THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Reportable
Case N o: 2025 -072040
In the matter between:
VUYANI PAUL CHOKO -CHOKO AND THE PERSONS
WHOSE NAMES ARE LISTED IN ANNEXURE ‘A’ Applicant s
and
THARISA MINERALS (PTY) LTD Respondent
Heard: 6 June 2025
Delivered: 19 June 2025
This judgment was handed down electronically by consent of the parties’
representatives by circulation to them by email. The date for hand -down is deemed to
be 19 June 2025.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
PRINSLOO , J
Introduction
[1] The Applicant s approached this Court on an urgent basis, seeking an interim
interdict to restrain the Respondent from conducting disciplinary hearings against
them, pending the finalisation of the urgent application to interdict a strike, which
is pending under case num ber 2025 -051769.
[2] The deponent to the founding affidavit is Vuyani Paul Choko -Choko, who
indicated that he is ‘an adult male, employed by Tharisa Mineals (sic). I deposed
(sic) to this founding affidavit for myself, as well as on behalf of the other
Applicants listed in annexure “A” attached hereto ’. Annexure A is a list of ‘Tharisa
Minerals employees who are given notice to attend disciplinary hearing ’.
[3] The Respondent took issue with Mr Choko -Choko’s locus standi to bring this
application on behalf o f any other employee because he is not a legal practitioner
who can act on behalf of all his clients, provided that there is a proper mandate to
do so, nor is he a trade union official who can act on behalf of the members of a
trade union. Mr Choko -Choko d eposed to this affidavit in his personal capacity.
[4] The Respondent challenged Mr Choko -Choko to produce written mandates from
the other ‘applicants’ and submitted that in the absence of such mandates, the
Court should find that only Mr Choko -Choko was prope rly before Court.
[5] Notwithstanding the fact that the Respondent challenged Mr Choko -Choko’s
locus standi and the fact that he is legally represented, Mr Choko -Choko did not
provide any mandates from the other individuals to confirm that he was indeed
mandat ed to institute legal proceedings on their behalf. Mr Choko -Choko, on the
strength of the legal advice he received, stated in his replying affidavit that he
does not need to be a legal practitioner or a trade union official to depose to a
founding affidavi t. He stated that ‘Annexure A’ consists of the full names, identity
numbers and signatures of the other applicants, as well as a date on which they
had signed it, confirming their consent to be part of this application.
[6] There are three difficulties with M r Choko -Choko’s response. First, i t is evident
from Mr Choko -Choko’s answer that neither he nor the legal representatives who
advised him comprehended the issue raised by the Respondent or underst ood
what the legal requirements for the institution of legal proceedings are. It is true
that Mr Choko -Choko does not need to be a legal practitioner or a trade union
official to depose to a founding affidavit in legal proceedings he instituted on his
own behalf, but it does not follow that he can do so, in his per sonal capacity, on
behalf of other litigants.
[7] In Ganes and Another v Telecom Namibia Ltd1 (Ganes), the Supreme Court of
Appeal (SCA) held that:
‘The deponent to an affidavit in motion proceedings need not be
authorized by the party concerned to depose to the affidavit. It is the
institution of the proceedings and the prosecution thereof which must be
authorized.’
[8] Second, ‘Annexure A’ is a name list of ‘ employees who are given notice to attend
disciplinary hearing’ and it contains the full names, identity numbers and
signatures of the individuals, as well as a date on which they had signed the list .
It certainly does not confirm their consent to be part of this application, as alleged
by Mr Choko -Choko , and it does not constitute authority to insti tute proceedings
on their behalf.
[9] Third, Rule 35(5) of the Labour Court Rules2 provides that an application must be
supported by affidavit, which affidavit must clearly set out the names, description
1 (2004) 25 ILJ 995 (SCA) at para 19.
2 GN 4775 of 2024: Rules Regulating the Conduct of the Proceedings of the Labour Court.
and addresses of the parties. None of the individuals, as per ‘Annexure A’ , is
properly cited as a party before this Court.
[10] The only applicant properly before this Court is Mr Choko -Choko.
[11] The Respondent took issue with urgency in its answering affidavit. However,
when the matter was argued, Mr van As for the Respondent submitted that the
matter should be decided on its merits. The attack on urgency is not without
merit , but I will exercise my discretion and deal with the merits of this case. This
Court has limited resources and a meritless case like the present one, should not
make its way back to Court, it should not be allocated another Court day and it
should not requ ire the attention of another Judge, as it no doubt would, if it is
struck off the roll for lack of urgency. This matter should be decided on its merits,
sooner rather than later.
Background
[12] On 10 April 2025 , the Applicant and other employees served the Res pondent
with a written notice of intention to strike on 14 April 2025. On 11 April 2025 , the
Respondent launched an urgent application to interdict the strike action and to
declare the strike unprotected. An interim interdict was granted on 15 April 2025,
with the return date of 9 May 2025. The Court declared the strike action , which
commenced on 14 April 2025 , to be unprotected.
[13] The return date was extended by consent until 31 July 2025 .
[14] On 16 May 2025 , Mr Choko -Choko was issued with a notice to attend a
disciplinary hearing, scheduled for 21 May 2025. The charges levelled against
him relate to the planning, organising and leading of an unprotected strike action ;
the planning, organising and leading of an unauthorised picket which prevented
other employees, customers and visitors from entering the Respondent’s
premises ; dishonest conduct in that he submitted strike notices with misleading
information about the nature of the planned strike action namely that it would be
peaceful ; and bringing the Re spondent’s name in disrepute in that he had
involved a non -union organisation in a workplace dispute and being involved in
acts aimed at interfering with the law enforcement duties of the SAPS.
[15] The Applicant approached this Court for an interdict to restra in the Respondent
from conducting a disciplinary hearing against him, pending the finalisation of the
urgent application to interdict the strike action. This application is premised on
the Applicant’s understanding that the application to interdict the str ike action that
took place on 14 April 2025 is not yet finalised and is still pending because ‘it is
going to be finalised on 31 July 2025. What is yet in place now is an interim
order ’, and that ‘the disciplinary hearing against us ….is premature in view of the
fact that it is apparent that the Respondent is relying on the interim order in
preferring the charges against us ’.
[16] The Applicant submitted that ‘there is no merit for the Respondent to conduct a
disciplina ry hearing against us…as such hearing is dependent on the existence
of a particular state of affairs yet to be decided upon by this …. Court, which has
a potential to put a permanent end to the disciplinary hearing ’.
[17] The Respondent opposed the application and disputed that the strike action was
peaceful. The Respondent’s case is that the SAPS had to disperse striking
employees who blocked access to and egress from the Respondent’s mining
operations and thereby prevented non -striking employees from reporting for
work. The Respondent explained that the disciplinary proceedings instituted
against the Applicants relate to both allegations of participating in an unprotected
strike and strike -related misconduct. According to the Respondent , the interim
order is un related to the disciplinary charges instituted against the Applicant.
Jurisdiction
[18] The first issue to be considered is whether this Court has jurisdiction to grant the
relief sought by the Applicant on the grounds set out in his supporting affidavits.
[19] The Labour Court derives its jurisdiction from section 157(1) and (2) of the
Labour Relations Act3 (LRA) and its powers from section 158 thereof.
[20] In Moropane v Gilbeys Distillers and Vintners (Pty) Ltd and Another4, the Court
held that:
‘I must accordingly turn to the question whether this court has jurisdiction
to entertain the present application. This question is intimately intertwined
with the question whether the applicant has a right to have the court
intervene and come to his assis tance at this stage.
I might, at the outset state that if the court has the jurisdiction it would
have the power to grant an appropriate remedy. … But because it has a
power does not mean that it has jurisdiction. This proposition is sometimes
overlooked. ’
[21] In Natal Sharks Board v SA Commercial Catering and Allied Workers Union and
Others5, the Court held that ‘Powers and jurisdiction are separate concepts that
should not be confused ’.
[22] In Shezi v SA Police Services and Others6 (Shezi) , the Court considered the
issue of jurisdiction and held that:
‘This court is a creature of statute. Its inherent powers, authority and
standing are equal to that of a Division of the High Court, but only in
3 Act 66 of 1995 , as amended.
4 (1998 ) 19 ILJ 635 (LC) at 638E -F.
5 (1997 ) 18 ILJ 1324 (LC) at 1327I.
6 (2021) 42 ILJ 184 (LC) at para 9.
relation to matters under its jurisdiction (see s 151(2) of the LRA). There is
a misconception that the court has jurisdiction over all disputes that arise
in the context of an employment relationship. It does not. Some 20 years
ago, the Judge President bemoaned the fact that the Court did not enjoy
jurisdiction o ver all employment -related disputes, and urged the legislature
to remedy this shortcoming. Regrettably, the legislature did not respond to
this call and in broad terms, the jurisdiction of this court remains to be
determined in terms of the Act as it was d rafted in 199 5.’
[23] Section 157 (1) provides that , subject to the Constitution and section 173, and
except where the LRA provides otherwise, the Court has exclusive jurisdiction in
respect of all matters that elsewhere in terms of the LRA or any other law are to
be determined by this Court. What this requ ires is that a party referring a dispute
to this Court for adjudication must necessarily point to a provision of the LRA or
some other law that confers jurisdiction on this Court to adjudicate the dispute.
Jurisdiction, of course, is to be determined stric tly on the basis of the applicant’s
pleadings; the merits of the claim are not material at this point. What is required
is a determination of the legal basis for the claim, and then an assessment of
whether the Court has jurisdiction over it .7
[24] In MEC Heal th Limpopo Province v Makgoba and others8, the L abour Appeal
Court (LAC) held that:
‘While section 158 (1)(a)(iv) of the LRA empowers the Labour Court to
grant declaratory orders, the exercise of that power is dependent on
jurisdiction – it applies only t o those disputes in respect of which the
Labour Court may exercise jurisdiction in terms of section 157. Section
157 (2) provides that the Labour Court has the inherent powers, authority
and standing equal to a division of the High Court, but only in relat ion to
7 See: Shezi at par a 10, Chirwa v Transnet Ltd and Others 2008 (4) SA 367 (CC) at par a 155; Gcaba v
Minister of Safety and Security and Others (2010) 1 SA 238 (CC) at para 75.
8 (JA121/2022) [2025] ZALAC 33 (4 June 2025) at para 27.
matters under its jurisdiction. The Constitutional Court recently affirmed
that the application of section 157 (1) requires the court in the absence of
specific sections that delineate the Labour Court’s statutory exclusive
jurisdiction, to determin e whether a matter is one that arises in terms of
the LRA or another law, to be determined by the Labour Court.9’
[25] In casu , the Applicant pursued his case in terms of section 158(1)(a) of the LRA ,
which provides for the powers of the Labour Court. As already alluded to, just
because the Court has a power does not mean that it has jurisdiction. The
Applicant must point to a provision of the LRA or some other law that confers
jurisdiction on this Co urt to adjudicate his dispute. Put differently , it is incumbent
on an applicant referring a matter to this Court for adjudication to identify the
provision in the LRA, or any other law, which confers jurisdiction on this Court to
entertain the claim.
[26] The A pplicant did not point to any provision in the LRA or another statute which
confers jurisdiction on this Court to interfere in incomplete internal disciplinary
hearings. The Applicant has also not convincingly addressed the question
whether he has a right to have the Court intervene and come to his assistance at
this stage, which is central to the issue of jurisdiction. In view of the delineated,
statutory jurisdiction of this Court and the absence of any pointing to a provision
of the LRA or some other law that confers jurisdiction on this Court to adjudicate
this dispute, I doubt that this is a matter this Court has jurisdiction to decide in the
first place.
[27] However, I am bound by the judgment of the LAC in Booysen v Minister of Safety
and Security and Others10 (Booysen) , where it was held that:
9 Baloyi v Public Protector and others 2021 (2) BCLR 101 (CC) at para s 23 to 24.
10 (2011) 32 ILJ 112 (LAC) at para 54.
‘…the Labour Court has jurisdiction to interdict any unfair conduct
including disciplinary action. However such an intervention should be
exercised in exceptional cases. It is not appropriate to set out the test. It
should be left to the discretion of the Labour Court to exercise such
powers having regard to the facts of each case. Among the factors to be
considered would in my view be whether failure to intervene would lead to
grave injustice or whether justice might be attained by other means. The
list is not exhaustive.’
Analysis
[28] This Court may intervene in incomplete disciplinary proceedings, based on
Booysen, but such intervention is not unqualified and bottomless.
[29] In Shezi11, the Court considered that in Booysen , the LAC held that this Court
had jurisdiction to interdict any unfair conduct, including disciplinary action, but
that it should do so o nly in exceptional cases. It was held that:
‘It is important to emphasise that regardless of the legal basis on which
intervention is sought, whether by way of interim relief, a review
application or a claim in contract, the rule that intervention is exceptional
remains. Once the court determines tha t the pleadings disclose a
jurisdictional basis for intervention in uncompleted disciplinary
proceedings, the case for exceptionality must be made. The rule in
Booysen , it should be recalled, is that intervention is warranted only if a
failure to intervene would lead to a grave injustice, or whether justice
might be attained by any other means. ’12
11 Shezi supra at paras 17 – 20.
12 Ibid at para 20.
[30] In Jiba v Minister: Department of Justice and Constitutional Development and
others13, the court held that:
‘… a lthough the court has jurisdiction to entertain an application to
intervene in uncompleted disciplinary proceedings, it ought not to do so
unless the circumstances are truly exceptional. Urgent applications to
review and set aside preliminary rulings made during the course of a
disciplinary enquiry or to challenge the validity of the institution of the
proceedings ought to be discouraged. These are matters best dealt with in
arbitration proceedings consequent on any allegation of unfair dismissal,
and if ne cessary, by this court in review proceedings under s 145.’
[31] In Ngobeni v Passenger Rail Agency of SA Corporate Real Estate Solutions and
others14 (Ngobeni) , the Court has held that:
‘In any event, this court does not ordinarily intervene in incomplete
disciplinary proceedings. In Booysen v Minister of Safety & Security &
others (2011) 32 ILJ 112 (LAC) , the LAC made it clear that the Labour
Court may only interdict unfair conduct in the course of disciplinary
proceedings 'in exceptional circumstances', such as where a grave
injustice would result. ’
[32] The LAC did not establish an unqualified right to intervention in uncompleted
disciplinary proceedings. The nature and extent of such relief are dependent on
the basis on which intervention is sought, and that basis must necessaril y fall
within this Court’s jurisdictional footprint, as established by section 157(1) of the
LRA. In other words, an applicant seeking intervention in uncompleted
disciplinary proceedings must establish first that the application embodies a
13 (2010) 31 ILJ 112 (LC) at para 17 .
14 (2016) 37 ILJ 1704 (LC) at para 12.
proper cause of action on which the intervention is sought and secondly, that the
circumstances are exceptional and thus warrant intervention.
[33] Intervention by this Court in uncompleted disciplinary proceedings is limited to
truly exceptional cases, where the failure to intervene would lead to a manifest
injustice. By definition, if the applicant is able to acquire adequate redress by a
challenge to fairness in due cou rse, the court will not intervene. Arbitration is the
primary means through which the LRA contemplates that disputes about the
fairness of workplace discipline are to be resolved.
[34] On this ground alone , the application must fail.
[35] In casu , the Applicant fai led to show that there are any exceptional
circumstances that justify intervention in his disciplinary hearing, which is already
at an advanced stage. In fact, there is not a single averment made to support a
case for ‘exceptional circumstances ’.
[36] In my vi ew, it is fatal to this application that the Applicant failed to establish
exceptional circumstances which would warrant or justify this Court’s intervention
in an internal disciplinary process. The authorities are clear: the Labour Court’s
jurisdiction to intervene in disciplinary proceedings is limited to truly exceptional
circumstances.
[37] Litigants have been warned on many occasions that this Court will not lightly
intervene in incomplete workplace disciplinary hearings and that it will do so only
where exceptional circumstances have been shown.
[38] In S Minya v A Post Office and others15 it was held that:
15 (2021) 42 ILJ 141 (LC) .
‘[1] There is a misconception prevailing amongst employees aggrieved with
minute details of internal disciplinary enquiries, that when the Labour
Appeal Court (LAC) in Booysen v Minister of Safety & Security &
others held that this court had jurisdiction to intervene in such internal
enquiries, this meant that the court is ordinarily the first port of call to deal
with such internal grievances. This is despite the fact that the LAC had
specifically stated that such intervention would only be called for where
exceptional circumstances are demonstrated, such as where a grave
injustice would result.
[2] From a plethora of such cases that are routinely brought on an urgent
basis, it has become increasingly apparent that this court is more often
than not called upon to micro -manage these internal proceedings, and that
every little complaint about internal disciplinary proceedings, whether real
or perceived, has by default, become an “exceptional circumstance”. It has
long been stated that the powers of this court under the Labour Relations
Act (LRA) do not include the micro -management of workplace discipline or
every dispute arising out of the workplace. This is so in that the
prerogative to maintain discipline remains that of the employer, and furth er
since the framework of the LRA is such that it is dispute specific.
[3] Equally worrisome with these applications, is that more often than not, no
legal basis is pleaded for this court to assume jurisdiction, other than
flippant and out of context refer ences to terms such as “unlawful”,
“invalid”, “legality”, “void”, “unconstitutional”, and in some instances,
“unfairness”, with the hope that relief will be granted. These phrases as
thrown into the mix are often deemed to be a panacea and a magic wand
to every complaint arising from internal disciplinary proceedings, with the
hope that those proceedings will be wished away.
[4] The facts of this case are symptomatic of the misconception mentioned
above, and to say that the court has reached a point beyo nd exasperation
with such cases on its urgent roll is truly an understatement. More often
than not, in instances where the applicant parties are not legally qualified
or legally represented, this court, being one of equity, tends to adopt a
more lenient ap proach. However, where the parties are legally
represented, the court has to draw a line in the sand.’
[39] Despite this admonition and warning, applications to intervene in internal
disciplinary matters continue to populate the urgent roll. The present case is no
exception. None of the averments made by the Applicant meet the threshold of
exceptionality, a prerequisite for intervention in incomplete disciplinary
proceedings.
[40] Even if I am wrong in finding that, absent exceptional circumstances, this Court
has no jurisdiction to hear this application, there are other reasons why this
application must fail.
[41] In National Treasury and others v Opposition to Urban Tolling Alliance and
others16 (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 prev ent
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. ’
[42] This application has to fail because i n OUTA , the Constitutional Court made it
clear that a n interdict is meant to prevent future conduct and not decisions
already made .
16 2012 (6) SA 223 (CC) at par a 50.
[43] This principle has been confirmed in United Democratic Movement and Another v
Lebashe Investment Group (Pty) Ltd and Others17, where the Constitutional
Court held that :
‘In granting an interdict, the court must exercise its discretion judicially
upon a consideration of all the facts and circumstances. An interdict is “not
a remedy for the past invasion of rights: it is concerned with the present
and future ”. The past invas ion should be addressed by an action for
damages. An interdict is appropriate only when future injury is feared.’
[44] Put differently: an interdict is appropriate only when future injury is feared. This
means that when the wrongful act giving rise to the injur y has already occurred ,
either it must be of a continuing nature or there must be a reasonable
apprehension that it will be repeated .18 If the injury is one that ‘occurred once and
for all and is finished and done with’, then the applicant should allege facts
justifying a reasonable apprehension that the harm is likely to be repeated .19
[45] In casu , the Applicant seeks an order to interdict a nd restrain the Respondent
from conducting a disciplinary hearing against him, pending the finalisation of the
interim strike interdict on its return date .
[46] The facts before me are that the Applicant was notified on 16 May 2025 that he
had to attend a disciplinary hearing on 21 May 2025. The Applicant launched this
application on 23 May 2025, after the scheduled date of the disciplinary hearing
and the matter was enrolled for hearing on 30 M ay 2025, when it was postponed
to 6 June 2025 .
17 2023 (1) SA 353 (CC) at para 48.
18 A C Cilliers, C Loots et al, Herbstein & Van Winsen : Civil Practice of the High Courts and the Supreme
Court of Appeal of South Africa , 5th ed, Juta, at p 1465.
19 Performing Right Society Ltd v Berman and Another 1966 (2) SA 355 (R) at 357 – 358.
[47] It was conceded in Court that the disciplinary hearing for Mr Choko -Choko had
already taken place on 22 May 2025 . The Applicant seeks an interdict to prevent
the conducting of a disciplinary hearing, which h ad already been conducted and
of which there is no likelihood that it would be repeated. The reality is that it
would serve no purpose to interdict a hearing that has already happened – as the
Constitutional Court has confirmed: an interdict is not a remed y for the past
invasion of rights. This is another reason why this application must fail .
[48] As the Applicant seeks an interdict, he must satisfy the requirements for an
interim interdict. The requirements for interim relief were set out more than 100
years ago in Setlogelo v Setlogelo20. They are:
1. a prima facie right;
2. a well -grounded appr ehension of irreparable harm if interim relief is not
granted and the ultimate relief is eventually granted;
3. the balance of convenience in favour of the granting of the interim relief;
and
4. the absence of any other adequate ordinary remedy.
[49] To establish a prima facie right, an applicant must provide prima facie proof of
facts that establish the existence of a right in terms of the substantive law.
[50] Although the Applicant has a right to approach the court to obtain an interim
interdict, the di cta in OUTA made it clear that the mere right to approach the
court is not sufficient. The facts must establish the existence of a right in terms of
the substantive law to approach this Court to intervene in an incomplete
disciplinary hearing. I already ex pressed my doubt about the existence of such a
right and this Court’s jurisdiction, which is countered by Booysen.
20 1914 AD 221 at 227.
[51] The Applicant averred that he has a constitutional right to strike and the right to
be treated fairly during his disciplinary proceedings. It is his case that if this
interdict is not granted, his constitutional right to strike and to be treated with
fairness will be violated. It is, of course , not contentious that the Applicant is
entitled inter alia to the rights granted under the Constitution and the LRA, but
nothing on the papers before this Court supports an argument that these rights
have been threatened or violated .
[52] The constitutional right to strike does not include the right to participate in an
unprotected strike , nor does it allow for participation in strike -related misconduct.
The Applicant did not make any averments to support his vague allegation that
his right to fairness has been violated – even if it was, an interdict would not be
an appropriate remedy as the Applicant has an alternative remedy to address the
issue of unfairness. This was confirmed in Shezi as follows:
‘This approach is consistent with the structure of the LRA as it applies to
workplace discipline. The Act replaced the onerous procedural
requirements in disciplinary enquiries developed by the industrial court
under the 1956 LRA with a focus on informal workplace disciplinary
processes and arbitration as the primary means to ensure fair employer
conduct (see Avril Elizabe th Homes [2006] 9 BLLR 833 (LC)). As the court
has previously observed ( Ngobeni v Prasa Cres and others [2016] 8 BLLR
799 (LC), urgent applications where this court is asked to intervene in
disciplinary hearings run the risk of bypassing the statutory dispute -
resolution structure as established by the LRA, in the form of the CCMA
and bargaining councils. One of the primary function s of those structures
is to determine the substantive and procedural fairness or otherwise of
dismissals. This court, and in particular the urgent court, has regrettably
become the means through which process -related grievances are sought
to be aired, more often than not as an element of a legal strategy in which
every step of a disciplinary process is subjected to challenge. This court
ought to be cautious not to become a willing accomplice to strategies of
this nature. Genuine disputes about fair procedur e in the exercise of
workplace discipline ought to be determined at the lowest possible level
primarily by the institutions created for that purpose .’21
[53] In short, the Applicant failed to show a prima facie right.
[54] The Applicant submitted that he would suffe r irreparable harm if the interim
interdict is not granted . Such harm is ‘irreparable financial harm’ as well as the
possibility that the Respondent ‘ would have replaced us in our positions at the
workplace ’.
[55] Financial harm is , in all probability , harm experienced in a greater or lesser
degree by any dismissed individual and does not per se constitute a ground for
urgent relief and certainly does not give any and every dismissed individual a
ticket to approach this Court on an u rgent basis. This Court can intervene in
exceptional circumstances and where an applicant is able to demonstrate
detrimental consequences that may not be capable of being addressed in due
course and if an applicant is able to demonstrate that he or she wil l suffer undue
hardship if the court were to refuse to come to his or her assistance on an urgent
basis.
[56] In Association of Mineworkers and Construction Union and Others v Northam
Platinum Ltd and Another22 (AMCU) , it was held that:
‘No matter what the cause of action may be, it is what the applicants want,
and require, at the end of the day, that is the important consideration.
Whether relying on breach of contract, unlawful dismissal, or automatically
unfair dismissal, the end result will always be the same, if the applicants
21 Shezi supra at para 2 1.
22 (2016) 37 ILJ 2840 (LC) at par a 39.
are successful. In the unfair dismissal case, an order of fully retrospective
reinstatement will be competent, which is exactly the same as restoring
the status quo ante prior to dismissal. And in the case of an unlawful
terminatio n or breach of contract of employment, the relief of specific
performance restores the status quo ante. The applicants can thus get
proper substantial redress in the normal course, without having to resort to
these urgent proceedings. ’
[57] In my view , the Applicant failed to show why he should be allowed to jump the
queue and why the redress he seek s must be given today and not tomorrow. He
has not substantiated why he would not get substantial redress at a later stage ,
and in any event, the Applicant’ s position is no different from any other employee
facing disciplinary proceedings.
[58] The Applicant can indeed get substantial redress in the normal course, without
having to resort to urgent court proceedings. In the event that the Applicant is
dismissed ( which he is not) , he can refer an unfair dismissal dispute to the
appropriate forum and if such dismissal is found to be unfair, he may be
reinstated, irrespective of whether the Respondent decide s to fill his position or
not.
[59] This Court must be slow to entertain an application on an urgent basis where the
harm to be suffered is only of a financial nature and where no exceptional
circumstances are being disclosed, more so where there are other remedies
available within the specifically crafted dispute re solution procedures applicable
in labour disputes or where relief can be granted in the normal course.
[60] On the issue of balance of convenience , it is the Applicant’s case that ‘there is no
merit for the Respondent to conduct a disciplinary hearing against us knowing
that such hearing is dependent on the outcome of the application for the strike
interdict to be decided upon’ by this Court on 31 July 2025.
[61] The Respondent submitted that the Applicant indicated that they would seek the
discharge of the Court o rder on the return date because the matter became moot
and academic as they had returned to work and the strike is no longer ongoing.
In the replying affidavit , the Applicant submitted that certain paragraphs of the
interim order became moot and academic , but that the order declaring the strike
unprotected is not moot and academic , as the Court ‘will make a declaration of
whether the strike was protected or not on 31 July 2025. It is therefore grossly
unfair for the Respondent to discipline us on the basis that we planned and
participated on (sic) the illegal strike before this Court pronounces on that issue ’.
[62] The position adopted by the Applicant is opportunistic.
[63] In my view , the Applicant’s understanding is incorrect. On the return date , the
Court will d ecide whether to confirm or discharge the interim order. The Court
already considered the status of the strike , and by granting the interim order, the
Court declared that the strike is unprotected. The expectation that there would be
another consideration of the issue and that there would be a different
pronouncement on the return date is misconceived. On the return date , the Court
will merely consider the version of the parties as presented and based on that,
the interim order will either be discharged or confirmed – the Court will certainly
not declare the strike ‘protected’ on the return date. If a case is not made out that
the strike was unprotected or if the dispute is no longer live , the interim order will
not be confirmed , and the rule nisi will be discharged.
[64] This, however , does not mean that the conducting of a disciplinary hearing
against the Applicant is ‘dependent on the outcome of the application for the
strike interdict to be decided upon’ by this Court on 31 July 2025. The Applicant’s
reliance on the interim order as a reason not to be disciplined is opportunistic,
more so where the Respondent emphasi sed that the disciplinary proceedings
were instituted in relation to the Applicant’s participation in an unprotected strike
as well as strike -related misconduct , and it is not reliant on the interim Court
order. The disciplinary charges are unrelated to the interim order.
[65] The Applicant submitted that he has no other adequate remedy, other than an
interim interdict. The Respondent disputed this and submitted that the Applicant
has a plethora of alternative remedies available , namely , to defend himself at the
disciplinary hearing, should the chairperson ultimately find against h im in the
disciplinary hearing he has an internal appeal process avail able and in the event
that he is dismissed, he may refer an unfair dismissal dispute.
[66] In my view , the Applicant dismally failed to show the absence of substantial
redress in due course or that he has no alternative remedies.
[67] The Applicant failed to make out a case for the relief he seeks .
Costs
[68] The last issue to be decided is the issue of costs.
[69] Insofar as costs are concerned, this Court has a broad discretion in terms of
section 162 of the LRA to make orders for costs according to the requirements of
the law and fairness.
[70] The requirement of law has been interpreted to mean that the costs would foll ow
the result. In considering fairness, the conduct of the parties should be taken into
account , and mala fides , unreasonableness , and frivolousness are factors
justifying the imposition of a costs order.
[71] In Zungu v Premier of the Province of KwaZulu -Natal and Others23, the
Constitutional Court confirmed that the rule that costs follow the result does not
23 (2018) 39 ILJ 523 (CC) at para 24.
apply in labour matters. The Court should seek to strike a fair balance between
unduly discouraging parties from approaching the Labour Court to have their
disputes dealt with and, on the other hand , allowing those parties to bring to this
Court (or oppose) cases that should not have been brought to Court (or opposed)
in the first place.
[72] In its answering affidavit, the Respondent made submissions regar ding reasons
why this Court should award costs de bonis propriis against the Applicant’s
attorneys of record, Ngidi Incorporated Attorneys (NIA). The Respondent
submitted that on 15 May 2025 , NIA launched an urgent application to seek the
reinstatement of employees who had been dismissed for participating in the
unprotected strike and strike -related misconduct, pending the finalisation of the
interim order. The matter was argued and dismissed on 21 May 2025. The
Respondent stated that this application stand s to be dismissed too, more so
since there are no exceptional circumstances which would warrant the Court’s
urgent intervention in an incomplete disciplinary. NIA should be aware of the
shortcomings, but elected to launch this application. The application is without
merit , and NIA should be ordered to pay the costs de bonis propriis.
[73] The Applicant filed a replying affidavit and in answer to the aforementioned and
responded that the submissions are bad in law and embarrassing , and not
supported by any facts.
[74] In argument , Mr van As submitted that the Applicant’s legal representative should
be liable for the costs. He argued that a similar application was brought to this
Court last week, which application failed. Yet the Applicant’s attorneys persisted
with an other similar application, dragging the Respondent to Court once again ,
and this conduct should not be condoned. This application lacks merit and is
opportunistic .
[75] Mr Dlamini, counsel for the Applicant , submitted that this is indeed a meritorious
case and that there is no basis for this Court to grant a cost order de bonis
propriis. He submitted that the Respondent is bullying the Applicant’s legal
representatives and to ask for costs de bonis propriis is bizarre and
unprofessional.
[76] This is not a meritorious application , and the Applicant’s legal representatives
filed papers that do not comply with the Rules of this Court, where the parties are
not properly cited and where no exceptional circumstances were raised,
notwithstanding the fact that it was a prerequisite in an application such as this
one.
[77] In Ngobeni , the Court has lamented the fact that the urgent roll in this Court has
become increasingly and regrettably populated by applications in which
intervention is sought, in one wa y or another, in workplace disciplinary hearings.
All of this is indicative of an attempt to use this Court and its processes to
frustrate the workplace proceedings already underway. The Court’s proper role is
one of supervision over the statutory dispute resolution bodies. It is not a Court of
first instance in respect of the conduct of a disciplinary hearing, nor is its function
to micro -manage discipline in workplaces. The Court in Ngobeni also issued a
warning to the effect that litigants should be warned that it is not often that this
Court will intervene in incomplete workplace disciplinary hearings and that similar
abuses of the right to urgent relief that this Court affords in appropriate
circumstances will be met with punitive orders for costs. The Court has granted
an order for costs on a punitive scale because the Court considered the
application to be wholly misguided and one that served to frustrate one of the
fundamental purposes of the LRA, which is the expeditious resolution of
workplace d isputes within a defined structure. In the Court’s view , the applicant's
conduct warranted an order for costs on a punitive scale.
[78] This is a case where the Court has to strike a balance, considering the
requirements of law and fairness. The general ly accep ted purpose of awarding
costs is to indemnify the successful litigant for the expense he or she has been
put through by having been unjustly compelled to initiate or defend litigation. In
Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others24
it was emphasized that :
‘… unless there are sound reasons which dictate a different approach, it is
fair that the successful party should be awarded her costs. The successful
party has been compelled to engage in litigation and compelled to incur
legal costs in doing so. An appropriate award of costs is one method of
ensuring that much earnest thought and consideration goes into decisions
to litigate in this court, whether as applicant, in launching proceedings or
as respondent opposing proceeding s.’
[79] In my view, this is a case where a cost order is warranted. This is more so as the
Applicant sought legal assistance from his lawyers. He did not approach this
Court as an unrepresented layperson, but he was assisted by lawyers. Mr
Choko -Choko was not responsible for the drafting of the papers and the
statements made in order to support his appli cation - those are legal aspects left
to his lawyers to attend to.
[80] A cost order is a method of ensuring that decisions to litigate in this Court are
taken with due consideration of the law and the prospects of success, more so
where an application is file d on an urgent basis.
[81] In casu , the application was also wholly misguided and meritless , and the
Applicant dismally failed to satisfy the requirements for the interdict he sought.
The Respondent had to defend a meritless urgent application , and fairness
dictates that it cannot be expected to endure enormous costs defending litigation
24 (2012) 33 ILJ 2117 (LC) at para 176.
that ought not to have been brought in the first place. NIA should have put in
some earnest thought and consideration into the merits of this case and the
warning issued in Ngobeni before filing this urgent application and advising Mr
Choko -Choko that it was a wise move to make.
[82] In South African Liquor Traders' Association a nd others v Chairperson, Gauteng
Liquor Board and Others25, the Constitutional Court ordered costs de bonis
propriis on a scale as between attorney and client and held that :
‘An order of costs de bonis propriis is made against attorneys where a
court is satisfied that there has been negligence in a serious degree which
warrants an order of costs being made as a mark of the court's
displeasure. An attorney is an officer of the court and owes a court an
appropriat e level of professionalism and courtesy. ’
[83] In Indwe Risk Services (Pty) Ltd v Van Zyl : In re Van Zyl v Indwe Risk Services
(Pty) Ltd26, the Court considered circumstances where a de bonis propriis cost
order was warranted and held that:
‘I am also mindful of the fact that an order for costs de bonis propriis is
only awarded in exceptional cases and usually where the court is of the
view that the representative of a litigant has acted in a manner which
constitutes a material departure from the responsibilities of his office. Such
an order shall not be made where the legal representative has acted bona
fide or where the representative merely made an error of judgment.
However, where the court is of the view that there is a want of bona fides
or where the representative had acted negligently or even unreasonably,
the court will consider awarding costs against the representative. Because
the representative acted in a manner which constitutes a departure from
25 2009 (1) SA 565 (CC) at para 54.
26 (2010) 31 ILJ 956 (LC) at para 39.
his office, the court will grant the order against the representative to
indemnify the party against an account for costs from his own
representative. (See in general Erasmus Superior Court Practice at E12 -
27.)’
[84] In casu , it is evident that the Applicant’s attorneys filed a n urgent application
without any reflection as to the provisions of the LRA, the applicable authorities
and the possible prospects of success. One could reasonably accept that a
practising advocate or attorney assisting a paying client should , at least , consider
the aforesaid when an urgent application is filed and other parties are dragged to
Court. In this instance, there was no regard for any of the aforesaid. Had the
authorities been considered , NIA would have known that a case for ‘exceptional
circu mstances’ must be made out, which was not done, to the severe prejudice
of the Applicant.
[85] The way in which this urgent application was drafted and pursued is not merely
an error of judgment. The Applicant’s legal representatives acted in a manner
that con stitutes a departure from their office by drafting papers that did not
comply with the Rules of this Court , by pursuing litigation in circumstances where
no case had been made out and thereby burdening this Court, with limited
resources and a substantial b acklog , and that on an urgent basis . This Court’s
displeasure should be known to the legal representatives.
[86] This is an exceptional case where the Applicant’s representatives acted in a
reprehensible manner, not only towards their client, but also towards t his Court,
with no regard to their duty as officers of the Court, and which would justify an
order for costs de bonis propriis.
[87] Ngidi Incorporated Attorneys are afforded seven days within which to make
submissions as to why a cost order de bonis propriis should not be confirmed. If
no submissions are received within the prescribed time, the cost order will have
final effect.
[88] In the premises , I make the following order:
Order
1. The application is dismissed;
2. The Respondent ’s costs are to be paid de bonis propriis by Ngidi
Incorporated Attorneys , on the scale as between party and party ;
3. The order for costs in paragraph 2 supra is provisional and Ngidi
Incorporated Attorneys are afforded seven days to make written
submissions as to why the order should not be confirmed , failing which the
cost order will be final.
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Advocate N B Dlamini
Instructed by: Ngidi Incorporated Attorneys
For the Respondent: Advocate M van As
Instructed by: Soldatos Cooper Inc Attorney s