IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not Reportable
Case no: 532/2024
In the application between:
HOPOLANG ISHMAEL LEBUSA APPLICANT
and
METSIMAHOLO LOCAL MUNICIPALITY FIRST RESPONDENT
THE SPEAKER OF THE COUNCIL OF METSIMAHOLO SECOND RESPONDENT
LOCAL MUNICIPALITY
THE ACTING MUNICIPAL MANAGER OF THIRD RESPONDENT
METSIMAHOLO LOCAL MUNICIPALITY
THE MUNICIPAL COUNCIL OF METSIMAHOLO FOURTH RESPONDENT
LOCAL MUNICIPALITY
MATOME MASHAO FIFTH RESPONDENT
Neutral citation: Lebusa v Metsimaholo Local Municipality and Others (532/2024
[2025] ZAFSHC 377 (27 November 2025)
Coram: MHLAMBI ADJP et GREYLING-COETZER AJ
2
Heard: 17 September 2025
Delivered: 27 November 2025
Summary: Leave to appeal - judicial review – unlawfulness of decision by
Municipal Council – contrary to principles of natural justice – contravention of Local
Government: Disciplinary Regulations for Senior Managers 2010 – breach of
employment contract.
3
ORDER
1 The application for leave to appeal is dismissed, with costs.
JUDGMENT
Greyling-Coetzer AJ (Mhlambi J concurring)
[1] This is an application for leave to appeal brought by the first to fourth
respondents, being Metsimaholo Local Municipality, The Speaker o f The Council of
Metsimaholo Local Municipality, The Acting Municipal Manager o f Metsimaholo Local
Municipality and The Municipal Council o f Metsimaholo Local Municipality (hereinafter
collectively referred to as the municipal respondents).
[2] The application for leave to appeal is made against this C ourt’s order and
judgment dated 29 April 2025, in terms of which the court ordered as follows:
‘
1. The decision by the Fourth Respondent to approve and/or note and/or condone or
ratify the ruling of the Fifth Respondent dated 8 December 2023, terminating the pending
disciplinary hearing that was postponed on 28 November 2023, is hereby declared unlawful and
invalid and set aside;
2. The decision by the Fourth Respondent taken on 8 December 2023 to immediately
terminate the Applicant's employment contract is declared unlawful and invalid and set aside;
3. The termination of the Applicant's employment on 11 December 2023 is declared
unlawful and invalid and set aside;
4. The First- to Fourth Respondents are ordered to restore the status quo ante that
existed prior to the unlawful termination of the applicants' employment;
4
5. The First to Fourth Respondents are ordered to pay the costs of this application, jointly
and severally, the one to pay the other to be absolved, which costs to include the costs of
counsel on Scale B.’
[3] The application for leave to appeal is sought in terms of the provisions of
s 16(1)(a)(i) read with s 17(1) (a)(i) and (ii) of the Superior Courts Act 10 of 2013. I n
terms of the aforesaid provisions, leave to appeal may only be given where a judge or
judges concerned are of the opinion that the appeal would have a reasonable prospect
of success; or there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration.
[4] In summation the application for leave to appeal is essentially based thereupon
that the court erred in the following respects: (i) in finding and ordering that the decision
of the fifth respondent dated 8 December 2023, terminating the disciplinary hearing that
was postponed on 28 November 2023, is unlawful and invalid and should be set aside;
(ii) in considering a defective notice of motion which did not comply with the prescribed
rules of court for an application (non-urgent) when it was enrolled irregularly; (iii) in
finding that the court had jurisdiction to entertain the matter ; (iv) in refusing to grant part
A when the interim relief was sought by the applicant and thereafter granting a
declaration of unlawfulness and invalidity when part B was heard; and (v) the court
erred in not dealing with the veracity of the applicant’s purported referral in terms of
s 188A(11) of the L abour Relations Act 66 of 1995 (LR A) and not attempting to
determine whether the applicant was indeed a whistleblower, which he was/is not, in
light of the facts stated in the application for leave to appeal.
[5] As to the applicable test in an application for leave to appeal, both parties relied
on Ramakatsa v African National Congress and Another.
1 This Court is thus to test the
on Ramakatsa v African National Congress and Another.
1 This Court is thus to test the
grounds on which leave to appeal is sought against the facts of the case and the
applicable legal principles to ascertain whether the party seeking leave has shown that
there are reasonable prospects on appeal, which prospects of success must not be
remote, but founded on a sound rational basis, that a reasonable chance of succeeding
exists.
1 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31; 2021
JOL 49933 (SCA) para 10.
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[6] Before dealing with the grounds in support of the application for leave to appeal
as summarised above, it is necessary to briefly set out the findings and or issues which
the municipal respondents do not take issue with or seek to challenge. The municipal
respondents do not contend that the Court erred:
(i) in its consideration and interpretation of the relevant facts regarding the
circumstances within which the municipal council resolved to terminate the applicant’s
employment contract;
2
(ii) in its consideration and interpretation of the relevant provisions of the
applicant’s employment contract and the requirements incorporated in the employment
contract for the termination of the employment contract by the municipal council;
3
(iii) in finding that the intended dismissal of the applicant, as envisaged in the notice
of intention to terminate which was issued by the acting municipal manager on
7 December 2023, was no longer founded upon the allegation of serious misconduct, as
was the case in the disciplinary proceedings, but relying on the ruling of the presiding
officer in the disciplinary proceedings;
(iv) in finding that it was required of the m unicipal respondents to seek
representation by the applicant and afford him a hearing before making a decision to
terminate his employment on such basis;
4
(v) in finding that notwithstanding the call for representation in compliance with the
principle of natural justice and the audi alteram partem principle, the municipal council
convened on 8 December 2023 at 12h00, and resolved to invoke the termination
clause, and thereby terminating the applicant’s employment without considering the
applicant’s representations, and therefore without first hearing the applicant;
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(vi) in finding that the record revealed that the decision to terminate was made by
the municipal council as outlined in the resolution under item 27, which is objectively
the municipal council as outlined in the resolution under item 27, which is objectively
supported by the content of the notice of termination dated 11 December 2023, and the
2 Judgment par 41 to 56.
3 Judgment par 35 to 39.
4 Judgment par 41.
5 Judgment par 42 and 43.
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fact that the municipal council resolved under item 28 to declare the position of the
Chief Financial Officer , occupied by the applicant, vacant, and approved the
advertisement and filling of the position;6
(vii) in finding that the municipal council therefore took the decision to terminate the
employment contract, and did not delegate it to the municipal manager, as argued by
the municipal respondents;
(viii) in finding that t he termination of the applicant’s employment contract was a fait
accompli at the time that the representations were received and purportedly considered
by the acting municipal manager;
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(ix) in finding that t he municipal council was not entitled to summary dismiss the
applicant on 8 December 2023 before hearing the applicant;
(x) in finding that the decision to note the reported ruling of the presiding officer and
to terminate the applicant’s employment, which decision was taken by the municipal
council, and the resultant termination of the employment contract in the said
circumstances, was made in violation of the municipal respondents’ own directives as
outlined in the notice of intention to terminate, in contravention of the principles of
natural justice.
8
[7] In addition, the municipal respondents do not contend that the alleged failure by
the court to deal with the applicant’s referral in terms of s 188A(11) of the LRA or the
question whether the applicant was indeed a whistleblower or not, would have any
effect on the court’s aforesaid findings or the court’s conclusion that because of the
aforesaid violation of the applicant’s rights, the decision is deemed to be unlawful,
lacking legal validity and stands to be set aside.
[8] Therefore, the court’s aforementioned findings, particularly the finding that the
municipal council’s decision to terminate the applicant’s employment contract was in
contravention of the provisions of the employment contract and the principle of natural
justice, stand unchallenged.
6 Judgment par 46 to 51.
justice, stand unchallenged.
6 Judgment par 46 to 51.
7 Judgment par 52 to 54.
8 Judgment par 55 to 56.
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[9] Against aforesaid, the grounds relied on in support of the application for leave
to appeal are dealt with in turn.
The first ground
[10] The municipal respondents contend that the court erred in finding and ordering
that the decision of the fifth respondent dated 8 December 2023, terminating the
disciplinary hearing that was postponed on 8 November 2023, is unlawful and invalid,
and should be set aside, as the fifth respondent did not take any decision on 8
December 2023, but took a decision on 7 December 2023. Further that no case was
made out in the applicant’s papers for any decision taken on 8 December 2023 and well
knowing that no decision was taken on 8 December 2023, the applicant failed to amend
its notice of motion in prosecuting Part B . In the result the decision of the fifth
respondent dated 7 December 2023 still stands, which renders the order of this C ourt
unenforceable.
[11] An appropriate threshold consideration is that the court, in its judgment and
order, made no finding nor issued any order declaring the fifth respondent’s decision
unlawful, invalid, or set aside. As is evident from paragraph 1 of the order, quoted
above, the decision declared unlawful and invalid and consequently set aside was the
fourth respondent’s decision to approve, note, condone, or ratify the ruling of the fifth
respondent.
[12] It was common cause between the parties and during the hearing that the
ruling, and therefore decision of the fifth respondent, was taken on 7 December 2023.
This was also evident from the record and the courts judgment.
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[13] The ruling made was sufficiently identified throughout the hearing as well as in
the judgment, and the inclusion of the date of 8 December 2023 as opposed to
7 December 2023, so was the decision of the fourth respondent which was set aside
per paragraph 1 of the order. The error in describing the ruling of the fifth respondent to
have been on the 8
th of December 2023 as oppose to the 7 th of December 2023 does
have been on the 8
th of December 2023 as oppose to the 7 th of December 2023 does
not detract from the identification of the ruling by the fifth respondent and the decision
9 Judgment par 7, 41 and 56.
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by the fourth respondent. N or does it have the result contended for by the municipal
respondents that paragraph 1 of the order, for this reason, is unenforceable.
[14] The inclusion of ‘8’ as opposed to ‘7’ is in any event a patent error, mero motu
correctable under rule 42 by this Court.
The second ground
[15] Ancillary to aforementioned ground, the municipal respondents contend that the
notice of motion was defective, as it did not comply with the prescribed rules of court for
non-urgent applications when it was enrolled. Therefore, it is contended that the
enrollment of the application was irregular and stands to be set aside.
[16] This issue was listed as one of the issues to be determined by this C ourt in
terms of the municipal respondents’ heads of argument during the application, but no
substantive argument was made in respect of this issue in the remainder of the heads of
argument, nor further pursued in argument.
[17] In the answering affidavit, the municipal respondents contended that prayer 1.1
of Part B refers to the ruling of the fifth responded dated 8 December 2023, while the
ruling was dated 7 December 2023. And further that in terms of prayer 5 of Part B, the
applicant asked cost s of the application, including those in Part A to be paid by the
respondents, whilst the costs in Part A has already been decided upon.
[18] Prayer 1 of Part B refers to the decision taken by the fourth respondent, being
the municipal council, on 8 December 2023, to inter alia approve, note, condone or
ratify the ruling of the fifth respondent as presiding officer. As set out herein above,
although the reference was made to 8 December 2023 in prayer 1.1, the specific ruling
was properly identified and common cause between the parties to have taken place on
7 December 2023.
[19] The applicant did not seek the ruling or any decision of the fifth respondent to
be declared unlawful, invalid and set aside. Nor did the court order such.
The third ground
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[20] The municipal respondents contend that the court did not have jurisdiction. In
substantiation the municipal respondents contend that the employment contract under
clause 9 stipulates that in the event of a dispute arising out of the contract, the
Commission for Conciliation Mediation and Arbitration ( CCMA) would have jurisdiction.
Further that, the termination itself had resulted from an internal disciplinary hearing
which was initiated in terms of the LRA.
[21] As fully dealt with in the court’s judgment, jurisdiction is determined by the
pleaded case. The fact that a cause of action is limited to a certain forum must not be
interpreted as obliging an applicant only to pursue that particular cause of action. The
applicant’s case as pleaded was premised on the unlawful termination of the
employment contract, and not on any pure labour related issue. Its cause was one of
unlawfulness as opposed to unfairness.
[22] Clause 19 of the employment contract does not assist the municipal
respondents. The s aid clause inter alia provides that the parties consent to the
jurisdiction of the CCMA and if the CCMA is not able to adjudicate the dispute, the
Courts of the Republic of South African with regards to any claim resulting or arising
from this contract.
[23] It was further accepted in the municipal respondents’ answering affidavit that
the Labour Court does not have jurisdiction over unlawful terminations, the effect
thereof being that the CCMA would equally not have jurisdiction over unlawful
terminations.
10
[24] In Safeguard Chemicals t/a Maris Polimar South Africa v Frydas ,
11 the court
held that s 115(1) (b)(ii) of the LRA which gives the CCMA jurisdiction if the parties
consent to such jurisdiction, cannot be invoked where the CCMA has no jurisdiction to
entertain the dispute from the outset. The LRA does not provide that the CCMA has
jurisdiction to arbitrate a dispute in respect of the unlawful termination of an employment
jurisdiction to arbitrate a dispute in respect of the unlawful termination of an employment
contract, or to issue an award declaring any conduct of an employer regarding an
10 Makhanya v University of Zululand [2009] ZASCA 69; 2010 (1) SA 62 (SCA) [2009] 8 BLLR 721 (SCA);
[2009] 4 All SA 146 (SCA); (2009) 30 ILJ 1539 (SCA) paras 58-59.
11 Safegaurd Chemicals t/a Maris Polymers South Africa v Frydas and Others [2022] ZALCJHB 359 para
54.
10
employment contract to be unlawful and invalid, or to be set aside based on the
principle of legality.
[25] Consequentially, the court’s jurisdiction was not ousted by the provision of
clause 19 of the employment contract.
[26] In respect of the municipal respondents’ reliance on the applicant’s referral
under s 188A(11) of the LRA, the referral was made in respect of the disciplinary
proceedings that were pending at the time. When the disciplinary proceedings were
terminated, those proceedings were also not persisted with by the applicant. It therefore
related to the disciplinary proceedings which were terminated, and not in respect of any
dispute regarding the unlawful termination of the applicant’s employment contract.
The fourth ground
[27] The municipal respondents contend that the court erred in refusing to grant
Part A when the interim relief was sought by the applicant, and in granting a declaration
of unlawfulness and invalidity when Part B was heard.
[28] It was submitted that the granting of the interim relief would have ensured that
the respondents do not implement the natural consequence of the dismissal, vis -à-vis
the filling up of the vacancy. It was further contended that t he court in exercising its
discretion whether or not to grant Part A ought to have earnestly evaluated the
prospects of success of Part B, and therefore the order and judgment are erroneous in
that they unscrambled the egg, as it is impossible to implement the order without
terminating the contract of the incumbent. Therefore, the order is not just and equitable
under the circumstances.
[29] The municipal respondents opposed Part A of the application, which was heard
by Opperman J. Part A was disposed of on the basis that the urgency was self -created.
The municipal respondents cannot now complain about the outcome of those
proceedings, as it was in accordance with their opposition to said application. It was
proceedings, as it was in accordance with their opposition to said application. It was
open to the municipal respondents to persuade Opperman J to deal with the merits in
respect of Part A , as oppose to only determine the matter on urgency. Part A did not
serve before this Court, and it is common cause that this Court was limited to the relief
sought in Part B.
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[30] If this ground of appeal is understood correctly, it suggests that where an
interim interdict is not granted in the circumstances of a case as the present, the court
ought to, alternatively is precluded from, considering and determining the unlawfulness
and invalidity of the impugned decision at a later stage.
[31] The municipal respondents did not contend in its answering papers n or during
the hearing of Part B that a declaration of invalidity and unlawfulness would not be just
and equitable under the circumstances, or did it challenge the constitutionality of the
common law regime, as it now in this leave to appeal proceedings purport s to do. The
factual foundation upon which such issues ought to be considered and ventilated did not
appear from the papers which served before the court.
[32] Other than the resolution taken under item 28 per the record, t he only reference
which was made to the filling of the position of Chief Financial Officer and its lawfulness
is set out in paragraph 55 of the answering affidavit, and in paragraphs 61 to 63 of the
replying affidavit. However, same was not raised by the municipal respondents in the
context that it would be impossible to implement an order by court declaring the
termination of the employment contract unlawful and setting aside, nor on the basis now
advanced by the municipal respondents.
[33] There is simply no case made out for the grounds on which the municipal
respondents now wish to challenge the just and fairness and/or the constitutionality of
the common law regime.
[34] The Constitutional Court in Steenkamp v Edcon Ltd,
12 confirmed that w here
there is no valid decision, there could not have been a valid termination of
employment.
13 The Court further recogni sed the distinction in law between an invalid
dismissal and an unfair dismissal, as well as the distinction in law between lawfulness
and fairness.
14 Those distinctions remain applicable and are applicable in the present
and fairness.
14 Those distinctions remain applicable and are applicable in the present
matter. The applicant’s case was premised on unlawfulness.
12 Steenkamp and Others v Edcon Limited [2016] ZACC 1; (2016) 37 ILJ 564 (CC); 2016 (3) BCLR 311
(CC); [2016] 4 BLLR 335 (CC); 2016 (3) SA 251 (CC) paras 118, 119 and 192.
13 Maswanganyi v Minister of Defence and Military Veterans and Others [2020] ZACC 4; (2020) 41 ILJ
1287 (CC); 2020 (6) BCLR 657 (CC); 2020 (4) SA 1 (CC); [2020] 9 BLLR 851 (CC) para 46.
14 Ibid Steenkamp para 191.
12
The fifth ground
[35] The municipal respondents contend that the referral in terms of s 188A(11) of
the LRA triggered the termination of the employment contract, as it was determined by
the fifth respondent that the referral had been employed as a delaying tactic and was
not bona fide. Further that the applicant was not a whistleblower.
[36] The referral in terms of s 188A(11) was already dealt with herein above. A
finding on the lawfulness of the referral in the context that it took place, the disciplinary
proceedings having been terminated and the referral not being persisted with, have no
effect on the findings of the court regarding the invalidity of the decisions of the fourth
respondent, and are immaterial having regard to the fourth respondent’s failure to
consider the representations made by the applicant before the termination of the
employment contract.
[37] For the reasons set out above, the municipal respondents have not
demonstrated that there exist s a reasonable prospect of success on appeal and that
another court would come to a different conclusion. Equally, they have failed to
demonstrate that there are some other compelling reasons why the appeal should be
heard. The application should thus fail.
[38] There is no reason that the general principle, that cost should follow the event,
should not find application. As to the scale, scale B is appropriate in the circumstances
of the matter.
[39] Consequentially, the following order is proposed: -
1 The application for leave to appeal is dismissed with costs, with costs to include
counsel’s fee on scale B.
_____________________
D GREYLING-COETZER
ACTING JUDGE OF THE HIGH COURT
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I agree, and it is so ordered
_____________________
J.J MHLAMBI
ACTING DEPUTY JUDGE- PRESIDENT OF THE HIGH COURT
Appearances:
For the applicant: C D Pienaar
Instructed by: Matlho Attorneys,
Bloemfontein
For the respondents: C Muza with M Nduli
Instructed by: Ntleru Inc. Attorneys, Pretoria
c/o Amade & Company Inc,
Bloemfontein.