THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case No: J190/23
In the matter between:
THE DIHLABENG LOCAL MUNICIPALITY Applicant
and
MANGWAJANE MAVIS MOFOKENG First Respondent
MAMAHLAPE CHRISTINE GALAWE Second Respondent
TSHEPISO FLORINA RAMOSENA Third Respondent
THABO LEHLOHONOLO DAVID MOTLOUNG Fourth Respondent
HELENA WILLE Fifth
Respondent
THEMBA GODFREY CHOBOKOANE N.O. Sixth
Respondent
SALGBC Seventh Respondent
IMATU Eighth Respondent
Heard: 20 August 2025
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This judgment was handed down electronically by circulation to the parties’ legal
representatives by email, publication on the Labour Court website and release to
SAFLII. The date for handing down judgment is deemed to be 29 October 2025.
______________________________________________________________________
JUDGMENT
DE KOCK, AJ
Introduction
[1] This matter c omes before this Court as an application to declare paragraphs 5
and 6 of a compliance order issued by the regional secretary of the seventh
respondent (SALGBC) on 17 February 2022 (the compliance order) to be a
nullity. The application also seeks to declare the arbitration award, issued by the
sixth respondent (the commissioner) on 12 July 2022 under case number
C/FSD/11/21/03, a nullity to the extent that the award compels the applicant to
comply with paragraphs 5 (as varied by the commissioner in paragraph 36 of the
award) and 6 of the compliance order.
[2] The applicant further seeks an order that the applicant’s decisions to appoint the
first to fifth respondents (collectively referred to as the individual respondents)
and/or to renew their contracts after they expired, and the contracts of
employment between the applicant and the respondents pursuant to such
decisions, be unlawful, and that same be set aside. The applicant seeks that the
declaration of invalidity operate prospectively and shall not have the effect of
divesting the individual respondents from their entitlement to the remuneration
that they received or are entitled to receive for services rendered.
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Jurisdiction: the point in limine
[3] At the outset, the eighth respondent (IMATU) raised a point in limine challenging
the competence of the application. IMATU contends that the applicant is
challenging a certified compliance arbitration award, which can only be
challenged through review proceedings in terms of section 145 of the Labour
Relations Act
1 (LRA). This jurisdictional objection requires consideration before
addressing the substantive merits or procedural delays.
The competence question
[4] Section 145 of the LRA provides a specific and comprehensive mechanism for
challenging arbitration awards. The section requires that review applications be
brought within six weeks of receiving the award and be grounded in established
grounds of review, which are misconduct, gross irregularity, or exceeding of
powers by the commissioner. The test for reviews is also one of reasonableness,
i.e., whether the decision by the commissioner is one that another reasonable
decision-maker could not reach.
[5] Section 158(1)(a)(iii) of the LRA, by contrast, empowers the Labour Court to
make “an order directing the performance of any particular which order, when
implemented, will remedy a wrong and give effect to the primary objects of the
Act”. Section 158(1)(a)(iv) empowers the Court to make a declaratory order. The
applicant has not cited the section of the LRA on which the application is based.
The Court will accept that the application is based on section 158(1)(a)(iii) and
(iv), read together.
[6] The provisions of section 158(1)(a)(iii) and (iv) are powers of a general nature
and not a substitute for the specific review mechanism in section 145. The said
sections are not an alternative vehicle for challenging the validity of certified
arbitration awards where the prescribed review procedure remains available.
1 Act 66 of 1995, as amended.
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[7] The Court, however, notes that the applicant has framed its relief extending
beyond merely challenging the award. The applicant seeks a declarat ory order
that the compliance order is a nullity, that the decision(s) to appoint/renew the
individual respondents’ contracts are unlawful, and that the contracts of
employment are unlawful. The relief sought goes to the lawfulness of the
applicant’s own decisions and not merely to the validity of the award. In principle,
an organ of state retains the right to seek declaratory relief regarding the
lawfulness of its own administrative action, even where that action has been the
subject of an arbitration award.
[8] The availability of seeking a review of the award in terms of section 145,
however, still remains relevant to this application. Where a party has had the
opportunity to utilise a specific statutory mechanism for challenging an award and
has failed to do so within the presc ribed timeframe, this Court should be slow to
permit the same challenge to proceed under a general power in terms of section
158 of the LRA. This is so, as it reflects the principle that parties must respect the
statutory framework establi shed by Parliament and the procedural safeguards
(such as time limits and specified grounds) that protect finality of awards.
[9] The Court notes that the applicant was afforded an opportunity to respond to the
compliance order, which they failed to do. If the applicant wanted to challenge
the lawfulness of the compliance order, they could have done so. However, they
appear to have simply ignored the compliance order. Insofar as the applicant
may have believed that clause 18.1 of the collective agreement, properly
interpreted, means that the right to be appointed on a permanent basis is
accorded only to those employees who have been r ecruited and selected in
accordance with the applicable statutory and regulatory matrix and who are
appointed to an identifiable position in terms of the applicant’s staff
appointed to an identifiable position in terms of the applicant’s staff
establishment, the applicant could have referred a dispute in terms of the dispute
resolution clause contained in the collective agreement. They failed to do so and,
as stated, disregarded the compliance order.
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[10] The applicant, during the arbitration proceedings, did raise the defence that the
correct interpretation of clause 18.1 is that an appointment that does not fall
within sections 54 and 56 of the Local Government: Municipal Systems Act 2, like
Labour Relations Officer and other positions are permanent by their very nature,
and their clearly stated presence in the municipal structure (organogram) of the
applicant. The defence raised further was that the first to fourth respondents
were employed on a Graduate Development Programme and not on a learner
contract of employment. In respect of the fifth respondent, the applicant’s
defence was that she was not appointed under the Graduated Development
Programme and that her contract was not specific to the position she was
appointed for. It was, however, conceded that she was appointed in the Water
Department and had been performing duties as an Admin Officer.
[11] The applicant had six weeks from 12 July 2022 to bring a review application in
terms of section 145. That period expired on 23 August 2022. The applicant
brought this application on 15 May 2023, some nine months later. By the time
this application was brought, the window for a section 145 review was
conclusively closed.
[12] The applicant’s explanation for not pursuing a section 145 review is not clearly
articulated. Instead, the applicant has chosen to frame this as an application for
declaratory relief regarding its own decisions and added thereto the allegation
that the compliance order and the arbitration award are nullities. Such relief is
available in principle, but the procedural delay in bringing this application impacts
the Court’s decision whether to entertain an application for declaratory relief.
[13] As such, the point in limine is not upheld as a complete bar to this Court’s
jurisdiction. It, however, remains highly relevant to the subsequent analysis of the
delay and reasonableness as it demonstrates the applicant’s deliberate, or at the
delay and reasonableness as it demonstrates the applicant’s deliberate, or at the
very least the applicant’ s unjustified circumvention of the statutory framework
2 Act 32 of 2000.
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designed to regulate challenges to arbitration awards within the required,
prescribed time period.
Delay in approaching the Labour Court
[14] The applicant addresses the delay in the founding affidavit as follows. On 17
August 2022, Mr Busa Molatseli (Molatseli) i nstructed attorneys to obtain
counsel's opinion on the enforceability of the award. Counsel advised that, as an
organ of state, the applicant was under a constitutional duty to investigate any
potential unlawfulness and to correct it through appropriate avenues.
[15] Upon this advice, Molatseli instructed the attorneys to proceed. A draft
application was sent to the applicant on 30 November 2022, and the applicant
was required to provide instructions on several issues, including an explanation
for why these matters had not been investigated earlier.
[16] Molatseli's term of office ended on 31 October 2022. At that point, the applicant
had not provided instructions on the delay. The deponent to the founding
affidavit, Kadimo Masekoane (Masekoane), was appointed as acting municipal
manager on 25 November 2022. When this matter came to his attention, he
arranged a meeting with the attorneys and counsel on 23 January 2023.
[17] Masekoane could not provide a detailed explanation for the delay, as his
appointment came years after the events in question. He explained that the
respondents were brought into the applicant's employ during the tenure of the
previous municipal manager, Mr Thabiso Tsoaeli (Tsoaeli), who signed the
employment contracts and their extensions. Tsoaeli passed away in
approximately 2020. Molatseli inherited this unresolved matter on taking office,
but did not investigate it with urgency.
Reasonable time requirement
[18] The applicant submits that, even if there is no fully satisfactory explanation for
the delay, the Court's discretion must nevertheless be exercised to overlook the
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delay in the interests of justice. This submission requires the Court to apply the
established principles governing applications brought outside prescribed or
reasonable timeframes.
Legal Principles on Delay
[19] South African administrative and procedural law recognises that applications to
the Courts are subject to a principle of reasonableness regarding temporal
proximity to the events in question. While the LRA prescribes specific timeframes
for certain applications (such as the six -week window for section 145 reviews),
the LRA does not expressly prescribe a timeframe for applications under section
158(1)(a)(iii) and (iv).
[20] In the absence of an express statutory timeframe, the common law principle
applies that such applications must be brought within a reasonable time. This
principle is rooted in the need for finality, the prevention of prejudice through
delayed litigation, and respect for the temporal architecture of the statutory
dispute resolution framework.
[21] In Associated Institutions Pension Fund v Van Zyl and Others
3, the Supreme
Court of Appeal held as follows:
‘Since PAJA only came into operation on 30 November 2000 the limitation of 180
days in s 7(1) does not apply to these proceedings. The validity of the defence of
unreasonable delay must therefore be considered with reference to common-law
principles. It is a longstanding rule that courts have the power, as part of their
inherent jurisdiction to regulate their own proceedings, to refuse a review
application if the aggrieved party had been guilty of unreasonable delay in
initiating the proceedings. The effect is that, in a sense, delay would “validate”
the invalid administrative action… The raison d’être of the rule is said to be
twofold. First, the failure to bring a review within a reasonable time may cause
prejudice to the respondent. Secondly, there is a public interest element in the
finality of administrative decisions and the exercise of administrative functions…
finality of administrative decisions and the exercise of administrative functions…
3 2005 (2) SA 302; [2004] 4 All SA 133 (SCA) at paras 46, 47 and 48.
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The scope and content of the rule has been the subject of investigation in two
decisions of this Court. They are the Wolgroeiers case and Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en ‘n Ander
1986 (2) SA 57 (A). As appears from these two cases and the numerous
decisions in which they have been followed, application of the rule requires
consideration of two questions:
(a) Was there an unreasonable delay?
(b) If so, should the delay in all the circumstances be condoned?
(See Wolgroeiers at 39C-D.)
The reasonableness or unreasonableness of a delay is entirely dependent on the
facts and circumstances of any particular case… The investigation into the
reasonableness of the delay has nothing to do with the Court’s discretion. It is an
investigation into the facts of the matter in order to determine whether, in all the
circumstances of that case, the delay was reasonable. Though this question
does imply a value judgment it is not to be equated with the judicial discretion
involved in the next question, if it arises, namely, whether a delay which has
been found to be unreasonable, should be condoned…’
[22] The High Court in Enoch Mgijima Local Municipality and Another v Dingani and
Another; In re: Enoch Mgijima Local Municipality and Another v Dayi ; In re:
Enoch Mgijima Local Municipality and Another v Siqhaza4 held as follows:
‘[111] The legal position on delay has been explained a number of times by our
courts. Relevantly for this matter in light of its peculiar facts, the
Constitutional Court had this to say in Gijima Holdings:
“Khumalo also says that courts have a ‘discretion to overlook a delay’ .
Here is what we said:
‘(A) court should be slow to allow procedural obstacles to prevent
it from looking into a challenge to the lawfulness of an exercise of
4 [2020] ZAECGHC 42; [2020] 3 All SA 135 (ECG) at paras 111 and 112.
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public power. But that does not mean that the Constitution has
dispensed with the basic procedural requirement that review
proceedings are to be brought without undue delay or with a
court’s discretion to overlook a delay.’…
Tasima explained that this discretion should not be exercised lightly:
‘While a court should be slow to allow procedural obstacles to prevent it
from looking into a challenge to the lawfulness of an exercise of public
power, it is equally a feature of the rule of law that undue delay should not
be tolerated. Delay can prejudice the respondent, weaken the ability of a
court to consider the merits of a review, and undermine the public interest
in bringing certainty and finality to administrative action. A court should
therefore exhibit vigilance, consideration and propriety before overlooking
a late review, reactive or otherwise.’ …
From this, we see that no discretion can be exercised in the air. If we are to
exercise a discretion to overlook the inordinate delay in this matter, there must be
basis for us to do so. That basis may be gleaned from facts placed before us by
the parties or objectively available factors. We see no possible basis for the
exercise of the discretion here. That should be the end of the matter.’
[23] In Weltevrede Kwekery (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & others5 (Weltevrede) the Labour Court held as follows regarding
what time frame would be regarded as “within a reasonable time”:
‘[4] The applicant submits that no application for condonation is required and
the review was launched within a reasonable time. It was pointed out to
Mr Kantor, for the applicant, that prior to the 2002 amendment of the LRA,
the case law had equated the standard of a reasonable period for
delivering an application for review in terms of s 158(1)(g) to the same
standard as set for the review of arbitration awards in terms of s 145 of
the LRA, ie six weeks ( Rustenberg Platinum Mines Ltd v Monnapula &
the LRA, ie six weeks ( Rustenberg Platinum Mines Ltd v Monnapula &
5 (2006) 27 ILJ 182 (LC); [2006] 7 BLLR 706 (LC) at paras 4-6.
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others [2003] 9 BLLR 909 LC at para 34 page 914; Ruijgrok v Foschini
(Pty) Ltd & another (1999) 20 ILJ 1284 LC at 1287-8 paras 16-22).
[5] The 2002 amendment to s 158(1)(g) gave effect to the practice that had
been established through the case law. Mr Kantor persisted that the
reference to "subject to section 145" in s 158(1)(g) was to the grounds of
review and not the time-limit. I disagree. There is nothing in the wording
of s 158(1)(g) that lends itself to such a qualification.
[6] The review should have been launched within six weeks from 17 August
2004. It was launched more than five months later. That is not within a
reasonable time, even on the applicant's version. The applicant was
aware of and could have acquainted itself of all the information relevant
for this application when it received the condonation ruling. There is,
therefore, no reasonable explanation that can be distilled from the
pleadings for such a long period of delay.
[24] The Labour Court in SACCAWU obo Manzana & others v Pick ‘n Pay, Kimberley
& others6 (SACCAWU) also held a reasonable time to be about six weeks. In
POPCRU obo Timla v Nozigqwaba and Others7 the Court held as follows:
‘No time period is set by the LRA within which applications in terms of section
158(1)(g) must be lodged but decisions such as SACCAWU obo Manzana and
Others v Pick ‘n Pay, Kimberley and Others and Weltevrede Kwekery (Pty) Ltd v
CCMA and Others state that such an application should be launched with a
reasonable time and that the six week time period set for applications in terms of
section 145 constitutes a guideline in this regard.’ (footnotes omitted)
[25] The Constitutional Court in Khumalo and Another v Member of the Executive
Council for Education: KwaZulu Natal 8 referred to the judgments of the Labour
Court in Weltevrede and SACCAWU, stating that in some instances, in the
6 [2003] 10 BLLR 1065 (LC); [2003] JOL 11394 at paras 14-5.
6 [2003] 10 BLLR 1065 (LC); [2003] JOL 11394 at paras 14-5.
7 [2015] ZALCJHB 37, case no: JR773/2014 heard on 18 December 2014 and judgment delivered on 13
February 2015 at para 5.
8 [2013] ZACC 49; (2014) 35 ILJ 613 (CC) at para 42 and fn 26.
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context of the LRA, the Courts have held a reasonable time to be about six
weeks. The Court, however, went further and held as follows:
‘[43] Previously, section 39 of the PSA stipulated a 12-month prescription
period in which a claimant could bring an action against the state for any
act or omission made in terms of the Act. The time limit was subsequently
repealed by section 2(1) of the Institution of Legal Proceedings Against
Certain Organs of State Act (Repealing Act). At all relevant times, the
PSA thus prescribed no time limits for reviews of conduct in terms of the
Act.
[44] But what do we make of the Legislature’s decision to remove these time
limits? Does this mean that litigants are not constrained by any
requirement to act timeously? In my view, the Legislature’s decision to
remove the 12-month prescription period opens the actions of public
functionaries in terms of the PSA to ongoing scrutiny and transparency.
Bearing in mind the purpose of the Repealing Act, the repeal of section
39 allows that an applicant cannot automatically be non-suited on the
basis of a delay. Never theless, it is a long-standing rule that a legality
review must be initiated without undue delay and that courts have the
power (as part of their inherent jurisdiction to regulate their own
proceedings) to refuse a review application in the face of an undue delay
in initiating proceedings or to overlook the delay. This discretion is not
open-ended and must be informed by the values of the Constitution.
However, because there are no express, legislated time periods in which
the MEC was required to bring her application, there is no requirement
that a formal application for condonation needs to have been brought.
[45] In the previous section it was explained that the rule of law is a founding
value of the Constitution, and that state functionaries are enjoined to
uphold and protect it, inter alia by seeking the redress of their
departments’ unlawful decisions. Because of these fundamental
departments’ unlawful decisions. Because of these fundamental
commitments, a court should be slow to allow procedural obstacles to
prevent it from looking into a challenge to the lawfulness of an exercise of
public power. But that does not mean that the Constitution has dispensed
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with the basic procedural requirement that review proceedings are to be
brought without undue delay or with a court’s discretion to overlook a
delay.
[46] Section 237 of the Constitution provides:
“All constitutional obligations must be performed diligently and without
delay.”
Section 237 acknowledges the significance of timeous compliance with
constitutional prescripts. It elevates expeditious and diligent compliance
with constitutional duties to an obligation in itself. The principle is thus a
requirement of legality.
[47] This requirement is based on sound judicial policy that includes an
understanding of the strong public interest in both certainty and finality.
People may base their actions on the assumption of the lawfulness of a
particular decision and the undoing of the decision threatens a myriad of
consequent actions.
[48] In addition, it is important to understand that the passage of a
considerable length of time may weaken the ability of a court to assess an
instance of unlawfulness on the facts. The clarity and accuracy of
decision-makers’ memories are bound to decline with time. Documents
and evidence may be lost, or destroyed when no longer required to be
kept in archives. Thus the very purpose of a court undertaking the review
is potentially undermined where, at the cause of a lengthy delay, its ability
to evaluate fully an allegation of illegality is impaired.’ (footnotes omitted)
[26] Based on the aforesaid, this Court is of the view that the six-week time period set
for applications in terms of section 145 constitutes a guideline in determining
whether the application was brought in a reasonable time with flexibility based on
the circumstances of each case.
[27] It is therefore clear that there is a dual enquiry into the delay of a party to bring
an application in terms of section 158(1)(a)(iii) or (iv) of the LRA. As to what is
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reasonable entails a factual enquiry upon which a value judgment is made to the
relevant circumstances, including any explanation given for the delay. 9 The Court
exercises a judicial discretion in deciding whether an unreasonable delay should
be condoned. In doing so, the Court must consider the relevant circumstances,
including any explanation, but also the two reasons for the ‘delay rule’ viz. the
prejudice caused to the other party, and the public interest in achieving finality
and certainty regarding the making of administrative decisions and the
performance of administrative functions.
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[28] The assessment of ‘reasonableness’ requires a holistic consideration of:
28.1. The length and degree of delay.
28.2. The explanation offered for the delay.
28.3. Prejudice to the respondents.
28.4. The prospects of success on the merits.
28.5. The broader interests of justice, including the need for finality and respect
for concluded legal proceedings.
No single factor is determinative; rather, the Court must weigh them together.
[29] The above principles must be applied to the matter at hand, as set out in the
paragraphs that follow.
Length and Degree of Delay
9 Cora Hoexter and Glenn Penfold, Administrative Law in South Africa (Juta, 3 ed, reprinted 2022) at 721.
See, too, Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en ‘n Ander
1986 (2) SA 57 (A) at 75C -E; [1985] ZASCA 121; and, more recently, Madikizela-Mandela v Executors,
Estate Late Mandela and others 2018 (4) SA 86 (SCA); [2018] 1 All SA 669 (SCA) at para 10.
10 Gqwetha v Transkei Development Corporation Ltd and Others 2006 (2) SA 603 (SCA); [2006] 3 All SA
245 (SCA) at 612E-613A.
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[30] The compliance order was issued on 17 February 2022. The arbitration award
was issued on 12 July 2022. The present application was brought on
approximately 15 May 2023, resulting in the following delays:
30.1 From the compliance order to the application: approximately 15 months.
30.2 From the arbitration award to the application: approximately 10 months.
30.3 From the six -week review deadline (23 August 2022) to the application:
approximately 8.5 months.
[31] The critical temporal marker is 23 August 2022—the deadline for a section 145
review. The applicant allowed this deadline to pass without initiating either a
review application or the current application. It only brought the present
application nearly nine months after that deadline had expired.
[32] In the context of labour disputes, where the LRA prioritises expedited resolution,
a delay of nearly nine months beyond the prescribed review window is objectively
substantial. This equally applies to the present application using the prescribed
six-week period as a guideline regarding ‘in a reasonable time’ . The LRA's
timeframes (six weeks for reviews, 30 days for unfair dismissal referrals, 90 days
for unfair labour practice referrals) reflect Parliament’s clear intent that labour
disputes be resolved speedily. A delay that is nearly nine months after expiry of
the prescribed review period cannot easily be characteri sed as falling within any
expansive conception of ‘reasonable time’.
Quality of Explanation
[33] The applicant's explanation for the delay is multifaceted but ultimately insufficient
even on the applicant’s own version. First, the applicant asserts a constitutional
duty to investigate and correct unlawfulness. While section 7(2) and section 195
of the Constitution impose such duties on organs of state, these constitutional
imperatives do not suspend or displace the statutory timeframes established by
the LRA. An organ of state is no less bound by procedural rules than other
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litigants, and cannot invoke constitutional duties to justify non- compliance with
express statutory deadlines , or the requirement that action must be brought
within a reasonable period.
[34] Second, the applicant relies on administrative transition—the death of the
previous municipal manager, the change in administration, and the need for the
new municipal manager to get up to speed. These are real practical difficulties,
but they are not extraordinary circumstances. Public administration regularly
involves transitions in personnel and responsibility. The fact that the matter
‘came to the attention’ of the new acting municipal manager sometime after his
appointment on 25 November 2022 and before 23 January 2023 (the date he
met with the attorney and counsel), suggests administrative failures rather than a
genuine impediment.
[35] Third, the applicant sought counsel's opinion within six weeks of the date of the
award (on or about 17 August 2022), which shows some diligence at that stage.
However, the applicant then failed to act on the advice received promptly. The
period from 17 August 2022 to 15 May 2023 ( nearly nine months) saw minimal
discernible progress. A draft of this application was sent on 30 November 2022,
requiring instructions. Even accounting for the change in municipal manager on
25 November 2022, the meeting with counsel was not held until 23 January
2023—two months after the new acting municipal manager's appointment. The
application was filed in May 2023, another four months later.
[36] The explanation is thus one of administrative inertia rather than a genuine
impediment. The applicant cannot point to legal difficulty, a factual investigation
that required time for the full period of the delay , or events beyond its control.
Instead, the picture is one of a matter not being treated as urgent, with
responsibility shifting between office- bearers and legal advisors without
coordinated action.
coordinated action.
[37] The Court also notes that the declaratory order sought regarding the appointment
of the individual respondents, the renewals, and the actual contracts of
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employment go back as far as 2012 up to around 2017, with the re being no
acceptable reasons advanced why an application was not made years ago.
Available Alternative Procedures
[38] The applicant failed to utili se several avenues available to it . First, the applicant
did not bring a section 145 review within the six -week period. This was the
express statutory mechanism designed for precisely this situation.
[39] Second, clause 22 of section F of the collective agreement provides a dispute
resolution procedure for disputes regarding the interpretation or application of the
collective agreement. The applicant did not invoke this procedure. Instead, the
applicant simply refused to respond to the compliance order and allowed the
matter to proceed to arbitration, where the award was issued against it.
[40] Third, the applicant could have approached the SALGBC seeking exemption
from or modification of clause 18.1 of the collective agreement if it genuinely
believed that clause to be unlawful or inapplicable. There is no evidence of such
an approach.
[41] The availability of these alternatives demonstrates that the present application is
not the only avenue through which the applicant could have addressed its
concerns. By bypassing the prescribed procedures, the applicant has created the
very delay it now asks the Court to overlook.
Prejudice to the Individual Respondents
[42] By the time this application was brought (May 2023), the individual respondents
had been employed by the applicant for periods ranging from 7 to 13 years. The
compliance order was issued in February 2022, and the arbitration award in July
2022. The respondents received their salaries throughout this period and
continue to render services.
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[43] The applicant seeks a declarat ory order that the appointments are unlawful and
that such declaration operates prospectively, so that the individual respondents
are not divested of past remuneration. This, according to the applicant, minimises
the financial prejudice to the individual respondents. However, prejudice extends
beyond financial loss. The individual respondents have been denied certainty
regarding their employment status for an extended period. In fact, the use of the
respondents on continuous fi xed-term contracts constitutes an abuse over many
years. Allowing the applicant to raise this challenge of unlawfulness after such
delays compounds this prejudice. The respondents obtained finality regarding
their employment when the arbitration award was issued, and to now allow this
application will severely prejudice the respondents.
Prospects of Success on the Merits
[44] The applicant's prospects of success on the merits appear, on examination, to be
limited. The applicant contends that the appointments , the contract renewals and
the contracts are unlawful. However, examining the factual matrix , the following
is evident:
44.1. The first to fourth respondents were appointed pursuant to published
advertisements and in accordance with the applicant's stated programmes
(Graduate Development Programme, Learner Development Programme,
and, in respect to the fifth respondent , in a temporary administrative
position).
44.2. The individual respondents' contracts were expressly fixed- term contracts.
These contracts were lawfully concluded under the LRA, subject to
compliance with section 198B (which prohibits abuse of successive fixed-
term contracts).
44.3. The individual respondents’ contracts were continuously extended or
renewed by abusing fixed-term contracts. This is not a situation where the
applicant appointed them permanently without justification, but rather
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where the applicant persistently renewed and abused fixed- term
arrangements for its own operational reasons.
[45] The applicant's argument is that the positions were not of those envisaged by
clause 18.1 of the collective agreement, i.e., 'by their very nature permanent
positions'. This contention is made on the basis that clause 18.1, properly
interpreted, excludes positions that do not feature on the staff establishment. Yet,
the applicant at no stage referred to a dispute regarding the interpretation and/or
application of this provision in the collective agreement. This Court has serious
doubts whether such an inter pretation, properly interpreted, would be in line with
the applicant’s interpretation. The applicant's prospects of success on this
interpretation question are highly contestable and depend on factual findings
about the nature of the posts and the intent of clause 18.1. However, this
interpretation question is precisely the type of matter the collective agreement's
own dispute resolution procedures were designed to address. By bypassing
clause 22 [section F], the applicant has also bypassed the prescribed process
established to resolve this very question.
The Context of Abuse
[46] Against this lies a troubling factual context. The applicant has permitted the
individual respondents to work on successive month- to-month or short-term fixed
contracts for some 8 to 1 5 years. Some of the individual respondents have
completed their training (obtaining National Diplomas, trade tests, and
professional qualifications). They now work, for all intents and purposes, as
permanent members of staff , i.e., e lectricians and an administrative officer
performing regular functions to the benefit of the applicant.
[47] This arrangement is clearly in breach of section 198B of the LRA. Section 198B
(3) permits fixed-term contracts of longer than three months only if "the nature of
the work for which the employee is employed is of a limited or definite duration"
the work for which the employee is employed is of a limited or definite duration"
or the employer can demonstrate "any other justifiable reason” . When an
19
employee has been in a position for over a decade, completing qualifications and
performing regular duties, neither condition is satisfied.
[48] The applicant's predicament is of its own making. Having engaged in this
prolonged abuse, the applicant now seeks a Court declaration that its abuse of
fixed-term contracts was unlawful and that the individual respondents' claims to
permanent employment (whether through section 198B deeming or through
clause 18.1) should be rejected.
[49] This context affects the Court's assessment of the ‘ interests of justice’. While the
interests of justice in appropriate and deserving matters favou r allowing delayed
applications to proceed, it cannot favour declaring years of abuse to now, years
later, to be unlawful and as such causing the individual respondents to lose their
employment.
Interests of Justice
[50] Having established that the delay is substantial and inadequately explained, the
Court must consider whether, nonetheless, the interests of justice favou r hearing
the application. The applicant submits that public law duties, accountability, and
transparency require that the Court investigate the lawfulness of the applicant's
decisions. The applicant invokes section 7(2) of the Constitution (duty to respect,
promote, and fulfil rights), section 195 of the Constitution (values of accountability
and transparency in public administration), and section 172(1)(a) of the
Constitution (the Court's power to declare conduct invalid if inconsistent with the
Constitution).
[51] These are weighty considerations. Organs of state are indeed bound by the
Constitution and by law. Where an organ of state believes it has acted unlawfully,
there is merit in permitting it an opportunity to seek correction through the courts.
However, these constitutional imperatives do not override the statutory
framework of the LRA and the requirement of seeking relief within a reasonable
period. If they did, the specific timeframes in the LRA —six weeks for reviews, 30
20
days for dismissal referrals, 90 days for unfair labour practice referrals —would
become advisory rather than binding. This cannot be correct.
[52] Section 210 of the LRA provides that where there is a conflict between the LRA
and other law (save the Constitution), the LRA prevails. This reflects Parliament's
intent that labour law shall not be subordinated to other statutory regimes. But
section 210 does not authori se the Courts to override the LRA's own timeframes
unless same is contrary to the constitutional principles.
[53] Moreover, the applicant had alternative remedies at its disposal. The applicant
could have sought condonation for late review under section 145. The applicant
could have engaged the collective agreement's dispute procedures. The
applicant could have sought declaratory relief within a reasonable timeframe
shortly after receiving the award. None of these avenues were pursued.
[54] The interests of justice encompass multiple considerations:
54.1. The interest in permitting public bodies to correct genuine
unlawfulness.
54.2. The interest in finality and respect for concluded proceedings.
54.3. The interest in protecting respondents from prolonged uncertainty
and prejudicial delay.
54.4. The interest in maintaining the temporal integrity of the LRA's
prescribed framework.
54.5. The interest in preventing abuse of the courts' discretion by parties
who ignored statutory procedures.
[55] Weighing these interests holistically, they do not favour permitting this application
to proceed. While the applicant's concern regarding potential unlawfulness is not
frivolous, the applicant's failure to act timeously, combined with the availability of
21
alternative procedures, means that permitting this application would effectively
allow disregard for the statutory framework.
[56] Furthermore, the applicant has not offered evidence that it could not have
investigated these matters with greater urgency. The advice from counsel
(sought within six weeks) established the legal framework for analysis. The
administrative transition, while real, does not explain a nine-month delay after the
legal position had been clarified.
The statutory framework and section 198B
[57] Although the application is dismissed on procedural grounds, it is appropriate to
note that the substantive legal framework already accommodates the applicant's
concerns regarding the abuse of fixed- term contracts. Section 198B of the LRA
provides that employment in terms of a fixed-term contract concluded or renewed
in breach of section 198B (3) is "deemed to be of indefinite duration” . The
individual respondents’ employment is therefore already deemed to be of
indefinite duration as a matter of law.
[58] The applicant cannot use the C ourts to circumvent section 198B by obtaining a
declaration that the respondents' employment was unlawful when, on the facts,
section 198B of the LRA deems it otherwise.
Collective Agreement and Clause 18.1
[59] The applicant also contends that clause 18.1 of the collective agreement, which
requires permanent appointment to permanent positions, was itself unlawful or
inapplicable. Clause 18.1 reads:
‘All appointments into positions that are by their very nature permanent
positions below Sections 54A and 56 shall be on a permanent basis
except for the positions that are linked to the term of office of the political
office bearers, sections 54A and 56 managers.’
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[60] This clause is unambiguous. It reflects a settled agreement between SALGA (the
employer organi sation to which the applicant belongs), SAMWU, and IMATU.
The applicant does not contend that it did not agree to this clause or that it is
unconstitutional. The applicant's position appears to be that the individual
respondents' positions are not "by their very nature permanent positions" and
therefore clause 18.1 does not apply. This is a question of interpretation, not of
legality. It is precisely the type of di spute that clause 22 (section F) of the
collective agreement's dispute resolution procedure was designed to address.
[61] Had the applicant invoked clause 22, a neutral dispute resolution body would
have interpreted clause 18.1 and assessed whether the individual respondents'
positions fell within its scope. The applicant chose not to do so. This was another
procedural avenue that the applicant abandoned in favou r of the delayed
application now before this Court.
Conclusion
[62] For the reasons set out above, the application cannot proceed. The delay in
approaching this Court is substantial, the explanation is inadequate, and the
interests of justice do not favou r hearing the merits of the application. This Court
cannot permit an applicant to ignore prescribed procedures and to seek relief by
a much belated application for a declaratory order.
[63] The Court recogni ses that the applicant has engaged in a prolonged pattern of
employing respondents on successive fixed- term contracts spanning 8 to 15
years. This pattern is troubling and likely in breach of section 198B. The
applicant's failure to seek a review of the arbitration award within the prescribed
timeframe means the award is now final and binding. The applicant is therefore
obliged to comply with the award by ensuring that the necessary approval or
endorsement is obtained from the council, and the staff establishment is updated
to make provision for the permanent posts of the respondents.
Costs
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[64] In terms of the provisions of section 162(1) of the LRA, this court has wide
discretion when it comes to the issue of costs. The court is mindful of the dictum
of the Constitutional Court in Zungu v Premier of the Province of KwaZulu- Natal
& others
11 when it comes to the issue of costs in employment disputes.
[65] Although this application has been unsuccessful, the Court notes that the
respondents were represented by an official from IMATU, which militates against
a costs award. It is therefore not necessary for this Court to consider the issue of
costs any further.
[66] In the premises, the following order is made:
Order
1. The application is dismissed.
2. The dismissal is on the ground that the application was not brought within
a reasonable time, and the interests of justice do not favour it being heard.
3. The applicant is ordered to comply with the arbitration award within 30
days from the date of this judgment.
4. No order is made as to costs.
_____________________________
C. de Kock
Acting Judge of the Labour Court of South Africa
11 (2018) 39 ILJ 523 (CC); [2018] 4 BLLR 323 (CC).
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Appearances:
For the Applicant: LA Roux
Instructed by: Lessing & Co Attorneys Inc.
For the First to Fifth Respondents: S Windvogel from IMATU