The registration of customary marriages: Banda v General Public Service Sectoral Bargaining Council (JR3273/2009) (26 February 2014) : case note

• Author: Gardiol Van Niekerk
• DOI: 10.10520/EJC-7978a7dd4
• Published date: 01 January 2014
• Date: 01 January 2014
• Record Number: sapr1_v29_n2_a13
• Pages: 494-507

Unreported, case no JR3273/2009, 26 Feb 2014 (Labour Court, Johannesburg), available at

1

http://saflii.austlii.edu.au/za/cases/ZALCJHB/2014/46.html (accessed 2014-08-01).

Paragraphs 49-51, 55.

2

In this case the employee introduced as evidence three application forms completed in a manner

3

similar to the form he had completed. (In the arbitration the forms were introduced as evidence of

a lack of, or wrong, training and not of inconsistency) (para 52.) The Court held that the context of

the introduction of the forms was necessary to determine whether they could be used in comparison

and further that the mere fact of their existence in vacuo did not prove inconsistency as the

surrounding circumstances of their completion may have been different (para 53).

The Court pointed out that there was no indication that the employee had been ‘singled out for

4

treatment’ and that the ‘responsible management’ was in fact unaware that other forms had been

completed in same manner (see paras 54, 58, 62, 63).

See paras 3-8.

5

The registration of customary

marriages: Banda v General Public

Service Sectoral Bargaining Council

(JR3273/2009) (26 February 2014)

1 Introduction

In Banda v General Public Service Sectoral Bargaining Council, the Labour Court

1

of Johannesburg reviewed the arbitration award of the Public Service Sectorial

Bargaining Council, following its confirmation of the dismissal of the appellant, an

employee in the Department of Home Affairs. An important issue that emerged

in this case was that of the employer’s inconsistent treatment of the employee –

the role of the parity principle in disciplinary fairness. The Court held that as the

employee had failed to discharge the burden of proving a prima facie case of

inconsistency, the employer did not have to answer to the allegation.2

Principles that came to the fore were that where differing personal

circumstances of employees who committed similar transgressions enable an

employer to differentiate between them, or where the employer was ignorant of

a similar misconduct, and had failed to take action against an employee, an

inconsistency challenge should fail. Another was that an employer is not required

3

to follow a previous decision that was made in error. But this discussion will not

4

focus on issues of labour law. The focus here will be on, from a labour law

5