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Article 23/2023

Delictual claims may be instituted by an employee as an alternative, or in conjunction with various statutory claims. How do these civil claims, based on delict, fit into the following scenarios:

  • an automatically unfair dismissal in terms of s187(1)(f) of the LRA
  • a constructive dismissal in terms of s186(1)(e) of the LRA or
  • unfair discrimination in terms of s6(3) of the EEA?

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  • A civil claim, based on delict, may be instituted by an employee as an alternative claim to the
    aforesaid statutory claims, or in conjunction therewith
  • The first potential delictual claim is to be based on the actio legis aquiliae – this entails that, if the employer negligently or intentionally and wrongfully caused patrimonial (pecuniary) damage to the employee in the aforesaid statutory environment, then the employee, in addition or alternatively to the statutory claims, has access to such a delictual claim
  • Alternatively, and in addition to a claim based on the actio legis aquiliae, the employee may also have a second potential delictual claim based on the actio iniuriarum – if the employer intentionally (dolus animus injuriandi) infringed the interest of personality of the employee, the employee will also be able to recover sentimental damages (solatium)
  • In respect of both the actio legis aquiliae and the actio iniuriarum, the amount of damages that the employee would be entitled to is based on the proven damages

(see, further, Erasmus v Dr Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG)

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?