South Africa: Dismissals With Immediate Effect: A Different Approach

Last Updated: 23 August 2018
Article by Paul Ndiweni

Most Read Contributor in South Africa, September 2018

In a previous ENSight, we discussed the decision of the Labour Court in Mtati v KPMG Services (Pty) Ltd. In this case, it was decided that employees may not be disciplined if they have resigned "with immediate effect". The resignation is regarded as terminating the contract of employment immediately and the consequence is that the employer is denied the opportunity to pursue disciplinary action against the employee. A subsequent dismissal will be null and void. This judgment has been criticised and is considered to be controversial.

The Mtati judgment was recently considered in the judgment in Mark Michael Coetzee v The Zeitz Mocca Foundation Trust and Another. During the course of a meeting between the applicant employee in this matter and representatives of his employer that took place on 15 May 2018, the employer's representative handed the applicant a document, in terms of which he was suspended, as well as a letter in terms of which he was given the opportunity to respond to certain disciplinary charges brought against him. It was made clear that this opportunity constituted a disciplinary hearing as envisaged in the Code of Good Practice: Dismissal. A further meeting then took place between the applicant and the employer's representatives on 16 May 2018. What occurred at this meeting is the subject of dispute.

The applicant then approached the Labour Court on an urgent basis seeking the following relief:

  • a declaratory order to the effect that the disciplinary process instituted by the employer against the applicant was unlawful, invalid and of no force and effect; or
  • an order interdicting and restraining the employer and its trustees from continuing and finalising the disciplinary process instituted against the applicant in light of the applicant's resignation from employment with immediate effect; and
  • an order declaring that the employer had no jurisdiction to discipline the applicant and interdicting the employer and its trustees from continuing The relief sought was based on the allegation that, at the meeting on 16 May 2018, the applicant had resigned with immediate effect. The court refused to grant the applicant the relief sought. It did so on the basis that the employer had not, on the facts as established in the affidavits, accepted the dismissal with immediate effect.

The principle that an employer may accept or agree to a resignation with immediate effect is not controversial and this case therefore differs from the decision in Mtati where it was held that dismissals with immediate effect are permitted even if the employer does not agree to this.

However, during the course of its decision, the court referred to the Mtati judgment. It pointed out that the Mtati judgment had recently been overturned on appeal. As a consequence, the court held that the Mtati judgment was "no longer persuasive". It referred to the following excerpt from the decision in Vodacom (Pty) Ltd v Motsa and another as a correct statement of our law:

"[19] The principles that regulate a resignation are well-established. Resignation is a unilateral act; see Sihlali v South African Broadcasting Corporation (J799/08; 14 January 2009)). When an employee gives the required notice, the contract terminates at the end of the notice period. When an employee leaves his or her employment without giving the required period of notice, the employee breaches the contract. Ordinary contractual rules dictate that the employer may hold the employee to the contract and seek an order of specific performance requiring the employee to serve the period of notice. Alternatively, the employer may elect to accept the employee's repudiation, cancel the contract and claim damages. Of course, it is always open to the parties to terminate an employment contract on agreed terms and for either of them to waive whatever rights they might otherwise have enjoyed."

It also referred to similar views expressed in an obiter statement by Zondo J in Toyota SA Motors (Pty) Ltd v Commission of Conciliation, Mediation and Arbitration.

This approach remains controversial as the argument can be made that an employee may be forced to work his or her notice period. Critics argue that the effect of such a judgment is akin to condoning forced labour or slavery.

The decision in Nogoduka v Minister of the Department of Higher Education & Training and Others is also of interest in this regard. In this matter, the High Court had to consider section 16B(6) of Public Service Act, 1994 (the "PSA"), which provides:

"if notice of disciplinary hearing was given to an employee, the relevant executive authority shall not agree to a period of notice of resignation which is shorter than the prescribed period of notice applicable to the employee".

The employee in this matter also resigned with immediate effect prior to a disciplinary hearing taking place. The disciplinary hearing took place in his absence and he was dismissed. He subsequently sought an order in the High Court in terms of which he, inter alia, sought to have his dismissal reviewed and set aside. His argument appears to have been that the employer had accepted his resignation. The High Court held that it had the necessary jurisdiction to consider the dispute as it was empowered by section 77(3) of the Basic Conditions of Employment Act, 1997 to do so. The court held that section 16B(6) of the PSA was specifically included to avoid situations where employees, upon being notified of disciplinary action, would resign with immediate effect and avoid the adverse consequences of a disciplinary hearing. The court held that the PSA did not permit the employer to accept the resignation of the employee as the employee was obliged to serve his notice period. Therefore, the employer was entitled to discipline the employee as he was still employed during his notice period.

In conclusion, while employers in the private sector may agree to accept notices of termination with immediate effect, thus negating any agreed notice periods, employers who fall within the ambit of the PSA may not do so. Should an employer in the private sector not want to agree to such an immediate termination, and want to proceed with disciplinary steps, it should do so as soon as possible so as to complete the process prior to the expiry of the period of notice.

Reviewed by Peter le Roux, an executive consultant in ENSafrica's employment department.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Baker & McKenzie
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Baker & McKenzie
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions