THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case No: 2025- 094549
In the matter between:
NORMAN MBOKO DO First Applicant
SELBY MABELE Second Applicant
and
NEHAWU First Respondent
FANIE NGWENYWAMA Second Respondent
DEKETSO MOSELENA Third Respondent
WELCOME MNISI Four th Respondent
GIFT MASEKO Fifth Respondent
LINAS MAHAMBA Sixth Respondent
PROVINCIA L EXECUTIVE COMMITTEE Seventh Respondent
2
REGIONAL OFFICE BEARERS Eight h Respondent
Heard: 24 June 2025
Delivered: 30 June 2025
JUDGMENT
PHEHANE , J
[1] In this opposed urgent application, the applicants seek declaratory final
interdictory relief in essence, to interdict the convening of a Congress of the first
respondent from taking place on 25 to 27 June 2025 and related relief, pending compliance with the provisions of the constitution of the first respondent.
[2] Firstly, the applicants have failed to comply with their own truncated time
frames as set out in their notice of motion and to ready this application for he aring on
24 June 2025. Secondly , all the necessary papers were not uploaded time ously on
CaseL ines for the expedient adjudication of this application. For this reason and on
the basis of the contentions as set out in the answering affidavit
1 that this application
is not urgent and with due regard for the provisi ons of Rule 38,2 this application
ought to be struck off the roll for lack of urgency.
[3] Another issue arises - the dispute before this Court is pending before the
Mpumalanga Division of the High Court in Mbombela under case number 2025-
088026. Consequently, this application fails on the doctrine of lis pendens.
[4] The applicants aver that their application is premised on contract and that is
the reason they approached the High Court for relief. The same application for the
1 At paragraphs 14 to 32 on pp 003-6 to 003- 18 on CaseLines.
2 Rule 38 of the Rule s Regulating the Conduct of the Proceedings of the Labour Court published in
GN 477a in GG 50608 of 3 May 2024. See also: East Rock Trading 7 (Pty) Ltd and Another v Valley
Granite (Pty) Ltd and Others (11/33767) [2011] ZAGPJHC 196 (23 September 2011) .
3
same relief was heard in the High Court on 17 June 2025.3 It transpires on the
applicant s’ own version, that they became impatient when the judgment and order of
the High Court was reserved and thus approached this Court for the same relief.
[5] In a judgment handed down on 23 June 2025 , the High Court struck the
applicants’ application off the roll for lack of urgency.4 The applicants disingenuously
now submit before this Court, that the High Court lacks jurisdiction and its order is
thus null and void in a desperate attempt to avoid the challenge of lis pendens , yet,
they aver that their claim is premised on contract and have failed to withdraw their dispute that is currently pending in the High Court.
[6] In Feni v Commission for Conciliation, Mediation and Arbitration and Others ,
5
the Labour Appeal Court explained as follows regarding the doctrine of lis pendens :
‘[14] Aligned, however, to the concept of res judicata is that of lis pendens .
As Nugent AJA said in Nestlé (South Africa ) (Pty ) Ltd v Mars Inc 2001 (4) SA
542 (SCA) at paragraph 16 [also reported at [2001] 4 All SA 315 (A) - Ed]:
"The defence of lis alibi pendens shares features in common with the defence
of res judicata because they have a common underlying principle, which is
that there should be finality in litigation. Once a suit has been commenced
before a tribunal that is competent to adjudicate upon it, the suit must
generally be brought to its conclusion before the tribunal and should not be
replicated ( lis alibi pendens ). By the same token the suit will not be permitted
to revive once it has been brought to its proper conclusion ( res judicata). The
same suit between the same parties, should be brought once and finally."
[15] Wallis J explicated upon the doctrine in Caesarstone Sdot -Yam v
World of Marble and Granite 2000 CC and others 2013 (6) SA 499 (SCA) at
paragraph 2 [also reported at [2013] 4 All SA 509 (SCA) - Ed] where he said
3 See: founding affidavit at paras 95 to 98 on pp 002- 27 to 002- 28 on CaseLines.
4 The judgment per Bhengu AJ in the High Court appears at pp 012-1 to 012 - 13 on CaseLines. This
judgment set out the facts of this dispute in detail. The judgment records that two points in limine
served before it, jurisdiction and urgency. The judgment deals only with urgency. It seems to me, that
Bhengu AJ was satisfied that the Court had jurisdiction, otherwise an order would not have been
issued. It is trite that in contractual dispute, such as the present dispute, the High Court and Labour
Court have concurrent jurisdiction.
5 [2020] 10 BLLR 1001 (LAC) at paras 14 to 15.
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that the policy underlying the doctrine of lis pendens "is that there should be a
limit to the extent to which the same issue is litigated between the same
parties and that it is desirable that there be finality in litigation. The courts are
also concerned to avoid a situation where different courts pronounce on the
same issue with the risk they may reach different conclusions." [Own
emphasis].
[7] In view of the afore- going, t he applicants ’ conduct amounts to nothing more
than forum shopping and is vexatious.6 The submission on behalf of the applicants
that the High Court lacks jurisdiction after they have not succeeded on urgency in the
High Court, is mischievous. In the circumstances, an order that the applicants pay the costs of this application on a punitive scale is warranted.
[8] If I am wrong on my finding of lis pendens , which I do not think I am, then, I
would have struck the matter off the roll with costs for the reasons mentioned above. [9] In the premises, t he following order is made:
Order
1. The application is dismissed.
2. The applicant s are to pay the costs on a scale as between attorney and
own client.
M. T. M. Phehane
Judge of the Labour Court of South Africa
Appearances :
For the applicants : Adv Zwane
Instructed by : WS Nkosi Attorneys
For the respondents: Adv Hulley SC
Instructed by : M Matshiyane Attorneys
6 Feni, supra at para [ 16].