THE LABOUR COURT OF SOUTH AFRICA , CAPE TOWN
Not Reportable
Case No : 2025- 093808
In the matter between:
FAHIM DOCRAT Applicant
and
UNIVERSITY OF CAPE TOWN Respondent
Heard: 25 June 2025
Delivered: 1 July 2025
JUDGMENT
PHEHANE , J
Introduction
[1] This is an opposed urgent application in which the applicant seek s interim
interdictory relief , in essence, restraining the respondent from demoting him from his
current position pending the outcome of four disputes:
2
1.1. The first is an unfair labour practice dispute in terms of section
186(2)(a) of the Labour Relations Act1 (LRA) before the Commission for
Conciliation, Mediation and Arbitration (CCMA) under case number WECT
9137- 25;
1.2. The second is an unfair labour practice dispute in terms of section
186(2)(d) of the LRA already conciliated before the CCMA under case number
WECT 9136- 25;
1.3. The third is an unfair labour practice dispute in terms of section
186(2)( b) of the LRA before the CCMA under case number WECT 22217- 24;
and
1.4. The fourth is a referral launched in this Court on 4 April 2025 under
case number C51/2025. In this referral, the applicant seeks the following
relief:2
‘140.1 An order directing the Respondent committed an unfair labour practi ce
by subjecting the A pplicant to occupational detriments flowing from his
protected disclosures.
140.2 An order directing the R espondent to cease any demotion of the
Applicant as this would constitute an occupational detriment and an unfair
labour practi ce.
140.3 An order directing the employer to place the A pplicant on the same pay
scale for the position that he was denied s promotion.
140.3 [sic] Ordering the R espondent to pay compensation to the A pplicant as
the court deems fair and reasonable.
140.4 Ordering the respondent pay actual damages suffered by the applicant,
being the difference between what he was earning prior to the demotion and
after demotion. ’
[2] The applicant avers that the demotion will have the effect of downgrading his
post and salary .
[3] The applicant further seeks a mandamus , directing the respondent to finalis e
his internal grievance process and the internal review process relating to the
1 Act 66 of 1995, as amended.
2 Founding affidavit at para 65 on p 001- 17.
3
evaluation of his position, and that such processes be conducted by a committee
comprised of individuals who have no prior involvement in the evaluation of his
position to date.
[4] The applicant seeks an order that , pending the aforesaid mandamus and
finalis ation of his four disputes, the respondent should be interdicted and restrained
from implementing the demotion.
[5] In conclusion, the applicant seeks an order directing the respondent to comply
with its agreements of 3 August 2022 and 2 3 May 2025 not to downgrade his
seniority status and salary , irrespective of the outcome of the evaluation or grading
process.
The applicable legal framework
[6] Rule 38
3 provides that an affidavit in support of an urgent application must
contain averments setting out the reasons for urgency and why urgent relief is necessary.
[7] In East Rock Trading 7 (Pty) Ltd and Another v Valley Granite (Pty) Ltd and
Others
4, the Court s tated that an applicant in urgent proceedings must s et out
explicitly in his or her affidavit the circumstances she or he avers render the matter urgent. Failure to approach the c ourt without delay constitutes an automatic ground
to refuse to hear the application on an urgent basis. An applicant must persuade the
court that he or she will not be afforded substantial redress at the hearing in due course.
[8] Section 186( 2)(a), (b) and (d) of the LRA read thus:
‘(2) “Unfair labour practice” means any unfair act or omission that arises
between an employer and an employee involving —
3 Rule 38 of the Rules Regulating the Conduct of the Proceedings of the Labour Court published in
GN 477a in GG 50608 of 3 May 2024.
4 2011 JDR 1832 (GSJ) at para [9] .
4
(a) unfair conduct by the employer relating to the promotion, demotion,
probation (excluding disputes about dismissals for a reason relating to
probation) or training of an employee or relating to the provision of benefits to
an employee;
(b) the unfair suspension of an employee or any other unfair disciplinary
action short of dismissal in respect of an employee;
… (d) an occupational detriment, other than dismissal, in contravention of the
Protected Disclosures Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act. ’
[9] An ‘occupational detriment ’ is defined in section 1 of the Protected
Disclosures Act
5 (PDA) to include a demotion or the threat to demote an employee.
[10] In terms of section 1 read with section 6 of the PD A, a protected disclosure is
defined as the disclosure by an employee made in good faith, to his or her employer ,
concerning an impropriety .
[11] Section 4 of the PDA provides for the remedies available to an employee
where there has been a breach of section 3 of the PDA. Such remedies include a
referral of a dispute in terms of the provisions of section 191 read with sectio n 186(2)
of the LRA , where the occupational detriment constitutes an unfair labour practice.
Submissions
[12] The applicant is employed in a senior managerial position of f undraising in the
respondent’s Development and A lumni Relations Department .
[13] The applicant alleges that he made several protected disclosures in terms of
the PDA to the respondent regarding improprieties committed by the Executive
Director of his department, Ms Sarah Archer. In his founding affidavit, the applicant
5 Act 26 of 2000.
5
lists no less than eight protected dis closures he made to the respondent spanning
the period from September 2022 to November 2024. The protected disclosures
range from improprieties he avers were committed by Ms Archer to the ‘disclosures ’
in which the applicant objected to the post grading evaluation process and related
recruitment processes , all conducted under a restructuring process that commenced
in the Department, which process was approved by the respondent on 5 December
2023.
[14] The applicant avers that, in retaliation for making such protected disclosures,
he has been victimised, subjected to unfair labour practices in the form of an unfair
suspension and demotion, which constitute occupational detriments .
[15] The applicant was placed on precautionary suspension o n 17 September
2024. He subsequently launched an unfair suspension dispute at the CCMA under case number WECT 22217- 24. On his own version, the suspension was lifted on 3
February 2025, and he returned to work.
[16] On his return to work, the grading of his post continued. He raised several
objections to the process , and ultimately , on 9 May 2025, he was informed that his
review of the job evaluation process was unsuccessful , and his demotion would
proceed.
[17] On 9 May 2025, the applicant referred the aforesaid disputes to the CCMA
under case number WECT 9137- 25 in terms of section 186(2)(a) of the LRA and
under case number WECT 9136- 25 in terms of section 186(2)(d) of the LRA. The
certificate o f outcome under the latter case number is dated 4 June 2025.
6
[18] In correspondence dated 18 June 2025, the respondent confirmed its stance
of 8 and/or 9 May 2025 in that the applicant would be demoted forthwith , and he was
informed that he would receive his letter of appointment .
7
6 p 002-30.
7 p 002 -69.
6
[19] The applicant served this application on the respondent on 20 June 2025 and
afforded the respondent 48 hours to file its answering affidavit, and himself one day
to file a replying affidavit. The notice of motion records that the application was to be heard on 24 June 2025. It is unclear why the application was not heard on that date, but on the day that followed. [20] The applicant fears that the effect of his demotion is that his salary will be
downgraded, contrary to previous assurances by the respondent that he would retain
his current salary should he be demoted. On his own version, in correspondence dated 23 May 2025, he has been assured by the Director: Employee Relations that his salary will not be affected by the downgrade, following written communication on 8 May 2025, that his position will be downgraded.
[21] The applicant avers that his demotion is with effect from 1 July 2025.
8 It is
unclear where he obtains the date of 1 July 2025 as the date of implementation, as
firstly, he has not referred this Court to any appointment letter before this Court
setting this date as the effective date for his demotion, secondly, the correspondence
by the respondent of 8 and/or 9 May 2025 and 18 June 2025 does not state that the
implementation date is 1 July 2025 and thirdly, the respondent avers that the
responsible committee is yet to determine the impact of the demotions on the
employees , irrespective of the assurances by the Director: Employee Relations.9 The
date of 1 July 2025 is accordingly not one that is set by the respondent and appears
to be a figment of the applicant’s imagination.
[22] The applicant further avers that he has instituted a review process relating to
the evaluation of his role, the outcome of which was adverse to him. This process is
yet to be exhausted in terms of the respondent’s procedures ; however, the
respondent refuses to finali se this process. In the circumstances, the applicant seeks
an order directing the respondent to finali se the review process and incidental relief,
relating to an order directing the respondent on the composition of the panel that
should conclude the review process. The respondent contends that this Court has no
8 Founding affidavit at para 72 on p 001- 19 and 109 on p 001-26. See email of 8 May 2025 at p 002-
27.
9 Answering affidavit at para 13 on p 003 -7.
7
power to dictate to it as to how it should compose its structures. I find no fault in this
submission.
[23] In my view, i t is not necessary, for the purposes of determining this
application, to delve into the merits of the review proceedings being exhausted.
[24] The crux of the dispute for determination before this Court is as follows: the
applicant brings this application on an urgent basis to interdict the respondent from demoting him, pending the outcome of his unfair labour practice disputes referred to
the CCMA and a referral instituted in this Court.
[25] The respondent contends that the restructuring process , involving
approximately 90 employees , has been ongoing for three years. He has known
about the restructuring process affecting his position since 2024. In addition, after he referred his dispute in terms of section 186(1)( d) to the CCM A on 9 May 2025, he
took more than a month and a half to launch this application, giving the respondent 48 hours to oppose the relief sought, without any justification for the severely
truncated time frames. Therefore, this application is devoid of urgency.
[26] Further, that this Court lacks the power to direct it on how to structure its
internal committee to review the applicant’s job evaluation and to direct it to afford the applicant a second bite at the cherr y at reviewing his job grading.
[27] The respondent further contends that the applicant is litigious and has several
related disputes before the CCMA and before this Court pertaining to his dispute that
his demotion constitutes an occupational detriment. Therefore, the applicant has
alternative relief , and this application must fail. In addition, t his application itself lacks
merit as the applicant has no basis in law to request this Court to halt a restructuring process that has been ongoing for three years pending the determination of several
disputes , which could take years to finali se, just because the applicant is not happy
with the process. Evaluation
8
[28] This application is not urgent.
[29] On the applicant’s own version, as early as July 2024 and August 2024, he
was aware that his position would be demoted. At that stage, he laboured under the view that his position would be downgraded due to the several protected disclosures he made, yet, he did not approach the CCMA for relief in terms of section 186(1)(d)
of the LRA , and did he approach this Court for urgent interdictory relief at that stage,
pending suc h referral to the CCMA.
[30] When the applicant referred a dispute to the CCMA in terms of section
186(1)(d) of the LRA on 9 May 2025, he did not approach this Court to interdict the implementation of his demotion pending the outcome of the CCMA dispute. The certificate of outcome issued on 4 June 2025 directs the applicant to refer his dispute
to this Court for adjudication. It appears that he did not. The reason is glaring, and that is because he has already referred a similar dispute to this Court , seeking
essentially the same relief by way of an action proceedings on 4 April 2025. Yet,
even at that stage, he did not approach this Court for interdictory relief.
[31] The applicant’s referral before the CCMA in terms of section 186( 2)(a) of the
LRA should run its course. This Court has no jurisdiction in terms of section 157( 5) of
the LRA to adjudicate an unresolved dispute. The applicant has launched a number
of disputes – the respondent finds itself in a maze making head or tail of these many
disputes – as I understand the chronology, it appears that the applicant’s dispute at
the CCMA under case number WECT 22217- 24 in terms of section 186(2)(b) of the
LRA relates to the applicant’s unfair suspension. On his own version, the suspension
has been lifted.
[32] In addition to not approaching this Court without delay, t he applicant has not
set out explicitly in his founding affidavit why he will not obtain substantial redress if his dispute is heard in the normal course. He has not set out why he should jump the queue and why his matter deserves to be heard on an urgent basis. A decision has not been taken to downgrade his salary. The applicant has alternative relief in the CCMA and has a pending dispute in this Court. The test for urgency is not met.
9
Costs
[33] This application is brought within extremely truncated time frames with no
justification for this . The application is not urgent. It is also frivolous. The applicant
has burdened this Court with a meritless application and has caused a storm in a
teacup by filing pages and pages averring a string of protected disclosures. H is delay
in approaching this Court diminished any urgency. The respondent has incurred costs in defending a hopeless application. [34] In the premises, the following order is made:
Order
1. The application is struck off the roll for lack of urgency.
2. The applicant is to pay the costs.
M. T. M. Phehane
Judge of the Labour Court of South Africa
Appearances :
For the applicants : Mr Parker of Parker Attorneys
For the respondents: Mr Geldenhuys
Instructed by: ME Attorneys