THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: 2025-057140
In the matter between:
DENEL SOC LTD Applicant
and
ELIAS SELLO NTSIHLE Respondent
Heard: 12 September 2025
Delivered: 03 October 2025
JUDGMENT
BHIMA, AJ
Introduction
[1] In this application, the applicant ( Denel) seeks the dismissal of the
respondent’s application against it under the above case number ( the m ain
application) on the basis that it constitutes an irregular proceeding as
envisaged under Rule 57 of the Labour Court Rules.
[2] In the alternative, the applicant seeks to have the notice of motion and
founding affidavit set aside.
2
[3] In the main application, the respondent seeks , inter alia , declaratory relief
under the Employment Equity Act, No. 55 of 1998 (the EEA), compensation,
reconsideration and other corrective measures.
[4] Denel contends that it is impermissible to institute such a claim by way of
application, rendering such application irregular and liable to dismissal or
setting aside.
The issue
[5] The crisp legal issue that I am called upon to decide is whether or not Denel’s
contention is correct. If the respondent was not lawfully entitled to institute his
claim by way of application, then the relief sought by Denel is fitting . If,
however, there was no specific bar to the respondent instituting his claim on
motion, then Denel’s application must be dismissed.
[6] Put differently, the matter concerns the appropriateness of motion
proceedings.
[7] As the issue is purely a legal one, I do not deem it necessary to set out a full
synopsis of the factual dispute between the parties.
Irregular proceedings
[8] Rule 57 allows a party to set aside an irregular step. Rule 57 does not define
an irregular step. Rule 57 is, however, inimical to Uniform Rule 30 in the High
Court.
[9] In SA Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO 1
Flemming J said:
‘I have no doubt that Rule 30(1) was intended as a procedure whereby a
hindrance to the future conducting of the litigation, whether it is created by a
non-observance of what the Rules of Court intended or otherwise, is
removed.’
1 1981 (4) SA 329 (O) at 333G-H.
3
[10] In Jowell v Bramwell-Jones and others2 the Court defined an irregular step as
one which advances the proceedings one stage nearer completion and which,
objectively viewed, manifest an intention to pursue the cause despite the
irregularity.
[11] In BMW Financial Services South Africa (Pty) Ltd v Doola 3, Le Grange AJ
concluded that “an ‘irregular step’, as contemplated in rule 30(1), must be a
procedural step which is taken in disregard of the rules, advances the proces s
closer to completion and prejudicially affects the innocent party’s rights in the
future conduct of their litigation”.
Discussion
[12] The issue is whether the main application is an irregular step or a proceeding.
[13] To my mind, the first question is thus whether there is any authority for the
proposition advanced by Denel, to wit that the respondent is precluded from
prosecuting his claim by way of application. Otherwise, it would be difficult to
see how the main application constitutes an irregular step.
[14] I duly posed this question to Mr Naidoo, who appeared on behalf of Denel. He
first referred me to the judgment that he had referred to in his heads of
argument: Gibbs v Nedcor Limited
4 (Gibbs).
[15] Gibbs was concerned with whether or not proceedings to determine an unfair
dismissal were to be brought in the form of a review or a new hearing (after
having already been arbitrated at the CCMA) . The question related to what
the process was to be followed under section 193 of the Labour Relations Act,
No. 66 of 1995 ( the LRA) and what was meant by adjudication under section
191 thereof.
[16] This Court in Gibbs held that the adjudication process envisaged under the
LRA did not mean review and that a party seeking adjudication was entitled to
a rehearing (in the context of the matter).
2 1998 (1) SA 836 (W) at 904B-H.
3 [2025] 2 All SA 107 (GP) at para 18.
4 [1997] 12 BLLR 1580 (LC).
4
[17] Gibbs is , however, not authority for the proposition that adjudication equals
action proceedings to the exclusion of motion proceedings.
[18] Mr Naidoo also referred me to the judgment in O’Connor v Lexisnexis (Pty)
Ltd5, and for his contention that a proceeding under section 10 of the EEA
was to be brought on action, relied on paragraph 48 thereof , where
Meyerowitz AJ said:
‘While a claim under section 6 of the EEA will normally proceed by way of trial
under Rule 6, I see no reason why a litigant cannot approach this court on an
urgent basis if the circumstances justify an urgent order. A good example is
an urgent order setting in place restrictions on an employer so as to prevent
an employee from being sexually harassed pending a trial for full and better
compensation in due course.’
[19] This passage does not assist Denel; in fact, it fortifies the contrary position.
The Court in O’Connor effectively found that claims could be prosecuted by
way of application if the need arose.
[20] No other authority for this proposition was advanced by Denel, nor could I find
such authority. This is probably because the proposition is alien to our law.
[21] To my mind, adjudication simply means the action or process of adjudicating
a dispute. It does not prescribe a method of litigation.
[22] It must be remembered that one of the primary objectives of the LRA is the
effective resolution of disputes.
6 This entails, inter alia , that they must be
resolved as quickly as possible in the circumstances. As such, I cannot see
why a dispute cannot be adjudicated on motion if that is the quickest and most
cost-effective procedure.
[23] In Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
7, Murray AJP
(writing on behalf of a unanimous full bench) said the following:
5 (2024) 45 ILJ 1287 (LC).
6 Nhlapo v Sambo N.O. and Others (JR1451/2018) [2023] ZALCJHB 169 (18 May 2023) at para 1.
7 1949 (3) SA 1155 (T) at 1161.
5
‘I propose to set out, first, as I understand it, the general position in regard to
the permissibility of motion proceedings as opposed to trial actions. Two
types of proceedings may be mentioned, as falling outside the scope of this
enquiry. (1) There are certain types of proceeding (e.g., in connection with
insolvency) in which by Statute motion proceedings are specially authorised
or directed: in these the matter must be decided upon affidavit and Rule 9
may be invoked, as shown in Mohamed v Malk (1930 TPD 615), to permit
viva voce evidence to be led in order to counteract any balance of probability
appearing from affidavits. (2) There are on the other hand certain classes of
case (the instances given by DOWLING, J., are matrimonial causes and
illiquid claims for damages) in which motion proceedings are not permissible
at all. But between these two extremes there is an area in which (as I see the
position) according to recognised practice a choice between motion
proceedings and trial action is given according to whether there is or is not an
absence of a real dispute between the parties on any material question of
fact.’ (own emphasis)
[24] On this score, Denel contended that the main application was also irregular,
as there would be numerous factual disputes that would arise.
[25] Even if this is true, this does not cause any prejudice to Denel as it would
either result in a dismissal of the application or a referral to oral evidence or
even to trial. More importantly, this does not render the proceeding ‘irregular’.
[26] Denel can raise any dispute it has with the main application in an answering
affidavit thereto. I do not think it appropriate for me to decide what may
happen with regard to the main application. In fact, this application smacks of
a tactic to avoid answering the merits of the main application (for whatever
reason).
[27] In the premise, I make the following order:
Order
1. The application is dismissed.
2. There is no order as to costs.
6
_______________________
R Bhima
Acting Judge of the Labour Court of South Africa
Appearances
For the Applicant: S Naidoo
Instructed by: Cliffe Dekker Hofmeyr
For the Respondent: In person