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municipal council may place any of its senior managers on precautionary
suspension. As the regulation makes clear, a mere suspicion of misconduct is
insufficient to suspend a senior manager. A municipal council must, in
addition, have reason to believe that the relevant senior manager’s continued
presence at the workplace may jeopardise any inves tigation into the alleged
misconduct; may endanger the well-being or safety of any person or municipal
property; may be detrimental to stability in the municipality; or that the senior
manager may interfere with potential witnesses or commit further acts of
misconduct. These are jurisdictional requirements, in the sense that a senior
manager may not be suspended unless at least one of them is present. A
suspension in their absence is invalid.
2 Regulation 6 (2) provides further that “[b]efore a senior manager may be
suspended, he or she must be given an opportunity to make a written
representation to the municipal council why he or she should not be
suspended, within seven (7) days of being notified of the council's decision to
suspend him or her.” Read purposively, the regulation clearly envisages that
the senior manager concerned will be provided not merely with a precis of the
misconduct alleged against them, but also with the reasons why the municipal
council has reason to believe that any of the jurisdictional requirements set
out in regulation 6 (1) have been met.
3 The applicant, Mr. Mathe, is the municipal manager of the first respondent,
Sedibeng Municipality. He was placed on precautionary suspension after the
municipality decided that he may have misconducted himself in relation to a
disciplinary process instituted against Sedibeng’s chief financial officer, and in
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the context of related litigation instituted against the municipality in this court.
The details of the misconduct alleged are not important, save insofar as to
observe that they are not inherently of the nature that leads to the reasonable
suspicion that any of the regulation 6 (1) requirements have been met.
4 Before Sedibeng placed Mr. Mathe on precautionary suspension, it gave him
notice of its intention to do so, and invited representations. It did not, however,
identify any basis on which it asserted that any of the regulation 6 (1)
requirements had been met. Mr. Mathe took the opportunity to make
representations, in which he addressed the substantive allegations of
misconduct against him at some length. He did not, however, address whether
Sedibeng had the right to suspend him under regulation 6 (1).
5 Mr. Mathe’s representations notwithstanding, Sedibeng’s municipal council
resolved, on 12 May 2026, to place Mr. Mathe on precautionary suspension
for a period not exceeding 90 days. The relevant council resolution specifically
notes that “the Municipal Manager fails to respond to the allegations brought
against him as to why he should not be placed on precautionary suspension
save for placing on record counter allegations”. That absence, it seems to me,
must be taken as critical to the municipal council’s decision to suspend Mr.
Mathe.
6 Mr. Mathe now applies to me to set aside his suspension on the basis that he
was given no opportunity to be heard on Sedibeng’s reasons for believing that
the requirements set out in regulation 6 (1) were met. He argues that his failure
to respond to those unidentified reasons was material to the decision to
suspend him; that the failure to specifically identify those reasons rendered
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his right to be heard nugatory; and accordingly that this failure vitiated the
suspension itself.
7 In my view, Mr. Mathe is plainly correct. The regulations afford Mr. Mathe a
right to remain in post pending disciplinary proceedings taken against him
unless the regulation 6 (1) requirements are met and he has been given a
reasonable opportunity to respond to the facts upon which a municipal council
believes that they have been met. In this case, there is nothing on the record
that indicates either that Sedibeng identified the facts on which it believed the
regulation 6 (1) requirements had been met, or that it invited Mr. Mathe to be
heard in relation to them. For that reason alone, Sedibeng’s subsequent
resolution was taken in breach of the statutorily prescribed conditions
expressly placed on the exercise of its power to suspend Mr. Mathe, and
accordingly in breach of the principle of legality enshrined in section 1 (c) of
the Constitution.
8 Ms. Manganye, who appeared for Sedibeng, accepted the facts I have set out,
but argued that regulations 6 (1) and (2) had substantially been complied with.
I do not see how. Substantial compliance would have entailed the proposition
either that the allegations of misconduct themselves were sufficient on their
face to fulfil the regulation 6 (1) requirements, or that, notwithstanding
Sedibeng’s failure to advert to its reasons to believe that those requirements
had been met in its notice of suspension, those reasons had, on the facts,
been present to Mr. Mathe’s mind when he made his representations. Ms.
Manganye identified no facts that could be marshalled in support of either of
those propositions. None appear from the record.
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9 It was further submitted that this application is not urgent. But the clear
illegality I have identified, together with the fact that the precautionary
suspension Mr Mathe challenges will long-since have expired when this matter
comes to be heard in the ordinary course, are sufficient to dispose of that
contention. Ms. Manganye also argued that Mr. Mathe’s reliance on the
Promotion of Administrative Justice Act 2 of 2000 (“PAJA”) precluded a
successful challenge to a municipal council resolution. It is true that
Sedibeng’s resolution is not subject to PAJA review, but Mr. Mathe also relied
upon section 1 (c) of the Constitution, under which the resolution may plainly
be challenged. And it is the glaring illegality that I have identified which falls
foul of the principle of legality section 1 (c) entrenches.
10 It was finally argued that the decision of the Constitutional Court in Long v
South African Breweries (Pty) Ltd (2019) 40 ILJ 965 (CC) disentitles Mr. Mathe
to any relief. But that cannot be. Long confirms that where there is no specific
right to a hearing before a precautionary suspension is imposed, the absence
of such a hearing does not in itself render the suspension unfair under the
Labour Relations Act 66 of 1995, so long as the precautionary suspension is
otherwise fairly imposed (see Long, paragraphs 24 and 25). This case is
different. Not only was Mr. Mathe statutorily entitled to make pre-suspension
representations under the Regulations, those representations could only be
meaningful once the municipal council had reason to believe that any one of
the requirements set out in regulation 6 (1) had been met, and its reasons for
so believing had been communicat ed to Mr. Mathe. Here, none of that
happened.
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11 Mr. Mathe seeks interim relief setting aside his suspension pending a review
in the ordinary course. Mr. Scholtz, who appeared for Mr. Mathe, accepted
that, insofar as he seeks the setting aside of his suspension, Mr. Mathe in fact
asks for a final order. That order is plainly justified. It goes without saying that
my order does not preclude Sedibeng from identifying any facts on which it
considers that the requirements set out in regulation 6 (1) have been met, from
hearing Mr. Mathe in relation to those facts, and from suspending him once it
has seriously considered Mr. Mathe’s representations. The purpose of my
order is not to prejudge Mr. Mathe’s case, but to ensure that it is dealt with
according to law.
12 Mr. Scholtz submitted that the illegality in this case is so brazen as to justify a
costs order as between attorney and client. I agree, and it will be so ordered.
13 For all these reasons –
13.1 The applicant's non-compliance with the requirements prescribed by
the Uniform Rules of Court pertaining to form, process, service and
time periods is condoned, and this application is heard as one of
urgency in terms of rule 6 (12).
13.2 The resolution taken by the first respondent’s council on 12 May 2026
to place the applicant on precautionary suspension is constitutionally
invalid, and is set aside.
13.3 The first, second and fourth respondents are ordered forthwith to
allow the applicant to resume his duties as municipal manager, and
to comply with the Local Government: Disciplinary Regulations for