South African labour law is firm in insisting that employees accused of dismissible misconduct get a fair opportunity to defend themselves. Where the employer elects to provide this opportunity via a disciplinary hearing the law requires the presiding officer to be fair. Unfair conduct of a hearing chairperson could occur either due to the chair’s bias or incompetence.

There are number of factors that may suggest that the hearing chairperson might be acting unfairly. These include, amongst others, situations where the chairperson:

• has previously had a clash with the accused employee
• has prior knowledge of the details of the case
• unreasonably turns down requests from the employee for representation, witnesses, an interpreter or other requirements
• makes a finding that is unsupported by the facts brought before the hearing
• invokes a legal principle that either does not exist or is derived from non-existent case law.

Whether the chairperson acted unfairly due to bias or incompetence is not the main issue. What is important is the prejudice that the accused’s case could suffer due to the unfair act.

In the matter of M J Molawa, I L Springkaan and Smith G C vs Matjhabeng Local Municipality (Lex Info 13 July 2026. Labour Court case no. 2026-157576) the chairperson of the employees’ disciplinary hearing cited non-existent case law in his outcome finding.

The employees approached the Labour Court for an urgent order staying the implementation of the case finding pending a review thereof. The employees argued that the chair had relied on case decisions incorrectly provided by artificial intelligence, so rendering his guilty finding invalid.                             

The Court observed that the chair had indeed relied on case reports that did not exist and that, on being asked to provide the correct case authorities, he failed to do so despite having agreed to do so. The Court cited the following observation made by an English court: “…the risks of using artificial intelligence are now well known.  Such tools can produce apparently coherent and plausible responses to prompts, but those coherent and plausible responses may turn out to be entirely incorrect…” 

The Labour Court further pointed out that the chair had refused to recuse himself and that the employer had unreasonably refused to replace the chairperson. The Court therefore issued an order staying the disciplinary hearing pending the hearing of the review.

This outcome underlines the importance for employers of ensuring that they appoint competent chairpersons and that legal citations and principles used to arrive at hearing decisions are correct.

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Written by Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za