Minister of Justice and Constitutional Development v General Public Service Sectoral Bargaining Council and Others

Mr NS Mahada, a long-serving public servant, was seconded from the Department of Justice to the Western Cape Department of Health until 30 September 1999. After the secondment ended, he failed to report back for duty but continued receiving a salary. His absence exceeded six months and, by operation of section 17(5)(a)(i) of the Public Service Act 103 of 1994 (PSA), his service was deemed terminated with effect from 1 October 1999. After belated and unsuccessful representations to be reinstated under section 17(5)(b) of the PSA, Mahada repeatedly referred unfair dismissal disputes to the GPSSBC over many years. Ultimately, in July 2020, Commissioner Lufuno Ramabulana found that Mahada had been dismissed, that the dismissal was unfair, and ordered retrospective reinstatement with substantial backpay exceeding R6 million. The Minister launched a review application, but the file was archived following an ex parte application brought by the arbitrator himself. The Minister then sought rescission of the archiving order, de-archiving, and reinstatement of the review application.

The archiving order of 26 October 2021 was rescinded. The court granted the application for de-archiving and reinstatement of the Minister’s review application, allowing the review to proceed.

The judgment clarifies that arbitrators have no locus standi to seek substantive relief in relation to reviews of their own awards. It reaffirms that rescission of an archiving order does not automatically revive a lapsed review application and that reinstatement requires satisfaction of condonation principles. The case underscores the importance of section 17(5) of the PSA and highlights jurisdictional limits of bargaining councils where termination occurs by operation of law.