The Labour Court in Cape Town has dismissed an application by the Western Cape Department of Health to appeal a ruling that found the precautionary suspension of a senior doctor to be unfair.

Acting Judge Coen De Kock dismissed the department’s bid for leave to appeal to the Labour Appeal Court, finding that there were no reasonable prospects that another court would reach a different conclusion.

The court also rejected a conditional cross-appeal by the doctor, Kwazi Celani Zwakele Ndlovu, who had argued that the compensation awarded to him was insufficient.

The dispute stems from Ndlovu’s precautionary suspension in August 2021, after he served a letter of demand on colleagues in relation to a contemplated civil defamation claim.

This is after several consultant doctors had lodged complaints about Ndlovu’s management style and conduct, alleging oppressive and intimidating behaviour in the workplace.

A disciplinary enquiry was instituted against him based on those complaints. A day before the disciplinary hearing was due to start, a letter of demand for defamation, issued by Ndlovu attorneys, was formally served on one of the complainants and related witnesses.

The department viewed the timing and service of that letter as an attempt to intimidate witnesses and interfere with the disciplinary process.

On that basis, Ndlovu was placed on precautionary suspension, the suspension was repeatedly extended, the disciplinary process continued, and he was ultimately dismissed in May 2022. His internal appeal was dismissed in June 2022.

The current judgment dealt primarily with the unfair suspension. While Ndlovu was eventually dismissed, this judgment does not review or set aside the dismissal—it only addresses the suspension that preceded it.

In an earlier judgment delivered in October 2025, the Labour Court reviewed and set aside an arbitration award that had upheld the suspension as fair. The court found that the commissioner’s conclusion could not be sustained on the evidence, declaring the suspension an unfair labour practice.

The department was subsequently ordered to pay Ndlovu compensation equivalent to one month’s salary, amounting to over R171,000 and to reimburse him over R402,000 in withheld commuted overtime, together with interest.

In its application for leave to appeal, the department advanced multiple grounds, including arguments that commuted overtime was not an entitlement, that Ndlovu had not proved reputational harm, and that the court had erred in criticising the absence of witness testimony at arbitration.

Judge De Kock rejected each of these arguments in turn. He held that commuted overtime, once agreed and implemented, forms part of an employee’s fixed contractual remuneration and does not depend on proof of actual hours worked in a particular month. Because Ndlovu was suspended, he was deprived of the opportunity to perform the work that ordinarily attracted the payment.

On compensation, the court emphasised that awards under the Labour Relations Act are not aimed at compensating proven financial loss but serve as a solatium for the impairment of dignity. The judge described the award of one month’s salary as “modest” and at the lower end of the statutory range, noting that Ndlovu had not provided detailed evidence of reputational damage.

The court was also critical of the department’s reliance on untested allegations of witness intimidation. It found that the failure to call the complainants to testify at arbitration was a material weakness, particularly where their alleged fears were central to justifying the suspension.

Importantly, the judgment reaffirmed that the exercise of a constitutional right of access to courts cannot, in itself, justify adverse employment action. Whether framed as the delivery or the timing of a letter of demand, the court held that instituting civil proceedings cannot lawfully form the basis for a precautionary suspension.

Ndlovu’s conditional cross-appeal, which sought higher compensation based on the duration of the suspension and alleged reputational harm, was also dismissed. The court noted that he had continued to receive his basic salary during the suspension and would now recover the full amount of withheld overtime, meaning he suffered no actual financial loss.

Both applications were dismissed without a costs order, with the court citing considerations of law and fairness.

The ruling effectively leaves intact the Labour Court’s earlier finding that Ndlovu’s suspension was unfair and that the department must pay more than R570,000 in compensation and arrear payments.

sinenhlanhla.masilela@iol.co.za

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