Memani v Mketsu N.O and Others [2026] ZALCCT 51

Seat of the Court: The Labour Court of South Africa, Cape Town

Presiding Judge: Lagrange, J

Summary of the Basis of the Claim

The Applicant, Mr Mbulelo Memani, Municipal Manager of Bitou Local Municipality, brought an urgent application seeking: (i) a declaration that his precautionary suspension had automatically lapsed in terms of Regulation 6(6)(a) of the Local Government: Disciplinary Regulations for Senior Managers, 2011 ("the Regulations"), because the disciplinary hearing had not commenced within three months of the resolution to institute disciplinary action; (ii) his reinstatement; and (iii) an interdict restraining the continuation of the disciplinary enquiry pending the determination of a review application. The First Respondent, Mr S Mketsu, was the chairperson of the disciplinary enquiry. The Applicant contended that because the charges had not been read out when the enquiry first convened on 12 November 2025 (the date falling within the three-month window), the hearing had not "commenced" for purposes of Regulation 10(1)(a), and therefore the process was unlawful.

Analysis and Findings of the Court with Direct Quotations

On the Interpretation of When a Disciplinary Hearing "Commences":

"[39] In Tshabalala the Labour Court had followed the approach in the first line of cases and decided that the disciplinary enquiry commenced when charges were served on the employee before the three month period had expired. The LAC agreed that the court had conflated the commencement of disciplinary proceedings with the commencement of the disciplinary hearing:

'[6] ... While disciplinary proceedings in a broad sense may commence with the service of a charge-sheet, the regulations contain an internal definition of the point at which a disciplinary hearing commences. ... Regulation 10(3) provides that: "The officer leading evidence — (a) must commence the disciplinary hearing by reading out the charges to the senior manager."

[7] What this construction contemplates is a disciplinary process that is commenced by the service of charges on the employee and which culminates in the conclusion of a disciplinary hearing. A disciplinary hearing is an integral part of the disciplinary process or proceedings; it does not constitute the proceedings in themselves. Read sequentially, the regulations contemplate that the disciplinary hearing is convened by the presiding officer and commenced by the reading of the charges to the senior manager accused of misconduct.'" (para 39)

"[42] ... Be that as it may, the authority of the LAC is binding on this court and the disciplinary hearing did not commence when the chairperson convened the hearing on 12 November 2025." (para 42)

On the Principle that a Party May Not Reprobate and Approbate:

"[44] In my view it would be an absurd reading of the regulations that when an employee, for whose benefit a time limit exists for an employer to act, requests a postponement which would have the effect that the time limit would be exceeded, could argue that despite asking for the commencement of the enquiry to be delayed, they can turn around and argue that having obtained that concession, the employer cannot proceed on the date they had agreed to. This effectively amounts to a party blowing hot and cold. In this case, the applicant had an election to insist on the disciplinary hearing proceeding, but chose rather to agree it could continue at a later date. In *Chamber of Mines of South Africa v National Union of Mineworkers and Another* the Appellate Division affirmed the principle:

'One or other of two parties between whom some legal relationship subsists is sometimes faced with two alternative and entirely inconsistent courses of action or remedies. The principle that in this situation the law will not allow that party to blow hot and cold is a fundamental one of general application.'" (para 44)

"[45] In my view this principle finds application in this matter and the applicant cannot do an about face on its previous request for a postponement which was agreed to and granted by the chairperson, by repudiating the understanding underlying that application, namely that the enquiry could continue at the later date." (para 45)

On Jurisdiction and Pleadings:

"[34] ... It is not enough to refer in sweeping terms to infringement of a constitutional right without identifying which constitutional right is implicated. It is not for the court or the respondent to parse the text of the founding pleading and read between the lines to speculate what the jurisdictional foundation of a claim might be..." (para 34)

On Intervention in Part-Hear Proceedings:

"[47] Quite apart from the reasoning above, I am not persuaded that the applicant has demonstrated exceptional circumstances which would warrant the court's intervention in the enquiry." (para 47)

Order of the Court

"Order

1. The application in respect of the relief sought in PART A, paragraph 2 and 3 pertaining to the Applicant's suspension is struck of the roll for lack of urgency.

2. The application for the remainder of the relief sought in PART A of the notice of motion in paragraph 4, relating to the continuation of the disciplinary enquiry is dealt with as a matter of urgency and any non-compliance with the Rules of the Labour Court relating to time limits and service is condoned.

3. The application to interdict the Applicant's disciplinary enquiry proceeding pending the determination of the Applicant's review under part B is dismissed.

4. The applicant must pay the costs of the Second and Third Respondent including the costs of counsel taxed at scale C." (para 49)