IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KI MBERLEY)

Case Number: 908/2025

In the matter between:

SOUTH AFRICAN MUNICIPAL WORKERS UNION APPLICANT


and


!KHEIS MUNICIPALITY 1ST RESPONDENT

THE PREMIER OF THE NORTHERN CAPE 2ND RESPONDENT

THE EXECUTIVE COUNCIL FOR THE NORTHERN CAPE 3RD RESPONDENT

MEC OF THE NORTHERN CAPE: DEPARTMENT OF 4TH RESPONDENT
Reportable : YES / NO
Circulate to Judges : YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO IL___I
2

CO-OPERATIVE GOVERNANCE, HUMAN SETTLEMENT
AND TRADITIONAL AFFAIRS (COGHSTA)

THE NATIONAL MINISTER OF THE DEPARTMENT OF 5TH RESPONDENT
CO-OPERATIVE GOVERNANCE AND
TRADITIONAL AFFAIRS

THE NATIONAL DEPARTMENT OF CO -OPERATIVE 6TH RESPONDENT
GOVERNANCE AND TRADITIONAL AFFAIRS

THE NATIONAL MINISTER OF FINANCE 7TH RESPONDENT

Heard on : 25 April 2025
Delivered on : 23 May 2025
Coram : Olivier AJ
Summary : Urgent application – declaratory and interdictory relief sought
against provincial and national executive in terms of section 139 of
Constitution – payment of salaries of members of applicant sought
from 1st respondent – established principle confirmed – applica nt
must make out case for urgency in founding papers – application
not urgent – practical considerations and nature of application
dictate that application be dealt with nevertheless – initial relief, bar
for non -payment of salaries, abandoned by applicant – new relief
sought in heads of argument and during argument – new relief, not
canvassed in founding papers – applicant seeks order for new relief
in terms of provisions of section 172 of Constitution, alternatively in
terms of further and/or alternative relief – legal principle confirmed –
party not entitled to relief under further and/or alternative relief if
relief is not clearly indicated in the founding affidavits and is not
established by satisfactory evidence on papers – section 172 of
Constitution not be interpreted as to afford a court carte blanche to
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make orders for relief that is not canvassed in t he founding papers
– court has jurisdiction to deal with non -payment of salaries of
members of applicant – sufficient allegations made in founding
affidavit upon which the jurisdiction of the court may be determined.


ORDER


In the result, the following order is made:

1. That the 1st respondent is to immediately make payment of the salaries of the
members of the applicant for the months of February 2025 and March 2025 and
to continue making payment of the salaries of the members of the applicant as
it falls due;

2. That the applicant and the 4th respondent are each to pay its own costs in this
application, the costs to be determined according to scale “B” as referred to in
rule 69(7) read with rule 67A(3) of the Uniform Rules of Court.


JUDGMENT


OLIVIER AJ

INTRODUCTION:

1. The main protagonists in this unfortunate saga involving a municipality that is,
like so many others in our country, in financial distress, are the South African
Municipal Workers Union (herein after referred to as “ SAMWU ” or “the
4

applican t”), the !Kheis Municipality situated in Groblershoop, Northern Cape
Province (herein after ref erred to as “ the Municipality ”), the Premier of the
Northern Cape (“the Premier ”) and the MEC of the Northern Cape : Department
of Co -Operative Governance, Human Settlements and Traditional Affairs (“the
MEC ”).

I will henceforth and where necessary refer to the Department of Co -Operative
Governance, Human Settlements and Traditional Affairs as “COGHSTA ”.

2. SAMWU approached this court on an urgent basis with an application that was
premised on the allegation that the Municipality was in serious and persistent
material breach of its obligations to provide basic services and to meet its
financial commitments as a result of a crisis in its financial affairs and that the
Municipality was in serious and urgent need of rescuing.

3. The application was formally opposed by the MEC and initially also by the 5th
and 6th respondents but at the commencement of proceedings o n 25 April
2025, I was informed by Mr. Davis who appeared on behalf of the se
respondents, that he was instructed to withdraw th e opposition of the
application on behalf of the 5th and 6th respondents.

4. The 1st to 3rd and 7th respondents did not oppose the application and argument
was therefore heard on behalf of SAMWU and the MEC only.

5. Counsel for SAMWU and the MEC presented me with comprehensive heads of
argument for which I am thankful.

THE RELIEF SOUGHT:

6. In its notice of motion wh ich was filed on 9 April 2025, SAMWU alleges that the
Municipality was in serious and persistent material breach of its obligations to
5

provide basic services and to meet its financial commitments as a result of a
crisis in its financial affairs and moved for an order which may be summarised
as follows:

6.1 That it be declared that the 3rd respondent cannot, alternatively has not
and does not, further alternatively has not and does not adequately
exercise the powers, alternatively perfor m the functions referred to in
section 139 of the Constitution of the Republic of South Africa, 1996
(herein after referred to only as “ the Constitution ”);

6.2 That it be de clared that the failure of the national executive as
contemplated in s ection 139 of the Constit ution to intervene in terms of
section 139(7) of the Constit ution, constitutes a breach of s ection
139(7) of the Constitution;

6.3 That, pending the resolution of the financial crisis of the Municipality
and the securing of the ability of the Munic ipality to meet its
obligations, the national e xecutive i s directed to forthwith invoke
section 139(7) of the Constitution in respect of the Municipality and to
exercise the powers and perfor m the functions referred to in s ection
139(5) of the Constitution and in th is regard to inter alia :

6.3.1 Implement a recovery plan aimed at securing the ability of the
Municipality to meet its obligations to provide basic services;

6.3.2 Approve a temporary budget or revenue raising measures or
any other measures to give effec t to the above recovery plan;
and

6.3.3 Assume responsibility for the implementation of the recovery
plan;
6


6.4 That in the alternative to the above and pending the resolution of the
financial crisis of the Municipality and the securing of the ability of the
Municipality to meet its obligations , the 3rd respondent be directed to
forthwith invoke and exercise the powers and perfor m the functions
referred to in s ection 139(5) of the Constitution, and in this regard to:

6.4.1 Implement a recovery plan aimed at securing the ability of the
Municipality to meet its obligations to provide basic services;

6.4.2 Approve a temporary budget or revenue raising measures or
any other measures to give effect to the above recovery plan;
and

6.4.3 Assume responsibility f or the implementation of the recovery
plan;

6.5 That in the alternative to the above and pending the resolution of the
financial crisis of the Municipality and the securing of the ability of the
Municipality to meet its obligations, alternatively the succ essful and
effect ive invocation of and exercise o f the powers and functions by the
3rd respondent as envisaged in s ection 139(5) of the Constitution,
further alternatively the successful and effective intervention of the
National Executive as envisa ged in section 139(7) of the Constitution,
the 3rd respondent is directed to forthwith take all steps necessary and
assume responsibility for the restoration of and the provision of basic
municipal services to the community of the Municipality;

6.6 That in the a lternative to all of the above and pending the resolution of
the financial crisis of the Municipality and the securing of the ability of
the Municipality to meet its obligations, the 3rd respondent, alternatively
7

the national e xecutive be ordered and direc ted to immediately appoint
and instruct an administrator with such powers and duties to ensure
that the Municipality complies with its financial obligations and to
ensure the restoration of basic municipal services to the community of
the Municipality;

6.7 That, in the event of the court finding that the above relief is for some
or other reason not appropriate, the court shall grant an order that is
just and equitable as envisaged in section 172 of the Constitution and
which has the remedial effect of the restoration of basic municipal
services to the community of the Municipality and thereafter the
continued functionality of the Municipality, the resolution of the financial
crisis in the affairs of the Municipality and the securing of the ability of
the Mu nicipality to provide basic services, alternatively that the court
grant an order that is jus t an equitable as envisaged in s ection 172 of
the Constitution which has the remedial effect that alleviates the
constitutional infringements set out in the foundi ng affidavit;

6.8 That the applicant be granted leave to supplement its founding
affidavit, to amend its notice of motion and to seek such further relief
as may be necessary should further breaches, and/alternatively
continued breaches, in relation to the provision of basic municipal
services to the communities and/or employees and/or creditors of the
Municipality occur after the granting of the order prayed for,
alternatively should the applicant be of the view that the respondents
have failed to compl y with the order of court;

6.9 That the Municipality be ordered to immediately make payment to the
members of the applicant of their salaries for the months of February
2025 and March 2025 and to continue making payment of such
salaries as it falls due; a nd
8


6.10 That those respondents who elect to oppose the application, be
ordered to pay the costs of same.

I will henceforth and only in an attempt to avoid possible confusion, refer to the
above relief that was sought by way of SAMWU ’s notice of motion of April
2025, as “ the Original Relief ”.

7. In his heads of argument on behalf of SAMWU , which were filed 2 (two) days
prior to the application being heard , Mr. du Preez indicated that SAMWU will no
longer be see king the Original Relief, but will ask the court to consider affording
them the following relief:

7.1 That it be declared that the Municipality, as a result of a crisis in its
financial affairs, is in serious and persistent material breach of its
obligations to provide basic services and to meet its financial
commitments and is unable to meet its obligations and financial
commitments;

7.2 That the Premier be directed to forthwith take the steps prescribed by
section 139 of the Local Government: Municipal Finance Management
Act1 (herein af ter referred to as “the MFMA ”);

7.3 That SAMWU be granted leave to supplement its founding affidavit, to
amend its notice of motion and to seek such further relief as may be
necessary should further breaches, and/alternatively continued
breaches, in relation to the provision of basic municipal services to the
communities and/or employees and/or creditors of the Municipality
occur after the granting of the order prayed for;


1 Local Government: Municipal Finance Management Act , Act 56 of 2003.
9

7.4 That the Municipality be ordered to immediately make payment to
SAMWU’s members of their salaries for the months of February 2025
and March 2025 and to continue making payment of such salaries as it
falls due; and

7.5 That those respondents who elect to oppose the application, be
ordered to pay the costs of same.

I will henceforth refer to the relief that the applicant seeks as referred to in its
heads of argument, as “ the New Relief ”.

8. Mr. Mthombeni who appeared on behalf of the MEC, unsurprisingly took
umbrage with the above abandonment of the Original Relief and argued that
the applicant is effectively attempting to advance a new case in its heads or
argument and to develop this new case during argument on behalf of the
applicant.

I will deal with the arguments on behalf of the respective parties in this regard
herein below in more detail.

9. It should be noted that SAMWU did not file an affidavit in reply to the answering
affidavit of the MEC, but at the commencement of the proceedings Mr. du
Preez advised that he was happy to proceed with the matter sans a replying
affidavit a nd that he will argue the case for SAMWU on the papers as it stood at
the time.

10. I am required to determine the following issues:

10.1 Whether this application is in fact urgent;

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10.2 Whether it is competent for this court to make an order on the terms as
set out in the New Relief;

10.3 Whether this court has the required jurisdiction to order the
Municipality to see to the payment of the salaries of SAMWU’s
members; and

10.4 Whether SAMWU had made out a case for any of the relie f that it
seeks.

URGENCY:

11. It is common cause and warrants very little discussion that it is expected of any
applicant in motion proceedi ngs to make out a case for the r elief that such
applicant seeks in the founding papers2and that a court will only in exceptional
circumstances allow an applicant to make out or to supplement its case in
his/her replying affidavit.3

12. The above holds equally true in the case of applications brough t on an urgent
basis where the u niform rules of court (“ the Rules ”) provide that in every
application brought on an urgent basis an applicant is supposed to (in his/her
founding affidavit ):

“… set forth explicitly the circumstances which is averred render the matter urgent and
the reasons why the applicant claims that the applicant could not be afforded
substantial redress at a hearing in due course. ”4


2 Treasure Karoo Action Group and Another v Department of Mineral Resources and Others
[2018] 3 All SA 896 (GP), par 10. Also see Skjelbreds Rederi A/S and Others v Hartless (Pty) Ltd
[1982] 1 All SA 1 (W) at 3 -4.
3 Skjelbreds Rederi , supra . Also see Pat Hinde & Sons Motors (Brakpan)(Pty) Ltd v Carrim and
Others 1976 (4) SA 58 (T) at 63G -64A as well as Shephard v Tuckers Land and Development
Corporation (Pty)Ltd (1) 1978 (1) SA 173 (W) at 177G -178A.
4 Rule 6(12)( b) of the Rules.
11

13. It was held in East Rock Trading 7 (Pty) Ltd & Another v Eagle Valley Granite
(Pty) Ltd & Others5 as follows:

“… the procedure set out in rule 6(12) is not there for the taking. An applicant has to
set forth explicitly the circumstances which he avers render the matter urgent .”6

14. In its founding affidavit and in support of its contention that this application is
urgent, SAMWU relies on the following allegations :

14.1 That its members h ave received only one salary since January 2025
and that the Municipality had been in breach of its obligations in this
regard to its employees;

14.2 That SAMWU’s members have been severely prejudiced by the
Municipality’ s failure to make payments towards pension fund and
medical aid contributions which may potentially prejudice its members;

14.3 That it cannot be expected of SAMWU members to continue to render
services under these circumstances;

14.4 That, due to the above, the members of SAMWU are unable to provide
for their families and also run the risk of having their vehicles and
homes repossessed;

14.5 That the urgent remedial measures sought by way of the application
are aimed at addressing and remedying institutional dysfunction which
prejudices the members of SAMWU as well as the broader community;
and


5 East Rock Trading 7 (Pty) Ltd & Another v Eagle Valley Granite (Pty) Ltd & Others [2012] JOL
28244 (GSJ).
6 East Rock Trading , supra , par 6.
12

14.6 That none of the respondents stand to be prejudiced by the relief
sought since the Municipality is unable to meet its financial obligations
and urgent intervention is warranted.

15. It is apposite to mention at this stage that, in an attempt to resolve/solve its
financial distress, the Municipality had adopted a financial recovery plan during
January 2022 with the specific purpose of addressing the underlying and
ongoing financial crisis at the Municipality.

16. The resolution taken by the council of the Municipality to adopt and implement
a financial r ecovery plan as well as the financial recovery plan of January 2022
(herein after referred to as “ the 2022 FRP ”) that was so adopted , were attached
to the MEC’s answering affidavit and it remains a mystery why it did not form
part of SAMWU’s founding papers and why the existence of the 2022 FRP was
not mentioned in said founding papers.

The existence of the 2022 FRP was not denied by SAMWU.

17. SAMWU furthermore also failed to mention that they were in fact part and
parcel of the process which lead to th e adoption of the 2022 FRP which means
that they must have been aware of the ongoing financial crisis at the
Municipal ity since at least January 2022.

18. SAMWU also failed to mention that they had, by way of media statements in
2024 already , threatened to ta ke the Municipality to court for the fact that
salaries for December 2023 were not paid .

19. The above failures by SAMWU were pointed out in the answering affidavit
deposed to by the MEC and sans a replying affidavit fro m SAMWU, these
failures were never properly expl ained under oath by SAMWU .

13

20. Mr. Mthombeni argued that the matter was not urgent for the reason that
SAMWU had known for quite some time of the financial difficulties experienced
by the Municipality and of the fact that (specifically) pension fund contributions
were not paid and he further argued, based on the afore -said, that any urgency
that might exist, was in fact self -created.

21. Mr. Mthombeni urged me to consider that this application was lodged only on 9
April 2025 with extremely truncated time periods being set whilst SAMWU had
been aware of the issues at the Municipality since 2022.

I have to agree with Mr. Mthombeni in this regard.

22. Although the fact that salaries of members of SAMWU were not paid for
January to March 2025 (the employees did in fact receive their salaries for
January 2025 but only during March 2025) could contribute to the application
being considered urgent, this application could have and should have been
brought at an earlier stage .

SAMWU did not provide a ny proper explanation why this application was not
lodged during February 2025 o r during early March 2025 if SAMWU viewed the
non-payment of s alaries in such a serious light and it appears that SAMWU
only decided to approach this court when their members really started to feel
the pinch.

23. I am consequently of the view that this application should in fact have been
removed from the urgent roll with costs to be paid by SAMWU, but I align
myself , in this instance, with the dictum in Windsor Hotel (Pty) Ltd v New
Windsor Properties (Pty) Ltd and Others7 where the learned Brooks AJ held as
follows:

7 Windsor Hotel (Pty) Ltd v New Windsor Properties (Pty) Ltd and Others [2013] ZAECMHC 14 (7
August 2013).
14


“… I am of the respectful view that the very practical considerations of factors such as
the incurring of unnecessary duplicated case preparation and presentation procedures ,
with their concomitant increase in already substantial legal costs, and the undesirable
duplication of the requirement of the attention and preparation of more than one court
…must be weighed against any apparent prejudice to a respondent who has been
brought to court on a truncated timefr ame. ”8

24. It has been held fairly recently that where expediency calls therefore, a matter
may be entertained despite a material non -compliance with the Rules.9

25. In view of the above I deem it unnecessary to burden another court with this
application in circumstances where the papers have been read and where the
parties have had the opportunity to fully present their cases on paper as well as
during argument and I hold the view that p ractical considerations as well as the
nature of the matter, dictate that thi s application be dispensed with.

THE NEW RELIEF SOUGHT:

26. Mr. du Preez argued that SAMWU is entitled to the New Relief based on the
wording of prayer 4 of the notice of motion of April 2025 which states as
follows:

“THAT in the event that the Court finds that the remedies sought by the Applicant are
for any reason not appropriate, the Court grant an order that is just and equitable as
envisaged in section 172 of the Constitutio n which has the remedial effect of the
restoration of basic municipal services to the community of the Municipality and
thereafter the continued functionality of the Municipality, the resolution of the crisis in
the financial affairs of the Municipality an d the securing of the ability of the Municipality
to meet its obligations and to provide basic services, alternatively the Court grant an

8 Windsor Hotel , supra , par 10.
9 See Magricor (Pty) Ltd v Border Seed Distributors CC: In re: Border Seed Distributors CC v
Magricor (Pty) Ltd [2020] ZAECGHC 103, par 38.
15

order that is just an equitable as envisaged in section 172 of the Constitution which
has the remedial effect that all eviates the constitutional infringements set out in the
founding affidavit hereto. ”

27. Mr. du Preez submitted that the above prayer contained i n the notice of motion,
empowers this court to grant an order in terms of the New Relief sought if
regards are also to be had to the provisions of s ection 172 of the Constitution .

28. It should be reiterated , at the risk of repeating myself, that the New Relief that
SAMWU now seeks, is only referred to in their heads of argument and in
essence boils do wn to an order which would compel the Premier to exercise
the pow ers granted to him in terms of s ection 139 of the MFMA.

It should also be pointed out that the Original Relief does not refer to the
Premier and no relief is sought against the Premier in hi s official or any other
capacity in terms of the Original Relief .

29. Mr. Mthombeni argued that the court should not consider the New Relief now
prayed for , since SAMWU always ha d the intention to approach the court with
an application pertaining to the payment of its members’ salaries and that the
initial reliance on the alleged breach/violation of the provisions of the
Constitution, was merely an attempt to get the application heard on an urgent
basis.

30. Mr. M thombeni contended that SAMWU should be held to its initial papers and
that it should then be found that SAMWU had failed to make out a case for the
Original as well as for the New Relief and that the application should be
dismissed with costs on a punitiv e scale on that basis alone.

31. Section 172 of the Constitution deals with the powers of courts in constitutional
matters and states as follows:
16


“(1) When deciding a constitutional matter within its power, a court –

(a) Must declare that any law or condu ct that is inconsistent with the Constitution is
invalid to the extent of its inconsistency; and

(b) may make any order that is just and equitable, including –

(i) an order limiting the retrospective effect of the declaration of invalidity; and

(ii) an order suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority to correct the defect.

(2) (a) The Supreme Court of Appeal, the High Court of South Africa or a court of
similar status may make an order concerning the constitutional invalidity of an
Act of Parliament, a provincial Act or any conduct of the President, but an order
of constitutional invalidity has no force unless it is confirmed by the
Cons titutional Court.

(b) A court which makes an order of constitutional invalidity may grant a temporary
interdict or other temporary relief to a party, or may adjourn the proceedings,
pending a decision of the Constitutional Court on the validity o f that Act or
conduct.

(c) National legislation must provide for the referral of an order of constitutional
invalidity to the Constitutional Court.

(d) Any person or organ of state with a sufficient interest may appeal, or apply,
directly to the Constitutional Court to confirm or vary an order of constitutional
invalidity by a court in terms of this subsection. ”

32. In its founding affidavit SAMWU refers the reader to various provisions of the
MFMA as well as to various provisions of the Constitution, but fails to refer to or
deal with section 172 of the Constitution and the powers of a court and
17

specifically this cou rt, to make an order as sought for by way of the New Relief
in terms of the provisions of the said s ection 172 especially in circumstances
such as these where the New Relief was only canvassed in SAMWU’s heads of
argument and during argument on behalf of S AMWU.

33. Mr. du Preez, with reference to D.D v I.L and Another10 intimated that I may
also consider granting the New Relief under “further and/or alternative relief ”
as moved for in the notice of motion.

34. In Port Nolloth Municipality v Xhalisa and Others; Lu walala and Others v Port
Nolloth Municipality11 where the court was confronted with the right of a
municipality to an order to further and/or alternative relief, it was held as
follows:

“Such a prayer can be invoked to justify or entitle a party to an order in terms other
than that set out in the notice of motion … where that order is clearly indicated in the
founding (and other) affidavits … and is established by satisfactory evidence on the
papers…Relief under this prayer cannot be granted which is su bstantially different to
that specifically claimed, unless the basis therefore has been fully canvassed, viz the
party against whom such relief is to be granted has been fully apprised that relief in
this particular form is being sought and has had the ful lest opportunity of dealing with
the relief. ”12(My omissions) .

35. In Somali Association of South Africa and Others v Refugee Appeal Board and
Others13 the lea rned Navsa ADP, in a unanimous judgment, refused to grant
further and/or alternative relief, stating as follows:


10 D.D v I.L and Another [2024] ZAWCHC 215 (20 August 2024).
11 Port Nolloth Municipality v Xhalisa and Others; Luwalala and Others v Port Nolloth Municipality
1991 (3) SA 98 (C).
12 Port Nolloth Municipality , supra at 112D -F.
13 Somali Association of South Africa and Others v Refugee Appeal Board and Others [2021] 4 All
SA 731 (SCA).
18

“… it is unfair and unprecedented for a litigant to seek extensive substantive relief not
foreshadowed in the notice of motion, especially when what is sought is not dealt with
on affidavit, thus not providing an opponent an opportunity to dea l with it. ”14

36. I have already pointed out herein above that, in terms of the Original Relief as
set out in the notice of motion, relief was primarily sought against the national
and/or the provincial executive and that the Premier was not mentioned in
either his official capacity or in any other capacity.

37. The applicant now, in terms of the New Relief, seeks substantive relief against
the Premier which was not foreshadowed in the notice of motion and which was
not dealt with in the founding affidavit of SAMWU.

This last -minute decision by SAMWU to actively involve the Premier in the
proceedings without alerting the Premier to the fact, is in my view opportunistic
and unfair towards the Premier.

38. The argument of Mr. du Preez that sufficient reference was made in the
founding affidav it to the provisions of section 139 of the Constitution as well as
to section 139 of the MFMA in order to justify the New Relief sought against the
Premier does in my view not hold water.

39. I have already pointed out herein above that an applicant has the obligation to
make out a case for the relief that he/she seeks by way of his/her founding
papers and it is apposite to quote the learned Caney J where he stated in Bayat
and Others v Hansa a nd Another15 as follows:

“… an applicant for relief must (save in exceptional circumstances) make out his case
and produce all the evidence he desires to use in support of it, in his affidavits filed

14 Somali Association of South Africa , supra , par 97.
15 Bayat and Others v Hansa and Another 1955 (3) SA 547 (N).
19

with the notice of motion … and is not permitted to supp lement it in his replying
affidavits … still less make a new case in his replying affidavits. ”16

40. The above , in my view, also holds true for an applicant attempting to make out
a new case in his/her heads of argument and during the actual argument of the
matter.17

41. I could furthermore find no authorities, nor was I referred to any, which
authorises me to make an order for the New Relief sought in terms of the
provisions of section 172 of the Constitution and I hold the view that section
172 of the Constitution should in any event not be interpreted as to afford a
court carte blanche to make orders for relief that is not canvassed in the
founding papers.

42. In view of the above, I am consequently not prepared to grant SAMWU the
relief as is set out in paragraphs 7.1 to 7.3 herein above.

43. In as far as the payment of salaries to SAMWU’s members is concerned, it is
contended in the founding affidavit that the said members of SAMWU had not
been paid their salaries for February and March 2025 (salaries for January
2025 were apparently paid during March 2025) which, as was already alluded
to herein above, severely prejudices these members and their families.

44. It was never denied by the Municipality or by the MEC in his answering affidavit
that the Municipality was experiencing financial difficultie s (to put it mildly) and
that salaries of members of SAMWU were not paid for February 2025 and
March 2025.


16 Bayat , supra at 553D -E.
17 My Vote Counts NPC v Speaker of the National Assembly and Others [2015] ZACC 31 (30
September 2015), par 177
20

45. My primary concern with the fact that SAMWU approaches this court (in terms
of both the Original as well as the New Relief) for the payment of the salaries of
the SAMWU members was whether this court has the necessary jurisdiction to
make such an order , since th e issue of jurisdiction was also not pertinently
raised in SAMWU’s founding papers and since the non -payment of employees’
salaries is in essence a labour issue that should be dealt with in terms of the
mechanisms created by the relevant labour laws.

46. I shared my concerns in this regard with Mr. du Preez who argued that this
court may assume that it has the required jurisdiction in terms of the provisions
of section 77 of the Basic Conditions of Employment Act (“the BCEA ”)18.

47. It is trite that section 77(3) of the BCEA confers jurisdiction on the civil courts
(concurrent ly with the labour court) “... 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. ”

48. Mr. du Preez argued that a reasonable inference may be drawn from the
founding papers that the members of SAMWU who are employees of the
Municipality and who have not been paid their salaries, do have valid contracts
of employment with the Municipality , the terms of which were breached by the
Municipality by reason of the non -payment of sal aries and that it was therefore
not necessary to specifically plead this fact in the founding affidavit.

49. Mr. du Preez furthermore contended that it is not necessary for an applicant to
specifically plead the fact that a court has jurisdiction as long as t he founding
papers contain sufficient allegations upon which the jurisdiction of the court
may be determined.


18 Basic Conditions of Employment Act , Act 75 of 1997.
21

50. Mr. Mthombeni did not argue the possible lack of jurisdiction of this court to
grant an order for the payment of salaries with any amount of vigo ur.

51. The question therefore is whether SAMWU has managed to satisfy the onus on
it to establish that this court has jurisdiction to grant an order to the effect that
the SAMWU members’ salaries should be paid and whether sufficient facts
were set out in it s founding affidavit to justify a conclusion that this court indeed
has this jurisdiction.19

52. In Titty’s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others20
the following was stated:

“It has always been the practice of the Courts in South Africa to strike out matter in
replying affidavits which should have appeared in petitions or founding affidavits,
including facts to establish locus standi or the jurisdiction of the Court .”21 (My
unde rlining).

53. In its founding affidavit, SAMWU makes no mention of the jurisdiction of this
court and sets out no grounds as to why this court is clothed with the necessary
jurisdiction to hear the application and specifically deal with the issue regarding
the non -payment of salari es to the members of SAMWU, but the following
relevant allegations are made in the founding affidavit:

“… SAMWU represents at least 43 employees that work for the Municipality .”

and further:

“The Municipality has been unable to timeously and consistently pay employee
salaries .”

19 See Kritzinger v Newcastle Local Transitional Council and Others 2000 (1) SA 345 (N) at 352C -
D.
20 Titty’s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others 1974 (4) SA 362 (T).
21 Titty’s Bar and Bottle Store , supra at 368H.
22


and further:

“The principal obligation on an employer is to pay its employees its salaries. The
Municipality has been in constant breach of this obligation .”(My underl inings).

54. The afore -said allegations made by SAMWU in its founding affidavit were not
seriously denied by the MEC and it is interesting to note that the existence of
employment contracts, alternatively valid employment contracts between the
Municipality and the members of SAMWU was never denied .

55. I am consequently willing to accept , based on what has been stated in the
founding affidavit and based on what has not been denied, that valid contracts
of employment between the members of SAMWU and the Municipa lity do in
fact exist.

56. Payment of remuneration for services rendered is an essential term of any
contract of employment whether in writing or not and I am consequently willing
to accept that the underlying facts as set out in the founding affidavit, in as far
as the non -payment of salaries are concerned, do in fact support the argument
by Mr. du Preez that this court does have t he necessary jurisdiction to
determine the issue pertaining to the non -payment of the salaries of the
SAMWU members.

57. It is trite that, as long as an employee tenders his/her services to the employer,
such employee is entitled to be paid his/her earnings and other benefits as and
when they are due under the applicable contract, sectoral determination or
collective agreement.22


22 John Grogan, Workplace Law , 13th Ed (2020) at 42.
23

58. The undisputed failure by the Municipality to make payment of the salaries of
the SAMWU members in the present matter, despite continuous tendering of
services by such employees, constitutes a breach of a material term of the
employment contracts between the par ties and should be frowned upon.

59. It is not acceptable to merely shrug your shoulders and argue, as was done on
behalf of the MEC , that there is not sufficient money to pay these salaries and
that salaries will, in terms of the 2022 FRP that is in place, be paid eventually
but that it will take some time.

60. It is not in contention that the 2022 FRP has been in place to attempt to resolve
the financial crisis at the Municipality since 2022 and I hold the view that it is
time to revisit th e 2022 FRP in order to avoid situations such as non -payment of
salaries of employees.

COSTS:

61. In view of the order that I will be making, I am of the view that both parties have
had success and failure in as far as the outcome of the matter is concerned and
I am th erefore not prepared to mulct one party with the costs of this application.

62. I am also of the view that, despite what has been argued on behalf of both
parties, this application is not complex enough to warrant costs being
determined on anything else by scale “B” as referred to in rule 69(7) read with
rule 67A(3) of the Uniform Rules of Court.

ORDER:

63. In view of all of the above, I make the following order:

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1. That the 1st respondent is to immediately make payment of the
salaries of the members of the applicant for the months of
February 2025 and March 2025 and to continue making payment
of the salaries of the members of the applicant as it falls due; and
2. That the applicant and the 4th respondent are each to pay its own
costs in this application , the costs to be determined according to
scale "B" as referred to in rule 69(7) read with rule 67 A(3) of the
Uniform Rules of Court.
A.D. OLIVIER
ACTING JUDGE
NORTHERN CAPE DIVISION
REPRESENTATIVES OF PARTIES:
For APPLICANT
For 4TH RESPONDENT Adv. T. du Preez
o.i.o Kramer Weihmann Inc.
BLOEMFONTEIN
c/o Van De Wall Inc.
KIMBERLEY
Adv. P. Mthombeni
o.i.o Motlhamme Pino Attorneys
KIMBERLEY
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For 5TH & 6TH RESPONDENTS : Mr. C. Davis
The State Attorney
KIMBERLEY