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Article 32/2025

What are the principles of set-off applied by the labour appeal court in North West Provincial Legislature and Another v National Education, Health and Allied Workers Union obo Members (2023) 34 SALLR 351 (LAC), with reference to Schierhout v Union Government (Minister of Justice) 1926 AD 286 and Public Servants Association obo Ubogu v Head of Department of Health, Gauteng and Others 2018 (2) SA 365 (CC) and why can such principles not be applied when an employer wishes to deduct from an employee’s remuneration monies erroneously paid to such employee in circumstances where there is a dispute about the amount of money to be deducted and the entitlement to so deduct?

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  1. Set-off operates only where two persons reciprocally owe each other something in their own right (Du Bois, F (ed), ‘Wille’s Principles of South African Law’,9 ed (2007) at p 1834).
  2. It applies, as was stated in Schierhout v Union Government (Minister of Justice) 1926 AD 286, at 289 (see, also, Capricorn Beach Home Owners Association v Potgieter t/a Nilands and Another [2013] ZASCA 116; 2014 (1) SA 46 (SCA)):
    ‘When two parties are mutually indebted to each other, both debts being liquidated and fully due, then the doctrine of set-off comes into operation.
    The one debt extinguishes the other pro tanto [only to the extent of the debt] as effectually as if payment had been made.’
  3. In Public Servants Association obo Ubogu v Head of the Department of Health, Gauteng 2018 (2) SA 365 (CC) (Ubogu), at paragraph [70], the constitutional court made it clear that the doctrine of set-off does not operate ex lege (as a matter of law) and that, where there are no mutual debts but rather an unresolved dispute about deductions made from an employee’s salary, it cannot be applied.
  4. With reference to the aforesaid scenario, the view is held that set-off is not permissible in such scenario because, firstly, there is non-compliance with the requirement that the parties must be mutually indebted to each other and, secondly, set-off is not permissible if there is a dispute.
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?