Subsequent appeals failed until the matter reached the Constitutional Court.

Condonation and leave to appeal were granted. The appeal succeeded with costs. The Labour Court order was replaced with an order reviewing and setting aside the arbitrator’s award, reinstating the applicant in his former position with effect from the date of dismissal, and directing the respondents to pay costs.

The case is significant for clarifying how courts should deal with review applications where the arbitration record is missing or irretrievable. It affirms that deciding a review on an incomplete record may constitute a serious irregularity and underscores the Constitutional Court’s willingness, in exceptional circumstances, to grant substantive relief rather than remitting matters, particularly where remittal would cause grave injustice and undue delay in labour disputes.