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PRECAUTIONARY SUSPENSIONS IN THE PUBLIC SERVICE: REFLECTIONSFROM SOUTH AFRICABYBALOYI JANE TSAKANEB.PROC, LLB, LLM CANDIDATEA MINI-DISSERTATION SUBMITTED IN FULFILMENT OF THE REQUIREMENTSFOR THE DEGREE OF MASTERS OF LAWS (LLM) IN LABOUR LAW IN THESCHOOL OF LAW, UNIVERSITY OF LIMPOPO (TURFLOOP CAMPUS)SUPERVISOR: ADV. M.H THOBEJANE2013
TABLE OF CONTENTSAbstract.iDeclaration by the student .iiDeclaration by the supervisor.iiiDedication .viAcknowledgement .vBIBLIOGRAPHYTable of cases. vi-viiTable of statutes. viiiJournals. ixInternet Sites. xTextbooks xi
CHAPTER 11.1 Introduction.1-21.2 Problem statement.2-31.3 Literature review.31.4 Research procedure and methodology.41.5 Motivation.41.6 Rationale.51.7 Aims and objectives.5-71.8 The definition of a precautionary suspension.7-91.9 Circumstances under which a precautionary suspension may be imposed. ngprecautionarysuspension.1.11 The effects of a precautionary suspension on an employee.11-1516-181.12 Duties and obligations of the employer and the employee during the period ofprecautionary suspension.18-20CHAPTER 22.1The Constitution of South Africa, 1996. 21-222.2Labour Relations Act. 23-242.3Public Service Act 103 of 1994. 242.4Senior Management Service (SMS).24-26
CHAPTER 33.1Court decisions on unfair labour practices on precautionary suspensions 27-323.2The position with regard to Senior Managers in Local Government.32-353.3Time periods for the holding of the disciplinary hearing after a rysuspensionsbythePublic35-38ServiceCommission. 38-41CHAPTER 44.1 Overall analysis of cases referred to.42-454.2 Remedies available to victims of unfair suspensions based on bad faith. 46-48CHAPTER 55.1Conclusion.49-505.2Recommendations.51-52
ABSTRACTThe study will analyse the fairness or unfairness of precautionary suspensions and the rightsof employees in the Public Service who are placed on precautionary suspensions withreference to section 23(1) of the Constitution of the Republic of South Africa, 1996, whichstates that: (1) “ Everyone has the right to fair labour practices”Section 186(2)(b) of the Labour Relations Act 66 of 1995 defines what an unfair labourpractice is with specific reference to a precautionary suspension. It reads thus: (2) “ Unfairlabour practice means any unfair act or omission that arises between an employer and anemployee involving – (b) the unfair suspension of an employee or any other unfairdisciplinary action short of dismissal in respect of an employee”The study will also look at circumstances under which precautionary suspension is invokedon Senior Management Service employees in the public service in terms of chapter 7,clause .2.7(2) of the Senior Management Service Handbook, 2003.Decided cases will be referred to which shows that one of the reasons why manyprecautionary suspensions are set aside when challenged in court, is because someemployees who are assigned to deal with labour issues in the government departments arenot competent to deal with those issues. The issue of political appointments impacts directlyon service delivery if people are appointed to positions because of political affiliation thancompetency.(i)
DECLARATION BY THE STUDENTI, Jane Tsakane Baloyi hereby declare that the mini-dissertation for the Masters ofLaws (LLM) in Labour Law degree at the University of Limpopo, hereby submitted byme, has not previously been submitted for a degree at this or any other institutionand that it is my work in design and execution. All reference materials containedherein have been duly acknowledged.Signature:Date:(ii)
DECLARATION BY THE SUPERVISORI, Adv. Mamagabe Henry Thobejane hereby declare that I supervised the research ofthis mini-dissertation by Jane Tsakane Baloyi for the degree of Masters of Laws(LLM) in Labour Law and submit that it be accepted for examination purposes.Signature:Date:(iii)
DEDICATIONI dedicate this work to the following people in my life: To my loving mother, you are the greatest. To my husband Harley Ngobeni, who encouraged and assisted methroughout this research. You are the source of my inspiration. It couldn‟thave been possible without you. To my children Bongani, Amukelani, and Ntsako, thanks for understandingwhen I could not be with you because of my studies. I truly believe that youwill enjoy the fruits of the reward. To my brothers and sisters, I am what I am today because of you.(iv)
ACKNOWLEDGEMENTAll glory must be unto God.Special thanks go to the following people: My supervisor Adv. M.H. Thobejane for your time, commitment and supportwhich you showed at all times, to make this piece of challenging work asuccess. Professor Kolawole Odeku, your guidance and insight made it possible for thisresearch to be a success. To my loving parents, the late Nelson Mzamane Baloyi and his loving wifeGrace Mbazima Baloyi, you were and are the best. To my husband Harley Ngobeni for being there for me. You are a source ofinspiration. To my beloved children you were there for me and I am very proud of you. To my siblings Daniel, Maria, Thomas and Anna, I know that you will alwaysbe there for me irrespective of the circumstances. To my colleague and friend, Advocate Mmopa Queen Seakamela, thanks forthe advice that you shared with me in our school work and theencouragement, determination that we shared, you were never selfish. Youtirelessly helped to type this work. You were a good teacher, and yourcontributions could not go unnoticed.(v)
TABLE OF CASESBaloyi v Department of Communications & others [2009] JOL 24694Biyase v Sisonke District Municipality & another [2011] JOL 28131 (LC)Booysen v The Minister of Safety & Security and others [2009] JOL 23716(LC).Dladla v Council of Mbombela Local Municipality & another [2008] 8 BLLR751 (LC).Engineering Council of SA & another v City of Tshwane MetropolitanMunicipality & another [2008] 6 BLLR 571 (T).Grootboom v NPA & another [2010] JOL 25423 (LC).Heyneke v Umhlatuze Municipality (2010) 31 ILJ 2608 (LC).Jiba v Minister of Justice and Constitutional Development [2009] JOL 23716(LC).Lebu v Maquasi Hills Local Municipality & others [2012] 4 BLLR 411 (LC)Mabilo v Mpumalanga Provincial Government & Others [1999] 8 BLLR 821(LC) .Mabitsela v SAPS (2004, 8 BALR 969).Mabokela v Moretele Local Municipality [2010] 31 ILJ 2646 (LC).Makwabe v The Member of the Executive Council for Education, Culture andSport, Eastern Cape and another [1999] JOL 487 (TK), 10.Member of the Executive Council for Education, North West ProvincialGovernment and Errol Randal Gradwel Unreported case number JA 58/10Johannesburg Labour Appeal Court.Mlokoti v Amathola District Municipality & another [2009] 2 BLLR 168 (E).Mogotlhe v Premier of the North West Province (2009) 4 BLLR 331 (LC).Minister of Labour v General Public Service Sectoral Bargaining Council &others [2007] 5 BLLR 467 (LC).(vi)
Mustapha v Department of Health, Northern Cape [2008] JOL 21724(PHSDSBC), 23.NEHAWU v University of Cape Town (2003) 24 ILJ 95 (CC).Nell v Minister of Justice [2006] BLLR 716 (T).Ngwenya v Premier of Kwazulu-Natal [2001] 8 BLLR 924 (LC).PSA obo Blose & others / Department of Education, KwaZulu-Natal, [2009]JOL 24420 (GPSSBC.Phutiyagae v Tswaing Municipality [2006] JOL 17477 (LC)POPCRU obo Masemola & others v Minister of Correctional Services [2009]JOL 23975 (LC)SABC Ltd & Another v Dali Mpofu [2009] 4 ALL SA 169 (GSJ)SAPO v Jansen van Vuuren NO & others [2008] 8 BLLR 798 (LC)SAPU & another v Minister of Safety and Security & another [2005] 5 BLLR490 (LC)Solidarity obo Kotze and another v Public Health and Welfare SectorialBargaining Council & others unreported case number JR2636 JohannesburgLabour Court(vii)
TABLE OF STATUTESBasic Conditions of Employment Act 75 of 1997.Labour Relations Act 66 of 1995Public Service Collective Bargaining Council Resolution 1 of 2003 (DisciplinaryCode and Procedures),Republic of South Africa 2003 Senior Management Service: Public ServiceHandbook Department of Public Service and Administration, Part 7.The Constitution of the Republic of South Africa , 1996Public Service Act 103 of 1994.(viii)
JOURNALSD Venter „Interfering in disciplinary hearings‟ (2011) Without Prejudice 47-49.F Coetzee „Challenging employers over unfair dismissals‟ (2007) WithoutPrejudice 47-48.L Biggs & A van der Walt „Aspects of unfair suspension at work‟ (2011) Obiter32(3) 697-711.L Le Roux „The new unfair labour practice‟ (2012) Acta Juridica 41 -57.I Israelstam „Suspensions from duty can turn into a minefield‟ (2011) The SouthAfrican Labour Guide (Accessed on 10 May 2011).J Grogan „Labour Law‟ (2005) Annual Survey of South African Law 584-653.M Conradie & J Deacon „To suspend or not to suspend‟ ( 2009) Journal forJudicial Science 34(1): 38-60.M Beaumont „Fair Employment Practice‟ 2007 Lexis Nexis (Accessed 07February 2011).M McGregor & M Budeli „Labour Law‟ (2010) Annual Survey of South African Law775-841.N Mhlauli „Maladministration, corruption and financial misconduct in the EasternCape Department of Health‟ 46(4) (2011) Journal of Public Administration 13511363.N Smit & L Mpedi „An update on Labour Law developments from the SouthAfrican courts‟ May 2010-February 2012 (2012) TSAR 522-540.(ix)
INTERNET SITEShttp://www.lexisNexis.co.za./Beaumont‟s Solution/Fair ments/2011/precautionary suspension.pdf.http://www.iol.co.za/the star.(x)
TEXTBOOKS1. J Grogan Workplace Law 9th edition (2007).2. J Grogan Dismissal Discrimination & Unfair Labour Practice 2nd edition(2007).3. R Du Toit Labour Law Through Cases Lexis Nexis Butterworths.4. F van Jaarsveld & S van Eck Principles of Labour Law 3 ed (2005).(xi)
Mabitsela v SAPS (2004, 8 BALR 969). Mabokela v Moretele Local Municipality [2010] 31 ILJ 2646 (LC). Makwabe v The Member of the Executive Council for Education, Culture and Sport, Eastern Cape and another [1999] JOL 487 (TK), 10. Member of the Executive Council for Education, North West Provincial Government and Errol Randal Gradwel Unreported case number JA 58/10 Johannesburg Labour Appeal .
