Summary of Judgment

1. Introduction

This judgment concerned an opposed urgent interlocutory application brought in the Labour Court under section 18(3) of the Superior Courts Act 10 of 2013. The application arose in the context of further proceedings following an earlier judgment delivered by Lagrange J, in respect of which an application for leave to appeal was contemplated or pending. The present section 18(3) application was treated by the court as interlocutory to the application for leave to appeal.

The proceedings were instituted by multiple applicants, headed by the Legal Practice Council as first applicant, together with ten further applicants (including various individuals and entities). The respondent was Madonsela, Zandile Ms.

The court expressly stated that the matter had a “long and troubled history”, but held that it was unnecessary to traverse that history for purposes of determining the immediate procedural question before it. The dispute before the court on the day concerned, in substance, how the section 18(3) application should proceed, given the court’s concern about judicial allocation and the relationship between the section 18(3) application and the pending leave to appeal process.

2. Material Facts

An earlier judgment in the matter had been delivered by Lagrange J. In the wake of that judgment, a section 18(3) application was brought as urgent proceedings. The court characterised the section 18(3) proceedings as being, “in truth”, interlocutory to the application for leave to appeal, because the latter would ordinarily be heard by the judge who gave the judgment.

The matter came before Kroon AJ on the urgent roll. The court, acting mero motu, raised with the parties whether it was appropriate for a judge other than the judge who delivered the judgment (and who would be required to hear the application for leave to appeal) to hear the present section 18(3) application. The court recorded that, while it may not be an absolute rule, there is a practice that the same judge hears both the leave to appeal and related interlocutory matters of this kind.

It was common cause in the discussion before the court that the applicants’ heads of argument indicated an intention (particularly by the first applicant, the Legal Practice Council) to argue that the contemplated leave to appeal was without merit and formed part of a so-called “Stalingrad” strategy, albeit within a disciplinary context. The court’s concern was that if it engaged the merits in that setting, it might prejudge the application for leave to appeal and create the risk of conflicting judgments.

Following debate, the parties reached consensus that the matter should not proceed before Kroon AJ. The parties differed, however, on the appropriate procedural disposition. The respondent’s counsel contended for the matter to be struck from the roll with costs, whereas the applicants’ counsel indicated a preference for the matter to be postponed or removed from the roll.

Further issues were raised by the respondent in argument, including that the matter was allegedly not urgent, and an “authority point” arising from a Rule 7 notice delivered (on the respondent’s version) substantially out of time and without an accompanying condonation application. The respondent also criticised the applicants’ legal representatives as impermissibly seeking to represent all the applicants. The court expressed preliminary views on some of these matters but held that these points were best addressed by the court that ultimately hears the application, and did not determine them.

Separately, the court had issued a directive on 9 December 2025 enquiring whether a timetable for filing papers had been agreed. A joint response (received by the court on 11 December 2025 but only drawn to the judge’s attention later) indicated that the respondent had delivered an answering affidavit and heads of argument, that the Legal Practice Council would deliver a replying affidavit by 19 December 2025, and that supplementary heads would be filed ten days before set down. In light of that response, the court considered it unnecessary to make any ruling on filing timelines.

3. Legal Issues

The central issue determined by the court was a procedural and case-management question rather than the substantive merits of the section 18(3) relief. The question was whether it was appropriate for Kroon AJ to hear a section 18(3) application that was effectively interlocutory to an application for leave to appeal, where the leave to appeal would ordinarily be heard by the judge who delivered the judgment (Lagrange J).

Closely allied to that was the question of the proper procedural outcome once the parties accepted that the matter should not proceed before Kroon AJ, namely whether the matter should be struck from the roll, postponed, or removed from the roll, and what should happen with costs.

Although other disputes were ventilated (including urgency, authority under Rule 7, and the propriety of the applicant configuration), the court treated these as matters to be addressed by the court that would ultimately hear the application, and therefore they were not finally determined. The dispute before Kroon AJ thus primarily concerned the application of procedural practice and fairness considerations to the allocation of judicial responsibility, rather than a determination of factual disputes or a substantive value judgment on the merits of the underlying relief.

4. Court’s Reasoning

The court proceeded from the proposition that the section 18(3) application was, in substance, interlocutory to the application for leave to appeal. In that context, the court noted that the Superior Courts Act contemplates that the judge who delivered the judgment will generally adjudicate the leave to appeal (subject to availability), and it referred to the existence of a practice that the same judge hears both the leave to appeal and related interlocutory issues.

A central aspect of the court’s reasoning was the risk of prejudice and inconsistency. Given that the applicants’ heads of argument indicated an intention to argue that the leave to appeal was meritless and part of a delaying strategy, the court reasoned that if it were to pronounce on the merits of the leave-to-appeal prospects in the course of the section 18(3) application, it could improperly prejudge the leave to appeal. Additionally, the court identified the potential procedural problem of two conflicting judgments, one by Kroon AJ and another by Lagrange J, in circumstances where the latter judge would be tasked with the leave to appeal.

In light of these concerns, and given that the parties ultimately agreed that the matter should not proceed before Kroon AJ, the court considered the contested submissions as to striking versus removing/postponing. The court did not accept that it should finally determine the respondent’s other objections (including urgency and authority), emphasising that these were better left to the court that would ultimately hear the application. The court also observed, without making a final ruling, that section 18(3) applications are by their nature urgent, while reiterating that urgency should be addressed by the court hearing the matter.

On the practical management of the case, the court noted the parties’ joint response on the timetable for filing further papers. Because the parties had arranged a timetable themselves, the court saw no need to issue further directions regarding filing.

Ultimately, to avoid prejudging the merits and to ensure coherent adjudication by the judge associated with the underlying judgment and the leave to appeal process, the court chose to remove the application from the roll, and directed that the parties should approach Lagrange J, preferably jointly, to arrange a hearing date.

5. Outcome and Relief

The court removed the application from the roll.

The parties were granted liberty to approach Lagrange J, preferably on a joint basis, to ascertain when the matter may be heard.

The court ordered that costs are reserved.

Cases Cited

Afriforum NPC v City of Tshwane Metropolitan Municipality and Others (31 July 2025).

Inxuba Yethemba Local Municipality v Msweli and Others (PR 198/21) [2023] ZALCPE 23; [2024] 2 BLLR 154 (LC); (2024) 45 ILJ 548 (LC) (17 November 2023).

Maughan v Zuma and Others (12770/22P;13062/22P) [2023] ZAKZPHC 59; [2023] 3 All SA 484 (KZP); 2023 (5) SA 467 (KZP); 2023 (2) SACR 435 (KZP) (7 June 2023).

Kruger and others v Aciel Geomatics (Pty) Ltd (JA87/2014) [2016] ZALAC 92 (14 June 2016).

Maughan v Zuma and Another; Downer v Zuma and Another (12770/22P; 13062/22P) [2023] ZAKZPHC 75 (3 August 2023).

Legislation Cited

Superior Courts Act 10 of 2013, section 18(3).

Rules of Court Cited

Uniform Rules of Court, Rule 7 (authority to act), referenced in relation to a “Rule 7 notice”.

Held

The Labour Court held that it was not appropriate for the section 18(3) application, which was treated as interlocutory to an application for leave to appeal, to proceed before a judge other than the judge who delivered the judgment and who would be required to hear the leave to appeal. To avoid prejudging the merits of the contemplated leave to appeal and to avoid the risk of conflicting determinations, the court removed the application from the roll, granted the parties leave to approach Lagrange J to arrange a hearing, and reserved costs.

LEGAL PRINCIPLES

The judgment applied the procedural principle that where a matter is interlocutory to an application for leave to appeal, it is generally preferable, as a matter of practice and coherent adjudication, that the matter be dealt with by the same judge who delivered the principal judgment and who will adjudicate the leave to appeal, subject to availability.

The judgment further applied the principle that courts should avoid determining interlocutory matters in a manner that prejudges the merits of pending proceedings (here, the application for leave to appeal), particularly where there is a risk of inconsistent or conflicting judgments arising from parallel determinations by different judges.

In addition, while not finally deciding urgency, the judgment reflected the approach that a section 18(3) application is inherently urgent in nature, but that contested questions such as urgency, authority to act, and party-joinder configuration are ordinarily to be decided by the court that ultimately hears the application on its merits.