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Article 12/2023

On what basis can an employer institute civil action against an employee for misrepresenting his qualifications and falsely claiming that he received a better job offer that induced the employer to increase such employee’s salary to match the offer?

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  • Passenger Rail Agency SA v Daniel Mthimkhulu case number 42056/2015 deals with the above scenario, where the misrepresentation of qualifications induced the employer to employ the employee and where the false claims of an alternative offer induced the employer to match such fake offer
  • The court in casu was satisfied that all the elements of a delictual claim had been established, namely:
    • the conduct on the part of the employee
    • such conduct was wrongful
    • the employee intentionally misrepresented the scenario
    • the employer suffered damage
    • a causal link exists between the wrongful conduct of the employee and the damage suffered by the employer – consequently, the court awarded damages to the employer in the amount of R5.7m, constituting the remuneration the employee received from the employer as a result of his fraudulent misrepresentations
  • However, in terms of s32B(3) of the National Qualifications Framework Amendment Act 12 of 2019, a person is guilty of an offence if such person falsely or fraudulently claims to be holding a qualification or part-qualification registered on the NQF or awarded by an education institution, skills development provider, QC or obtained from a lawfully-recognised foreign institution – entailing that, apart from the aforesaid civil claim, the employee may also face a criminal charge and may be subject to a fine or to imprisonment for a period not exceeding five years, or to both a fine and such imprisonment
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?