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[2025] ZALCJHB 478
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Matlala v Foskor Proprietary Limited and Others (2025/169524) [2025] ZALCJHB 478 (22 October 2025)
FLYNOTES:
LABOUR – Disciplinary hearing –
Protected
disclosure
–
Suspended
and charged with misconduct – Disclosures made about vice
president’s conduct and broader internal issues
–
Belief that disciplinary action constituted an occupational
detriment was not frivolous or insincere – Merits
of claim
not assessed – Existence of a bona fide belief was
sufficient to justify interim relief – Warranted
to preserve
integrity of referral process – Disciplinary inquiry
suspended pending a decision by arbitrator –
Labour
Relations Act 66 of 1995
,
s 188A(11).
THE LABOUR COURT OF
SOUTH AFRICA
AT JOHANNESBURG
Of
Interest To Other Judges
C
ase
No: 22025-169524
In the matter between:
VINCENT
MATLALA
Applicant
and
FOSKOR
PROPRIETARY LIMITED
First respondent
ADV
HENNO VILJOEN
N.O.
Second Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION &
ARBITRATION
Third
Respondent
Heard
:
23 September 2025
Delivered
:
22 October 2025
Summary:
(Urgent – Application to
interdict disciplinary proceedings and ordering proceedings to be
conducted as an inquiry under
s 188A(11)
of the LRA or, alternatively
until arbitrator makes jurisdictional ruling - Employee acting
promptly in requesting statutory
enquiry and in launching application
when employer refused to halt the enquiry pending the outcome of the
request – statutory
enquiry a unique remedy – only
requirement for granting the request is whether employee’s
allegation of suffering an
occupational detriment is made in good
faith – determination of that question belongs to the
arbitrator - court should
not usurp that function by granting
declaratory relief in urgent proceedings – the existence of a
bona fide belief on a
prima facie
level, not the entire gamut of an unfair labour
practice claim relating to an occupational detriment is the threshold
for conducting
the statutory enquiry )
JUDGMENT
LAGRANGE, J
Nature of the application
[1]
On 18 September 2025, this application was launched on an urgent
basis and enrolled for hearing on 23 September.
[2]
The applicant, Mr V Matlala (‘Matlala’), is the Vice
President: Human Capital and Corporate Affairs of the
first
respondent (‘Foskor’).
[3]
He seeks an order on an urgent basis to:
1.
interdict Foskor’s disciplinary proceedings against him, and
2.
require the disciplinary inquiry to be conducted by an arbitrator
under section 188A (11) of the
Labour Relations Act, 66 of 1995 (‘the
LRA’) or, alternatively,
3.
to interdict the disciplinary proceedings pending a jurisdictional
ruling by the third respondent
(’the arbitrator’).
[4]
On 21 August 2025, Matlala applied to the CCMA under section 188A(11)
of the LRA for disciplinary proceedings instituted
against him by
Foskor to be conducted under the auspices of an arbitrator because he
claimed the disciplinary action amounted to
an occupational detriment
for maki*ng a protected disclosure under the Protected Disclosure
Act, 26 of 2000 (‘the PDA’).
[5]
Following this request, Foskor indicated it intended to raise a
jurisdictional objection to the CCMA proceedings. However,
at the
CCMA hearing on 19 September 2025, the parties agreed that both the
CCMA proceedings and the internal disciplinary hearing
would be held
in abeyance pending the outcome of this application.
[6]
The application was heard virtually on the MS-Teams platform.
Summary
chronology of events
[7]
All the material events occurred in 2025.
[8]
On or about 14 March, Matlala instituted
disciplinary action against the Group Manager, Total Rewards and
Benefits, Mr C Kharidhza,
on charges concerning,
inter
alia
, malfeasance and irregular
expenditure.
[9]
On 12 April, Kharidzha submitted a complaint to
Foskor claiming Matlala had pointed a firearm at him at the
workplace. He advised
he had also reported the incident to the
police. On 5 May, police came to Foskor offices, interviewed Matlala,
and accompanied
him to his residence where they inspected his
firearm. Thereafter, he was detained overnight at Midrand Police
Station. Ms R Moodley,
Foskor’s Vice President: Legal, Risk and
Compliance was involved in the police visit to the premises and
Matlala surmises
that it was at her instigation he was detained by
police, after she had spoken privately with them.
[10]
On or about 7 May, Foskor appointed Nexus
Forensics to investigate Mr Kharidzha’s complaint. Matlala
obtained medical certificates
booking him off work from 6 May to 30
June.
[11]
On 10 May, Matlala emailed the CEO registering
what he described as his ‘complaints’ against Moodley. In
short, he alleged
she had interfered with the performance of police
duties by requesting they detain him and ignored Foskor’s
procedures for
investigating allegations against employees. He claims
she acted in a discriminatory fashion because she would not have done
the
same to another employee and she violated his rights to privacy
and his rights under the Protection of Personal Information Act,
4 of
2013 (‘POPIA’) in her interaction with the police. Foskor
took his email to be a lodging of a grievance against
Moodley, but in
his founding affidavit, Matlala claims this was the first protected
disclosure he made.
[12]
On 12 May, Matlala was placed on precautionary
suspension. Foskor avers it had prepared the suspension letter prior
to his expected
return to work on 9 May following his initial period
of sick leave was supposed to have ended on 8 May according to the
medical
certificate he had submitted.
Hence
the letter of suspension was dated 9 May. However, on 9 May,
Matlala submitted a second medical certificate extending
his absence
from that day until the end of June so it could not be given to him
that day. The suspension letter did not particularize
any charges of
misconduct, but merely advised him that Foskor “…
intends to investigate various
allegations of serious misconduct against you that have recently been
brought to its attention relating
to your behavior and conduct, and
the manner in which you have carried out your role as Vice President
Human Capital”
.
[13]
On 20 May, Foskor appointed Nexus to investigate
Matlala’s complaint against Ms Moodley and on 25 May criminal
charges against
him lodged by Kharidzha, were withdrawn. Nexus
completed its investigation into Matlala’s complaint. It found
he had been
dishonest, and recommended Foskor take disciplinary
action against him.
[14]
On 7 July Foskor’s CEO emailed Matlala
proposing a meeting to discuss mutual separation. A meeting was held
the following
day attended by Matlala, the CEO and COO. At the
meeting the CEO informed Matlala that a loss of trust had arisen
between Foskor
and Matlala and that the company intended to take
disciplinary action against him. From 8 to 14 July, emails were
exchanged between
Matlala and Foskor dealing with the issue of a
mutual separation and Matlala’s challenge to his suspension.
[15]
On 17 July, Matlala referred an unfair labour
practice dispute to the CCMA concerning his suspension. On 21 July,
the CEO sent Matlala
an email terminating the mutual separation talks
and confirmed that the disciplinary action would proceed.
[16]
On 21 and 22 July Matlala submitted allegations to
Foskor’s official whistleblower hotline by email, which he
claims amounted
to his second protected disclosure. His allegations
essentially comprise three components. Firstly, they concern
Moodley’s
alleged facilitation of his arrest at Foskor’s
premises, which he claims had negative ramifications for the company
and himself.
Secondly, he identifies several incidents of what he
considers to be ill-judged or unjustified disciplinary action being
taken
against other individuals or, in the case of another person,
inexplicably not being pursued. Thirdly, he suggests threats had been
made to the effect that he was not wanted in Foskor.
[17]
On 7 August, Foskor issued Matlala with charges of
misconduct. Broadly speaking, the charges concerned: Matlala making
allegations
against Moodley, without substance and in bad faith in an
apparent attempt to target her or to defend himself against the
complaint
by Kharidza; him breaching the terms of his suspension and
misleading a staff member to believe that he was still on sick leave
rather than on suspension, and making dishonest representations to
the investigators of the firearm incident about the safe storage
of
his weapon. The factual allegations and the related charges were set
out in considerable detail in the notification of the charges,
and
Matlala was invited to respond both to the factual allegations and
whether he conceded or disputed that if he were found guilty
on any
of them he could justifiably be dismissed.
[18]
In response, on 19 August, Matlala made lengthy
representations to Foskor on regarding the allegations. He prefaced
his response
by claiming that the disciplinary steps were motivated
because he had lodged disciplinary steps against Kharidzha two years
before
and because he had lodged “grievances/complaints”
against his fellow executive and lodged a protected disclosure on
the
company’s whistleblower hotline.
[19]
On 21 August, Matlala referred the matter to the
CCMA under section 188A(11) of the LRA. The provision allows an
employee who alleges
“
in good
faith”
that the holding of an
inquiry contravenes the Protected Disclosures Act, 2000 (Act 26 of
2000), to require that an internal inquiry
of the employer concerning
the employee’s alleged misconduct or incapacity can be replaced
with an arbitration hearing presided
over by a bargaining council
arbitrator or CCMA commissioner, as the case may be.
[20]
In summarising the facts of the dispute on the
referral form Matlala stated “
Received
disciplinary charges after I made protected disclosure using
employer’s whistleblowing online platform. I was cleared
of
misconduct by external forensic investigators appointed by employer,
where report was probably issued to employer”
.
[21]
The following day, Foskor gave him notice of a
further disciplinary charge which related to him speaking to a
newspaper during the
week of 11 August after he had been issued with
the initial misconduct charges. It was alleged that the article that
was published
had disclosed confidential information and was likely
to impair the firm’s image.
[22]
On 27 August, Matlala duly responded to this
letter restating his objections to Foskor’s motives for
initiating the disciplinary
action as well as addressing the new
charge.
[23]
On or about 3 September, Foskor sent letters to
Matlala and the CCMA raising jurisdictional objections to the s
188A(11) process.
The same day, the chairperson advised Foskor and
Matlala, after considering the charges and Matlala’s written
responses to
the charges, that he intended to conduct the inquiry in
the form of an investigation and he identified a preliminary list of
six
individuals involved in the alleged events, whom he intended to
interview in the course of his investigation. Matlala advised the
chairperson that his referral to the CCMA had been set down before
the CCMA on 19 September and, in his view, the disciplinary
hearing
should end as the matter was now before a commissioner.
[24]
On 12 September, Foskor responded to Matlala’s
representations to the chairperson. It pointed out that it had
advised Matlala
and the CCMA of its objections to the section 188A
(11) process. The basis on which it objected to the arbitration
process replacing
the disciplinary inquiry was that it alleged
Matlala had not demonstrated he had made a protected disclosure in
good faith nor
that he had provided proof of having made such a
disclosure. Further, it contended that Matlala had not demonstrated
that it had
subjected him to an occupational detriment after such an
alleged disclosure was made and had not shown that there was any
causal
connection between that disclosure and the alleged
occupational detriment. It contended that the CCMA arbitrator could
not proceed
with the arbitration until the arbitrator was satisfied
all these requirements have been met, and that it intended to raise
these
issues at the CCMA hearing on 19 September. In its view, until
the arbitrator had pronounced on these issues, it was fully entitled
to proceed with the disciplinary inquiry.
[25]
On 14 September, the chairperson of the enquiry,
Mr H Viljoen, an advocate, issued a ruling that the internal
disciplinary inquiry
could proceed, notwithstanding Matlala’s
request that it be conducted by the CCMA. The chairperson held that
the internal
disciplinary inquiry remained distinct from the s 188A
inquiry, and the former was neither invalidated nor suspended by
Matlala’s
referral. He also decided that in terms of his
mandate as chairperson of the enquiry, he could not consider whether
the alleged
disclosure Matlala made to Foskor’s whistleblower
platform on 20 July was a protected disclosure and Matlala’s
rights
under the PDA remained unaffected by the continuation of the
internal enquiry. He indicated that he was available to continue the
internal inquiry on 22 or 23 September by affording Matlala an
opportunity to provide his evidence, preferably by way of an
interview.
[26]
On 16
September, Foskor confirmed it intended challenging the CCMA’s
jurisdiction to conduct the disciplinary enquiry, on
the basis that
Matlala had not alleged the jurisdictional facts necessary to invoke
section 188A (11) of the LRA.
[27]
Thereafter, on 18 September Matlala filed this
application at court. On 19 September, at the CCMA, the parties
agreed to hold both
the internal and CCMA proceedings in abeyance
pending the court’s decision on the application.
Urgency
[28]
Foskor disputes the
urgency of the application, arguing that Matlala should have launched
the application as soon as he was served
with the charges, citing
other decisions where this court has dismissed similar applications
for lack of urgency
[1]
.
[29]
Matlala received the main charges on 7 August and referred the matter
to the CCMA under section 188A (11) on 21 August
Matlala. He also
submitted his responses to the charges before he was advised of the
chairperson’s identity. As as soon he
knew of the chairperson’s
identity on 2 September, he advised the chairperson of his section
188A (11) referral and called
on the chairperson not proceed with the
inquiry, on the apparent assumption that having made the referral it
automatically halted
the internal inquiry. On 14 September the
chairperson dismissed his objection and the urgent application was
launched four days
later.
[30]
Matlala can hardly be
faulted for first attempting to persuade the chairperson not to
proceed with the inquiry, instead of rushing
to court without having
done so. He raised the objection with the chairperson promptly and
when the chairperson dismissed his objection
filed the application
shortly thereafter. The facts of this application are distinguishable
from the authorities relied on by Foskor
[2]
.
In the circumstances, I am satisfied that Matlala acted promptly and
did not approach the court without exhausting other procedural
alternatives. Accordingly, he has established that he acted with the
necessary degree of alacrity required.
[31]
Further, there is no equivalent ‘alternative’ to invoking
s 188A(11), which Matlala has a right to exercise.
While there is a
possibility of the provision being abused to delay or avoid an
internal hearing, it must be remembered that procedure
initiated by
the employer does not disappear if an employee successfully invokes
the provision. It simply relocates the subject
matter of the
internal enquiry to arbitral proceedings.
Pre-requisites for
acceding to a request to proceed under s 188A(11)
[32]
There is no dispute that Matlala does have a right to request that
the disciplinary proceedings should be conducted by
an independent
third-party under section 188A(11). The crux of the dispute between
the parties is whether he met the prerequisites
for that process to
replace the disciplinary inquiry, and which forum should determine
that in the first instance.
[33]
It is apparent that
Foskor has adopted the prerequisites from this court’s judgment
in
Mamodupi
v Property Practitioners Regulatory Authority and Another
[3]
.
The
applicant in that matter had launched an urgent application to
declare her summary dismissal by the employer unlawful and that
the
termination was in breach of s 188A of the LRA. The application was
struck off the roll for lack of urgency.
[34]
In the judgment the court deprecated a tendency of employees to bring
applications for specific performance on an urgent
basis, in the
belief that establishing the court’s jurisdiction to entertain
applications for specific performance of the
employment contract
under s 77(3) was sufficient reason to entertain the application
regardless of whether or not it was urgent.
The court also discerned
a strategy that employees were using to stall internal disciplinary
proceedings by invoking the section.
[35]
Shortly after being issued with disciplinary charges, the applicant
in the matter had invoked subsection 188A (11) by
requesting the
inquiry be conducted by an arbitrator. In a note attached to
the CCMA referral form she baldly alleged “
in good faith”
that the disciplinary inquiry contravened the PDA because it
amounted to subjecting her to an occupational detriment on account of
having made a protected disclosure. As the court observed, the note
was completely lacking in any details about the specifics of
the
alleged protected disclosure, namely as to whom it was made, how it
was made and when it was made. At her request, the chairperson
of the
internal inquiry had issued a ruling postponing the inquiry, pending
a decision from the CCMA that it would conduct the
hearing under s
188A(11). However, the CCMA hearing was then repeatedly postponed
without a ruling being made whether the arbitrator
accepted
jurisdiction to act under the section. Eventually, the employer
decided to proceed on its own by giving the applicant
an opportunity
to make a written representation, following which she was dismissed
for misconduct.
[36]
The court decided that it
was important to determine whether it was authorised to order parties
to continue with the CCMA enquiry
process even where one party
decided to abandon it, and that, because of the stalling strategy
previously identified, it was important
to determine “
the
proper jurisdictional facts that should exist before an employee may
invoke the provisions of subsection 188A (11)”.
[4]
[37]
The court then embarked on a discussion of the circumstances in which
specific performance of an employment contract
might be obtained on
an urgent basis, which is not relevant to this application.
[38]
In determining the prerequisites for an arbitrator to chair the
enquiry, the court stated:
“
(43)
A casual and sloppy reading of the subsection suggests that an
employee may make a simple allegation of contravention of the
PDA in
order to invoke the subsection. Not, the allegation must be one made
in good faith. This requirement illuminates the fact
that the
legislature was alive to the fact that an employee may make a wild
allegation and thereby gain the right to an inquiry
by an arbitrator.
This is an instance where an abuse of the subsection creeps in
easily. The legislature must have carefully chosen
the phrase good
faith because in section 9 of the PDA any disclosure made in good
faith is protected.
It
becomes so protected if an employee reasonably believes that the
information disclosed and an allegation contained in it are
substantially true and the disclosure is not made for the purposes of
personal gain
.
The phrase good faith, when used as a noun, means honesty or
sincerity of intention.
(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.”
(emphasis
added)
[39]
In conclusion, the court held the provision could only be invoked if
the following jurisdictional facts were present:
“
46.1 The employee
must
make
a protected disclosure;
46.2 Thereafter,
the employer must subject the employee who already made a protected
disclosure to an occupational detriment;
46.3 Once so subjected,
an employee must allege honestly and sincerely so that a causal
connection does exist between his or her
protected disclosure and the
occupational detriment. Differently put, it is because of having made
a protected disclosure that
an employer chose to respond by an
occupational detriment.”
(emphasis added)
[40]
Turning to the facts of
that case, the court held that the applicant had not satisfied these
jurisdictional requirements. Although
the court did not expressly
issue a declarator that the resumption of the internal enquiry by the
employer was not a breach of
s 188A(11), the court reasoned that
because the jurisdictional prerequisites the section 188A (11)
inquiry had not been met, and
since the internal enquiry did not
automatically terminate when the statutory enquiry was been
requested, the internal enquiry
had not yet been terminated by virtue
of the operation of s 188A(11). By implication, there was no legal
bar to the employer continuing
with its own inquiry
[5]
.
[41]
Although the court’s views on the jurisdictional prerequisites
for holding an inquiry under the section are, strictly
speaking,
obiter
because the application was dismissed for lack of
urgency, nevertheless, they obviously bear consideration when
determining the
pre-requisites for conducting the enquiry under the
chairpersonship of an arbitrator.
[42]
At this juncture it is perhaps important to note that, in
Mamodupi
,
the relief sought in relation to section 188A(11) was a final
declaratory order that the applicant’s dismissal was in breach
of that provision. The factual scenario and the relief sought
were not the same as in this case. In this application, Matlala
seeks
an order compelling the CCMA to proceed with the enquiry. That is an
invitation for the court to determine if the referral
satisfies the
requirement for the CCMA holding the enquiry. In the alternative,
Matlala seeks an order to stay the internal proceedings,
pending a
decision by the appointed arbitrator on whether to entertain the
request.
[43]
I agree with the court in
Mamodupi
that the starting point for
identifying the requisites for holding an enquiry under s 188A(11),
must be the wording of the section,
which states that an employee is
entitled to require an enquiry into their conduct or capacity to be
conducted under s 188A if
the employee “
alleges in good
faith
that the holding of an inquiry contravenes the
Protected Disclosures Act, 2000”
(emphasis added).
[44]
If the request for a
statutory hearing is successful, it merely means that the internal
incapacity or misconduct inquiry is substituted
with an arbitration
presided over by a completely independent chairperson. In
Tsibani
v Estate Agency Affairs Board and Others
[6]
,
this
court emphasised the limited scope of the s 188A(11) procedure:
“
(72) Section
188A(11) is not designed or intended to determine whether the facts
constitute a protected disclosure as contemplated
by the PDA or not,
and if not, for an internal disciplinary hearing to proceed. The
section provides for an inquiry into allegations
pertaining to the
conduct or capacity of an employee.”
(emphasis added)
[45]
Accordingly, unless the employee has also referred an unfair labour
practice claim that the internal inquiry constituted
an occupational
detriment under the PDA under section 186 (2) (d) and that matter is
somehow heard jointly with the s 188A(11)
enquiry, the enquiry
conducted by the arbitrator will be concerned only with whether the
employer proves the allegations of incapacity
or misconduct and any
consequences which might flow from that. In the absence of such an
arrangement, the arbitrator conducting
the misconduct or incapacity
inquiry has no authority to determine if the employee has suffered an
occupational detriment because
they made a protected disclosure.
Therefore, the employee cannot use the procedure to vindicate their
claim that the disciplinary
action of the employer amounts to an
occupational detriment under the PDA.
[46]
Because the section 188A(11) enquiry is simply a misconduct or
incapacity hearing, whether the employee had actually
suffered an
occupational detriment is not within the remit of the arbitrator in
that forum. Nevertheless, the arbitrator is not
obliged to proceed
with the inquiry regardless of the circumstances under which the
disciplinary action arose. The threshold requirement
that must still
be met is that the employee’s allegation that the disciplinary
steps taken by the employer amounts to an
occupational detriment
under the PDA must be one made in good faith.
[47]
In assessing the
existence of good faith, it must be recognised that it possible that
the allegation of being subjected to an occupational
detriment might
be made in the sincere belief it is correct, when objectively
speaking it is wrong. An employee’s belief
they have been
subjected to an occupational detriment, might be mistaken on several
grounds, both concerning the legal interpretation
of the PDA and the
factual basis for their belief. Plainly, if an employee relies on a
factual assertion which they know to be
false the allegation cannot
be
bona
fide
because
it relies on an intentional misrepresentation. In instances where the
allegation is not plainly false, there must at least
be a tenable or
plausible basis for them holding that belief. Accordingly, if there
are undisputed facts that are irreconcilable
with their belief, which
the employee could not be unaware of, their belief cannot be accepted
as
bona
fide
one.
Equally, if the belief is one that nobody in the position of that
person could reasonably hold in the circumstances, it could
not be
held in good faith
[7]
.
[48]
Difficult though it is to make the distinction between determining if
the disciplinary action taken by the employer does
amount to an
occupational detriment and whether the employee honestly believes it
does, the employee has to show that
their belief
is
bona
fide
, not that the disciplinary action taken does amount to an
occupational detriment. It is important not to collapse the enquiry
into
whether an occupational detriment in the form of disciplinary
action was imposed on employee for the purpose of determining an
unfair labour practice claim with an enquiry into the existence of a
bona fide
belief that it was. Sometimes there will be
indisputable known facts, which are such that, objectively speaking,
the alleged disclosure
could not have triggered the disciplinary
steps, and which would preclude the employee from honestly believing
that it did. In
that instance, the objective circumstance negates the
possibility of an employee genuinely believing the opposite.
Under
such circumstances determining the existence of a bona fide
belief will be relatively easy, but this will not always be the case.
[49]
In
Mamodupi
the court articulated the test for proceeding with
the enquiry as being whether the employee has established the
prima
facie factual
existence of a contravention. I agree in general
with this formulation, but not if it is interpreted to mean that
every element
required to establish an unfair labour practice
relating to an occupational detriment must be established on a
prima
facie basis
to pass the threshold of s 188A(11). That dispute
falls outside the remit of an arbitrator deciding whether to hear the
disciplinary
or incapacity case. The assessment of the employee’s
bona fide
belief as a precursor to the statutory enquiry also
does not require that level of scrutiny, because the issue the
arbitrator will
decide is not the merits of their occupational
detriment claim, but the merits of the employer’s case of
misconduct or incapacity.
[50]
The next issue is whether it is appropriate for the Labour Court to
determine whether or not the statutory enquiry can
proceed? The
request is made to the CCMA or relevant bargaining council. It is the
commissioner or panellist who is called upon
to preside in the
enquiry and therefore is first seized with the question whether the
request has been properly made. As far as
possible, this court should
not be usurping that primary role by determining the jurisdictional
question in the form of issuing
a declarator before the request has
even been considered by the arbitral forum. This is exactly what this
court would be doing
if it considered whether Matlala is entitled to
the primary relief he seeks.
[51]
Should the court then grant interim relief by suspending the internal
inquiry pending the decision of the CCMA commissioner
whether to
proceed with the s 188A(11) enquiry? If the court does not stay
the internal enquiry, Matlala could be denied
the opportunity of
exercising his right to request the statutory enquiry because, unless
the request for the statutory enquiry
is accepted, the employer can
proceed with the internal one in the meantime.
[52]
Matlala has acted with speed in bringing this application, the
prejudice to the employer of the delay must be balanced
against
Matlala’s lost opportunity of an inquiry before an arbitrator.
Matlala has no other suitable way of effectively preserving
his right
to have his request considered. Whatever the merits of his request
are, that should be determined by the forum considering
it and
granting interim relief would facilitate that.
Conclusion
[53]
For the reasons set out above, I am satisfied that the applicant is
entitled to relief in the form of his alternative
prayer. There being
an ongoing employment relationship between the parties, an order of
costs would not be appropriate in this
case.
Order
1. The application
is heard as one of urgency in terms of Rule 38 of the Labour Court
and any non-compliance with time periods
and forms of service in the
Rules is condoned.
2. The disciplinary
enquiry into the charges of misconduct against the Applicant, set out
in the First Respondent’s
notice of 7 and 22 August 2025, is
suspended pending a decision by the arbitrator appointed by the Third
Respondent, whether the
disciplinary enquiry should be conducted in
accordance with
Section 188A(11)
of the
Labour Relations Act, 66 of
1995
.
3. No order is made
as to costs.
R Lagrange
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant:
M
Moolla instructed by Dockrat Incorporated
For
the Respondents:
M Sibanda accompanied
by AN Nkabinde (Pupil)
instructed
by Bowman Gillfillan Inc.
[1]
See
Mtweta
v Transnet Freight Rail and Operating Division of Transnet (SOC)
Limit
ed
(J 58/2024) (2024) ZALCJHB 17 (29 January 2024) and
Lindokuhle
Tsibani v The Estate Agency Affairs Board and Other
s
(2021) ZALCJHB 150 (24 June 2021), in which the applicants in those
matters had launched urgent proceedings two months
and more
than three months, respectively, after receiviing charges.
[2]
footnote1
supra.
[3]
(J68/23) (2023) ZALCJHB 19 (13 February 2023), unreported.
[4]
At
paragraph 13.
[5]
See
paragraph 55.
[6]
(J642/2021) (2021) ZALCJHB 150 (24 June 2021) unreported
[7]
See
e.g,
He
and She Investments (Pty) Ltd v Brand NO and Others; He and She
Investments v Brand NO and Others
2019
(5) SA 492
(WCC) at paragraphs 28 and 29. The judgment is also
refers to the test applied to determine if a defendant has provided
a
bona
fide
defence
to a summary judgment application, which may usefully find
application in the context of
s 188A(11).
In
Maharaj
v Barclays National Bank Ltd
1976
(1) SA 418
(A) at 426A-D, Corbett JA stated:
Accordingly,
one of the ways in which a defendant may successfully oppose a claim
for summary
judgment is by
satisfying the Court by affidavit that he has a bona fide defence to
the claim.
Where the defence is
based upon facts, in the sense that material facts alleged by the
plaintiff in his summons, or combined summons,
are disputed or new
facts are alleged constituting a defence
,
the Court does not attempt to
decide these issues or to determine whether or not there is a
balance of probabilities in
favour of the one party or the other.
All that the Court enquires into is: (a)
whether the defendant has 'fully' disclosed the nature and grounds
of his defence and
the material facts upon which it is founded, and
(b) whether on the facts so disclosed the defendant appears to have,
as to either
the whole or part of the claim, a defence which is both
bona fide and good in law.
If
satisfied on these matters the Court must refuse summary judgment,
either wholly or in part, as the case may be. The word 'fully',
as
used in the context of the Rule (and its predecessors), has been the
cause of some Judicial controversy in the past. It connotes
,
in my view, that, while the defendant need not deal exhaustively
with the facts and the evidence relied upon to substantiate
them, he
must at least disclose his defence and the material D facts
upon which it is based with sufficient particularity
and
completeness to enable the Court to decide whether the affidavit
discloses a bona fide defence
.
(emphasis added)
While this might, by
analogy, be a useful way of approaching the determination of an
employee’s bona fide belief in a
s 188A(11)
request, an
employee is not required to set out a full disclosure of their claim
to be subjected to an occupational detriment.
It must also be noted
that, in any event, the Appellate Division, took a narrow view of
what full disclosure of a bona fide defence
under R 32(3)(b) of the
Uniform Rules of the High Court entails.