Department of Health, North West v Public Health and Social Development Service Sectoral Bargaining Council and Others [2026] ZALCJHB 36

Court: Labour Court of South Africa, Johannesburg

Judge: Munsamy AJ

Date of Delivery: 13 February 2026

Factual Matrix

The Third Respondent, Bertha Hampu Maleka, Chief Financial Officer of the Department of Health: North West, was placed on precautionary suspension on 8 May 2020. The employer's SMS Handbook limited precautionary suspension to 60 days, with extension only permissible if a disciplinary hearing was convened within that period and the chairperson extended the suspension. No hearing was convened within 60 days. The suspension was extended by an administrator's letter, not by a chairperson. Maleka referred an unfair labour practice dispute. The arbitrator found the continued suspension procedurally and substantively unfair, ordered its upliftment, and awarded three months' compensation. The Department sought review.

Reasoning for the Finding

"[16] The review(Part B) is essentially a review of a jurisdictional point. The applicable test to determine this issue of jurisdiction is not the reasonableness test, but the correctness test." [para 16]

"[17] In Lekaabe v Minister Department of Justice and Constitutional Development, Molahleli J held... 'Thus the right of the employee in the event that the employer does not uplift the suspension on the expiry of the 60 (sixty) days is to file an unfair labour practice claim or bring an application to have an order directing the employer to uplift the suspension.'" [para 17, quoting Lekaabe]

"[18] Against the aforementioned jurisprudence of this Court the Second Respondent's award cannot be set aside in respect of her findings regarding the ongoing suspension after the 60 day period had lapsed." [para 19]

"[20] On the prevailing jurisprudence the determination of a quantum of compensation involves the exercise of a discretion in the strict sense. Decisions based on the exercise of discretions of this sort stand to be reviewed on the Sidumo test." [para 20]

"[23] The fifth ground of review does not take into consideration the Second Respondents findings...where she particularly took issue with the level of 'self-help' the Applicants representatives resorted to by extending the suspension of their own accord. It equally had serious consequences for the Third Respondent who was a senior manager and her ongoing suspension and exclusion from the workplace causes significant damage to her reputation and standing within the workplace." [para 23]

Finding/Order

1. The reinstatement of the review application was granted with no order as to costs.

2. The Applicant was ordered to pay the Third Respondent's costs in respect of Part A on a party and party scale C, together with the costs of Counsel.

3. The review application (Part B) was dismissed with costs on a party and party scale C, together with the costs of Counsel.

The Court upheld the arbitrator's finding that the extended suspension constituted an unfair labour practice and that the compensation award of three months' salary was just and equitable.