Leave instead of Suspension - Legal expert weighs in - Early Breakfast with Africa Melane

Episode Transcript
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Speaker 1 (00:00):
Welcome to your new day. This is early Breakfast with
Africa Milani. The President saw Ramapasa addressing the nation this
past Sunday. Following those explosive allegations the week before by
the Provincial Commissioner in Guazula, Natal General mu Kanazi, the
President deciding to announce a judicial commission of inquiry, laying

(00:23):
out the scope of the inquiry and the timelines attached
to it. He also then noted that he is placing
Police Minister at Samsome Kuno on special leave. Many politicians,
many South Africans, including listeners to this show, wondering why
this was the option he chose as opposed to suspending

(00:44):
or dismissing the minister. The National Police Commissioner followed suit
with regards to the Deputy National Commissioner Sibia, who was
implicated in those allegations by General Mkwanazi. Sibia is also
placed on special leave. I thought I'd get a label lawyer,
who's going to help us understand why this was the

(01:04):
route that was taken by the two principles. The MD
of AL Incorporated is Elena Levan. Dale joins me on
the line. Now, Elena, very good morning and welcome to.

Speaker 2 (01:12):
The show Good Morning Africa. Thank you for having me.

Speaker 1 (01:16):
Let's talk about special leave. Why and under what circumstances
would my employer place me under special leave?

Speaker 2 (01:26):
Well, I think the starting point should be what's the
difference between special leaves as opposed to suspension or precautionary suspension? Rather,
precautionary suspension is an intermeasure that we all know about
and from Malie about in terms of the Labor relation framework,

(01:46):
it's a well known, stablish established label or tool, and
it regulates, and it's regulated under the Labor Relations app
and it is typically used when an employee is accused
of serious misconduct. It's not optional, it's a unilateral decision
made by the employer and importantly, it must always be
on full pay to meet the standards for procedural fairness.

(02:10):
In contrast, special live or leave of absence isn't defined
in the labor relations framework. It generally emerged in the
public sector through collective bargaining in the nineteen nineties. It
was designed to give clarity to live of absence undefined

(02:31):
by the Basic Conditions of Employment Act in the public
for public officials when they took leave or for study,
for example, research or workshop. It was never ever designed
to deal with disciplinary matters because it's way it can
be unpaid. And it's fundamentally different from precautionary suspension because

(02:53):
it requires the employee's consent. So in short, suspension is formal,
it's mandatory and become and comes with safe god special lives.
Is informal, unregulated and definitely not fit for purpose.

Speaker 1 (03:08):
We were not brought into confidence by neither the President
nor the National Police Commissioner as to whether these two
individuals are going to be receiving their full benefits, their
salary and whatever accrues to them as employee. Well, the
one employee of the SAPs, the other a cabinet member
in Rama Pasa's cabinet. Because for me, the wh what

(03:32):
are they accused of does meet the serious misconduct definition right,
So it makes sense that both the President and the
National Police Commissioners should have at the very least placed
the individuals concerned on precautionary suspension.

Speaker 2 (03:55):
Yes, I agree with you.

Speaker 1 (04:00):
How prevalent is the use of leave of absence? Do
you come across this quite a lot in South Africa.

Speaker 2 (04:08):
Not in this particular context. It is it's a term
that's frequently used. I mean when it comes to parastatles
or government officials. Dealing with parastatles and government officials, the
court also isn't unfamiliar with the terms. They've they've defined it.
But there is a caution when you use when you

(04:28):
use words like leave of absence as a substitute for
precautionary suspension, because they're fundamentally different, you know, in its use.
So what what the ramifications of using the wrong process
like leave of absence if it's not clearly defined to

(04:50):
the employee, gives the employee legal room at a latest
stay at a later stage. If the leave of absence
you know, eventually then becomes a disciplinary action and then
in certain instances leads them to dismissal, it can give
the employee an opportunity like legal room, or to challenge
the fairness of the procedure. In disciplinary actions, where suspension,

(05:15):
it's the rules, it's tested, the court's understand it, and
there's frameworks that govern the process of precautionary suspension from
the beginning to end. It's paid. The employee is given
an opportunity to respond to the allegations they are you know,

(05:35):
they are warned to not communicate with new witnesses so
that there's no risk of tampering with evidence. So it
is a tried and tested process and it's used specifically
when disciplinary action is imminent. If specially or leave of
absence is used, we don't really know what the outcome

(05:57):
is going to be. We don't really understand it in
the context of disciplinary actions, so we can't really say
definitively as South Africans that disciplinary action is imminent.

Speaker 1 (06:11):
And I fully appreciate that the employment conditions of a
cabinet minister are truly unique. You are invited to serve
in the cabinet by the President and it's at his
discretion that he dismisses you from that as well, because
what does confuse us about Police Minister Kunu is that
while he is on leave of absence as a police minister,

(06:34):
he continues to serve as a Member of Parliament representing
the African National Congress and will therefore be attending sittings
in Parliament, which confuses the living deadlights out of us
one hundred percent.

Speaker 2 (06:48):
And this is the issue. It's not just about label
or issues, right, It's about governance, accountability and setting a
clear tone at the top. You can't hold junior officials
to strict processes and let's senior officials on informal arrangements.
It makes no sense Africa.

Speaker 1 (07:06):
It absolutely doesn't. Well, thank you very much, Elena, for
I suppose schooling us once again in terms of what
suspension is and precaution suspension and what needs to be
satisfied for that to happen, and for helping us normalize
the fact that it's okay for us to be confused
a part of the individuals being placed on special leave. Elena,

(07:28):
thank you very much, in need for your time. Elena
Levandal is the MD of al Incorporated,

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Leave instead of Suspension - Legal expert weighs in

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