THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR679/2021
In the matter between:
DEPARTMENT OF HEALTH, NORTH WEST Applicant
and
PUBLIC HEALTH AND SOCIAL DEVELOPMENT SERVICE
SECTORAL BARGAINING COUNCIL First Respondent
MJ MOLAPO N.O. Second Respondent
BERTHA HAMPU MALEKA Third Respondent
Heard: 21 January 2026
Delivered: 13 February 2026
JUDGMENT
MUNSAMY, AJ
Introduction
[1] This is an application to review and set aside the award of the Second
Respondent, in which she found that the suspension of the Third Respondent
constituted an unfair labour practice. The Second Respondent ordered that
(1) Reportable: Yes/NO
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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the Third Respondent’s suspension be uplifted and that she be compensated
three months’ salary.
[2] The Applicant instituted an urgent application (Part A) and a review
application (Part B) on the 4 th of February 2021. Part A was heard on the 11 th
of February 2021, save for the issue of costs , which was reserved for
determination in the review application. On the 21 st of February 2021, the
Court issued an order as follows:
‘IT IS ORDERED THAT
1. The forms and services provided in the rules of court are
dispensed with and the application is heard as one of urgency.
2. The enforcement of the arbitration award issued by the second
respondent in favour of the third respondent under case
number PSH381-20/21 is stayed pending the review
application as set out in Part B.
3. The applicant is directed to pay security in the sum of R343
450-00 into its attorney’s trust account within 30 days of this
order and accordingly issue a bond of security with the
Registrar, failing which the order staying enforcement shall be
deemed to have lapsed.
4. The order in 2 above shall operate as interim staying the
orders granted by the second respondent in his award.
5. The costs of this application shall be determined during the
hearing of Part B.
6. The applicant as consented is ordered to furnish the third
respondent with copies of the documents requested to enable
her to prepare for the disciplinary hearing within 7 days of this
order.
7. The counter-application is dismissed.’
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The reinstatement application
[3] Part B was set down to proceed on the 21 st of January 2026. On the 15 th of
January 2026 the Applicant filed an application to reinstate the review
application (Part B) , which had been deemed withdrawn in terms of the then
applicable Practice Manual 1. Insofar as the reinstatement application is
concerned I have considered the principles set out in Samuels v Old Mutual
Bank2, in which the LAC held that reinstatement applications be considered
on the following basis:
‘[17] In essence, an application for the retrieval of a file from the archives is
a form of an application for condonation for failure to comply with the
Court Rules, timeframes and directives. Showing good cause
demands that the application be bona fide; that the applicant provide a
reasonable explanation which covers the entire period of the default;
and show that he/she has reasonable prospects of success in the
main application, and lastly, that it is in the interest of justice to grant
the order. It has to be noted that it is not a requirement that the
applicant must deal fully with the merits of the dispute to establish
reasonable prospects of success. It is sufficient to set out facts which,
if established would result in his/her success. In the end, the decision
to grant or refuse condonation is a discretion to be exercised by the
court hearing the application which must be judiciously exercised.’
[4] Whilst the Applicant can be critici sed for the delay in the administration of its
affairs in ensuring a timeous prosecution of the review application, the
explanation for the delay was not without merit. The delay was largely caused
by the court file itself being mislaid in the offices of the Registrar. The
Applicant was at liberty to make a duplicate file and proceed with the matter.
However, its failure to do so does not indicate an intention to abandon the
review application. It continuously attended at the offices of the Registrar until
review application. It continuously attended at the offices of the Registrar until
the file was eventually found and it could finalise the filing of the record. The
Applicant did so and took every step thereafter to ensure this matter was
properly enrolled. The Third Respondent equally forced the Applicant ’s hand
1 Practice Manual of the Labour Court of South Africa, effective 2 April 2013, repealed with effect from
July 2024.
2 [2017] ZALAC 10; (2017) 38 ILJ 1790 at para 17.
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to bring the reinstatement application by requesting that the file be deemed to
be archived. The Third Respondent later contended that the file was not
archived for the sole reason that it had now been set down, which
axiomatically meant that it is not archived and the reinstatement application is
now academic. This is wholly incorrect on the Third Respondents’ part. The
Registrar's directive in this case was instructive:
‘1. Reference is made to the Third Respondent’s Attorneys of Record’s
Notice to Archive in terms of Rule 69(2)(a) of the Rules of Court,
which was delivered on 20 February 2025.
2. The Applicant’s attorneys of record have since responded to that
Notice on 25 February 2025 and objected to the archiving of the
matter on account of the last process having been filed on 1
November 2023 and subsequent enquiries with the Office of the
Registrar about allocation of a date.
3. To the extent that the Third Respondent persists with its contention
that the matter ought to be archived under the provisions of Rule
69(2)(a), these are issues that can be raised on the hearing date as
shall be allocated by the Registrar in due course.
4. Accordingly, the Registrar is directed to enrol the matter on the
opposed motion roll.
5. I trust that the above is in order.’(Own emphasis)
[5] I advised the parties at the start of the proceedings that I was inclined to grant
the reinstatement application on the papers before the Court. However,
should the Third Respondent require time to file opposing papers and the
matter be fully ventilated, it would only result in a further delay of the matter in
terms of which the parties have awaited an outcome for almost five (5) years.
The Third Respondent's Counsel Adv. Mbhalati took instructions and
confirmed that it did not seek an adjournment to oppose the reinstatement
application and will not oppose the application.
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[6] On the basis of the above I have fully considered the pleaded case in the
reinstatement application and grant the application with no order as to costs. I
now turn to deal with the review application (Part B).
The review application
[7] The dispute arose from the extended precautionary suspension of the Third
Respondent, who was employed as Chief Financial Officer by the Department
of Health: North West. The Third Respondent was placed on precautionary
suspension on the 8th of May 2020. The suspension was not followed by the
convening of a disciplinary hearing within the 60 days, as prescribed by the
employer’s SMS Handbook . Instead, the Applicant remained suspended
beyond the expiry of the 60- day period, was not reinstated, and was not
afforded a disciplinary hearing within the stipulated timeframe. The Third
Respondents’ suspension was not extended by the chairperson of the
disciplinary hearing. It was extended by way of a letter (from an internal
administrator) which stated as follows:
‘SUBJECT: EXTENSION OF PRECAUTIONARY SUSPENSION FROM
EMPLOYMENT IN TERMS OF CHAPTER SEVEN (7) OF THE 2003
SENIOR MANAGEMENT SERVICES HANDBOOK
1. The above matter refers.
2. Kindly take notice that as the Administrator for NW Department
Health, I have received update on the investigations of allegations
brought against you. The investigations against you are still underway.
3. I therefore came to the conclusion that it is fair and reasonable to
extend your precautionary suspension until further notice, under same
conditions stated in the notice of the precautionary suspension.
4. Should you have any queries regarding your suspension you may
contact Adv. Monchusi on 0[…] / (0[…] , alternatively me, Ms J Hunter
at 0[…] .
____________________
MS. J HUNTER
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ADMINISTRATOR
NORTH WEST DEPARTMENT OF HEALTH’ (Own emphasis)
[8] The Third Respondent referred an unfair labour practice dispute relating to
suspension to the Bargaining Council, contending that the continuation of her
suspension beyond 60 days was both procedurally and substantively unfair.
[9] The Applicant did not lead oral evidence. The factual version presented by the
Third Respondent was therefore largely uncontested. The Applicant relied
solely on its jurisdictional point. In determining the jurisdictional point , the
Second Respondents’ award states as follows:
‘Ruling relating to the re-opening of the Applicant’s case and the Council’s
jurisdiction on the dispute.
5. Although the first issue before me was the point of law that was raised by
the Respondent, I logically could only deal with after both parties had
concluded their evidence in that regard. The Applicant had during cross
examination on 2 November 2020 initially indicated as the record will
show that she intended to call, her disciplinary hearing Attorney. The
basis for calling the Attorney was simply to demonstrate that she did not
mandate him to agree to the extension of her suspension when he
attended her disciplinary hearing in her absence on 8 September 2020.
When the sitting of 2 November adjourned, after advice from her unfair
labour practice Attorney, she decided against the calling of the said
witness Attorney.
6. What remained was for the parties to call any other witnesses on the
same subject before the arbitrator could make a ruling on the mootness or
not of the dispute, which if favoured the Respondent would have ended
the matter as Council would not have had jurisdiction to arbitrate the
dispute. Whilst if the point in limine was dismissed, Council would assume
jurisdiction and arbitrate the dispute referred by the Applicant.
7. On 2 November 2020, Ms. Bertha Hampu Maleka testified under oaths
briefly that she was issued with a precautionary suspension Notice on 8
briefly that she was issued with a precautionary suspension Notice on 8
May 2020. She stated that she reported for duty on 9 July 2020 after her
60 days suspension period had in terms of the SMS Handbook expired on
7
8 July 2020. She was returned by the Respondent’s Administrator
informing her that her suspension was only expiring on the date she
reported and not on 9 July 2020 as she believed it had. The Administrator
told her not to report further for duty until further notice. The Applicant
immediately referred an unfair labour practice dispute to the Council for
conciliation on 9 July 2020. The conciliation meeting was held on 29
September 2020, after which a certificate indicating that the dispute
remained unresolv ed was issued. The respondent was represented
during the conciliation meeting on 29 September 2020.
8. The point of law raised on 2 November 2020 was not raised at the time,
challenging the Council’s jurisdiction based on the submission by the
Respondent that the Applicant had waived her right by agreeing through
her Attorney to the extension of her suspension earlier on 8 September
2020 during a disciplinary hearing. The Applicant indicated that the limited
mandate she gave her disciplinary hearing Attorney was to the effect that
he must seek the postponement of the hearing on the basis that she was
sick. She denied during cross -examination that her Attorney phoned her
on the day to obtain her mandate regarding the Respondent’s request to
have her consent to the extension of her suspension.
9. In her substantive application to seek to have her case re-opened in order
to call the Attorney as a witness after she herself had testified about the
sequence of events since after her suspension, I could not find her
opposed application how she refusal to have her re-open the matter
would prejudice her case. The Applicant was the dominus litis in the unfair
labour practice dispute. I found that since she was informed not to return
for duty by her employer, she immediately lodged a dispute in that regard.
Beyond the disciplinary sitting of 8 September 2020, she was issued with
a certificate of non-resolution of her live dispute, which the Respondent
a certificate of non-resolution of her live dispute, which the Respondent
did not argue its mootness and therefore the lack of jurisdiction by Council
to even conciliate it.
10. The Labour Relations Act, under Section 191 provides for a procedure
and timeframes within which the Applicant should follow after a certificate
had been issued. It is common cause that the Applicant referred the same
dispute which the Respondent submitted she waived her rights on in
October 2020. Her conduct on this point glaringly corroborates her
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averment that she had never mandated her disciplinary hearing Attorney
to agree to the extension of her suspension beyond the 60 days which
already expired on 8 July 2020. I did not find it being the Applicant’s duty
in refuting the alleged waiver agreement by calling her Attorney.
11. Since the agreement was raised by the Respondent and it was the
Respondent’s case and not the Applicant’s that they were relying on the
disputed agreement, they were (Respondent) the ones who should have
called the Attorney to corroborate their case on the point of law they
raised. The Applicant on 2 November 2020 attended the arbitration
because she regarded her dispute as still being live and had at no stage
withdrew it from the Council’s roll. I find no logic that the Applicant would
attend a conciliation meeting on 29 September 2020, almost three weeks
after she had allegedly waived her right to her original dispute, then again
when the matter is not resolved and the Respondent do not raise during
conciliation, that it could suddenly be said she had waived her right.
Anyway, even if it were to be proved that she had previously withdrawn
her dispute, there is nothing in the Rules of Council suggesting that she
could not have the dispute reinstated. There is nothing in the Rules
suggesting that a withdrawn dispute renders the matter res judicata.
However, it should be understood that the passages above to not suggest
that the Applicant had at some stage withdrew her dispute.
12. I conclude therefore that the Applicant by her own conduct since referring
the dispute to the Council never took any action which would have
created an impression to Council that she had withdrawn her dispute.
Council proceeded to set the matter down because there was nothing in
its records that the dispute was no longer live. I ruled therefore that the
application for the re-opening of her case was refused.’
[10] The Second Respondent relied on Section 186(2)(b) of the Labour Relations
[10] The Second Respondent relied on Section 186(2)(b) of the Labour Relations
Act3 (LRA), which defines unfair labour practices, including unfair suspension
as well as section 193 and 194 of the LRA, governing remedies and
compensation. She also cited t he SMS Handbook, which limits precautionary
suspension to 60 days. Permits an extension only if:
3 Act 66 of 1995, as amended.
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10.1. A disciplinary hearing is convened within 60 days; and
10.2. The hearing is postponed and suspension extended by the
Chairperson for valid reasons.
[11] The Second Respondent found that the Applicant had no authority to keep the
Third Respondent suspended beyond 60 days without compliance with the
SMS Handbook. The continued suspension was ultra vires the employer’s
powers. The Applicant ’s conduct constituted an unfair labour practice, as it
unjustifiably deprived the Third Respondent of her right to resume duties.
[12] The Second Respondent further found that the Applicant failed to follow its
own prescribed procedure. No disciplinary hearing was convened within the
60-day period. No lawful decision was taken by a Chairperson to extend the
suspension. The extension of the suspension was therefore procedurally
unfair.
[13] The Second Respondent rejected any reliance on internal correspondence
(the letter extending the suspension) or alleged agreements (an agreement
with the Third Respondent's attorney), holding that nothing in the SMS
Handbook permitted an automatic or informal extension of suspension beyond
60 days.
[14] It does appear from the transcript of the disciplinary proceedings that the
Third Respondent’s attorney did agree to extend her suspension pending the
outcome of the disciplinary proceedings. However, such an agreement is void
ab initio on the basis that the erstwhile attorney’s consent (whose authority to
do so is disputed by the Third Respondent ) cannot make lawful what would
otherwise be unlawful.
[15] For the Applicant to rely on the Third Respondent consciously abandoning her
constitutional right to refer an unfair labour practice dispute, it needed to
demonstrate that her attorney could legally agree to the extension and that
she expressed in unequivocal terms that such agreement was an
abandonment of her rights to challenge the fairness of the ongoing
suspension. The Applicant failed in this regard.
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[16] The review (Part B) is essentially a review of a jurisdictional point . The
applicable test to determine this issue of jurisdiction is not the reasonableness
test, but the correctness test4.
[17] In Lekaabe v Minister Department of Justice and Constitutional
Development5, Molahleli J held as follows:
‘16. Turning to the specific issue in the present instance, in my view it
could never have been the intention of the parties that clause 2.7(2)(c)
of the SMS Handbook should take away the right of an employer to
discipline an employee on the expiry of the 60 (sixty) days from the
date of suspension. In essence the case of the Applicant in the
present instance is that the right of the Respondent to proceed with
the disciplinary hearing prescribed on the on the expiry of the 60
(sixty) days from the date of his suspension.
17. In my view clause 2.7(2)(c) deals with suspension and not the
disciplinary action. There is nothing in this clause that says an
employer would lose the right to discipline an employee on the expiry
of the 60 (sixty) days from the date of the suspension. I have not been
able to find even a basis for implying the interpretation sought by the
Applicant or the one given by the Court in Lavejoy Malambo. At best,
as I see it, the suspension falls away after the 60 (sixty) days unless
the chairperson of the disciplinary hearing extends that period.
18. The purpose of clause 2.7(2)(c), as I see it, is to address the problem
of protracted suspensions which demoralizes and unfairly prejudice
the suspended employee. It would appear that the mischief which the
parties sought to address with the provisions of clause 7.2 was to deal
with what Andre Van Niekerk J in Mosweu Paul Magotlhe v The
Member of the Executive Council for Agriculture Conservation and the
Environmental and Another soon to be reported case number
J2622/08, regarded as the tendency by certain employers to:
4 SA Rugby Players Association & others v SA Rugby (Pty) Ltd & Others (2008) 29 ILJ 2218 (LAC);
[2008] ZALAC 3.
5 [2009] ZALC 18; (2009) 30 ILJ 2444 (LC).
11
“…regard suspicion as a legitimate measure of first resort to
the most groundless suspicion of misconduct, or worst still, to
view suspicion as a convenient mechanism to marginalise an
employee who has fallen from the favour.”
19. Thus the right of the employee in the event that the employer does not
uplift the suspension on the expiry of the 60 (sixty) days is to file an
unfair labour practice claim or bring an application to have an order
directing the employer to uplift the suspension. I need to emphasize
that in my view it could never have been the intention of parties that
the right to discipline by an employer would fall away on the expiring
of the 60 (sixty) days.
20. The Court in Magotlhe’s case quoted with approval what this Court
had said in SAPO Ltd v Jansen van Vuuren [2008] ZALC 33; [2008] 8
BLLR 798 (LC). The Court in that case was dealing with the abuse of
power by the employers through the use of suspensions. As stated
earlier the real intention of the parties in promulgating clause 2.7(2)(c)
of the SMS Handbook was to address this abuse. The intention was to
curb the power of employers in the public service from using
protracted suspension as a means of marginalising those employees
who may have fallen out of favour. The intention of the parties was
also to minimise if not do away with the resultant detrimental impact,
the prejudice on the affected employees, reputation, advancement, job
security and fulfilment that would arise from the prolonged
suspension. See in this regard SAPO (supra) (at paragraph 37).
21. In the circumstance the Applicant’s application stands to be dismissed
in as far as interdicting the disciplinary hearing. The sixty days having
expired and the employer having not taken any further steps in the
initiation of the disciplinary hearing, I see no reason why the
Respondent should not be ordered to uplift the suspension and allow
the Applicant to resume his duties. The Respondent should by now
the Applicant to resume his duties. The Respondent should by now
have completed its investigations and therefore I do not see on what
basis the suspension should be prolonged further.’
[18] The Applicant also elected to stand or fall by this point before the Second
Respondent. The Second Respondents findings cannot be faulted in this
12
regard. There was no evidence before her that the attorney of record could
agree to extend a lapsed suspension.
[19] Against the aforementioned jurisprudence of this Court the Second
Respondent’s award cannot be set aside in respect of her findings regarding
the ongoing suspension after the 60 day period had lapsed.
[20] This then leaves the issue of the amount of compensation awarded. In
determining whether to review an award of compensation the Court is
required to determine whether the arbitrator reached a decision that a
reasonable decision maker would reach in considering what was just and
equitable in all the circumstances
6. On the prevailing jurisprudence the
determination of a quantum of compensation involves the exercise of a
discretion in the strict sense
7. Decisions based on the exercise of discretions
of this sort stand to be reviewed on the Sidumo8 test.
[21] The Second Respondents reasoning for the award of compensation can be
gleaned from the following paragraphs of her award:
‘30. Firstly, the Applicant sought to have her suspension lifted and sought
compensation. Having found that her continued suspension was
unfair, I have no doubt that her required remedy of ordering the lifting
of the suspension and reinstating her was justified.
31. If compensation is awarded Section 194(4) requires that it be just and
equitable in all the circumstances but must not exceed twelve months
remuneration. The Applicant sought 12 months compensation.
32. There is no medical evidence presented to me showing a casual
nexus between the protracted suspension and her personal
psychological condition and therefore cannot use that submission as a
consideration for compensation. However, the Applicant had
demonstrated that there was no reason for the Administrator to
disregard the employment prescripts governing her suspension.
6 S 194(4) of the LRA.
7 Dr Dc Kemp t/a Centralmed v Rawlins [2009] 11 BLLR 1027 (LAC); [2009] ZALAC 8 at para 55.
7 Dr Dc Kemp t/a Centralmed v Rawlins [2009] 11 BLLR 1027 (LAC); [2009] ZALAC 8 at para 55.
8 Sidumo & another v Rustenberg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC); [2007]
ZACC 22 at para 110.
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Clearly her extended period of suspension was accompanied by
malice as it is evident from the letter the Administrator wrote her when
she challenged the extended suspension. The Administrator’s conduct
clearly violated her employment rights and her dignity as a senior
manager. What was supposed to have been a precautionary
suspension until 8 July 2020 lost its meaning when there was no
hearing within the sixty days.
33. The Notice of suspension provided that the precautionary suspension
was not a judgement but simply precautionary. But when the Applicant
drew the Administrator’s attention to the fact that the refusal to lift it
and have her reinstated was unfair, it then became judgemental and
punitive against her. That is when the Administrator became personal
than relying on the legal prescripts. The conduct of the Administrator
when one reads the tone of the response letter, I find that it was very
malicious. I have not yet found precedent where as arbitrator I could
order personal costs. I am aware that the labour court and high courts
had previously made such orders against officials who behave the
way the Administrator behaved in this matter. Whilst it is true that the
prolonged suspension did not affect her remuneration, the same
cannot be said about the unnecessary delay in lifting the suspension
and easing her life. It is for the latter reason that I concur with the
Applicant that compensation under the circumstances be awarded.
34. I consider as just and equitable taking into account the total disregard
of the employment prescripts and contemptuous conduct of the
Respondent through its Administrator’s letter in the bundles that there
was no legal justification to refuse the Applicant reinstatement other
than concluding that the intention was to injure her dignity. Her dignity,
injury to her persona, emotions and employment rights commenced
on 9 July 2020 when she was unjustifiably refused to resume her work
on 9 July 2020 when she was unjustifiably refused to resume her work
and it continued despit e her displeasure until date of the arbitration
award on 25 January 2021. This makes that period six months of
continued unjustified injury. I concur with all the case laws cited by her
representative in this regard. I ordinarily would have awarded her six
months compensation given the period of deliberate pain and suffering
the Respondent inflicted on her. But so far despite the fact that the
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empowering Act, (LRA) allows me the discretion to determine the
matter in any manner befitting and also allows me to award to a
maximum of 12 months if I find it to be just and equitable. I was
mindful of the fact that the Labour Appeal Court so far ordered a
solatium of up to three months compensation. Since we are called
upon to follow the principle of stare decisis, I will limit the amount of
compensation to the current jurisprudence created by a higher court in
regard to the compensation. I also took into account the fact that the
Applicant received her full salary during the extended unjustified
period of suspension. I order compensation equivalent three months
of the Applicant’s salary.’
[22] The Applicant raises its challenge to this in its founding affidavit under the fifth
and sixth grounds of review as follows:
‘FIFTH GROUND OF REVIEW
47. The objective evidence demonstrates that the Third Respondent
sought compensation for unfair suspension, based on the
psychological effect that ensued as a result of unfair suspension. The
Third Respondent did not rely on medical reports in substantiation of
her claim. A perusal of the record of the proceedings would
demonstrate that the Third Respondent was an unreliable litigant who
materially contradicted herself and adjusted her case as cross -
examination proceeded, to bolster her case or when the shoe pinched.
48. Of critical importance is the fact that the Third Respondent could not
establish whether what she alleged to be undergoing, was as a result
of the Covid -19 pandemic, her unfair suspension and/or the fact that
she was facing a disciplinary hearing.
49. In view of the aforesaid, the Second Respondent should not have
made a finding that the Third Respondent was entitled to
compensation.
50. It is clear from the Award that the Second Respondent made out a
case for the Third Respondent in that the Second Respondent did not
take into account the whole content of the letter wherein it is clearly
take into account the whole content of the letter wherein it is clearly
indicated that the further suspension of the Third Respondent was
15
necessitated by the fact that the investigation had not been concluded,
and the interest of the Applicant. A copy of the relevant letter is
attached hereto, marked as annexure “F”.
51. In the premises, on this aspect alone, the Award ought to be reviewed
and set aside.
SIXTH GROUND OF REVIEW
52. The Second Respondent ruled that the payment equivalent to three
months’ salary must be paid to the Third Respondent by no later than
16 February 2021, failing which the applicable interest rate shall
accrue.
53. I am advised that the Second Respondent misdirected himself in
awarding the Third Respondent compensation equivalent to three
months which the total value is R343 450.71 (three hundred and forty-
three thousand four hundred and forty -three and seventy -one cents),
less statutory deductions.
54. The compensation ordered to be paid to the Third Respondent by the
Second Respondent constitutes double payment, is unlawful and
irrational.
55. The irrationality of the Second Respondent’s award is apparent at
paragraph 32 where he says the following:
“32. There is no medical evidence presented to me showing
a casual nexus between the protracted suspension and
her personal psychological condition and therefore
cannot use that submission as a consideration for
compensation…”
56. In clear terms, there is no rational nexus between the paragraph 32
and paragraph 42 of the award. The two paragraphs are irreconcilable
and cannot stand the rationality test. Without doubt, paragraph 32 of
the award states that there is absence of medical evidence to justify
compensation. That being clearly stated, it was irrational of the
16
Second Respondent to order compensation in the absence of medical
evidence.
57. In addition, there is no rational basis set out by the Second
Respondent why the purported compensation should be paid by no
later than 16 February 2021, in circumstances where the Third
Respondent was not financially prejudiced during her suspension as
she was duly paid her salary in full. For ease of reference I annex
hereto marked “A” a copy of the award sought to be interdicted and
stayed pending the review application.
58. In the premises, the grounds cited above justify the granting of the
interim interdict pending the review application.’
[23] The fifth ground of review does not take into consideration the Second
Respondents findings quoted above where she particularly took issue with the
level of ‘self-help’ the Applicants representatives resorted to by extending the
suspension of their own accord. It equally had serious consequences for the
Third Respondent who was a senior manager and her ongoing suspension
and exclusion from the workplace causes significant damage to her reputation
and standing within the workplace. This must be considered ag ainst the fact
that the Applicant was well aware that it needed to bring an application to
extend the Third Respondents’ suspension as it did in September 2020
(almost two months later). This begs the question, why would the Applicant
not simply extend the suspension again through the administrator if it believed
that it was legally entitled to do so? The Second Respondent seems to have
correctly deduced that this was draconian conduct on the part of the
Applicant, which had a material effect on the Third R espondent and she was
entitled to solatium in all the circumstances.
[24] The sixth ground of review, that this constitutes a double- payment, is absurd.
The amount awarded to the Third Respondent was not contractual or
retrospective pay, it was solatium for her being subjected to an unfair labour
practice. This is precisely what S 194(4) permits.
practice. This is precisely what S 194(4) permits.
Costs
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[25] Both parties sought costs in the event that the relief sought was obtained,
including the costs of Counsel. I have considered the provisions of S 162 of
the LRA and in particular the conduct of the Applicant in this matter. This
review application lacked merit from the outset and should not have been
pursued based on the well- established jurisprudence that dated back, at the
time, in excess of ten years. The Applicant could not reasonably have
believed that the Third Respondents attorneys utterances could l egitimize an
unlawful extension of her suspension past the sixty (60) day period. The Third
Respondent is entitled to her costs in these proceedings in respect of Part A
and B.
[26] I accordingly make an order as follows:
Order
1. The reinstatement of the review application is granted with no order as
to costs.
2. The Applicant is ordered to pay the Third Respondents’ costs in
respect of Part A of this application on a party and party scale C,
together with the costs of Counsel.
3. The review application, Part B, is dismissed with costs on a party and
party scale C, together with the costs of Counsel.
K. R. Munsamy
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Adv. T F Mathibedi SC
Instructed by: Lucky Thekisho Inc. Attorneys
For the Respondent: Adv. S Mbhalati
Instructed by: Moima Attorneys Inc.