THE LABOUR COURT OF SOUTH AFRIC A, JOHANNESBURG
Not Reportable
CASE No : J-2025- 067794
In the matter between:
HERMAN MDUDUZI VILAKAZI Applicant
and
THE MPUMALANGA TOURISM AND PARKS
AGENDY (MTPA) First Respondent
VICTOR MASHEGO Second Respondent
SALOME SITHOLI Third Respondent
WILLIAM LUBISI Fourth Respondent
ERIC KHUMALO Fifth Respondent
NOXOLO OYIYA Sixth Respondent
LUNGILE MLABA -DLUDLA Seventh Respondent
THENJIWE NKOSI Eighth Respondent
2
DR MDLULI Ninth Respondent
LINDIWE DIPUTLA Tenth Respondent
BETHUEL SIBANYONI Eleventh Respondent
RATHELELE MASIPHA (ADV) Twelfth Respondent
Delivered by email : 13 June 2025
JUDGMENT
AH SHENE, AJ
Introduction
[1] This is an opposed urgent application wherein the applicant seeks the
following relief:
1.1 That the forms and service provided in Rule 38 of this Court are
dispensed with and the application is heard as one of urgency;
1.2 That the continued suspension of the applicant for a period exceeding
227 days, without any disciplinary hearing, is irregular and unlawful;
1.3 That the said irregular and unlawful suspension is hereby uplifted with
immediate effect at the granting of this order;
1.4 That the first and second respondents are ordered to allow and
facilitate the return to duty by the applicant without any hindrance to their official duties;
1.5 That the respondents who oppose this application be ordered to pay
the costs of this application.
Background
3
[2] On 5 August 2024, the applicant , who is the C hief Executive Officer , was
served with a letter of precautionary suspension by the first respondent. No specific
allegations of misconduct were contained in the letter of suspension. As a result, the
applicant’s attorney of record dispatched a letter demanding to be furnished with
specific allegations on 5 August 2024. The respondents acknowledged receipt
thereof on 13 August 2024, yet the second respondent neglected to make the
allegation available to the applicant . The applicant approached this C ourt in October
2024 seeking to declare the suspension for a period exceeding 60 days as irregular and unlawful. The C ourt dismissed the application. In February and March 2025, the
applicant participated in an interview on two separate occasions as part of the said
investigations. The applicant has been on paid suspension for a period in excess of 277 days. The 60- day period lapsed on 6 October 2024, yet the applicant was not
allowed to resume his duties and remains on suspension. The applicant submits that
such suspension is irregular and unlawful and stands to be set aside.
[3] The respondents, on the other hand, aver that this C ourt lacks jurisdiction to
entertain the dispute as the ‘unlawful suspension ’, relates to an unfair labour practice
dispute that should have been referred to the CCMA or b argaining council for
arbitration. The first respondent also raises the fact that this matter came before this Court on 24 October 2024 and was subsequently dismissed.
[4] As a result, the first respondent pleads that the issue has finally been
determined and that this application falls to be dismissed on the basis of res judicata.
[5] During argument, the applicant’s representative, Mr Mataka, argued that this
Court has jurisdiction to entertain the dispute in terms of s157(1) and/or (2) read with
s158(1)(h) of the Labour Relations Act
1 (LRA). He further contended that this C ourt
may also order specific performance in terms of s77A(e) of the Basic Conditions of
Employment Act2 (BCEA).
1 Act 66 of 1995, as amended.
2 Act 75 of 1997.
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[6] The applicant relies on the provisions of the disciplinary code and p rocedure
dated 26 January 2024, clause 7.6.2 thereof , which is headed as ‘ Suspension with
pay’. The applicant relies on the following two clauses :
‘Suspension shall be with full pay. The following shall be explained to the
employee suspected of misconduct prior to suspension:
…
e) the consequences of interference with the investigation
The following factors must be considered before an employee is suspended
….
e) that the employer will convene a disciplinary hearing within 60 days of
the date of suspension, except where the case in complex the employer shall
notify the employee of the extension. ’
[7] The respondents raised the following legal points :
7.1 Lack of urgency;
7.2 res judicata ;
7.3 that this C ourt lacked jurisdiction to entertain an application in respect
of an unlawful suspension.
Urgency
[8] The basis on which the applicant contends that the suspension is unlawful is
apparent from the founding affidavit in that he has been suspended for a period in excess of 277 days. The 60- day period had lapsed on 6 October 2024
[9] The respondent contends that the application is not urgent and that such
urgency is self -created. The courts have made it clear that self -created urgency
cannot be entertained by an urgent court . In considering the old Rule 8, the court in
Jiba v Minister : Department of Justice and Constitutional Development and others
3
held that:
‘Rule 8 of the r ules of this c ourt requires a party seeking urgent relief to set
out the reasons for urgency , and why urgent relief is necessary. It is trite law
3 (2010) 31 ILJ 112 (LC) at para 18.
5
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 r ules.’
[10] In terms of Rule 38(2) of the Rules of the Labour Court, it is required that the
applicant’s affidavit in support of the application must contain the reasons for
urgency and why urgent relief is necessary .
[11] The applicant has set out the reasons for urgency in the founding affidavit and
is of the view that there is no other legal recourse. The applicant seeks this court ’s
intervention as the respondent has refused to allow the applicant to resume his
duties.
[12] In this application, the issue of urgency must be considered with the legal
point s raised by the respondent .
Applicable legal principles relating to r es judicata and unlawful suspension
[13] The respondents plead res judicata and contend that the application relating
to unlawful suspension before this C ourt has already been decided on 24 October
2024. Accordingly , the respondents plead that the applicant r elies on the same
cause of action, between the same parties , and the same relief is being demanded.
[14] The relief the applicant seeks is that the continued suspension of the
applicant for a period exceeding 227 days, without any disciplinary hearing, be declared irregular and unlawful. Further, that the irregular and unlawful suspension be uplifted, and the applicant be allowed to return to work.
[15] The applicant attaches the judgment of Itzkin AJ dated 24 October 2024 to the
founding affidavit. It is evident that the applicant approached this court on an urgent
basis on 24 October 2024 , seeking an order declaring the applicant’s suspension in
excess of 60 days ‘irregular and unlawful ’, and sought an order uplifting the
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suspension and permitting the applicant to return to work. At paragraph [18] of the
judgment , the court concluded:
‘[18] the upshot of this is that an unlawfulness claim pertaining to
suspension beyond the 60 day period is not sustainable. A claim based on
unfairness is not before the Court. Such claim (in the form of an unfair labour
practice dispute) would in any event fall within the purview of the CCMA. ‘
[16] Itzkin AJ accordingly dismissed the application.
[17] In Feni v The Commission for C onciliation, Mediation and Arbitration and
others ,4 at paragraph [12], Davis JA concluded:
‘The doctrine of res judicata encompasses a matter that has already been
decided; that is the same dispute had been finally adjudicated upon in
proceedings between the same parties and therefore cannot be raised again. According to Voet 42.1.1 this exceptio was available in the common law, if it
was shown that the judgment in the earlier case was given in a dispute between the same parties for the same relief on the same ground or on the
same cause. See National Sorghum Breweries Ltd (t/a Vivo African
Breweries) v International Liquor Distributors (Pty) Ltd [2000] ZASCA
159 ,2001 (2) SA 232 (SCA) at 239 as well as the cases cited therein.’
[18] In Yellow Star Properties v MEC, Department of Development Planning and
Local Government , Gauteng
5 the Court amplified on this dictum in SA National
Defence Union and Another v Minister of Defence and Other s; SA National Defence
Union v Minister of Defence and Others6 as follows:
‘.... it is necessary to stress not only that the parties must be the same but that
the same issue of fact or law which was an essential element of the judgment
on which reliance is placed must have arisen and must be regarded as having
been determined in the earlier judgment .’
4 (2020) 41 ILJ 1899 (LAC) .
5 2009 (3) SA 577 (SCA) at para 22.
6 (2003) 24 ILJ 2101 (T) at 2109H.
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[19] The relief sought in this application is that the ‘ continued suspension of the
applicant for a period exceeding 227 days, without any disciplinary hearing, is
irregular and unlawful ’. On closer analysis, it is evident that Itzkin AJ has already
disposed of this issue on 24 October 2024. The relief may be couched slightly
different ly, but it is in essence the same relief , between the same parties, arising
from the same cause of action. As a result , this application stands to be dismissed
on this basis.
[20] If I am wrong in respect of the above, t he second point raised by the
respondent is that the LRA does not make provision for relief relating to the
unlawfulness of a suspension. Section 186(2)(b) of the LRA relates to an unfair
suspension of an employee, which is ultimately categorised as an unfair labour practice.
[21] In the Constitutional Court decision in Steenkamp and O thers v Edcon Ltd
(National Union of Metalworkers of SA Intervening)
7, the majority of the
Constitutional Court contended that it had no jurisdiction to determine the lawfulness of a dismissal. The C ourt observed that there was no provision in the LRA in terms of
which an order could be sought declaring a dismissal unlawful or invalid.
[22] In Botes v City of Johannesburg Property Company S OC Ltd and others
8
Moshoana J stipulated :
‘I do not agree with a submission that Steenkamp is confined. The principle in
Steenkamp can be summari sed as follows: where an employee alleges
unlawfulness and not unfairness, the Labour Court lacks jurisdiction. ’
[23] Given the above, this court also lacks jurisdiction in respect of an application
relating to unlawful suspension. Despite the applicant contending that the claim is
based on s77(3) of the BCEA, the averments necessary to sustain such cause of
action are lacking. An offer of employment was annexed to the founding affidavit, but
no contract of employment has been annexed. No reference is made to specific
contractual clauses which have been breached. The applicant makes reference to
7 (2016) 37 ILJ 564 (CC) .
8 (2021) 42 ILJ 530 (LC) at para 20.
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the disciplinary code and procedure and various legislative prescripts regulating
suspension , but on closer scrutiny, the real complaint is , in fact , an unfair
suspension.
[24] In Phahlane v SA Police Services and Others9, this Court stated the following:
‘[9] Ordinarily, pleadings in a claim of this nature [contractual claim] would
assert that term of the contract relied upon, alleged breach of that contract by the employer, record an election to enforce the contract by way of specific performance, and seek consequential relief. The cause of action in the present instance is clearly one of unlawfulness, in the form of an alleged breach of Regulation 9, and no more. ’
[25] Having considered the authorities, I am of the view that this C ourt does not
have the jurisdiction to entertain an application relating to unlawful suspension.
[26] Taking into account that the applicant was already advised that an unlawful
suspension falls within the realm of the CCMA or bargaining council , I am of the view
that this matter was not urgent. As a result, the application should be dismissed for
all the reasons advanced.
Costs
[27] The Constitutional Court has recently reiterated in Zungu v The Premier of the
Province of KwaZulu- Natal and O thers
10 that costs orders should be made in
accordance with the requirements of law and fairness.
[28] In terms of s162 of the LRA, costs may be awarded after considering law and
fairness.
[29] I have considered the fact that the applicant has brought this matter before
court on an urgent basis yet again. The applicant had ample opportunity to refer the
9 (2021) 42 ILJ 569 (LC) .
10 (2018) 39 ILJ 523 (CC) .
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dispute to the appropriate forum , yet failed to do so from October 2024. As a result , I
am of the view that a cost order is warranted.
[30] In the premises, I make the following order:
Order
1. The application is dismissed.
2. The applicant is ordered to pay the costs of the respondents .
L. Ah Shene
Acting Judge of the Labour Court of South Africa
Appearances:
For Applicant: Mr. R Mataka of Morathi & Mataka Attorneys
For the Respondents: Mr. MM Baloyi of MM Baloyi Attorneys