BANDA v GENERAL PUBLIC SERVICE SECTOR BARGAINING COUNCIL AND OTHERS [2026] ZALCJHB 124; Case No: A2025/092122

Date of Judgment & Seat of Court: 15 April 2026; Labour Appeal Court of South Africa, Johannesburg

Name of Judge(s): Nkutha-Nkontwana JA, Djaje AJA, Collis AJA

Summary of Factual Matrix: 

The appellant, Ms Thembani Banda, was employed by the Department as Chief of Staff (Chief Director) in the office of the Minister in the Presidency from 22 October 2021. On 24 February 2022, she was placed on precautionary suspension pending investigation into allegations of serious misconduct, effected in terms of clause 2.7(2)(a) of the Senior Management Service (SMS) Handbook. The suspension was prolonged for eight months, of which six months were impugned as unfair, following a disciplinary hearing chairperson's interpretation that the 60-day period in clause 2.7(2)(c) referred to weekdays rather than calendar days. The arbitrator found the suspension constituted an unfair labour practice but refused to award compensation. The Labour Court refused to interfere with the arbitrator's exercise of discretion. The appellant appealed to the Labour Appeal Court.

Summary of Findings:

"[14] At heart in this appeal is whether the arbitrator misdirected himself in exercising his discretion to withhold compensation and whether the Court a quo was correct in refusing to interfere. The legal position regarding the exercise of discretion in awarding or not awarding compensation in terms of section 194 is now crystallised as the Constitutional Court (CC) settled this polemic in McGregor v Public Health and Social Development Sectoral Bargaining Council and Others..."

"[17] The Department defends the arbitrator's findings and, in turn, the impugned judgment. It contends, on the strength of McGregor, that compensatory relief is never guaranteed and, accordingly, it is not injudicious for the arbitrator to have declined to award compensation. I disagree. The arbitrator clearly misconstrued the difference between patrimonial damages and solatium, as explained by this Court in Johnson & Johnson (Pty) Ltd v CWIU, as follows: 'The compensation for the wrong in failing to give effect to an employee's right to a fair procedure is not based on patrimonial or actual loss. It is in the nature of a solatium for the loss of the right, and is punitive to the extent that an employer (who breached the right) must pay a fixed penalty for causing that loss. In the normal course a legal wrong done by one person to another deserves some form of redress. The party who committed the wrong is usually not allowed to...'"

"[19] The arbitrator, therefore, misdirected himself by solely considering the extraneous factors, namely, the fact that Ms Banda was on paid suspension and the Department's reliance on the incorrect interpretation of clause 2.7(2)(c) by the chairperson. While he ignored Ms Banda's unrefuted evidence on the prejudice she suffered because of the prolonged unfair suspension..."

"[24] I have taken into consideration that the arbitrator found the suspension substantively justified but only vitiated by a prolonged period in breach of clause 2.7(2)(c). There is nothing on record to justify compensation equivalent to three months' salary, as submitted by Mr Mogane. In my view, compensation equivalent to one month's salary, which Mr Basson concedes to, is just and equitable."

Basis for Opinion: 

As such the Court held that the arbitrator misdirected himself by conflating solatium with patrimonial loss, failing to consider the appellant's unrefuted evidence of prejudice, and placing undue weight on extraneous factors. The Labour Appeal Court found the refusal to award compensation unreasonable in light of the binding authority of McGregor and the principles governing compensation under section 194(4) of the Labour Relations Act 66 of 1995.

Order:

"1. The appeal is upheld, and the order of the Court a quo is set aside and substituted with the following order: 

1.1 'The arbitrator's decision not to award compensation is reviewed and set aside. 

1.2 The third respondent shall pay the appellant compensation equivalent to a month's salary, calculated at the appellant's rate of pay at the time of suspension. 

1.3 There is no order as to costs.' 

2. The third respondent shall pay the appellant's costs of appeal."