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Article 7/2022

Under which circumstances can an organ of state, such as a municipality, offer employment to an aggrieved employee to settle a delictual claim?

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In Erasmus v Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG), the high court followed the following approach:

  • in Johnson & Johnson (Pty) Ltd v CWIU (1999) 20 ILJ 89 (LAC), the labour appeal court held that a court may exercise its discretion not to award compensation if: (i) the employer had already provided the employee with substantially the same kind of redress; or (ii) the employer’s ability and willingness to make that redress is frustrated by the conduct of the employee
  • the aforesaid principles should equally be applicable in the civil law environment;
  • the employer is required to, most importantly, establish its bona fides in making an offer of reinstatement, entailing that it must not be an attempt to merely implement damage control
  • generally, an offer of reinstatement will be acceptable to cure or remedy procedural defects but not substantive unfairness – however, this is not an immutable rule – Rawlins v Dr DC Kemp t/a Centralmed [2011] 1 All SA 281 (SCA)
  • had Erasmus pursued an unfair dismissal dispute: (i) she would have been entitled to refuse the offer on the basis that the employment relationship had broken down, (ii) her dismissal had been substantively unfair, and (iii) the offer constituted an attempt at damage control – these considerations are equally applicable in casu, dealing with a delictual claim
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?