IN THE LABOUR COURT OF SOUTH AFRICA
CASE NO: 2024 -150037
Not Reportable
In the matter between:
SUSANNA NAUDE First Applicant
ZINRLE INGA TWAKU Second Applicant
ANNAMARIE NIEWOUDT Third Applicant
ANTOINETTE LOUISE DU TOIT Fourth Applicant
NOKUTHULA PF MNCWANGO Fifth Applicant
JACQU ELINE BLAKE Sixth Applicant
NOMASWAZI AMANDA MVULA Seventh Applicant
NOMANDLA VIMBI -MUDAU Eighth Applicant
ESTELLE MANUEL Ninth Applicant
and
OFFICE OF THE CHIEF JUSTICE First Respondent
SECRETARY GENERAL :
OFFICE OF THE CHIEF JUSTICE Second Respondent
Heard: 31 December 2024
Order delivered: 31 December 2024
Judgment delivered : 21 January 2025
REASONS FOR ORDER
WHITCHER J
Introduction
[1] On 24 December 2024, the applicants filed for relief in the following terms :
1. The forms and service provided for in the Rules are dispensed with and the matter
is treated as one of urgency in terms of Rule 38.
2. The applicants’ fixed -term contracts which are due to terminate on 31 December
2024 are renewed on the same terms and conditions.
3. Alternatively , to prayer 2, t he applicants’ fixed -terms contracts which are due to
terminate on 31 December 2024 are extended pending final determination of the
applicants’ unfair labour practice referral to the Bargaining Council under case
number GPBC1685/2024.
4. The first respondent is hereby interdicted and restrained from interviewing and
placing candidates in the applicants’ current positions as Judges’ Secretaries
within the Gauteng Division of the High Court of South Africa.
5. Costs of this applications in terms of Rule 56.
6. Further and/or alternative relief.
[2] The first respondent opposed the application on various grounds: urgency ; res
judicat a, lis pendens and jurisdiction .
[3] The application was heard on 31 December 2024, and, after hearing argument
by both parties , I granted prayers 1 and 3 .
[4] This judgment now constitute s the written reasons for the order granted.
The facts
[5] The material facts are not in dispute and are described in the tense as they
stood on 31 December 2024 .
[6] The applicants are all Judges’ Secretaries, employed by the first respondent at
different times at the Gauteng Division of the High Court, both in Johannesburg
and Pretoria.
[7] Ever since their engagement, they have been employed on ‘rolling’ fixed -term
contracts of employment1: the first applicant since May 2008, the second since
May 2015, the third since May 2018, the fourth since August 2011, the fifth
since July 2017, the sixth since March 2010, the seventh since December
2017, the eighth since May 2011 and the ninth since July 2015.
[8] The term of the contracts, depending on when the applicants commenced
employment with the first respondent, was initially a three -month contract which
was translated into a one-year contract and eventually , in the case of all the
applicants, a three -year contract .
[9] Despite notices to the contrary over the years , the applicants’ contracts were
always renewed. For example, in the case of the first applicant , despite such
notice s in relation to her last four contracts, these contract s were always
renewed.
[10] All the applicants’ fixed -term contracts are due to expire on 31 December 2024,
save for the eight h applicant whos e contract only expires in November 2025.
[11] The cause of the dispute before me is that on 28 August 2024 the first
respondent gave notice essentially that the applicants’ employment will end on
31 December 2024 and thereafter proceeded to advertise the posts they
occupied .
[12] The opposing affidavit offers varying reasons for this:
(i) The applicants were on fixed -term contracts which automatically
ended on 31 December 2024 .
(ii) To role of a Judge’s secretary has evolved. An ad hoc Judges’
Committee established to evaluate same recommended the
appointment of secretaries with legal qualifications who would serve
on a fixed -term basis, and, in addition to standard clerical duties,
1 That is , they were repeatedly renewed.
provide focused legal support to their Judge s. This model supports
both the operational efficiency of Judges and the professional growth
of young law graduates.
(iii) To address the first respondent’s employment equity obligations . In
this regard, the affidavit reads:
In accordance with the government’s strategic priority of creating
employment opportunities for the youth, which includes the stipulated target
of 30% youth employment, the OCJ has undertaken measures to address
challenges in meeting this mandate. In response, the Gauteng Division
initiated a targeted intervention to facilitate job creation and youth graduate
employment .
Consequently, on 4 October 2024, the OCJ advertised 64 positions as part
of its graduate recruitment scheme (‘the Graduate Scheme ’) for Judges’
Secretaries, specifically aimed at advancing youth participation in the
workplace while addressing its employment equity obligations.
…
In respect of the applicants’ contractual renewals or extensions in the past,
the renewals or extensions of their contracts were necessi tated by
operational requirements , specifically to address the gap between the
expiration of the fixed -term contract and the completion of the recruitment
process.
[13] Notably , the affidavit also records that :
The [ Judges ’] Committee advised that the Judge’s Secretary’s role should be fixed -
term appointments, without indefinite extensions as such practices may contravene
labour regulations and create employment uncertainties. However, for Judge ’s
Secretaries who have been on fixed -term contracts for an extended period and/or
whose roles have effectively become permanent, a reclassification to permanent
status could be considered. [Emphasis added]
The dispute
[14] The applicants contend that they reasonably expected the first respondent to
renew their fixed -term contract s of employment and/or retain the m on an
indefinite basis given the history of their employment with the first respondent.
The first respondent, however, declined to renew their contracts or
acknowledge their reasonable expectation of permanency. They also
reasonably expected to be but were not short -listed in the advertised posts .
[15] In this regard, it is noted that:
(i) Section 186(1)(b) of the Labour Relations Act, 1995 inter alia provides
that:
Dismissal means that an employee employed in terms of a fixed term contract
of employment reasonably expected the employer – (i) to renew a fixed -term
contract of employment on the same or similar terms but the employer offered
to renew it on less favourable terms, or did not renew it; or (ii) to retain the
employee in employment on an indefinite basis but otherwise on the same or
similar terms as the fixed -term contract, but the employer offered to retain the
employee on less favourable terms, or did not offer to retain the employee.
(ii) In terms of section 186(2)(a) of the Act, ‘unfair labour practice’ means
inter alia any unfair act or omission that arises between an employer and
employee involving unfair conduct by the employer relating to the
promotion of an employee .
(iii) In terms of section 191 of the Act, if there is a dispute about the fairness
of a dismissal (as contemplated in section 186(1)(b) or a dispute about
an unfair labour practice , the dispute must be referred to the CCMA or
applicable bargaining council for conciliation and then to arbitration
where the dispute remains unresolved.
[16] It is not in dispute that the applicants have lodged a dispute against the first
applicant w ith the Bargaining Council in which they seek permanent
employment, alternatively, the extension of the ir fixed term contracts , and that
such dispute is pending arbitration before the bargaining council. There is
accordingly a live, legitimate dispute pending arbitration . The first respondent
essentially conceded this in its lis pendens claim.
[17] It is also not in dispute that prior to approaching this court and the High Court,
the applicants had raised internal grievances regarding the status of their
contracts.
[18] I turn now to specifically address why I deemed it appropriate to grant the
applicants their prayers 1 and 3 .
Res judicata
[19] The plea of res judicata is based on the fact t hat previous to this application the
applicants on 2 December launched an urgent application before the High
Court and that application was dismissed on 18 December 2024. The first
respondent contend ed that the High Court “conclusively adjudicate d” the
dispute between the parties.
[20] The plea has no merit. The application before the High Court prayed for interim
relief and was in any event based on a different cause of action and application ,
namely the review of a decision of the Judge President of the Gauteng High
Court (who is not a respondent in the matter before me) and/or OCJ in terms of
PAJA, alternatively , the principle of legality. The case before me also seeks
interim relief and interim relief pending the finalisation of a dispute before a
labour forum, namely a bargaining council. Also, the High Court did not
“conclusively adjudicate” the dispute described in the present proceedings (nor
even the dispute described in those proceedings ).
Lis pendens and jurisdiction
[21] I also found no merit in these defences. An applicant is permitted to approach
this court for urgent interim relief, pending the final determination of a dispute
pending before the CCMA or applicable bargaining council . Provided t he court
does not make orders that would have the effect of finally determining disputes
that fall within the province of the CCMA or a bargaining council .
Urgency
[22] This point is also based on the applicants’ approach to the High Court. In my
view, t he fact that the applicants’ representatives led them first into a
misconceived High Court application should not count against them . At the end
of the day, the applicants did not sit back when it became clear that their
contracts would not be renewed but attempted to resolve the matter internally
via various g rievances and when that failed approached the courts within a
reasonable time. There was only a 5 -day delay between the receipt of the High
Court judgment and the filing of the application before me.
[23] Moreover, as found below, the circumstances of the applicants present ed
extremely cogent grounds for urgency and the interim relief they sought .
The exc eptional circumstances
[24] There is authority to the effect that the labour court in terms of s158(1)(a) of the
Labour Relations Act, 1995 has the power to maintain or restore the status quo
pending the outcome of arbitration proceedings by the CCMA or applicable
bargaining council where an applicant persuade s the court that extremely
cogent grounds for such relief exists.2
[25] In my view there are cogent grounds in this case because on the face of
things3, the decision not to renew the applicants ’ contracts and/or consider
them for permanent employment and the way the applicants’ employment was
ended is glaringly unfair. I say this because :
(i) Despite the alleged fixed -and-temporary nature of their contracts, many
of the applicants were kept in employment for years. In some cases,
over 10 years.
(ii) The [Judges’] Committee , speci fically formed to assess the situation ,
advised that “for Judge’s Secretaries who have been on fixed -term
contracts for an extended period and/or whose roles have effectively
become permanent, a reclassification to permanent status could be
considered. ”
(iii) Despite their long service and the history of repeated renewals, the
applicants essentially were given a mere four months’ warning that their
contracts will not be renewed. While notice is not ordinarily required in
(proper) fixed -term contracts because the contract sets the end date , it is
arguable that where a fixed -term contract had been habitually extended
with the result that the employee ended up working for many years and
probably developed a sense of security of employment, reasonable
warning of an intention not to renew the contract is due.
2 University of the Western Cape Academic Staff Union and others v University of the Western Cape (1999) 20
ILJ 1300 (LC) (per Mlambo J as he then was); NUM v Elandsfontein Colliery (Pty) Ltd [1999] 12 BLLR 1330 (LC) ;
SACCAWU v Shoprite Checkers (Pty) Ltd [1997] 10 BLLR (LC) . While the LAC questioned this proposition , it did
not c ategorically reject same.
3 I stress on the face of things because these matters fall to be finally determined by the correct authority,
namely the bargaining council , in an evidentiary hearing at arbitration with (presumably more comprehensive
legal argument) .
(iv) It is highly questionable in law that employers may ‘dismiss’ employees
as a means of attaining their equity targets. Here, of course, I use the
term ‘dismissal’ as defined in section 186(1)(a) of the LRA. The defence
of affirmative action is not mentioned in any provisions of the LRA that
regulates the dismissal of employees.
[26] Ultimately, the only alternative available to the applicants was to accept a
termination of their contracts and claim dismissal and wait a considerable time
before the bargaining council determines their case . This was not a viable
alternative – it would have deprived them of employment in circumstances
where on the face of things t hey reasonably developed a sense of security of
employment but must face unemployment on short notice for highly
questionable reasons.
Costs
[27] I did not grant the applicants costs of suit. Whilst they were substantially
successful, they wasted valuable time of the court and the respondents in
persisting in argument with prayers for relief they obviously are not entitled to,
namely their prayers for final relief . Even if prayer 4 was intended as a request
for interim relief (as submitted during argument by counsel for the applicants),
the applicants failed to establish that they have any right to prevent the
recruitment process . If they succeed in demonstrating that they had a
reasonable expectation of the renewal of their fixed term contracts, or of
indefinite employment and the first respondent fails to show the dismissal s
were nevertheless fair, the remedies under section 193 of the LRA will kick in.
Moreover, ill consideration was given to the drafting of important aspects of this
application. The papers failed to properly demonstrate that a proper referral ha d
been made to the Bargaining Council. Their saving grace was the first
respondent’s averment in the opposing papers that a dispute concerning the
non-renewal of the applicants’ fixed -term contracts and their claim for
permanent employment ha s been referred to the Barg aining Council and was
pending arbitration.
The order
[28] It is for all the reasons set out above that I made the order that I did, as
reflected in paragraph 3 of this judgment, supra .
________________________________
Benita Whitcher
Judge of the Labour Court of South Africa
APPEARANCES :
For the Applicant s:
K Mvubu SC, with S Mirzoyev, instructed by Ningiza Horner Attorneys
For the First Respondent:
B Lecoge SC, with T Panda, instructed by State Attorney, Johannesburg