THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: 2025-125891
In the matter between:
MADONSELA, ZANDILE Applicant
and
THE LEGAL PRACTICE COUNCIL First Respondent
NZUZA, CHARITY Second Respondent
SELEKA, PULE SC Third Respondent
ADAMS, LUZELLE Fourth Respondent
ASMALL, FAATHIMA Fifth Respondent
RW ATTORNEYS Sixth Respondent
TOKISO DISPUTE SETTLEMENT (PTY) LTD Seventh Respondent
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CACHALIA, AHMED Eighth Respondent
Heard: 21 August 2025
Delivered: 2 September 2025
This judgment was handed down electronically by uploading it on CaseLines
and/or Court Online.
JUDGMENT
MAKHURA, J
[1] More than five months after the applicant was first presented with a charge sheet
and called to attend the first sitting of a disciplinary hearing on 28 January 2025, and
about six scheduled sittings later, the disciplinary hearing on the merits or substance of
the charges had yet to commence. These scheduled hearings were postponed or
rescheduled because of the applicant . She was either una vailable or her legal
representatives were unavailable, and when they attended the hearing, she raised
points in limine that were directed at halting the continuation of the hearing.
[2] In a fast and furious move, the Executive Officer of the Legal Practice Council
(LPC), Charity Nzuza (Nzuza) , issued a letter of termination of employment to the
applicant dated 16 July 2025. The relevant part of the letter, sent to the applicant on 17
July 2025, stated, amongst others, that:
‘You have been afforded a fair and reasonable opportunity to present your case
before a disciplinary hearing but have willfully avoided the timeous conclusion of
the disciplinary proceedings through various malicious and vexatious applications
for postponement and ill -conceived applications to the Labour Court, Labour
Appeal Court and Constitutional Court.
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Your conduct has shown no regard or respect for your employer and have (sic)
resulted in significant financial costs for the organisation.
In light of the seriousness of your misconduct and your clear intentional evasion
of the disciplinary process, the employer no longer believes that any trust
relationship can exist between you and the employer.
For the reasons mentioned above, your employment with the LPC is terminated
with immediate effect.’
[3] In this third round of litigation between the parties before this Court, the applicant
challenges the above letter, which terminated her employment contract with immediate
effect. The applicant contends that her dismissal was in breach of her employment
contract and therefore unlawful. She seeks an order setting aside the letter, declaring
her dismissal void ab initio and her employment contract to be extant, plus a cost order,
including the costs of two counsel.
[4] The LPC employed the applicant as a Secretary in the Curators Unit, effective
from 3 June 2019. On 11 December 2024, she was placed on precautionary suspension
pending finalisation of the disciplinary hearing. On 20 January 2025, the LPC issued a
charge sheet against the applicant. She was charged with various allegations of
misconduct, including fraud for issuing falsified certificates of good standing and fidelity
fund, and falsifying documents. She was also accused of accepting money from and
giving money to legal practitioners, as well as engaging in a conflict of interest.
[5] The first sitting of the disciplinary hearing was scheduled for 27 January 2025.
The hearing was adjourned or postponed to 30 January 2025 due to the applicant’s
legal representative’s unavailability. On 30 January 2025, the applicant , through her
legal representative, requested further particulars, and the matter was postponed to 10
and 11 February 2025. On 10 and 11 February 2025, the hearing could not proceed
because the applicant was unavailable due to ill health.
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[6] On 11 February 2025, the LPC addressed an email to the applicant’s legal
representative. The email refer enced the meeting held on 10 February 2025 and
recorded the parties’ agreement to suspend the disciplinary hearing pending the “fruitful
conclusion” of discussions aimed at resolving the matter amicably. As part of the
agreement, the applicant was to provide certain information to the LPC by 14 February
2025. The information was not provided on the agreed date.
[7] On 27 February 2025, the parties met, and the applicant provided the
information. The parties shared a draft agreement to be signed upon approval by inter
alia the Executive Officer, Nzuza, and Ignatious Briel. Nzuza rejected the proposed
settlement agreement. The applicant was then informed that the suspension of the
disciplinary hearing h ad been lifted, and the disciplinary hearing would proceed. In
response, the applicant alleged that the LPC had breached the settlement agreement,
spoliated her evidence, and demanded the return of the evidence . She argued that any
continuation of the disciplinary hearing would be in breach of her contract of
employment.
[8] The disciplinary hearing was scheduled to proceed on 17 March 2025. However,
it could not proceed because the applicant’s legal representatives were un available.
The next hearings were on 2 and 4 April 2025. On 31 March 2025, the applicant filed an
urgent application with this Court for a permanent stay of the disciplinary hearing.
Although scheduled for 2 April 2025, the hearing could not proceed on that day but was
rescheduled for 4 April 2025 to allow the applicant to file a replying affidavit. On 14 April
2025, Tlhohlalemaje J delivered judgment dismissing the application with costs.
[9] The applicant filed an urgent appeal with the Labour Appeal Court (LAC) on 15
May 2025. The Judge President refused to enroll the matter and directed the applicant
to apply for leave to appeal. The applicant did not apply for leave to appeal. Instead, on
to apply for leave to appeal. The applicant did not apply for leave to appeal. Instead, on
6 June 2025, she filed an urgent application for direct access to the Constitutional
Court.
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[10] The disciplinary hearing was set down for 30 June 2025. On this day:
‘… the applicant's legal representative insisted on addressing the chairperson in
Shona and an interpreter had to be obtained for translation. The hearing could
also not proceed because the applicant brought an application for the stay of the
proceedings pending the finalisation of a Constitutional Court application for
direct access.’
[11] The applicant challenged the LPC's jurisdiction to proceed with the disciplinary
hearing while the Constitutional Court application was still pending. On 8 July 2025, the
chairperson of the disciplinary hearing dismissed the applicant’s stay application. The
applicant then appli ed to this Court for a stay of the disciplinary hearing pending the
determination of the application filed with the Constitutional Court. She enrolled the
matter for 24 July 2025. Daniels J dismissed that application on the same day without
an order as to costs.
[12] Before the hearing of the application for a stay of proceedings , the LPC
terminated the applicant’s employment. The letter or notice of termination wa s dated 16
July 2025 and was served on the employee on 17 July 2025.
[13] In response, the applicant, on 17 July 2025, sent a letter to the LPC through her
attorneys of record, arguing that the LPC had breached her employment contract. She
claimed that her contract was terminated without being afforded an opportunity to
present her case, which she was entitled to under her employment contract . The LPC
was urged to restore the employment contract and was given until 16h00 on 22 July
2025 to comply, or else urgent proceedings would be initiated in this Court.
[14] The first to third respondents opposed the application. They raised two
preliminary points. They argued that the application wa s not urgent and that the Court
lacked jurisdiction to hear it. Their opposition regarding urgency is set out in paragraphs
4 to 7 of their answering affidavit. They stated the following:
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‘The applicant's application for reinstatement is in terms of section 77(3) of the
Basic Conditions of Employment Act 75 of 1997 ('the BCEA'), alternatively in
terms of a number of provisions of the Labour Relations Act 66 of 1995 ('the
LRA').
The Court has no jurisdiction to consider an application for reinstatement in terms
of section 77(3) of the BCEA. Any application for reinstatement in terms of the
LRA must be preceded with arbitration at the Commission for Conciliation,
Mediation and Arbitration ('CCMA').
The applicant received her letter of dismissal on 17 July 2025. She had five (5)
working days thereafter to have appealed the decisions to dismiss her, to the
LPC. She did not appeal the decision.
The applicant’s dismissal was also not arbitrated.’
[15] The above submission has no merit. First, the respondents referred to this
application as one of reinstatement, despite the applicant making no reference to and
seeking reinstatement in her notice of motion. The urgency is attacked on that basis.
The applicant has brought this case as one of breach of contract. The respondents’
ground for opposing the urgency of the matter is misplaced.
[16] Second, premised on their misconception of the application, they argue that this
Court has no jurisdiction to consider a reinstatement application. This Court has
jurisdiction to determine this application. This is trite
1 and I need not be detained by this
legally misconceived argument any further.
[17] Third, the respondents submit that the applicant should have exhausted internal
remedies and lodged an appeal against the first respondent’s decision within 5 days.
During the hearing, Ms Adams, for the respondents, was unable to address this issue
1 Gcaba v Minister of Safety and Security and Others [2009] ZACC 26; [2009] 12 BLLR 1145 (CC)
(Gcaba); Steenkamp and Others v Edcon Limited [2016] ZACC 1; 2016 (3) SA 251 (CC) (Edcon); Baloyi v
Public Protector and Others [2020] ZACC 27; [2021] 4 BLLR 325 (CC) ; Passenger Rail Agency of South
Africa and Others v Ngoye and Others [2024] ZALAC 18; (2024) 45 ILJ 1228 (LAC).
7
any further. The letter of dismissal dated 16 July 2025 provided the applicant with no
such opportunity.
[18] Having considered the application, I have decided to exercise my discretion and
deal with the matter on an urgent basis.
[19] It is common cause in the present matter that , in terms of clause 8 of the
applicant’s contract of employment, she is subject to the LPC’s disciplinary code.
Clause 4.1.1 of the Code states that the Code forms part of the terms and conditions of
employment. The Code further provides that in the event the employee is charged with
allegations of misconduct, that employee “shall be afforded an opportunity to state his or
her case”.
[20] Clause 4.1.1(vii), which the first to third respondents sought to rely on in
dismissing the applicant without a hearing, contains an exception to the right to be
afforded an opportunity. It provides that:
‘No Employee shall be dismissed without a disciplinary hearing being held,
except in the case where the Employee has been afforded every opportunity to
attend his or her hearing; but failed to attend out of his or her own free will. In the
event of the failure by the Employee, or a duly authorized representative, to
attend a disciplinary hearing without good cause and after proper service of the
notice of misconduct was affected, the hearing may be conducted in absentia
and discipline affected. Furthermore, the reasons for the dismissal shall be
provided to the Employee in writing.’
[21] Clause 5.4.2 sets out some of the applicant’s rights as:
‘i. to be given warning of any charge and/or allegation against him or her.
ii. to be advised of the charge and/or allegation.
iii. to be given time to prepare his or her defence.
iv. to be allowed a formal hearing or enquiry.
v. to be present at a formal hearing or enquiry…’
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[22] The LPC dismissed the applicant for allegations of misconduct. The contractual
provisions above make it clear that before dismissal for misconduct, the applicant must
be afforded an opportunity to state her case.
[23] What the LPC did in this case was to disregard the above provisions. Having
charged the applicant for serious allegations of misconduct, which include falsifying
certificates of good standing and fidelity fund (the consequence of the this misconduct
being that unfit and improper persons could be practising the law and representing
members of the public) , the LPC , which is expected to inter alia maintain the integrity
and status of the legal profession, abandoned the disciplinary hearing against the
applicant on the above serious allegations, and elected to dismiss her on allegations
emanating from the applicant’s conduct during the disciplinary process . The applicant
was dismissed for willfully avoiding the timeous conclusion of the disciplinary hearing
through her various malicious and vexatious applications for postponement and ill -
conceived applications to this Court, the LAC and the Constitutional Court.
[24] The LPC did not allow the applicant to state her case on these additional
allegations. The applicant knew for the first time about these allegations of misconduct
on 17 July 2025, which is the day she was also informed of her dismissal. The
exception in clause 4.1.1(vii) does not apply because the applicant was not afforded an
opportunity to state her case or attend the disciplinary hearing in respect of these new
allegations of misconduct which form the reasons for her dismissal.
[25] This similar set of facts, where the employer abandons its earlier disciplinary
process and dismisses the employee on allegations of frustrating or evading the
disciplinary process, is not a new script before this Court. This Court and the LAC have
previously dealt with matters where the employer, unhappy with the slow pace of the
previously dealt with matters where the employer, unhappy with the slow pace of the
disciplinary process, abandoned the original disciplinary process and resorted to a
process not provided for in the contract or agreement.
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[26] In Ngubeni v National Youth Development Agency & another 2 (Ngubeni), this
Court held that the fact that the disciplinary process is running at a slow pace is not a
license for the employer to terminate the process. The Court, whilst appreciating the
employer’s frustration with the progress, held that the employer was not entitled to
abandon the ongoing disciplinary process without notice to the chairperson and the
employee, and “assume the proverbial role of judge, jury and executioner” .3 The Court
found further that the employee was offered specific terms on how the misconduct
allegations would be processed, which he accepted, and that in those circumstances, it
was not open to the employer to “unilaterally change the terms of the agreement” or “to
renege on the agreement”.4
[27] In the context of a section 188A process, which is no different from an internal
disciplinary hearing, the LAC in SA Broadcasting Corporation SOC Ltd v Phasha 5
(Phasha) dealt with a matter where the employee brought two recusal applications
against the presiding arbitrators. The employer dismissed the employee with immediate
effect for bringing the recusal applications, which allegedly contained malicious , false
and egregious accusations regarding the relationship between the employer and the
arbitrators. The inquiry into the original charges did not get underway as the parties
were still locked o n preliminary issues, including these recusal applications. The
employee was asked to make written representations as to why she should not be
dismissed. The LAC, dismissing the employer’s submission that the allegations relating
to the recusal applications constituted a separate process which entitled it to proceed
separately with a new process and dismiss the employee, held that:
‘The enquiry never got underway as a result of the two recusal applications which
were brought by the respondent. The appellant’s case is that the recusal
were brought by the respondent. The appellant’s case is that the recusal
applications constituted a totally separate form of gross misconduct entitling the
appellant to ignore the s 188A process and proceed separately to a decision to
2 [2013] ZALCJHB 269; (2014) 35 ILJ 1356 (LC).
3 Ibid at para 16.
4 Ibid at para 17.
5 (2021) 42 ILJ 816 (LAC); [2021] 3 BLLR 270 (LAC).
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summarily dismiss the respondent after the exchange of correspondence to
which I have made reference.
It is, in my view, possible to conceive of a situation where entirely separate
conduct on the part of an employee could justify a separate process of dismissal
so that it may be divorced from a prior initiation of proceedings in terms of s
188A(1) [of the] LRA. But in the present case, whatever the merits of the two
recusal applications, these applications were directed at the very hearing that
was designed to adjudicate upon the charges of misconduct brought by the
appellant. To the extent that the claims in such applications raised further
allegations of misconduct, given the nexus between the applications and the s
188A process, there was no bar on the appellant seeking to include the
determination of that misconduct within the ambit of the agreed s 188A process.
This was clearly a case where the appellant relies upon form over substance in
that, clearly frustrated by the in limine objections brought by the respondent and
ignoring the nexus between these objections and the s 188A process, it classified
these objections as an entirely separate form of misconduct, unrelated to the
substance of the s 188A process. It did so in order to justify summary dismissal
and thereby circumvent the process which had already begun in terms of s 188A
of the LRA. Were this conduct to be sanctioned by this court, it could undermine
the very idea behind recourse to an independent enquiry pursuant to s 188A of
the LRA; more so where the impugned conduct is inextricably linked. In other
words, since the s 188A enquiry has been initiated, it should have proceeded to
finality.
In summary, there is no justification for an attempt to classify the recusal
applications as separate from and unrelated to the s 188A process so as to
support an argument regarding two separate processes and by so doing
circumvent the agreed s 188A process to summarily dismiss the employee.’
6
circumvent the agreed s 188A process to summarily dismiss the employee.’
6
[28] There is nothing that distinguish the above judgments and this matter on the
facts. They are very similar in material respects. In the above judgments, employers had
6 Ibid at paras 26 – 29.
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resorted to dismissing the employee after following an alternative process to that which
was agreed. The courts found that the employers were wrong to abandon the agreed
process and adopt a unilateral process to deal with the same allegations or allegations
incidental to and/or emanating from the disciplinary hearing itself.
[29] In casu, the first to third respondents had unilaterally abandoned the contracted
or agreed process and adopted a new process, on charges that emanate from and are
inextricably linked to the disciplinary hearing into the original charges. If the new
complaint is based on the conduct of the employee during the disciplinary hearing, the
employer should amend the charge sheet , add the new allegations, and deal with them
in that forum. The first to third respondents are not allowed to do what they have done.
[30] I do not , however, understand these judgments to establish an immutable
principle that under no circumstances may employers adopt an alternative process. In
my view, and provided exceptional circumstances exist, the employer may be justified in
adopting and following an alternative process. That process, however, must be adopted
after it has become reasonably impossible or impracticable for the employer to proceed
with the originally agreed or contracted process , and must still allow the employee an
opportunity to respond to the employer’s case or evidence presented in support of the
allegations of misconduct. Each case must be determined on its own facts. In the
present matter , the applicant was informed of the charges on 17 July 2025 and
dismissed on the same day. Nzuza assumed the role of the complainant, initiator and
chairperson. No exceptional circumstances exist to justify the abandonment of the
agreed process in favour of such a drastic and fundamentally wrong process.
[31] Based on the above, I am satisfied that the applicant has established a clear right
[31] Based on the above, I am satisfied that the applicant has established a clear right
to a disciplinary process in terms of her contract of employment , that her termination
was in breach of contract , and that the letter dated 16 July 2025 falls to be set aside.
Although Nzuza’s fast and furious move collided with the law, the LPC’s right to proceed
with the disciplinary hearing remains intact.
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[32] I have also considered the other requirements for an interdict. Based on the
pleadings, I find that the applicant has also satisfied these requirements. The effect of
this decision is that the status quo ant e is restored, the applicant’s contract of
employment remains extant and she remains on suspension. Further, the first to third
respondents are not barred from proceeding with the disciplinary hearing within the
contractual provisions on the original and/or any additional allegations against the
applicant.
[33] The applicant sought the costs of her application, including the costs of two
counsel. The respondents also sought costs. This Court retains discretion to award
costs.
[34] The applicant was charged with serious allegations of misconduct in January
2025. The first sitting of the disciplinary hearing was on 27 January 2025. Further
hearings were scheduled for 30 January, 10 and 11 February , 17 March, 2 and 4 April,
30 April, and 30 June 2025. More than five months later, t he applicant had not entered
her plea. On all the scheduled dates, the disciplinary hearings were postponed because
of her and her legal representative’s unavailability and her attempts to halt the
continuation of the disciplinary hearing.
[35] The fact that the applicant ’s legal representative sought and insisted on
addressing the hearing in an unofficial South African language, Shona, is another factor
demonstrates that the applicant and her legal representatives approached the hearing
in bad faith and with the intention of frustrating the disciplinary process. Whilst the LPC
was not obliged to provide an interpreter for the legal representative, it still offered this
assistance, perhaps in an attempt to expedite the process.
[36] The applicant ’s hands are not clean. She is not the type of litigant who must
benefit from this Court insofar as the discretionary issue of costs is concerned. Granting
benefit from this Court insofar as the discretionary issue of costs is concerned. Granting
costs in her favour would be tantamount to rewarding her for frustrating the internal
process meant to give the opportunity she now complains about. For the above
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reasons, I am not inclined, despite her success, to award costs in her favour and
against the first to third respondents.
[37] In the premises, the following order is made:
Order
1. It is declared that the termination of the applicant’s employment is in
breach of her contract of employment and void ab initio.
2. The letter dated 16 July 2025 is set aside, and the contract of employment
between the applicant and the first respondent remains extant.
3. There is no order as to costs.
M. Makhura
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr M. Kufa with Mr F. Tshivase
Instructed by: Machaba Attorneys
For the Respondents: Ms L.H. Adams
Instructed by: RW Attorneys