Monareng v Dr JS Moroka Municipality 2022 43 ILJ 1855 (LC)

• Jurisdiction: South Africa
• Date: 01 June 2023
• Pages: 376-385
• Author: Khodani Sengwane,Stefan Van Eck
• Published date: 01 June 2023
• DOI: 10.17159/2225-7160/2023/v56a23

376 2023 De Jure Law Journal

Monareng v Dr JS Moroka Municipality

2022 43

ILJ

1855 (LC)

Affirmation that resignation by an employee constitutes a

point of no return: or does it?

1Introduction

Viewed from a common-law perspective, an employment relationship

can be terminated for various reasons, such as the passing of time or by

mutual agreement between an employer and employee (Strachan v Lloyd

Levy 1923 AD 670; October v Rowe 1898 SC 110). The tendering of an

unambiguous resignation by an employee constitutes a unilateral action

with the clear intention of terminating the employment relationship (see

Mafika v SABC Ltd 2010 5 BLLR 542 (LC) para 13; and ANC v Municipal

Manager George Local Municipality 2010 2 ALL SA 108 SCA para 15).

Even though the Basic Conditions of Employment Act 75 of 1997

(BCEA) makes provision for “notice of termination of employment” in

terms of section 37, the implications of resignations and the withdrawal

thereof are not dealt with in terms of legislation. Various court cases have

adjudicated the implications of resignations and the subsequent

withdrawal thereof on the employment relationship. However, some of

the cases have come to different conclusions on the implications of the

retraction of resignations, and this has created uncertainty regarding the

correct position.

The Labour Court in Monareng v Dr JS Moroka Municipality 2022 43 ILJ

1855 (LC) (Moroka Municipality) dealt with the implications of the

resignation to the employment relationship, specifically considering at

what point a resignation terminates the employment relationship.

Moroka Municipality also considered whether a resignation can be

unilaterally withdrawn and, if not, what would be required to revive the

employment relationship. This case note analyses whether the court

made the correct decision and it considers the implications thereof. This

is an important aspect to consider because of the devastating practical

implications it may have on employees who may resign in the “heat of

the moment” or on erroneous grounds. This contribution concludes by

making observations about the decision in Moroka Municipality and

suggests an adapted approach where resignations and the withdrawal

thereof are concerned.

2 The facts

Mr Mohlwaadibona (the employee) was appointed by Dr JS Moroka

Municipality (the municipality) as a deputy financial off icer in February

2019. On 17January 2020, the municipality was placed under

administration in terms of section 139(1)(b) of the Constitution of the

Republic of South Africa, 1996, and Mr Mhlanga was appointed as the

How to cite: Sengwane & van Eck ‘Monareng v Dr JS Moroka Municipality 2022 43 ILJ 1855 (LC) – Affirmation that

resignation by an employee constitutes a point of no return: or does it?’ 2023 De Jure Law Journ al 376-385

http://dx.doi.org/10.17159/2225-7160/2023/v56a23