THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR 1413/23
In the matter between:
OFFICE OF HEALTH STANDARDS COMPLIANCE Applicant
and
COMMISSION FOR CONCILIATION, First Respondent
MEDIATION AND ARBITRATION
WILLEM KOEKEMOER N.O. Second Respondent
DIKELEDI TSHUKUDU Third Respondent
DR ZIYANDA MGUGUDU-SELLO Fourth Respondent
Heard: 21 January 2026
Delivered: 11 May 2026
JUDGMENT
BRITZ, AJ
Introduction
(1) Reportable No
(2) Of interest to other Judges: No
(3) Revised
TDM 2025-05-11
Signature Date
[1] This is an application in terms of section 145 of the Labour Relations Act 1
(LRA) to review and set aside an arbitration award issued by the third
respondent under the auspices of the second respondent.
[2] The applicant seeks an order reviewing and setting aside the award on the
basis that the commissioner committed material errors of law and arrived at
an unreasonable outcome.
[3] At the hearing of the matter on 21 January 2026, the Court was informed that
the third respondent settled her claim . The fourth respondent did not appear.
The applicant elected to proceed in the absence of the fourth respondent.
[4] The matter accordingly proceeded as an opposed review between the
applicant and the fourth respondent.
Background
[5] The dispute before the commissioner concerned the fairness of the
applicant’s precautionary suspension of the fourth respondent.
[6] It was common cause that the fourth respondent was placed on suspension
with full remuneration pending an investigation into allegations of misconduct.
[7] The commissioner found the suspension to be procedurally unfair on the
basis that the fourth respondent had not been afforded an opportunity to be
heard prior to being placed on suspension, ultimately concluding that the
suspension was unfair.
Issues for determination
[8] The central issue is whether the commissioner committed a reviewable
irregularity by:
8.1 treating a precautionary suspension as if it were disciplinary in
nature; and
1 Act 66 of 1995.
8.2 concluding that a prior hearing was a peremptory requirement
before such suspension could be affected.
[9] Flowing from this is whether the outcome reached by the commissioner is one
that a reasonable decision-maker could not reach.
Legal framework
[10] The test on review is that established in Sidumo and Another v Rustenburg
Platinum Mines Ltd and Others
2 where the Constitutional Court held that the
question is whether the decision reached by the commissioner is one that a
reasonable decision-maker could not reach.
[11] It is further trite that a review will succeed where the arbitrator misconceives
the nature of the enquiry or arrives at an unreasonable result.
3
[12] The Labour Appeal Court in Member of the Executive Council for Education,
North West Provincial Government v Gradwell4 made it clear that:
‘‘Therefore, an opportunity to make written representations showing cause
why a precautionary suspension should not be implemented will ordinarily be
acceptable and adequate compliance with the requirements of procedural
fairness.’
[13] The Constitutional Court in Long v South African Breweries (Pty) Ltd 5
confirmed that the fairness of a suspension is context -dependent and stated
that:
‘the fairness of the suspension is determined by assessing first, whether there
is a fair reason for suspension and secondly, whether it prejudices the
employee.’
[14] The Court held further that:
2 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) at para
110.
3 See: Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA) at para 25.
4 MEC for Education, North West Provincial Government v Gradwell (2012) 33 ILJ 2033 (LAC) at para
44.
5 (2019) 40 ILJ 965 (CC) at para 25.
‘there is no requirement that an employee be given an opportunity to make
representations. Instead, the suspension must be linked to a pending
investigation and serve to protect the integrity of that ongoing process. There
is an additional consideration of prejudice, though this can be ameliorated by
a salary being paid during the period of suspension.’ 6
[15] The Court further emphasised that a precautionary suspension on full pay is
generally permissible where there is a rational basis for it.7
[16] The Labour Appeal Court in Gold Fields Mining SA (Pty) Ltd v CCMA and
Others
8 reiterated that the reviewing court must consider whether the
arbitrator properly dealt with the principal issue and arrived at a reasonable
conclusion based on the totality of the evidence.
Evaluation
[17] The commissioner approached the dispute on the premise that the fourth
respondent was entitled, as a matter of course, to be afforded a hearing prior
to being placed on suspension. That premise is legally unsustainable.
[18] The authorities are clear that a precautionary suspension, particularly one
effected on full pay, is not punitive in nature but serves as a holding operation
pending investigation. The commissioner failed to appreciate this distinction
and, in doing so, misconceived the nature of the enquiry.
[19] Instead of enquiring whether there was a rational and fair basis for the
suspension, the commissioner elevated the requirement of a prior hearing to a
rigid and peremptory rule.
[20] That approach is inconsistent with binding authority, in particular Gradwell ,
which makes plain that a prior hearing is not invariably required in cases of
precautionary suspension on full pay.
[21] The evidence before the commissioner established that the suspension was:
6 Long (id fn 5) at para 12.
7 Long (id fn 5) at para 27.
8 (2014) 35 ILJ 943 (LAC) at para 20.
21.1 precautionary in nature;
21.2 effected on full pay; and
21.3 implemented in order to preserve the integrity of an ongoing
investigation.
[22] These factors are directly relevant to the enquiry into fairness.
[23] The commissioner failed to engage meaningfully with these considerations
and instead focused narrowly on the absence of a prior hearing. In doing so,
the commissioner ignored material evidence and applied an incorrect legal
standard. This constitutes a material misdirection.
[24] The consequence of that misdirection is that the commissioner arrived at a
conclusion that is not supported by the applicable legal principles governing
precautionary suspension.
[25] Properly considered, the suspension served a legitimate purpose, namely to
safeguard the investigation and maintain workplace integrity. There is nothing
on the record to suggest that the suspension was punitive or effected in bad
faith.
[26] In these circumstances, the absence of a prior hearing does not render the
suspension unfair. The commissioner’s conclusion to the contrary is one that
a reasonable decision-maker could not reach.
[27] The award accordingly falls to be reviewed and set aside.
Substitution
[28] The remaining question is whether the matter should be remitted to the
Commission for Conciliation, Mediation and Arbitration or whether this Court
should substitute the award.
[29] The issue in dispute is primarily one of law. The material facts are either
common cause or appear from the record. This Court is therefore in as good a
position as the commissioner to determine the dispute.
[30] In these circumstances, substitution is appropriate.
Costs
[31] In terms of section 162 of the LRA, the Court must exercise a discretion in
relation to costs in accordance with the requirements of law and fairness.
[32] The Constitutional Court in Zungu v Premier of KwaZulu- Natal and Others 9
cautioned against the routine awarding of costs in labour matters.
[33] Although the applicant has been successful, the dispute arises in the context
of an employment relationship and there is no indication of mala fides on the
part of any party.
[34] In these circumstances, considerations of fairness dictate that each party
should bear its own costs.
[35] In the result the following order is made:
Order
1. The arbitration award issued by the third respondent under case
number GATW 4063-22 is reviewed and set aside.
2. The award is substituted with the following finding:
2.1 “The applicant’s precautionary suspension was substantively
and procedurally fair.”
3. There is no order as to costs.
_______________________
C. Britz
Acting Judge of the Labour Court of South Africa
Appearances:
9 (2018) 39 ILJ 523 (CC) at para 24.
For the Applicant : Ms Makgolane of Molebaloa Attorneys Inc
For the Respondent : No Appearance