THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: 2025 – 082814
In the matter between:
SELLO MOLAPANE MOTHOTOANA Applicant
and
JOHANNESBURG SOCIAL HOUSING CO. (SOC) LTD First Re spondent
THEODORE DHLAMINI NO Second Respondent
THANDEKA TSHABALALA NO Third Respondent
MUSA SHIBAMBO NO Fourth Respondent
THULANI MDADANE NO Fifth Respondent
TABISA POSWA NO Sixth Respondent
ZAMIKHAYA XALISA NO Seventh Respondent
LAWRENCE NDLOVU NO Eighth Respondent
NTOKOZO MJIYAKO BAYIPHIWE SIMELANE NO Ninth Respondent
2
JASON SOBEKWA NO Tenth Respondent
Heard: 10 June 2025
Delivered: 24 June 2025
Summary : Application brought in terms of section 77(3) of the Basic Conditions of
Employment Act. Breach not established. Application dismissed.
JUDGMENT
DANIELS J
Introduction
[1] This is an urgent application, brought under section 77(3) of the Basic
Conditions of Employment Act No. 75 of 1997 as amended (“BCEA”) in which the
applicant seeks final relief .
[2] The applicant alleges that his services were terminated by the first respondent
in breach of his employment contract , which entitled him to a hearing before
termination. H e seeks specific performance of his employment contract . He alleges ,
in addition, that his termination was not authorised by the Board of the first
respondent. The latter argument was not pursued when first respondent produced a
resolution of the Board.
Urgency
[3] The applicant approached the court on an urgent basis, but allowed sufficient
time for the filing of opposing papers by the respondents. The applicant set out the grounds of urgency, in detail, in its founding papers, which I see no reason to repeat. I accept that the applicant proceeded with expedition while taking appropriate steps
3
to try to avoid litigation. Having considered the submissions, and the applicable
principles,1 I am satisfied that the applicant has made out its case for urgency.
Material facts
[4] This being an application for final relief, essentially the application falls to be
determined on the basis of the version set out by the respondents.
2
[5] The material facts are as follows:
5.1 The applicant was employed by f irst respondent, the Johannesburg
Social Housing Company (SOC) Ltd (“JOSHCO”) as its Chief Executive
Officer (“CEO”) in November 2022. He was engaged on a five year contract
commencing on 12 September 2022.
5.2 The applicant’s employment contract required that, prior to dismissal
for alleged misconduct, he was entitled to a hearing, conducted in terms of
section 188A of the Labour Relations Act No. 66 of 1995 as amended.
5.3 During February 2023, the Board became concerned about the
conduct of the applicant. It decided to suspend the applicant as the CEO and second him to a post in the Group Information and Communications Technology (“Group ICT”). The secondment was made with the consent of the
applicant. The secondment was extended on several occasions, ultimately being extended to 30 June 2025.
5.4 On 8 December 2023, the applicant was subjected to a disciplinary
process conducted in terms of section 188A. This process was expressly
provided for in terms of clause 17.5 of the applicant’s employment contract.
1 See East Rock Trading 7 (Pty) Ltd & another v Eagle Valley Granite (Pty) Ltd & others [2011]
ZAGPJHC 196; [2012] JOL 28244 (GSJ) at para [6]; Jiba v Minister: Department of Justice
& B Constitutional Development & others (2010) 31 ILJ 112 (LC); AMCU & others v Northam
Platinum Ltd & another (2016) 37 ILJ 2840 (LC) paras [20] to [26]
2 See Wightman t/a JW Construction v Headfour (Pty) Ltd and another 2008 (3) SA 371 (SCA) at para
12
4
5.5 On or about 26 March 2024, through the section 188A process, the
applicant was found guilty of a single charge of insubordination and issued with a final written warning valid for nine months. T his meant that applicant
was on a final written warning until the end of December 2024.
5.6 The Board discovered that the applicant had failed to report for duty at
Group ICT from 1 January 2025 until 31 March 2025, during which time he drew his full salary. The issue was reported to the Board on 16 May 2025. 5.7 On 20 May 2025 Board sent the applicant a letter affording him an
opportunity to make submissions during the next three days . The letter from
the Board was titled “ Notice to show cause why further disciplinary action
steps should not be taken against you”. The applicant, through his attorneys,
responded to the letter but failed to make submissions. 5.8 At the Board meeting, held on 26 May 2025, it took the view that the
applicant’s conduct, by failing to report for duty for three months while continuing to draw remuneration, constituted a material breach of his employment contract, one so serious that it amounted to the repudiation of his contract. The Board resolved to accept the applicant’s repudiation of his employment contract and informed him of this on 29 May 2025.
Legal principles and analysis
[6] Given that the applicant seeks final relief, I may only grant relief if those facts
averred by the applicant and admitted by the respondent, together with facts alleged by the respondent, justify the relief sought . Accordingly, this matter must be
determined on the basis that the applicant failed to tender his services, without being excused from doing so, for a period of three months. Furthermore, when afforded an opportunity to explain his conduct, the applicant failed to do so.
5
[7] The employment contract is an agreement that embodies reciprocal
obligations. The primary obligation of the employee is to tender his services, as
stipulated in the contract, and place his labour at the disposal of the employer. The primary obligation of the employer is to remunerate the employee in the form and manner agreed upon. This was explained in National Electronic Media Institute of South Africa v Buthelezi
3 as follows:
“At common law, until an employee’s services have lawfully been terminated,
an employer is obliged to remunerate the employee upon the tender, by the employee, of his or her services but the employer is not, however, obliged to make use of the employee’s services. (See, for example, Smit v Workmen’s Compensation Commissioner 1979 (1) SA 51 (A); at 56F- G; Toerien v
Stellenbosch University 1996 (1) SA 197 (C) at 201B -C; National Union of
Textile Workers v Jaguar Shoes (Pty) Ltd 1987 (1) SA 39 (N) at45H -46I.”
[8] The failure or refusal of the applicant to tender his services to the first
respondent for a period of three months, without reason, is indeed a material and
serious breach of the contract . It is , in my view, a breach so serious that it amount s
to a repudiation of the employment contract. The conduct of the applicant evinced a clear and unequivocal intention not to continue with the contract of employment which entitled the first respondent to rescind the contract.
4 The employer was
entitled to accept the applicant’s repudiation of the contract, which it did. Having repudiated the contract, the applicant cannot now seek to enforce it.
[9] The applicant has failed to prove that the first respondent breached his
contract of employment, and the application falls to be dismissed.
Costs
3 (JA19/03) [2004] ZALAC 7 (9 July 2004) at para [9]
4 See Council for Scientific & Industrial Research v Fijen (1996) 17 ILJ 18 (A); Stewart Wrightson
(Pty) Ltd v Thorpe 1974 (4) SA 67 (D); NUM SA & others v Abancedisi Labour Services (2013) 34 ILJ
3075 (SCA); Everson v Moral Regeneration Movement (2008) 29 ILJ 2941 (LC); Valla v SA
Broadcasting Corporation SOC Ltd & another (2024) 45 ILJ 350 (LC)
6
[10] The applicant to care to craft his application as one brought under the BCEA.
It is arguable therefore that the criteria of fairness , as contemplated in section 162 of
the LRA, does not govern the issue of costs. Nevertheless, in my view, the
application was so devoid of merit that fairness demands that the applicant bear the
costs.
Conclusion
[11] For the reasons set out above, the application falls to be dismissed, with
costs.
RN Daniels
Judge of the Labour Court of South Africa
Appearances
For the Applicant :
Adv V Ndebele
Buthelezi Inc For the Respondent s:
Mr J Norval ENS Africa Attorneys