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Article 31/2022

What are the three scenarios identified in Hillside Aluminium v Mathuse (2016) 27 SALLR 29 (LC) covering the utilisation of a record/transcript of an internal disciplinary enquiry to be utilised at the CCMA or bargaining council and recently followed by the constitutional court in AMCU v Ngululu Bulk Carriers (in liquidation) (2020) 31 SALLR 111 (CC); (2020) 41 ILJ 1837 (CC)?

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Scenario 1

This scenario entails no agreement on the authenticity of the documents or, alternatively, such authenticity is disputed.  If a party wants to rely on a document, it bears the onus to prove the authenticity by leaving evidence.  If authenticity is not proven or admitted:

  • the document is inadmissible
  • cannot be used in cross-examination
  • cannot be considered as evidence

Scenario 2

This scenario covers an agreement that the documents are what they purport to be.  If a party wants to rely on the document, it does not have to prove the authenticity and evidence can be led relying on the documents on the basis of what it purports to be.

However, the following principles are applicable:

  • the documents must be introduced as evidence and cross-examination on such documents is permissible
  • the presiding officer can accept the document as evidence insofar as it was properly introduced by a witness
  • if a document is not introduced as evidence, the presiding officer cannot mero motu consider such document as evidence merely because it was included in the trial bundle (see, further, Interstate Bus Lines v Daniel Phakwe (2017) 38 ILJ 915 (LC))

Scenario 3

This scenario covers an agreement that the documents and the bundle should be regarded as evidence.  Therefore, the presiding officer is entitled to accept the contents of the document as if evidence was adduced.  Even if no witness testifies about the authenticity of the document and its content, it can be considered as relevant and admissible evidence (see further, Interstate Bus Lines (supra)).

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?