When Does a Disciplinary Hearing “Commence”

Lessons for Municipalities from Moqhaka Local Municipality v Tshabalala

https://www.saflii.org/za/cases/ZALAC/2024/60.html

Municipalities across South Africa have long grappled with a key procedural question: when does a disciplinary hearing officially commence for the purposes of the Local Government: Disciplinary Regulations for Senior Managers, 2010 (“the Regulations)?

The Labour Appeal Court (LAC) has now settled the issue in Tshabalala (Tshabalala v Moqhaka Local Municipality and Another (JA88/2024) [2024] ZALAC 60; [2025] 2 BLLR 189 (LAC); (2025) 46 ILJ 590 (LAC) (21 November 2024).

Regulation 6(6)(a) of the Regulations provides that If a senior manager is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.”

The brief facts of the case are that Ms Portia Tshabalala, the Municipal Manager of Moqhaka Local Municipality, was suspended on 1 March 2024 pending an investigation.

On 31 May 2024, the municipality served her with a notice to attend a disciplinary hearing on 13 June 2024. Tshabalala argued that her suspension had automatically lapsed under Regulation 6(6)(a).

The municipality contended that the hearing “commenced” when the charges were served. Tshabalala argued that it only commences when the disciplinary hearing formally sits and the presiding officer reads out the charges.

The Labour Court agreed with the municipality. Tshabalala appealed to the LAC.

The key question before the LAC was whether “commence” refers to the service of charges or the actual commencement of the hearing.

The LAC distinguished between the disciplinary proceedings and the disciplinary hearing. It held that the disciplinary proceedings begin when charges are served and the disciplinary hearing, as contemplated by Regulation 10(3)(a), commences only when the presiding officer reads the charges aloud at the convened hearing.

The Court found that the disciplinary hearing had not commenced within three months of Tshabalala’s suspension. Consequently, her suspension automatically lapsed on 31 May 2024, and the municipality was ordered to reinstate her as Municipal Manager immediately.

This means the serving of a charge sheet on the employee merely prepares for the hearing and does not mark its commencement. A municipality cannot rely on the mere service of charges to justify a suspension beyond three months.