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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.

 

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