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Article 44/2025

What are the differences in the principles applicable to contractual, as opposed to statutory, rights and obligations?

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CONTRACTUAL RIGHTS AND OBLIGATIONS

    1. If there is an alleged breach of contractual rights and obligations, then the cause of action is founded in contract.
    2. The claim is for:
      • damages
      • compensation
      • specific performance
    3. The LC and the HC have concurrent jurisdiction ito s77(3), read with s77A(e), of the BCEA.
    4. If the applicant is successful, then the conduct of the other party will be branded as unlawful – in the case of a dismissal contrary to contractual rights and obligations, such dismissal will be branded as unlawful and ab initio void.

LRA RIGHTS AND OBLIGATIONS

  1. If the complaint is based on the presence of statutory unfairness in terms of the LRA, then the cause of action is to be found in the LRA (e g alleged unfair dismissal or alleged unfair labour practice).
  2. In this regard, the aggrieved employee claims for:
    • reinstatement
    • re-employment, or
    • compensation
  3. In the above regard, the CCMA and the LC have jurisdiction ito s193, s194 and s195 of the LRA.
  4. Should the aggrieved employee be successful, then the conduct of the employer is to be branded as unfair on the basis of the prescripts as set out in the LRA.

See:

  • Solidarity v SABC (2016) 27 SALLR 34 (LC)
  • Mahonono v National Heritage Council (2022) 33 SALLR 162 (LC)
  • SAMWU v Tswaing Local Municipality (2022) 33 SALLR 60 (LAC)
  • Greyling v George Randall High School (2022) 33 SALLR 279 (LC)
  • NUMSA obo Fohlisa v Hendor Mining Supplies (2017) 38 ILJ 1560 (CC)
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?