THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:   402/08

HAMILTON NTSHANGASE
Appellant

and

MEC FOR FINANCE: KWAZULU-NATAL
1ST Respondent
MEC FOR EDUCATION: KWAZULU-NATAL 2ND Respondent

Neutral citation:
Ntshangase v MEC: Finance Kwa-Zulu Natal and Another
402/08 [2009] ZASCA 123 (28 September  2009)

Coram:
BRAND, NUGENT, HEHER, SNYDERS JJA et
BOSIELO AJA

Heard:
7 SEPTEMBER 2009
Delivered:
28 SEPTEMBER 2009

Summary:
Labour law – whether an employer in the public sector is
entitled to review its own decision pursuant to a
disciplinary enquiry, not to dismiss an employee –
whether on the merits the decision in question was
reviewable and whether the Labour Appeal Court should
have substituted its own decision to dismiss the appellant
instead of referring the matter for a rehearing on the issue
of an appropriate sanction.

______________________________________________________________

ORDER

On appeal from: Labour Appeal Court (Zondo JP, Pillay et Kruger AJJA on
appeal from the Labour Court)

1.
The appeal is dismissed.

JUDGMENT

BOSIELO AJA (Brand, Nugent, Heher et Snyders JJA concurring)
[1] The appellant was employed in the Department of Education: Kwazulu-
Natal, as Director: Arts, Culture, Museum Services and Youth Affairs. He was
charged and found guilty of twelve charges of misconduct in a disciplinary
hearing initiated by the second respondent, the MEC for Education: KwaZulu-
Natal, and chaired by Mr Wentworth Dorkin (Dorkin). With regard to the
sanction that should be imposed, Dorkin determined that the appellant should
be given a final written warning. The second respondent found that sanction
inappropriate. In his view the appellant should have been dismissed. He
therefore brought a review application in the Labour Court for the proposed
sanction to be set aside and replaced with the sanction of dismissal. His
application to the Labour Court was unsuccessful. However, on appeal to the
Labour Appeal Court, the decision of the Labour Court was set aside and the
second respondent's review application was granted. The Labour Appeal
Court set aside the sanction imposed on the appellant by Dorkin, the
chairperson of the disciplinary hearing, and replaced it with a sanction of
dismissal with immediate effect. The appellant is appealing against the
judgment of the Labour Appeal Court with special leave of this court.

[2] The facts of this matter are fairly simple and to a large extent common
cause. A succinct account will suffice to elucidate this judgment. As I have
said, the appellant was charged and convicted of twelve counts of
misconduct, involving allegations of wilful or negligent mismanagement of the

State's finances and of abusing his authority. Facts found by Dorkin to support
these charges indicated, inter alia, the unauthorised awarding of bursaries to
various students amounting to approximately R1m and the unauthorised
purchase by the appellant of goods exceeding R500 000. It also transpired
that the second respondent suffered a loss of R200 000 from the last
mentioned transaction. After considering some evidence tendered both in
aggravation and mitigation of sentence, Dorkin decided, as I have said, that
the imposition of a final written warning would be an appropriate sentence.
That is the decision which gave rise to the review proceedings by the second
respondent; first unsuccessful in the Labour Court and then successful in the
Labour Appeal Court.

[3] In his answering affidavit the appellant admitted that he was found
guilty on all twelve counts and stated further that he did not challenge any of
Dorkin's factual findings. As clearly foreshadowed in the appellant's notice of
appeal the appellant raised three legal issues for determination by this court,
namely:
'15.1
Whether Dorkin's decision not to dismiss the appellant constitutes administrative
action which in principle is reviewable at the instance of the respondent;
15.2
if it is, whether the respondent made out a proper case to review and set aside
Dorkin's decision on the merits; and
15.3
In the event that both of the aforementioned questions are decided in the
respondent's favour, whether LAC was correct in deciding itself to dismiss the appellant in
preference to the alternative relief sought in the review application, namely the referral of the
matter for decision by another presiding officer in respect of the appropriate sanction.'
In supplementary heads of argument volunteered by the appellant, the
appellant added another ground of appeal to the three referred to above,
namely what the applicable grounds of review are in this matter.

[4] Although the second respondent initially relied on s158(1)(g), (h) and (j)
of the Labour Relations Act 66 of 1995 (LRA) as grounds for its review, the
arguments both in the Labour Court and the Labour Appeal Court were
confined to s158(1)(h) of the LRA.

[5] It became clear during argument before us that the appellant relied on

the decision of Chirwa v Transnet Ltd and Others 2008 (4) SA 367(CC) and a
recent decision by this court in Makhanya v University of Zululand [2009] 8
BLLR 721 (SCA) for its main proposition that a decision by an organ of state
to dismiss one of its employees or not to dismiss such an employee does not
constitute administrative action and is therefore not reviewable by the Labour
Court. However, it was conceded on behalf of the appellant that the Labour
Court has jurisdiction to adjudicate second respondent's claim under s
158(1)(h) of the LRA. The appellant contended however that s 158(1)(h) of
the LRA does not establish a statutory right of review where none existed
either in terms of the common law or Promotion of Administrative Justice Act
3 of 2000 (PAJA). It was submitted therefore that Dorkin's decision not to
dismiss the appellant is not administrative action and is therefore not
reviewable.

[6] Regarding the decision by the Labour Appeal Court to substitute its
own decision for that of the chairperson of the disciplinary enquiry, it was
submitted that a decision to dismiss is essentially an operational decision. It
was contended that as the element of trust is at the heart of every
employment relationship, the Labour Appeal Court was not in a position to
decide on an appropriate sanction as it had no knowledge of the appellant's
employment history in the period between his reinstatement and when the
appeal was heard.  In other words, the Labour Appeal Court was not in a
position to consider all facts relevant to a determination of an appropriate
sanction. The upshot of the argument is that having reviewed and set Dorkin's
decision aside, the Labour Appeal Court should have referred the matter back
to the disciplinary hearing for a determination of an appropriate sanction. The
appellant argued that there are no exceptional circumstances to justify the
decision by the Labour Appeal Court not to refer the matter back to the
disciplinary hearing for a reconsideration of an appropriate sanction and to
impose it itself.

[7] On the other hand the second respondent, relying on Sidumo &
Another v Rustenburg Platinum Mines Limited & Others 2008 (2) SA 24(CC),
submitted that a disciplinary enquiry of the type undertaken in terms of the

Public Service Co-ordinating Bargaining Council (PSCBC) Resolution 2 of
1999 constitutes administrative action which is reviewable not in terms of s 33
of the Constitution of the Republic of South Africa (the Constitution) or PAJA
but under s 158(1)(h) of the LRA. It was submitted that because Resolution 2
created a statutorily imposed disciplinary system which involved an
independent enquiry, the procedure was in substance the same as that which
would be followed in arbitration proceedings before the CCMA. In terms of
Sidumo arbitration proceedings are reviewable in terms of the LRA. It was
contended that by parity of reasoning Dorkin's decision at the disciplinary
hearing held in terms of Resolution 2 is reviewable. Furthermore, it was
contended that in terms of Resolution 2 the second respondent does not take
an independent decision after the hearing is finalised but is obliged to
implement the sanction pronounced by the chairperson of the disciplinary
enquiry.  As a result Dorkin's decision becomes that of the second
respondent. Based on this, it was submitted that the enquiry undertaken by
Dorkin cannot be correctly described as 'an internal managerial enquiry.'

[8] The second respondent contended that in terms of Resolution 2 Dorkin
was obliged to follow due process and then pronounce an appropriate
sanction. In so acting, he would be acting qua the second respondent which is
the State itself. As Dorkin had failed to apply his mind to the issue of an
appropriate sanction thus resulting in him arriving at an irrational decision, it
was argued that the second respondent was not only entitled but obliged, in
the public interest, to have Dorkin's irrational decision reviewed by a court of
law. This is particularly so as the employer, as opposed to the employee,
does not have a right of appeal. It was argued that the contrary argument is
untenable as it implies that in the absence of the right to appeal or review its
own decision, the second respondent would be left in an invidious position
where it would be forced to enforce a decision with which it does not agree or
one which is patently unjustified. Relying on Pepcor Retirement Fund v
Financial Services Board 2003 (6) SA 38 (SCA) the second respondent
contended that it was not only entitled but was obliged to take Dorkin's
decision on review.

[9] Concerning the question whether the Labour Appeal Court should have
referred the matter back to the disciplinary hearing for a reconsideration of an
appropriate sanction, the second respondent submitted that on the facts of
this case, the only appropriate sanction which Dorkin could have imposed is a
dismissal. It was contended that, given the gravity of the appellant's
misconduct, any other sanction would have been irrational. The essence of
this submission is that it would be futile and fruitless to refer the matter to
Dorkin when the sanction he should have imposed is a foregone conclusion.
The second respondent maintained that the Labour Appeal Court acted
correctly in the circumstances as all it did was to replace Dorkin's sanction
with the sanction which he should have imposed.

[10] The crisp legal issue in this appeal is therefore whether Dorkin's
decision amounts to administrative action or not. This question has created a
lot of controversy in the past. To my mind the first port of call is s 33(1) of the
Constitution of the Republic of South Africa 108 of 1996 (the Constitution)
which provides that :
'Everyone has the right to administrative action that is lawful, reasonable and procedurally
fair.'
In an attempt to define what administrative action is, the Constitutional Court
stated the following in President of the Republic of RSA v South African
Rugby Football Union 2000 (1) SA 1(CC) in para 141:
'In s 33 the adjective "administrative" not "executive" is used to qualify "action". This suggests
that the test for determining whether conduct constitutes "administrative action" is not the
question whether the action concerned is performed by a member of the executive arm of
government. What matters is not so much the functionary as the function. The question is
whether the task itself is administrative or not. It may well be, as contemplated in Fedsure,
that some acts of a legislature may constitute "administrative action". Similarly, judicial
officers may, from time to time, carry out administrative tasks. The focus of the enquiry as to
whether conduct is "administrative action" is not on the arm of government to which the
relevant actor belongs, but on the nature of the power he or she is exercising.'

[11] In grappling with the difficult task of trying to define a difficult and
complex concept like 'administrative action' Professor Cora Hoexter states in
her book, Administrative Law In South Africa at p 167:

'In the SARFU case the Constitutional Court admitted that deciding what is and what is not
administrative action "may be difficult" and suggested that it would have to be done on a
case-by-case basis. It offered the following as relevant considerations in the diagnosis: the
source of the power, the nature of the power, its subject matter, whether it involves the
exercise of a public duty and how closely it is related to policy matters – which are not
administrative – or to the implementation of legislation which is characteristic of administrative
action.'

[12] To my mind, it cannot be argued that the second respondent is not an
organ of State as envisaged by s 239 of the Constitution. Furthermore, there
is no gainsaying that the second respondent exercises public power in the
public interest in terms of legislation. This gives the second respondent's
powers the necessary public character as opposed to a private character.
Undoubtedly, when the second respondent appointed Dorkin to preside over
the appellant's disciplinary hearing, it did so in its capacity as the State. It
follows, in my view, that Dorkin's action complained of herein which
essentially is that of the second respondent qualifies as administrative action.
That being so, such action has to be lawful, reasonable and procedurally fair
as contemplated by s 33(1) of the Constitution.

[13] It is not in dispute that Dorkin was appointed by the second respondent
as chairperson of the disciplinary hearing involving the appellant to preside
over it as its (second respondent's) representative. Dorkin was appointed in
terms of Resolution 2. In terms of Resolution 2 the second respondent is
obliged to execute the decision taken by Dorkin, the chairperson of the
disciplinary hearing. To my mind, it follows that Dorkin was acting qua the
second respondent and his decision became that of second respondent. It is
common cause that Resolution 2 embodies the procedure negotiated and
agreed upon by the employer and trade unions representing the employees.
Unlike an ordinary collective agreement, the procedure embodied in
Resolution 2 has a statutory force which is buttressed by s 23 of the LRA
which provides clearly that the collective agreement binds the parties thereto.
As this court observed in S v Prefabricated Housing Corporation (Pty) Ltd &
Another 1974 (1) SA 535 (A) at p 539G-540B:
'It is true that the type of document now under consideration is termed under the Act and in

industrial parlance an "agreement", and it is said to be "negotiated" or "entered into" but
technically it is not a contract in the legal sense . . . . From all those provisions it is clear, I
think, that an industrial agreement is not a contract but a piece of subordinate, domestic
legislation made in terms of the Act by the industrial council and the Minister. (See the clear
and concise summary of the position given by Dowling J, in South African Association of
Municipal Employees (Pretoria Branch) and Another v Pretoria City Council 1948 (1) SA 11
(T) at p 17). In that respect it does not differ from by-laws made by the council of a local
authority and approved by the Administrator of a Province under its Local Government
Ordinance, or from a wage determination made by the Minister on the recommendation of the
Wage Board under the provisions of the Wage Act, presently 5 of 1957, both of which are
similarly regarded. (See Rex v Stoller, 1939 A.D. 599 at pp 616-8; Kneen's case supra at pp
406-7). . . '.

[14] It is plain from paras 10 to 12 above that the powers to be exercised by
Dorkin in terms of Resolution 2 in the disciplinary hearing against the
appellant qualify as public power or a public function performed in terms of
Resolution 2 which has statutory authority in terms of s 23 of the LRA.
Furthermore, it cannot be gainsaid that the exercise of such public power by
Dorkin was in the public interest and had a direct and external effect on at
least the appellant's employment relationship with the second respondent. To
my mind, it follows that the decision by Dorkin qualifies as administrative
action. However, the vexed legal question remains whether Dorkin's decision
is reviewable at the instance of the second respondent or not. If so, is it under
the Promotion of Administrative Justice Act 3 of 2000 (PAJA) or s 158(1)(h) of
the LRA?

[15] S 158(1)(h) of the LRA provides as follows:
' 158(1) The Labour Court may-
. . .
(h)
review any decision taken or any act performed by the State in its capacity as
employer, on such grounds as are permissible in law;'
. . . .'
Undoubtedly this section provides in explicit terms that a decision like the one
taken by Dorkin who acted qua his employer can be reviewed on such
grounds as are permissible in law. The ground relied upon by the second
respondent for the review of Dorkin's decision is rationality, which is one of the

recognised grounds of review. I am therefore of the view that Dorkin's
decision can be taken on review under s 158(1)(h) of the LRA.

[16] I am also persuaded to agree with Zondo JP in his judgment in the
Labour Appeal Court where he stated in para 10:
'In Sidumo & Another v Rustenburg Platinum, case no: CCT 85/06 as yet unreported, which
was handed down on the 5th October 2007, the Constitutional Court had to decide whether,
when a CCMA commissioner conducts arbitration proceedings under the compulsory
arbitration provisions of the Labour Relations Act 1995 (Act 66 of 1995) ("The Act") to resolve
a dismissal dispute, that constitutes administrative action. It held that such action does
constitute administrative action. It seems to me that if the conduct of compulsory arbitrations
relating to dismissal disputes under the Act constitutes administrative action, then the conduct
of disciplinary hearings in the workplace where the employer is the State constitutes, without
any doubt, administrative action. If it constitutes administrative action, then it is required to be
lawful, reasonable and procedurally fair. Accordingly, if it can be shown not to be reasonable,
it can be reviewed and set aside.'

[17] However, this is not the end of the conundrum. Having found that the
decision by Dorkin amounts to administrative action, the pertinent legal
question remains whether the second respondent (the employer) had the
locus standi to take the matter on review. In this court, like in the court below,
the appellant seriously challenged the second respondent's locus standi to
bring the review proceedings. To my mind the answer to this legal question
hinges on whether Dorkin acted as the second respondent or as an
independent arbiter. It is common cause that Dorkin was appointed in terms of
Resolution 2 which provides that the employer is bound by Dorkin's decision.
In the result Dorkin's decision becomes that of the second respondent as
Dorkin acted qua the second respondent. Admittedly the challenge raised
herein is novel as it has never enjoyed the attention of our courts. However, I
found some guidance from Pepcor Retirement Fund and Another v Financial
Services Board and Another 2003 (6) SA 38 (SCA), where confronted by a
similar problem, this court held as follows in para 10:
'This Court has already held that if an administrative act has been performed irregularly – be it
as a result of an administrative error, fraud or other circumstance – then, depending upon the
legislation involved and the nature and functions of the public body, it may not only be entitled
but also bound to raise the matter in a court of law, if prejudiced: Transair (Pty) Ltd v National

Transport Commission and Another 1977 (3) SA 784 (A) at 792H-793G.'

[18] Although Pepcor involved the action by the Registrar of Pension Funds
this dictum is equally applicable to this case as both the Registrar and the
second respondent are public functionaries exercising a power in the interests
of the public in terms of legislation. Based on the Pepcor judgment I am of the
view that the second respondent was not only entitled, but bound to take
Dorkin's decision on review. This it could competently do in terms of s
158(1)(h) of the LRA which makes clear provision for such a review on such
grounds as are permissible in law. As Cloete JA aptly remarked in Pepcor in
para 13:
'. . . . It is unthinkable that, if the Registrar were to realise ex post facto that there had not
been compliance with the section, he could not apply to Court to have it set aside. Compare
in this regard what was said by this Court in Rajah and Rajah Ltd and Others v Ventersdorp
Municipality and Others 1961 (4) SA 402 (A) at 407 E:
Mr De Villiers for the Council submitted that in the exercise of its statutory functions it has an
administrative interest, on behalf of the public, in certificates for local trading. I agree: that is
what gives it a locus, unlike a purely judicial tribunal.
It would indeed be the Registrar's duty to make such an application, if prejudiced.'
Undoubtedly the second respondent has an interest in ensuring that fair
labour practices are upheld in its employment relationships. The same holds
true for its employees. All actions and/or decisions taken pursuant to the
employment relationship between the second respondent and its employees
must be fair and must account for all the relevant facts put before the
presiding officer. Where such an act or decision fails to take account of all
relevant facts and is manifestly unfair to the employer, he/she is entitled to
take such decision on review. Moreover, the second respondent has a duty to
ensure an accountable Public Administration in accordance with ss 195 and
197 of the Constitution. I therefore find that the second respondent had the
necessary locus standi to take Dorkin's action on review to the Labour Court.

[19] The second respondent contended that Dorkin acted irrationally in
deciding to give the appellant a final written warning instead of dismissing
him, given the seriousness and gravity of the charges for which he was found
guilty. Furthermore, the second respondent argued that based on Resolution

2 the second respondent has no choice but to execute the decision by Dorkin,
wrong and irregular as it may be. Undoubtedly, Dorkin's decision has caused
the second respondent some prejudice in that, despite the alleged breakdown
of trust, the second respondent is obliged to retain the appellant in
employment. Furthermore, second respondent contended that if Dorkin's
decision was allowed to stand, it would be difficult for the second respondent
to impose the sanction of dismissal on anyone of its employees in line with the
hallowed principle of parity of treatment of employees. The Labour Appeal
Court found in para 18 of its judgment that 'a finding by Dorkin that this was a
case in which dismissal was not an appropriate sanction and that a final
warning was, is a conclusion which could only be reached by someone who
did not exercise any discretion at all and who simply acted arbitrarily and did
not apply his mind at all. To the extent that his decision constitutes an
administrative action, I have no hesitation in concluding that his decision is a
decision that no reasonable person could reach on the facts of this case and
his decision is not just unreasonable but is, without doubt, grossly
unreasonable . . . .' Suffice to state that I am in respectful agreement with this
dictum.

[20] I agree that Dorkin's decision, measured against the charges on which
he convicted the appellant appear to be grossly unreasonable. Given the
yawning chasm in the sanction imposed by Dorkin and that which a Court
would have imposed, the conclusion is inescapable that Dorkin did not apply
his mind properly or at all to the issue of an appropriate sanction. Manifestly,
Dorkin's decision is patently unfair to the second respondent. To my mind, it
fails to pass the test of rationality or reasonableness (see Pharmaceutical
Manufacturers of SA and Another: in re Ex Parte President of the Republic of
South Africa and Others 2000 (2) SA 674(CC) para 89; Sidumo And Another v
Rustenburg Platinum Mines Ltd And Others 2008 (2) SA 24(CC) paras 106
and 276; Toyota SA Motors (Pty) Ltd v Radebe and Others [2000] 21 ILJ 340
(LAC) para 53). In the circumstances, the second respondent was entitled to
take such a decision on review in terms of s 158(1)(h) of the LRA to have it
set aside.

[21] Having reviewed and set aside Dorkin's decision on the basis of  gross
unreasonableness, the Labour Appeal Court imposed a sanction of dismissal
on the appellant. A strong attack was levelled against the decision of the
Labour Appeal Court on the basis that there were no exceptional
circumstances which justified the Labour Appeal Court departing from the
established and orthodox approach and to take such a decision. The main
argument was that the Labour Appeal Court did not have all the relevant
material to consider in the determination of an appropriate sanction. It is
indeed correct that it is well established that, ordinarily, a court will refer a
matter back to the administrative functionary for reconsideration rather than to
substitute its own decision for that of the functionary. The underlying reasons
for this are as Heher JA stated in Gauteng Gambling Board v Silverstar
Development Ltd and Others 2005 (4) SA 67 (SCA) in para 29 that such a
functionary is generally best equipped by amongst others, its composition, by
experience, and its access to sources of relevant information and expertise to
make the right decision. However, this principle is not inflexible.

[22] The facts of each case will determine whether it is fair and practical to
remit the matter to the original functionary or for the court to substitute its own
decision for that of the original functionary. The appellant was suspended on
25 August 2000 pending the outcome of a disciplinary hearing. On 12
February 2002 the appellant was given a final written warning. During July
2002 he was reinstated. The review application was finalised in the Labour
Court on 18 March 2005 when the application was dismissed. The judgment
of the Labour Appeal Court was delivered on 21 December 2007. Manifestly
there has been a time lapse of approximately five years from the time of the
original sanction to the judgment of the Labour Appeal Court. To remit this
matter to the chairperson of the disciplinary hearing in a situation where the
appropriate sanction to be imposed is inevitable, would, to my mind, not be
fair to both parties.

[23] Given the nature and gravity of the misconduct for which appellant was
found guilty, there can be no argument that dismissal was the only
appropriate sanction. Referring the matter to the disciplinary hearing to

impose a sanction of dismissal would, in my view, serve no purpose.

[24] What remains to be determined is the issue of costs. Both the Labour
Court and Labour Appeal Court did not make any order regarding costs. In the
result, I think it is appropriate not to make any order regarding costs.

[25] In the result the following order is made:
1.
The appeal is dismissed.
………………..
L O BOSIELO
ACTING JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANT:

C E WATT-PRINGLE SC

Ms D LANDSTRöM (Pupil)

Instructed by

MACGREGOR ERASMUS ATTORNEYS,
DURBAN

LOVIUS BLOCK, BLOEMFONTEIN

FOR RESPONDENT:
P J OLSEN SC

M G de KLERK

Instructed by
FEISAL ABRAHAM ATTORNEYS, DURBAN
MATSEPES INC, BLOEMFONTEIN

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN SUPREME
COURT OF APPEAL

FROM:
The Registrar, Supreme Court of Appeal

DATE:
28 SEPTEMBER 2009

STATUS:
Immediate

Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.

HAMILTON NTSHANGASE v MEC: FINANCES: KWAZULU-NATAL AND
ANTOTHER
[1] In a judgment delivered on 28 September 2009, the Supreme Court of Appeal
dismissed an appeal against a judgment of the Labour Appeal Court.

[2] Having been found guilty at a disciplinary hearing of twelve counts of
misconduct, involving allegations of wilful or negligent mismanagement of finances
amounting to approximately R1m and unauthorised expenditure amounting to R500
000,00, the presiding officer imposed a sanction of a final written warning and not a
dismissal on the appellant. The second respondent failed in an application to the
Labour Court to have the sanction imposed by the presiding officer reviewed and set
aside. On appeal to the Labour Appeal Court, the decision of the Labour Court was
set aside and the second respondent's application for review granted. The Labour
Appeal Court set aside the sanction of a final written warning imposed on the
appellant and replaced it with a sanction of dismissal with immediate effect.

[3] On appeal to this court, the appellant attacked the finding by the Labour
Appeal Court that the decision of the presiding officer of the disciplinary hearing
qualifies as administrative action and is therefore reviewable under s 158(1)(h) of the
Labour Relations Act 66 of 1995; further that the second respondent did not have
locus standi to bring its own act on review and last that the Labour Appeal Court
erred in, instead of referring the matter to the disciplinary hearing for a

reconsideration of an appropriate sanction, it imposed a sanction of dismissal with
immediate effect.

[4] On appeal the Supreme Court of Appeal dismissed the appeal holding that the
decision taken by the presiding officer during the disciplinary hearing qualifies as an
administrative action; that it is reviewable under s 158(1)(h) of the LRA; that second
respondent had locus standi to bring the review application, and further that, given the
gravity of the misconduct committed by the appellant, the Labour Appeal Court acted
correctly in imposing a sanction of dismissal with immediate effect instead of
referring the matter to the disciplinary hearing as the sanction of a dismissal was the
only appropriate sanction. The Supreme Court of Appeal held that in the
circumstances it would serve no practical purpose to refer the matter to the
disciplinary hearing for a reconsideration of an appropriate sanction.