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Article 30/2022

In Minister of Police v M and Others (2016) 27 SALLR 53 (LC); (2017) 38 ILJ 402 (LC), the labour court identified the content of hearsay evidence of a special type affording greater weight than simple hearsay.  What is the approach adopted by the labour court in such case as to the transcript of an internal enquiry admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act?  Subsequent to such judgment, the labour court, in Department of Home Affairs v General Public Service Sector Bargaining Council and Others (2019) 30 SALLR 172 (LC); (2019) 40 ILJ 2544 (LC), had the opportunity to apply the approach adopted in the aforesaid judgment to the specific facts of this matter.  In this subsequent judgment, how did the labour court identify such transcript of an internal enquiry as not constituting hearsay of a special type (as required in Minister of Police v M (supra))?

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In Minister of Police v M (supra), the labour court identified the following criteria to be complied with for a transcript of an internal enquiry being admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act 45 of 1998, constituting hearsay of a special type, constituting prima facie proof of misconduct and affording greater weight than simple hearsay:

  • the record is to be reliably accurate and complete (transcribed by a professional transcription service and a transcriber certificate must be attached)
  • the record must be tendered on the same factual dispute
  • the record must be bilateral in nature (containing all the evidence tendered by all the parties)
  • in respect of allegations, it must demonstrate internal consistency and corroboration
  • the record must reflect that the allegations were adequately tested under cross-examination
  • the proceedings must be procedurally correct and fair (including the requirement that the presiding officer was fair and asked questions in clarification)
  • it is not a requirement that the evidence is to be given under oath, but witnesses must be made aware that they are required to give evidence that is true and correct

When the aforesaid criteria have been met, the evidentiary burden shifts to the employee and the failure of such employee to give evidence in rebuttal could expose should employee to a finding of guilty.

When applying the aforesaid criteria, the labour court, in Department of Home Affairs (supra), made the finding that the transcript of the internal enquiry did not constitute hearsay of a special type in that the following criteria, identified above, were not complied with:

  • the record was not reliably accurate and complete
  • the record was not bilateral in nature
  • the allegations were not adequately tested under cross-examination
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?