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Article 16/2021

Labour Edge

In the scenario where an employee alleges that, as a result of a misrepresentation by his or her employer, a termination agreement was concluded, why, according to the labour appeal court in Baise v Mianzo Asset Management (Pty) Ltd (2019) 30 SALLR 158 (LAC), would it be the wrong approach to seek a declarator that the agreement is void and what should be the correct approach?

  1. Baise v Mianzo Asset Management (Pty) Ltd (2019) 30 SALLR 158 (LAC) held that, ordinarily, when pleading that sort of case in a contractual dispute, such a contention would be the foundation for a cancellation of the agreement and a tender of the return of any performance received by the aggrieved party in order to re-establish the status quo ante. This would typically be an action for restitutio in integrum (see L A Lambiris, Orders of Specific Performance and Restitutio in Integrum in South African Law (1989) Butterworths, Durban, page 182. The remedy is an exercise of equitable jurisdiction. It has three elements: A justa causa, sustaining of material damage and may require restoration of benefits received).
  2. This is not how the appellant chose to articulate his claim. He sought a declarator that the agreement was void. He did not allege that he had elected to resile for good cause. He did not unequivocally tender a return of the respondent’s performance. That performance was the payment of money. The appellant did not allege that it had been impossible to repay the sums, though he alluded to a set-off of future receipts of salary upon reinstatement of his employment, a tender that had, therefore, to be contingent on an order of specific performance of the initial employment contract, a remedy which was itself discretionary (Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A)). Indeed, none of the ordinary language of a contractual cause of action was evident. The labour court noted the omission to properly tender a return of performance and, in consequence, held that the appellant’s case fell on that ground alone. Because of the view the labour appeal court took of the matter, it was unnecessary to make definitive findings on this aspect of the case. The case was decided on the misrepresentation question, the true dispute between the parties.

 

 

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?