THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: 2025-135221
In the matter between:
EMFULENI LOCAL MUNICIPALITY Applicant
and
AUBREY DAVID TAUNYANE First Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL Second Respondent
NONHLANHLA SITHOLE N.O. Third Respondent
Heard: 19 August 2025
Delivered: 20 August 2025
This judgment was handed down electronically by uploading it on CaseLines
and/or circulating it to the parties’ legal representatives. The date for hand-down
is deemed to be 19 August 2025.
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JUDGMENT
MAKHURA, J
[1] In terms of section 158(1B) of the Labour Relations Act
1 (LRA), this Court may
not review a commissioner’s ruling or decision made in an interlocutory application
before the issue in dispute has been finally determined, except if the Court “is of the
opinion that it is just and equitable to review the decision or ruling made before the
issue in dispute has been finally determined”. This provision came int o effect on 1
January 2025.
[2] It is astounding that more than 10 years after the enactment of s ection 158(1B)
and many judgments of this Court on review applications
2 and urgent interdict of
uncompleted arbitration proceedings 3, and the Labour Appeal Court 4 (LAC) later, this
Court is still routinely confronted with applications of this nature.
[3] In these proceedings, the Municipality unsuccessful ly applied for legal
representation before the third respondent commissioner. In her ruling, the
commissioner noted that the employee was dismissed for contravenin g a suspension
1 Act 66 of 1995, as amended.
2 Ngobeni v Passenger Rail Agency of SA Corporate Real Estate Solutions & others (2016) 37 ILJ 1704
(LC); South African Broadcasting Corporation (SOC) Limited v Commission for Conciliation, Mediation
and Arbitration and Others [2019] ZALCJHB 318; (2020) 41 ILJ 493 (LC) ; Technology Corporate
Management (Pty) Ltd v Moue and Others [2023] ZALCJHB 122; Pailpac (Pty) Ltd v NUMSA obo
Mthwane (Unreported and Unpublished Case No. D619/23) dated 13 March 2024; City of Johannesburg
Metropolitan Municipality v Mphefo and others [2024] ZALCJHB 287 (Mphefo).
3 Passenger Rail Agency of South Africa (Pty) Ltd v Mathobela and Others [2024] ZALCJHB 446
(Mathobela); Bojanala Platinum District Municipality v Fourie and Others [2025] ZALCJHB 306 (Fourie).
4 Moolman v Commission for Conciliation, Mediation and Arbitration and Others [2024] ZALA C 339
(Moolman); South African Cabin Crew Association obo Members v South African Airways (SOC) Ltd and
Others [2025] ZALAC 45 (SA Cabin Crew).
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condition. She found that there is nothing complex about the charge or case. She
correctly noted that the central issue for determination is whether the first respondent
employee violated the suspension condition, specifically whether he was insubordinate
or had committed gross misconduct.
[4] The Municipality alleged in its application for legal representation that it could not
obtain assistance from officials of other municipalities and that its officials are conflicted
as they are due to testify against the employee. The commissioner found that there was
no evidence to suggest that the Municipality could not find any official from other
municipalities to represent it in the proceedings. She found the submission made by the
Municipality in this regard “alarming”, that it “sought to cast aspersions on many
individuals who may represent the Respondent from the said institutions” , and that such
an allegation must be corroborated by evidence if it were to be accepted.
[5] The allegation that there was no official from the Municipality to represent it
suggests that all its officials in the labour relations and legal units of the Municipality
would be called as witnesses to testify against the employee on a charge of
contravention of a suspension condition. This allegation was not substantiated. No
details of the officials in these units were provided, and why, even if they were due to
testify, they could not represent their employer and present the case on its behalf . It is,
in any event, improbable that a charge of this nature could require all the managers and
senior managers of these units to give evidence.
[6] For the Municipality to succeed in these proceedings, it must show that there are
exceptional circumstances that warrant the Court’s intervention and stay the arbitration
proceedings
5. The LAC most recently held in SA Cabin Crew6 that:
5 Booysen v The Minister of Safety and Security & others [2011] 1 BLLR 83 (LAC); (2011) 32 ILJ 112
(LAC) at para 54; Moolman, fn 4 above.
6 Ibid, fn 4 above.
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‘Exceptional circumstances justifying judicial intervention in incomplete
proceedings have been found to exist where such intervention was necessary to
prevent illegality, to prevent grave injustice, or where justice could not otherwise
be achieved.
Judicial intervention is all the more justified where a review is instituted in medias
res to challenge and set aside a ruling premised on a material error of law…’
7
[7] The Municipality must therefore show that these proceedings are necessary to
prevent an illegality or a grave injustice and that justice could not be achieved in due
course if the arbitration is allowed to proceed.
8 The Municipality relied on this Court’s
judgment in City of Johannesburg Metropolitan Municipality v Mphefo and others 9
(Mphefo). However, this judgment is of no assistance to the Municipality because there,
the applicant sought the Court’s intervention pending finalisation of a review application
against a jurisdictional ruling, which has the effect of disposing of the issue in dispute.
[8] The Municipality contends that exceptional circumstances warranting this Court’s
intervention at this stage exist. First, the Municipality filed a review application. Second,
in light of the pending review application, which has prospects of suc cess. Therefore, it
has established a prima facie right for the interdict. Third, the Municipality contends that
the charges against the employee are complex and require a person with legal
expertise. Fourth, the dispute presents:
‘an opportunity to foster precedent in respect of the intersection between a
fiduciary duty of the employee to the employer and duty of a union official to the
union.’
7 Ibid at paras 27 – 28.
8 See also Moolman at para 45, where the LAC stated that intervention may be warranted where, if
allowed to stand, the ruling would cause irreparable harm.
9 [2024] ZALCJHB 287.
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[9] The above is allegedly an issue that cannot be traversed by lay persons . Fifth,
the Municipality sought assistance from officials of other municipalities but was
unsuccessful as they had “their work-related responsibilities and commitments”.
[10] In opposition, the employee argued that the matter is not urgent, that the
application does not meet the requirements for an interim relief , and the Municipality
failed to prove exceptional circumstances.
[11] The Municipality has no prima facie right because it has no right to legal
representation in misconduct arbitration proceedings. The right to legal representation is
attained by filing a review application to challenge the legal representation. On the face
of it, considering the legal principles and the facts of this matter, the review application
is doomed. It is outrageous for a Municipality that charged and dismissed its employee
for violating a suspension condition to claim that this charge and the entire unfair
dismissal dispute involve complex legal issues requiring legal representation. The
argument relating to legal precedent is flimsy , absurd and ludicrous . As the
commissioner concluded, the allegation that the Municipality sought aid from other
municipalities is unsupported and will remain so throughout these proceedings. The
officials who are purportedly conflicted because they are witnesses and cannot
represent the municipality’ s case have not been referred by the Municipality to the
commissioner or this Court. Nonetheless, the above hardly constitute exceptional
circumstances.
[12] This Court has found that a review of a jurisdictional ruling, which has the
consequence of disposing of the issue in dispute, would justify the intervention of this
Court.
10 Equally, a review of a condonation ruling was found by this Court to warrant an
urgent stay of the arbitration proceedings. 11 I cannot conceive of any grave injustice or
10 See: Mphefo & Mathobela above.
10 See: Mphefo & Mathobela above.
11 Mining Qualifications Authority v Commission for Conciliation, Mediation and Arbitration and Others
[2025] ZALCJHB 120.
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any illegality that could warrant this Court’s intervention to stay the arbitration
proceedings pending a r eview of a legal representation ruling because in such cases,
the applicant has an alternative remedy , has an opportunity to challenge the
interlocutory ruling in due course and therefore no irreparable harm could ensue.
[13] The Municipality would not suffer any illegality or injustice if the arbitration
proceedings continue. Indeed, the Municipality has not even attempted to make out this
case in its founding affidavit . For the above reasons, this application stands to be
dismissed.
[14] The employee sought costs. In her heads of argument, Ms Phaked i, who
appeared for the employee, sought costs de bonis propir iis. This case was not raised in
the employee’s answering affidavit with particularity to allow the Municipality’s attorneys
to respond. Whilst I accept that the Municipality and its attorneys should have known
better, I am not convinced that a case for an extraordinary costs order of this nature has
been made out or that the Municipality’s attorneys acted so negligently to warrant the
Court’s rebuke.
[15] I am , however, persuaded that the application is meritless and constitutes an
abuse of the court processes . Accordingly, a deviation from the principle in this Court
that costs do not follow the result is justified. The employee should not be saddled with
the costs of opposing this application.
[16] In the premises, the following order is made:
Order
1. The application is dismissed with costs.
M. Makhura
Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Mr O. Leketi
Instructed by: Raphela Attorneys
For the First Respondent: Ms G.C. Phakedi of Phakedi Attorneys