THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case No: C441/2023
In the matter between:
MEC FOR THE WESTERN CAPE DEPARTMENT
OF HEALTH Applicant
and
KWAZI CELANI ZWAKELE NDLOVU Respondent
In re:

KWAZI CELANI ZWAKELE NDLOVU Applicant

and

PUBLIC HEALTH AND SOCIAL DEVELOPMENT
SECTORAL BARGAINING COUNCIL First Respondent
KAREN KLEINOT N.O. Second Respondent
MEC FOR THE WESTERN CAPE DEPARTMENT
OF HEALTH Third Respondent

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Heard: On paper
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email, publication on the Labour Court website and release to
SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 2
February 2026.
______________________________________________________________________

JUDGMENT

DE KOCK, AJ
Introduction
[1] This Court is seized with two applications arising from the judgment handed
down on 20 October 2025. The first is an application by the MEC for the Western
Cape Department of Health (the Department) for leave to appeal to the Labour
Appeal Court against the order reviewing and setting aside the arbitration award.
The second is a conditional cross -appeal by Dr Ndlovu against the quantum of
compensation awarded.
[2] In the judgment, this Court found that the commissioner’s conclusion that Dr
Ndlovu’s precautionary suspension was fair was a decision that a reasonable
decision-maker could not reach. The arbitration award was reviewed and set
aside. The award was replaced with an order declaring the suspension an unfair
labour practice, awarding compensation of R171,185.89 (one month’s salary) for
the unfair suspension and ordering payment of the withheld commuted overtime
entitlement of R402,287.60 with interest.
The test for leave to appeal

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[3] Section 17(1)(a) of the Superior Courts Act 1 provides that leave to appeal may
only be granted where the judge is of the opinion that the appeal would have a
reasonable prospect of success, or there is some other compelling reason why
the appeal should be heard.
[4] The wording is deliberate. The legislature moved away from the earlier, more
permissive formulation that focused on whether another court may come to a
different conclusion. The current test requires that the judge be satisfied that the
appeal would have a reasonable prospect of success, a higher threshold than
mere arguability.
[5] In S v Smith
2, the court explained that “reasonable prospects of success” means
more than that the case is arguable. There must be a sound, rational basis for
concluding that another court would come to a different conclusion.
[6] In Martin and East (Pty) Ltd v National Union of Mineworkers and Others
3, the
Labour Appeal Court underscored the gate-keeping function of the Labour Court.
It cautioned that disputes that raise no novel point of law and involve no
misinterpretation of existing law should ordinarily end in the Labour Court and not
be allowed to “reappear continuously in courts on appeal after appeal, subverting
a key purpose of the Act, namely the expeditious resolution of labour disputes.”
The Department’s application for leave to appeal
[7] The Department advances numerous grounds of appeal. I shall address each in
turn.
The commuted overtime entitlement
[8] The Department’s primary ground concerns the award of R402,287.60 in
withheld commuted overtime. The Department contends that this Court erred in

1 Act 10 of 2013.
2 2012 (1) SACR 567 (SCA).
3 [2013] ZALAC 35; (2014) 35 ILJ 2399 (LAC).

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finding that commuted overtime was an “entitlement” and that there was no
evidence Dr Ndlovu would have worked the overtime. The Department relies on
Food & Allied Workers Union v Ceres Fruit Juices (Pty) Ltd
4 for the proposition
that workers do not have the right to demand overtime, and on New Way Motor &
Diesel Engineering (Pty) Ltd v Marsland
5 for the proposition that overtime
requires employer authorisation.
[9] The Department further contends that commuted overtime was not included in Dr
Ndlovu’s “All Inclusive Remuneration Package” of R1,728,807 per annum, as
reflected in his Letter of Appointment. The Department points to the requirement
in the Letter of Appointment that “a new commuted overtime agreement needs to
be concluded between yourself and the Head of Institution according to the
overtime needs identified.” The Department relies on clause 3 of the Commuted
Overtime System Contract which provides that the contract is based on a uniform
system of commuted overtime “for certain minimum hours worked, in excess of
40 hours per week.”
[10] These contentions must be rejected.
[11] The authorities relied upon by the Department concerned overtime worked by the
hour, requiring authorisation for each occasion. Commuted overtime is
fundamentally different in character. Commuted overtime is a system whereby an
employee receives a fixed monthly payment for overtime work, regardless of the
actual hours worked in any given month. Once a commuted overtime agreement
is concluded and implemented, it constitutes a fixed contractual component of
the employee’s remuneration.
[12] Secondly, while the Letter of Appointment indicated that a separate commuted
overtime agreement was required, the evidence before the commissioner
established that such an agreement was in fact concluded. Dr Ndlovu’ s salary
slip, which formed part of the arbitration record, reflected “ fixed overtime” at

4 (1996) 17 ILJ 1063 (C).
5 (2009) 30 ILJ 2875 (LAC).

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R40,228.76 per month. This fixed payment was made consistently each month
prior to the suspension. The existence of the commuted overtime agreement and
its implementation was not disputed at the arbitration. The fact that the
arrangement required a separate agreement does not detract from its contractual
character once concluded.
[13] Thirdly, the Department ’s reliance on clause 3 of the Commuted Overtime
System Contract is misplaced. That clause describes the basis on which
commuted overtime rates are calculated, not a condition precedent to payment
each month. The very nature of commuted overtime is that the employee
receives a fixed payment irrespective of the actual hours worked in any particular
month. The Department’s argument that Dr Ndlovu did not work overtime during
his suspension is therefore irrelevant. He could not work overtime precisely
because he was suspended. The suspension deprived him of the opportunity to
perform the work that would ordinarily attract the commuted overtime payment.
[14] There is no reasonable prospect that the Labour Appeal Court would come to a
different conclusion on this ground.
The compensation for reputational harm
[15] The Department contends that this Court erred in awarding compensation for
reputational damage in circumstances where Dr Ndlovu failed to expand on the
reputational damages and no ordinary or expert evidence was given. The
Department relies on SA Football Association v Mangope
6 and Kwazulu-Natal
Tourism Authority v Wasa 7 for the proposition that an employee must prove
actual damages.
[16] These authorities are inapplicable. Both SA Football Association v Mangope and
Kwazulu-Natal Tourism Authority v Wasa concerned claims for patrimonial loss
arising from breach of contract under the Basic Conditions of Employment Act. In

6 (2013) 34 ILJ 311 (LAC).
7 (2016) 37 ILJ 2581 (LAC).

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such claims, the employee must prove actual damages as a matter of delictual or
contractual principle.
[17] The present matter is fundamentally different. Dr Ndlovu claimed compensation
for an unfair labour practice under section 186(2)(b) of the LRA. Compensation
under section 194 of the LRA is not aimed at making good patrimonial loss. As
the Labour Appeal Court explained in ARB Electrical Wholesalers (Pty) Ltd v
Hibbert
8, compensation under the LRA constitutes a solatium for the impairment
of dignity, not compensation for proven financial loss.
[18] The Department’s reliance on Media 24 v SA Taxi Securitisation (Pty) Ltd 9 and
Manuel v Economic Freedom Fighters and Others10 is equally misplaced. Those
cases concerned defamation claims for general damages under delictual
principles, not statutory compensation for unfair labour practices.
[19] This Court awarded one month’ s salary as compensation, which represents a
modest solatium at the lower end of the permissible range of up to 12 months ’
remuneration. This Court expressly found that Dr Ndlovu “failed to expand on the
reputational damage suffered” and took this into account in arriving at the
quantum. The award was conservative and just and equitable in the
circumstances. There is no reasonable prospect that the Labour Appeal Court
would interfere with it.
The hearsay evidence and lack of cross-examination
[20] The Department contends that this Court erred by considering the absence of
witness testimony and characterising certain evidence as hearsay. The
Department maintains that certain facts were “ common cause” and that the
suspension policy did not require oral evidence as a procedural requirement. The
Department argues that Dr Ndlovu did not submit this as a ground of review and
therefore the Court erred in entering the arena of the dispute.

8 (2015) 36 ILJ 2989 (LAC).
9 2011 (5) SA 329 (SCA).
10 2019 (5) SA 210 (GJ).

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[21] The Department further contends that oral evidence at the arbitration hearing
could not have influenced the decision-maker at the time the suspension decision
was taken. The Department argues that ex post facto oral evidence at an
arbitration could not be used as a method of evaluating the fairness of the
suspension decision because oral evidence was not given at the time when the
decision was taken and therefore was not a factor that could have influenced the
employer’s decision.
[22] These contentions fundamentally misunderstand the nature of the enquiry before
the commissioner and this Court.
[23] The question before the commissioner was not whether the employer followed
the correct procedure in making the suspension decision. The question was
whether the suspension was substantively fair. That question required an
assessment of whether there was a genuine and reasonable basis for the alleged
fears that justified the suspension. The arbitration hearing was precisely the
forum in which the genuineness and reasonableness of those fears was to be
tested.
[24] The Department’s ex post facto argument, if accepted, would render arbitration
proceedings meaningless in suspension disputes. It would mean that an
employer’s decision to suspend could never be tested by hearing from the
witnesses whose alleged fears formed the basis for that decision. The very
purpose of the arbitration was to determine whether the suspension was fair. The
failure to call witnesses whose subjective fears were the stated justification for
the suspension was a material consideration in assessing whether those fears
were genuine and whether the commissioner ’s acceptance of them was
reasonable.
[25] The facts that the Department characterises as common cause were the
complaints themselves, not the truth of their contents. Whether the consultants
genuinely feared intimidation, and whether that fear was reasonable, were
contested issues that went to the heart of the dispute. The consultants’ subjective

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complaints of feeling “ intimidated” were never tested in cross -examination. Dr
Ndlovu was adamant throughout the arbitration proceedings that the witnesses
be called to substantiate their alleged fears.
[26] As to the contention that this Court entered the arena by considering matters not
raised as grounds of review, the Department ’s reliance on National Education
Health & Allied Workers Union v McGladder y NO and Others
11 and National
Commissioner of the SA Police Service v Potterill NO and Others12 is misplaced.
Those authorities concern the question whether a review applicant can raise new
grounds of review not pleaded in the founding papers. They do not address the
review court ’s power to consider the entire record when assessing
reasonableness.
[27] In Herholdt v Nedbank Ltd
13, the Labour Appeal Court confirmed that the
reasonableness enquiry “envisages a determination, based on all the evidence
and issues before the arbitrator, as to whether the outcome of the arbitrator
arrived at can nonetheless be sustained as a reasonable outcome. ” This Court
was not raising new grounds of review; it was assessing whether the
commissioner’s conclusion could be sustained as reasonable in light of the entire
record.
[28] There is no reasonable prospect of success on this ground.
The finding that suspension interfered with constitutional rights
[29] The Department contends that this Court erred in finding that the suspension
interfered with Dr Ndlovu’s right to sue for civil damages. The Department argues
that in fact and law, the suspension did not interfere with his right to pursue civil
proceedings. The Department points out that the civil claim continued regardless
of the suspension and that the conditions of suspension did not prevent Dr
Ndlovu from pursuing his claim.

11 (2012) 33 ILJ 1236 (LC).
12 (2003) 24 ILJ 1984 (LC).
13 2013 (6) SA 224 (SCA); [2013] 11 BLLR 1074 (SCA); (2013) 34 ILJ 2795 (SCA).

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[30] This argument misses the point. This Court did not find that the suspension
physically prevented Dr Ndlovu from pursuing his civil claim. The finding was that
the stated purpose of the suspension, namely , to protect witnesses from alleged
intimidation arising from the letter of demand, could not justify a precautionary
suspension because the exercise of a constitutional right to access courts cannot
form the basis for adverse employment action. The question was not whether he
could still sue, but whether suing (or the prospect of suing) could constitute a
legitimate ground for suspension.
[31] The Department further contends that this Court erred because Dr Ndlovu did not
submit this as a ground of review. For the reasons set out above regarding the
Sidumo reasonableness enquiry, this contention is rejected.
[32] There is no reasonable prospect of success on this ground.
The commissioner’s finding on the reason for suspension
[33] The Department contends that this Court erred with its finding that the
commissioner held that the only reason for the initial suspension was that a letter
of demand was delivered. The Department argues that the commissioner ’s
finding was that the timing of the letter of demand, not the mere fact of its
delivery, was done intentionally to intimidate the witnesses. The Department
points to the documentary evidence showing that the timing had the effect of
intimidating and interfering with the witnesses.
[34] This Court accepts that the commissioner ’s focus was on the timing of the letter
of demand rather than the fact of its delivery. However, this does not assist the
Department. Whether framed as the delivery of the letter or its timing, the
essential question remains whether instituting civil proceedings, or taking steps in
furtherance thereof, can constitute a legitimate basis for precautionary
suspension. For the reasons set out in the judgment, it cannot.
[35] There is no reasonable prospect of success on this ground.

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The exhaustion of internal processes and the “almost a year” finding
[36] The Department contends that this Court erred with its conclusion that the
commissioner failed to consider that Dr Ndlovu had exhausted his internal
processes before approaching his attorney. The Department argues that the
exhaustion of internal processes was irrelevant to the essential issue before the
commissioner, which was whether the timing of the service of the letter of
demand one day before the commencement of the disciplinary enquiry was done
to intimidate the witnesses.
[37] The Department further contends that the commissioner was factually correct
with the time period of “ almost a year ” given that Dr Ndlovu received a copy of
the Letter of Demand on 5 November 2020 and the Letter of Demand was
delivered on 19 August 2021, a period of approximately nine months.
[38] This Court accepts that the period from November 2020 to August 2021 is
approximately nine months, which could fairly be characterised as “almost a
year.” However, the significance of the commissioner ’s comment was the
implication that Dr Ndlovu had inexplicably delayed instituting civil proceedings
and then suspiciously served the letter of demand on the eve of the disciplinary
enquiry. The evidence demonstrated that the timing was driven by the ordinary
pace of legal process. Dr Ndlovu first exhausted internal processes, then
approached an attorney in May 2021, whereafter the normal course of attorney -
client engagement, document preparation, and service followed. The
commissioner’s characterisation suggested strategic delay when the evidence
showed ordinary legal process.
[39] The exhaustion of internal processes was relevant because it explained the
timeline and negated the inference of strategic timing. The commissioner’s failure
to consider this context contributed to her unreasonable conclusion that the
timing was calculated to intimidate.
[40] There is no reasonable prospect of success on this ground.

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The finding that the suspension outlived its stated purpose
[41] The Department contends that this Court erred with its finding that the
suspension continued after the witnesses had testified and therefore the concern
of intimidation during testimony no longer existed. The Department argues that
on the common cause facts, Dr Zibiya Barday was giving evidence at the time
when the suspension was extended. The Department relies on the evidence that
“Pillay reiterated during her evidence that the charges were serious, and the
witnesses were still in the process of testifying” and the commissioner ’s finding
that “the witnesses were still in the process of testifying.”
[42] This Court accepts that at the time of the extension of the suspension in
November 2021, some witnesses may still have been in the process of testifying.
However, this does not detract from the finding that the suspension ultimately
continued well beyond the completion of testimony. Dr Ndlovu was dismissed on
11 May 2022, and his appeal was dismissed on 3 June 2022. The suspension
continued throughout this period.
[43] More fundamentally, the stated purpose of the suspension was to protect
witnesses from intimidation. Once the witnesses had completed their testimony,
that purpose could no longer be served. The continuation of the suspension
beyond that point required independent justification, which was not established.
Even if the extension in November 2021 could be justified on the basis that
testimony was ongoing, the subsequent continuation of the suspension could not.
[44] There is no reasonable prospect of success on this ground.
The finding of insufficient evidence for the extension
[45] The Department contends that this Court erred with its conclusion that there was
insufficient evidence for the commissioner to conclude that the extension of the
precautionary suspension was fair. The Department argues that the concerns
expressed by the consultants could not have been taken into account because

expressed by the consultants could not have been taken into account because
they were not called as witnesses and therefore were not cross -examined, and

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that this Court had already rejected the commissioner ’s findings in respect of the
initial suspension.
[46] This argument is internally contradictory. The Department cannot simultaneously
argue that the concerns of the consultants justified the extension while
complaining that this Court considered the absence of testimony from those
consultants. If the concerns justified the extension, they were required to be
tested. They were not.
[47] There is no reasonable prospect of success on this ground.
The prescription evidence
[48] The Department contends that this Court misinterpreted Dr Ndlovu’s evidence
regarding prescription. The Department argues that the quoted evidence shows
Dr Ndlovu relied on the fear of prescription to justify the timing of the letter of
demand, and that the sum total of his evidence was that he was compelled to
serve the letter when he did because he could not wait until the disciplinary
hearing was finalised.
[49] This contention must be rejected. As this Court found in the judgment, nowhere
in the transcribed record did Dr Ndlovu testify that the letter of demand had to be
served on 19 August 2021 due to prescription. The passage relied upon by the
Department was a rhetorical question posed during cross -examination about
whether an employee should be barred from instituting civil proceedings during a
disciplinary hearing even if doing so means their claim prescribes. It was not an
assertion that prescription dictated the timing of the letter of demand.
[50] The commissioner, and now the Department, have read into Dr Ndlovu’s
evidence an argument he never advanced. His actual evidence, supported by the
documentary record of communications with his attorneys from May to August
2021, was that the timing was driven by the pace of legal process , not
prescription concerns. This Court ’s finding that the commissioner constructed an
argument about prescription that the applicant never made was correct and

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supported by the record. There is no reasonable prospect of success on this
ground.
The defamation claim, and workplace connection
[51] The Department contends that this Court erred when it made a finding that the
civil action for defamation was a separate process wholly independent of Dr
Ndlovu’s workplace presence and therefore could not serve as a reason for
precautionary suspension. The Department argues that the defamation claim
was based on Dr Barday ’s letter of complaint regarding her oppressive working
conditions under Dr Ndlovu, and that even though the proceedings were initiated
in the civil courts, the matter remained intrinsical ly causally connected to the
workplace.
[52] This Court accepts that the defamation claim arose from statements made in the
workplace context. However, this does not alter the analysis. The question is not
whether the defamation claim has a factual connection to the workplace. The
question is whether the institution of civil proceedings can justify a precautionary
suspension.
[53] Precautionary suspension is intended to protect the integrity of an investigation
or disciplinary process, or to protect persons in the workplace from harm. It is not
intended to shield potential defendants in civil litigation from the consequences of
their statements. If an employee believes that a colleague has defamed them,
they are entitled to pursue civil remedies. The employer cannot suspend the
aggrieved employee to protect the alleged defamer from the civil consequences
of their statements.
[54] The causal connection to the workplace does not convert a civil claim into a
workplace matter that can justify precautionary suspension. Many civil claims
between employees will have a workplace connection. That does not mean that
the pursuit of such claims can be punished or deterred through the mechanism of
precautionary suspension.

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[55] There is no reasonable prospect of success on this ground.
Conclusion on the Department’s application
[56] Having considered all the grounds of appeal, this Court is not persuaded that
there is a reasonable prospect of success on appeal. The judgment applied the
correct legal principles and reached conclusions that were supported by the
evidence. The authorities relied upon by the Department are distinguishable and
do not advance its case. The Department ’s grounds amount to disagreement
with the factual findings of this Court rather than the identification of appealable
errors.
[57] Nor is there any other compelling reason why the appeal should be heard. The
judgment does not conflict with any other authority. The principles governing
precautionary suspension, the requirements of clause 7.2 of Resolution 1/2003,
the nature of commuted overtime, and the constitutional right of access to courts
are well established and do not require appellate guidance.
Dr Ndlovu’s conditional cross-appeal
The procedural objection
[58] The Department contends that Dr Ndlovu’ s cross- appeal should be struck for
failure to file a formal Notice of Application for Leave to Cross -Appeal. This Court
declines to dispose of the cross -appeal on procedural grounds. Dr Ndlovu
appeared in person throughout these proceedings. His conditional notice of
cross-appeal and supporting submissions adequately articulate his grounds and
the relief sought. In the interests of substantive justice, this Court will address the
cross-appeal on its merits.
The merits of the cross-appeal
[59] Dr Ndlovu seeks leave to cross -appeal against the award of one month’s salary
as compensation for the unfair suspension, contending that this is inadequate

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given the 10- month duration of the suspension and the reputational harm
suffered. He relies on the principles in ARB Electrical Wholesalers (Pty) Ltd v
Hibbert and points to his testimony where he described the humiliation and
prejudice he suffered.
[60] This Court has considered the evidence relied upon by Dr Ndlovu. The
statements in his testimony and email correspondence constitute assertions of
harm rather than independent evidence of actual reputational damage. As the
Department correctly observed, the “ shame” described by Dr Ndlovu related
primarily to the disciplinary enquiry he was attending rather than the suspension
itself. No corroborating evidence was placed before the commissioner
demonstrating actual prejudice to his professional standing beyond his own
assertions.
[61] Importantly, Dr Ndlovu was paid his basic salary throughout the suspension.
Following this judgment, he will receive the full commuted overtime that was
withheld, amounting to R402,287.60 with interest. He has therefore suffered no
actual monetary loss arising from the suspension. In these circumstances, the
award of one month’ s salary as compensation for the non- patrimonial harm
associated with an unfair labour practice is just and equitable.
[62] The cases cited by Dr Ndlovu are distinguishable. In the present matter, Dr
Ndlovu received his basic salary and will receive full overtime recovery.
[63] There is no reasonable prospect that the Labour Appeal Court would find the
compensation award to be inadequate in the circumstances. The cross -appeal is
accordingly refused.
Costs
[64] Section 162 of the LRA provides that this Court may make orders for costs
according to the requirements of law and fairness. Both applications have been
unsuccessful. However, Dr Ndlovu appeared in person, and the Department ’s

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position, while ultimately unsuccessful, was not wholly unreasonable. In these
circumstances, no order as to costs is warranted.
Order
[65] In the premises, the following order is made:
1. The application by the MEC for the Western Cape Department of Health
for leave to appeal is refused.
2. Dr Ndlovu’s conditional cross-appeal against the quantum of
compensation is refused.
3. There is no order as to costs.

_____________________________
C. de Kock
Acting Judge of the Labour Court of South Africa