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Article 30/2023

In Booi v Amathole District Municipality (2022) 32 SALLR 51 (CC), the constitutional court specifically dealt with the statutory exceptions to reinstatement or re-employment as a primary remedy.

What are the important principles that practitioners are to be aware of when considering the content of s193(2)(b) of the LRA, namely, that the continued relationship is made intolerable?

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In Booi, the constitutional court indicated, inter alia, the following:

  • even if the statutory exceptions, namely, that the continued relationship is intolerable or that it is
    not reasonably practicable to reinstate or re-employ, were not raised in pleadings or even if no
    specific evidence was led in this regard, such factor must be considered by the labour court or
    the arbitrator

(see, further, Mediterranean Textile Mills v SACTWU (2012) 33 ILJ 160 (LAC))

  • as previously indicated, in article 26/2023, there is no automatic right to a remedy and this is equally applicable to compensation as well as reinstatement

(see, further, Toyota v CCMA 2016 (3) BCLR 374 (CC))

  • the aforesaid statutory defences must be considered, even if the employee is found not guilty of
    the alleged offence
  • also, the aforesaid statutory defences must be considered, even if peremption is raised

(Minister of Defence v SANDFU [2012] ZASCA 110)

  • the level of intolerability required in order to ensure compliance with s193(2)(b) of the LRA entails same to be difficult, fraught or sour
  • this level is not easily reached and weighty reasons are required as well as tangible evidence
  • the requirement of continued employment being made intolerable must not be confused with incompatibility
  • in reviewing an arbitrator’s decision as to whether or not s193(2)(b) of the LRA is or is not applicable, same entails an application of s145 of the LRA (e g a gross irregularity) infused by the reasonable decision-maker test – entailing, in essence, that there is no reasonable objective basis justifying the connection made by the decision-maker in this regard between the evidence before him and the conclusions conclusions reached (so applied also in Mthethwa v CCMA (2022) 33 SALLR 26 (LAC)
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?