Tshabalala v Moqhaka Local Municipality and Another (2024-147645) [2024] ZALCJHB 511 (23 December 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: 2024-147645

In the matter between:

PORTIA HALIO TSHABALALA

Applicant

and

MOQHAKA LOCAL MUNICIPALITY

First Respondent

M E MOKATSANE N.O

Second Respondent

Heard: 19 December 2024

Delivered: 23 December 2024

This judgment was handed down electronically by consent of the parties’ representatives by circulation to them by email. The date for hand-down is deemed to be 23 December 2024.

JUDGMENT

PRINSLOO, J

Background

[1] The Applicant is employed as the First Respondent’s (Municipality) municipal manager for a fixed period of five years, effective from May 2023.

[2] On 21 February 2024, the Second Respondent (Mayor) issued a notice of intention to suspend the Applicant pending the outcome of the investigation into allegations of financial misconduct. She was required to submit written representations as to why she should not be so suspended. The Applicant submitted her written representations, but on 3 March 2024, she was placed on precautionary suspension with effect from 1 March 2024.

[3] Clause 6 of the Disciplinary Regulations for Senior Managers (Regulations), applicable to the Applicant, provides for precautionary suspension and sets out how and under what circumstances a senior manager may be suspended. Regulation 6(1) provides for precautionary suspension in circumstances where it is alleged that the senior manager has committed an act of misconduct and the municipal council has reason to believe that the presence of the senior manager at the workplace may jeopardise any investigation into the alleged misconduct, may endanger the well-being or safety of any other person of municipal property or may be detrimental to the stability of the municipality. Precautionary suspension is also provided for where the senior manager may interfere with potential witnesses or may commit further acts of misconduct.

[4] The Applicant’s suspension, as a precautionary suspension, is provided for as contemplated in regulation 6(6)(a) of the Regulations. The said regulation stipulates that if a senior manager is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.

[5] It is evident from the suspension letter that the Applicant was suspended while an investigation was conducted, as is provided for in the Regulations. Phambane Mokone Inc. Attorneys were appointed to conduct the investigation and an investigation report was issued on 24 April 2024, recommending that disciplinary action be instituted against the Applicant.

[6] On 31 May 2024, the investigator from Phambane Mokone Inc. served the Applicant with a notice to attend a disciplinary hearing on 13 June 2024, where she would be expected to answer to the charges levelled against her.

[7] Calculating from the date of the Applicant’s suspension, the three-month period expired on 31 May 2024 and her case is that the legal effect thereof was that her precautionary suspension automatically lapsed by operation of law, upon the expiry of the three-month period.

[8] On 3 June 2024, the Applicant reported for duty as she was of the view that her suspension automatically lapsed. The Mayor however instructed the Applicant to leave the premises as she was still under suspension. The Applicant disagreed and her case is that the 90-day period of suspension had expired on 31 May 2024 and that the Mayor’s instruction was unlawful.

[9] On 10 June 2024, the Applicant instructed her attorneys to file an urgent application regarding her suspension. The basis for the application was found in the provisions of Regulation 6(6)(a).

[10] The disciplinary hearing did not commence on 13 June 2024, after it was found that the matter was not ripe and it was postponed to 1 and 2 August 2024.

[11] The Applicant’s urgent application was heard on 19 June 2024 and judgment in favour of the Respondents was handed down 12 July 2024. The Applicant applied for leave to appeal on 15 July 2024 and leave to appeal was granted on 2 August 2024. The appeal was heard by the Labour Appeal Court (LAC) on 19 November 2024 and judgment was delivered in favour of the Applicant on 21 November

2024.

[12] As per the terms of the LAC’s order, the Applicant reported for duty, but she was not permitted to do so. On 11 December 2024 the Respondents served the Applicant’s attorney with a copy of an

application for leave to appeal the LAC’s decision to the Constitutional Court.

[13] The Applicant subsequently filed this application in terms of the provisions of section 18(3) of the Superior Courts Act[1]and the matter was enrolled for hearing on the urgent roll of 19 December 2024. The Applicant seeks an order to the effect that the operation and execution of the LAC’s judgment, which is the subject of the Respondents’ application for leave to appeal to the Constitutional Court, not be suspended pending the decision on the application for leave to appeal or of an appeal and for the Respondents to comply with the order in paragraph 14 of the LAC’s judgment, with immediate effect.

[14] The application is opposed. The Respondents took issue with urgency. I do not intend to set out in detail the attack on urgency, as I am of the view that the application should be heard urgently. This Court has a discretion in this regard and I exercised my discretion to deal with the merits on an urgent basis.

Section 18 of the Superior Courts Act: general principles

[15] The default position is that the operation and execution of a decision (other than a decision not having the effect of a final judgment) is suspended pending the outcome of an application for leave to appeal or an appeal. Section 18 of the Superior Courts Act[2] regulates the circumstances under which a party may apply for an order that departs from the ordinary consequence of filing an

application for leave to appeal. The court may order otherwise under exceptional circumstances, if it is established on a balance of probabilities that the applicant will suffer irreparable harm if the court does not so order, and that the other party will not suffer irreparable harm if the court so orders.[3]

[16] Section 18 of the Superior Courts Act provides that:

’18 Suspension of decision pending appeal

(1) Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.

(2) Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision that is an interlocutory order not having the effect of a final judgment, which is the subject of an application for leave to appeal or of an appeal, is not suspended pending the decision of the application or appeal.

(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.

(4)(a) If a court orders otherwise, as contemplated in subsection (1) —

(i) the court must immediately record its reasons for doing so;

(ii) the aggrieved party has an automatic right of appeal to the next highest court;

(iii) the court hearing such an appeal must deal with it as a matter of extreme urgency; and

(iv) such order will be automatically suspended, pending the outcome of such appeal.

…

(4) For the purposes of subsections (1) and (2), a decision becomes the subject of an application for leave to appeal or of an appeal, as soon as an application for leave to appeal or a notice of appeal is lodged with the registrar in terms of the rules.’

[17] The Labour Appeal Court (LAC) in Road Traffic Management Corporation v Tasima (Pty) Ltd and others[4] (Tasima) considered the provisions of section 18(3) versus the common law position as follows:

‘[43] Prior to the enactment of section 18(3) of the SC Act there was no statutory provision regulating interim execution orders. In terms of the common law, the noting of an appeal automatically suspends execution of the judgment appealed against. Where the successful party wishes to execute upon the judgment, it is required to make an application for leave to do so and bears the onus to show why the judgment should be executed pending the appeal, subject, in appropriate cases to the furnishing of security de restituendo. The court had a wide discretion to grant or refuse leave to execute and was required to determine what was just and equitable in all the circumstances having regard to the potentiality of irreparable harm or prejudice to the parties, the balance of convenience and the prospects of success on appeal. At common law, an interim execution order is itself an interlocutory order and was generally not appealable on the grounds that such an order may be varied by the court granting it in the light of changed circumstances.

[44] Section 18 of the SC Act has significantly altered the common law in more than one respect. The court no longer has a wide discretion to do what is just and equitable or to rely exclusively on the balance of convenience or the appeal’s prospects of success. Now, before a court may order interim execution, the applicant for that relief must prove three things on a balance of probabilities. Firstly, the applicant must show that exceptional circumstances exist (perhaps including the balance of convenience and prospects of success) justifying the reversal of the ordinary principle of suspension pending appeal. Secondly, it must prove on the probabilities that it will suffer irreparable harm if interim execution is not ordered. Thirdly, it must prove that the other party will not suffer irreparable harm if an order of interim execution is granted. Should the applicant fail to discharge its onus in relation to any one of these requirements, the court may not grant an interim execution order. Additionally, in terms of section 18(4) of the SC Act, where an interim execution order is granted, the aggrieved party has an automatic right of appeal against that order to the next highest court and the order will be automatically suspended, pending the outcome of such appeal.’

[18] In Incubeta Holdings (Pty) Ltd and Another v Ellis and Another[5] (Incubeta) the Court held that:

‘[16] It seems to me that there is indeed a new dimension introduced to the test by the provisions of Section 18. The test is twofold; the requirements are:

16.1 First, whether or not ‘exceptional circumstances’ exist; and

16.2 Second, proof on a balance of probabilities by the applicant of –

16.2.1 The presence of irreparable harm to the applicant/victor, who wants to put into operation and execute the order; and

16.2.2 The absence of irreparable harm to the respondent/loser, who seeks leave to appeal.’

[19] In University of the Free State v Afriforum and another[6] (Afriforum) the Supreme Court of Appeal (SCA) held:

‘[9] … What is immediately discernible upon perusing sections 18(1) and (3), is that the Legislature has proceeded from the well-established premise of the common law that the granting of relief of this nature constitutes an extraordinary deviation from the norm that, pending an appeal, a judgment and its attendant orders are suspended. Section 18(1) thus states that an order implementing a judgment pending appeal shall only be granted “under exceptional circumstances”. The exceptionality of an order to this effect is underscored by section 18(4), which provides that a court granting the order must immediately record its reasons; that the aggrieved party has an automatic right of appeal; that the appeal must be dealt with as a matter of extreme urgency and that pending the outcome of the appeal the order is automatically suspended.

[10] It is further apparent that the requirements introduced by sections 18(1) and (3) are more onerous than those of the common law. Apart from the requirement of “exceptional circumstances” in section 18(1), section 18(3) requires the applicant “in addition” to prove on a balance of probabilities that he or she “will” suffer irreparable harm if the order is not made, and that the other party “will not” suffer irreparable harm if the order is made. The application of rule 49(11) required a weighing-up of the potentiality of irreparable harm or prejudice being sustained by the respective parties and where there was a potentiality of harm or prejudice to both of the parties, a weighing-up of the balance of hardship or convenience, as the case may be, was required. Section 18(3), however, has introduced a higher threshold, namely proof on a balance of probabilities that the applicant will suffer irreparable harm if the order is not granted and conversely that the respondent will not, if the order is granted.’

[20] The effect in short is this: the Superior Courts Act limits the discretion of a court to grant the relief of interim execution and section 18(3) introduced a higher threshold and more onerous requirements. An applicant must prove three distinct requirements on balance of probabilities:

1. Exceptional circumstances;

2. That it will suffer irreparable harm if interim execution is not ordered;

3. That the other party will not suffer irreparable harm if an order of interim execution is granted.

[21] The provisions of section 18 of the Superior Courts Act introduced a twofold test of which the requirements call for an enquiry first as to whether ‘exceptional circumstances’ exist and second

whether the applicant showed the presence and the absence of irreparable harm on a balance of probabilities.

[22] Exceptional circumstances and the existence or absence of irreparable harm are distinct requirements that must all be satisfied in order for an applicant to succeed with an application in terms of section

18(3). As alluded to supra, section 18(3) places a heavy onus on an applicant and an applicant must prove the three distinct requirements on a balance of probabilities. If an applicant fails to prove any one of the requirements, the application must fail.

[23] It is in the context of the requirements of section 18(3) that this application is to be decided.

Exceptional circumstances and irreparable harm

[24] The first issue to be decided is whether there are exceptional circumstances.

[25] The question as to what would constitute ‘exceptional circumstances’ had been considered in Incubeta and the Court held that exceptionality must be fact-specific and circumstances which are or may be ‘exceptional’ must be derived from the actual predicaments in which the given litigants find themselves. The Court held that:

‘In my view the predicament of being left with no relief, regardless of the outcome of an appeal, constitutes exceptional circumstances which warrant a consideration of putting the order into operation. The forfeiture of substantive relief because of procedural delays, even if not protracted in bad faith by a litigant, ought to be sufficient to cross the threshold of “exceptional circumstances”.’[7]

[26] Incubeta has been quoted with approval by the SCA[8] and it is clear that the determination of whether exceptional circumstances exist, is a fact specific enquiry and each case has to be decided on its own facts as there is no definition of exceptional circumstances.

[27] In Incubeta it was held that:

‘Significantly, although it is accepted in that judgment that what is cognisable as “exceptional circumstances” may be indefinable and difficult to articulate, the conclusion that such circumstances exist in a given case is not a product of a discretion, but a finding of fact.’[9]

[28] In Afriforum, with regard to proving exceptional circumstances, it was held that:

‘Whether or not “exceptional circumstances” for the purposes of section 18(1) are present, must necessarily depend on the peculiar facts of each case. In Incubeta Holdings at paragraph 22 Sutherland J put it as follows:

“Necessarily, in my view, exceptionality must be fact-specific. The circumstances which are or may be ‘exceptional’ must be derived from the actual predicaments in which the given litigants find themselves.”

I agree. Furthermore, I think, in evaluating the circumstances relied upon by an applicant, a court should bear in mind that what is sought is an extraordinary deviation from the norm, which, in turn, requires the existence of truly exceptional circumstances to justify the deviation.’[10]

[29] The LAC confirmed in Tasima that the applicant must show that exceptional circumstances exist, including the balance of convenience and prospects of success, justifying the reversal of the ordinary principle of suspension pending appeal.

[30] The question is thus whether the circumstances in casu are truly exceptional and whether an extraordinary deviation from the norm is justified. This question is to be answered by considering the facts and the circumstances relied upon by the Applicant.

[31] The prospects of success in the appeal is a relevant factor in the consideration of the application, as was held in Minister of Social Development, Western Cape and others v Justice Alliance of South Africa and another[11] where the court said that:

‘It follows that the less sanguine a court seized of an application in terms of s 18(3) is about the prospects of the judgment at first instance being upheld on appeal, the less inclined it will be to grant the exceptional remedy of execution of that judgment pending the appeal. The same quite obviously applies in respect of a court dealing with an appeal against an order granted in terms of s 18(3). The position is very much akin to that which pertains when interim interdictory relief pending a judicial review is being considered.’

[32] In Afriforum, the SCA also confirmed that the prospect of success in the appeal is a valid consideration when determining whether exceptional circumstances have been established by an applicant seeking leave to execute pending appeal.

[33] It must be emphasized that an order in terms of section 18(1) and (3) of the Superior Courts Act is a drastic and extraordinary remedy reserved only for exceptional circumstances.

[34] It is evident that in the papers before me the issues of exceptional circumstances and irreparable harm are intertwined as the Applicant’s case is in the main premised on her performance bonus and that is a facet which overlaps and features in respect of both aspects.

[35] The Applicant’s pleaded case in respect of exceptional circumstances is that she has been placed under precautionary suspension since 1 March 2024 and she remains so suspended in direct violation of Regulation 6(6)(a) and the LAC’s judgment. The Applicant submitted that she has the right to qualify for a performance bonus in terms of her performance agreement and the conditions of employment Regulations. She has lost the right to a performance bonus or at least the opportunity to be fairly evaluated for the purpose of such a performance bonus, which is determined by an evaluation of the standard of her actual work or output. In her absence, due to the prolonged suspension, neither her work performance nor her performance bonus could be quantified and the prejudice she suffers in this regard is incalculable, substantial and irreparable.

[36] Furthermore, the relief granted is time sensitive and the effect of an appeal process negates the relief she was granted by the LAC and renders it academic. Her suspension automatically lapsed on 31 May 2024, by operation of law, in November 2024 the Municipality was ordered to reinstate her with immediate effect and for the suspension

to remain in place pending the finalisation of the application for leave to appeal or an appeal, creates a serious predicament.

[37] The predicament is that the Applicant is left with no relief in circumstances where the relief granted is time-sensitive. The Applicant submitted that she is left without relief, notwithstanding a LAC judgment in her favour, due to the Respondents’ illegal act of keeping her suspended on a lapsed precautionary suspension. The forfeiture of substantive relief because of procedural delays ought to be sufficient to cross the threshold of exceptional circumstances.

[38] The Applicant’s exceptional circumstances relate to her right to a performance bonus, that the relief granted is time sensitive and that she is left with no relief because of procedural delays.

[39] The Respondents dispute that any exceptional circumstances exist. The Respondents’ answer to the Applicant’s specific averments on exceptional circumstances is that the Applicant failed to plead the terms of her performance agreement and that it is impossible to answer to the allegations without her providing a copy of the performance agreement. This response is astonishing. I fail to comprehend how the Respondents are unable to respond to allegations without being provided with a copy of an agreement they authored and are party to. I find it hard to accept that the Municipality is not

in possession of a signed performance agreement of its own municipal manager and if that is indeed the case, it raises a serious concern about the administration of the Municipality.

[40] It was not disputed that the Applicant has the right to qualify for a performance bonus in terms of her performance agreements and conditions of employment regulations. The Respondents however submitted that the Applicant’s suspension would not have any effect on the calculation of her performance bonus and denied that the quantum of the bonus could not be quantified. The deponent did not explain to this Court how the Applicant’s absence would not have any effect on the calculation of her performance bonus in circumstances where the performance bonus is determined by an evaluation and assessment of the standard of her actual work or output. It is also not explained how the quantum would be quantified when the Applicant was not at work and rendered no services. The only answer is a vague and unsubstantiated statement that “if the parties cannot agree on a proper assessment there can be an extrapolation of her performance measured for the period prior to her suspension”. How the Respondents plan to pay a bonus in recognition for exceptional performance when no services were rendered and without any performance, and that from public funds, is a mystery, and it would certainly be hard to explain such payment to the Auditor General.

[41] In respect of the remainder of the Applicant’s averments, no more than a bare denial has been put up and the Respondents submitted that the Municipality has the right to take the LAC’s decision

on appeal. The right to take the decision on appeal is not denied or disputed, however, this application is concerned with the provisions of section 18(3) of the Superior Courts Act.

Irreparable harm

[42] The second leg of the enquiry is ‘irreparable harm’.

[43] The Applicant must prove on a balance of probabilities that she will suffer irreparable harm should the order for leave to execute or enforce not be granted pending the appeal and that the Respondents will not suffer irreparable harm if leave to execute is granted pending the appeal.

[44] The Applicant submitted that she would suffer irreparable harm and that she would be prejudiced if the relief sought is not granted in that she will remain suspended for a protracted period, despite having the right to qualify for a performance bonus. She stated that it would be impossible to quantify a claim for damages in relation to a performance bonus as the right to qualify for same, is dependent on her presence at the workplace.

[45] The Applicant further submitted that in the precautionary suspension notice, she was informed that she would not be suspended for longer than what was necessary to carry out the investigation and decide on

the action to be taken. The investigation, which informed the charges levelled against her, was completed on 24 April 2024 and she was provided with the notice to attend a disciplinary hearing and a charge sheet on 31 May 2024. Her suspension was precautionary and there is no basis as to why she should remain suspended indefinitely.

[46] On the issue of irreparable harm for the Respondents, the Applicant’s

case is that they will not suffer irreparable harm if the relief is granted. This is so because an acting municipal manager had been appointed, which is indicative of the fact that her workload is to be performed by an acting municipal manager, whilst the financial obligation to pay her remuneration remains. It cannot constitute irreparable harm to have the benefit of services being rendered by the Applicant, whilst paying her salary and it would eliminate the prejudice of having to pay the Applicant and the acting municipal manager.

[47] The Respondents on the other hand submitted that the Municipality will indeed suffer irreparable harm and it would be a travesty of justice for a municipal manager facing such serious charges to return to her office. In the Respondents’ view, the Applicant has no regard for the Regulations and the duties pertaining to her office,

the appointment of contractors and service providers and employees and as such, the Municipality’s administration will be severely prejudiced should she return to work.

[48] The Municipality dealt with the prejudice it stands to suffer should the Applicant return to work prior to the finalisation of her disciplinary hearing. It is the Respondents’ case that witnesses are reluctant to be involved in the disciplinary hearing of the Applicant due to her anticipated return, the Applicant has brought a plethora of cases against the Municipality and she has actively sought to delay the finalisation of the disciplinary hearing.

The delay in finalising the disciplinary hearing

[49] Although the conducting of the disciplinary hearing per se is not part of the issues to be decided by this Court, it has some bearing on the question of irreparable harm and prejudice. Something

has to be said about the delay in finalising the Applicant’s disciplinary hearing.

[50] The Municipality sets out the delays in the disciplinary hearing as follows: the first sitting was scheduled for 13 June 2024 and by agreement between the parties it was postponed to 1 and 2 August 2024 to allow the parties to exchange documents, but by 1 August the parties had not completed the exchange of documents and the matter

convened on 27 August 2024, by agreement. In the meantime, the Applicant had approached the Free State High Court with an urgent

application to declare the appointment of the presiding officer irregular, unlawful and invalid. At the hearing of the urgent application, the Applicant withdrew the application and tendered the Respondent’s costs. The disciplinary hearing reconvened on 25 September 2024, when the Applicant applied for the recusal of the chairperson. Per agreement, the disciplinary hearing was postponed on 25 September 2024 until 21 to 29 October 2024. On 17 October 2024, the Applicant’s representative requested another postponement because they launched an urgent application to review and set aside the chairperson’s refusal of her recusal, but the application for postponement was dismissed and the disciplinary hearing proceeded on 21 October 2024, when the Applicant entered a plea of not guilty on all the charges levelled against her.

[51] The complaint about the delay in finalising the disciplinary enquiry is not without merit. It is almost unfathomable that a disciplinary hearing which was scheduled to sit for the first time on 13 June 2024

and more than six months later, it is still not finalised. However, it appears from the Respondents’ own version that the

postponement from June to August 2024 was by agreement and the postponement from 25 September to 21 October 2024 was by agreement

too. The Respondents cannot in the same breath agree to postponements and complain about a delay in the process. This Court is not told what transpired after 21 October 2024 when the disciplinary enquiry proceeded and the Applicant entered a plea of not guilty.

[52] In Strydom v Arcelormittal South Africa[12], this Court was faced with a case where a suspended employee raised points in limine and used other tactics to delay the finalisation of the disciplinary hearing. It was held that suspended employees facing disciplinary

action cannot be allowed to find reasons or to employ tactics to delay the disciplinary proceedings at the employer’s costs, as that would constitute an abuse of process. It was held that:

‘The LRA did not envisage the disciplinary process adopted by many employers and abused by some employees. On the contrary, in its simplest terms the LRA introduced a process that requires an investigation into any alleged misconduct, an opportunity by any employee against whom any allegation of misconduct is made to respond after a reasonable period with the assistance of a representative, a decision by the employer, and notice of that decision. Considering the number of cases challenging either the institution, continuation or outcome of internal disciplinary hearings, or processes related thereto, that end up in this court, it is evident that employers, trade unions and legal practitioners (and any other relevant role player) took little note of the provisions of the LRA and judgments of and the concerns raised by this court. Instead, they are still inclined to agree to retain the criminal justice model by way of contract of employment, employment policies and practices or collective agreements. Obviously, once agreed to, employers are bound to apply the standards to which they have agreed or that they have established.’

[53] This Court has bemoaned the approach adopted in disciplinary enquiries on several occasions and it continues to express concern regarding the manner in which disciplinary hearings are conducted. As far back as 1992, the LAC held in Anglo American Farms t/a Boschendal Restaurant v Komjwayo[13] that:

‘In Khanum v Mid-Glamorgan Area Health Authority 1978 IRLR 215 it was held that there are only three basic requirements of natural justice which have to be complied with during the proceedings

of a domestic disciplinary enquiry, viz:

(a) the person should know the nature of the accusation against him;

(b) he should be given an opportunity to state his case;

(c) the tribunal should act in good faith.

(See Twala v ABC Shoe Store (1987) 8 ILJ 714 (IC) at 716D-F.)

This court is satisfied that, in the present case, all three of those basic requirements were met in the proceedings, both

before the disciplinary enquiry and on appeal. … Moreover, at disciplinary hearings presided over by laymen, it cannot be expected that all the finer niceties which a formal court of law would adopt will always be observed.’

[54] In the LRA the statutory requirements for a fair procedure are clearly spelt out in the Code of Good Practice: Dismissal and those were elaborated on in Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration and Others[14] where it was held that:

‘To some extent, chapter VIII of the Labour Relations Act represents a codification of the jurisprudence that preceded it. The Act itself is silent on the content of any right to procedural fairness, it simply requires that an employer establish that a dismissal was effected in accordance with a fair procedure. The nature and extent of a right to fair procedure preceding a dismissal for misconduct is spelt out in specific terms in the Code of Good Practice: Dismissal in schedule 8 to the LRA.

Item 4 of the code provides:

'(1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and a language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.' (Emphasis added.)

It follows that the conception of procedural fairness incorporated into the LRA is one that requires an investigation into any alleged

misconduct by the employer, an opportunity by any employee against whom any allegation of misconduct is made, to respond after a reasonable period with the assistance of a representative, a decision by the employer, and notice of that decision.

This approach represents a significant and fundamental departure from what might be termed the 'criminal justice' model that was developed by the Industrial Court and applied under the unfair labour practice jurisdiction that evolved under the 1956 Labour Relations Act. That model likened a workplace disciplinary enquiry to a criminal trial, and developed rules and procedures, including rules relating to bias and any apprehension of bias, that were appropriate in that context.

The rules relating to procedural fairness introduced in 1995 do not replicate the criminal justice model of procedural fairness. They recognize that for workers, true justice lies in a right to an expeditious and independent review of the employer's decision to dismiss, with reinstatement as the primary remedy when the substance of employer decisions is found wanting. For employers, this right of resort to expeditious and independent arbitration was intended not only to promote rational decision making about workplace discipline, it was also an acknowledgment that the elaborate procedural requirements that had been developed prior to the new Act were inefficient and inappropriate, and that if a dismissal for misconduct was disputed, arbitration was the primary forum for determination of the dispute by the application of a more formal process.

The balance struck by the LRA thus recognizes not only that managers are not experienced judicial officers, but also that workplace

efficiencies should not be unduly impeded by onerous procedural requirements. It also recognizes that to require onerous workplace disciplinary procedures is inconsistent with a right to expeditious arbitration on merits. Where a commissioner is obliged

(as commissioners are) to arbitrate dismissal disputes on the basis of the evidence presented at the arbitration proceedings, procedural

requirements in the form that they developed under the criminal justice model are applied ultimately only for the sake of procedure, since the record of a workplace disciplinary hearing presented to the commissioners at any subsequent arbitration is presented only for the purpose of establishing that the dismissal was procedurally fair. The continued application of the criminal justice model of workplace procedure therefore results in a duplication of process, with no tangible benefit to either employer or employee.

The signal of a move to an informal approach to procedural fairness is clearly presaged by the explanatory memorandum that accompanied the draft Labour Relations Bill. The memorandum stated the following:

‘The draft Bill requires a fair, but brief, pre-dismissal procedure… [It] opts for this more flexible, less onerous, approach to procedural fairness for various reasons: small employers, of whom there are a very large number, are often not able to follow elaborate

pre-dismissal procedures; and not all procedural defects result in substantial prejudice to the employee.’

On this approach, there is clearly no place for formal disciplinary procedures that incorporate all of the accoutrements of a criminal

trial, including the leading of witnesses, technical and complex 'charge-sheets', requests for particulars, the application of the rules of evidence, legal arguments, and the like.’

[55] In Tshongweni v Ekurhuleni Metropolitan Municipality[15], the Court was faced with a matter where the employee was dismissed and far from the brief pre-dismissal procedure envisaged by the LRA, the disciplinary enquiry was chaired by a member of the Johannesburg bar, and both the applicant and respondents were represented by practising lawyers. The transcript of the disciplinary hearing extends to some 2,240 pages, the bulk of it devoted to technical legal issues. The Court considered the systemic delays in the resolution of labour disputes and explained that a simple, quick, cheap and non-legalistic approach to the adjudication of misconduct cases was envisaged to achieve the purposes of the LRA. The Court remarked that the facts of the case illustrated just how elusive the objects of the LRA remain and how legalism continues to undermine the purpose of the Act:

‘[1] … But systemic delay in the labour dispute-resolution system is rooted more deeply than the managerial or administrative shortcomings of any particular institution. It also extends to the manner in which disciplinary enquiries are conducted by employers, and especially the phenomenon of enquiries chaired by practising lawyers at which both parties are legally represented.

[2] The present case is an example of an individual dismissal dispute that from the outset was handled in a manner that entirely undermines the purpose of the Labour Relations Act (LRA). That purpose is recorded in the Explanatory Memorandum that accompanied the first draft of the current LRA. The memorandum dealt with what was referred to as the highly legalistic and expensive system of dispute resolution, and proposed the following solution:

“In cases concerning the alleged misconduct of workers, the courts have generally required an employer to follow an elaborate pre-dismissal

procedure and have thereafter conducted a fresh, full hearing on the merits of the case. Apart from its duplication and lengthiness,

this approach has obvious cost implications for the parties and the State. The draft Bill requires a fair, but brief, pre-dismissal

procedure, and quick arbitration on the merits of the case...”’

[56] In Department of Public Works and another v Vukela & others[16], the Court observed that there was a ‘yawning gap’ between the rights of employees in the public and private sectors and the injustice that is occasioned. The matter concerned an extended suspension of an employee, pending a disciplinary hearing and the Court remarked that, without attributing any blame to any particular party, the state of affairs demonstrated the regrettably dysfunctional state of workplace discipline and dispute resolution consequent on a system of regulation that encourages parties to avoid the merits in favour of technicalities.

[57] In Stokwe v MEC: Department of Education, Eastern Cape and others[17], the Constitutional Court confirmed that the requirement of promptness not only extends to the institution of disciplinary proceedings, but also to their expeditious completion. The Court held that disciplinary proceedings must be completed in the shortest possible

time-frame – this is an important requirement which is too often ignored by employers and employees who are subjected to

disciplinary action.

[58] In casu, it is not explained why the disciplinary hearing was not finalised after the sitting in October 2024, where the Applicant pleaded to the charges. There is no version before this Court to explain what transpired after the Applicant pleaded to the charges in October 2024, nor is there any explanation as to why the hearing is still not finalised. The Municipality, as employer, should remain in the driver’s seat of the disciplinary hearing and cannot allow a hearing to drag on for months, where the Applicant is on fully paid suspension, at a great cost to the ratepayers of the Municipality.

[59] Be that as it may, the Municipality should take charge of its own disciplinary proceedings and the prejudice caused by the delay in finalising the Applicant’s disciplinary hearing, is not irreparable, as the hearing could and should be finalised as a matter of priority. A disciplinary hearing is not a court case and technical point-taking and litigation should be avoided and not be employed as tactics to delay a process which is supposed to be simple, quick, cheap, non-legalistic and fair. To conduct a disciplinary hearing in the fashion of a High Court trial undermines the purpose and the objects of the LRA.

[60] It is certainly in the interest of all the parties that the disciplinary hearing be finalised as any further delay in the finalising thereof will not be in the interest of fairness or justice.

Analysis

[61] Did the Applicant cross the threshold of exceptional circumstances? In my view, she did.

[62] The Applicant’s suspension was declared lapsed and she was reinstated as municipal manager by the LAC. For her suspension to remain in place, pending the finalisation of the application for leave to appeal or appeal to the Constitutional Court, will indeed create the predicament of being left with no relief, in circumstances

where it is undisputed that the relief granted is time-sensitive. Incubeta has held this to be sufficient to cross the threshold of exceptional circumstances and I cannot see why the same principle does not apply in casu.

[63] This is more so in view of the fact that in the suspension letter of 3 March 2024, it was specifically stated and made clear that the Applicant was suspended from work while an investigation was conducted into the allegations raised in the letter of intention to suspend. It is significant that in the suspension letter the Respondents recorded that “The Municipal Council will not keep you suspended for longer than is necessary for it to carry out the investigation and decide on action to be taken…”.

[64] Evidently, the Applicant was suspended while an investigation was conducted, as is provided for in the Regulations. It was precautionary to allow the investigation to be conducted and for the Municipality to decide on the action to be taken. The suspension letter issued to the Applicant did not suspend her pending finalisation of the disciplinary hearing, but pending the finalisation of an investigation. The Applicant was served with a notice to attend a disciplinary enquiry and on 31 May 2024, she received the said notice and the charges she would face at the disciplinary enquiry, after the investigation was completed in April 2024. The Municipality had taken a decision on the action to be taken, namely to charge the Applicant with misconduct and to follow a disciplinary process and such decision was already taken in May 2024.

[65] The Applicant’s suspension was precautionary and I fail to see why she should remain suspended indefinitely when the suspension, from the onset, was precautionary “to carry out the investigation and decide on action to be taken”.

[66] The Applicant, being placed on precautionary suspension, cannot be suspended from the workplace indefinitely after the investigation was completed and a decision was taken to institute disciplinary proceedings. This is more so where the reality is that more than nine months after being suspended and more than six months after the Applicant was charged and the disciplinary hearing was scheduled to sit for the first time, the disciplinary hearing is not finalised and there is no indication that it is close to finalisation. The disciplinary hearing has been dragging on but the precautionary suspension cannot be allowed to drag on indefinitely. A precautionary suspension is precautionary in nature and not a disguised means to punish or embarrass an employee nor is it a tool to be used to rid the workplace of an employee’s presence for an indefinite period and an ulterior purpose.

[67] Prospects of success are to be considered as a factor in deciding whether or not to grant the exceptional remedy of execution of a judgment pending appeal.

[68] The LAC declared that the Applicant’s suspension automatically lapsed on 31 May 2024 in terms of Regulation 6(6)(a), after it interpreted the meaning of the word ‘commence’ for purposes of the said Regulation. The LAC considered whether a disciplinary hearing commences when a municipality serves charges of alleged misconduct on the employee or when the officer leading evidence reads out the charge at a convened disciplinary hearing. The LAC observed that the difference in meaning has profound consequences and that there is a difference to be drawn between the commencement

of disciplinary proceedings and the commencement of a disciplinary hearing. The LAC considered the provisions of Regulation 10(3) and held that the Regulations contemplate that a disciplinary process is commenced by the service of the charges on the employee and that the disciplinary hearing is commenced by the reading of the charges in a disciplinary hearing.

[69] The Respondents submitted that the Municipality has excellent prospects of success on appeal as the matter is of public interest and because there are contradictory decisions on the issue.

[70] The Respondents inter alia submitted that an incorrect interpretation of the meaning of ‘commence’ will have far-reaching and devastating consequences for the discipline of senior managers in the employ of local government and will in effect render the provision for a precautionary suspension where circumstances warrant such suspension until the disciplinary hearing is finalised, nugatory. In my view, there is no merit in this.

[71] The Regulations are clearly designed to ensure that disciplinary action against senior managers in the local government sector takes place expeditiously to avoid prolonged suspensions and the resultant leadership vacuity, which could impede the rendering of services and the operation of the municipality. A municipality is to act with speed when disciplining a senior manager. The Regulations provide that a suspension of a senior manager will lapse automatically if the

disciplinary hearing does not commence within three months after the date of suspension. Three months is a generous period to allow for the commencement of disciplinary action and any suspension will remain extant for the duration of the disciplinary hearing if the hearing commenced within the three-month period. The automatic lapsing of the suspension only happens if the disciplinary hearing does not commence within the three-month period. This certainly cannot have devastating consequences for the discipline of senior managers – it rather ensures a speedy process, which is in compliance with the objectives and aim of the LRA.

[72] Considering what I alluded to supra, I am not convinced that the Respondents have excellent prospects of success on appeal.

[73] In my view, the predicament of being left with no relief, in circumstances where it is undisputed that the relief granted is time-sensitive and where logic and fairness dictate that a precautionary suspension cannot be indefinite, constitutes exceptional circumstances.

[74] Absent from work, the Applicant cannot access the right to qualify for a performance bonus and her protracted absence will indeed cause irreparable harm in this regard, more so where the claim cannot be quantified and pursued as a claim for damages. The Respondents’ contention that a performance bonus can still be paid, notwithstanding the Applicant’s prolonged absence, has been dealt with supra and it has no merit.

[75] I am satisfied that the Applicant would suffer irreparable harm. This is however not the end of the enquiry. The Applicant must also prove on a balance of probabilities that the Respondents will not suffer irreparable harm if leave to execute is granted pending an appeal process.

[76] The Applicant’s case is that the Respondents will not suffer irreparable harm if she returns to work because if she remains on precautionary suspension, pending the finalisation of her disciplinary hearing, the Municipality is prejudiced as the financial obligation to pay her, remains and her workload has to be performed by an acting employee.

[77] In answer to this, the Respondents did not deny the fact that they are prejudiced by the financial burden to pay the Applicant and the fact that another acting employee has to carry her workload. Instead, the Respondents submitted that they do not need the Applicant back at work due to the serious charges she faces and the fact that she could intimidate witnesses. All this is not irreparable harm, as already dealt with supra, but all the more reason to finalise the disciplinary hearing expeditiously and as a matter of priority.

[78] The Applicant indicated that she is prepared to participate in any lawful disciplinary process.

[79] In view of the aforesaid, I am not convinced that the Respondents will suffer irreparable harm in circumstances where they will have the benefit of the services rendered by the Applicant, which will eliminate the prejudice caused by paying an employee a significant salary for rendering no service and that for a prolonged period. Municipalities should be more careful in how public funds are spent.

[80] In conclusion: it is evident from the circumstances supra, that the Applicant will indeed suffer irreparable harm if the order by the LAC is not put into operation and that the Respondents will not suffer irreparable harm if the order is put into operation. The section 18 test is met on both counts of the second leg.

[81] It follows that all the requirements under sections 18(1) and (3) of the Superior Courts Act have been satisfied.

Costs

[82] The last issue to be decided is the issue of costs.

[83] Insofar as costs are concerned, this Court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of the law and fairness.

[84] Mr Maluleke for the Applicant submitted that a punitive cost order should be granted in favour of the Applicant. This is so because the law is clear and the Applicant’s continued suspension is not in accordance with the law. The Municipality should lead by example. Mr Roux for the Respondents submitted that there is no basis to grant a punitive cost order and in the event that the application is dismissed, the cost should follow the result.

[85] The Constitutional Court in Zungu v Premier of the Province of KwaZulu-Natal and Others[18], confirmed that the rule that costs follow the result does not apply in labour matters, but that the Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court and have their disputes dealt with and, on the other hand, allowing those parties to bring to this Court cases that should not have been brought to Court in the first place.

[86] In my view, this is a matter where the interests of justice and fairness will be best served by making no order as to costs. The Respondents have the right to file an appeal to the Constitutional Court and the exercising of that right made this application necessary. The Respondents acted within their rights to oppose this application and should not be punished with a cost order for doing so.

[87] In the premises, I make an order as follows:

Order

1. The Labour Appeal Court judgment and order delivered on 21 November 2024 under case number JA 88/2024 operates and is extant until the final determination of the leave to appeal application and appeal against the said order;

2. The First and the Second Respondents are ordered to comply with the Labour Appeal Court order delivered on 21 November 2024 within 24 hours of this order being granted;

3. There is no order as to costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate M D Maluleke with Advocate D F Makhubele Instructed by: M Baloyi Attorneys For the First and Second Respondents: Advocate L A Roux Instructed by: Peyper Attorneys

[1] Act 10 of 2013.

[2] Act 10 of 2013.

[3] Luxor Paints (Pty) Ltd v Lloyd and another (2017) 38 ILJ 1149 (LC).

[4] [2018] ZALAC 47; [2019] 5 BLLR 434 (LAC).

[5] [2013] ZAGPJHC 274; 2014 (3) SA 189 (GJ).

[6] [2016] ZASCA 165; [2017] 1 All SA 79 (SCA).

[7] Incubeta supra at para 27.

[8] See: Ntlemeza v Helen Suzman Foundation and Another [2017] ZASCA 93; 2017 (5) SA 402 (SCA), Afriforum supra.

[9] Incubeta supra at para 18.

[10] Afriforum supra at para 13.

[11] (20806/2013) [2016] ZAWCHC 34 (1 April 2016) at para 27.

[12] [2023] ZALCJHB 345; (2024) 45 ILJ 931 (LC) at para 30.

[13] (1992) 13 ILJ 573 (LAC) at 587B – F.

[14] [2006] ZALC 44; (2006) 27 ILJ 1644 (LC) at 1651C – 1652G.

[15] [2010] ZALC 84; (2010) 31 ILJ 3027 (LC).

[16] (2022) 43 ILJ 2319 (LC).

[17] [2019] ZACC 3; (2019) 40 ILJ 773 (CC).

[18] [2018] ZACC 1; (2018) 39 ILJ 523 (CC).