IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case No: 2025-168718
Not Reportable
In the matter between:
THEMBA HOWARD NKABINDE AND OTHERS First to Two Hundred
and Fortieth Applicants
and
ARBITRATOR L DLAMINI First Respondent
SOUTH AFRICAN LOCAL
GOVERNMENT BARGAINING COUNCIL Second Respondent
CITY OF TSHWANE METROPOLITAN MUNICIPALITY Third Respondent
Heard: 14 October 2025
Delivered: This judgment was handed down electronically by circulation to the
parties and / or their legal representatives by email. The date and time
for handing-down is deemed 10h00 on 23 October 2025
JUDGMENT
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ALLEN-YAMAN J
Introduction
[1] The applicants applied for orders as follows,
‘1. Dispensing with the ordinary rules relating to service and time limits, and that
the matter be heard as urgent in terms of Rule 38 and condoning the
Applicant’s non-compliance with the time periods prescribed by the Rules of
this Honourable Court.
2. Reviewing and setting aside the decision of the 1 st Respondent of refusing to
give a written ruling on the 11 th of September 2025 under case number
PMD072502 under the auspices of the Second Respondent.
3. An order in the following terms, in relation to the notice of motion under case
number PMD072502:
3.1 That the 2
nd to the 143 rd Respondents be joined as parties to these
proceedings.
3.2 That the 1st Respondent be ordered to provide the Applicants with the scoring
sheets pertaining to the 2nd to the 143rd Respondents.
3.3 That the 1st Respondent be ordered to provide the Applicants with the scoring
sheets of the Applicants.
3.4 That the 1st Respondent be ordered to provide the Applicants with the CVs of
the 2nd to the 143rd Respondents.
3.5 That the 1 st Respondent be ordered to furnish the Applicants with the email
addresses and/or work addresses of the 2nd to the 143rd Respondents.
3.6 That the 1 st Respondent be ordered to provide the Applicants with the police
clearance certificates and vetting documents of the 2 nd to the 143 rd
Respondents.
3.7 That the 1st Respondent be ordered to provide the Applicants with a list of all
employees appointed as warrant officers during the years 2024 and 2025.
3.8 That the 1 st Respondent be ordered to furnish the Applicants with the
interview questions and answers of both the 2nd to 143rd Respondents and the
Applicants.
3.9 That the Applicants be compensated for the prejudice for the Unfair Labour
Practice as a result of the 1st Respondent’s conduct.
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4. Alternatively, compelling the First Respondent, Commissioner Lindokuhle
Dlamini, to issue a written ruling confirming his oral determinations made
during the arbitration proceedings on 11 September 2025;
5. Further alternatively, remitting the matter between the Applicants and the 3
rd
Respondent back to the 2 nd Respondent for determination de novo by a
commissioner other than the 1st Respondent.
6. Directing that the costs of this application be paid by the First Respondent
and any other Respondents who may oppose the application thereof.
7. Granting further and/or alternative relief as this Honourable Court may deem
just and equitable in the circumstances.’
[2] The application was opposed by the third respondent which, additionally to
having addressed the merits, raised various preliminary issues, including that of
lack of urgency.
[3] At the time when the application was launched the applicants’ referral had been
enrolled for arbitration on 30 and 31 October 2025 and their joinder / disclosure
application had not yet been determined. It is difficult to understand on what
basis they approached this court on an urgent basis rather than simply to have
addressed the issue of the outstanding application at the outset of those
proceedings. Be that as it may, as a full set of affidavits had been exchanged
and the issues fully ventilated at the hearing of the matter, to strike the matter
off the roll for lack of urgency would have resulted in no more than another
court being required to deal with the application in due course. In the
circumstances, this court will exercise its discretion and enrol the matter to be
dealt with as an urgent application.
Background
[4] In the course of 2024 the third respondent invited suitably qualified individuals
to apply for appointment to one of eighty two posts of Warrant Officer in its
Metropolitan Police Department. The applicants in the present proceedings
Metropolitan Police Department. The applicants in the present proceedings
were amongst the number of those who applied for consideration, but who were
ultimately unsuccessful. The failure on the part of the third respondent to have
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appointed them to the advertised posts led to their having referred a dispute to
the second respondent, which was allocated case number PDM072502.
[5] By the end of August 2025 the dispute had been scheduled for arbitration
proceedings on 11 September 2025, in anticipation of which the applicants had
initiated an interlocutory application in which they sought the relief which is set
out in paragraph 3 of the present application. By the time of the hearing on 11
September 2025, the third respondent had delivered a notice of opposition, but
had delivered no answering affidavit. The applicant provided no record of the
proceedings of 11 September 2025 to this court, which resulted in it being
required to attempt to discern what may have transpired on that day from the
affidavits currently before it, and the correspondence which had been attached.
[6] On the applicant’s version,
‘During the proceedings, the Applicants’ attorneys formally raised the above issues,
and the Commissioner, after hearing both parties, indicated that a ruling on disclosure
had already been issued in related matters arising from the same facts and that the
Respondent is bound to comply with it.
The Commissioner further acknowledged that the joinder of additional respondents
was proper, given their direct and substantial interest in the dispute.
These pronouncements were made orally during the proceedings and were further
confirmed in subsequent correspondence between the Applicants’ attorneys and the
Commissioner dated 11 and 12 September 2025 respectively.’
[7] On the third respondent’s version,
‘As I stated earlier in this answering affidavit, the first respondent issued a verbal
directive and confirmed it in writing on 12 September 2025. The powers of the first
respondent to issue a directive have not been challenged, and the directive itself has
not been challenged.
The applicants should follow the directive.’
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[8] The first respondent’s recordal of the events of the day was encapsulated in his
email of 12 September 2025, in which he noted that he had issued a directive in
terms of s138 of the LRA,
‘After a thorough assessment of the issue off the record, I have directed the parties to
engage each other and sort out the following:
1. That the issue of discovery (disclosure) of documents is now academic since there
is a ruling issued pursuant to Rule 29 application by the law firm representing the
applicants with respect to other applicants for the same issue. All that is required
between the parties is either the Respondent voluntarily co- operate and avail the
required documents or the ruling is enforced in terms of section 142A of the LRA.
2. The parties were further directed to meet and deal with a pre-arbitration process
and produce a signed minute which will clearly indicate the issues in dispute and
those that are common cause. This will also include the number of witnesses from
each side. Also finalise the issue of consolidation of the disputes since the legal
representatives on this are also representing other clients who are also aggrieved
about the same issue under consideration herein. Lastly, the parties are expected
to prepare the bundles of documents in a collaborative manner in order to avoid
duplication and the submission of irrelevant documents.’
[9] At the hearing of the matter, the third respondent drew this court’s attention to
the existence of a R uling which had been issued by the second respondent
pursuant to the initiation of the present application. In accordance with t hat
Ruling issued, seven disputes referred to the second respondent by
approximately 1000 applicants have been consolidated, and are jointly enrolled
on 14, 17 and 18 November 2025. The referral under PMD072502 is included
as one of the disputes so consolidated.
Analysis
[10] It is clear that the first respondent did not issue a Ruling in respect of the
[10] It is clear that the first respondent did not issue a Ruling in respect of the
applicants’ application, written or otherwise, on 11 September 2025. It is
evident from his email of 12 September 2025 that, relying on the provisions of
s138(1) of the LRA, he issued a directive concerning the manner in which he
required the parties to proceed in relation to the production of documents.
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[11] Albeit that the first respondent did not issue a Ruling on 11 September 2025 (or
thereafter), in consideration of the first of the applicants’ claims, the applicants
did not establish an actual refusal on the part of the first respondent to do so in
the future.
[12] Insofar as the applicants’ application related to the production of documents the
directive made reference to an ancillary matter under PMD 042501. I t is clear
that the documentation sought under PMD 72502 far exceeds that which was to
be produced under the Rulings issued under PMD 042501 on 14 July 2025 and
15 September 2025 respectively , and i t is accordingly not clear on what basis
the first respondent believed that the Rulings under PMD 042501 could have
availed the applicants under PMD 72502. In the absence of the record of
proceedings of 11 September 2025, this court can take that issue no further.
Despite the comments made by first respondent regarding the Rulings under
042501, nothing before this court evinces that he regarded those Rulings as
having been dispositive of the issue of the production of documents under PMD
72502; extraneous to those comments he directed the parties to follow a
process in terms of which the parties themselves could potentially resolve the
matter without the necessity of any further Ruling being required to be made.
[13] The directive did not deal with the issue of the joinder of the further
respondents at all.
[14] In the absence of any obvious refusal on the part of the first respondent to have
issued a Ruling, this court is unable to discern any decision taken by the first
respondent which could be reviewed and set aside, and the relief sought in
paragraph 2 of the applicants’ Notice of Motion cannot be granted.
[15] Under paragraph 3 of their Notice of Motion the applicants asked this court to
issue as an Order the very Ruling which the first respondent was asked to
make. The third respondent questioned the provision of the LRA upon which
make. The third respondent questioned the provision of the LRA upon which
the applicants relied in having sought such relief. In review proceedings, in
keeping with trite principles of administrative law, it is open to an applicant to
ask this court in an appropriate case to substitute its decision for that of the
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original decision maker where the original decision has been reviewed and set
aside. As has been found, in the present matter, a decision has yet to be
taken. The only circumstance of which this court is aware that this court would
be entitled to take a decision in the absence of the decision maker having done
so is when it is clear that the functionary does not intend to do so. In the
present matter, nothing before this court evinces a refusal on the part of the first
respondent to take a decision, and nor does the lapse of time evince that there
is no likelihood of him doing so in the future. In the circumstances, the
applicants have not established an entitlement to the relief so sought.
[16] Sought in the alternative under paragraph 4 of its Notice of Motion, the
applicants ask this court to order the first respondent to reduce the verbal
statements made by him on 11 September 2025 to writing. Save for certain
remarks attributed to him in the course of the hearing on 11 September 2025
concerning joinder, his directions were reduced to writing on 12 September
2025 in his email to the parties.
[17] As to the final part of the applicants’ application, nothing before this court
suggests that the first respondent has conducted himself in a manner which
evinces that it would be inappropriate for him, as the arbitrator appointed to the
matter, to deal with the applicants’ application and to make a determination in
due course, if called upon to do so.
[18] It is accordingly the finding of this court that the applicants failed to make out a
case for the relief sought by them, by reference to their own founding affidavit
alone. Given that the application is to be dismissed on its merits, it is
unnecessary for this court to make any findings concerning such preliminary
points as have not otherwise been dealt with herein.
[19] Compounding the failure on the part of the applicants to have made out a case
[19] Compounding the failure on the part of the applicants to have made out a case
for any form of relief was the delivery of the consolidation Ruling on 13 October
2025. Had proper consideration been given to the effect thereof, it would have
become apparent to the applicants that: (1) their own individual arbitration
would not proceed on 30 and 31 October 2025, and (2) the litigants in those
matters would, of necessity, have to meet to discuss the further conduct of the
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consolidated proceedings. Such discussions (as envisaged by the first
respondent albeit with reference to the applicants’ referral alone) may well
result in all the parties reaching agreement concerning both the issues of the
joinder of the selected incumbents to the each of the various matters as
respondents, as well as the production of documents. In the event that such an
agreement does not materialise nothing prevents the applicants from requiring
the arbitrator appointed thereto (whether the first respondent or another ) to
determine their as yet undetermined joinder / disclosure application.
Costs
[20] The third respondent asked for an order of costs against the applicants’
attorney de bonis propriis . In so doing, it referred this court to the decision of
this court in Sepheka v Du Point Pioneer (2019) 40 ILJ 613 (LC),
‘Considering when costs orders de bonis propriis are justified I refer to Stainbank v SA
Apartheid Museum at Freedom Park and Another where the Court said:
“Although the courts have the power to award costs from a legal practitioner’s own
pocket, costs will only be awarded on this basis where a practitioner has acted
inappropriately in a reasonably egregious manner. However, there does not appear to
be a set threshold where an exact standard of conduct will warrant this award of costs.
Generally, it remains within judicial discretion. Conduct seen as unreasonable, wilfully
disruptive or negligent may constitute conduct that may attract an order of costs de
bonis propriis.”
In Candy and Others v Coca Cola Fortune (Pty) Ltd the Court held:
“In terms of s162(3) of the LRA, ‘the Labour Court may order costs against a party to
the dispute or against any person who represented that party in those proceedings
before the Court’. Clearly this would include the power to make a costs award de bonis
propriis against a representative. In Moloi and Another v Euijen and Another, the court
propriis against a representative. In Moloi and Another v Euijen and Another, the court
said that ‘costs de bonis propriis are awarded against legal practitioners in cases
which involve delinquencies such as dishonesty, wilfulness or negligence in a serious
degree’. Factors for consideration referred to in Moloi were whether the representative
acted dishonestly in his dealings with the court, whether he indulged in contemptuous
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conduct, whether he perpetrated a fraud on the court, whether he misled or placed
false evidence before the court and whether his conduct smacked of wilfulness or
negligence to a serious degree. The court in Indwe Risk Services (Pty) Ltd v Van Zyl:
In re Van Zyl v Indwe Risk Services (Pty) Ltd said that ‘where the court is of the view
that there is a want of bona fides or where the representative had acted negligently or
even unreasonably’ the court would consider awarding costs against such a
representative.”’1
[21] Having considered the factors relevant to an order of costs de bonis propriis ,
this court is not of the view that such an order is warranted in the present
matter. Whilst the application has been found not to have merit, it was not such
that the applicants’ attorney’s conduct in having launched the application or at
any time thereafter can be regarded as being deserving of censure.
[22] To the extent that the third respondent asked, when opposing the application,
for an order of costs against the applicants themselves, it is clear that there is
an ongoing employment relationship between the parties. Moreover, whilst the
application itself will be dismissed, it has as its genesis the need on the part of
the applicants to be provided with the documents which they require to enforce
their rights in terms of the Labour Relations Act , which documents the third
respondent has yet to provide to them.
[23] In the circumstances, this court will make no order as to costs.
Order
1. The ordinary rules relating to service and time limits are dispensed with and the
matter is heard as an urgent application in terms of Rule 38.
2. The application is dismissed.
3. There is no order as to costs.
1 At paragraphs 36 and 37
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________________________
K Allen-Yaman
Judge of the Labour Court of South Africa
Appearances
Applicants:
Mr Malale of Malale Nthapeleng Attorneys
Third Respondent:
Mr Mndebele, instructed by MBA Incorporated