THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JA 07/25
In the matter :
MOQHAKA LOCAL MUNICIPALITY First Appellant
ME M OKATSANE N.O. Second Appellant
and
PORTIA HALIO TSHABALALA Respondent
Heard: 3 June 2025
Delivered: 11 June 2025
Coram: Molahlehi JP, Tokota AJA et Basson AJA
Summary : Urgent appeal. The Municipality and the mayor exercised their
right to automatic appeal provided for in terms of section 18(4) of the Superior Courts Act. The Municipal Manager was suspended pending investigations into her alleged misconduct in terms of r egulation 6(6)(a) of the Local
Government Disciplinary Regulations for Senior Managers 2020. The employee challenged the suspension before the Labour Court, because the Municipality failed to finalise the investigation into the alleged misconduct within thr ee
months from the date of the suspension. The employee successfully appealed
the decision of the Labour Court. The Labour Appeal Court overturned the decision of the Labour Court. The appeal distinguished the commencement of
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disciplinary proceedings and the disciplinary hearing. It held that disciplinary
proceedings commenced when the charges were issued to the employee.
Dissatisfied with the decision of the Labour Appeal Court, the Municipality applied for leave to appeal to the Constitutional Court. The employee applied
to the Labour Court in terms of section 18(3) of the Superior Court Acts and
requested an order directing the Municipality to comply with the order of the
Labour Appeal Court. The Labour Court found that there are exceptional circumstances justifying the order that the Municipality should comply with the order of the Labour Appeal Court in terms of section 18 of the Superior
Courts Act. The appellants sought the admission of further evidence on
appeal. The principle governing the admission of new evidence on appeal
restated. The application was dismissed. The Labour Appeal Court held that
the employee had shown exceptional circumstances to justify the
implementation of the order despite the pending appeal to the Constitutional Court.
JUDGMENT
BASSON, AJA
[1] This is an urgent appeal launched by the Moqhaka Local Municipality (first
appellant – the Municipality) and Mr Motloheloa Elis Mokatsane (second appellant)
exercising their right to an automatic appeal provided for in terms of section 18(4) of the Superior Courts Act (the Act) .
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Facts
[2] The background facts of this matter are not in dispute. The Municipality
appointed the respondent (Ms Portia Halio Tshabalala – the respondent ) as the
Municipal Manager for a fixed five- year term, effective from 9 May 2023. The
1 Act 10 of 2013.
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respondent was served with an intention to suspend her, effective from
1 March 2024, pending an investigation into alleged misconduct regarding financial
mismanagement, in accordance with the Local Government: Disciplinary Regulations for Senior Managers, 2020 (the regulations). Regulation 6(6)(a) provides for
precautionary suspension and reads as follows:
‘If a senior manager is suspended, a disciplinary hearing must commence
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within three months after the date of suspension, failing which the suspension
will automatically lapse. ’
[3] On 31 May 2024—the final day of the three- month suspension period
contemplated in regulation 6(6)(a) —the respondent was served with a notice,
accompanied by the charges preferred against her, to attend a disciplinary hearing scheduled for 13 June 2024. The respondent reported for duty on 3 June 2024 ,
claiming that the period during which the disciplinary hearing should have commenced according to regulation 6(6)(a) had expired. The Mayor disagreed and instructed the respondent to leave the premises. It is common cause that the
disciplinary hearing did not commence on 13 June 2024 and was postponed to 1 and
2 August 2024.
Labour Court
[4] On 13 June 2024, the respondent initiated urgent proceedings in the Labour
Court (LC), seeking an order declaring that her suspension beyond three months contravened her employment contract and the applicable regulatory framework.
[5] The entire matter turned on the interpretation of the word “ commence” used in
regulation 6(6)(a) . The LC dismissed the application, holding that a disciplinary
hearing is deemed to commence upon the service of the disciplinary charges and the
notice thereof. The Court concluded that the suspension had therefore not lapsed.
The LC granted leave to appeal the judgment.
Labour Appeal Court
2 Additi onal emphasis.
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[6] On 21 November 2024, the Labour Appeal Court (LAC) overturned the
decision of the LC, concluding that, because the disciplinary hearing had not commenced within three months from the date of suspension (1 March 2024), the
suspension had lapsed by operation of law on 31 May 2024. The LAC drew a
distinction between the commencement of disciplinary proceedings and the
commencement of the disciplinary hearing itself:
‘[7] What this construction contemplates is a disciplinary process that is
commenced by the service of charges on the employee and which culminates
in the conclusion of a disciplinary hearing. A disciplinary hearing is an integral
part of the disciplinary process or proceedings; it does not constitute the
proceedings in themselves. Read sequentially, the regulations contemplate that the disciplinary hearing is convened by the presiding officer and
commenced by the reading of the charges to the senior manager accused of misconduct.’
[7] The LAC concluded that although the disciplinary process commenced on
31 May 2024, the disciplinary hearing only commenced when the charges were read
to the employee, which occurred after 31 May 2024, thereby placing the
commencement of the disciplinary hearing outside of the prescribed timeframe.
Therefore, the respondent’s suspension automatically lapsed on 31 May 2024. The
LAC, consequently , ordered the Municipality to reinstate the respondent to her
position as the Municipal Manager .
Constitutional Court
[8] Dissatisfied with the judgment of the LAC, the M unicipality filed an application
for leave to appeal to the Constitutional Court on 11 December 2024. In terms of section 18(1) of the Act , the operation and execution of the order by the LAC is
suspended pending the outcome of that application.
Section 18(3) application
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[9] On 19 December 2024, the respondent filed an urgent application in the LC in
terms of section 18(3) of the Act, seeking an order that the operation and execution
of the LAC’s order not be suspended pending the outcome of the applicants’
application for leave to appeal to the Constitutional Court. The respondent further
sought an order directing the applicants to comply with paragraph 14 of the LAC’s
judgment and to reinstate her with immediate effect.
[10] On 23 December 2024, Prinsloo, J, granted the urgent application and
ordered that the order of the LAC, which directed the reinstatement of the
respondent, shall remain operative and enforceable pending the final determination
of the application for leave to appeal to the Constitutional Court.
[11] In a well- reasoned judgment, the LC analysed the discretion afforded to a
court under section 18(1) of the Act to depart from the ordinary consequence that the noting an application for leave to appeal suspends the operation and execution of an order . In terms of this section, a court may, in exceptional circumstances, grant an
order allowing execution of an order pending the outcome of an application for leave to appeal, provided the applicant demonstrates, on a balance of probabilities, that it
will suffer irreparable harm if the order is not granted, and that the respondent will
not suffer irreparable harm if it is.
[12] In granting the section 18 order, the Labour Court primarily relied on the
prejudice suffered by the respondent as a result of her prolonged and unlawful
suspension, which deprived her of the opportunity to be fairly assessed and
considered for a performance bonus in terms of her performance agreement and the
applicable Conditions of Employment Regulations. In determining whether exceptional circumstances existed, the Court found the issues of exceptional circumstances and irreparable harm to be closely intertwined, given that the
respondent’s case rested largely on the loss of her entitlement to a performance-
based assessment. Owing to her extended suspension, her work performance could
not be evaluated, resulting in substantial and irreparable prejudice. The Court further noted that the relief granted was time- sensitive, and that the ordinary operation of
the appeal process would effectively nullify the relief awarded by the LAC, thereby
rendering it academic.
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[13] In respect of irreparable harm, the respondent had submitted that she would
suffer irreparable harm if the relief sought is not granted and that it would be impossible to quantify a claim for damages related to a performance bonus, as the
right to qualify for a performance bonus depends on her presence in the workplace.
On the other hand, the Municipality argued that it would suffer irreparable harm if the
respondent were permitted to return to the workplace, as her presence would likely discourage witnesses from participating in the disciplinary proceedings. The
Municipality further submitted that it would be a travesty of justice for a Municipal
Manager facing such serious charges to return to office.
[14] Although the delay in finalising the disciplinary hearing was not, strictly
speaking, the issue before the LC, the court nonetheless considered it relevant in
assessing the questions of irreparable harm and prejudice. It held that the Municipality, as the employer, bore the responsibility for managing the disciplinary process and could not now rely on the delay to its advantage, particularly where it had consented to multiple postponements. The court further observed that no explanation had been provided regarding the steps taken after the respondent
pleaded to the charges in October 2024. Nor was there any justification offered for
the continued delay or for the failure to finalise the disciplinary hearing.
[15] The LC further held that a precautionary suspension cannot be permitted to
continue indefinitely, particularly after the investigation has been completed and a
decision was taken to institute disciplinary proceedings. The LC noted that more than
nine months had passed since the respondent was suspended, and over six months
had elapsed since she was charged, with the disciplinary hearing yet to be finalised. The court emphasised that a precautionary suspension is a temporary measure and may not be used as a means to exclude an employee from the workplace
indefinitely .
[16] In determining whether the harm or prejudice suffered by the Municipality is
irreparable, the LC emphasi sed that the execution of the order does not impede the
finalis ation of the disciplinary proceedings in any way and that it is undoubtedly in the
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interest of all parties that the disciplinary hearing be finali sed, as further delays will
not promote fairness or justice.
[17] In considering the prospects of success as a relevant factor in determining
whether to grant the exceptional remedy of execution pending appeal,3 the LC
rejected the applicants’ assertion that they had “excellent prospects of success on appeal ”. In particular, the LC agreed with the LAC’s interpretation of r egulations
6(6)(a) and 10(3), which distinguish between the commencement of a disciplinary
process and the commencement of a disciplinary hearing. The LC agreed with the
conclusion that the regulations, properly construed, contemplate that the disciplinary
process commences upon service of the charges on the employee. In contrast, the
disciplinary hearing only commences when the charges are formally read during the
disciplinary proceedings.
[18] The LC concluded that exceptional circumstances were present, given the
undisputed time- sensitive nature of the relief sought and the principle that a
precautionary suspension cannot continue indefinitely. It further held that the
respondent would suffer irreparable harm if execution were not granted. In contrast,
the Municipality failed to demonstrate that it would suffer irreparable harm should
execution be granted pending the outcome of the application for leave to appeal.
[19] The LC granted the section 18 application and ordered that the employee be
allowed to resume duties pending the finalisation of the appeal to the Constitutional
Court. It is against this order that this appeal application was filed.
This Court
Lack of authority
[20] In this Court, the respondent initially contested the authority of Peyper
Attorneys to act on behalf of the Municipality but subsequently abandoned this
3 Minister of Social Development, Wester Cape and Others v Justice Alliance of South Africa and
Another (20806/2013) [2016] ZAWCHC 34 (1 April 2016) at para 27.
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challenge during argument. Accordingly, the issue no longer requires the attention of
this Court.
Application to adduce further evidence
[21] The Municipality, evidently realising that the LC’s decision to grant the
application in terms of section 18 was primarily based on the prejudice suffered by
the respondent due to being denied a performance assessment under her performance level agreement, sought to introduce new evidence at the appeal stage.
This evidence relates to the fact that, when the section 18 application was granted,
the respondent did not have a valid performance agreement with the Municipality.
[22] It is common cause that the respondent’s performance agreement lapsed on
30 June 2024. However, notwithstanding the provision in clause 4.3 of the agreement, which provides that the parties “will review the provisions of this
Agreement during June each year” and “will conclude a new Performance
Agreement that replaces this Agreement by no later than 31 July of each successive financial year ”, no such renewal was concluded. The Municipality accordingly
contended that, as no valid performance agreement existed at the time the LC heard the matter in December 2024, the court could not properly have relied on such an
agreement in concluding that the respondent’s suspension adversely affected her entitlement to benefits thereunder, or that she would suffer irreparable harm as a result.
[23] During argument, the applicants, somewhat opportunistically, sought to
attribute the failure to renew the performance agreement to the respondent,
contending that she could have initiated the renewal process. This submission lacks merit, particularly in light of the fact that the respondent has been precluded from
attending the workplace since her precautionary suspension took effect on 1 March
2024. As the employer and custodian of the performance agreement, the
Municipality is responsible for initiating the renewal process, as contemplated in
clause 4.3 of the agreement. The respondent’s suspension does not absolve the Municipality of its contractual obligations under the respondent’s terms of service.
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[24] The failure to renew the performance agreement —and the attempt to now rely
on that very omission—only further prejudices the respondent, whose position is
already adversely affected by her prolonged and unlawful suspension. The Municipality cannot seek to benefit from her enforced absence by contending that
the LC erred in relying on the prejudice arising from the lack of a performance
assessment when the Municipality’s inaction led to the lapse of the agreement.
Surprisingly, by its own admission, the Municipality, the custodian of employee-related documents in the workplace, was only able to obtain a copy of the performance level agreement on 19 February 2024.
[25] Returning to the application to introduce further evidence. While a court on
appeal has the discretion to admit new evidence, it will exercise this discretion
sparingly and only in exceptional circumstances. In O’Shea NO v Van Zyl and
Others ,
4 the court held that a relevant consideration in determining whether to admit
new evidence late is whether such evidence would be “practically conclusive and
final in its effect on the issue to which it is directed” . A party seeking the admission of
such evidence must thus demonstrate that it is materially relevant to the outcome of the matter. In addition, that party must address any potential prejudice that may be
occasioned to the opposing parties should the evidence be admitted.
[26] I am not persuaded that the applicants have made out a case for introducing
further evidence, particularly since the proposed new evidence is not materially relevant to the determination of the matter. As previously noted, the Municipality’s failure to initiate the renew al of the performance level agreement in circumstances
where the respondent was excluded from the workplace only exacerbates the respondent's already precarious position. Therefore, the application to adduce further evidence at the appeal stage is dismissed with costs.
Section 18(4) application
[27] In terms of section 18(4)(a)(ii) of the Superior Courts Act, the appellants have
an automatic right of appeal against the order of the Labour Court. In challenging the
4 Quoted with approval in KSL v AL (731/2015) [2016] ZASCA 153; 2017 (1) SACR 141 (SCA) (3
October 2016) at para 13.
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Labour Court’s decision to grant the application under section 18, the appellants
dispute firstly, the finding that exceptional circumstances exist, and secondly, the conclusion that the respondent would suffer irreparable harm if the order were not implemented.
[28] This Court in Road Traffic Management Corporation v Tasima (Pty) Ltd and
others ,
5 explains the radical alteration from the common law position that usually
prevails once an application for leave to appeal is noted:
‘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.’
[30] Sections 18(1) and 18(3) of the Superior Court’s Act empower a court (which
granted the order) to direct, upon application, the execution of its order pending an application for leave to appeal or an appeal, provided that the following jurisdictional requirements are established to overturn the well -established common law default
position that an order is suspended pending an application for leave to appeal or an appeal:
30.1 Firstly, exceptional circumstances exist that justify granting an order
reversing the ordinary principle of suspension pending an application for leave to appeal .
30.2 Secondly, proof on a balance of probabilities -
5 [2019] 5 BLLR 434 (LAC) ; [2018] ZALAC 47 (LAC) at para 44.
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30.2.1 that the applicant will suffer irreparable harm if the order is not granted;
and
30.2.2 that the other party will not suffer if the application is not granted.6
[31] As explained by the court in University of the Free State v Afriforum and
another ,7 section 18(3) places the onus on the applicant to prove “onerous
requirements” :
‘[10] It is further apparent that the requirements introduced by s 18(1) and
(3) are more onerous than those of the common law. Apart from the requirement of 'exceptional circumstances' in s 18(1), s 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. ’
Exceptional circumstances
[32] What constitutes “exceptional circumstances” has been considered in
various judgments: In Knoop NO and Another v Gupta (Execution) ,8 the court
described the meaning of “exceptional circumstances" in the context of section 18 as being "…something that is sufficiently out of the ordinary and of an unusual nature to warrant a departure from the ordinary rule that the effect
6 See Incubeta Holdings (Pty) Ltd and another v Ellis and another (Incubeta) 2014 (3) SA 189 (GJ) ;
[2013] ZAGPJHC 274 at para 16. This judgment was followed with approval by the court in Jai Hind
EMCC CC t/a Emmarentia Convenience Centre v Engen Petroleum Ltd South Africa 2023 (2) SA 252
(GJ) a t para 36.
7 2018 (3) SA 428 (SCA) ; [2016] ZASCA 165.
8 2021 (3) SA 135 (SCA) ; [2021] 1 All SA 17 (SCA) at para 46.
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of an application for leave to appeal or an appeal is to suspend the operation
of the judgment appealed from ”.9
[33] In Incubeta Holdings (Pty) Ltd and Another v Ellis and Another10 the Court
answered the question as to what constitutes exceptional circumstances as follows:
‘[17] What constitutes 'exceptional circumstances' has been addressed by
Thring J in MV Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas, and
Another 2002 (6) SA 150 (C) , where a summation of the meaning of the
phrase is given as follows at 156I – 157C:
'What does emerge from an examination of the authorities, however, seems to
me to be the following:
1. What is ordinarily contemplated by the words ''exceptional
circumstances'' is something out of the ordinary and of an unusual nature;
something which is excepted in the sense that the general rule does not apply
to it; something uncommon, rare or different; ''besonder'', ''seldsaam'',
''uitsonderlik'', or ''in hoë mate ongewoon” .
2. To be exceptional the circumstances concerned must arise out of, or be
incidental to, the particular case.
3. Whether or not exceptional circumstances exist is not a decision which
depends upon the exercise of a judicial discretion: their existence or otherwise is a matter of fact which the Court must decide accordingly.
4. Depending on the context in which it is used, the word ''exceptional''
has two shades of meaning: the primary meaning is unusual or different; the
secondary meaning is markedly unusual or specially different.
5. Where, in a statute, it is directed that a fixed rule shall be departed
from only under exceptional circumstances, effect will, generally speaking,
best be given to the intention of the Legislature by applying a strict rather than a liberal meaning to the phrase, and by carefully examining any
circumstances relied on as allegedly being exceptional.'
[18] Significantly, although it is accepted in that judgment that what is
cognisable as 'exceptional circumstances' may be indefinable and difficult to
9 See also: University of the Free State v Afriforum and another 2018 (3) SA 428 (SCA) ; [2016]
ZASCA 165 at para 13.
10 Supra at para 17.
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articulate, the conclusion that such circumstances exist in a given case is not
a product of a discretion, but a finding of fact. ’
[34] The Constitutional Court in Liesching and Others v S11 similarly interpreted
“exceptional circumstances ” (albeit in terms of section 17 thereof) as follows:
‘[51] What then is the meaning that should be ascribed to the phrase
“exceptional circumstances” in section 17(2)(f) of the Superior Courts Act?
Construed strictly, I consider the words “rare”, “extraordinary”, “unique”,
“novel”, “atypical”, “unprecedented”, and “markedly unusual” to more fittingly
exemplify the meaning of the phrase contemplated by section 17(2)(f) of the
Superior Courts Act. What we must remain mindful of though, is that what is
exceptional must be determined on the merits of each case. It is a factual
inquiry.
[52] The court must look at substance, not form. It must consider all
relevant factors and determine whether “individually or cumulatively” they
constitute exceptional circumstances. An “ordinary circumstance that is present to an exceptional degree” may also constitute an exceptional circumstance. So too may the conflation of a number of unusual
circumstances. The exceptionality of the circumstance must be of such nature so as to persuade the President that it would be in the interests of justice to refer the decision refusing leave to appeal to the Court for reconsideration. ’
[35] Whether exceptional circumstances exist is a factual question that does not
involve the exercise of a discretion or, as the court in Incubeta put it, “['n]ecessarily,
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 ”.
In determining whether exceptional circumstances exist
that warrant the order, a C ourt must also consider whether there are prospects of
success in the a ppeal.12
Irreparable harm
11 (CCT304/16) [2018] ZACC 25; 2018 (11) BCLR 1349 (CC) (29 August 2018) at para 51.
12 University of the Free State v Afriforum and another supra at para 15.
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[36] With regard to the requirement of irreparable harm, the court in Incubeta held
that even if an applicant demonstrates that it would suffer irreparable harm if the
suspension order is not granted, such relief may still be refused unless the applicant also establishes that the respondent will not suffer irreparable harm if the order is
granted.
[37] This exercise is not akin to a balance of convenience examination where the
respective harm to the parties is weighed up to determine the “preponderance of equities”.
13 The applicant must , as a matter of fact , show that it will suffer irreparable
harm if the suspension order is not granted and that the respondent will not suffer irreparable harm. Where both parties will suffer irreparable harm, the court should refuse the application. The court in Helen Suzman Foundation v Minister of Police
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explains:
‘[19] With regard to the first requirement, in other words, whether or not
exceptional circumstances exist, exceptionality must be fact specific, this means that the circumstances which are or which may be exceptional must be located within the predicaments in which the given litigants find themselves.
This first leg of the test does not change the common law position. It is the
second leg of the test that has somewhat stringent requirements of proof.
Section 18 introduces the requirement of proof on a balance of probabilities that, firstly, the applicant stands to suffer irreparable harm if the order is not granted and secondly, conversely, that if the order is granted, the respondent will not suffer any such irreparable harm. In performing this exercise the Court looks to both sides. Where there is potentially irreparable harm or prejudice to both parties the Court should refuse the application as it will no longer balance the two in the interest of justice. ’
[38] In this Court, the appellants argued that the circumstances relied upon by the
respondent in relation to her performance bonus do not constitute exceptional
circumstances, nor would the continuation of her suspension give rise to irreparable harm. They submitted that any amount potentially owed to the respondent could be recovered through a contractual claim later, once the appeal has been finalised. The
13 Ibid.
14 2017 JDR 0794 (GP) ; [2017 ] ZAGPPHC 151 at para 19.
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appellants further contended that the LC erred in finding that exceptional
circumstances existed, relying on the following grounds:
38.1 First, the court failed to consider the seriousness of the charges
against the respondent. There is no merit in this submission. Nothing prevents the municipality from continuing with the disciplinary hearing, and, as pointed
out by the LC, the municipality, as the employer, should maintain control over the disciplinary hearing and should not allow the process to drag on for months.
38.2 Second, the respondent did not adequately plead the terms of the
alleged performance agreement, nor did she convincingly demonstrate how
her absence from the workplace prejudiced her regarding that agreement.
This argument lacks merit. The LC was careful to emphasi se how the
prolonged suspension and absence from the workplace negatively impacted any possibility of assessment, as the respondent is prevented from working
and rendering any work.
38.3 Third, there is nothing inherently improper about suspending an
employee pending the finali sation of disciplinary proceedings. The appellants
miss the point: once a suspension has lapsed, as found by the LAC, an
employee is entitled to return to work .
38.4 Fourth, it was submitted that the Council did not expressly limit the
period of suspension to the duration necessary to complete the investigation.
While it is correct that the Council's resolution did not explicitly impose such a limitation, the respondent was nonetheless informed in a letter from the Mayor that her suspension would endure pending the outcome of the investigation. However, this distinction is ultimately of no consequence. Whether the limitation appeared in the Council’s resolution or the Mayor’s letter is academic. In terms of the applicable regulations, the suspension lapsed by operation of law once the prescribed three- month period expired without the
commencement of the disciplinary hearing.
38.5 Lastly, the Council has a statutory and fiduciary duty to prevent
irregular, fruitless, and wasteful expenditure. Although this is undoubtedly so,
the municipality retains the right to proceed with the disciplinary hearing, even
though the respondent’s suspension has lapsed.
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[39] Insofar as the prospects of success have a bearing on the determination of
whether exceptional circumstances exist, it is necessary to briefly consider whether
there are reasonable prospects that another court would interfere with the LAC’s finding that, in terms of regulations 8(1) and 6(6), a suspension lapses where a
disciplinary hearing has not commenced within three months from the date of
suspension. Having regard to the reasoning adopted by the LAC in arriving at that
conclusion, I am not persuaded that the appellants have reasonable prospects of success on appeal.
[40] In conclusion, it is necessary to express this Court’s dissatisfaction with the
manner in which the appellants prosecuted this appeal. Section 18(4)(a)(iii) of the
Act expressly provides that appeals of this nature must be heard “as a matter of extreme urgency ”. Despite being aware of the LC’s judgment handed down on 23
December 2024, which ordered that the LAC’s order would remain operative pending the outcome of the application for leave to appeal, the appellants failed to act with the urgency required. As a result, nearly six months passed before the appeal was brought before this Court. This delay is wholly inconsistent with the clear legislative
intention that appeals in terms of section 18(4) be pursued and adjudicated urgently.
The failure to act promptly is particularly concerning in light of the Labour Court’s
finding that the relief granted was time- sensitive in nature. This lack of urgency is
unacceptable.
[45] In conclusion, the appeal , for the reasons set out hereinabove, is dismissed .
There is no reason to deny the respondent of her costs in this appeal.
[46] I make the following order:
Order
1. The application to adduce further evidence is dismissed with costs.
2. The appeal is dismissed with the appellants to pay the costs .
A.C Basson AJA
Mohanlehi JP and Tokota AJA concur .
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APPEARANCES
FOR THE APPELLANTS: Adv. L.A. Roux , instructed by Peyper Attorneys
FOR THE RESPONDENT: Adv. D.F. Makhubele, instructed by MM Baloyi
Attorneys