THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Reportable
Case no: 2025-231674

In the matter between:

MARGARET GABRIEL WHEATLEY Applicant

and

THE COMMISSION FOR CONCILIATION, MEDIATION AND
ARBITRATION (CCMA) First Respondent
COMMISSIONER WAYNE PAUL Second Respondent
WOOLWORTHS (PTY) LTD Third Respondent

Heard: 9 December 2025
Delivered: 13 January 2026 (This judgment was handed down
electronically by emailing a copy to the parties. The date of delivery of this
judgment is deemed to be 13 January 2026).


JUDGMENT

(1) Reportable: Yes
(2) Of interest to other Judges: Yes/No
(3) Revised

____________ ______________
Signature Date

2


KROON AJ

Introduction

[1] In an article published in The Advocate,
1 Wallis JA referenced Edwin
Glasgow KC , who he said had used the term “ Christopher Columbus
advocacy”. He explained that this type of advocacy occurs:

“When you set out, you don’t know where you are going. When you get
there, you don’t know where you are. And when you return, you don’t
know where you have been.”

[2] This is a story of a litigant who, unreflectively and with ill- advised haste,
left harbour with neither chart nor compass. Having so set sail, t he case
was destined to founder on the rocks of proper pleading and to ru n
aground on the shoals of the Labour Relations Act .2 The aftermath is a
legal shipwreck which the Court must adjudicate.

[3] The suit advanced by the Applicant (Ms Wheatley) has three pillars.
First, she seeks an order setting aside a ruling refusing her legal
representation. Second, she ask s that the Second Respondent (the
Commissioner) be disqualified from further participation in her matter .
Third, she seeks an order directing the First Respondent (the CCMA) to
investigate a matter arising from her case. The CCMA is t hereafter to
account to the Court . The application is opposed by the Third
Respondent (Woolworths) and, uniquely , but understandably so, by the
CCMA.


1 Volume 36, number 3, December 2023, pg 72
2 No 66 of 1995 (the LRA)

3

Events giving rise to the application

[4] Ms Wheatley says that the Commissioner granted legal representation
“on the spot” at the 21 October 2025 sitting of the Arbitration. This was
pursuant to a verbal request by her legal representative, Ms Ndlovu, who
also represented her in these proceedings . However, a week later, on
28 October 2025, she “ unexpectedly” received a ruling issued by the
Commissioner denying legal representation (the Ruling). She contends
that the R uling is jarringly inconsistent with the initial decision to grant
legal representation. She encountered resistance when she sought to
secure a copy of the recording of the proceedings. S he believes that the
CCMA and the Commissioner harboured ulterior motives for refusing to
produce it. Ms Wheatley ’s trenchant criticism of the Commissioner is
captured in the following paragraph in her founding affidavit:

“3.15 I submits (sic) that foul play occurred after the proceedings, and
that the commissioner’s failure to produce the recording was
deliberate and intended to conceal the irregular change of (sic)
ruling.”

[5] The answering affidavit of Woolworths is deposed to by Zimasa Mabona
(Mr Mabona) , an Employee Relations Specialist in the employ of
Woolworths, who was present at the 21 October 2025 sitting. Mr Mabona
sharply disputes the allegations contained in Ms Wheatley's affidavit . He
denies that the C ommissioner granted legal representation on
21 October 2025. 3 He states that one of the principal reasons the
Commissioner postponed the arbitration was to consider and rule on the
application for legal representation.4 Mr Mabona further contends that, in
relation to the events of 21 October 2025, the affidavit of Ms Wheatley
contains other embellishments and untruths.

3 Paras 45, 57, 82, 98.1, 99.1, 101.1 and 102.2 of Mr Mabona’s answering affidavit
4 Para 46 of Mr Mabona’s answering affidavit

4


[6] The stance of the CCMA, as set out in the answering affidavit deposed to
by the Director of the CCMA, Cameron Sello Morajane (Mr Morajane), is
unequivocal. It is that Ms Wheatley and, by implication, Ms Ndlovu are
attempting to mislead the Court as to what occurred on 21 October 2025.
It has proof, so it says, in the form of a recording. It says that it
transmitted the recording to Ms Ndlovu on 5 December 2025.

[7] Whilst Ms Wheatley did reply to the affidavit of Mr Mabona, there is no
reply to the affidavit of the CCMA. It may be that , because the matter
was heard on 9 December 2025 and the CCMA's answering affidavit was
only delivered on 8 December 2025, there was insufficient time to file a
reply. That said, when Mr Pillay of the CCMA presented its case, he
asserted that it had been confirmed that the recording contradicted
Ms Wheatley’s version. Ms Ndlovu did not , in her replying submissions,
refute that she now has the recording. She did not say whether she had
listened to it and, if so, what it revealed. She did not indicate that she
wished to reconsider her position in the light of the production of the
recording.

[8] The allegations by Ms Wheatley, as repeated by Ms Ndlovu in the heads
of argument drafted on her behalf, are, by their nature, very serious.
They may or may not be true. I f they are untrue, it is a matter of some
gravity. They raise the question whether there has been an attempt to
mislead the Court and, consequently, whether there has been an
unjustified attack on the integrity of the Commissioner. The more serious
the allegation, the greater the need to lay a proper foundation for making
it. However, as I made clear at the hearing, i t is unnecessary and in my
view undesirable, for the Court, by way of an urgent opposed application,
to investigate who is telling the truth. Having reflected on the matter, I am
of the view that this is a task for the regulatory body of the legal

of the view that this is a task for the regulatory body of the legal
profession, i.e. the Legal Practice Council (the LPC) . I deal further with

5

this aspect at the end of the judgment.

The relief sought

Notice of Motion

[9] The Notice of Motion reads as follows:

“1. Condoning the Applicant's non -compliance with the rules of this
Honourable Court and hearing this matter as one of urgency in
terms of the Court Rules.

2. Reviewing and setting aside the ruling of the Second Respondent
dated 28 October 2025, in which the Applicant's legal
representation was denied.

3. Declaring that the Second Respondent's conduct in failing to
produce the electronic recording of proceedings held on 21
October 2025 constitutes a gross irregularity in terms of section
145(2)(a)(ii) of the Labour Relations Act 66 of 1995 ("the LRA").

4.
Ordering that the dispute be remitted to the CCMA for hearing de
novo before a different commissioner.

5. Directing the First Respondent to investigate and report on the
loss or non-production of the official recording.

6. Granting the Applicant the right to legal representation in the
arbitration proceedings.

6

7. Ordering that the Second Respondent be recused from further
involvement in this matter.

8. Costs against any Respondent opposing this application.”

[10] In my view, the relief sought is , in every respect, unsustainable from the
outset. Prayer one is dealt with below under the heading of urgency.

The application to set aside the Ruling

[11] Ms Wheatley moves for the setting aside of the Ruling without having
filed the record of the proceedings which led to it . The two vital
components of the record would naturally be the oral application for legal
representation and the alleged initial ex tempore ruling granting it. The
remarkable absence of the record must be assessed against a backdrop
where Ms Wheatley’s representative, Ms Ndlovu , knew that the facts
would be in dispute. Yet she persisted with the contention that the Court
make a decision without the benefit of the record and, as it were, in the
dark.
5 She did so at her peril.6

[12] The further relief sought regarding legal representation is unintelligible,
Ms Wheatly asks that her dispute be remitted to the CCMA for a hearing
de novo before a different Commissioner (prayer four ). B ut, if the
proceedings are to commence afresh, then the alleged initial ruling in her
favour would fall away . S he would effectively be seeking relief against

5 Ms Ndlovu, in response to concerns raised by the bench, initially vacillated between seeking
an indulgence, in her words, to “ re-file the application” and persisting with the application. S he
ultimately settled on the latter course. In any event, at the risk of being accused of straining the
nautical metaphor introduced in the beginning of the judgment, the ship granting indulgences
had long since sailed by the time that the application was heard.
6 SACCAWU & Others v President, Industrial Tribunal & Another 2001 (2) SA 277 (SCA) at para
[7]

7

herself which would be unprecedented.7

[13] More importantly, irrespective of whether the Ruling is set aside, Ms
Weathley, towards the end of her Notice of Motion, requests that the
Court nonetheless grant her legal representation (prayer six). The Labour
Court does not sit as a court of first instance in respect of applications for
legal representation in CCMA proceedings .8 It is self -evidently the
presiding commissioner who has the competence and authority to do so.
She9 must exercise her discretion in accordance with the CCMA rules.10

The application to declare the failure to produce the recording a gross
irregularity

[14] It should not need stating that the remedy available to a party who
believes that a record exists but is being withheld , is to bring an
application to compel its production. Instead of following this avenue, an
inexplicable decision was taken to seek a declaratory order that the
failure to produce the record constitutes a “gross irregularity”.

[15] A gross irregularity is a defined ground of review , a determination that a
court may make in a review application. The question of whether a gross
irregularity exists cannot , ex post facto, arise in the course of the
administrative process of making the record available once a
commissioner is functus officio. In any event, the granting of such a

7 In Thusi v Minister of Home Affairs 2011 (2) SA 561 (KZP) at para [47] Wallis AJ (as he then
was), in analysing the relief contained in an order, commented as follows:
“There is a basic misconception underlying this order… This is an order
against the Applicant, not the Respondents, and, what is more, one sought by
the Applicant. To sue oneself is an oddity. To ask for and obtain relief against
oneself is unprecedented…”
8 The Labour Court may only substitute such a decision of a CCMA commissioner pursuant to a
successful review application.
9 The female gender is used for the sake of conciseness. References to the fe male gender

9 The female gender is used for the sake of conciseness. References to the fe male gender
include, where appropriate, the male gender.
10 Rule 25(1)(c) of the Rules for the Conduct of Proceedings before the Commission for
Conciliation, Mediation and Arbitration

8

prayer would be an exercise in futility. I ssuing a stand- alone declarator
that conduct amounts to a gross irregularity, unaccompanied by a
pronouncement on whether a c ommissioner’s decision should be set
aside, would be a brutum fulmen11; authoritative in tone, but ineffectual in
law.

The application to compel the CCMA to conduct an investigation

[16] In terms of prayer five, the CCMA is to investigate and report on the loss
or non-production of the official recording of the 21 October 2025 sitting.
In this regard, the order proposed reads as follows:

“6. The First Respondent (CCMA) is ordered to conduct an internal
investigation into the missing and/or unproduced recording of
the arbitration proceedings held on 21 October 2025 and to file
a written report with this Court within 14 (fourteen) days of this
order.

[17] Thus, Ms Wheatley seeks an order requiring an investigation and a
written report on an urgent basis. The CCMA is an independent statutory
body created in terms of section 112 of the LRA, an Organ of State with
a governing body.12 It is responsible for its own administration. It is not
for the Labour Court to micro-manage the internal governance processes
of the CCMA. The Court may, in exceptional circumstances, refer a
concern which it harbours about the conduct of a commissioner , or a
state of affairs, to the CCMA for investigation.

[18] Absent proof of delinquency on the part of the CCMA in the performance
of its duties in relation to the receipt and investigation of a complaint, a

11 literally empty thunderbolt
12 Section 116 of the LRA

9

complaint must first be lodged with it through the correct channels .13 As
with any administrative body, i t should be allowed to manage its own
affairs and process any complaint so lodged. Should a complaint be
lodged and should Ms Wheatley thereafter be aggrieved by the outcome
of her complaint, only then will there be scope for instituting a legal
challenge.14 But, in this matter, the CCMA has not yet been asked by Ms
Wheatley to conduct a formal investigation. The prayer is hopelessly
premature.

[19] There is also no explanation why an onerous supervisory order was
sought against the CCMA , requiring it to account , within a limited time
period, to the Labour Court by way of written report as to the outcome of
its investigation. No foundation is laid in the application for the granting of
such an order. It is unclear what the Court would be required to do upon
receipt of the report. Orders of this nature are ordinarily reserved for
situations in which there has been non-compliance with prior court orders
or systemic violations of the law.15

The application that the Commissioner be “recused”

[20] There is a stand-alone prayer that the Commissioner be “ recused” from
the matter. It is Ms Wheatley’s case that she harbours a reasonable
apprehension of “... Bias and Misconduct ” on the part of the
Commissioner. The proposed order is less decorous in tone:

“7. The Second Respondent, Commissioner Wayne Paul, is
removed from any further involvement in the Applicant's dispute
under CCMA Case Number KNDB2594-25.”


13 Cf Mavudzi And Another V Majola And Others 2022 (6) SA 420 (GJ) at para [39]
14 Presumably in terms of Section 158(1)(g) read with Section 117 of the LRA
15 Public Protector and Others v President of the Republic of South Africa and Others 2021 (9)
BCLR 929 (CC); 2021 (6) SA 37 (CC) at paras [136], [195] and [202]

10

[21] The relief so sought is extraordinary because it is made in the absence of
an approach having first been made to the Commissioner . In the Court’s
view, Ms Wheatley’s attempt to secure the Commissioner ’s recusal in
terms of a first -instance decision by the Labour Court is fatally
procedurally irregular. T he insurmountable hurdle facing her is that the
Labour Court has no jurisdiction to order a commissioner to recuse
herself. That would be for it to usurp, contrary to statute, the powers of a
commissioner who, at first instance, is the functionary solely responsible
for determining the dispute before her in terms of section 138(1) of the
LRA. The Court may of course, when considering a review application,
adjudicate whether a commissioner's failure to recuse her self is
reviewable and in those circumstances, substitute the decision. But that
is a different matter.

[22] The fact that the Court has the power to grant an interdict does not mean
that it has, so to speak, papal authority to decree the summary recusal or
removal of a commissioner. In Labour Court Manual by Prinsloo and Van
Niekerk,16 the learned authors explain that jurisdiction cannot be
cheerfully assumed outside of the contours of the LRA or other
legislation which vests the Labour Court with jurisdiction, 17 emphasising
that the power to grant an interdict is not, in itself, jurisdiction conferring:

“Parties should also be cautious when relying on s 158(1) of the LRA to
establish jurisdiction; it describes the LC’s powers, as opposed to its
jurisdiction. so, for example, the fact that the LC has the power in terms
of s 158(1)(a)(ii) to grant an interdict does not mean that an interdict can
be sought in respect of any dispute – the applicant must always identify
the cause of action by reference to some statutory provision that confers
jurisdiction on the court.”18


16 2024, Juta and Company (Pty) Ltd, South Africa, page 7

jurisdiction on the court.”18


16 2024, Juta and Company (Pty) Ltd, South Africa, page 7
17 As to the boundaries of the jurisdiction of the Labour Court, see Cibane and Another v
Premier of Province of Kwazulu-Natal [2025] 10 BLLR 1004 (LAC); (2025) 46 ILJ 2587 (LAC)
18 Merafong City Local Municipality v South African Municipality Workers Union and Another
[2016] ZALAC 12; [2016] 8 BLLR 758 (LAC); (2016) 37 (ILJ) 1857 (LAC) at para [33]

11

[23] To place matters in their broader context , commissioners take an oath to
administer justice without fear or favour. The first ethical obligation
resting on commissioners, in terms of the “Code of Conduct for
Commissioners”,19 is to act “…independently of any outside pressure in
the discharge of their statutory functions ”.20 It would be repugnant to the
rule of law for one judicial officer, even a Judge of the Labour Court, to
dictate to a commissioner how she should exercise her discretion in a
recusal application.21

Concluding observation

[24] Ms Wheatley has approached this Court directly, going, behind both the
backs of the CCMA and the Commissioner. She did not first apply to the
Commissioner for recusal . She did not allow him to address the very
serious allegations she has levelled against him in this forum. If she had
subsequently felt aggrieved by a decision by the Commissioner's
decision not to recuse himself (assuming that that was the decision he
made), she could then have approached him for a postponement in order
to allow her to launch a legal challenge to his ruling. The Commissioner
would, in that event, have had an obligation to exercise a discretion on
whether the matter should be postponed pending the outcome of the
review application,
22 bearing in mind that litigating by way of piecemeal
review application is the exception, not the norm.23 Furthermore, as
mentioned, she also did not first lodge a formal complaint with the CCMA
and await the outcome of that complaint . The decision to approach the
Court directly was unfair and disrespectful to both the Commissioner and
the CCMA. It can hardly be said to have been proper.

19 Government Gazette No. 38230 of 21 November 2014
20Clause 3.1 of the Code of Conduct for Commissioners
21 See also section 142(8)(g) of the LRA which, inter alia , contains a prohibition against the
improper influence of arbitration proceedings by any person.

improper influence of arbitration proceedings by any person.
22 Ntombela and Others v United National Transport Union and Others 22 (2019) 40 ILJ 874 (LC)
at para [67] and Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others [2011] 10 BLLR 1012 (LC) at para [33]
23 Section 158(1B) of the LRA

12


Urgency

The case made out by Ms Wheatley for urgency

[25] The alleged urgency of the matter is addressed in two solitary
paragraphs in the founding affidavit:

“URGENCY

6.1 The matter is urgent because the commissioner's contradictory
conduct and refusal to produce the recording have effectively
halted the Applicant's right to fair process.

6.2 (sic) continue to suffer prejudice while the case remains under
the authority of the same commissioner who caused the
irregularity.

Analysis

[26] It would have been evident to the author of the Notice of Motion, Ms
Ndlovu, that the application would attract opposition. Astoundingly, no
provision is made therein for the filing of answering and replying
affidavits. In short, Ms Ndlovu abdicated her responsibility to forge her
own rules by failing to take the trouble to carefully modify the applicable
time periods in a manner commensurate with the alleged exigencies of
the case.24


24 Luna Meubelvervaardigers (Edms) v Makin and Another (t/a Makin’s Furniture Manufacturers)
1977(4) SA 135(W) at pp 137 E-G

13

[27] Secondly, there was the limited time within which the Respondents were
forced into Court. The application was served on Friday, 5 December
2025, to be heard on Tuesday, 9 December 2025, thereby affording the
parties an effective two working days to study and peruse the application,
obtain authorisation to advise on it and oppose it if necessary, consult on
the merits of the allegations made in support of the application and then
to draft answering affidavits. In an attempt to justify this unreasonably
short period, it was vaguely stated by Ms Ndlovu, not in her founding
affidavit, but in an irregular “certificate of urgency” (see below), that a set
down date was “imminent”. No factual foundation was laid for this bald
assertion. The assertion is not reconcilable with the CCMA Rules which
provide that a minimum of 21 days’ notice must be given of the setting
down of an arbitration.25

[28] Thirdly, the application was, par excellence, an example of self -induced
urgency. The Ruling was issued on 28 October 2025, yet , having
threatened to bring the application on 5 November 2025, it was belatedly
launched on 5 December 2025. It took over two weeks to serve the
signed Court process. As pointed out by Mr Morajane in his answering
affidavit, the period taken was a few days shy of the six weeks allowed
for the institution of review applications in terms of section 145 of the
LRA.

The CCMA

[29] Ms Wheatley’s conduct vis -à-vis the CCMA, with respect to urgency,
warrants special mention. As an administrative body, the CCMA has its
own bureaucracy. As a matter of fairness, i t is entitled to an opportunity
to investigate claims made against it, to consider them responsibly , and
to decide, before becoming embroiled in litigation at public expense,

25 Rule 21

14

what course it should take.26

[30] In my view, the sentiments expressed in In Re several matters on the
urgent Court roll 27 find application. Although they are directed at urgent
applications brought against State D epartments, they apply equally to
Organs of State. Wepener J commented as follows:

“[16] There are also matters brought against departments of
state. Experience has taught that such respondents need
time to look into the allegations made in order to be able
to file affidavits, if they so wish.....”

[17] An abuse of the process has developed – in all likelihood
in the hope that the respondents will not be able to file
opposing affidavits in time – in order to steal a march
upon such respondents. This practice must be addressed
in order to stop matters being unnecessarily enrolled and
clogging the urgent court roll. In these matters sufficient
time should be granted to the respondents to file
affidavits, and they can rarely do so when the papers are
served less than a week before a matter is to be heard.
That week includes a weekend when the state machinery
normally comes to a standstill. Practitioners would be well
advised to be more realistic and to afford state
departments a more reasonable time in which to file
affidavits.” (Own emphasis)

[31] The question that cries out for an answer is this: On what conceivable
basis could it have been genuinely asserted that an investigation by the
CCMA needed to be conducted as a matter of urgency? Why would it be
necessary for employees or representatives of the CCMA to scurry

26 Cf Minister of Agriculture 2010 (4) SA 109 (SCA) at paragraph [13].
27 2013 (1) SA 549

15

around during the annual shutdown to ensure that an investigation report
is finalised and filed with the Labour Court, two days before Christmas?28
The application, insofar as it concerned the investigation, was patently an
application which could have been heard in the ordinary course.

Order to be granted

[32] The conventional order to make where an application has not been
properly enrolled for a want of urgency, is to strike it from the roll.
However, if there has been an abuse of the court process, the C ourt, as
part of its inherent jurisdiction, has a discretion to dismiss the
proceedings.
29 In my view , this matter is of the type that would justify
dismissal given the wholesale disregard for the procedural imperatives
governing urgent applications and the complete absence of urgency in
the relief sought against the CCMA . The application was not only a
misuse but an abuse of the Court process . It caused material
inconvenience to both the Court and the Respondents which opposed
the application. It was the type of application which destroys the utility of
the urgent roll.

Non-compliance with the Rules

[33] Further irregularities taint the application. As a point of departure, t he
Ruling was not attached to the founding affidavit as required by Rule
37(6).30 Ms Ndlovu also filed a “ certificate of urgency ”. There is no
provision in the Rules for it.31 It can have no legal significance.

28 In terms of Ms Wheatley’s draft order, the CCMA had 14 days from the date of the hearing
within which to complete the investigation and file the report with the Labour Court.
29 Vena and Another v Vena and Others (2461/2008) [2009] ZAECPEHC 26; 2010 (2) SA 248
(ECP) at para [ 7]. Mortimer v Municipality of Stellenbosch and Another (18243/2003) [2008]
ZAWCHC 306 per Gauntlett AJ on 27 November 2008
30 The Rules Regulating the Conduct of the Proceedings of the Labour Court

30 The Rules Regulating the Conduct of the Proceedings of the Labour Court
31 A certificate of urgency is a document which is required in some, but not all, of the divisions of
the High Court.

16


[34] After delivering the application, Ms Ndlovu unilaterally filed further
documentation comprising a batch of correspondence. She did so , as it
were, in a vacuum because the documentation was not attached to an
affidavit and was unmoored from any pleading. The Court uses the word
“filed” loosely. It would be more accurate to say that the documentation
was “slipped” into the Court file,32 i.e. the bundle compiled on CaseLines
for the hearing of the application. Such documentation falls to be treated
as pro non scripto. In Dlwati v King Sabata Dalindyebo FET College 33
the Court, with reference to Labour Appeal Court authority, warned that it
is not permissible to place facts before the Court where the allegations
are not under the cover of an affidavit.34

[35] Insistence on compliance with the Rules is not formalism. It is true that
the Rules are for the Court and not the other way around. However, that
maxim is not a justification for legal practitioners to disregard the Rules to
the flagrant extent demonstrated above. Whilst over -technical point-
taking is to be discouraged, and the Rules should not be applied in a
mechanical and uncompromising manner, the proper administration of
justice requires that they be interpreted and applied in a way that gives
effect to their underlying purpose: the orderly, expeditious, and cost -
effective resolution of disputes. If, as in this case, a party is permitted to
indiscriminately file documents en masse, the litigation has the potential
to degenerate into a shambolic free-for-all.

De bonis propriis costs order

[36] Woolworths requested that Ms Ndlovu pay the costs of the application

32 Cf Standard Bank of SA Ltd v Sewpersadh and Another 2005 (4) SA 148 (C) wherein the
Court, considering an affidavit which was irregularly “filed”, held at para [13] that a litigant is not
permitted to “…simply slip [an] affidavit into the Court file…” .
33 (2021) 42 ILJ 2427 (LC)
34 At paras [8] and [13]

17

personally. Ms Ndlovu, understandably, strenuously argued against the
making of such an order. The granting of costs de bonis propriis is an
extraordinary measure.35 In Multi-Links Telecommunications Ltd v Africa
Prepaid Services Nigeria Ltd; Telkom SA Soc Limited and Another v Blue
Label Telecoms Limited and Others ,36 the principles relating to costs
orders de bonis propriis were summarised. The Court emphasised that
such orders would not ordinarily be justified solely on the basis of errors
of law or non-compliance with the Rules. It is elaborated as follows:

“[34] Costs are ordinarily ordered on the party and party scale. Only
in exceptional circumstances and pursuant to a discretion
judicially exercise is a party ordered to pay costs on a punitive
scale. Even more exceptional is an order that a legal
representative should be ordered to pay the costs out of his own
pocket … [T] he obvious policy consideration underlying the
court’s reluctance to order costs against legal representatives
personally, is that attorneys and counsel are expected to pursue
their client’s rights and interests fearlessly and vigorously without
undue regard for their personal convenience. In that context
they ought not to be intimidated either by their opponent or even,
I may add, by the court. Legal practitioners must present their
case fearlessly and vigorously, but always within the context of
set ethical rules that pertain to them, and which are aimed at
preventing practitioners from becoming parties to deception of
the court. It is in this context that society and the courts and the
professions demand absolute personal integrity and scrupulous
honesty of each practitioner …

[35] It is true that legal representatives sometimes make errors of
law, omit to comply fully with the Rules of Court or err in other
ways related to the conduct of the proceedings. This is an
everyday occurrence. This does not, however, per se ordinarily

everyday occurrence. This does not, however, per se ordinarily

35Thunder Cats Investments 49 (Pty) Ltd and Others v Fenton and Others 2009 (4) SA 138
(CPD) at para [30]
36 2014 (3) SA 265 (GP)

18

result in the court showing its displeasure by ordering the
particular legal practitioner to pay the costs from his own pocket.
Such an order is reserved for conduct which substantially and
materially deviates from the standard expected of the legal
practitioners, such that their clients, the actual parties to the
litigation, cannot be expected to bear the costs , or because the
court feels compelled to mark is profound displeasure at the
conduct of an attorney in any particular context. Examples are,
dishonesty, obstruction of the interests of justice, irresponsible
and grossly negligent conduct, litigating, in a reckless manner,
misleading the court, and gross incompetent and a lack of care. ”
(own emphasis)

[37] A Court should thus agonise over whether to grant a personal costs
order given its punitive nature. An order of this ilk has significant
consequences for the good name of the representative.37 A Court should
guard against associating the representative with the merits of a
matter.38 A Judge should not assume that a case without merit is being
litigated on the advice of the lawyers involved. 39 This is for the obvious
reason that the representatives are arguing the case, not agreeing with it,
and the client has a C onstitutional right to have her proverbial day in
Court.40 There is an entrenched fundamental right to due process of law.
However, the right is not unqualified. Where there is an abuse of the
process, it may be restricted o r even forfeited.41 The doors of the Court
are open to bona fide litigants who pursue legitimate claims.42

[38] What is the role of a legal representative in the face of the spectre of an

37 Choeu v Department of Justice and Constitutional Development Limpopo and Others [2025] 4
BLLR 419 (LAC) at para [15]
38 Contra University of South Africa v Socikwa and Others (2023) 44 ILJ 1878 (LC) , overturned
on appeal in Choeu, where the Court, at para [44] , erroneously spoke of “... legal practitioners

[who] align themselves with cases...”.
39 Ridehalgh v Horsefield [1994] 3 WLR 462 at page 479
40 Section 34 of the Constitution
41 Nyandeni Local Municipality v MEC for Local Government and Traditional Affairs and Another
(CA68/09) [2009] ZAECMHC 28; 2010 (4) SA 261 (ECM) (12 November 2009) at paras [106] to
[124]
42 Beinash and another v Ernst and Young and Others 1999 (2) SA 116 (CC) at para [17]

19

abuse of process of law? It has always been so that a legal
representative is not the mere hireling or mouthpiece of her client. 43
Those privileged to appear in Courts of law are required to exercise an
independent discretion in the conduct and management of a case. They
bear a heavy responsibility to focus not only on the client’s success, but
also on the speedy and efficient administration of justice so that the time
of the Court is not wasted. I would venture to suggest that this duty is
heightened when prosecuting a case on the urgent roll, which is arguably
more vulnerable to abuse. Ideally a mindset, nay an ethic, should take
root in the psyche of the legal practitioner, compelling her, when the
implacable moments arrive where the narrow interests of the client
conflict or do not align with the proper administration of justice, to resist
the carnal urge to advance her client’s agenda and to choose instead to
adhere to the greater and nobler duty to the Court. It is worth noting that,
in relation to this ethical question, Counsel at least has , by virtue of the
Code of Conduct published in terms of Section 36(1) of the Legal
Practice Act 28 of 2014 (the Code), now been afforded protection against
interference by clients, inclusive of attorneys, in relation to attempts to
influence her professional judgment as to the proper conduct of the
litigation.
44

[39] Applying the above principles and having carefully considered the facts,
in my view a de bonis propriis costs order is warranted. In her
application, Ms Wheatley makes it plain that the motivation for her
application for legal representation in front of the CCMA is that she is, so
to speak, not in a good psychological and emotional space and that,
because of her mental fragility, she is too overwhelmed to represent

43 See the remarks of De Villiers JP in Cape Law Society v Vorster 1949 (3) SA 421 (C) at 425
as referred to with approval by Leach J (as he then was) Toto v Special Investigating Unit and

Others 2001 (1) SA 673 (E) at 683 C-D.
44 CODE OF CONDUCT FOR ALL LEGAL PRACTITIONERS, CANDIDATE LEGAL
PRACTITIONERS AND JURISTIC ENTITIES which provides as follows:
“25.3 Counsel shall upon acceptance of a brief exercise personal
judgment over all aspects of the brief and shall not permit any
person to dictate how the matter is to be conducted...” (Own
emphasis)

20

herself. This indicates to the Court that, in her vulnerable state, she
would have relied heavily on her representative's advice and guidance.
This would be one factor militating against penalising her for the manner
in which the litigation was conducted.

[40] When due consideration is given to the cumulative effect of the missteps
committed by Ms Ndlovu, the Court is constrained to conclude that the
prosecution of the application was accompanied by a marked degree of
incompetence, by gross negligence and by recklessness. This is not a
case where a legal practitioner was culpable of no more than “ muddled
thinking”.
45 In making elementary , yet, fundamental errors, it is apparent
that Ms Ndlovu did not familiarise herself with the Rules as she was
ethically required to do.46 There can be no basis in law and fairness why,
in such circumstances, the client should be liable for costs when it was
the presentation of the case by the legal representative which rendered it
fatally defective.

[41] The prayers that the Commissioner be “recused” or “removed” and that
the CCMA be required to account to the Labour Court on short notice by
way of the production of an investigation report seem calculated to annoy
or embarrass. They are vexatious. In circumventing the CCMA and the
Commissioner in the manner done in this matter, the reader can be
forgiven for gaining the impression that there was an ulterior motive at
play, namely the weaponising of the Court process with a view to
gratifying a sense of grievance or settling a score with the CCMA. Courts
exist to adjudicate on legitimate causes of action, not to provide a forum
to advance personal recriminations.

[42] Tilting the scales further in favour of granting such an order is that most,
if not all, of the relief sought , is, in the words of Holmes JA, “ obviously

45 Ntuli v Smit 1999 (2) SA 540 (LCC) at 552 F-G
46 Cf S v Sayed and others 2018 (1) SACR 185 (SCA) at para [19]

21

unsustainable”.47 It has been held that frivolous or vexatious litigation
constitutes an abuse of Court process.48 In the improbable event that
Ms Ndlovu was in fact acting on instructions in all respects when it came
to the manner in which the case was presented, then, in the Court’s view,
having due regard to her overarching duty to the Court, she fell short in
not declining to advance the case, which she did. The case was
hopeless in the sense that it was unarguable.49 It was “dead on arrival”.50

[43] In persisting with an application which brought in its train a hotchpotch of
manifestly legally untenable propositions,51 Ms Ndlovu strayed beyond
the bounds of propriety. It is settled law that conducting litigation in this
fashion exposes the practitioner to a personal costs order. 52 No
reasonably competent legal representative would have persisted with the
application. A bare assertion that the practitioner was acting on
instructions does not constitute an answer where those instructions, if
followed, would necessarily involve a departure from the practitioner ’s
paramount duty to the Court . As explained in Engen Petroleum Ltd v
Moodley NO and Another , a legal representative’s duty to a client
“…never translates into the embarrassing charade of putting up silly
points that are unarguable…” .53 The duties of legal practitioners in this
respect have now been formalised in the Code. The Code is not confined
to forbidding direct abuse of Court process: It equally condemns a supine

47 African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 565D-E
48 Per Innes CJ in Western Assurance Co v Caldwell’s Trustee 1918 AD 262 at 271. See also
the sentiments expressed by the Constitutional Court in Beinash at para [17].
49 The Court is not required to express a view on the category of cases which fall within the well-
known dictum of Megarry J in John v Rees and Others; Martin and Another v Davis and Others;

known dictum of Megarry J in John v Rees and Others; Martin and Another v Davis and Others;
Rees and Another v John [1970] 1 Ch 345; [1969] 2 All ER 274 which contemplates cases
where the prospects of success are so remote as to make the outcome appear, in his phrase
“open and shut” yet still conceivably capable of salvage. At the risk of oversimplifying matters, it
seems that the jurisprudence distinguishes between those matters which appear hopeless, but
are nonetheless arguable (likely , even very likely, to fail, but legitimate to advance) and those
that are truly hopeless and unarguable (should never have been brought and amount to an
abuse of Court process). The dividing line, although real, may not always be easily drawn,
particularly when the assessment turns on whether there is credible evidence to support a case.
50 Cf Public Protector of South Africa v Chairperson of the Section 194(1) Committee and
Others [2024] 4 All SA 693 (SCA); 2025 (4) SA 428 (SCA) at para [44]
51 Cf Trustees for the time being of Children's Resource Centre Trust and Others v Pioneer
Food (Pty) Ltd and Others 2013 (2) SA 213 (SCA); 2013 (3) BCLR 279 (SCA); [2013] 1 All SA
648 (SCA) at para [35].
52 Webb and Others v Botha 1980 (3) SA 666 (N) at 672C-673H.
53 [2017] ZAGPJH 78 para [52]

22

or acquiescent posture that enables a practitioner to facilitate or become
a conduit for such abuse.54

[44] There is a further observation to be made. It is uncontroversial that
practitioners should not compromise their independence by identifying or
aligning themselves with the issues they advance on behalf of their
clients. This matter came before the Court on a congested urgent roll
characterised by rapid adversarial exchanges. The dust having settled,
the Court, in hindsight, has reservations as to whether Ms Ndlovu should
have appeared in the first place. She had personal knowledge of material
facts which were hotly disputed. Such would probably have affected her
professional judgment and her ability to retain her independence and
objectivity in relation to her client and the litigation as a whole. Whilst she
did not depose on oath, she was a potential witness. On the face of it,
there may have been a conflict,
55 albeit an indirect one, between her role
as representative and that of potential witness . She also drew heads of
argument in support of the case of Ms Wheatley repeating the
correctness of Ms Weatley’s version. If representatives are personally
involved in a matter, in the sense that they have direct knowledge of the
facts and those facts are in dispute, it tends to undermine the integrity of
the proceedings and may give them an appearance of impropriety.
However, the Court does not hold Ms Ndlovu culpable for her
appearance. She appear ed without objection from the Respondents’
representatives. The Court also did not raise any concern about it ,
although, on reflection, it perhaps should have.

Referral to the LPC


54 The Code provides that:
“60.1. A legal practitioner shall not abuse or permit abuse of the process of court or
tribunal and shall act in a manner that shall promote and advance efficacy of the legal
process.” (own emphasis)
55 Cf African Banking Corporation of Botswana v Kariba Furniture Manufacturers & Others 2015

55 Cf African Banking Corporation of Botswana v Kariba Furniture Manufacturers & Others 2015
(5) SA 192 (SCA); [2015] 3 All SA 10 (SCA) at para [38]

23

[45] At paragraph 110.2 of the answering affidavit of Mr Mabona the following
is recorded:

“One final issue which is of importance to note, is that notwithstanding
the fact that the Applicant's legal representative was a participant to
these proceedings before the CCMA, there is no Confirmatory
Affidavit which has ever been annexed to the Founding Affidavit in
support of the allegations made by the Applicant. This is concerning
to note and the only inference that can be drawn by the Third
Respondent is that the Applicant’s legal representatives did not wish
to depose to an Affidavit which does not set out the correct factual
matrix that took place at the CCMA on the date in question.”

[46] It is thus contended, albeit implicitly, that Ms Ndlovu was arguing a
factual position which she knew to be false. In response to paragraph
110.2, Ms Wheatley said “... we (sic) both in the same room ( sic) there
was nothing to confirm“.56

[47] The Code provides, inter alia, that:

“57.1 A legal practitioner shall take all reasonable steps to avoid,
directly or indirectly, misleading a court or a tribunal on any
matter of fact or question of law. In particular, a legal
practitioner shall not mislead a court or a tribunal in respect of
what is in papers before the court or tribunal, including any
transcript of evidence.

…

57.9 A legal practitioner shall not rely on any statement made in
evidence which he or she knows to be incorrect or false.”

56 Para 30 of the replying affidavit

24


[48] The bone of contention is whether it was Ms Wheatley and Ms Ndlovu
(who repeated the allegations of Ms Wheatley in her heads of
argument)57 or the CCMA and Woolworths , who sought to mislead the
Court as to what transpired at the 21 October 2025 sitting. There are
further ancillary allegations of misrepresentations regarding the events of
21 October 2025. Reference may be made to paragraph 3.6 of the
founding affidavit and the response by Mr Mabona at para 94.1 of his
answering affidavit , paragraph 3.7 and the response thereto by
Mr Mabona at paragraphs 95.2 and 95.3, paragraph 3.8 and the
response thereto by Mr Mabona at paragraph 96.1 and paragraph 3.8.1
and the response thereto by Mr Mabona at paragraph 97.1. The manner
in which the litigation was conducted aside, 58 there is also the
controversial assertion in the Certificate of Urgency that the
commencement of the arbitration was “ imminent”. Lastly, there is the
allegation that the Commissioner was part of an alleged cover-up.59 In
Tshazibane v Montego Pet Nutrition and Others the Court emphasis ed
the gravity of making unsubstantiated allegations against a
Commissioner.
60 In De Lacy 61 the Constitutional Court referred to the
regulatory body at the time, for investigation, allegations of bias made by
legal practitioners against a panel of the Supreme Court of Appeal
judges.

Order

1. The application is dismissed.


57 In her heads of argument Ms Ndlovu recorded as follows at page 3:
“9. The commissioner granted the request for legal representation orally and unequivocally.”
58 Para 60.1. of the Code is potentially implicated.
59 See para [4] of this judgment.
60 (PR 72/21) [2022] ZALCPE 19; (2022) 43 ILJ 2610 (LC); [2022] 12 BLLR 1151 (LC) at para
[23]
61 De Lacy and Another v South African Post Office [2011] ZACC17; 2011 (9) BCLR 905 (CC) at
para [120]

25

2. The Applicant’s attorneys are to pay, de bonis propriis , the costs of the
application on Scale C.

3. The Registrar is directed to furnish a copy of this judgment to the
Chairperson of the Legal Practice Council and the Director of the
KwaZulu-Natal Legal Practice Council.


_______________________
P N KROON
Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Ms Ndlovu of Connie Ndlovu Inc.

For the First Respondent: Mr Pillay of the CCMA, Durban

For the Third Respondent: Mr Kirby-Hirst of MacGregor Erasmus
Attorneys Incorporated