THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: A2025-092122
In the matter between:
THEMBANI BANDA Appellant
and
GENERAL PUBLIC SERVICE SECTOR
BARGAINING COUNCIL First Respondent
COMMISSIONER MMELI DANISA N.O. Second Respondent
DEPARTMENT OF PLANNING, MONITORING
AND EVALUATION Third Respondent
Heard: 3 March 2026
Delivered: 15 April 2026
Coram: Nkutha-Nkontwana JA, Djaje et Collis AJA
(1) Reportable: NO
(2) Of interest to other Judges: Yes
___________ __________
Signature Date
2
JUDGMENT
NKUTHA-NKONTWANA JA
Introduction
[1] The appeal is with the leave of the C ourt a quo against the judgment and order
delivered on 1 August 2024. The Court a quo refused to interfere with the second
respondent’s (arbitrator) arbitration award dated 16 October 2022, which found
the appellant’s (Ms Banda) precautionary suspension to constitute an unfair
labour practice in terms of section 186 (2)(b) of the Labour Relations Act 1 (LRA)
but refused to award compensatory relief in terms of section 194 (4)2. In the
review application that served before the Court a quo, Ms Banda impugned the
arbitrator’s exercise of discretion in failing to award compensation,
notwithstanding a finding that the suspension was unfair and punitive in nature.
The third respondent (the Department) did not oppose the review application.
Background
[2] The facts in this matter are mostly common cause. Ms Ban da was employed by
the Department as the Chief of Staff (Chief Director) in the office of the Minister in
the Presidency with effect from 22 October 2021. On 24 February 2022, she was
placed on precautionary suspension pending an investigation into allegations of
serious misconduct against her. The suspension was effected in terms of clause
2.7(2)(a) of the Senior Management Service (SMS) Handbook, which provides:
"Precautionary suspension or transfer
(a) The employer may suspend or transfer a member on full pay if -
1 Act 66 of 1995, as amended.
2 Section 194(4) provides: “The compensation awarded to an employee in respect of an unfair labour
practice must be just and equitable in all the circumstances, but not more than the equivalent of 12
months remuneration.”
3
• the member is alleged to have committed a serious offence; and
• the employer believes that the presence of a member at the
workplace might jeopardise any investigation into the alleged
misconduct, or endanger the well being or safety of any person or
state property.
(b) A suspension or transfer of this kind is a precautionary measure that does
not constitute a judgment, and must be on full pay.
(c) 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." (Own emphasis)
[3] Much was made of the interpretation of 60 days in clause 2.7 (2)(c) despite the
evident guideline provided in the Public Service Precautionary Suspensions
Guide (Suspension Guide) promulgated by the Department of Public Service and
Administration (DPSA) that 60 days refer to calendar days. In fact, the
Department’s initial understanding was that, at the end of the 60 calendar days,
Ms Banda's suspension would lapse. Hence, on 22 April 2022, two days before
the lapse, the Department convened a disciplinary hearing to seek an extension
of the 60-day period.
[4] The chairperson of the disciplinary hearing rejected the parties’ computation of
the 60 day s in clause 2.7(2)(c) . She took the view that it referred to weekdays
rather than calendar days. Seemingly, her construction was derived from the
Public Service Act3 (PSA). As a result, she ruled that the application for extension
was premature as the 60 days would have lapsed on 31 May 2022. However,
she extended the period by 30 days , effective from 1 Ju ne 2022, only if the
investigation and disciplinary hearing were still pending at that time. Armed with
the chairperson's findings, the department did not up lift Ms Banda’s suspension
on 24 April 2022.
3 Act 103 of 1994, as amended.
4
At arbitration
[5] Displeased with the Department's failure to uplift her suspension, Ms Banda
referred an unfair labour practice dispute to the first respondent (GPSSBC) . The
conciliation yielded no fruit and the matter proceeded to arbitration. Ms Banda’s
suspension had not been uplifted at the time t he arbitration proceedings
concluded on 3 October 2022. That meant the suspension was prolonged for
eight months, of which six months were impugned as unfair.
[6] The Department defended its decision not to uplift Ms Banda’s suspension based
on the chairperson’s interpretation of the 60- day period in clause 2.7(2)(c) as
alluded to above. Ms Banda, on the other hand, contended that the interpretation
was not only untenable but futile to the Department’s case because, in any event,
no further extension was granted after 30 June 2022, being the last day of the
extension granted by the chairperson.
[7] The arbitrator preferred the construction accorded to clause 2.7(2)(c) of Ms
Banda that the 60-day period refers to calendar days. However, he found that the
SMS Handbook does not permit the extension of this period. In essence, he
found the chairperson's alleged extension of the 60- day period to be flawed and
punitive towards Ms Banda. As a result, the suspension was found to be unfair,
and the department was ordered to uplift it with immediate effect. Still, the
arbitrator was disinclined to award compensation, stating:
‘I do not see it fit to award [Ms Banda] compensation for the invalid suspension
from 25 April 2022 which is a 6 month period as [Ms Banda] was receiving her
salary and [the Department’s] rationale was due to an incorrect reading of the
SMS Handbook subject to bad advice from the chairperson as they had originally
believed the SMS Handbook illustrated calendar days before they were misled.’
4
At the Court a quo
4 See: Arbitration award, para 46, Caselines p 004-373.
5
[8] It is the above finding that Ms Banda assailed at the Labour Court. The main
ground for review was that the arbitrator committed a reviewable irregularity by
refusing to award compensation, despite having found her suspension unfair and
punitive.
[9] The Court a quo, having referred extensively to authorities dealing with various
grounds for interference with the exercise of a discretion, found:
‘[23] It follows that the arbitrator's decision to not award compensation falls
within the band of reasonable decisions that could have been reached on
the facts . While I would probably have awarded one month's
compensation, a court sitting on review of the exercise of an arbitrator's
strict discretion under section 194, cannot simply interfere if it would have
reached a different conclusion. The authorities quoted above make it
clear the court's powers on review are quite limited.
[24] Ultimately, the arbitrator considered the issue of compensation with
reference to both the interests of the employee and the employer and
performed a balancing act. He took into account the fact that suspension
had been on full pay, and the fact that the employer had not acted with
malice, and in the application of his discretion, decided not to award
compensation.’
[10] As a result , the Court a quo found that the arbitrator exercised his discretion
judicially and that the award was unassailable.
In this Court
[11] In this court, Ms Banda contends that the Court a quo erred in refusing to
interfere with the arbitrator’s exercise of discretion, as it was unreasonable in
light of all relevant facts and legal principles. That is so, she further contends ,
because the arbitrator pr emised his finding on irrelevant facts while ignoring the
relevant facts on record.
6
[12] Mr Mogane, Ms Banda’s counsel , submitted that the arbitrator unreasonably
failed to consider the unrefuted evidence of Ms Banda that the unlawfully
prolonged suspension was prejudicial to her in the following respects: (i) She had
to consult a psychologist and take medication as a result of the anxiety ; (ii) her
children were also affected; and (iii) she missed career -advancing opportunities.
On the contrary , the arbitrator was fixated on issues extraneous to the enquiry ,
namely, that she received full salary while on suspension and that the
Department’s refusal to uplift the suspension was not malicious, as it had been
misled by the chairperson, so the submission further went.
[13] The greater part of the Department’s written submissions is dedicated to the
interpretation of clause 2.7(2)(c) . Mr Basson, the Department’s counsel, sought
to persuade this Court to address this issue , given what he considers to be a
continuous misconstruction of clause 2.7(2)(c) by the arbitrators and the Labour
Court. That is so contrary to the trite tenet that appellate courts are constrained
to address only issues that were properly served and ventilated in the court a
quo.5 To entertain the argument on the interpretation of clause 2.7(2)(c) , which
was not part of the live controversy in the Court a quo and when the Department
stood aloof then, would require this Court to exceed the bounds of the current
record and the issues decided by the Court a quo. We are disinclined to take that
path. Accordingly, the interpretation of clause 2.7(2)(c) is not properly before this
Court and is disallowed and will not be further considered.
Discussion
[14] At heart in this appeal is whether the arbitrator misdirected himself in exercising
his discretion to withhold compensation and whether the Court a quo was correct
in refusing to interfere. The legal position regarding the exercise of discretion in
awarding or not awarding compensation in terms of section 194 is now
awarding or not awarding compensation in terms of section 194 is now
crystallised as the Constitutional Court (CC) settled this polemic in McGregor v
5 See: DB v CB 2024 (5) SA 335 (CC) at paras 50 -55; BLK Monitoring and Inspectorate CC v Maduka
and Others [2026] 3 BLLR 203 (LAC) at para 30; Coin Security Group (Pty) Ltd v SA National Union for
Security Officers and others 2001 (2) SA 872 (SCA) at para 9.
7
Public Health and Social Development Sectoral Bargaining Council and Others,6
quoted generously by the Court a quo, which aptly dealt with the circumstances
in which an appeal court may interfere with a decision reached by the Labour
Court or arbitrator in the exercise of its discretion.
[15] McGregor differentiated between the discretion exercised in terms of section 19 3
and the one exercised in terms of section 194, albeit within the context of unfair
dismissal, stating that while the review court or an appeal court’s power to
interfere in an award for compensation in terms of s ection 193 is not
circumscribed, as the decision to do so is a matter of a broad judicial discretion .
The converse is true when determining the amount of compensation under
section 194 (1), which involves the exercise of a narrow discretion and a choice
between legitimate alternatives. As a result, the power of a review or appeal court
to interfere is constrained unless it can be shown that the arbitrator , inter alia ,
exercised their discretion capriciously, or exercised their discretion upon a wrong
principle, or reached a decision in which the result could not reasonably have
been made by an arbitrator properly directing itself to all the relevant facts and
principles.7
[16] I accept, as correctly expressed by the Court a quo, that the exercise of a narrow
discretion accentuates the threshold for interference by the review court .
However, interference is warranted if it can be shown, as is the case here, that,
based on the totality of pertinent facts that served before the arbitrator , the
discretion not to award compensation was premised on an incorrect legal
principle or ignored the relevant facts, which resulted in him making an
unreasonable decision.
[17] The Department defends the arbitrator's findings and, in turn, the impugned
judgment. It contends, on the strength of McGregor, that compensatory relief is
judgment. It contends, on the strength of McGregor, that compensatory relief is
never guaranteed and, accordingly, it is not injudicious for the arbitrator to have
6 (2021) 42 ILJ 1643 (CC); [2021] 9 BLLR 861 (CC) at paras 25-27.
7 Id. See also National Coalition for Gay and Lesbian Equality and others v Minister of Home Affairs and
Others 2000 (2) SA 1 (CC) at para 11, referred to with approval in McGregor ; Aspen Pharmacare v
Makhari (2025) 46 ILJ 295 (LAC) at para 12.
8
declined to award compensation. I disagree. The arbitrator clearly misconstrued
the difference between patrimonial damages and solatium , as explained by this
Court in Johnson & Johnson (Pty) Ltd v CWIU,8 as follows:
‘The compensation for the wrong in failing to give effect to an employee’s right to
a fair procedure is not based on patrimonial or actual loss. It is in the nature of a
solatium for the loss of the right, and is punitive to the extent that an employer
(who breached the right) must pay a fixed penalty for causing that loss. In the
normal course a legal wrong done by one person to another deserves some form
of redress. The party who committed the wrong is usually not allowed to benefit
from external factors which might have ameliorated the wrong in some way or
another. So too, in this instance.’ (Emphasis added)
[18] The factors to be considered when determining the amount of compensation are
well accepted, and as reiterated in Edumbe Municipality v Putini and Others ,9
include the following:
“…the nature and seriousness of the iniuria, the circumstances in which the
infringement took place, the behaviour of the defendant (especially whether the
motive was honourable or malicious), the extent of the plaintiff's humiliation or
distress, the abuse of the relationship between the
parties, and the attitude of
the defendant after the iniuria had taken place… ”
[19] The arbitrator , therefore, misdirected himself by solely considering the
extraneous factors, namely, the fact that Ms Banda was on paid suspension and
the Department's reliance on the incorrect interpretation of clause 2.7(2)(c) by the
chairperson. While he ignor ed Ms Banda’s unrefuted evidence on the prejudice
she suffered because of the prolonged unfair suspension, which went as follows:
“RESPONDENT REPRESENTATIVE: Common cause, yes. So what prejudice
did you suffer as a result of you being on
suspension…?
did you suffer as a result of you being on
suspension…?
8 [1998] 12 BLLR 1209 (LAC) at para 41, r eferred with approval in Le Grange v Dr Visser t/a Skukuza
Medical Practice and Another [2025] 2 BLLR 152 (LAC); (2025) 46 ILJ 947 (LAC) at para 23.
9 (2020) 41 ILJ 891 (LAC); [2020] 5 BLLR 496 (LAC) at paras 56-57.
9
MS. THEMBANI BANDA: Joh, a lot of things and as we speak now
I'm on depression tablets. This thing has
caused me so much, so much hurt and so
much sorrow Chairperson, in that I still
don't understand what wrong di d l do. But
that is something that we will deal with in
the, when we deal with in the DC. And
also for me, I felt that it's something like,
okay no, let me not talk about feeling and
whatever. What prejudice, I got sick. I
ended up having, I'm now living on
depression tablets. I had to see my
psychologist now and again about this
thing, and also the fact that this thing is
not coming to an end. There were
opportunities, but because of this thing
hanging over my head, I couldn't proceed
you know. So this has caused so much
sorrow in my life and in my family. It has
even affected my kids .” (Emphasis
added)
[20] I find it curious that the arbitrator, notwithstanding his absolute reservations about
the length of the suspension, which she found punitive , failed to interrogate the
effect of that penal conduct on Ms Banda. That flaw led to a skewed decision
which clearly gave undue weight to factors that favoured only the Department ,
while ignoring what was fair to Ms Banda. 10 As a result, Ms Banda was deprived
of solatium to address the wrong occasioned by her unfair suspension, and there
was no deterrent for future contraventions by the Department.11 So untenable an
award should not have received a stamp of approval by the Court a quo.
10 Id.
11 South African Post Office Limited v Jansen van Vuuren NO and Others [2008] 8 BLLR 798 (LC); (2008)
29 ILJ 2793 at para 39
10
[21] The Court a quo erred, in my view, in failing to appreciate that the arbitrator did
not apply his mind to what constitutes a just and equitable compensation in the
circumstances.
Conclusion
[22] It follows that the Court a quo erred in failing to appreciate that there were
grounds to interfere with the narrow discretion, as the arbitrator misconstrued the
pertinent legal tenets and ignored the undisputed facts proving the prejudice
suffered by Ms Banda due to the unfair suspension. To that extent, the award
falls to be reviewed and set aside.
[23] Ms Banda is entitled to some form of compensation. There is, however, no good
reason to refer the matter back for a decision on an appropriate award of
compensation, as all the necessary facts are before us to enable us to substitute
the arbitrator’s decision with our own.
[24] I have taken into consideration that the arbitrator found the suspension
substantively justified but only vitiated by a prolonged period in breach of clause
2.7(2)(c). There is nothing on record to justify compensation equivalent to three
months’ salary, as submitted by Mr Mogane. In my view, compensation
equivalent to one month’s salary, which Mr Basson concedes to, is just and
equitable.
Costs
[25] In my view, the Department’s opposition to this appeal and the basis thereof is
lamentable and deserves censure. There is no reason why Ms Banda must be
out of pocket for vindicating her right to fair labour practice. Therefore, it accords
with the requirements of the law and fairness that the Department be ordered to
pay the costs of the appeal.
[26] In the premise, the following order is made:
11
Order
1. The appeal is upheld, and the order of the Court a quo is set aside and
substituted with the following order:
1.1 “The arbitrator’s decision not to award compensation is reviewed
and set aside.
1.2 The third respondent shall pay the appellant compensation
equivalent to a month’s salary, calculated at the appellant’s rate of
pay at the time of suspension.
1.3 There is no order as to costs.”
2. The third respondent shall pay the appellant’s costs of appeal.
_______________________
Nkutha-Nkontwana JA
Judge of the Labour Appeal Court of South Africa
Djaje AJA et Collis AJA concur.
APPEARANCES:
For the appellant : Mr C. Mogane of Sanqela Attorneys
For the third respondent : Adv. J.L. Basson
Instructed by : State Attorney Pretoria