REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2024 -041425
1) REPORTABLE: NO
2) OF INTEREST TO OTHER JUDGES: NO
3) REVISED.
SIGNATURE
DATE : 16 APRIL 2025
In the matter between:
ALPHEUS LANGWANE MASHABA 1st Applicant
MEMBERS LISTED IN SCHEDULE A 2nd Applicant
And
1) REPORTABLE: NO
2) OF INTEREST TO OTHER JUDGES: NO
3) REVISED.
…………..…………............. 16 APRIL 2025
SIGNATURE DATE
THE CITY OF TSHWANE METROPOLITAN MUNICIPALITY Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
This judgment is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading to Caselines. The date and time of hand -
down is deemed to be 14:00 on 16 April 2025.
MOJAPELO AJ
INTRODUCTION:
1. During April 2021, the applicant s signed fixed term employment contract s with
the City of Tshwane Metropolitan Municipality . The applicant s seek an order to
the effect that the City has breached their employment contract and that they
should be declared to be permanent employees of the City and be paid their
benefits accordingly. The application is being opposed by the City on the basis
that the fixed term employment contract s did not entitle the applicant s to
permanent employment with the City.
2. The order sought by the applicant s is as follows:
“1. Condoning the delay in launching this application;
2. Declaring that respondent is in breach of the applicant 's employment
contract;
3. Declaring that the employment contracts between the applicant s and
the respondent ar e confirmed as permanent employment with effect
from the fourth month of their employment;
4. That the responden t is ordered and directed to give effect to the
declaratio n of permanency of the applicant s' employment;
5. Directing and ordering the responde nt to pay the applicant s as
permanent employees from the fourth month of their employment
forthwith;
6. Directing and ordering the respondent to pay the applicant s' bene fits
from the fourth month of their employment including but not limited to
medical aid; provident fund; overtime; holidays and weekends work;
risk allowance, bonuses as well as shift and housing allowances and
group life;
7. Ordering the responden t to pa y costs of this application;
8. Such further/or alternative relief .”
JURISDICTION:
3. The responde nt has raised a point in limine that th is Court does not have
jurisdiction to deal with this matter. The gravamen of the respondent’s
challenge to the jurisdiction of this Court is that the applicants' primary cause of
action is premised on the interpretation and the application of a collective
agreement.
4. The respondent submits that in terms of section 24 of the Labour Relations Act
66 of 1995 (“LRA”) all disputes over the interpretation and the application of a
collective agreement may be referred by any party to the b argaining council
with jurisdiction or to the Commission for Conciliation Mediation and Arbitration
(“CCMA”) which must first arbitrate the dispute if it cannot be resolved by
conciliation. The respondent further argues that the dispute between the parties
is about benefits, and therefore whe re there is a dispute between the employer
and employee about benefits , the approach to be taken by the ag grieved
employee is to refer the dispute to a bargaining council having jurisdiction or to
the CCMA to conciliate over the matter, and upon conciliatio n not resolving the
dispute then to refer the dispute for arbitration.
5. The applicants dispute the characterization of their case by the respondent.
The applicant s insist that this Court has jurisdiction because their s is a
contractual dispute.
6. It is trite that jurisdiction is an issue decided on the pleadings. In an application,
the pleadings are constituted by the notice of motion and the supporting
affidavits. In the matt er of Gcaba v Minister for Safety and Security and
Others 2010 (1) SA 238 (CC) , the Constitutional Court held at paragraph 75
that:
“Jurisdiction is determined on the basis of the pleadings, as Langa CJ
held in Chirwa, and not the substantive merits of the case. If
Mr Gcaba's case were heard by the High Court, he would have failed for
not being able to make out a case for the relief he sought, name ly review
of an administrative decision. In the event of the court's jurisdiction being
challenged at the outset (in limine), the applicant's pleadings are the
determining factor. They contain the legal basis of the claim under which
the applicant has chos en to invoke the court's competence. While the
pleadings - including in motion proceedings, not only the formal
terminology of the notice of motion, but also the contents of the supporting
affidavits - must be interpreted to establish what the legal basis of the
applicant's claim is, it is not for the court to say that the facts asserted by
the applicant would also sustain another claim, cognizable only in another
court. If however the pleadings, properly interpreted, establish that the
applicant is asserti ng a claim under the LRA, one that is to be determined
exclusively by the Labour Court, the High Court would lack jurisdiction. An
applicant like Mr Gcaba, who is unable to plead facts that sustain a cause
of administrative action that is cognizable by the High Court, should thus
approach the Labour Court. ”
7. On a reading of the notice of motion , it is clear that the applicants in the main
are seeking declaratory order s to the effect that the respondent has breached
their employment contracts and further that the employment contracts between
the applicants and the respondent be declared to be permanent with effect from
the fourth month of their employment.
8. In the fo unding affidavit, the first applicant explained their case as follows:
“5.1 The purpose of this application is to seek an order confirming the
permanency of our employment contracts from the date in the
notice of motion and ancillary relief.”
…
“6.1 The Court has jurisdiction to entertain the matter as the c ause of
action arose wholly within the area of the jurisdiction of the above
Court and as a result of the contractual dispute that this
application implicates.”
…
“7.22 The respondent is in breach of paragraph 8 of the employment
contracts over and above the breach of not abso rbing us in
accordance with the first paragraph of the employment contracts.”
…
“7.23 The respondent is repudiating the contract .”
…
“7.24 In a case of breach, the innocent has got a choice either to accept
the repudiation or hold the guilty party to a contract, we hereby
elect to hold the respondent to the terms of the contract.”
…
“7.26 As a result of the breach, we do not enjoy the benefit of a medical
aid; pro vident fund; overtime; holidays and weekends work; risk
allowance, bonuses as well as shi ft and housing allowances and
group life.”
9. In the replying affidavit, the applicants persist with their contractual dispute
argument and state as follows:
“3.1 Our case is premis ed on an employment contract attached to the
founding papers which we claim the respondent breached and
any interpretation attached to our case by the respondent is
unfortunate and is denied.”
10. In their heads of argument , the applicant s submit that they seek an order
declaring the respondent to be in breach of their employment contracts.
11. Both the LRA and the Basic Conditions of Employment Act 75 of 1997
(“BCEA ”) expressly recognise that there are certain matters in respect of which
both the Labour Court and the High Court enjoy concurrent jurisdiction. Section
157(2) of the LRA provides, in relevant part:
“The Labour Court has concurrent jurisdiction with the High Court in
respect of any alleged or threatened violation of any fundame ntal right
entrenched in Chapter 2 of the Constitution of the Republic of South
Africa, 1996, and arising from —
(a) employment and from labour relations;
(b) . . .
(c) . . . .”
12. Section 77(3) of the BCEA provides that ; “The Labour Court has concurrent
jurisdiction with the civil courts to hear and determine any matter
concerning a contract of employment, irrespective of whether any basic
condition of employment constitutes a term of that contract”.
13. The pleadings make it quite clear that the applicants have elected to base their
case on a n alleged breach of a contract of employment .
14. I am therefore of the view that this Court has jurisdiction to deal with this
matter , and the respondent’s preliminary point on jurisdiction is dismissed.
THE DISPUTED EMPLOYMENT CONTRACT :
15. It is alleged that the applicants were working as security guards for various
companies that were contracted by the City to protect its properties. The City,
at a certain stage, resolved to do away with these security companies and to
insource or employ th e applicants as security personnel of the City directly.
16. On 25 February 2021, the Council of the City of Tshwane Metropolitan
Municipality resolved as follows:
“1. That the principle of absorption of the 1519 security officers into
permanent position s is subject to the principle of afford ability being
approved.
2. That the criteria and principles to absorb the employees as outlined
in this report be adopted.
3. That a collective a greement be concluded with the City of Tshwane’s
recognized trade unions to ensure that the process is supported by
the trade unions .”
17. The process of absorption entails that the candidates will be subjected to a
verification and a security clearance p rocess , verification of the qualifications of
candidates and the validity of their PSIRA registration . And thereafter , legal
service s will compile appointment letters for the security office rs who will be
eligible for absorption.
18. The insourcing was part of the Council resolution. The resolution was meant to
absorb the applicants a nd make them permanent employees. The applicants
state that as a result of the said insourcing, the applicant s and the respondent
entered into written employment contracts in which the applicants were
appointed as Asset Protection Officers. The said written employment contract is
a fixed term contract w hich specifically states that they are appointed for a
period not exceeding three (3) months.
19. It is alleged on behalf of the applicants that they all entered into a similarly
worded employment contract s on or during April 2021. They have attached an
employment contract for the first applicant. The applicants rely on the opening
paragraph of this fixed term contract of employment, which reads as follows:
“FIXED TERM EMPLOYMENT CONTRACT
You are hereby appointed on a fixed term contractual basis (i.e. month -to-
month basis) in the position of Asset Protection Officer, in the Metro
Police Department, As set Protection Division, for a period not exceeding
three months or until the collective agreement to absorb Asset Property
Protection Officers has been made ratified by the national SALGBC –
whichever happens first .”
20. It is common cause that there was no collective agreement that was either
signed or rectified by the national SALGBC within those three (3) months .
Therefore, the three (3) months envisaged by the said contract came first. It is
the applicants’ case that at the expiry of the said three (3) months, they should
have been appointed as permanent employees in terms of the written
employment contract s. This application is , therefore , to force the City to comply
with the written employment contract s and employ the applicants on a
permanen t basis.
21. The applicants’ main submissions in the founding affidavit can be captured as
follows:
“7.11. In interpreting the above quoted paragraph, there are two
takeaways, one is at the employment contract was designed or
meant to absorb us into the permanent structure either after three
months or when the Collective agreement was ratified by the
national SA LGBC whichever came first.
7.12. We do not know whether the Collective Agreement was ever
ratified by the national SALGBC all we know is that the expiry of
the three months came first, and we were supposed to have been
absorbed as permanent employees after the expiry of this period
becaus e it happened first.
7.13. Despite the expiry of the three months period, the respondent
continued to treat us as temporary employees for longer than the
three months by which this time we should have been absorbed
as permanent employees.
7.14. This failure by the respondent to absorb and make us permanent
employees is at odds with the council resolution that was taken to
do away with labour brokers .”
22. The principles of interpretation are now settled. The Court has to take into
consideration the triad of text, context , and purpose. The Supreme Court of
Appeal in the oft -quoted Natal Joint Municipal Pension Fund v Endumeni
Municipality 2012 (4) SA 593 SCA at paragraph 18 stated as follows:
“Interpretation is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument, or contract,
having regard to the context provided by reading the particular provision
or provisions in the light of t he document as a whole and the
circumstances attendant upon its coming into existence. Whatever the
nature of the document, consideration must be given to the language
used in the light of the ordinary rules of grammar and syntax; the context
in which the provision appears; the apparent purpose to which it is
directed, and the material known to those responsible for its production.
Where more than one meaning is possible each possibility must be
weighed in the light of all these factors. The process is obje ctive not
subjective. A sensible meaning is to be preferred to one that leads to
insensible or unbusinesslike results or undermines the apparent purpose
of the document .”
23. The process of interpretation is a unitary exercise, not a mechanical
considerat ion of the text, context and purpose of the instrument under
consideration. In the matter of University of Johannesburg v Auckland Park
Theological Seminary and Another 2021 (6) SA 1 (CC) , the Constitutional
Court held at paragraph 65 that:
“This approach to interpretation requires that 'from the outset one
considers the context and the language together, with neither
predominating over the other'. In Chisuse , although speaking in the
context of statutory interpretation, this court held that this 'now sett led'
approach to interpretation, is a 'unitary' exercise. This means that
interpretation is to be approached holistically: simultaneously considering
the text, context and purpose. ”
24. The essence of what the interpretative exercise entails was explained by
Unterhalter AJA in Capitec Bank Holdings Limited and Another v Coral
Lagoon Investments 194 (Pty) Ltd and Others 2022 (1) SA 100 (SCA) at
paragraph 25 as follows:
“It is the language used, understood in the context in which it is used,
and having regard to the purpose of the provision that constitutes the
unitary exercise of interpretation. I would only add that the triad of text,
context and purpose should not be us ed in a mechanical fashion. It is
the relationship between the words used, the concepts expressed by
those words and the place of the contested provision within the
scheme of the agreement (or instrument) as a whole that constitutes
the enterprise by recou rse to which a coherent and salient
interpretation is determined. ”
25. The written employment contract that the applicant s seek to enforce in this
application is headed , “fixed term contract of employment ”. The period “fixed ”
by the said contract is three (3) months. That will be a period of three (3)
months from May 2021. The said three (3) months would have expired on or
during July 2021. This is the event that occurred first in terms of the contract.
26. However, it is the applicants’ case that after the expiry of the three (3) months ,
they should have been appointed permanently. They say this is according to
the provision of the contract, mainly the clause that has been referred to
hereinabove. There is nowhere in the con tract where it states that after a period
of three (3) months, the applicants should be appointed on a permanent basis.
In fact, the written contract is quite specific and clear as it identifies itself as a
fixed term contract for a period not exceeding th ree (3) months.
27. The written contract clearly fixed the employment contract with the applicants
for a period not exceeding three (3) months or until the collective agreement to
absorb them has been rectified by the national SA LGBC, whichever comes
first. Had there been a collective agreement to absorb the applicants as
envisaged in the fixed term contract, then the agreement they seek to enforce
in these proceedings would have been less than a period of three (3) months.
Clearly , the bargaini ng process that would have resulted in a collective
agreement to absorb the applicants was in terms of this written contract given a
period of three (3) months. It is common cause that such collective agreement
to absorb the applicants was not r atified within the period of three (3) months.
Therefore, the fixed period of three (3) months came first. After a period of
three (3) months, the written contract that the applicants seek to enforce would
have lapsed or expired .
28. There are further provisions in the written contract that clearly point to the
temporary nature of this employment contract. Clause 1 of the written
agreement specifically informed the applicants that; “Your employment contract
will commence with effect from 01 May 2021 and will be on a month -to-month
basis, not exceeding a period of three (3) months .”
29. In clause 16, it is stated that the applicants should not have a ny legitimate
expectation of being appointed into permanent positions when accepting the
fixed term contract. There is no doubt from the wording of this written
agreement that the employment relationship between the applicants and the
City was fixed for a period of three (3) month s or until there was a ratification of
a collective agreement to absorb the applicants into permanent employment.
The period of three (3) months comes first, therefore, the written contract the
applicants are seeking to enforce has lapsed.
30. Contextuall y, this case revolves around the absorption of the applicants as
permanent employees of the City. The document that would have facilitated the
absorption of the applicants into the City as permanent employees is clearly
spelt out in the disputed contract. That document is identified as the collective
agreement to absorb the applicants as Asset Protection Officers. That process
would have been started by a collective agreement that was to be ratified by
the national SALGBC. It is common cause that such ratif ication never occurred
within the three (3) months that was allocated. The applicants’ reliance on the
fixed term contract as the basis for claiming permanent employment is
therefore misplaced.
31. It appears that the purpose of this three (3) months fixed term employment
contract was to give the applicants employment on a temporary basis while the
process of absorption into permanent positions was taking place . This process
would have been triggered by the conclusion and ratification of a collective
agreement by the national SALGBC . What is clear is that this fixed term
contract that the applicants seek to enforce in this Court is not the one that
would have allowed the applicant to be permanently employed. There was still
another process that would ha ve allowed the applicants to be absorbed or
permanently employed by the City.
32. The fact that the applicants m ight still be working for the City currently does not
change the fact that the written contract that is sought to be enforced has long
expired.
DECLARATORY RELIEF :
33. In any event , this is an application for a declarator y order. The applicants seek
declaratory orders to the effect that the respondent is in breach of their
employment contracts and , further , that their employment contracts with the city
are confirmed as permanent with effect from the fourth month of their
employment. A declaratory order is a discretionary remedy. The Supreme Court
of Appeal in the matter of Lueven Metals (Pty) Ltd v Commissioner for the
South African Revenue Service (728/2022) [2023] ZASCA 144 at paragraph
12 held as follows ;
“Section 21(1)(c) of the Superior Courts Act 10 of 2013 provides a
statutory basis for the grant of declaratory orders without removing the
common law jurisdiction to do so. It is a discretionary remedy. The
question whether or not relief should be granted under the section has to
be examined in two stages, in the first place, the jurisdictional facts have
to be established. When this has been done, the court must d ecide
whether the case is a proper one for the exercise of its discretion. Thus,
even if the jurisdictional requirements are met, an Applicant does not have
an entitlement to an order. It is for such Applicant to show that the
circumstances justify the gra nt of an order.”
34. In Competition Commission of South Africa v Hosken Consolidated
Investments Ltd and Another 2019(3) SA 1 (CC) at par agraph 80 the
Constitutional Court, reaffirmed the two -staged approach for a declaratory
order as follows ; first, the court must be satisfied that the applicant has an
interest in an existing, future or contingent right o r obligation; and second, the
Court may then exercise its discretion eith er to refuse or grant the order sought.
35. In the present matter , the applicants ’ case falls short of meeting both legs of the
test. They have not established an existing, future or contingent right or
obligation and have not demonstrated that this is a case in which the court
should exercise its discretion in favour of granting the relief sought.
36. I have already found that the written employment agreement that the applicants
are relying on has lapsed three months after May 2021. There is , therefore , no
existing, future or contingent right or obligation that arises from the lapsed
written employment agreement that the applicants seek to rely on.
37. Even if I am wrong in this regard , this is not a case where an exercise of
discretion should be excis ed in favor of the applicants. That is because to do so
will be tantamount to drafting a new employment contract between the parties.
The written employment contract that is relied on by the applicant does not
state that they should be permanently employed after a period of four months.
To interpret the contract that way will be tantamount to drafting a new contract
for the parties.
38. I therefore conclude that this application should fail.
COSTS:
39. The issue of costs remains the discretion of the Court, the discretion cannot be
exercised arbitrarily but judicially on grounds upon which a reasonable person
could have come to the conclusion arrived at. The approach to awarding costs
is succinctly set out in Ferreira v Levin NO and Others, Vryenhoek and
Others v Powell NO and Others 1996 (2) SA 621 (CC) at paragraph 3 as
follows :
“The Supreme Court has, over the years, developed a flexible approach to
costs which proceeds from two basic principles, the first being that the
award of costs, unless expressly otherwise enacted, is in the discretion of
the presiding judicial officer, and the second that the successful party
should, as a general rule, have his or her costs. Even this second
principle is subject to the first. The second principle is subject to a large
number of exceptions where the successful party is deprived of his or her
costs. Without attempting either comprehensiveness or complete
analytical accuracy, depriving successful parties of their costs can depend
on circumstances such as, for example, the conduct of parties, the
conduct of their legal representatives, whether a party achieves technical
success only, the nature of the litigants and the nature of the proceedings.
I mention these examples to indicate that the principles which have been
developed in relation to the award of costs are by their nature sufficiently
flexible and adaptable to meet new needs which may arise in regard to
constitutional litigation…”
40. Although I find that the application ought to be dismissed, the circumstances of
this case dictate that I should not award costs against the applicants . It is quite
clear from the papers that the applicants’ employment situation has been
precarious for some time . They cannot be faulted for making efforts to make
their employment situation clearer. However, in this matter, they elected to
enforce a written con tract that lapsed after a period of three (3) months .
Unfortunately, their interpretation of the written contract cannot be sustained .
Under the circumstances, it would not be proper to mulct the applicants with
costs.
41. I, therefore , make the following order;
1. The application is dismissed .
2. Each party to pay its own costs .
_______________________
MM MOJAPELO
ACTING JUDGE
HIGH COURT GAUTENG DIVISION, PRETORIA
Counsel for the Applicant : Adv. Z Feni
Attorney for the Applicant : Xabendlini Attorneys & Associates
Counsel for the Respondent : Adv. K Ramarumo
Attorneys for the Respondent : Marivate Attorneys Inc
Date heard : 03 February 2025
Date of the Judgement : 16 April 2025