THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: 2025-110771
In the matter between:
MNIKELWA NXELE Applicant
and
THE NATIONAL COMMISSIONER: DEPARTMENT
OF CORRECTIONAL SERVICES Respondent
Heard: 15 July 2025
Delivered: 3 December 2025
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 3 December 2025.
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JUDGMENT
___________________________________________________________________
PRINSLOO, J
Background facts
[1] There is a lengthy history relating to the suspension of the Applicant , but the
factual background, relevant for purposes of this judgment, is common cause.
[2] The Applicant is employed by the Department of Correctional Services (the
department) as the regional commissioner of correctional services for
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KwaZulu-Natal. He was placed on precautionary suspension on 9 May 2025
on allegations of corruption, misrepresentation and procurement irregularities .
The suspension was b ased on the Respondent’s consideration of the
seriousness of the allegations and the fact that the Applicant’s presence at
work may jeopardi se the investigation and endanger the well -being of
witnesses.
[3] The provisions of the SMS Handbook apply to the Applicant, and clause 2.7 of
Chapter 7 thereof provides for precautionary suspension or transfer. Clause
2.7(2)(c) 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.’
[4] The Applicant ’s case is that the 60 -day period within which the disciplinary
enquiry ought to have been held had expired by 8 July 2025. No disciplinary
enquiry was held within the prescribed period , and he reported for duty on 9
July 2025. Upon reporting for duty, the Respondent issued a letter informing
him that his suspension had not lapsed and that he remained suspended until
after the conclusion of the disciplinary hearing, which commenced on 8 July
2025.
[5] The Applicant submitted that there was no disciplinary hearing which had
commenced on 8 July 2025, but that there was merely a meeting where the
department’s representative had informed the chairperson that the notice and
charges were served on the Applicant on 30 June 2025, that the bundle was
delivered on 2 July 2025 and that the department would need 10 days to lead
the evidence of eight witnesses.
[6] The Respondent’s case, on the other hand, is that the disciplinary hearing had
commenced on 8 July 2025, but that the Applicant raised objections in limine
which had to be dealt with in accordance with the timeframes provided by the
chairperson. Furthermore, the Respondent’s case is that the 60 -day period
chairperson. Furthermore, the Respondent’s case is that the 60 -day period
(as per clause 2.7(2)(c) of the SMS Handbook) would only lapse on 4 August
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2025, and as such , the Applicant’s suspension remains lawful and he is not
entitled to the relief he seeks.
The relief sought
[7] The Applicant seeks an order to declare that the precautionary suspension
imposed by the Respondent has lapsed and expired on 8 July 2025 on
account of the failure to hold a disciplinary hearing within 60 days from the
date of his suspension , and that the Respondent be ordered to allow the
Applicant to resume his duties without any unlawful interference.
[8] The Applicant must make out his case in the founding papers , and the
essential averments to support the Applicant’s cause of action must appear in
the founding affidavit.
[9] In seeking declaratory relief, the Applicant seeks the declaration of a legal
right or status. The difficulty with the Applicant’s pleaded case is that he
addressed the requirements for an interdict, which find no application in an
application for a declarator. However, I am alive to the fact that the Applicant
drafted his own papers, and this application will be considered on that basis.
[10] The principles governing the exercise of a court’s discretion to grant
declaratory relief are the same as those governing the grant of such relief in
the High Court.1
[11] Two questions have to be answered when considering an application for
declaratory relief. In Association for Voluntary Sterilization of South Africa v
Standard Trust Limited and Others 2, the Supreme Court of Appeal confirmed
its dictum in Cordiant Trading CC v Daimler Chrysler Financial Services (Pty)
Ltd3, with reference to the powers of the High Courts to grant declaratory
relief, namely that:
1 Mantzaris v University of Durban-Westville & others [2000] 10 BLLR 1203 (LC) at para 6.2.
2 [2023] JOL 59417 (SCA) at para 8.
3 2005 (6) SA 205 (SCA) at para 16.
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‘Although the existence of a dispute between the parties is not a prerequisite
for the exercise of the power conferred upon the High Court by the
subsection, at least there must be interested parties on whom the declaratory
order would be binding. The applicant in a case such as the present must
satisfy the court that he/she is a person interested in an “existing, future or
contingent right or obligation” and nothing more is required ( Shoba v Officer
Commanding, Temporary Police Camp, Wagendrif Dam 1995 (4) SA 1 (A) at
14F). In Durban City Council v Association of Building Societies 1942 AD 27
Watermeyer JA, with reference to a section worded in identical terms , said at
32:
“The question whether or not an order should be made under this
section has to be examined in two stages. First the court must be
satisfied that the applicant is a person interested in an ‘existing, future
or contingent right or obligation’, and then, if satisfied on that point, the
Court must decide whether the case is a proper one for the exercise of
the discretion conferred on it.”’
Analysis
[12] The first question is whether the A pplicant has an interest in a ny existing,
future or contingent right. Put differently, does the Applicant have the right to
return to work once his precautionary suspension period has lapsed, without a
disciplinary hearing being held or the chairperson of the disciplinary hearing
extending the period of suspension ? The question which leaps out is whether
the prescribed suspension period has indeed lapsed , and in considering this
question, I must consider how the 60-day period is to be calculated.
[13] As already alluded to, the Applicant’s case is that the 60 -day suspension
period, calculated from 9 May 2025, had expired by 8 July 2025 , and the
Respondent’s case is that it only lapsed on 4 August 2025.
[14] Clause 2.7 (2)(c) of the SMS Handbook is central to this dispute in that it
provides that in the event of precautionary suspension, a disciplinary hearing
provides that in the event of precautionary suspension, a disciplinary hearing
must be held within 60 days. The SMS Handbook provides no definition of a
‘day’ in relation to clause 2.7(2)(c) or any of its other provisions.
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[15] This Court considered the purpose of precautionary suspension and clause
2.7 of the SMS Handbook and found that, in essence, it was to address the
mischief of prolonged suspension and the use of suspension for purposes
other than it was intended to . In Mogothle v Premier of the North West
Province4, the Court observed ‘…the trend apparent in this court in which
employers tend to regard suspension as a legitimate measure of first resort to
the most groundless suspicion of misconduct, or worse still, to view
suspension as a convenient mechanism to marginali ze an employee who has
fallen from favour. ’ In SA Post Office v Jansen van Vuuren NO and Others 5,
the court highlighted the detrimental impact of suspension on employees in
that it prejudices their reputation, advancement, job security and fulfilment.
[16] In Lekabe v Minister: Department of Justice and Constitutional Development 6
(Lekabe), the court echoed the aforementioned sentiments and held that:
‘The purpose of clause 2.7(2)(c), as I see it, is to address the problem of
protracted suspensions which demoralize and unfairly prejudice the
suspended employee. It would appear that the mischief which the parties
sought to address with the provisions of clause 2.7 was to deal with what Van
Niekerk J in Mogothle v Premier of the North West Province regarded as the
tendency by certain employers to …’
[17] In Lekabe, the court emphasi sed that the intention of clause 2.7(2)(c) of the
SMS Handbook was to deal with the abuse of power by the employer through
the use of suspension and to curb the power of employers in the public
service from using protracted suspension as a means of marginalising
employees.
[18] Numerous judgments in this Court dealt with disputes around the expiry of the
prescribed 60 -day suspension period . None of the judgments expressly
considered the question as to how the period was to be calculated , and it
seems that the judgments proceeded on the basis that there was general
seems that the judgments proceeded on the basis that there was general
4 (2009) 30 ILJ 605 (LC) at para 39.
5 (2008) 29 ILJ 2793 (LC).
6 (2009) 30 ILJ 2444 (LC) at para 18.
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acceptance that the 60 days in clause 2.7 (2)(c) were to be calculated as
ordinary calendar days, which included weekends and public holidays.
[19] In casu, this Court is faced with the express question: how are the 60 days in
clause 2.7(2)(c) of the SMS Handbook to be calculated?
[20] The courts have considered the meaning of a ‘day’ in instances where this
has not been defined in the relevant statute. In the absence of a definition, the
issue has been whether the interpretation as defined in the Interpretation Act 7
would apply – put differently: should Saturdays, Sundays and public holidays
be included in the calculation, or only the days that the employee was
expected to work?
[21] The Constitutional Court provided the answer in Molefe Jonas Mamasedi v
Chief of the SANDF and others8 (Mamasedi) as follows:
‘[42] In Mogapi the judgment of the High Court does not reveal whether Mr
Mogapi did disclose the basis for his submission that Saturdays,
Sundays and public holidays were excluded from the period of 30
days in s 59(3). So, we do not know whether it was that on those days
Mr Mogapi was not obliged to work, as is the case in the present case.
To the extent that Mr Mogapi may not have disclosed the basis for his
submission that Saturdays, Sundays and public holidays were to be
excluded from the 30 days in s 59(3), the High Court was correct to
rely on s 4 of the Interpretation Act to conclude that Saturdays,
Sundays and public holidays were included. In the present case the
High Court relied on Mogapi to support its decision that the period of
30 days in s 59(3) includes both the days on which the employee was
obliged to work and those on which he is not obliged to work.
[43] I, therefore, conclude that the reference to 30 days in s 59(3) is a
reference only to the days on which the member is obliged to be on
official duty. Weekends and public holidays cannot be included in
calculating the 30 days if such days are not days on which the
calculating the 30 days if such days are not days on which the
member is obliged to be on official duty. Of course, if weekends and
7 Act 33 of 1957.
8 (2024) 45 ILJ 2475 (CC).
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public holidays are days on which the member is obliged to be on
official duty, then those days would be counted in determining whether
a member was absent from official duty without his or her
commanding officer’s permission for a period exceeding 30 days.
[44] The interpretation of 30 days advanced by the respondents would, if
accepted, result in members of the Regular Force being dismissed for
not being on duty on a day they were not obliged to be on duty. This
would happen, for example, if a member was away from work without
permission for 28 days if you do not count three other days on which
he or she was not at work but was not obliged to be at work. He or she
would have exceeded the 30 days on that approach by one because
two of the days which would be counted would be days on which he or
she was not obliged to work. That is the interpretation that says the
reference to 30 days in s 59(3) is a reference to calendar days
irrespective of whether or not the member was obliged to work on
those days or on some of those days. This interpretation does not
promote the spirit, purport and objects of the Bill of Rights. The
interpretation I have adopted in this judgment promotes the spirit,
purport and objects of the Bill of Rights.’
[22] In Member of the Executive Council: Department of Education, KZN and
another v Cumaio and a related matter 9 (Cumaio), the Labour Appeal Court
considered the interpretation of ‘ 14 consecutive days ’ as provided for in
section 14(1) Employment of Educators Act10 and held that:
‘In the present instance, the calculation of the 14 -day period referred to in
section 14(1)(a) was thus to be done by accounting not for calendar days, but
only for those days on which the employee was obliged to be at work. It
follows that the 14 -day period on which the Department relied to invoke
section 14(1)(a) had not yet expired on 29 November 2017, calculated as it
was as calendar days. In short, the Department’s calculation of the dies was
was as calendar days. In short, the Department’s calculation of the dies was
incorrect. 14 consecutive days from 15 November 2017, correctly calculated,
had not expired by 29 November 2017 and the Department’s reliance on
section 14(1)(a) was thus premature.’
9 [2024] 12 BLLR 1249 (LAC) at para 15.
10 Act 76 of 1998.
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[23] In Mokoena v West Rand District Municipality and othe rs11 (Mokoena), the
Court was faced with a matter where the municipality terminated the municipal
manager’s fixed -term contract for lack of compliance with the 60-day time
frame for completing a performance agreement in terms of s ection 57(2)(a)(i)
of the Systems Act 12. The municipality’s case was that it effected an ex lege
termination when a statutory time frame was not complied with . The court
held:
‘[35] The contract of employment required the applicant to work Mondays
to Fridays, and the BCEA prohibits employers from requiring
employees to work on public holidays except whether the parties
have agreed. The contract of employment does not make any
provision for such an agreement. In my view, the interpretation
in Mamasedi, although decided on a wording slightly different to the
wording in casu, must be adopted. In Cumaio, despite the section
referring to “ consecutive” days, the LAC adopted
the Mamasedi interpretation and held that these are consecutive
days that the employee is required to be at work.
[36] The Systems Act made reference to days, not calendar days, not
weeks and not months. If these days were to be inclusive of days
other than the days that the applicant was required to be at work, the
Systems Act would have expressly stated so or would have qualified
this by stating that “ calendar days” instead of “ days” or referred to
the period in weeks or months. I see no reason why this Court
should deviate from the interpretation adopted in the above
judgments. Therefore, the 60 days must be counted to exclude
Saturdays, Sundays and public holidays, which are days that the
applicant was not contracted or required to be at work.’
[24] In casu , there is no reason to deviate from the interpretation of ‘day’ as
adopted in Mamasedi, Cumaio and Mokoena. The SMS Handbook provides
no definition of a ‘day’ in relation to clause 2.7 (2)(c) or any of its other
no definition of a ‘day’ in relation to clause 2.7 (2)(c) or any of its other
provisions – it merely provides for a period of 60 days.
11 (2025) 46 ILJ 2681 (LC).
12 Local Government: Municipal Systems Act 32 of 2000.
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[25] It is undisputed that the Applicant is contractually required to report for duty,
Mondays to Fridays, excluding weekends and public holidays, unless
expressly requested to work on weekends or public holidays. It follows that a
reference to 60 days in the SMS Handbook refers only to the days on which
the Applicant is obliged to be on official duty. Weekends and public holidays
cannot be included in calculating the 60 days if such days are not days on
which he was obliged to be on official duty.
[26] Calculating the 60 working days from the date the Applicant was suspended,
being 9 May 2025, the said period only expired on 4 August 2025. The
Applicant remained suspended in terms of the provisions of the SMS
Handbook until 4 August 2025, and as such, this application was premature.
[27] The Applicant failed to show that he has the right to return to work prior to the
expiry of his 60-day precautionary suspension period, and he is not entitled to
the declaratory relief he seeks.
[28] I already alluded to the intention of clause 2.7(2)(c) of the SMS Handbook
supra, and I emphasise that the prescribed time period is to curb the power of
employers in the public service from using protracted suspension as a means
of harassing, embarrassing or marginalising employees. Where a suspension
process is abused or protracted, an employee has remedies , and an
intervention would be justified. That is , however, not the case where the
prescribed period has not expired or where the process is not abused.
Costs
[29] The last issue to be decided is the issue of costs. This Court has a wide
discretion in respect of costs, considering the requirements of law and
fairness.
[30] In Zungu v Premier of the Province of KwaZulu-Natal and Others ,13 the
Constitutional Court confirmed that the rule that costs follow the result does
not apply in labour matters. The Court should seek to strike a fair balance
between unduly discouraging parties from approaching the Labour Court to
between unduly discouraging parties from approaching the Labour Court to
13 (2018) 39 ILJ 523 (CC) at para 24.
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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.
[31] This is a case where the Court must strike a balance , and in my view , the
interest of justice would be best served by making no order as to cost.
[32] In the premises, I make the following order:
Order
1. The application is dismissed with no order as to cost.
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Connie Prinsloo
Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Mr R Mataka from Morathi & Mataka Attorneys
For the Respondent: Mr P Maserumule from Maserumule Attorneys