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[2025] ZALCCT 132
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Jacks Dive Chest CC v Minister of Employment and Labour and Another (2025/211381) [2025] ZALCCT 132 (11 December 2025)
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT CAPE TOWN
CASE
NO: 2025-211381
Not Reportable
In the matter between:
JACK’S
DIVE CHEST
CC
Applicant
and
MINISTER
OF EMPLOYMENT AND LABOUR
First Respondent
CHIEF INSPECTOR:
OCCUPATIONAL HEALTH
AND SAFETY, DEPARTMENT
OF EMPLOYMENT
AND
LABOUR
Second Respondent
Date
of Hearing:
1
2
November 2025
Date
of Judgment:
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 and time for handing down judgment is
deemed to be 10h00 on 11 December
2025.
Summary: Application
for an urgent interdict – rule nisi requested to suspend
prohibition notices issued in terms of the
Occupational Health and
Safety Act 85 of 1993
– application dismissed as
prima facie
right not articulated and relief sought is contrary to
s35(5)
of the
Occupational Health and Safety Act.
JUDGMENT
BOSCH
AJ
INTRODUCTION
[1]
The applicant in this matter seeks the
following relief:
1.1.
That the application be deemed to be an
urgent application and that the non-compliance with the provisions
pertaining to time periods,
service, form and process be condoned;
1.2.
That a
rule
nisi
shall issue calling on the
respondents to show cause why the following relief should not be
confirmed:
1.2.1.
That the prohibition notices served on the
applicant by the OHH Principal Inspector on 7 October 2025 be
suspended pending the finalization
of an appeal against such notice
in terms of
s35(1)
and, if indicated,
s35(3)
of the
Occupational
Health and Safety Act, 85 of 1993
;
1.2.2.
That the prohibition notice served on the
applicant by the OHH Principal Inspector on 28 October 2025 be
suspended pending the finalization
of an appeal against such notice
in terms of
s35(1)
and, if indicated,
s35(3)
of the
Occupational
Health and Safety Act, 85 of 1993
;
1.2.3.
That the costs of the application be paid
by the First Respondent;
1.3.
That the relief in paragraphs 1.2.1 and
1.2.2 shall operate as an interim interdict with immediate effect
pending the return date.
[2]
Although the founding affidavit indicates
that the application was brought on an
ex
parte
basis, the respondents were
served with a notice of motion at 16h00 on 10 November 2025 and given
until close of business on 11
November 2025 to file an answering
affidavit. On 11 November 2025, the second respondent filed a notice
of its intention to oppose
the application, but it filed no opposing
papers. The second respondent submitted that I should determine the
application and dismiss
it.
[3]
The applicant points out that in terms of
the Uniform Rules of Court when an application is brought against any
Minister, Deputy
Minister, Member of an Executive Council, officer or
servant of the State, in such capacity, the State or the
administration of
any province, the respective periods referred to in
paragraph (b) of subrule 6(5), or for the return of a rule nisi,
shall be not
less than 15 days after the service of the notice of
motion, or the rule nisi, as the case may be, unless the court has
specially
authorised a shorter period. There is no similar directive
in the Rules of this Court.
THE NATURE OF THE
APPLICATION
[4]
The applicant is a commercial diving
academy, established in September 1993. It employs 32 employees
including 8 supervisors (of
which 5 are dive instructors) and 4 are
standby divers. The applicant alleges that if it is closed down for
any reason, all of
these employees will lose their jobs.
[5]
The applicant provides training for
students to be accredited as class II, III and IV commercial divers
and students come from all
over the world to receive that training.
Obviously, commercial diving is an extremely dangerous occupation.
The applicant estimates
that at least 20 divers die annually in the
execution of their profession. The applicant alleges that because of
the inherent danger
associated with the work, it takes all reasonable
care to ensure the safety of its students.
[6]
Since its inception, the applicant has
experienced only two fatalities. The first was in 2020 when a student
committed suicide when,
while diving, he removed his dive helmet at a
depth of 7m and drowned himself.
[7]
Then, on 29 August 2024 a student diver
being trained by the applicant passed away while conducting a 40m
deep dive at Blue Rock
Quarry. The incident was initially
investigated by Ms Nozi Maphoto of the Department of Employment and
Labour’s head office
after she and several other delegates had
paid numerous visits to the applicant’s premises and the dive
site at Blue Rock
Quarry.
[8]
The applicant points out that prior to the
second incident, the Department from time to time carried out
inspections at the applicant
and (in October 2023) issued it with
notices. Those were addressed to the satisfaction of the Department
and required no further
assessment.
[9]
On 30 August 2024, principal inspector
Morne Kruger issued a prohibition notice in terms of the
Occupational
Health and Safety Act prohibiting
the applicant from training class
II commercial divers. The prohibition notice reads as follows: “I
hereby prohibit you form
continuing or commencing with the following,
effective immediately: All physical Class II dive training including
the use of the
equipment on the barge at Blue Rock Quarry at Sir
Lowry’s Pass Road, Somerset West until such time that the cause
of the
incident on 29 / 08 / 2024 was established.
[10]
The applicant understood and accepted the
reasoning for the prohibition notice and expected that the Department
would expedite the
finalisation of its investigation. However, to
date to the knowledge of the applicant, the Department has not
established the cause
of the incident or published a report on the
incident.
[11]
The Department carried out an inspection on
6 & 7 October 2025 and thereafter issued prohibition,
contravention and improvement
notices. The applicant referred to a
number of concerns relating to the inspection. These included the
fact that two of the people
participating in it were not inspectors
designated by the first respondent in terms of
s 28
of the
Occupational Health and Safety Act and
to the best of the knowledge
of the applicant on 6 & 7 October 2025 they had not been
furnished with a certificate by the first
respondent to act as
inspectors. Neither of them produced their certificates on demand
during the inspection.
[12]
The expertise of the inspectors was also
apparently questionable. In addition, a statement by the inspectors
that the applicant
had not provided to the appointed commercial dive
supervisor a copy of the operations manual and relevant procedure for
the intended
operation was simply false and deceitful.
[13]
The applicant supplied an affidavit from a
Mr Ashely Buckle, a diving instructor employed by the applicant,
stating that there were
numerous irregularities in the inspection
conducted in his presence, and which led to the issuing of the
prohibition notice.
[14]
In response to the prohibition notices the
applicant wrote to one of the inspectors, Ms S Charlie on 15 October
2025 and submitted
to Ms Charlie that all the prohibition notices
could be closed out and lifted with immediate effect. Ms Charlie was
asked to consider
the action plan and to inform the applicant if she
required further information. The applicant also raised a number of
other concerns.
[15]
The applicant received no response to its
letter. Instead, late in the afternoon of 28 October 2025, much to
the applicant’s
surprise the Department of Employment and
Labour served on the applicant a ‘nonsensical’ notice
advising that the applicant
was prohibited with immediate effect from
conducting training for both class II and III diving until the
identified issues had
been fully rectified and verified by the
Department.
[16]
According to the applicant, the second
respondent has an internal policy to respond to appeals submitted to
her in terms of
s 35(1)
of the Act only on the sixtieth day after
receipt of the appeal. Therefore, even if the intended appeals were
lodged by 31 October
2025, the applicant would remain prohibited from
continuing with the training of class II and III commercial divers
for at least
until the end of December 2025.
[17]
If the appeals in terms of
s 35(1)
were to
fail, as the applicant anticipates they will, despite its complete
and proper response, it may take at least another six
months before
the appeal would come before this court. That being the case, the
applicant is doomed to collapse and go bankrupt.
[18]
The applicant alleges that it is in the
process of training 61 commercial divers who should finish their
course during November.
Fifty-two of these students are foreigners
who are in the country in on 90-day visas. If the applicant is closed
down, those students
would not only lose the fee they had paid to the
applicant but will have to leave the country when their visas expire.
Worst of
all they will have to start another diving course at another
diving academy.
[19]
There are 5 students on their way to South
Africa to commence with their class II & III diving courses with
the applicant, having
already paid US$9 130 per student for the
course. The loss to these students if they were prohibited from
commencing with the course
is tangible.
[20]
There are also 12 or 13 students waiting in
Egypt for their visas to come to South Africa to commence with the
training. The period
from October to April is the busiest time on the
calendar for the training of diving students. The decision to
prohibit the applicant
from conducting training of class II & III
commercial divers was allegedly clearly taken without consideration
of the applicant’s
letter dated 16 October 2025.
[21]
The Department did not again inspect the
premises nor did it deny the applicant’s response.
[22]
The applicant asserts that unless this
court, upon consideration of the applicant’s letter of 16
October 2025, were to grant
the urgent relief sought in the notice of
motion, the applicant will be shut down and will not be capable of
being resurrected.
Such is the effect of the allegedly draconian
prohibition issued by the Department on 28 October 2025.
[23]
The applicant states that unless this court
comes to its rescue it will suffer irreparable loss. The applicant
cannot approach this
court in due course – by then it would be
too late to save the business of the applicant.
[24]
The applicant stated that the appeal served
on the second respondent on 30 October 2025 proves that it has
satisfactorily addressed
all the complaints in respect of which
notices have been issued by the inspectors. Accordingly, it is
submitted that at present
there exists nothing that threatens or is
likely to threaten the health or safety of any person nor is there
plant or machinery
being used that threatens or is likely to threaten
the health or safety of any person who works with the plant or
machinery or
may come within the vicinity thereof.
Urgency
[25]
It appears from the applicant’s
papers that it will not be able to obtain substantial redress in the
normal course and the
court is prepared to accept that the matter
should be regarded as urgent.
The merits of the
application
[26]
The applicant seeks a rule nisi which is an
order issued by a court, at the instance of the applicant calling on
another party or
parties to show cause why relief as claimed should
not be granted. Although it is usually used in
ex
parte
applications
“
the
practice relating to rules nisi has been used in various contexts.
The essential character and purpose of the procedure, however,
remains to ensure that (a) notice is given to an affected party; (b)
a
prima
facie
case
is made out for the relief sought; and (c) such relief may be granted
unless cause is shown why it should not be granted.”
[1]
[27]
The
rule nisi sought in this case will operate as an interim interdict
and is not simply there for the taking. As Harms points out
[2]
in discussing the case of
Ex
parte Saiga Properties (Pty) Ltd
[3]
:
“
It
is implicit in this decision that a rule nisi cannot be issued unless
a cause of action is made out. A rule does not serve as
a remedy for
a bad cause.”
[28]
In
that case the court stated
[4]
:
“
After
all, a rule
nisi
is
not without consequences and, in a case such as this, should only be
granted where,
prima
facie
,
final relief will probably be granted.”
[5]
[29]
And
this court has made it clear that when applying for rule nisi an
applicant must establish a
prima
facie
right, albeit one open to some doubt.
[6]
[30]
The applicant has not properly articulated
the right which it seeks to protect pending the conclusion of the
appeal process. It
is in the process of exercising its right to
appeal the prohibition notices but approaches this court because the
delay in the
appeals process would, it says, cause catastrophic and
irreparable financial harm to its business. It does not allege a
right which
entitles it to be free of financial harm pending the
conclusion of the appeal process. And, while the applicant sets out
why it
considers the prohibition notices to be problematic, it does
not say in terms that the inspectors acted unlawfully in issuing the
prohibition notices. The court is thus left to speculate as to the
right the applicant seeks to protect by way of interim interdictory
relief and the application could be refused on that basis.
[31]
Be that as it may, the more fundamental
obstacle to granting a rule nisi in this case lies in the provisions
of
s35
of the
Occupational Health and Safety Act. That
section
provides as follows:
“
(1)
Any person aggrieved by any decision taken by an inspector under a
provision of this Act may appeal
against such decision to the chief
inspector, and the chief inspector shall, after he has considered the
grounds of the appeal
and the inspector’s reasons for the
decision, confirm, set aside or vary the decision or substitute for
such decision any
other decision which the inspector in the chief
inspector’s opinion ought to have taken.
(2)
Any person who wishes to appeal in terms of subsection (1), shall
within 60 days after the inspector’s
decision was made known,
lodge such an appeal with the chief inspector in writing, setting out
the grounds on which it is made.
(3)
Any person aggrieved by a decision taken by the chief inspector under
subsection (1) or in the exercise
of any power under this Act, may
appeal against such decision to the Labour Court, and the Labour
Court shall inquire into and
consider the matter forming the subject
of the appeal and confirm, set aside or vary the decision or
substitute for such decision
any other decision which the chief
inspector in the opinion of the Labour Court ought to have taken.
(4)
Any person who wishes to appeal in terms of subsection (3), shall
within 60 days after the chief inspector’s
decision was given,
lodge the appeal with the registrar of the Labour Court in accordance
with the
Labour Relations Act, 1995
, and the rules of the Labour
Court.
(5)
An appeal under subsection (1) or (3) in connection with a
prohibition imposed under
section 30(1)(a)
or (b) shall not suspend
the operation of such prohibition.”
(underlining added)
[32]
The relief the applicant seeks is directly
contrary to
s35(5)
and it asks this court to grant it what that
section clearly precludes.
Section 35(5)
obviously serves a purpose,
namely to ensure that businesses whose safety standards have been
found wanting cannot operate until
such findings have been set aside
by a competent authority. The risk of allowing a business to continue
to operate despite prohibition
notices is significant. In addition,
in this case, because the applicant elected to approach the court
with such urgency, the court
did not have the benefit of the input of
the second respondent and is no position to form a proper view on the
applicant’s
assertion that it is safe to allow it to continue
to operate while the interim relief is being determined or until the
applicant’s
appeals have been determined.
[33]
In the court’s view, while
exceptional circumstances may warrant its intervention despite
s35(5)
that should only happen in the clearest of cases. This case is not
one of them and the application therefore falls to be dismissed.
[34]
That said, the applicant obviously finds
itself in a very difficult position and the court is not
unsympathetic to it. One would
hope that the second respondent will
deal with the applicant’s appeal as expeditiously as possible.
[35]
In the premises, I make the following
order:
35.1.
The application is deemed to be an urgent
application and the non-compliance with the provisions pertaining to
time periods, service,
form and process is condoned.
35.2.
The application is dismissed.
35.3.
The applicant is to pay the second
respondent’s costs, such costs to include the costs of counsel.
Craig Bosch
Acting Judge of the
Labour Court of South Africa
APPEARANCES:
Applicant:
Adv Kruger SC
Instructed
by KMG & Associates Inc
Second
Respondent:
Adv
Roseline Nyman SC
Instructed by the State
Attorney
[1]
Member
of the Executive Council for the Department of Health, Eastern Cape
v BM
(213/2021)
[2022] ZASCA 140 (24 October 2022) at para14
[2]
Harms,
Civil
Procedure in the Supreme Court
p195 fn 1
[3]
1997
(4) SA 716
(E)
[4]
At
720A-E
[5]
See
also
Ex
parte St Clair Lynn
1980
3 SA 163
(W) where
the
court ruled that applicant must be entitled to the ultimate
relief sought.
[6]
Moya
v Standard Bank of South Africa (Pty) Ltd
(J2010/10)
[2010] ZALC 147
(12 October 2010)