THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: 2025-130223
In the matter between:
GAUTENG DEPARTMENT OF INFRASTRUCTURE First Applicant
GAUTENG DEPARTMENT OF HEALTH Second Applicant
and
PUBLIC HEALTH AND SOCIAL DEVELOPMENT First Respondent
PSA obo GOODHOPE MASEKO Second Respondent
MOKHELE RASEBOKA Third Respondent
RICHARD MAKHUMISANI Fourth Respondent
TREVOR TABANE Fifth Respondent
ADVOCATE RONNIE BRACKS N.O Sixth Respondent
Heard: 5 August 2025
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Delivered: This judgment was handed down electronically by circulation to
the parties' legal representatives by email, and by publication on Caselines.
The hand-down date is deemed to be 25 August 2025.
Summary: An urgent application to interdict arbitration proceedings pending
the outcome of a leave to appeal.
JUDGMENT
GANDIDZE, J
Introduction
[1] On 1 August 2025, this court heard an urgent application jointly brought by the
Gauteng Department of Infrastructure Development (GDoID) and the Gauteng
Department of Health (GDoH), the first and second applicants respectively, for an
order to interdict arbitration proceedings scheduled from 5 to 7 August 2025 under
the auspices of the Public Health and Social Development Sectoral Bargaining
Council (PHSDSBC), the first respondent herein. That application was dismissed by
Phakedi AJ on 4 August 2025. The current application, filed on 5 August 2025, also
urgently seeks interim relief to prevent the same arbitration proceedings from going
ahead pending the final determination of the application for leave to appeal against
the judgment of Phakedi AJ.
[2] Only the second respondent, Dr Goodhope Maseko (Maseko), represented
herein by his union, the Public Servants Association (PSA), opposed the application.
[3] On 5 August 2025, the matter was postponed to 6 August 2025 to allow the
GDoID and GDoH, collectively called the applicants, to file a replying affidavit to
Maseko’s answering affidavit. When the matter was argued on 6 August 2025, the
Court was informed that arrangements had been made to ensure the arbitration
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proceedings would be held in abeyance pending this judgment. The Court reserved
its judgment.
Background facts
[4] Maseko, a former employee of the GDoH, was dismissed for misconduct. He
challenged his dismissal at the PHSDSBC, and the matter was assigned case
number PSHC 999- 24/25. It was the arbitration of this dispute, scheduled for 5 to 7
August 2025, that the applicants were unable to interdict before Phakedi AJ.
[5] The third to fifth respondents are Mokhela Raseboka (Raseboka), Richard
Makhumisani (Makhumisani), and Trevor Tabane (Tabane). They are all former
employees of GDoID, who were also dismissed for misconduct. Each of them has
referred a separate alleged unfair dismissal dispute to the General Public Service
Sector Bargaining Council (GPSSBC), and these disputes are still pending before
the GPSSBC.
[6] The GDoH, Maseko’s former employer, applied to the PHSDSBC to
consolidate Maseko’s dispute with those referred to the GPSSBC by Raseboka,
Makhumisani, and Tabane. In support of the application, it was argued that Maseko,
Raseboka, Makhumisani, and Tabane were dismissed for the same misconduct,
following a joint disciplinary hearing chaired by a single presiding officer, with the
same witnesses giving evidence. It was further submitted that the lengthy disciplinary
process spanned approximately two years. The PSA was also said to represent two
of the four former employees, namely Maseko and Raseboka. An additional
submission was made, that without consolidation, separate arbitrations could result
in conflicting awards, and that a joint arbitration process would prevent unnecessary
delays in resolving the disputes, as the same witnesses would be required to testify
four times before four arbitrators. The GDoH asserted that the application for
consolidation was permitted under Rule 27(1) and (2), read together w ith Rule 31 of
the Rules for the conduct of proceedings before the GPSSBC or the PHSDSBC.
the Rules for the conduct of proceedings before the GPSSBC or the PHSDSBC.
[7] In a ruling dated 5 May 2025, Commissioner Ronnie Bracks (the
Commissioner), the sixth respondent, issued a ruling refusing the consolidation
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application. He reasoned that only the parties to the PHSDSBC can have a matter
arbitrated by the PHSDSBC, and that a dispute involving parties who do not fall
within the registered scope of the PHSDSBC must be referred to the Commission for
Conciliation, Mediation and Arbitration (CCMA). He concluded by stating that “ each
council has a registered scope and here we are dealing with two bargaining councils
each with their own jurisdiction and this precludes me from consolidating the matters
as l do not have jurisdiction to do so”.
[8] Aggrieved by the ruling refusing condonation, on 11 June 2025, the applicants
applied to this Court, seeking to review and set aside the consolidation ruling. In the
review application, the court is urged to reconsider the decision not to consolidate
the disputes, as consolidation could lead to a just and speedy resolution of the
alleged unfair dismissal disputes. The further submission on review is that the matter
raises an arguable point of law of general importance to trade unions, employees,
and employers in the public sector.
[9] After the consolidation ruling was issued, the PHSDSBC scheduled Maseko’s
matter for arbitration from 5 to 7 August 2025, prompting the applicants to file an
urgent application to interdict the arbitration proceedings. It was this application that
Phakedi AJ dismissed in a judgment handed down on 4 August 2025. Phakedi AJ
found that procedurally, the GDoID had not applied to join the review and the urgent
applications. Substantively, Phakedi AJ determined that the dispute should have
been treated as an interpretation dispute, as a provision in the Constitution of the
PHSDSBC was the issue at hand.
[10] The evening of 4 August 2025 was a busy one for the applicants and their
attorneys of record. That evening, an application for leave to appeal Phakedi AJ's
judgment, as well as the current application, was compiled and served.
[11] The application for leave to appeal raises several grounds of appeal. In the
[11] The application for leave to appeal raises several grounds of appeal. In the
first instance , it is argued that the finding that the dispute was one about the
interpretation of the Constitution of the PHSDSBC is wrong, and that the applicants
had no other remedy but to bring a review application to challenge the consolidation
ruling. It is also submitted that Phakedi AJ erred in finding that this Court lacks
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jurisdiction to deal with a dispute where the interpretation of the PHSDSBC
Constitution is ancillary or incidental to the determination of the review application.
Secondly, it is submitted that the consolidation ruling on jurisdiction was made only
for convenience, and that it is for this Court to determine whether the PHSDSBC
lacked jurisdiction to consolidate the disputes. Thirdly, Phakedi AJ is alleged to have
failed to determine whether the applicants would suffer irreparable harm if the
arbitration proceedings were not interdicted, rendering the review application moot. It
is also submitted that Phakedi AJ’s finding that the Maseko arbitration could proceed
overlooks the fact that the GDoID was a party to both the review and urgent
applications, contending that consolidation was required. Finally, Phakedi AJ is said
to have attached more weight to the fact that some respondents opposed
consolidation, ignoring that the PSA , which is representing Maseko and Raseboka,
conceded that consolidation was desirable.
[12] In opposition to the application, the PSA on behalf of Maseko submits that the
review application lacks prospects of success, as Phakedi AJ was correct that the
dispute between the parties should be dealt with as an interpretation dispute, and
that the PSA has a different understanding of the provision in the Constitution of the
PHSDSBC relied upon by the applicants . According to the PSA, consolidating
disputes at the PHSDSBC will set a precedent and lead to a situation where all
public sector employees, even those who are not party to the PHSDSBC, will refer
their disputes to the PHSDSBC, which grants earlier hearing dates. The submission
is also that respondent employees who fall under the GPSSBC cannot be compelled
to have their disputes arbitrated by a bargaining council to which they are not a
party. The PSA argues that the applicants should have taken heed of the
Commissioner’s guidance to refer the matter to the CCMA or attend four separate
Commissioner’s guidance to refer the matter to the CCMA or attend four separate
arbitrations in the two bargaining councils. According to the PSA, granting the order
sought will prejudice the now unemployed second to fifth respondents, who are
ready for their dismissal disputes to be arbitrat ed, that reviews in this Court can take
years to be disposed of, that consolidation is merely a convenience but not a right,
and that should the applicants ultimately succeed with the review application, they
can recover their costs. The PSA also clarifies that they did not agree that
consolidation was desirable, but that they did not oppose the consolidation
application.
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[13] As I mentioned in the introductory paragraph, the current application seeks an
interim order to prevent the arbitration proceedings scheduled for 5 to 7 August
2025, or any subsequent dates for the Maseko arbitration, pending the outcome of
the application for leave to appeal before Phakedi AJ. The matter was argued on 6
August 2025, and the Court required time to consider it; the judgment could only be
delivered after 7 August 2025. Although no new dates have been set for the
resumption of the Maseko arbitration, the applicants have requested an order that
the PHSDSBC not schedule the matter for arbitration on future dates, and therefore,
the orders sought are not moot.
Urgency
[14] The current application was drafted, served, and filed on the same day that
the Phakedi AJ judgment was handed down, namely 4 August 2025. The urgent
application sought to interdict the Maseko arbitration proceedings, which were set to
commence on 5 August 2025, and to prevent any other hearing dates from being
allocated until the application for leave to appeal had been disposed of. The sole
respondent, PSA obo Maseko, who opposed the application on its merits, did not
contest the urgency. The matter is urgent.
Requirements for urgent interim relief
[15] Section 158(1)(a) of the Labour Relations Act
1 (LRA), empowers this Court to
grant urgent interim relief. The requirements for interim relief were set out in
Setlogelo v Setlogelo
2 as (a) a prima facie right, even if it is open to some doubt, (b)
reasonable apprehension of irreparable or imminent harm if the interdict is not
granted, (c) the balance of convenience must favour the grant of the interdict, and (d)
the applicant must have no other remedy. In exercising its discretion in applications
for interim relief, the Court does not consider these requirements in isolation, but
rather in interaction with one another.
1 Act 66 of 1995, as amended.
2 1914 AD 221 at 227.
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[16] The applicants sought an order interdicting the arbitration proceedings set for
5 to 7 August 2025, pending the outcome of their application for leave to appeal
against Phakedi AJ’s judgment. This judgment is sought to be appealed against on
the basis that Phakedi AJ erred when he found that the applicants ought to have
referred a dispute about the interpretation of the Constitution of the PHSDSBC.
[17] While Phakedi AJ will determine whether there are reasonable prospects that
another court would arrive at a different conclusion to that which she did, for
purposes of this application I am required to express a prima facie view on whether
the applicants have a prima facie right to the relief which they seek, even if such right
is open to some doubt. Phakedi AJ, and ultimately the appeal court (should leave to
appeal or a petition be granted), will finally determine the matter.
[18] The GDoH, Maseko’s former employer, applied to the PHSDSBC, to
consolidate Maseko’s alleged unfair dismissal dispute with the disputes of
Raseboka, Makhumisani and Tabane, filed at the GPSSBC. That application was
refused for the reasons given by the commissioner, as recorded elsewhere in this
judgment. Phakedi AJ refused the application to interdict the Maseko arbitration
proceedings, reasoning, inter alia , that the GDoID , which was not party to the
consolidation ruling, had not applied to be joined to the review and urgent
applications.
[19] In my view, the review and urgent applications constitute fresh proceedings
instituted before this court, and the GDoID and the GDoH are applicants in those two
applications. The GDoID did not have to apply to join the review and urgent
applications, but could be an applicant as they decided to do. On this basis alone, I
express the prima facie view that Phakedi AJ’s finding that GDoID could not be a
party to the review and urgent applications, without having applied to be joined, may
party to the review and urgent applications, without having applied to be joined, may
well be erroneous. I express this prima facie view in a context where it does not
appear to be in dispute that the GDoID has a direct and substantial interest in what
this court will ultimately decide regarding the consolidation of the disputes. This is
not a case of misjoinder.
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[20] Phakedi AJ also found that the applicants ought to have referred a dispute
about the interpretation of the Constitution of the PHSDSBC. I agree with the
applicants that once the commissioner ruled on the consolidation application, and
that outcome aggrieved any party, the only recourse was to approach this court with
an application to review and set aside that ruling, which was final and binding until
set aside on review. Referring an interpretation dispute would not undo the
consolidation ruling.
[21] Therefore, based on those prima facie views, the applicants have
demonstrated a prima facie right to the relief they seek, even though open to some
doubt, and the Maseko arbitration proceedings must be interdicted pending the
outcome of the application for leave to appeal before Phakedi AJ.
[22] If the interdict is refused, and the Maseko arbitration commences in the
meantime, and Phakedi AJ later grants leave to appeal , the applicants would suffer
the irreparable harm that they would have commenced conducting the arbitration
proceedings separately and in two bargaining councils, relying on the evidence of
the same witnesses who would be required to give the same evidence more than
once. There is the real risk, as pointed out by the applicants, that conflicting
arbitration awards may well be issued. There is also the cost to taxpayers should
four separate arbitrations run simultaneously before different Commissioners. There
is no question that four separate arbitrations running concurrently will result in delays
in the finalisation of all four matters , as the same witnesses and representatives will
be required in both arbitration proceedings.
[23] Commencing with the Maseko arbitration proceedings in the meantime, and
then Phakedi AJ later grants leave to appeal against her judgment, would result in a
situation where the commenced Maseko arbitration proceedings would have been in
vain. The arbitration proceedings would have to be recommenced, this time involving
vain. The arbitration proceedings would have to be recommenced, this time involving
the GDoID, Raseboka, Makhumisani and Tabane.
[24] On the facts of this matter, co nsolidation may not be merely a matter of
convenience to the parties, as argued by the PSA. Running four separate
arbitrations in two separate bargaining councils, with the same representatives and
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witnesses, will undoubtedly result in the delayed finalisation of all four arbitrations ,
compounded by the risk of conflicting arbitration awards despite the same evidence.
[25] In saying the above, I am not in any way making a pronouncement on
whether the PHSDSBC can arbitrate a dispute involving non- parties, or the correct
interpretation of the Constitution of the PHSDSBC. Those are issues for Phakedi AJ
to consider when she determines the application for leave to appeal. Ultimately, it is
for the court hearing the review application to determine and to dispose of that issue
finally in due course. I merely express the prima facie view that the applicants have
demonstrated a prima facie right to an interdict, even if such a right is open to some
doubt.
[26] I find that the applicants have effectively shown that irreparable harm would
result if the Maseko arbitration proceeds before Phak edi AJ has decided on the
application for leave to appeal. The balance of convenience supports interdicting the
Maseko arbitration proceedings for the reasons outlined above.
[27] Although there is some merit to the PSA’s submission that interdicting the
Maseko arbitration proceedings until Phakade AJ has considered the application for
leave to appeal will cause delays in starting the Maseko arbitration, to his prejudice,
the submission might have been overstated given that once the parties file their
submissions in the application for leave to appeal, Phakedi AJ will decide the matter
in chambers, and a judgment will be issued within a few days or weeks. It does not
take years, as argued by the PSA, for applications for leave to appeal to be decided.
[28] Interdicting the Maseko arbitration proceedings is the only remedy available to
the applicants. The PSA submitted that a costs order could be granted in favour of
the applicants. The norm is not to award costs in applications for leave to appeal, but
rather for costs to be awarded in the appeal.
rather for costs to be awarded in the appeal.
[29] Furthermore, an application to postpone the Maseko arbitration proceedings
was unlikely to succeed, as the PHSDSBC had scheduled the matter for arbitration
following the issuance of the consolidation ruling. Once the consolidation ruling was
issued, there was no longer an obstacle to initiating the Maseko arbitration
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proceedings, according to the PHSDSBC, unless this Court intervened to interdict
the arbitration proceedings.
[30] I am satisfied that the requirements for interim interdictory relief have been
satisfied.
Costs
[31] This being an application for interim interdictory relief, and the fact that this
judgment does not make any final pronouncements on the parties' rights, an
appropriate order is that each party pay its own costs.
[32] In the premises, I make the following order:
Order
1. The matter is urgent.
2. The first respondent, its agents and employees are interdicted from
setting down for arbitration case number PSHC 999- 24/25, pending the
hearing and determination of the applicants ’ application for leave to appeal
Phakedi AJ’s order issued on 4 August 2025 in case number 2025- 122304.
3. There is no order as to costs.
T Gandidze
Judge of the Labour Court of South Africa
Appearances
For the Applicant: Ms K Mashishi
Instructed by: Malatji & Co Attorneys
For the second respondent: Mr K Mahapa of the Public Servants Association