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Article 25/2026

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.

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  • Tshabalala v Moqhaka Local Municipality and Another [2025] 2 BLLR 189 (LAC); (2025) 46 ILJ 590 (LAC) provides the best guidelines in answering the above question.
  • The facts of this case are briefly as follows:
    • the appellant is employed by the Moqhaka Local Municipality (the municipality) as its municipal manager
    • on 1 March 2024, the appellant was suspended, with immediate effect, pending an investigation into alleged misconduct
    • on 31 May 2024, the appellant was served with a notice to attend a disciplinary hearing, accompanied by charges
    • on 3 June 2024, the appellant reported for work, contending that the suspension had lapsed ito regulation 6(6)(a)
    • on 13 June 2024, the appellant filed an urgent application in the labour court contending that the continuation of her suspension beyond the aforementioned three-month period was in breach of her employment contract
    • specifically, she averred that her contract of employment incorporated the Regulations and that the municipality was in breach of regulation 6(6)(a)
  • The Labour Court held as follows:
    • a disciplinary hearing commences upon the service of the disciplinary charges and the notice of such disciplinary charges
    • the service of such is an external manifestation that another party is beginning to claim something from the other party
    • reliance was placed on Goba v Rand West City Local Municipality (J1069/29) [2021] ZALCJHB 301 (20 September 2021) (Goba), which judgment followed Ntsimane v Tshwane Municipal Council and Another (J761/21) (10 May 2021) (Ntsimane), where it was held that it would be absurd to suggest that proceedings only commence when the matter sits for trial and that the disciplinary hearing indeed commences when the charge sheet was served on the employee
    • in casu, thus relying on Goba (following Ntsimane), the labour court held that the disciplinary proceedings against the employee commenced upon the service of the notice of the disciplinary proceedings, which was before the expiry of the three-month period, and, subsequently, her suspension had not lapsed in terms of regulation 6(6)(a)
  • The labour appeal court determined the following question: What does commence mean? It adopted the following approach:
    • the difference between the commencement of a disciplinary hearing and the commencement of disciplinary proceedings has profound consequences
    • regulation 6(6)(a) provides that, if a senior employee is suspended, the disciplinary hearing (and not the disciplinary proceedings) must commence within three months of the date of the suspension
    • with reference to regulation 10(3), it was held that a disciplinary hearing commences by the reading out of the charges to a senior manager
    • on the other hand, a disciplinary process is commenced by the service of the charges on the employee
  • Consequently, seeing that, within the three-month period after the date of suspension, the employee was only served with a notice to attend a disciplinary hearing and the disciplinary hearing had not commenced within the said three-month period, the employee’s precautionary suspension had automatically lapsed.

 

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?