THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case No: JR38/2024
In the matter between:
DIHLABENG LOCAL MUNICIPALITY Applicant
and
THE SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL (SALGBC) First Respondent
THE SOUTH AFRICAN LOCAL GOVERNMENT
ASSOCIATON (SALGA) Second Respondent
INDEPENDENT MUNICIPAL AND ALLIED
TRADE UNION (IMATU) Third Respondent
SOUTH AFRICAN MUNICIPAL WORKERS
UNION (SAMWU) Fourth Respondent
Heard: 20 August 2025
2
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 12 November 2025.
______________________________________________________________________
JUDGMENT
DE KOCK, AJ
Introduction
[1] This matter c omes before this Court as an application to declare clause 18.1 of
the collective agreement 1 (2023 agreement) unlawful. The application is brought
in terms of the provisions of section 158(1)(a)(iv) and/or section 158(1)(g) and/or
section 158(1)(h) of the Labour Relations Act2 (LRA) and on the basis that clause
18.1 is inconsistent with (i) the applicable provisions of the Local Government:
Municipal Systems Act
3 (MSA) and (ii) the applicant’s Employment Practice
Policy (EPP) and is thus unlawful. The application is further brought in terms of
the provisions of the Promotion of Administrative Justice Act
4 (PAJA), or on the
principle of legality.
Collective Agreement
[2] The applicant seeks clause 18.1 of the 2023 collective agreement to be declared
unlawful. Clause 18.1 of the 2023 agreement reads as follows:
“18. APPOINTMENTS AND PROMOTIONS
18.1 All appointments into positions that are by their very nature permanent
positions below Sections 54A and 56 shall be on permanent basis except
1 Collective Agreement for the Free State Division of the SALGB 14 July 2023.
2 Act 66 of 1995, as amended.
3 Act 32 of 2000.
4 Act 3 of 2002.
3
for the positions that are linked to the term of political office in terms of
S24(1) of the Municipal Structures Act 117 of 1998.”
[3] The Court, however, notes that the parties also concluded a collective agreement
in 2016 5 (2016 agreement), which contains a similar clause 18.1, albeit the
wording slightly differs from the 2023 agreement:
“18. APPOINTMENTS/PROMOTIONS
18.1 All appointments into positions that are by their very nature permanent
positions below Sections 54A and 56 shall be on permanent basis except
for the positions that are linked to the term of office of the political office
bearers, sections 54A and 56 managers.”
[4] The relevance of the 2016 agreement versus the 2023 agreement will be
addressed below in relation to the delay in bringing the application for a
declarator to this Court. T he two clauses are essentially the same insofar as it
requires all appointments into positions that are by their very nature permanent
positions shall be on a permanent basis.
Nature of the application
[5] The applicant brings this application in terms of section 158(1)(a)(iv) , se ction
158(1)(g), and section 158(1)((h) of the LRA. Section 158(1)(a)(iv) provides that
the Labour Court may make a declaratory order. Section 158(1)(g) provides that
the Labour Court may “ review any decision taken or any act performed by the
State in its capacity as employer, on such grounds as are permissible in law ”.
Section 158(1)(h) provides that the Labour Court may review any decision taken
or any act performed by the State in its capacity as employer, on grounds
permissible in law.
[6] This Court is satisfied that section 158(1)(a)(iv) read with section 158(1)(g) is
applicable. The conclusion of a collective agreement under the auspices of the
SALGBC is a function provided for in terms of section 23 read with section 31 of
5 Collective Agreement for the Free State Division of the SALGB 27 October 2016.
4
the LRA, and a party has the right to seek review of the provision contained in
the collective agreement on the grounds of legality.
[7] This Court also considers the application in terms of s ection 158(1)(h), on the
basis that SALGA, representing organs of State, concluded a collective
agreement with IMATU and SAMWU as an act performed by the State in its
capacity as employer.
PAJA review or principle of legality
[8] This Court must determine whether the application is governed by PAJA or the
principle of legality. The applicant brought the application in terms of PA JA, or
alternatively, on the principle of legality.
[9] The starting point in determining is the definition of “administrative action” in
section 1 of PAJA. Section 1 reads as follows:
“1. Definitions
In this Act, unless the context indicates otherwise—"administrative action" means
any decision taken, or any failure to take a decision, by—
(a) an organ of state, when—
(i) exercising a power in terms of the Constitution or a
provincial constitution; or
(ii) exercising a public power or performing a public function in
terms of any legislation; or
(b) a natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function in terms of
an empowering provision,
which adversely affects the rights of any person and which has a
direct, external legal effect, but does not include…”
[10] The exclusions in section 1(b)(aa) to (ii) are not relevant and have not been
included above. This Court already found above that SALGA, in concluding the
agreement, performed an act of the State as an employer. The mere fact that
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SALGA performed an act of the State, as an employer , does not automatically
lead to the conclusion that the act so performed constitutes “administrative
action” in terms of PAJA. The conclusion of a collective agreement is based on
agreement between parties in a bargaining council founded on an agreement
under the LRA. Although SALGA represented organs of S tate, the legal effect,
binding consequences, and enforceability of such an agreement are subject to
the LRA, not PAJA.
[11] The Constitutional Court in Association of Mineworkers and Construction Union
and Others v Chamber of Mines of South Africa and Others
6 (AMCU) stated:
“[83] That their exercise of power entailed public law consequences does
not mean that it was “administrative action” as defined in PAJA.
This is because the decision to conclude an agreement that the
statute, upon fulfilment of the conditions it specified, extends to
non-parties, was not “of an administrative nature”. The parties were
not administering policy or statutory powers; they were agreeing
amongst themselves. Their agreement had wide- ranging public
consequences. But in concluding it they did not act administratively.
Their conduct was public, but not administrative, in nature. ”
(footnotes omitted).
[12] Based on AMCU, this Court finds that concluding the 2023 agreement was not
“of an administrative nature” and therefore PAJA does not apply. The application
must be determined on the principle of legality , which is sufficiently catered for in
an application brought under section 158(1)(a)(iv) read with section 158(1)(g)
and section 158(1)(h) of the LRA
[13] The empowering provision for collective agreements is the LRA. The applicant
has conceded that the collective agreement was concluded in terms of the LRA
6 [2017] 38 ILJ 831 (CC); 2017 (3) SA 242 (CC); 2017 (6) BCLR 700 (CC); [2017] 7 BLLR 641 (CC) at
paras 69-70.
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and the relevant legislation governing collective agreements is labour legislation
and not PAJA.
Procedural irregularity regarding notice or motion
[14] The applicant delivered a notice of motion seeking the following relief:
14.1 That the employment of 265 temporary employees be declared illegal,
alternatively void ab origine.
14.2 That the applicant be exempted from compliance with the provision of
clause 18.1 of the 2023 agreement.
14.3 That clause 18.1 of the 2023 agreement is illegal or void ab origine and
must be set aside in respect of its applicability to the applicant.
[15] The founding affidavit contains averments directly supporting this notice of
motion. The applicant, in paragraph 6.3 of the founding affidavit , states that the
application is primarily based upon employment aspects since the applicant’s
position is that of an employer and the position of several employees will be
relevant in the determination of this issue. This averment is directly linked to the
relief sought in the notice of motion in respect of the 265 employees.
[16] The applicant, in paragraph 20, sets out the employees appointed on fixed term
contracts, or temporarily appointed in positions of temporary workers, learners,
graduates, and interns. The total number of employees so appointed is stated to
be 265 employees. The employment of these employees, with the employees’
details not being provided as to when they were appointed, how long they have
been appointed and what their current status is, is blamed on the insistence or
interference by an erstwhile Mayor, which was done without compliance with the
applicant’s EPP (Employment Practice Policy and Recruitment Selection and
Appointment Policy).
[17] In paragraphs 30 to 34, the applicant refers to a compliance order that was
issued on 14 June 2023 by the Regional Secretary, as well as to an arbitration
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award issued 30 August 2023 following the compliance order not having been
complied with. In paragraph 34 the applicant refers specifically to the 265
temporary employees who are in a similar position to the six employees that
were referred to in the compliance order and the arbitration award.
[18] In paragraph 35 the applicant seeks an order declaring the decisions that led to
the employment of such employees and/or their retention in the applicant’s
employment structures to be declared unlawful and to be set aside. Again, this
refers specifically to the relief sought in the Notice of Motion with regard the
appointments of the 265 employees . The applicant does not seek in this
paragraph for clause 18.1 to be declared unlawful but that the decisions that led
to the employment of the 265 employees and/or their retention must be declared
unlawful.
[19] The applicant continues in paragraphs 36 and 37 to state that the Regional
Secretary was not empowered to issue the compliance order and that both the
compliance order and the award are null and void. The applicant’s contentions in
this regard form s the subject matter of another application referred by the
applicant to this Court. If the intention of the applicant was to declare clause 18.1
unlawful in this current application before this Court, it is unclear why the
applicant referred to the compliance order and the arbitration award other than to
find that these averments are made in support of the relief sought in the Notice of
Motion.
[20] The applicant, at paragraph 53, states that the arbitration award in respect of the
five members of IMATU was taken on review to the Labour Court in terms of
section 145(1) of the LRA. No details of this application were provided.
[21] It is, however, important to note that the applicant states in clear terms that this
application focusses on the plight of the applicant and the 265 other temporary
employees. In paragraph 54, the applicant states that their position is that they
employees. In paragraph 54, the applicant states that their position is that they
simply cannot appoint 265 employees to permanent positions due to budgetary
constraints which will hamper the applicant at the time of deposing the founding
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affidavit. Clearly, these averments are directly relevant to the relief sought in the
Notice of Motion regarding the 265 employees.
[22] The applicant, at paragraph 57.7 of the founding affidavit, states that the
temporary employees are either occupying posts which exist on the applicant’s
staff establishment for which posts no job description had been approved yet, or
simply occupy positions which do not exist on the applicant’s staff establishment.
The Court notes that no details are given as to which of these temporary
employees occupies posts on the staff establishment with no job description, and
which employees occupy position that do not exist on the staff establishment.
This Court is therefore asked to simply accept the bare allegation with no
supporting proof.
[23] In paragraph 57.8 the applicant makes a bare allegation that some of the
temporary employees might not be appointable for various reasons, without
identifying what those reasons are. In paragraph 58 the applicant states that the
appointment of these temporary employees into permanent positions would be in
contravention of the MSA and the applicant’s EPP and will thus be unlawful.
[24] In paragraph 66 the applicant seeks to have the appointment of the 265
employees declared as unlawful and be set aside. This is despite the applicant’s
failure to join these 265 employees to this application and without providing this
Court with details as to their initial appointments and their current employment
status. In paragraph 68, the applicant seeks to have the appointment order of the
commissioner to be set aside. This is despite the applicant already having
instituted separate legal proceedings r egarding the compliance order and the
arbitration award. In paragraph 78 the applicants states that the impact on the
budget of the applicant, should clause 18.1 not be set aside for the applicant,
would be insurmountable for the applicant.
[25] The above are just some averments made in the founding affidavit in support of
[25] The above are just some averments made in the founding affidavit in support of
the Notice of Motion. IMATU and SAMWU were required to file opposing
affidavits in response to the relief sought in the Notice of Motion and the founding
9
affidavit, which they did. At no stage before the opposing affidavits were
delivered did the applicant indicate that the wrong Notice of Motion was used and
there was no attempt made to seek leave of this Court, in the absence of
reaching an agreement with IMATU and SAMWU, to amend the Notice of Motion.
[26] IMATU, in their opposing affidavit, raised various points in limine. IMATU refers in
specific to prayer 1 of the Notice of Motion, which seeks to declare the
employment of 265 unidentified employees to be illegal, alternatively void ab
origine. IMATU states that these 265 employees are not identified anywhere, nor
are they cited as respondents. In respect of prayer 2, wherein the applicant
seeks an exemption from a provision in a collective agreement, IMATU states
that section 30(1)(k) of the LRA provides for applications for exemptions in terms
of the bargaining council’s constitution, and that section 24 of the collective
agreement sets out the exemption procedure. The Labour Court , according to
IMATU’s contentions, lacks jurisdiction in respect of prayer 2.
[27] In respect of prayer 3, which is that the applicant seeks an order declaring clause
18.1 of the collective agreement to be illegal or void ab origine only in respect of
the applicant, IMATU states that the setting aside of clause 18.1 cannot be
applied only to the applicant, as it would apply to all entities in local government,
none of whom are cited or joined.
[28] SAMWU similarly delivered an opposing affidavit and took issue with the Notice
of Motion. SAMWU takes serious issue with the first prayer, which involves an
order being sought that the employment of 265 temporary employees be
declared illegal, alternatively being void ab origine. SAMWU takes issue with the
fact that the employees were not identified and that they were accordingly not
joined and cited. SAMWU also takes issue that no case has been made out at all
for the declaratory relief that the applicant seeks in respect of the 265
employees.
for the declaratory relief that the applicant seeks in respect of the 265
employees.
[29] SAMWU raised similar concerns to that of IMATU in respect of the second prayer
contained in the Notice of Motion, i.e., regarding the relief sought that the
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applicant be exempted from compliance with clause 18.1. SAMWU again raised
similar concerns regarding prayer 3 wherein the applicant seeks relief in respect
of its applicability only in respect of the applicant.
[30] The applicant, faced with these various challenges raised in the opposing
affidavits of IMATU and SAMWU, delivered a replying affidavit wherein the
applicant, in essence, unilaterally attempts to amend the Notice of Motion initially
delivered. The basis of doing this in the replying affidavit , according to the
applicant, is that the applicant only reali sed after receiving the two respective
opposing affidavits that the incorrect N otice of Motion was delivered. The alleged
correct Notice of Motion that should have been issued was an amended Notice of
Motion, which the applicant attached to the replying affidavit.
[31] This Court must therefore address two issues arising from the replying affidavit.
The first issue is whether the applicant is allowed to amend its Notice of Motion in
a replying affidavit in the absence of agreement having been reached with the
opposing parties and filing an amended N otice of M otion and absence an
agreement, without the leave of this Court. This Court was at no stage
approached with an application for leave to amend the N otice of M otion. The
second issue, should the first issue be answered in the affirmative, is whether the
applicant’s explanation of delivering the wrong N otice of M otion is acceptable to
this Court.
[32] This Court, without hesitation, rejects the allegation that the wrong N otice of
Motion was delivered. This is so given the contents of the founding affidavit,
which speaks directly to the relief sought in the N otice of M otion. If the wrong
Notice of Motion was delivered, there is no explanation why the founding affidavit
addresses the compliance order, the arbitration award, and the reference to the
265 employees. The N otice of M otion was delivered, supported by a founding
265 employees. The N otice of M otion was delivered, supported by a founding
affidavit and the applicant is bound to the N otice of Motion filed in the absence of
having sought leave to amend the N otice of M otion, and thereafter having
delivered an amended Notice of Motion.
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[33] An applicant in motion proceedings is not entitled to raise new grounds in its
replying affidavit, or to amend a N otice of M otion already delivered without
seeking leave of this Court to do so. The applicant, having reali sed the many
shortcomings in the initial N otice of Motion, simply abandoned two of its prayers
and in respect of the third prayer, unilaterally amends the prayer from seeking
relief only in respect of the applicant to now seeking a declarator that clause 18.1
is unlawful. In other words, the initial pleaded prayer 3 is amended in the replying
affidavit.
[34] The applicant is not allowed to amend the initial relief sought by delivery of a
replying affidavit. The applicant is bound to its initial N otice of Motion, as
supported by the founding affidavit. The fact that the applicant has abandoned
prayer 1 and 2 is indicative of the applicant realising that the relief sought was
not sustainable for obvious reasons, as addressed by IMATU and SAMWU in its
opposing affidavits. The Court therefore finds that, insofar as prayer 1 of the
notice of motion is concerned, the application is defective due to the 265
employees not having been joined as respondent parties, and the applicant’s
failure to provide this Court with the necessary facts to determine prayer 1. In
respect of prayer 2, the application cannot be determined as the issue of seeking
an exemption is specifically provided for in the LRA and in the constitution of the
SALGBC.
[35] The only relief that remains is whether clause 18.1 should be declared unlawful
only in respect of the applicant. This Court accepts IMATU and SAMWU’s
opposition to such relief, as this Court is not empowered to declare clause 18.1
unlawful only in respect of the applicant. Clause 18.1 is either unlawful in its
entirety, or it is not. The applicant, in any event, as already found above is not
entitled to change the relief that they are seeking in a replying affidavit.
entitled to change the relief that they are seeking in a replying affidavit.
[36] In any event, even if this Court was to allow the amendment of a Notice of Motion
in a replying affidavit, the applicant would face a further difficulty in respect of
asking this Court to declare clause 18.1 unlawful in the absence of all other
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municipalities having been cited and/or joined to these proceedings. This Court is
unable to grant such an order. All municipalities affected by clause 18.1 must be
allowed an opportunity to either support or oppose an application to declare
clause 18.1 unlawful. This Court must accept that S ALGA had a mandate to
conclude the 2016 and the 2023 agreements , but this does not mean that the
lawfulness of clause 18.1 can be determined only by those parties who signed
the 2023 agreement.
[37] SALGA has not opposed this application. However, this does not mean that
SALGA agreed, as the bargaining agent of all municipalities, that the application
can be applied to all municipalities and not only to the applicant, as per the
Notice of Motion. At the time that the replying affidavit was filed, pleadings closed
and SALGA was never afforded an opportunity to respond to the attempted
amendment of prayer 3 in the replying affidavit. The attempt to amend the Notice
of Motion, and in specific prayer 3 thereof, in the replying affidavit constitutes a
serious procedural irregularity and if accepted, will result in both SALGBC and
SALGA being bound by relief sought after the fact and not at the commencement
of the application insofar as clause 18.1 is to be declared unlawful in respect of
all municipalities and not only the applicant.
[38] The application, for this reason alone, must fail. The applicant, being bound to
the relief sought in the Notice of Motion, is not entitled to a declaratory order that
is only applicable to the applicant, as already found above. This Court therefore
does not accept the applicant’s attempt to amend its Notice of Motion in its
replying affidavit.
The joinder defect and prejudice to the 265 unidentified employees
[39] An independent threshold issue that independently warrants dismissal is the
applicant’s failure to join the 265 temporary employees who are directly and
substantially affected by the relief sought in the Notice of Motion. This defect
substantially affected by the relief sought in the Notice of Motion. This defect
operates on two levels: procedural and substantive.
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[40] Procedurally, the applicant seeks an order in prayer 1 declaring the employment
of 265 temporary employees as illegal, alternatively void ab origine. Yet these
265 employees have not been identified, nor cited as respondents. They were
not afforded an opportunity to present evidence, make submissions, or challenge
the characterisation of their employment status. This is a fundamental procedural
irregularity.
[41] Substantively, any declaration that clause 18.1 is unlawful (whether general or
specific to the applicant) has direct and immediate consequences for these 265
employees’ employment status and security. According to the applicant’s own
founding affidavit, if clause 18.1 is declared unlawful, the applicant would be
relieved of the obligation to permanently appoint these employees. The
declaration sought would thus potentially terminate or materially alter these
employees’ employment status and their contractual right to fair labour practice.
[42] In such circumstances, these 265 employees have a direct and substantial
interest in the outcome and must be joined to afford procedural fairness. The
applicant has failed to provide:
42.1 Identification details.
42.2 Appointment dates.
42.3 Contract durations.
42.4 Current employment status.
42.5 Which employees occupy posts within the staff establishment versus
outside the staff establishment.
42.6 Which employees might be “genuinely temporary” versus potentially
permanent.
[43] The failure to join the 265 employees prevents this Court from undertaking a
proper assessment of which, if any, of the 265 employees would be prejudiced
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and in what manner. It renders the application incapable of disposal without
causing substantial and unquantifiable prejudice to right -holders who have had
no opportunity to participate.
[44] Furthermore, the existence of 265 unidentified temporary employees suggests
potential systemic non- compliance with labour legislation and the MSA, which
reinforces the necessity for proper identification and joinder.
[45] Accordingly, this Court finds that the failure to join the 265 temporary employee s
constitutes an independent and fatal defect requiring the application to be
dismissed.
Legal Principles on Delay
[46] The applicant faces further insurmountable difficulties in this application. South
African administrative and procedural law recogni ses 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)(iv), section 158(1)(g) and section 158(1)(h) of the LRA.
[47] 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.
[48] In Associated Institutions Pension Fund v Van Zyl and Others
7, 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
7 2005 (2) SA 302; [2004] 4All SA 133 (SCA).
15
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…
…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…”
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[49] 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 Siqhaza8 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 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.”
8 [2020] ZAECGHC 42; [2020] 3 All SA 135 (ECG) at para 111 and 112.
17
[50] In Weltevrede Kwekery (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and others9 (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 s158(1)(g) to the same standard as set for the review of
arbitration awards in terms of s145 of the LRA, i.e. six weeks ( Rustenberg
Platinum Mines Ltd v Monnapula & o thers [2003] 9 B LLR 909 LC at para 34
page 914; Ruijgrok v Foschini (Pty) Ltd & another (1999) 20 ILJ 1284 LC at 1287
para 16-22).
5. The 2002 amendment to s158(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 s158(1)(g) was to the grounds of review and not the
time limit. I disagree. There is nothing in the wording of s158(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.
[51] The Labour Court in SACCAWU obo Manzana and others v Pick ‘n Pay,
Kimberley and others10 (SACCAWU) also held a reasonable time to be about six
weeks. In POPCRU obo Timla v M.A Nozigqwaba and Others11 the Court held as
follows:
9 (2006) 27 ILJ 182 (LC) at paras 4-6.
10 [2003] 10 BLLR 1065 (LC) at paras 14-5.
follows:
9 (2006) 27 ILJ 182 (LC) at paras 4-6.
10 [2003] 10 BLLR 1065 (LC) at paras 14-5.
11 Case No: JR773/2014 heard on 18 December 2014 and judgment delivered on 13 February 2015 at
para 5.
18
‘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).
[52] The Constitutional Court in Khumalo and Another v Member of the Executive
Council for Education: KwaZulu Natal 12 referred to the judgments of the Labour
Court in Weltevrede and SACCAWU stating that in some instances, in the
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. Nevertheless, 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
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
12 [2013] ZACC 49; (2014) 35 ILJ 613 (CC) at para 42 and fn 26.
19
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
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
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.”
[47] 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
20
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)
[53] Based on the aforesaid, this Court is of the view that the six week period set for
applications in terms of section 145 constitutes a guideline in determining
whether the application was brought within a reasonable time with some flexibility
based on the circumstances of each case.
[54] 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)(iv) and/or section 158(1)(g) and/or
section 158(1)(h) of the LRA. As to what is reasonable entails a factual enquiry
upon which a value judgment is made to the relevant circumstances, including
any explanation given for the delay.
13 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.
14
[55] The assessment of " reasonableness" requires a holistic consideration of ; t he
length and degree of delay; the explanation offered for the delay; prejudice to the
respondents, the prospects of success on the merits , 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.
13 Cora Hoexter and Glenn Penfold, Administrative Law in South Africa (Juta, 3ed, 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.
14 Gqwetha v Transkei Development Corporation Ltd and Others 2006 (2) SA 603 (SCA); [2006] 3 All SA
245 (SCA) at 612E-613A.
21
[56] The above principles must be applied to the matter at hand, as set out in the
paragraphs that follow.
Is there a delay in bringing the application?
[57] Having found that the application was correctly brought in terms of section
158(1)(a)(iv) read with section 158(1)(g) and/or section 158(1)(h) of the LRA, and
that the application must be considered as a legality review rather than a PA JA
review, this Court is required to determine whether there was a delay in bringing
the application. If so, whether the application was brought within a reasonable
period. This is so because section 158(1)(a)(iv) , section 158(1)(g) and section
158(1)(h) do not provide for a time limit in which such applications must be
brought, hence the requirement that it must be done within a reasonable time.
[58] The applicant’s case, relying on PA JA, is that the application was brought within
the prescribed 180 day -period provided for in section 7(1) of PAJA, alternatively
that it was brought within a reasonable time insofar as the legality principle is
applicable. This Court has already rejected the applicant’s reliance on PA JA.
This Court is, however, satisfied that bringing an application based on the legality
principle within a period of 180 days would be sufficient to conclude that it was
brought within a reasonable time.
[59] The applicant, however, faces a further difficulty regarding their submissions that
the application was brought within a reasonable time based on the legality
principle. In the absence of the 2016 agreement, this Court would have been
satisfied that there was no undue delay and that the application was brought
within a reasonable time from the conclusion of the 2023 agreement.
[60] However, the 2023 agreement cannot be considered in isolation in considering
whether there was an undue or unreasonable delay in bringing this application
seeking to declare clause 18.1 of the 2023 agreement unlawful. As stated above,
seeking to declare clause 18.1 of the 2023 agreement unlawful. As stated above,
the 2016 collective agreement contained the same or similar clause 18.1 of the
2023 agreement, which prescribed that all appointments into positions that are by
22
their very nature permanent positions shall be on permanent basis. The very
same clause was therefore in operation since 2016. This Court is now asked to
declare the same clause in the 2023 agreement as unlawful. This could have
disastrous consequences to the parties and their constituents because, by
implication, clause 18.1 of the 2016 agreement would also be unlawful should
this Court find the 2023 agreement unlawful.
[61] There is no evidence before this Court as to what the impact of declaring clause
18.1 of the 2023 agreement unlawful would be when by implication clause 18.1
of the 2016 agreement would also have been unlawful. This is not an issue that
this Court is required to determine, but it is an issue that must be considered
within the context of whether the application was brought within a reasonable
time.
[62] The applicant was aware, or ought reasonably have been aware of the 2016
agreement and despite its existence, the applicant failed to challenge the
lawfulness of clause 18.1 of the 2016 agreement, which was in existence from
2016 to 2023 when the 2023 agreement was concluded. In fact, the deponent to
the founding affidavit concedes that clause 18 has the same effect as the older
clause 18 which applied during the previous years when the collective agreement
was signed and enforced to certain extents. In other words, the alleged
unlawfulness of clause 18.1 of the 2016 agreement was already effective, and
probably implemented by all municipalities for some seven years prior to the
2023 agreement.
[63] The applicant fails to explain why, if they genuinely believed that clause 18.1 is
unlawful, they did not challenge the 2016 agreement and why they failed to
challenge the extension of the 2016 agreement, which came to an end in June
2020 and was extended to the end of June 2023. The applicant waited until 11
January 2024 to bring this application, over seven years after clause 18.1 of the
2016 agreement was agreed upon, and implemented, in the Local Government
2016 agreement was agreed upon, and implemented, in the Local Government
Sector.
23
[64] Insofar as the deponent states that the applicant was informed of the 2023
agreement on or about 20 July 2023, there is a deafening silence as to why the
applicant only acted upon becoming aware of the 2023 agreement seeking to
declare the very same clause that has been in existence since 2016 as unlawful.
This Court is unable to conclude, based on the evidence before this Court, that
the applicant was not aware of the 2016 agreement and the extension of that
agreement in 2020. The applicant’s argument that the application was brought
within a reasonable time, citing becoming aware of the 2023 agreement on or
about 20 July 2023, is therefore rejected by this Court. If the applicant wished to
challenge the lawfulness of clause 18.1, they ought to have done so in 2016
when the agreement was concluded and implemented.
[65] The 2023 agreement, insofar as clause 18.1 is concerned, did not create a new
obligation on the applicant, as the very same clause was already binding on the
applicant since 2016. Bringing this application on 11 January 2024 can therefore
not be held to have been brought within a reasonable time from the date that the
applicant was aware, or became aware, of the provisions of clause 18.1.
[66] The applicant concedes in their founding affidavit that the 2023 agreement was
concluded under the auspices of the SALGBC and as such in terms of the LRA.
The same applies to the 2016 agreement, and the extension of the 2016
agreement, in June 2020, to the end of June 2023.
[67] The applicant faces another hurdle in bringing this application and relying on the
2023 agreement. The deponent to the founding affidavit refers to a compliance
order issued by the regional secretary of the SALGB C on 14 June 2023. This
Court notes that this compliance order is challenged in a separate application
before this Court . This Court cannot therefore entertain the issue in this
application. However, insofar as the deponent relies on the compliance order
application. However, insofar as the deponent relies on the compliance order
issued, it is critically important to note that the compliance order was issued in
accordance with the 2016 agreement and not in accordance with the 2023
agreement. The 2023 agreement has not been concluded, and implemented, at
24
the time when the compliance order was issued on 14 June 2023. On the
applicant’s own version, the 2023 agreement was only concluded on 20 July
2023, more than a month after the compliance order was issued on 14 June
2023. In any event, the compliance order states very clearly that the compliance
order is issued in terms of the 2016 agreement. This clearly supports the Court’s
finding above that the application was not brought within a reasonable time, as
the application was brought into action following the compliance order issued in
terms of the 2016 agreement.
[68] The Court considered the question whether the compliance order was the trigger
of this application. Although the application may have been triggered by the
compliance order of June 2023, it does not mean that the applicant was not
aware of clause 18.1 in the 2016 agreement and that such clause would have
created obligations on the applican t since 2016. Instead, it appears that despite
clause 18.1 being in existence since 2016, the applicant abused the fixed term
employment of staff in direct contradiction w ith the collective agreement, section
198B and the MSA. It is not sufficient for the applicant to rely on the compliance
order, seeking to enforce the collective agreement, in avoiding the delay in
challenging clause 18.1. This Court is further not privy to evidence whether there
was previous compliance orders issued in terms of clause 18.1 and will not
speculate that June 2023 was the first time that there was an attempt to enforce
clause 18.1 of the collective agreement.
[69] The applicant, in this Court’s view, purposefully chose to argue the “delay” in this
application by relying on the 2023 agreement , and not on the compliance order
being the trigger that led to this application, and purposefully failed to explain why
they failed to address t he delay based on the 2016 agreement. The reasons for
this are obvious, as the 2023 agreement conveniently provided a basis to argue
this are obvious, as the 2023 agreement conveniently provided a basis to argue
that the application was brought within a reasonable time. Be that as it may, this
Court already rejected the reliance on the 2023 agreement as a basis to support
their contention that the application was brought within a reasonable time.
25
[70] Accordingly, the Court finds that the delay in bringing this application constitutes
a further ground on which the application must fail.
Overall delay analysis: Multiple measurements all support dismissal
[71] This Court must explicitly address the timing of this application by reference to
multiple potential measurement points. The first measurement point is that the
applicant had knowledge of clause 18.1 in July 2016 when the collective
agreement was concluded. The application was filed on 11 January 2024,
approximately eight years after clause 18.1 became legally binding on the
applicant. This delay is manifestly unreasonable.
[72] The second measurement point is the extension of the 2016 agreement in June
2020. This application was filed approximately three and a half years after the
2016 agreement was extended. This constitutes a substantially excessive delay.
[73] The third measurement point is from 20 July 2023 when the 2023 agreement was
concluded. The application was filed approximately six months after the 2023
agreement was concluded. While the six months alone might fall within
reasonable bounds, this measurement is improper because the 2023 agreement
is not a fresh “wrong”; it merely continued the 2016 obligation.
[74] The fourth measurement point is the arbitration award issued on 30 August 2023.
According to the applicant, the award was challenged in a separate review
application in terms of section 145(1). This application was filed on 11 January
2024. This Court has not been informed of the progress of the section 145-
review.
[75] On any measurement used, the application falls outside the zone of reasonable
temporal proximity. Even the most charitable measurement, being from the 2023
agreement, six months is improper because the 2023 agreement is not a fresh
“wrong”. The most relevant measurements, from 2016, from the 20 20 extension,
or from the award deadline all demonstrate substantial delay.
26
[76] This Court therefore finds that the application was not brought within a
reasonable time.
Interests of justice: balancing legality and finality
[77] The Constitutional Court in Khumalo recognised that while Courts should be slow
to allow procedural obstacles to prevent examination of alleged unlawfulness,
this does not mean the Constitution has dispensed with the requirement that
review proceedings be brought without undue delay. This Court must exercise its
discretion in deciding whether the interests of justice favour overlooking the
substantial delay.
[78] There are several considerations operating against exercising discretion on the
applicant’s favour. The first critical consideration is the prejudice to the
respondents, and more specifically the SALGBC and SALGA should this Court
allow the applicant’s attempt to amend the relief it seeks in the replying affidavit.
Insofar as this Court must consider the application based on the Notice of
Motion, the Court already found that an application seeking for unlawfulness only
in respect of the applicant is not all owed. There is also the prejudice to the 265
unidentified temporary employees who have not been joined, and also the failure
to join other municipalities.
[79] If this application is entertained despite the delay, these 265 temporary
employees face an uncertain position, and their employment status could be
retroactively destabilised in the absence of them having been joined or given the
opportunity to participate. The delay has compounded prejudice to these 265
employees who potentially have been employed, on a temporary basis, for years.
[80] Another crucial consideration is the requirement for finality and certainty. The
applicant has operated under clause 18.1 since the 2016 agreement without a
challenge. Other municipalities potentially might have relied on clause 18.1 in
good faith for the same period. A belated declaration would unravel expectations
27
across the entire Free State local government sector. The public interest in
certainty is substantial.
[81] A further consideration is that the applicant ’s actions are reactive rather than
principled opposition. Had clause 18.1 been manifestly unlawful, the applicant’s
silence for seven years is difficult to reconcile with commitment to legality.
Mobilisation only after enforcement action suggests strategic litigation motivated
by budgetary constraints rather than a principled legal challenge.
[82] A further consideration is that the applicant had prescribed procedures available
and deliberately bypassed them. A Court should not reward this non- compliance
by entertaining a belated application. This undermines respect for the LRA’s
temporal and procedural architecture. The Court in any event notes that the
arbitration award has been taken on review in terms of section 145(1).
[83] It is this Court’s finding that the interests of justice do not favour overlooking the
delay. The applicant cannot take shelter in constitutional values regarding legality
reviews when the applicant has itself engaged in deliberate procedural non-
compliance and delays. This is not a case where an applicant acted reasonably
and promptly but was caught by the passage of time. It is rather a case where
the applicant had multiple timely and/or alternative remedies available and
elected not to pursue them.
[84] To overlook the delay would incentivise parties to bypass prescribed procedures,
allow deadlines to pass, and resort to delayed declaratory actions when strategic
interests align. This would undermine the temporal architecture of the LRA and
weaken the finality of disputes required in labour relations.
[85] Accordingly, the interest of justice favour maintaining the delay requirement as a
procedural constraint. The application must fail on this ground.
Substantive analysis whether clause 18.1 unlawful?
28
[86] Notwithstanding the Court’s findings on delay, joinder and procedural
irregularities with the Notice of Motion, and in deference to the principle that
Courts should examine alleged unlawfulness, this Court will address the
applicant’s substantive case regarding clause 18.1’s lawfulness. This analysis
provides guidance in an attempt to clarify legal principles regarding the alleged
unlawfulness of clause 18.1.
[87] The applicant contends that clause 18.1 of the 2023 agreement is unlawful
because it is contrary to the MSA and the EPP. To determine whether clause
18.1 is unlawful requires interpretation of the clause. The applicant failed to refer
a dispute to the SALGBC seeking proper interpretation. Is clause 18.1 applicable
to all temporary employees employed into posts on the staff establishment, or to
all temporary employees employed by the applicant regardless of whether posts
are on the establishment ? This Court should not d etermine interpretation
disputes when prescribed procedures exist in the collective agreements and the
LRA.
[88] Nevertheless, this Court will address the substantive contention. The proper
interpretation of clause 18.1 is that it excludes employees genuinely employed in
temporary positions in line with the MSA and applicable labour legislation. Clause
6.4 of the EPP provides for the appointment of employees on a fixed term and
temporary basis. Clause 6.4.2 provides that an employee in a post in a
temporary position may only be appointed subject to clause 8 of Circular 1/2016,
which means that such appointment may not exceed six months.
[89] Once temporary employment exceeds the permitted maximum duration, the
employee is by operation of law employed in a position of a permanent nature.
[90] Clause 18.1 cannot be unlawful when it requires only that temporary employees
employed in positions of a permanent nature be employed permanently. An
employee employed as a temporary employee in accordance with the EPP
employee employed as a temporary employee in accordance with the EPP
cannot be said to be employed in positions of a permanent nature. Once their
appointment exceeds the maximum duration, clause 18.1 applies.
29
[91] Clause 18.1 gives effect to the elementary principle of South African employment
law against disguised employment. This Court accepts IMATU’s argument in this
regard. The provisions of section 198B of the LRA are directly applic able in
cases where temporary employees earn below the threshold:
“198B Fixed term contracts with employees earning below earnings threshold
“(3) An employer may employ an employee on a fixed term contract or
successive fixed term contracts for longer than three months of
employment only if—
(a) the nature of the work for which the employee is employed is
of a limited or definite duration; or
(b) the employer can demonstrate any other justifiable reason for
fixing the term of the contract.”
“(5) Employment in terms of a fixed term contract concluded or
renewed in contravention of subsection (3) is deemed to be of
indefinite duration.”
[92] The provisions of clause 18.1 are directly in line with section 198B . Clause 18.1
simply requires what section 198B mandates: that employees in positions of a
permanent nature be employed on a permanent basis.
[93] Section 67(2) of the MSA provides that systems and procedures be adopted and
that, to the extent that they deal with matters under applicable labour legislation
and affecting the rights and interests of staff members, it must be consistent with
such legislation. S ection 198B is directly relevant to the employment of
temporary employees appointed to positions of a permanent nature. Once
appointments fall foul of section 198B by exceeding the three- month threshold,
the employees are employed in positions of an indefinite duration, or differently
worded in positions of a permanent nature and, per section 198B, are deemed
permanently employed.
30
[94] Clause 18.1 simply gives effect to section 198B of the LRA and section 67(2) of
the MSA. There is nothing unlawful regarding clause 18.1. As soon as the nature
of temporary employees becomes of a permanent nature, the obligation is on the
municipal manager to take appropriate steps to ensure that their posts appear on
the staff establishment and that job profiles are drafted. It cannot be left to a
municipality to use and abuse temporary employ ment provisions in complete
ignorance of labour legislation.
[95] The municipal manager must be guided by labour legislation. Labour legislation
cannot be made subordinate to the use and abuse of temporary employees by a
municipality and then be allowed, years after the fact, to seek their appointments
unlawful though a belated application.
[96] Furthermore, section 71(3) of the MSA specifically requires that municipalities
must comply with collective agreements concluded by organised local
government on behalf of local government in the bargaining council. The
applicant does not allege that SALGA act ed outside its mandate when they
concluded the 2016 and 2023 agreements.
[97] Section 55(1)(b) of the MSA provides that the municipal manager is responsible
and accountable for the management of the municipality’s administration in
accordance with t he MSA and other applicable legislation. Insofar as
administration includes staff employment, the municipal manager is bound by
labour legislation protecting employees ’ rights. Section 55(1)(h) states that the
municipal manager is responsible for promoti ng sound labour relations and
compliance with applicable labour legislation.
[98] The Local Government: Municipal Staff Regulations
15 issued under section 72
and 120 of the MSA addresses appointment of staff on fixed term contracts:
“Appointment of staff on fixed term contract
15 Government Gazette No. 890 dated 20 September 2021.
31
30. (1) Despite regulation 29, a municipality may, in exceptional
circumstances and within its administrative and financial capacity, appoint
a person or persons on fixed term contract without adhering to the
procedures and processes as contained in this chapter.
(2) The application of sub-regulation (1) is subject to the provisions of
section 198B of the Labour Relations Act.”
[99] The Regulations make it abundantly clear that fixed term contracts of
employment are subject to section 198B , and any employment contrary to
section 198B will result in such employees’ employment being deemed of an
indefinite duration.
[100] Section 52 of the MSA addresses inconsistency with applicable labour
legislation:
“52. Inconsistency with applicable labour legislation
In the event of any inconsistency between a provision of this Chapter,
including the Code of Conduct referred to in section 69, or a regulation
made for the purposes of this Chapter, and any applicable labour
legislation, the labour legislation prevails.”
[101] This section must be read with section 210 of the LRA, which reads as follows:
“210. Application of Act when in conflict with other laws
If any conflict, relating to matters dealt with in this Act, arises between this
Act and the provisions of any other law save the Constitution or any act
expressly amending this Act, the provisions of this Act will prevail.”
[102] The combined effect of section 52 of the MSA and section 210 of the LRA
establishes an unambiguous hierarchy: labour legislation, and in particular the
LRA, is paramount. Collective agreements cannot derogate from the LRA unless
specifically provided for. Clause 18.1, far from derogating from the LRA, gives
effect to section 198B and the principle against disguised employment. It does
32
not conflict with section 66 of the MSA or any other MSA provision. Rather, it
represents labour legislation taking precedence, which is precisely what section
210 of the LRA and section 52 of the MSA mandate.
[103] The applicant has not established that clause 18.1 is inconsistent with the MSA
or the EPP. The argument that the municipal manager’s section 66 MSA power
to manage the municipality’s budget and staff appointments is superior to labour
legislation is unfounded. Section 55(1) requires the municipal manager to
promote sound labour relations and comply with labour legislation. Budgetary
constraints, no matter how severe, cannot justify non- compliance with labour
legislation or collective agreements duly concluded under the LRA.
[104] The applicant’s reliance on budgetary constraints and claims that appointing 265
employees to permanent positions would be insurmountable reveals the true
motivation. The applicant’s actions are not a principled legal challenge to alleged
unlawfulness, but a strategic attempt to avoid labour obligations due to budgetary
challenges. Section 66 of the MSA, properly interpreted, does not provide a
license to ignore labour legislation or to circumvent collective agreements.
Conclusion
[105] For the reasons set out above, the application must fail on multiple independent
and cumulative grounds. These grounds are the procedural defect (impermissible
attempt to amend Notice of motion in the replying affidavit ); the joinder defect
(the non-joinder of the 265 temporary employees); the unreasonable delay (the
application not having been brought within a reasonable time); alternative
remedies available and bypassed; interests of justice do not favour overlooking
delay; and substantive law favours the respondents.
Costs
[106] Under section 162(1) of the LRA, this C ourt has wide discretion regarding costs.
The Court is mindful of the dictum of the Constitutional Court in Zungu v Premier
33
of the Province of Kwa- Zulu Natal and others16 when it comes to the issue of
costs in employment disputes. However, the applicant’s conduct in bringing this
application warrants a cost order.
[107] The applicant filed a fundamentally defective Notice of Motion with 265
unidentified employees; attempted to cure the defect through an impermissible
amendment in the replying affidavit; failed for some eight years to challenge an
alleged unlawful clause; bypassed prescribed dispute resolution procedures; and
pursued a belated declaratory application.
[108] This conduct is not merely an unsuccessful assertion of legal rights. It reflects
procedural non- compliance and strategic litigation choices that caused IMATU
and SAMWU to incur substantial costs. The applicant was not engaged in a
good-faith attempt to vindicate clear legal rights but sought to avoid labour law
obligations through delayed and strategically-timed litigation.
[109] This Court exercises its discretion and orders that the applicant must pay the
costs of IMATU and SAMWU, including the costs of counsel.
[110] In the premises, the following order is made:
Order
1. The application is dismissed.
2. The applicant is ordered to pay IMATU and SAMWU’s costs, including the
costs of counsel.
__________________________
C. de Kock
Acting Judge of the Labour Court of South Africa
16 (2018) 39 ILJ 523 (CC); [2018] 4 BLLR 323 (CC).
34
Appearances:
For the Applicant: L Hollander
Instructed by: Lessing & Van Jaarsveld Attorneys Inc.
For the Third Respondent: S Harvey
Instructed by: Francois Du Plessis Attorneys
For the Fourth Respondent: S Grobler SC
Instructed by: Kramer Weihman Attorneys