Mkhize v Department of Correctional Services and Others

Mr Sithembiso Siphelele Mkhize was employed as a warder by the Department of Correctional Services. In January 2008 he was dismissed after a disciplinary enquiry for allegedly bringing dagga into a prison. The dismissal was upheld as procedurally and substantively fair by an arbitrator of the General Public Services Sectoral Bargaining Council. Mr Mkhize’s review application to the Labour Court was dismissed, and the Labour Appeal Court refused leave to appeal. On further appeal to the Supreme Court of Appeal, Mr Mkhize sought to introduce new evidence in the form of an affidavit by a fellow warder, Mr Gilbert Sibiya, who admitted that he had falsely implicated Mr Mkhize out of personal animosity and that a prisoner had planted the dagga. This evidence had not been available during the arbitration or review proceedings.

The appeal was upheld. The decisions of the arbitrator, the Labour Court and the Labour Appeal Court were set aside. The dispute was remitted to the General Public Services Sectoral Bargaining Council for continuation of the arbitration on the sole issue of substantive fairness, with provision for hearing the new evidence. No costs were awarded in the Labour Court or Labour Appeal Court proceedings, and costs in the Supreme Court of Appeal were made conditional on Mr Mkhize achieving substantial success on remittal.

The case clarifies the limited scope of appellate interference in labour matters while recognising that new, material evidence indicating a possible miscarriage of justice may justify remittal. It illustrates the Supreme Court of Appeal’s approach to balancing deference to specialised labour tribunals with the interests of justice, and provides guidance on how recanting witness evidence should be handled procedurally.