IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: 2025- 036061
In the matter between:
DEPARTMENT OF PUBLIC WORKS & ROADS
NORTHWEST PROVINCE Applicant
and
NOLUFEFE PRIMROSE YUZE Respondent
Heard: 20 March 2025
Delivered: 30 May 2025
This judgment was handed down electronically by ci rculation to the parties'
legal representatives by email and publication on the Labour Court’s website.
The date and time f or hand- down is deemed to be on 30 May 2025.
JUDGMENT
MAFA -CHALI , AJ
2
Introduction
[1] In this opposed urgent application, the applicant seeks an order staying the
execution of the order granted in th is Court by AJ Kumalo on 19 February 2025
under case no 2024 -097472, pending the final determination of the applicant’s
rescission application.
[2] The applicant also prayed that an order be granted for the applicant to file a
rescission application in a period of twenty (20) days from the date of the order for this application.
Background
[3] The Respondent, Prim rose Yuze, was employed by the applicant on a fixed-
term contract which was to expire on 31 July 2024, and she was based in the office
of the Member of Parliament (MEC) of the applicant (Department of Public Works
and Roads, North West Province).
[4] In or around April 2023, the applicant issued a letter to the Respondent to
confirm her absorption on a permanent basis, but subsequently withdrew the said
letter in July 2023, indicating that the letter was erroneously issued.
[5] In February 2024, the r espondent institutes proceedings in this Court to
challenge the withdrawal of the absorption letter, which application was opposed by the applicant. It is apparent that the application is currently still pending and not finalised.
[6] On 29 August 202 4 after the expiry of the fixed- term contract, the
respondent launched an urgent application to this Court to interdict the applicant
from terminating her services and the ap plicant to continue paying the r espondent
her monthly remuneration, pending the finalisation of the application under case no J297/20 which is challenging the withdrawal of the absorption letter. This urgent
application was set down on 3 September 2024 before this Court . On 3 September
2024, the Court refused to grant the order and stood down the mat ter down to 6
3
September 2024, and further directed the r espondent to provide clarity on the
manner of service on the applicant. The application was then heard and finalised on
6 September 2024 in the absence of the applicant.
[7] The r espondent subsequently obtained a Court order on 19 February 2025
interdicting the applicant from terminating the r espondent’s servi ces and to continue
to pay the r espondent her monthly remuneration, pending the finalisation of the
application under case no J297/2024.
[8] The r espondent’s at torneys issued a letter to the applicant on 10 March
2025, asserting that the Court order interdicting the applicant from terminating the
respondent’s services and she will r eport for duty and also demanded to be
remunerated arising from the unlawful termination of her services. The applicant sent
a letter of response to the applicant on 13 March 2025, rejecting the demand and
indicating the intention to challenge the Court order, and further indicating that the
respondent must not report for duty on 14 March 2025 pending the determination of
this urgent application.
[9] On 14 March 2025, the r espondent’s attorneys sent another letter to the
applicant and indicated that the applicant will report for duty in terms of the Court
order until such time as the order is set aside or as directed by the competent court.
This then led to this urgent application launched by the applicant seeking an order to stay the execution of the Court order dated 19 February 2024 pending the institution
of the rescission application within twenty (20) days from the granting of the relief
sought. This urgent application is opposed by the respondent.
Submissions by the applicant
[10] The applicant submitted that its attorneys of record is the State Attorney and
the respondent failed to make a proper service of the urgent application on 29
August 2024 upon the State Attorney; as the application was served to the
applicant’s employees by email and this was against the established rules of the
Court and practice directives governing service and notification of proceedings. The
4
applicant viewed the respondent’s conduct of proceedings as improper, unethical
and prejudicial to the applicant.
[11] It was further submitted by the applicant that the respondent’s legal
representatives failed to invite the State Attorney to the caselines platform despite
the fact that they were aware that the State Attorney was on record, which is a clear
non-compliance with Rule 4.1 of the Practice Directive of 2024.
[12] On 5 September 2024, the applicant’s official , Mr David Manamela advised
the respondent’s attorneys to direct all correspondences pertaining to t he matter to
the State Attorney in Mafikeng; and the respondent’s attorneys effected service to
State Attorney by email not in compliance with rule 9(2)(b) of the Labour Court Rules. Service effected by email must be accompanied by an affidavit of a person who effected service providing proof of the correct email address, and confirmation
that the email was sent and confirm ation of the name of the person who
telephonically acknowledged receipt of the email. The service by the respondent
remained defect ive and irregular as it failed to confirm that the urgent application
was properly transmitted, and also confirm with the State Attorney's
acknowledgement of receipt of the service by email .
[13] Regarding urgency, the applicant submitted that Rule 8 of the Labour Court
Rules allows an urgent application where the applicant is able to demonstrate
urgency and substantial prejudice. Rule 16A of the Labour Court Rules also permits a rescission of an order granted in the absence of a party if good cause is shown.
This application is urgent in that the respondent reported for duty on 10 March 2025
despite the request by the applicant not to report for duty pending the finalisation of
the disputes , but the respondent refused to do so, alleging that she cannot stop
reporting for duty unless the applicant obtains a C ourt order .
[14] The Court order came to the applicant’s attention on 7 March 2025, although
it was granted on 19 February 2025. The applicant could not take immediate action
before the respondent reported for duty on 10 March 2025.
5
[15] On 10 March 2025 and 11 March 2025, the applicant engaged in
consultation and decided to obtain legal services of private attorneys on the matter ,
and they were appointed on 12 March 2025. Consultations with attorneys and
counsel were only done on 12 March 2025, and a decision was taken to make an
urgent application to the C ourt to stay the execution of the order pending the
finalisation of the rescission application.
[16] The applicant has allowed the respondent to render the services , and she is
to be remunerated monthly , causing severe financial prejudice. If the execution
proceeds, the applicant will suffer irreparable harm as it will be forced to com ply with
the order that was granted procedurally and unfairly as the applicant was denied an
opportunity and right to participate in the proceedings in order to place its version before the Court, in violation of section 34 of the Constitution. The respondent will
suffer no r eal prejudice if the execution is temporarily halted pending the rescission
hearing. The applicant will not get a substantial redress in due course if the matter is
not heard on urgency.
[17] The applicant has established and met the four (4) requirements for an
interim order in that it has established a prima facie right in that the order for the
respondent was granted against the applicant in absentia, and the execution thereof
shall have adverse consequences on the applicant’s rights.
[18] It was submitted that the applicant will suffer irreparable harm if this order is
not granted and it will be forced to comply with an order that was granted and it will
be forced to com ply with an order that was granted procedurally and unfairly. The
respondent is reporting for work each day , and the applicant suffers financial harm
which is irre parable. The respondent is demanding payment from the applicant ,
relying on the order, further exacerbating the financial prejudice to the applicant.
[19] Failure to stay the execution will result in undue expenditure of the
applicant’s funds, and this will cause substantial and irreparable harm and prejudice.
If the order is executed before the rescission application is determined, the applicant must reinstate the respondent unlawfully as its employee, causing financial loss and
wasteful expenditure of the applicant’s funds as well as operational disruptions. It is
6
a violation of due process rights for the applicant not to be given an opportunity to
oppose t he initial order. The applicant shall suffer an irreparable harm if this order is
not granted. If the order is refused, the applicant will suffer great prejudice, whereas
the respondent will suffer no real prejudice if the execution is temporarily halted
pending the rescission application.
[20] The balance of convenience favours that the application be granted, as if the
order is granted, both parties will be able to deal with the pending rescissi on
application without any prejudice to either party. Granting the order will afford an
opportunity for the pending proceedings to be fully ventilated before the C ourt.
[21] It was submitted that the applicant has no other alternative remedy in law to
get the respondent to stay the execution of the order pending the final determination of the rescission application. As the respondent refused to report for duty pending
the final determination of the rescission application, the only way to protect against the execution of the order is to obtain the urgent stay of the execution until the
rescission application is finalised.
[22] It was submitted that there are reasonable prospects of success in setting
aside the judgment order as it was procedurally and irregularly obtained in non-
compliance with the practice directive, as the State Attorney was not invited to the
caselines. Lack of service is non -compliance with Rule 9(2)(b) of the Labour Court
Rules, as the service by email did not come to the attention of the State Attorney,
and it was not confirmed by a service affidavit that receipt of the urgent application
was telephonically acknowledged by the State Attorney. There is also non-
compliance with Rule 6.1 of the Directive 1 of 2024 in that at the close of the urgent
court roll on Thursday, the application was not served on the applicant, but it was
alleged it was issued by the C ourt the same day on 29 August 2024, with no proof of
such issuance of the application provided, whereas the order was heard granted 19
February 2025, over 5 months since the application was issued.
Submissions by the respondent
7
[23] The respondent raised submitted that the applicant’s urgency must be struck
off the roll as it was se lf-created, as the applicant was at all relevant times aware that
the matter was pending at C ourt.
[24] At no point between 7 March 2025 and the day the order was served did the
applicant’s attorneys endeavour to engage the respondent; and subsequent to 13
March 2025 when the applicant’s attorneys approached the respondent , the
applicant knew fully well that there is a possibility that the respondent would return to
her employment at some point if an order was granted in her favour.
[25] The applicant served this urgent application on the respondent’s attorneys
on 15 March 2025 at 18h00, and this was on Saturday , which is not a working day ,
and the matter was enrolled on 20 March 2025. In terms of Directive 6 of 2024, the urgent case roll shall close at noon on Thur sday for the following Tuesday. The
applicant has not set out sufficient grounds for gross deviation from the C ourt Rules
and directives. The respondent was not afforded sufficient time to prepare and
oppose the application as she was afforded only one day, that is 17 March 2025, to
file the notice to oppose and answering affidavit on 18 March 2025, less than one full
Court day. An indulgence requested by the respondent’s attorneys to oppose and file
the answering affidavit on or before 20 March 2025 was refused by the applicant’s
attorneys.
[26] The r espondent contended that the applicant does not stand to suffer any
harm at all should she continue with her employment . She will suffer irreparable
harm if she does not report for duty , in that she will no longer receive a salary. The
applicant is attempting to delay the prospects of the respondent to receive her
salary , and she will have no income, and as such, she will not be able to afford her
day-to-day expenses. If the applicant gets the interim relief, the respondent will be
without an income, and she is the breadwinner at home with children to support.
[27] The balance of convenience does not favour the applicant. If the interim
interdict is granted, the respondent and her children will be prejudiced for reasons set out above. She will suffer financial prejudice because of the delay of the C ourt in
delivering judgment in the application.
8
[28] The applicant has not satisfied the requirements for the interim relief . The
applicant sought from the respondent not to report for work in order to familiarise
itself with the matter and to make an informed decision. The respondent did not have
a problem with the indulgence provided that the respondent was allowed to report for
duty. There was no further communication from the respondent , but they then
launched the urgent application. The applicant could have engaged the respondent further on reaching a settlement , but did not do so.
[29] The respondent views herself as a permanent employee of the applicant.
Her contract linked to the term of the MEC was terminated without her knowledge by
the applicant through the letter of permanent contract emanating from the
organisational structuring. The applicant unlawfully attempted to withdraw her
permanent appointment without following the Public Service Directive Guidelines for
irregular appointments.
[30] The applicant elected not to oppose the urgent application launched by the
respondent with this Court pending finalisation of the declaratory order under case
number J297/24. The respondent could not be sure that the applicant was represented by the State Attorney in the declaratory application, and also in the
subsequent urgent interdict.
[31] The applicant was served with the urgent applic ation on 29 August 2024.
Acting J ustice Kumalo stood the application down from 3 September 2025 to 6
September 2025 and ordered the respondent’s attorneys to confirm receipt of the
urgent application by the applicant and to file the service affidavit. On 4 September
2025, the applicant was called to confirm receipt of the application. Mr David
Manamela was reached, and he indicated that he did not receive the email, and
asked that it be resent . On 5 September 2024 , the urge nt application was sent to Mr
David Manamela, who then later enquired what happened on 3 September 2024 and
an email response was sent to him.
[32] Mr David Manamela sent an email on 5 September 2024 that the
respondent’s attorneys correspond with the State A ttorney , and the same was done
9
by the respondent’s attorneys on 4 September 2024 by email. Mr Letsoalo of the
State Attorney was contacted directly on his cell number 083418 0067 on 4
September 2025 by the respondent’s attorneys to acknowledge receipt of the urgent
application. Therefore, the applicant and the State Attorney were aware of the urgent
application, as Acting Justice Kumalo wanted to satisfy himself of the service of the
urgent application upon the applicant , and he granted the order after satisfying
himself with the service affidavits as such on 6 September 2024. Both the a pplicant
and the State Attorney were served on the correct email addresses.
[33] The applicant did not indicate that it intends to oppose the urgent application ,
hence, the respondent did not invite it on the casel ines. The applicant did not appear
in court on 6 September 2024, hence, the urgent application was granted on an
unopposed basis. The application was never heard on 17 September 2024, but the
order was delayed and only issued and granted by the Court on 19 February 2025, after the respondent’s attorneys made several follow -up communications requesting
the order with the office of the Acting Judge President on 10 September 2024, 27
September 2024, 22 October 2022, 25 October 2024, 29 November 2024, 6 February 2025 and 13 February 2025. Judgment was ultimately received on 27
February 2025, when the office of the Acting Judge President was already
suggesting to rehear the matter before another judge.
[34] It was denied that the respondent would suffer no real prejudice if the
execution of the order is temporarily halted pending the rescission application. The respondent already suffe red prejudice as it has already been 5 months since the
urgent application was heard on 6 September 2024 until the order was delivered in
February 2025. The respondent has been out of work since July 2024 with no
income and no financial ability to take care of her family. It will be unreasonable for the applicant to expect the respondent not to report for duty in instances where the Court order was granted and the respondent has not been receiving a salary since
July 2024.
Applicable legal principles
Urgency
10
[35] Rule 8 of the Labour Court Rules1 provides for urgent applications. An
applicant that approaches the C ourt on an urgent basis essentially seeks an
indulgence and to be afforded preference, in order to prevent the prejudice and harm
that may materialise or persist if the conduct complained of continues. Central to a determination of whether a matter is urgent is whether the applicant has, in the
founding affidavit, set forth explicitly the circumstances which render the matter
urgent and the reason why substantial relief cannot be attained at a hearing in due
course. Thus, it is required of an applicant to set out adequately in his or her
founding affidavit the reasons for urgency and to give cogent reasons why urgent relief is necessary.
[36] In Jiba v Minister: Department of Justice & Constitutional Development &
others
2, the Court applied Rule 8 of the Labour Court Rules as follows:
‘Rule 8 of the rules of this court requires a party seeking urgent relief to set out the reasons for urgency, and why urgent relief is necessary. It is trite law that there are degrees of urgency, and the degree to which the ordinarily applicable rules should be relaxed is dependent on the degree of urgency. It is equally trite that an applicant is not entitled to rely on urgency that is self
created when seeking a deviation from the rules.’
[37] It was succinctly described by the Court in Maqubela v SA Graduates
Development Association & others3 that:
‘Whether a matter is urgent involves two considerations. The first is whether the reasons that make the matter urgent have been set out and secondly
whether the applicant seeking relief will not obtain substantial relief at a later stage. In all instances where urgency is alleged, the applicant must satisfy the court that indeed the application is urgent. Thus, it is required of the applicant adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent r elief is necessary…’
1 GN 4775 of May 2024: Rules Regulating the Conduct of Proceedings of the Labour Court (effective
17 July 2024) .
2 (2010) 31 ILJ 112 (LC); [2009] 10 BLLR 989 (LC) at para 18.
3 (2014) 35 ILJ 2479 (LC); [2014] 6 BLLR 582 (LC) at para 32.
11
[38] The factors the a pplicant must show are set out in Mojaki v Ngaka Modiri
Molema District Municipality & others4, in which the court referred with approval to
the following dictum from East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley
Granite (Pty) Ltd and Others5:
‘… An applicant has to set forth explicitly the circumstances which he avers
render the matter urgent. More importantly, the a pplicant must state the
reasons why he claims that he cannot be afforded substantial redress at a
hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in an application in due course. The rules allow the court to come to the assistance of a litigant because if the latter were to wait for the normal course laid down by the rules it will not obtain substantial redress. ’
[39] The applicant argued that the urgency of the application is based on the fact
that the respondent is reporting for duty as a result of an order that was improperly
and unlaw fully obtained by the respondent , 19 February 2025 as the urgent
application was not properly served on the applicant in terms of Rule 9 (1)(b)(iv) and
Rule 9(2)(b) of the Labour Court Rules.
[40] In terms of Rule 9(1)(b)(iv ), a document that must be served on any party
may be served in any one of the following ways:
‘if the party is the State or any organ of state defined in terms of section 239
of the Constitution, or any department of national or provincial government
(collectively referred to as an “organ of State”), by serving a copy both on a
responsible employee in the office of the state attorney situated in the area
or province in which th e process is initiated, and the responsible office of the
organ of State against which the claim is brought. ”
[41] It is therefore mandatory to effect service on the State Attorney of the urgent
application in the province, as the applicant is the provincial department as stipulated
in Rule 9 (1)(b)(iv). It was not optional for the direct service by email o n the applicant
4 (2015) 26 ILJ 1331 (LC); [2014] ZALCJHB 433 at para 17.
5 [2011] ZAGPJHC 196.
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itself, as was done by the respondent on 29 August 2024. Subsequent service on the
State Attorney made on 5 September 2024 for the urgent application to be heard on
4 September 2024 was clearly a very short notice for the applicant to oppose and file
the answering affidavit. Failure to comply with such a mandatory provision renders
the service process defective. The respondent also acknowledged that the
applicant’s representative, the State Attorney , was not invited to the caselines. The
reason provided was that the respondent did not know if the State Attorney was also
representing the application in this matter as well.
[42] In terms of Rule 9(2)(b), service is proved in court in any one of the
following ways:
‘(b) if service was effected by email, by an affidavit of the person who
effected service. The deponent must provide proof of the correct email address, confirm that the whole of the email was sent, and confirm that a
named person telephonically acknowledged receipt of the whole of the email; ’
[43] The service affidavit by the respondent ’s attorneys , dated 6 September
2024, is also defective in that it was made by the person who did not effect the
service , no confirmation of the email addresses used, and no telephonic
acknowledgement of receipt of the email by the person who received the email . Mr
David Manamela, of the State Attorney , did not acknowledge receipt of the email for
service of the urgent applications. There is also no service affidavit on the State Attorney by the respondent , and a telephonic acknowledgement of receipt of the
urgent application on the State Attorney. Compliance in terms of this Rule is further
also mand atory , and non- compliance makes it defective. Based on this, it can
therefore not be concluded that there was a proper service of the urgent application by the respondent to the applicant. I therefore find that the respondent has failed to
effect proper service of the urgent application in terms of the Rules of the Court.
[44] I fully agree with the applicant that failure by the respondent to effect proper
servi ce had deprived the applicant of the constitutional right in terms of section 34 of
13
the Constitution6 to participate in the proceedings on 6 September 2024 when the
order was granted.
[45] The urgency of this matter has been shown clearly in the applicant’s affidavit
being necessitated by the respondent’s reliance on the C ourt order to report for duty
on 10 March 2025. The respondent has also been remunerated by the applicant pending this urgent application as she is rendering her services. The respondent is also demanding payment of her remuneration for the past months from the
respondent. I am satisfied that the applicant has been able to established that it
suffers and continues to suffer financial prejudice as a result of the C ourt.
[46] The urgency cannot be said to be self -created, as argued by the respondent.
If the applicant is not granted the urgent application, the applicant will be forced to comply with the order that was not properly and lawfully obtained.
[47] The inability of obtaining substantial relief in due course is a weighty factor in
favour of granting the urgent relief, because to deny it effectively bars an applicant
from accessing its primary remedy, to stay the execution of the order pending the
determination of the rescission application of the order granted on 19 February 2025.
[48] Urgency must not be self -created by an applicant as a consequence of the
applicant not having brought the application at the first available opportunity, as the Court said in Association of Mineworkers & Construction Union & others v Northam
Platinum Ltd & a nother
7.
‘… the more immediate the reaction by the litigant to remedy the situation by way of instituting litigation, the better it is for establishing urgency. But the longer it takes from the date of the event giving rise to the proceedings, the more urgency is diminished. In short, the applicant must come to court immediately, or risk failing on urgency…’
6 Constitution of South Africa , Act 108 of 1996.
7 (2016) 37 ILJ 2840 (LC) ; [2016] 11 BLLR 1151 (LC) at para 26.
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[49] In this case, it can be said that the applicant acted immediately upon service
of the order and after realising the insistence of the respondent to report for work in
terms of the order, pending the rescission application by the applicant.
[50] The C ourt must also further consider the interests of the respondent party,
and in particular, the prejudice the respondent may suffer if the matter is urgently
disposed of.
[51] In Association of Mineworkers & Construction Union & others v Northam
Platinum Ltd and Another , supra, the Court held again as follows:
‘But it is not just about the a pplicant. Another consideration is possible
prejudice the respondent might suffer as a result of the abridgement of the prescribed time periods and an early hearing. ’
8
[52] Emanating from the provisions of Rule 8 of the Labour Curt Rules and the
principles set out in the authorities stated above, it is evident that urgency is not
there for taking and an applicant seeking an urgent relief must adequately and in
details set out in the founding affidavit the reasons why the matter before the C ourt
should be treated with urgency.
[53] In casu, the question is whether the applicant has made out a case for
urgency. For any argument to be sustained, the applicant must have acted with due
haste when knowledge of the respondents’ prejudicial behaviour or actions is gained,
as it is trite that an applicant is not entitled to rely on urgency that is self -created.
[54] I find that this application can be entertained on an urgent basis as it has met
the legal requirements of urgency , and the urgency is not self-created.
Analysis
[55] The requirements for interim relief, as sought by the applicant in casu, have
already been set out in Setlogelo v Setlogelo
9. They are:
8 Ibid at para 24.
15
55.1 A prima facie right;
55.2 A well-grounded apprehension of irreparable harm if interim relief is
not granted and the ultimate relief is eventually granted;
55.3 The balance of convenience in favour of the granting of the interim
relief; and
55.4 The absence of any other adequate ordinary remedy.
Prima facie right
[56] The applicant for an interim interdict must show that it has a right, although
the right might be open to doubt , and a right which is being infringed on or which he
or she apprehends will be infringed. The right may arise out of contract, delict , or it
may be founded in the common law or on some statute. The right set out by an applicant for interim relief need not be shown on a balance of probabilities. Where
the interim relief is sought pendente lite, the applicant is required to furnish proof which, if uncontested and believed at the trial, would establish his or her right.
10
[57] In National Treasury and O thers v Opposition to Urban Tolling Alliance and
Others11 (OUTA), the Constitutional Court held that:
‘Under the Setlogelo test the prima facie right a claimant must establish is
not merely the right to approach a court in order to review an administrative
decision. It is a right to which, if not protected by an interdict, irreparable harm would ensue. An interdict is meant to prevent future conduct and not decisions already made. Quite apart from the right to review and to set aside impugned decisions, the applicants should have demonstrated a prima facie right that is threatened by an impending or imminent irreparable harm.’
[58] Therefore, it means that the applicant has a prima facie right to approach the
court to stay the execution of the Court order granted in its substance pending the rescission application determination. B ut following the dicta in OUTA, the mere right
to approach the court is not s ufficient. The applicant has to show that the prima facie
9 1914 AD 221 at 227.
10 See: Webster v Mitchell 1948 (1) SA 1186 (W). See also: City of Johannesburg Metropolitan
Municipality v Mphefo and Others (J787/2024) [2024] ZALCJHB 287 (30 July 2024) at para 19.
11 [2012] ZACC 18; 2012 (6) SA 223 (CC) at par a 50.
16
right is threatened by an impending or imminent irreparable harm, which I find the
applicant in this case has shown.
Irreparable harm
[59] The applicant must show irreparable harm or damage and a well -grounded
apprehension of a prejudicial act on the part of the respondent .
[60] I agree that the applicant will suffer irreparable harm if this order is not
granted, and it will be forced to comply with an order that was gra nted and
procedurally and unfairly so. The respondent is demanding payment from the
applicant , relying on t he order, further exacerbating financial prejudice on the
applicant. At the same time , the respondent has shown that she shall be prejudiced
and suffer financially due to the loss of income if this order is granted.
[61] The Court must also further consider the interests of the respondent party,
and in particular , the prejudice the r espondent may suffer if the matter is urgently
disposed of. I have however taken into account that should the respondent succeed
in the rescission application and the main application, the respondent ’s prejudice
shall be mitigated as she shall be afforded a substantial redress to be granted back
pay for the period that she would have been absent from work on the basis of the successful court order.
[62] In Emalahleni Local Municipality v Phooko NO and O thers
12, it was held that
irreparable harm will invariably result if there is a possibility that the underlying causa
may ultimately be removed, i.e. where the underlying causa is the subject matter of
an ongoing dispute between the parties.
[63] In casu, the parties are involved in an ongoing dispute regarding the
withdrawal of the permanent appointment letter by the applicant , and the matter is
still pending in this court. Subsequently , there is also the order granted by this C ourt
on 19 February 2025 following the urgent application launched by the respondent to
12 [2021] ZALCJHB 61; (2021) 42 ILJ 2196 (LC).
17
interdict the applicant from terminating the services of the respondent. This
application seeks to remove the underlying causa to stay the execution of the order
of 19 February 2025 pending the determination of the rescission application.
Balance of c onvenience
[64] The Court has to consider the balance of convenience , and in exercising its
discretion, to weigh the prejudice to the applicant if the relief sought is withheld
against the prejudice to the respondent if the order is granted. It is the balancing of
respective harms and an assessment of which of the parties will be least seriously
affected or prejudiced by being compelled to endure what may prove to be a temporary injustice until the just answer can be found at the end of the trial.
[65] I find that the balance of convenience favours that the application be
granted, as if the order is granted, both parties will be able to deal with the pending
rescission application. Granting the order will grant an opportunity t hat the applicant
be given an opportunity to rescind the order, and if successful, then the parties will
be able to fully ventilate before this court whe ther the applicant must be interdicted
from terminating the respondent’s services and the applicant to continue paying the respondent her monthly remuneration, pending the finalisation of the application under case no J297/2024.
[66] Indeed, once the Labour Court has decided the matter, the parties will have
certainty as to the way forward. If the Court finds in favour of the applicant, it will be
the end of the matter .
[67] Therefore, i n my view, the balance of convenience favours the applicant.
Alternative remedy
[68] The final requirement for the grant of an interim interdict is the absence of
another adequate remedy.
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[69] The applicant submitted that it has no alternative remedy available but to
approach this Court for relief, a s the respondent refused not to report for duty
pending the final determination of the rescission application, and the only way to
protect against the execution of the order is to obtain the urgent stay of the execution until the rescission application is finalised. The respondent , however , argued that the
applicant failed to engage the respondent’s attorneys but rather rushed to court on
an urgent basis without discussing the alternative remedy. It is my considered view
that such failure of further engagements is not fatal to the applicant’s application
under the circumstances. On the contrary, it may have delayed the launching of the urgent application should the parties not be able to agree after prolonged negotiations.
[70] I have taken cognisance that the applicant sent the letter to the respondent’s
attorneys , indicating that it has received th e order granted on 19 February 2025
without its knowledge and is in the process of familiarising itself with the contents of
the court file in order to make an informed decision. The respondent was also asked in a letter not to report for duty pending the finalisation of the rescission application,
but the request was rejected.
[71] Under the circumstances, it is my considered view that the applicant did not
have any other remedy than to seek an interim interdict, sta ying the execution of the
order pending the finalisation of the rescission application.
Conclusion
[72] The dispute in an application for an interim interdict is therefore not the same
as that in the main application to which the interim interdict relates. In an application for an interim interdict the dispute is whether, applying the relevant legal requirements, the status quo should be preserved or restored pending the decision
of the main dispute. At common law, a court’s jurisdiction to entertain an application for an interim interdict depends on whether it has jurisdiction to preserve or restore the status quo. It does not depend on whether it has the jurisdict ion to decide the
main dispute.
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[73] In National Gambling Board v Premier of KwaZulu-Natal and Others,13 the
Constitutional Court considered interdict proceedings and held that:
‘An interim interdict is by definition
“a court order preserving or restoring the status quo pending the final
determination of the rights of the parties. It does not involve a final
determination of these rights and does not affect their final determination.”’
[74] The relief sought by the applicant is interim in nature as it is to stay the
execution of the order pending the final determination of the rescission application.
There was no proper service of the urgent application on the State Attorney , and the
State Attorney was also not invited to the caselines. The State Attorney was served with the urgent application, although belatedly so. Subsequently , the C ourt order was
obtained improperly and irregularly. Nothing in law would justify the respondent to
incur wasteful expenditure for paying the respondent's salary on the basis of this
Court order obtained on 19 February 2025, under the circumstances it was obtained.
[75] I am therefore satisfied that the applicant has met the requirements as it has
stated reasons for the urgency and why the urgent relief is sought, and given
reasons why the requirements of the Rules of the Court were not complied with. The
urgency of the matter suffices for the deviation from the Court rules and directives.
[76] It is clear that there is a dispute about the applicant’s withdrawal of the
permanent appointment letter i ssued to the respondent, which must be left to the
Court to determine if the withdrawal was done following proper procedures in terms
of the Public Service Commission Directives. I therefore find that t he applicant is
entitled to the interim relief pendente lite.
Costs
[77] The applicant has sought a cost order against the respondent. The
respondent has also opposed the application and prayed for costs.
13 [2001] ZACC 8; 2002 (2) SA 715 (CC) at para 49.
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[78] The rule of practice, that costs follow the result , does not apply in labour
matters, but the Court has a wide discretion in respect of costs in consideration of
the requirements of law and fairness.
[79] In my view, this is a case where the interest of justice will be best served by
making no order as to costs .
[80] In the premises, I make the following order:
Order
1.The form s and service set forms in the R ules of this C ourt are dispensed
with in terms of Rule 8, and this application is heard as a matter of urgency.
2.An order is made to stay the execution of the order granted on 19 February 2025 under case no 2024- 097472 pending the final determination of the
applicant’s rescission application.
3.The applicant is directed to file the rescission application within a period of
twenty (20) days from the date of this order.
4.There is no order as to costs.
G. Mafa -Chali
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applic ant: Advocate V Mukwev ho
Instructed by: Kganare & Khumalo Incorporated Attorneys
For the Respondent : Leigh- Ann Govender , Vermeulen Attorneys