THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: 2025-134143
In the matter between:
EDWARD OUPA MAHOSI First Applicant
DERICK MAKHUBELE Second Respondent
and
THE DEPARTMENT OF FORESTRY,
FISHERIES AND ENVIRONMENT First Respondent
THE DIRECTOR-GENERAL: DEPARTMENT
OF FORESTRY, FISHERIES AND ENVIRONMENT Second Respondent
THE MINISTER OF PUBLIC
SERVICE AND ADMINISTRATION Third Respondent
THE GENERAL PUBLIC SERVICE
AND ADMINISTRATION Fourth Respondent
2
Heard: 21 August 2025
Delivered: 26 August 2025
This judgment was handed down electronically by uploading it on CaseLines
and/or Court Online.
JUDGMENT
MAKHURA, J
[1] The applicants approached this Court on an urgent basis, seeking a declaratory
order that they are permanent employees of the first respondent on the same terms and
conditions of employment as were agreed between them and the f irst respondent in
their current fixed-term contracts of employment that expire on 31 August 2025. They
also seek to interdict and restrain the f irst and second respondents from interviewing
and/or placing candidates in their current positions or any other equivalent positions
within the first respondent, advertising, processing, or filling their current positions.
[2] Finally, the applicants seek to interdict and restrain the first and second
respondents from t erminating their employment on 31 August 2025 or any date
thereafter, pending the final determination of the unfair dismissal dispute referred to the
fourth respondent, the bargaining council, under GPBC1108/2025.
[3] At the commencement of the proceedings, Mr Goosen, who appeared for the
applicants, submitted that the applicants no longer seek a final declaratory order, but
seek this order on an interim basis pending the determination of their unfair dismissal
dispute referred to the bargaining council . Mr Goosen further submitted that the
applicants also seek interim interdictory relief to restrain the first and second
respondents from advertising, processing, interviewing, filling or placing candidates in
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their current or equivalent positions pending the determination of their unfair dismissal
dispute.
[4] The applicants are currently employed on fixed- term contracts, the fixed-term of
which is due to expire or lapse on 31 August 2025. They are respectively employed as
the C ontrol Environment Officer Grade A : Energy and Waste Authorisations and
Director: Air Quality Authorisations . They were first employed on fixed- term contracts
approximately 10 years ago, in 2015. They alleged that when they were interviewed in
2015, they were informed that their posts had been advertised as contract posts due to
a moratorium on permanent posts and that they would be made permanent once the
moratorium was lifted, in the alternative, their contracts would be extended.
[5] In 2019, their contracts were renewed for three years. In May 2022, the Chief
Director of the first respondent, Dr Patience Gwaze, allegedly reiterated the assurances
or representations that they would be made permanent or have their contracts renewed.
They allege further that:
‘In January 2023, Dr. Gwaze updated us on efforts to establish a permanent
structure and again assured us that if the process wasn’t finalised before contract
expiry, contracts would be renewed.
In October 2023, Dr. Gwaze requested us to agree to a lesser contract term of
eighteen (18) months, on the understanding that a submission would be made to
the Department of Public Service and Administration (DPSA) to convert the D:
AQA structure and posts into permanen t ones. We agreed in good faith, as it
meant absorption if approved. These are the contracts that expire on 31 August
2025.
Despite these assurances, in March 2024, our enquiries about the progress of
the permanent structure were met with no response. Later, in November 2024,
we were informed that the CFO had rejected the establishment of a new
structure.’
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[6] Dr Gwaze deposed to the answering affidavit on behalf of the first and second
respondents. She denied having made the representations or assurances. Alternatively,
she argues that even if these representations were made, they were subject to two
conditions: first, the lifting of the moratorium, and second, the approval of the permanent
structure and posts. Dr Gwaze admits that the Chief Financial Officer did not approve of
the establishment of the new permanent structure and posts.
[7] In addition to th e above opposition to the application, the first and second
respondents raised t hree preliminary points: urgency, jurisdiction and lis pendens. The
first and second respondents contend that the matter is not urgent and that this Court
has no jurisdiction to declare that the applicants are permanent employees before the
unfair dismissal dispute is referred for conciliation and arbitration. The defence of lis
pendens is inextricably linked to the requirement of an alternative remedy, which is that
the applicants have already referred their unfair dismissal to a forum with competent
authority to determine the matter. This latter defence was not pressed by Mr Cassim,
who appeared for the first and second respondents.
[8] Rule 38(2) of this Court's rules requires an urgent applicant to clearly state the
reasons for the urgency and why the court should grant the relief sought. The rule
mandates that applicants not only include in their founding papers an explanation of
why the application is urgent but also specify why the relief should be granted
immediately rather than later. In other words, applicants must demonstrate that they
would not receive adequate or substantial redress if the matter is heard in the normal
course. This procedure is not there for the taking. The Court will not enroll and
determine the matter based solely on the applicant’s say-so in his affidavit. Notshe AJ in
East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others
1
East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others
1
put it this way:
‘An applicant has to set forth explicitly the circumstances which he avers render
the matter urgent. More importantly, the Applicant must state the reasons why he
claims that he cannot be afforded substantial redress at a hearing in due course.
1 [2011] ZAGPJHC 196; 2011 JDR 1832 (GSJ) at para 6.
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The question of whether a matter is sufficiently urgent to be enrolled and heard
as an urgent application is underpinned by the issue of absence of substantial
redress in an application in due course. The rules allow the court to come to the
assistance of a litigant because if the latter were to wait for the normal course
laid down by the rules it will not obtain substantial redress.’
[9] In their motivation for urgency, the applicants contend that they would not obtain
substantial redress in due course because their contracts are set to terminate on 31
August 2025. In their pleadings, the applicants relied on two judgments of this Court in
Nowalaza and Others v Office of the Chief Just ice and Another
2 (Nowalaza) and Kapari
and Another v Office of the Chief Justice and Another3 (Kapari). At the commencement
of the hearing, Mr Goosen correctly and upfront conceded that Nowalaza is
distinguishable, and abandoned any reliance on it. He submitted that Kapari applies and
referred to the judgment extensively in his address.
[10] The facts in Kapari are that the employees had engaged their employer in writing
through correspondence and by lodging a grievance regarding their permanent
appointment. At the time of the urgent application, the employees had already escalated
their grievance by lodging an unfair labour practice dispute to the bargaining council ,
though their referral was found to be premature by the bargaining council . The
employees returned to pursue internal remedies , and their grievance had already been
escalated to the Public Service Commission as part of the procedure.
[11] When the employer advertised their posts, the employees applied urgently to this
Court for an interim order to remain employed and to interdict and restrain the employer
from interviewing and/or appointing candidates to the advertised positions pending the
outcome of their grievance by a dispute resolution agency with the necessary
outcome of their grievance by a dispute resolution agency with the necessary
jurisdiction, which had already been lodged in terms of a grievance procedure and
escalated to the Public Service Commission. The Court granted the order.
2 [2017] ZALCJHB 234.
3 [2020] ZALCJHB 268; (2020) 41 ILJ 2473 (LC).
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[12] In casu, there is no evidence of any engagement between the parties , other than
what is already set out above. In November 2024, the applicants were informed that the
Chief Financial Officer had declined to approve the establishment of the new permanent
structure and posts . They elected not to pursue the matter until July 2025. The
applicants referred an unfair dismissal dispute to the bargaining council . The right to
refer the unfair dismissal dispute to the bargaining council survives the expiry of the
contract, whereas the right to lodge a grievance may be rendered nugatory by the
termination of the contract. For the above reasons, the facts in Kapari are
distinguishable from the current matter.
[13] Other than reliance on Kapari , that they were on fixed- term contracts for
approximately 10 years and that these contracts are due to terminate ( or expire or
lapse) on 31 August 2025, the applicants have not placed any facts why they cannot be
afforded substantial redress in due course. In addition, t he applicants have acted at
their own lei sure. Assuming, without making a finding that Dr Gwaze made the
representations or assurances that they would be permanently employed upon the two
conditions materiali sing, the applicants were aware in November 2024 that the Chief
Financial Officer had declined to approve the establishment of the permanent structure
and post. They did not engage the first and second respondents on this issue, nor did
they seek to pursue their rights until July 2025.
[14] The applicants’ challenges are compounded by the nature of the right they seek
to assert. They contend that they have a prima facie right to relief based on their right
not to be unfairly dismissed in terms of section 185 of the LRA and their right to be
involved or consulted in decisions that affect them. F urther, they argue that the reason
for the “dismissal” is “glaringly unfair” . The alleged duty of consultation is
for the “dismissal” is “glaringly unfair” . The alleged duty of consultation is
unsubstantiated. Nothing in the fixed -term contracts suggests that the applicants would
be consulted before the end of their contract. The assurances allegedly made do not
form part of their contracts.
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[15] All employees have the right not to be unfairly dismissed. If this prima facie right
could be used to sustain an interdict and order a temporary appointment of employees
to their lapsed contracts or to their dismissed employment , then all employees could
approach the court after they had referred their unfair dismissal disputes to the CCMA
or relevant bargaining council.
[16] This Court has no jurisdiction to adjudicate an unfair dismissal dispute unless it
has been referred for conciliation. 4 It matters not that the relief is sought on an interim
basis, as the applicants now seek . The Court cannot assume jurisdiction or exercise
powers it does not have simply because the order is sought temporarily. Whilst this
Court has the power to grant interim relief , an order to appoint the applicants to their
current positions or extend their contracts pending the determination of their unfair
dismissal dispute would be untenable. It would create a floodgate of similar applications,
where all dismissed employees would feel entitled to a declarat ory relief to remain
employed and an interdict restraining the implementation of their terminated
employment contracts pending the determination of their unfair dismissal disputes
before the CCMA or bargaining council, and later this Court and the appeal courts. This
would, in my view, encroach on the employers’ prerogative to operate their business
and divest their powers to, amongst others, discipline, restructure their businesses , or
respond to their operational and economic needs.
[17] For these reasons, I agree that this Court lacks jurisdiction to adjudicate the
applicants’ claim for a declaration that they are permanent employees or an extension
or renewal of their fixed-term contracts. The applicants have failed to establish a prima
facie right not to be unfairly dismissed.
[18] To clarify, employees do not have a right not to be dismissed. T he biggest hurdle
[18] To clarify, employees do not have a right not to be dismissed. T he biggest hurdle
the applicants must overcome is that in section 186(1)(b) claim or in a reasonable
4 Sections 157(5) and 191 of the LRA ; National Union of Metalworkers of SA & others v Driveline
Technologies (Pty) Ltd & another 2000 (4) SA 645 (LAC) ; (2000) 21 ILJ 142 (LAC); National Union of
Metalworkers of SA v Intervalve (Pty) Ltd & others (2015) 36 ILJ 363 (CC) ; [2015] 3 BLLR 205 (CC) ;
National Union of Metalworkers of SA on behalf of Members v SAA Technical SOC Ltd (2024) 45 ILJ
2524 (LAC); [2024] 12 BLLR 1259 (LAC).
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expectation dismissal claim, they bear the onus to prove that they were dismissed. Until
dismissal is established, the applicants cannot claim a prima facie right not to be unfairly
dismissed when dismissal itself is in dispute . Having failed on this leg, the other
requirements for an interim interdict become moot.
[19] Even if they had established a prima facie right, the applicants would fail on the
other requirements. They alleged that they would suffer irreparable harm because they
are breadwinners and rely on their monthly income to support themselves and their
families. They also complain that the first and second respondents have advertised the
posts. Th eir complaints are a natural consequence of the termination of any
employment contract. The applicants have not demonstrated that they are an exception
to all employ ees whose contracts are due to expire or terminate. Many employees are
breadwinners, and they are currently waiting for their disputes to be processed before
the bargaining councils, the CCMA and this Court . The applicants have not
demonstrated that the harm that may ensue is different from these other dismissed
employees. On the facts of this case, or lack thereof, the applicants have failed to
establish the requirement of irreparable harm if the interim order is not granted.
[20] About the alternative remedy, the applicants relied on the Kapari judgment, which
I have already found to be distinguishable on the facts . Should the applicants succeed
in their unfair dismissal dispute by proving that they were dismissed and that they had a
reasonable expectation of employment for an indefinite period, the bargaining council
may reinstate them and award them back pay retrospectively from the date of the
dismissal. The applicants have not addressed this Court in their papers why this would
not be adequate. They have accordingly failed to show that the application for
not be adequate. They have accordingly failed to show that the application for
declaratory relief is urgent and that it is necessary to obtain the relief now and not later.
Accordingly, even if I had decided to enrol the matter, the applicants would have been
found wanting on the requirements for an interim relief.
[21] For the above reasons, this Court refuses to enrol and determines the matter
because it is not urgent.
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[22] In the premises, the following order is made:
Order
1. The application is struck off the roll for lack of urgency.
2. There is no order as to costs.
M. Makhura
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr C. Goosen
Instructed by: Dawie Coetzer Attorneys
For the Respondents: Mr N. Cassim SC with Ms J. Janse Van Rensburg
Instructed by: The State Attorney, Pretoria