Ntshangase v MEC for Finance: KwaZulu-Natal and Another

The appellant, Mr Hamilton Ntshangase, was employed by the KwaZulu-Natal Department of Education as Director: Arts, Culture, Museum Services and Youth Affairs. He was charged with and found guilty of twelve counts of serious misconduct, including wilful or negligent mismanagement of state finances, abuse of authority, the unauthorised awarding of bursaries amounting to about R1 million, and unauthorised procurement exceeding R500 000, causing a loss of about R200 000. A disciplinary enquiry held in terms of PSCBC Resolution 2 of 1999, chaired by Mr Dorkin, imposed a final written warning as sanction. The MEC for Education considered the sanction grossly inappropriate and sought to review it in the Labour Court. The Labour Court dismissed the review, but on appeal the Labour Appeal Court set aside the sanction and substituted it with dismissal. The appellant appealed to the Supreme Court of Appeal.

The appeal was dismissed. The decision of the Labour Appeal Court substituting the sanction of dismissal remained in force. No order as to costs was made.

The case is significant for clarifying that disciplinary decisions taken by the State as employer under statutorily grounded collective agreements constitute administrative action. It confirms that public-sector employers may review their own disciplinary decisions under s 158(1)(h) of the LRA and may be obliged to do so where decisions are irrational. The judgment also affirms that courts may substitute sanctions in exceptional circumstances where remittal would be futile.