THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: 2025-167534
In the matter between:
MUNICIPAL EMPLOYEES & CIVIL SERVANTS
UNION obo VUKILE MLUNGWANA AND
NKOSANA GOULD Applicants
and
EKURHULENI METROPOLITAN MUNICIPALITY First Respondent
MABITLENG MOKWENA N.O Second Respondent
Heard: 19 September 2025
Delivered: 30 September 2025
JUDGMENT
BALOYI AJ
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Introduction
[1] This application was argued on the urgent Roll of 18 September 2025. The
two applicants, Vukile Mlungwana and Nkosana Gould, are adult male
employees of the first respondent. The applicants, assisted by the trade
union, Municipal Employees and Civil Servants Union, approached this Court
seeking an order interdicting the disciplinary hearings against them selves.
The hearings in question were scheduled to proceed on 19 and 22 September
2025. Upon receipt of notices to attend disciplinary hearings, the applicants
attempted to secure the first respondent’s consent to postpone the hearings
pending the determination of the section 188A(11) application at the
Bargaining Council, on account of having made protected disclosures. The
first respondent refused the request, hence, the applicants resorted to filing
this application. The first respondent opposed the application. Urgency is not
contested, and I am satisfied that the matter is urgent. More on this appears
hereunder.
Background
[2] Mr Mlungwana and Mr Gould are office bearers of the trade union k nown as
Municipal Employees & Civil Servants Union (MECSU). Mr Mlungwana is the
General Secretary, whilst Mr Gould is the President. MECSU is a registered
trade union organising within the first respondent, however, it is not
recognised. Relevant to this application is that the first respondent was not
pleased with the applicants’ conduct of carrying out union activities during
working hours. On 20 February 2025, the head of the human resources
department, Ms Linda Gxasheka, wrote a letter to Mr Mlungwana advising him
to refrain from the union activities.
[3] On 17 March 2025, Mr Mlungwana wrote a letter to the Acting City Manager
raising allegations about Ms Gxasheka’s biased marketing of the Sizwe
medical aid scheme to the newly employed personnel without introducing
other medical aid scheme options available within the first respondent. Further
other medical aid scheme options available within the first respondent. Further
allegations were made against Ms Ngxasheka regarding the appointment of
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certain employees to positions that were never advertised, and that a
recruitment process did not precede these appointments.
[4] On 18 and 19 March 2025, the first and second applicants were served with
pre-suspension notices, respectively issued by Ms Gxasheka. They were
eventually suspended on 24 March 2025. They viewed their respective
suspensions as an occupational detriment arising out of the protected
disclosures made through the letter of 17 March 2025. The applicants
approached this Court to challenge the suspensions , but they were
unsuccessful. They then resorted to referral of the unfair l abour practice
dispute to the Bargaining Council and did not secure a successful result.
[5] In addition to the letters of alleged improprieties against Ms Gxasheka, the
applicants wrote two other letters to the City Manager. On 5 August 2025,
they raised allegations against the HOD: Corporate Legal Service , Mr Behari,
for instructing a single law firm multiple times and ignoring other s in the first
respondent’s constituted panel of attorneys. O n 4 September 2025, the
applicants submitted an allegation against a former Acting City Manager, Mr
Kagiso Lerutla, regarding what they termed an invalid and unlawful
appointment of the Group Chief Financial Officer:
[6] On 5 September 2025, the first respondent served the notice to attend a
disciplinary hearing notice with the charges appearing therein on Mlungwana,
whose hearing, according to the notice, wa s scheduled to proceed on 19
September 2025. Gould received a similar notice, with 22 September 2025
recorded as the date of the hearing. On 5 September 2025, the applicants
submitted a written request for a postponement pending the determination of
the application lodged with the Bargaining Council for the hearings to be
conducted in the form of an inquiry by the arbitrator within the scheme of
Section 188A(11) of the Labour Relations Act. The first respondent replied on
Section 188A(11) of the Labour Relations Act. The first respondent replied on
12 September 2025 and rejected the request with some case law in support of
the decision to decline the request cited therein.
[7] On 16 September 2025, the applicants filed this application, which was
ultimately argued on 18 September 2025, with the first respondent opposing
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it. The first respondent’s main contention is that the allegations made do not
constitute protected disclosures as the union communicated them through its
General Secretary. For an allegation to constitute a disclosure, a disclosure
must be made in terms of section 1 of the Protected Disclosures Act . The
allegations were submitted by the trade union, not the affected employees. Mr
Sithole, for the first respondent, relied on Letakgomo v Johnson Matthey (Pty)
Ltd to the effect that orders to assert a right i n terms of section 188A(11) are
not for taking. The applicants’ case does not raise exceptional circumstances
calling for the Court’s interference with an incomplete hearing. He further
argued that the applicants were deploying all mechanisms to delay the
disciplinary proceedings. They have litigated before this Court and the
Bargaining Council on this aspect without success. There is no nexus
between the allegations made and the disciplinary action taken by the first
respondent against them. The application should be dismissed with costs.
[8] The applicants, on the other hand, argued that the action taken against them
came as a reaction to the protected disclosures. No rule prohibits employees
from being represented when making protected disclosures. The first
respondent had not made any effort to investigate the allegation in the past
six months. The disciplinary process is driven by Mr Gxasheka, who is
implicated in the wrongdoings. She has even expressed a view in an email
correspondence that was copied to a number of people, including those
implicated in the allegations made by applicants. Ms Gxasheka expressed her
frustration with the first respondent’s legal representative and went on to state
that if things were to go her way, she would have dismissed Mlungwana long
ago. This strengthened the applicants’ argument that there exists no chance
of a fair hearing in the internal disciplinary hearing.
Evaluation
of a fair hearing in the internal disciplinary hearing.
Evaluation
[9] The Court’s intervention sought by the applicants undoubtedly stems from a
request for postponement of the disciplinary hearing to allow the Bargaining
Council to consider the section 188(A)(11) application. The first respondent
declined the postponement . The first respondent acknowledged the
permutation arising from this exercise. If the application before the Bargaining
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Council is granted, the hearing will be conducted at the Bargaining Council
within the scheme of section 188A . The internal disciplinary inquiry gets
terminated only when the CCMA accepts jurisdiction 1. I f the Bargaining
Council does not accept jurisdiction, the disciplinary hearing will be conducted
internally. Despite this analogy, the first respondent still insists that the
applicants are bent on delaying the processes by hiding behind the non-
existent protected disclosures.
[10] I t is undisputable that the applicants are seeking an interim order. They are
not asking the Court to shield them from facing disciplinary action. The
applicants are required to present a prima facie case about whether the
information so disclosed constitutes protected disclosures . In Mohlala-
Mulaudzi v Properties Practitioners Regulatory Authority 2, the Court held at
paragraph 44 as follows:
‘[44] It must follow that the allegation of contravention must have an
element of honesty and sincerity. The veritable question is how does a
Court faced with an application of this nature test honesty and
sincerity of the allegation of contravention? To my mind a
contravention must not only be alleged it must prima facie factually
exist. I say so because in terms of section 1 of the PDA an
occupational detriment in relation to the working environment of an
employee means amongst others being subjected to any disciplinary
action.’
[11] In Tsibane v Estate Agency Affairs Board and Others 3, the Court held as
follows at paragraph 64:
‘[64] Section 188A(11) entitles an employee, who is about to be subjected
to an internal disciplinary process and who alleges in good faith that
the intended disciplinary hearing contravenes the PDA, to instead
request an inquiry be conducted in terms of section 188A. I see no
reason why, if an employer, under circumstances where the employee
complies with the requirements of section 188A(11), refuses to have
complies with the requirements of section 188A(11), refuses to have
1 See Letakgomo v Johnson Matthey (Pty) Ltd [2025] ZALCJHB 240 at para 8.
2 [2023] ZALCJHB 19.
3 [2021] ZALCJHB 150 (24 June 2021).
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the inquiry into the conduct or capacity of the employee conducted in
terms of section 188A, the employee would not be entitled to
approach this Court for an order interdicting the impending internal
disciplinary hearing and an order directing that the inquiry pertaining to
the employee’s conduct or capacity be conducted in terms of section
188A of the LRA.’
[12] It should be emphasised that the Court is not seized with the determination of
whether the employees’ allegations satisfy the requirements of protected
disclosures or whether they constitute protected disclosures. This can only be
ventilated at the disciplinary hearing, either internally or under section 188(A)
at the Bargaining Council. The Court’s role in such circumstances is primarily
to determine whether, on a prima facie basis, there is an allegation of
impropriety made. Unlike in disputes adjudicated under sections 186(2)(d)
and 187(1)(h), determining the veracity and good faith will remain a
challenging task for the Court to undertake within the confines of an interim
interdict, such as this one.
[13] The contentious argument advanced by the first respondent seeks to call
upon the Court to decide on the veracity and good faith of such allegations at
this point. It is not the first respondent’s case that the allegations were
investigated and found to be lacking in substance, or that the applicants failed
to support the accusations with evidence when called upon to do so. The first
respondent has not opposed the application before the Bargaining Council.
[14] The conduct displayed by Ms Gxasheka in her email referred to above reveals
bias as she mentioned the name of her preferred representative, who could
probably expedite the happening of thi ngs her way. It has to be taken into
account, firstly, that she is one of the persons implicated in some of the
allegations raised by the applicants . Secondly, the first respondent took no
steps to investigate the allegations . Thirdly, the first respondent did not at
steps to investigate the allegations . Thirdly, the first respondent did not at
least call upon the applicants to produce evidence to substantiate the
allegations. It is therefore premature for the first respondent t o raise
technicalities about the disclosures which it has elected not to verify when
received by the City Manager. The cumulative effect of the above is that a
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prima facie case exists to warrant the mak ing of an application in terms of
section 188(A)(11) by the applicants.
[15] I must hasten to point out that the determination of the application in terms of
section 188A(11) falls within the competencies of the Bargaining Council. The
first leg of which is to accept the jurisdiction or otherwise. The second leg is
about the ventilation of the merits of the dispute, if jurisdiction is accepted.
Alternatively, t he internal disciplinary hearing will deal with the issue if the
Bargaining Council does not accept the jurisdiction. The relief sought by the
applicants is purely to compel the respondents to hold the internal hearing in
abeyance, allowing the Bargaining Council to consider the application. Whilst
the Court is concerned with the influx of cases of this nature, it is imperative to
stress that each case has to be treated based on its own merit.
[16] The order sought is interim in its nature. Considering the Tsibane decision,
the first respondent will not suffer any prejudice by waiting for the Bargaining
Council to decide on the matter. It will thus be unreasonable for this Court to
uphold the first respondent’s refusal to have the disciplinary hearing
postponed. Exceptional circumstances exist for this Court to interfere with the
incomplete disciplinary proceedings by making an order preventing the
respondents from proceeding with the hearings pending the application before
the Bargaining Council. In the circumstances, this Court finds no reason to
refuse this application.
[17] The first respondent sought costs against the applicants in their personal
capacity, together with the trade union, for abusing the legal processes. The
applicants saw no need for a cost order in view of the relationship between
the trade union and the first respondent. It is indeed not within the
requirements of law and fairness to make a cost order whilst the parties are
still engaged in a dispute resolution exercise in the form of a disciplinary
still engaged in a dispute resolution exercise in the form of a disciplinary
hearing. This Court aligns itself with the submissions made on behalf of the
applicants.
[18] In the premises, the following order is made:
Order
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1. The applicants’ non -compliance with the ordinary Rules of Court,
including the manner of service, is condoned , and the matter is
heard as one of urgency.
2. The first and second respondents are interdicted from proceeding
with the internal disciplinary inquiry presided over by the second
respondent pending finalisation of Section 188A (11) of the LRA
application for an inquiry by an arbitrator under the auspices of the
South African Government Bargaining Council.
3. There is no order as to cost .
___________________
MM Baloyi
Acting Judge of the Labour Court of South Africa
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Appearances
For the Applicants: Mr V. Mlungwana, Union official
For the First Respondent: Adv E. Sithole
Instructed by: Jose & Associates