Nyathikazi v Public Health and Social Development Sectoral Bargaining Council and Others

The appellant, Ms Deliwe Nancy Nyathikazi, was employed by the Limpopo Department of Health as Senior General Manager: Academic and Tertiary Department. She was charged with misconduct for approving two procurement transactions in 2011 without complying with prescribed supply chain management and statutory requirements. The first involved approval of the procurement of two-way radio control room equipment from Kitso Tech Coopers Radio to the value of R7 085 409.16 without a proper competitive bidding process. The second involved approval of the procurement and payment of Columbus software licences to the value of R4 976 647.20 without utilising the State Information Technology Agency (SITA), contrary to the SITA Act and Treasury Practice Notes. Following a disciplinary inquiry, she was dismissed. She referred an unfair dismissal dispute to the Public Health and Social Development Sectoral Bargaining Council. The arbitrator found her guilty of misconduct but held the dismissal substantively and procedurally unfair due to inconsistent discipline and procedural defects, and awarded compensation equivalent to two months’ remuneration. The Labour Court dismissed her review application, and she appealed to the Labour Appeal Court.

The appeal was dismissed with costs, and the arbitration award granting compensation (but not reinstatement) remained intact.

The case reaffirms the Sidumo reasonableness test in review and appeal proceedings and underscores the seriousness of irregular expenditure by senior public officials. It highlights the strict application of the PFMA, Treasury Regulations and the SITA Act in public sector procurement, and cautions against an uncritical application of the parity principle in cases of serious misconduct. The judgment also reflects judicial concern about delays in labour dispute resolution under the LRA.