Reportable:
Circulate to Judges:
Circulate to Magistrates:
Circulate to Re ional Magistrates:
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION MAHIKENG
In the matter between:
DIWEDITSWE MASID
APPLICANT
ITUMELENG GODFREY MEKOA
APPLICANT
MONAMODI ABRAM SENWEDI
APPLICANT
ADV KABO PULENYANE
APPLICANT
And
NGAKA MODIRI MOLEMA
DISTRICT MUNICIPALITY
DR AUCHALI MOTHUPI
(ACTING MUNICIPAL MANAGER)
RESPONDENT
MEC: NORTH WEST DEPARTMENT OF
COOPERATIVE GOVERNANCE AND
TRADITIONAL AFFAIRS
RESPONDENT
Coram: Makolomak:we AJ
1
CASE NO: 2026-051559
FIRST
SECOND
THIRD
FOURTH
FIRST RESPONDENT
SECOND
THIRD
NO
NO
NO
NO
Date of hearing: 6 March 2026
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives via email. The date and time for hand-down is deemed
to be 16h00 on 30 March 2026.
ORDER
The following order is made:
1.1 The application is urgent, and the rules relating to forms, service and time
periods, as prescribed by the Uniform Rules of Court, are dispensed with.
1.2 The applicants' suspensions issued by the second respondent on 27 February
2026 are declared invalid, unlawful, and null void, and are accordingly set
aside.
1.3 The first and second respondents are ordered to allow the applicants to
resume their duties with immediate effect.
1.4 The first and second respondents are ordered to pay the costs of the
application, jointly and severally, the one paying the other to be absolved, on a
party and party basis on scale B.
JUDGMENT
MAKOLOMAKWEAJ
Introduction
2
[I] The applicants are seeking an order declaring unlawful and setting aside
the precautionary suspensions from the Municipality'' and directing that they be
permitted to resume their duties pending completion of an investigation. The
respondents oppose the application.
Background
[2] The applicants are employed by the first respondent in the following
capacities: first applicant, as its manager: Security Services; the second
applicant, as its manager: Labour Relations; the third applicant, as its manager:
Water Services Provision; The fourth applicant, as its Acting Senior Manager:
Corporate Support Services.
[3] The first respondent is a district municipality (Municipality), and legal
entity with full legal capacity, with reference to what is stated in section 2 of the
Systems Act, read with Chapter 7 of the Constitution of the Republic of South
Africa 108 of 1996 (Constitution). The second respondent is the member of the
Executive Council of the North West Provincial, Acting Municipal Manager of
the Municipality. The third respondent is the MEC (MEC), appointed in terms
of Section 132(2) of the Constitution.
[4] On 24 February 2026, the Municipality issued notices of intention to
place the applicants on suspension. The Notices called upon the applicants to
make written representations as to why they should not be subjected to a
suspension 'within 48 hours'.
[5] On 26 February 2026 the respondents submitted written representations.
On the same day, the second respondent acknowledged receipt of their
representations. On Friday 27 February 2026, the applicants were served with
3
notices issued by the second respondent, which confirmed their suspensions
with immediate effect.
Points in limine
[ 6] The respondents raised the following points in limine in the answering
affidavit: urgency and jurisdiction.
[7] During the hearing of the application, having familiarized myself with the
papers and having heard both counsels on the points raised by the respondents, I
found that the application was urgent, and that the rules relating to forms,
service and time periods, as prescribed by the Uniform Rules of Court, be
dispensed with.
Pertaining urgency
[8] Rule 6 ( 12)' enables the court to dispense with the normal rules relating to
forms and service as provided for in the rules and dispose of the matter at such
time and place and in such manner and in accordance with procedure (which
shall as far as practicable be in terms of the rules) as it deems fit. It is trite law
that each urgent application must be determined on its own facts and merits. An
applicant seeking to be heard on an urgent basis must set forth explicitly the
circumstances which he avers renders the matter urgent and the reasons why he
claims that he could not be afforded substantial redress at a hearing in due
course.
[9] In Mogothle v Premier of the North West Province it was stated that a
suspension is equivalent to an 'arrest' and that when it is applied without proper
1 Rule 6 (12) of the Uniform Rules of Court.
1 (2009) 30 ILJ 605(LC).
4
justification or in a punitive manner (before hearing), the court will urgently
intervene.
[10] InMbude v Premier of the North West Province,3 the High Court heard an
urgent application to declare a suspension unconstitutional and invalid,
acknowledged that public officials' misuse of power to suspend warrants
immediate review.
[11] It was argued on behalf of the respondents that the applicants have failed
to demonstrate the urgency required to justify immediate judicial intervention
and that the application be dismissed. It was contended on behalf of the
applicants that their suspensions were imposed without proper consideration of
their representations. Further, that the suspensions caused them sufficient
prejudice to justify urgent judicial intervention.
[12] According to the founding affidavit, the second respondent failed to
comply with the provisions of clause 16 of the Collective Agreements, which
regulates precautionary suspension pending a disciplinary hearing. It was
contended on behalf of the applicants that their notices of intention to suspend
did not comply with clause 16.1 of the Disciplinary Procedure Collective
Agreement (Collective Agreements). Further, that the failure to provide them
with a required notice of intention to suspend them violated their contractual
rights as it infringed on their right to make representations. Further, that their
suspension is null and void as it infringed their employment of contract and/or
collective agreements.
[13] It is clear from the above authorities that this Court is entitled to urgently
intervene where the validity of the suspension is being challenged. In the
, (218/2022) (2022] ZAECBHC 3.
5
present matter the applicants are challenging the validity of their suspensions
and the application was issued within a reasonable time after been served with
suspension notices. I found that the matter was urgent.
Jurisdiction
[ 14] It was argued on behalf of the respondent that this Court does not have
jurisdiction. It was contended on behalf of the applicants that this Court has dual
jurisdiction with the Labour Court.
[15] In Baloyi v Public Protector and Others,4 the Constitutional Court stated
instances under which both the High Court and the Labour Court enjoy
concurrent jurisdiction and stated the following in paragraph [27] and [28]:
'[27] ... both the LRA and the Employment Act expressly recognizes that there are
certain matters in respect of which the Labour Court and the High Court enjoy concurrent
jurisdiction. Further that section 157(2) of the LRA provides, in relevant parts:
"The Labour Court has concurrent jurisdiction with the High Court in respect of any
alleged or threatened violation of any fundamental right entrenched in Chapter 2 of
the Constitution of the Republic of South Africa, 1996, and arising from-
(a) employment and from labour relations;
(b)
(c) ,,
[28] Section 77(3) of the Employment Act provides, similarly, that the Labour Court "has
concurrent jurisdiction with the civil courts to hear and determine any matter concerning a
contract of employment, irrespective of whether any basic condition of employment
constitutes a term of that contract. That disputes arising from contracts of employment do not,
without more, fall within the exclusive jurisdiction of the Labour Court is further made clear
by section 77(4) of the Employment Act, which emphasises that the exclusive jurisdiction of
the Labour Court referred to in section 77(1) "does not prevent any person relying upon a
• [2022 (3) SA 321 (CC) (4 December 2020).
6
provision of [the Employment Act] to establish that a basic condition of employment
constitutes a term of a contract of employment in any proceedings in a civil court or an
arbitration held in terms of an agreement."
[16] Having regard to the averments of the breach of the applicant's
contractual rights in the founding affidavit and the reliance on the ground of
breach of contract, as well as paragraphs [27] and [28] of the Baloyi judgment,
in which it was is stated that both the LRA and the Employment Act expressly
recognizes that there are certain matters in respect of which the Labour Court
and the High Court enjoy concurrent jurisdiction, I find that this Court has
jurisdiction to hear the matter.
Analysis
[ 17] The following avennents in the founding affidavit remain unchallenged:
17 .1 First applicant's contract of employment, issued by the then Acting
Municipal Manager, Mr Mokhele Mojaki, dated 1 August 2011,
17 .2 Second Applicant's contract of employment, issued by the then Acting
Municipal Manager, Ms Lesupi, dated 17 April 2017.
I 7.3 Third Applicant's contract of employment, issued by the then Acting
Municipal Manager, Mr Mokhele Mojaki, dated 1 July 2014.
17.4 Fourth Applicant's contract of employment, is employed by the
Municipality as its Manager: Legal Services, and at the time of his suspension,
Acting Senior Manager: Corporate Support Services, appointed as such in terms
of Section 56(1)(a)(iij of the Systems Act.
17.5 First Applicant's contract of employment with the 'Municipality' is
regulated by the employment conditions, policies and regulations applicable to
local government sector.
7
17.6 Second to Fourth applicants' employment with the 'Municipality' is
subjected to the applicable Collective Agreement concluded under the
SALGBC, but in particular the Disciplinary Procedure Collective Agreement.
17. 7 The notices of intention to suspend the applicants.
17 .8 The precautionary suspension notices attached to the application were
served on the applicants.
(18] It was contended on behalf of the applicants that their Notices of intention
to suspend do not state that the proposed suspensions will be 'pending an
investigation'. Further, that the Municipality 'has reasonable cause to believe'
that their continued presence at the workplace may give rise to one of the
scenarios listed in Clause 16.1.1 to 16.1.3 of the Collective Agreement.
[ 19] It was argued on behalf of the respondents that the notices in the present
matter adequately identified the concerns giving rise to the contemplated
suspension and afforded the applicants an opportunity to answer those concerns.
Clause 16 was therefore complied. with. In the alternative, that there is
substantial compliance.
Applicable Law
[20] Clause 16.1 and 16.2 of the Disciplinary Procedure Collective
Agreements read as follows.
' 16. Pre-cautionary suspension pending a disciplinary hearing
16.1 An Employer may suspend the Employee or utilise him temporarily in another capacity
pending an investigation into alleged Misconduct if the Municipal Manager or his authorised
representative has reasonable cause to believe that the Employee at the workplace may-
16.1.1 jeopardise any investigation into the alleged misconduct;
16.1.2 interfere with potential witnesses; or
8
16.1.3 commit further acts of misconduct
16.2 if the Municipal Manager, or his authorised representative, intends to suspend an
Employee, he shall give written notice of such intention and afford the Employee 48 hours to
make representations as to why he should not be suspended. The Municipal Manager or his
authorised representative shall make a determination, within five (5) days as to whether the
Employee concerned shall be suspended or not, after having considered the representations.'
[21] In National Bargaining Council for the Road Freight and Logistics
Industry (NBCRFLI) v Block N.O,5 it was stated that it is sufficient if there is
substantial compliance with Clause 16.
Issues in dispute
[22) The dispute between the parties is whether or not the Municipality
complied with Clause 16 of the 'Collective Agreement', in the notices of
intention to suspend the applicants.
Issues for Determination
[23] The issues for determination 1s whether the notices of intention to
suspend the applicants complied with the provisions of Clause 16 of the
Collective Agreements.
Analysis
[24] I will proceed to scrutinize the notices of intention to suspend. According
to paragraph 8 of the notice of intention to suspend first applicant. The
Municipality received several complaints and those incidents indicated that on a
prima facie basis, the first applicant may have acted in a manner unbecoming of
an employee of his position and therefore has committed acts of misconduct.
The first applicant neglected his duties and acted in a manner in which the
credibility, integrity and proper administration of the municipality were
' [D236/2020) [2023] ZALCD.
9
compromised and/or brought into disrepute. His conduct was confirmed by the
preliminary investigation report dated 12 February 2026 of Modiboa Attorneys
Inc.
[25] As stated above, Clause 16.1 empowers the Municipality to suspend an
employee pending an investigation into alleged misconduct, if the Municipal
Manager or his authorised representative 'has reasonable cause to believe' that
the presence of the employee at the work place may jeopardise any investigation
into the alleged misconduct; interfere with potential witnesses; or commit
further acts of misconduct.
[26] According to paragraph 8, several complainants received by the
Municipality indicated, on the prima facie basis, that the first applicant may
have acted in a manner unbecoming of an employee of his position and that be
has committed acts of misconduct. Further, that he neglected his duties and
acted in a manner that compromised the credibility, integrity and proper
administration of the Municipality and/or brought it into disrepute. It is further
stated that his conduct was confirmed by the preliminary investigation report
dated 12 February 2026 ofModiboa Attorneys Inc.
[27] There is mention of the preliminary investigation confirming the
complaints that were received by the Municipality. However, no mention is
made that the second respondent or his authorised representative 'has
reasonable cause to believe' that the first applicant's presence at the work place
may jeopardise any investigation into his alleged misconduct; interfere with
potential witnesses; or commit further acts of misconduct. I find that there is no
substantial compliance with Clause 16.3.
10
[28] It is alleged that the second applicant failed to implement the
recommendations of the auditor-general which identified certain material
irregularities and brought it to the attention of the Municipal Manager. The
above failures indicate on the prima facie basis he may have acted in a manner
unbecoming of an employee of his position and therefore has committed acts of
misconduct. He has neglected his duties and acted in a manner in which the
credibility, integrity and proper administration of the Municipality were
compromised and/or brought into disrepute. His conduct was confirmed by the
preliminary investigation report dated 12 February 2026 of Modiboa Attorneys
Inc.
[29] No mention is made that the second respondent has reasonable cause to
believe that the presence of the second respondent at the work place may
jeopardise any investigation into the alleged misconduct; interfere with potential
witnesses; or commit further acts of misconduct. There no compliance with the
requirements of Cl~use 16.1.
[30] The Municipality received several complaints which indicate on the
prima facie basis that the third applicant may have acted in a manner
unbecoming of an employee of his position and therefore has committed acts of
misconduct. Further, that he has neglected his duties and acted in a manner that
compromised the credibility, integrity and proper administration of the
municipality and/or brought into disrepute.
[31] It is stated that given the position occupied by the third applicant, it is the
view of the Municipality that his continued presence at the work place might
hamper the investigation. In my view, there is compliance with Clause 16.l as
mention is made that the presence of the third applicant may hamper which is
not a perfect drafting as the clause states 'jeopardise'.
11
[32] I find that there is no substantial compliance as the municipality had a
view instead of a 'reasonable believe' required in Clause 16.1 and no mention is
made that in addition to hampering the investigations to be carried out, the third
applicant will either interfere with potential witnesses or commit further acts of
misconduct.
[33] There is reference to Clause 16.3 of the Collective Agreement. It is stated
that the fourth applicant failed to implement the recommendations of the
auditor-general who identified certain material irregularities which were
brought to the attention of the Municipal Manager. Further that those incidents
indicate that on the prima facie basis that he may have acted in a manner
unbecoming of an employee of his position and therefore has committed acts of
misconduct. He has neglected his duties and acted in a manner that the
credibility, integrity and proper administration of the Municipality were
compromised and/or brought into disrepute. This conduct was confirmed by the
preliminary investigation report dated 12 February 2026 of Modiboa Attorneys
Inc.
[34] No mention is made that the Municipality has reasonable believe that the
fourth respondent's presence at the work place may jeopardise any investigation
into the alleged misconduct; interfere with potential witnesses or commit further
acts of misconduct. I find that there is no substantial compliance.
[35] In DEMAWUSA and Others v City of Johannesburg.6 it was stated that
the employer must strictly adhere to the conditions laid down out in Clause 16.
6(11849/2019) [2019) ZALCJHB 368.
12
Further, that failure to do so renders the suspension unlawful and constitutes a
breach of the collective agreement.
[36] SAMWU obo Members v Ditsobotla Local Municipality & Others,1 is a
case which centered on allegations that the Municipality failed to comply with
Clause 16.1 of the Disciplinary Procedure Collective Agreement ( concluded
under the auspices of the bargaining council) regarding the suspension of
employees. That court recognized that failing to follow the agreed-upon
procedures for disciplinary action constitutes a breach of the contract of
employment, which can be challenged on the basis of legality.
[3 7] I agree with the submissions on behalf of the applicants that there is no
substantial compliance with Clause 16. In Lottering and Others v Stellenbosch
Municipality,8 the court established that a failure to adhere to contractual notice
periods or procedures is a breach of contract, allowing the innocent party to sue
for specific performance or damages.
[38] I find that the failure by the Municipality to comply with Clause 16
constitute breach of contract.
[39] It was argued on behalf of the applicants that they are prejudiced by their
suspensions as they were robbed of their opportunity to present a case as to why
their continued presence at the workplace would give rise to a scenario(s)
contemplated by Clause 16.1 of the Collective Agreement. The prejudice of the
applicants cannot be disputed. I found that the applicant had the right to
approach this Court for urgent intervention.
1 [2019] ZALCJHB/368.
1 [2010] ZALCCT 67.
13
[40] It was submitted on behalf of the respondent that if the court finds that the
notices of intention to suspend do not comply with the Collective Agreements,
the respondents be afforded the opportunity to remedy the shortcomings and the
suspensions be extended. The municipality was afforded the opportunity to
remedy the shortcomings in the representations that were made by the then legal
representative of the Third Applicant.
Conclusion
[ 41] Having regard to the aforementioned as well as the written submissions
of both legal representatives, I find the notices of intention to suspend of the
applicants to be unlawful, null and void and that they infringe the employment
contracts and/or collective agreements. Further, that the applicants will suffer
irreparable harm if the court does not intervene as stated in Mogothle v Premier
of the North West Province, supra. Having regard to the fact that in the
representations of the third applicant, the non-compliance was brought to the
attention of the respondents as well as what was stated in Mogothle v Premier of
the North West Province, supra, that the court must intervene. This Court will
not grant the extension but will intervene by granting the application.
Costs
[42] The general rule is that the successful party is entitled to costs. The
applicants are successful and are entitled to costs. The submissions on behalf of
the applicants are that the respondents be ordered to pay punitive costs, as they
were warned of the shortcomings in the notices of intention to suspend and the
representations that were made on behalf of the third applicant. I find that there
is no justification to grant a punitive cost order as the respondents were of the
view that the notices of intention to suspend substantially complied with the
14
provisions of Clause 16. I find the appropriate cost order to be costs on party
and party scale B.
Order
[ 43] Consequently I made the following order,
I. I The application is urgent, and the rules relating to forms, service and time
periods, as prescribed by the Uniform Rules of Court, are dispensed with.
1.2 The applicants' suspensions issued by the second respondent on 27 February
2026 are declared invalid, unlawful, and null void, and are accordingly set
aside.
1.3 The first and second respondents are ordered to allow the applicants to
resume their duties with immediate effect.
1.4 The first and second respondents are ordered to pay the costs of the
application, jointly and severally, the one paying the other to be absolved, on a
party and party basis on scale B.
ACTING JUDGE
NORTH WEST DIVISION, MAIDKENG
15
APPEARENCES
Date of Hearing
Judgment Handed down
For the Applicant
For the Respondent
18 March 2026
30 March 2026
Mr Scholtz
Adv Dewrance SC
16