IN THE HIGH COURT OF SOUTH AFRICA.
FREE STATE DIVISION. BLOEMFONTEIN
In the matter between:
THULO MAJOE
and
NALA LOCAL MUNICIPALITY
MOKETE MOKHATI
CORAM: NAIDOO, J et MHLAMBI, J
JUDGMENT BY: MHLAMBI, J
HEARD ON: 07 OCTOBER 2024
DELIVERED ON: 31 MARCH 2025 Reportable: NO
Of Interest to other Judges: NO
Circulate to Magistrates: NO
Case No: 5559/2023
Applicant
1st Respondent
2nd Respondent
[1] This is an application to review and set aside the ruling by the second
respondent, dismissing the points in limine which the applicant raised during a
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disciplinary against him. On 18 October 2023, the applicant approached this
court seeking, inter alia, the following relief:
"1. Reviewing and setting aside the decision of the second respondent dismissing the
preliminary points raised on behalf of the applicant;
2. That the preliminary points be upheld;
3. That the disciplinary proceedings held against the applicant are unlawful and invalid and
are set aside;
4. That the disciplinary notice and charge sheet issued against the applicant were served out
of time and are, therefore, declared unlawful and invalid and set aside;
5. Ordering and directing the respondent to pay the costs of this application jointly and
severally;"
[2] The application is opposed and the first respondent raised two preliminary points
which the court was requested to deal with before proceeding to the merits of the
case. The request was granted. The first preliminary point is that the respondents
failed to file a certified record of the proceedings as required by Uniform Rule
53(3). The second point is that the court has no jurisdiction to entertain the
application as it had no power to review the decision, which should have been
referred to the South African Local Government Bargaining Council (SALGBC)
in terms of section 24 of the Labour Relations Act ("the LAA").
[3] On 18 September 2023, at the inception of his disciplinary hearing, the applicant
raised the following points in limine to the charge sheet
• "That the accused employee at the time of the alleged misconduct he was
still acting as the Director of Local Economic Development (LED).
• That there was non-compliance with disciplinary code in relation to the
timeframes , alleging that the Employer's representative failed to formulate
and serve charges within five (5) days after his employment ."
[4] Both points in limine were dismissed by the second respondent , the chairperson
of the disciplinary hearing.
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[5] The applicant is of the view that the ruling is irrational, influenced by bias,
unreasonable, arbitrary, and full of irrational considerations . On 24 November
2023, the applicant, after the respondents had dispatched the record to the
.Registrar, served a notice to the effect that it had filed the transcribed record of
the disciplinary hearing of 18 September 2023 with the Registrar and the
documents submitted to the chairperson of the disciplinary hearing pursuant to
Uniform Rule 53. The respondents stated in their answering affidavit that the
applicant did not file certified copies necessary for review purposes to ensure
that the record of the proceedings was before the court.
[6] According to the respondents, the dispute as to whether the employer was
entitled to institute disciplinary proceedings outside the five (5) day time frame
stipulated in the collective agreement relates to the interpretation and application
of the collective agreement , which the SALGBC must resolve under the
provisions of the LRA. On the contrary, the applicant filed a notice on 21 February
2024 that it stood by its notice of motion dated 18 October 2023. The applicant
relied on the collective agreement and argued that the institution of the
disciplinary proceedings against him was not in accordance therewith.
(7] In his replying affidavit, the applicant stated that failing to attach the collective
agreement was not fatal. He had pleaded what the provisions of the collective
agreement stated, and that was common cause. The relevant provisions could
be handed up to the court if the court wanted to see them. The applicant denied
that the interpretation and application of the collective agreement was the issue.
According to him, the issue is whether the first re$pondent served the charge
sheet on him, an9 that did not need the bargaining council to determine.
[8] Rule 53 of the Uniform Rules of court provide that the registrar shall make
available to the applicant the record despatched as aforesaid upon such terms
as the registrar thinks appropriate to ensure its safety, and the applicant shall·
thereupon cause copies of such portions of the record as may be necessary for
the purposes of the review to be niade and shall furnish the registrar with two
copies and each of the other parties with one copy thereof, in each case certified
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by the applicant as true copies. The costs of transcription, if any, shall be borne
by the applicant and shall be costs in the cause.
[9] It is evident on a perusal of the copy of the collective agreement attached to the
application that it is incomplete as a number of pages are missing. The complete
collective agreement is therefore not before the court.
[1 O] Section 24 of the LRA provides that:
"Every collective agreement excluding an agency shop agreement concluded in terms of section
25 or a closed shop agreement concluded in terms of section 26 or a settlement agreement
contemplated in either section 142A or 158 (1) (c), must provide for a procedure to resolve any
dispute about the interpretation or application of the collective agreement. The procedure must
first require the parties to attempt to resolve the dispute through conciliation and, if
the dispute remains unresolved, to resolve it through arbitration. :: .
[11] Section 158 (1 )(h) of the LRA provides that the Labour Court has the power to
review any decision taken or any act performed by the State as employer, on
such grounds as are permissible in law.
[12] The applicant contended that he could not attach the transcribed record because
the founding affidavit was deposed to before the proceedings were transcribed.
It was impossible to append the record when the founding affidavit was deposed
to. Regarding jurisdiction, nothing states that a referral to the bargaining council
is peremptory, and section 24 of the LRA states that any party to a dispute may
refer the dispute to the commission. This is a question of discretion and does not
oust the jurisdiction of this court. The SALGBC did not have jurisdiction to
entertain the dispute. There was therefore no merit in both preliminary points
raised by the respondent, and they should be dismissed with costs. [13]
was referred to Steenkamp and Others (National Union of Metalworkers of South
Africa Intervening) v Edcon Ltd1 where it was stated that if a litigant's cause of
action is a breach of an obligation provided for in the LRA, the litigant as a general
rule, should seek a remedy in the LRA. It cannot go outside of the LRA and
invoke the common law for a remedy. A cause of action based on a breach of an
1 [2016] 4 BLLR 335 (CC).
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LAA obligation obliges the litigant to utilise the dispute resolution mechanisms of
the LAA to obtain a remedy provided for in the LAA.
[14] I was also referred to the following passage in DEMA WUSA and others v City of
Johannesburg2 which reads as follows:
"{12] The basis of the applicants ' claim, as I have noted, is that the respondent has breached
the terms of the collective agreement that regulates disciplinary procedures in the
workplace. Section 24 of the LRA regulates disputes about collective agreements.
Section 24 (1) provides that every collective agreement must establish a procedure to
resolve any dispute about the interpretation or application of the agreement. The
procedure must first require the parties to attempt to resolve the dispute through
conciliation , and if the dispute remains unresolved, to resolve it through arbitration. In
so far as the dispute between the parties concerning the employees' suspension is
based on the respondent's alleged breach of the collective agreement. the dispute is
one that is an "LRA dispute" which falls to be resolved under the dispute resolution
provisions of the LRA. Indeed, the collective agreement gives effect to s 24. Clause 20
reads as follows:
"Disputes about the interpretation and application of this collective agreement shall be
dealt with in terms of the dispute resolution mechanisms provided for in the Main
Collective Agreement. "
[15] It is evident from the perusal of the above passage that the provision of the entire
collective agreement would have enabled a contextual reading and interpretation
of the agreement by the court. This court was not provided with the entire
collective agreement and was not in a position to undertake that interpretative
exercise. It is common cause that the conduct of disciplinary proceedings by m
the first respondent is regulated by the SALGBC Disciplinary Procedure and
Code Collective Agreement, a collective agreement concluded in the bargaining
council under which the first respondent operates.
[16] In South African Municipal Workers' Union obo Dlamini and Others v Mogale City
and Another,3 a preliminary objection was raised at the disciplinary hearing that
the disciplinary proceedings were brought outside the 3 month period prescribed
by clause 6.3 of the collective agreement. The disciplinary hearing was irregular
2 !'2020] 6 BLLR 574 (LC) (07 November 2019).
3 2014 12 BLLR 1236 (LC).
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and could, therefore, not continue. The chairperson of the disciplinary hearing,
in a written ruling, disagreed. The court stated the following:
" ... The fact is that disciplinary proceedings have been initiated against the
applicants in. terms of the agreement. It has been participated in by the
applicants, albeit in the form of raising an objection in limine. The issue of
whether the disciplinary proceedings are irregular or not (being the subject matter
of the objection in /imine) resorts squarely within the parameters of interpreting
what the agreement means, as part and parcel of the disciplinary
proceedings. As the agreement is a collective agreement, it has to be interpreted
by the council (where I must point out it has its origin) in terms of section 24 of
the LRA, and not by the labour Court on review. The applicants' review
application is thus ill fated from the outset."
[17] The first respondent argued that the matter was based on collective bargaining
and should go to the bargaining council. Rule 53 was concerned with the
procedural process and did not grant this court jurisdiction. It appears that the
applicant misconstrued section 24 of the LAA when he stated that it dealt with a
discretion which did not oust the jurisdiction of this court, and the SALGBC did
not have jurisdiction to entertain this dispute. In my view, this court is not clothed
with the jurisdiction to hear this matter. Considering the above, I believe the
p~eliminary points raised by the first respondent should be decided in its favour
of the first respondeflt, and the application must, therefore, fail.
[18] It is trite that the successful party is entitled to the costs.
[19] I, therefore, make the following order:
Order:
1. The application is dismissed with costs including counsel's fees on scale 8.
I concur,
On behalf of the Applicant: Adv. Z Feni
Instructed by: Makhubalo Attorneys
Suite 115-118 Sunday School Building
154 Charlotte Maxeke Street
Bloemfontein
On behalf of the Respondent: Adv. M Lauw
Instructed by: Finger Attorneys
4 Captain Procter Street
C Square Building
Westdene
Bloemfontein 7
NAIDOO, J