Contact

Hot off the bench: Constitutional Court confirms it is not necessary to hold a pre-suspension hearing

Back to top

Hot off the bench: Constitutional Court confirms it is not necessary to hold a pre-suspension hearing

On Tuesday, 19 February 2019, the Constitutional Court confirmed in the decision of Long v South African Breweries (Pty) Ltd and Others [2018] ZACC 7, that where a suspension is precautionary (pending an investigation - and which suspension is not punitive), that there is no requirement that an employee be given an opportunity to make representations prior to the suspension being implemented.

21 Feb 2019 1 min read Employment Alert Article

The court went on to hold that although there is the additional consideration of prejudice, this is ameliorated by the suspension being on full pay for the period of the suspension.

Accordingly, the Constitutional Court has confirmed that there is no requirement to afford the employee an opportunity to make representations prior to the implementation of his/her precautionary suspension by an employer.

This is a victorious outcome for Employers who have to date adopted the practice of holding pre-suspension hearings and then only after receiving submissions, deciding whether to implement the precautionary suspension or not. Clarity has finally been provided by our top court.

The information and material published on this website is provided for general purposes only and does not constitute legal advice. We make every effort to ensure that the content is updated regularly and to offer the most current and accurate information. Please consult one of our lawyers on any specific legal problem or matter. We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in these pages. Please refer to our full terms and conditions. Copyright © 2024 Cliffe Dekker Hofmeyr. All rights reserved. For permission to reproduce an article or publication, please contact us cliffedekkerhofmeyr@cdhlegal.com.

You might also be interested in

20 Mar 2024

by Andrew van Niekerk, Tsele Moloi and Khutso Mongadi

Eskom clarifies the issue of “curtailment” for IPPs

In January 2024 Eskom published the much-anticipated addendum to the Generation Connection Capacity Assessment (GCCA) (Addendum). The Addendum was first mooted in the GCCA 2025 published in October 2023 (GCCA 2025). It is intended to provide clarity in respect of Eskom’s proposal in the GCCA 2025 to use “ curtailment ” to address the challenges of limited available grid capacity faced by independent power producer (IPP) projects in the Eastern, Western and Northern Cape (the provinces). 

Corporate & Commercial Law

3 min read

18 Apr 2024

by Alistair Young, Alecia Pienaar and Anneri Du Preez

Recent environmental law developments impacting solar, battery and grid infrastructure projects

Solar PV and BESS projects excluded from environmental authorisation requirements under specified circumstances Over the past couple of years, several initiatives and revisions have been introduced to the environmental and energy legal framework to reduce regulatory red tape that may unnecessarily hinder project development and implementation. Given the ongoing and future risk of shortage of sufficient electricity supply to meet demand, regulators have consistently sought to alleviate overly cumbersome long-lead permitting processes within the energy sectorspecifically. 

Environmental Law

6 min read

16 Oct 2023

The position of the post-commencement creditor in relation to business rescue proceedings

Director Kylene Weyers discusses that the judgment failed to take into account the commercial realities of business rescue and she concludes that the judgment negatively impacts on the prospects of future successful business rescues in our country.

Business Rescue, Restructuring & Insolvency

29 May 2023

by Thabang Rapuleng and Kgabi Moeng

Is three years too long for a restraint of trade agreement? The court has answered

Employers can take comfort in knowing that their protectable interests are safeguarded by the courts in the event of a breach of a restraint of trade clause. In Warwick Wealth (Pty) Ltd v Anderson and Others (C178/2023) ZALCCT (18 May 2023), the court had to consider the issue of a breach of restraint of trade clause between Warwick Wealth (Pty) Ltd (the employer) and Ms Julie Anderson.

Employment Law

2 min read

12 Oct 2023

by Nicholas Carroll

Adjusting a definition

The circular reference error is a scourge that has plagued many tax practitioners’ spreadsheets since the amendment to section 20 of the Income Tax Act 58 of 1962 (ITA) at the end of 2021. This amended section 20 dictates that it can only be applied once all other sections of the ITA have been applied. However, a similar provision appears in the definition of “ adjusted taxable income ” in section 23M, the result being a conflict between the two sections and the question of which to apply first?

Tax & Exchange Control

2 min read

5 Dec 2023

Employee vs Independent Contractor vs TES

The test for determining who is an employee and who is an independent contractor differs with reference to persons who earns above or below the threshold in terms of s6(3) of the Basic Conditions of Employment Act 75 of 1997 (BCEA). An independent contractor, unlike TES employees, is not an employee either of the client or the TES. Independent contractors render services for a fee, whereas a TES provides labour to a client for reward. Ultimately the test is always substance over form and the nature of the agreement is not definitive.

Employment Law

1 min read

This website uses cookies to enhance the browsing experience. For more information, please see our Cookie Policy.

Accept Decline