Brief Summary

Jurisdiction — Labour Court — Applicant seeking relief against parties not involved in employment relationship — Court finding no jurisdiction under the Labour Relations Act (LRA) to grant relief against non-employees — First respondent no longer an employee, thus no jurisdiction to grant relief against her — Applicant failing to plead fundamental rights violation necessary for jurisdiction under s 157(2)(a) of the LRA — Application dismissed for lack of jurisdiction and deemed an abuse of process.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings took the form of an urgent motion application in the Labour Court in which the applicant sought interdictory relief and relief ad factum praestandum. The relief was directed principally at preventing and reversing public commentary by the respondents concerning a dismissal dispute that was pending before the Commission for Conciliation, Mediation and Arbitration (CCMA).

The applicant was Redpath Mining South Africa (Pty) Ltd. The first respondent, Malwanda Pearl Nkuna, was the applicant’s former employee whose dismissal dispute was pending in the CCMA. The second respondent, On the Move Political Party, and the third respondent, Victor Mokonyane, were cited because of their involvement in publishing videos and statements concerning the first respondent’s complaint and broader allegations about workplace practices. The CCMA (fourth respondent) and the commissioner (fifth respondent) were joined only on the basis of a possible interest, and no substantive relief was sought against them.

The procedural background was that the first respondent had referred an unfair dismissal dispute to the CCMA, which had been conciliated unsuccessfully and was then arbitrated. The arbitration was part-heard and stood over for continuation. After the political party and its president published videos and statements featuring the first respondent, the applicant demanded undertakings that publications be removed and that the respondents refrain from public statements pending the CCMA proceedings. When the undertakings were refused, the applicant brought the present urgent application.

The dispute before the Labour Court did not concern the merits of the dismissal, but rather whether the Labour Court had jurisdiction to grant relief restraining publications and requiring their removal on the basis that the matter was sub judice and that the publications allegedly interfered with, or prejudiced, the CCMA proceedings.

Material Facts

It was common cause that the first respondent had been employed by the applicant and was dismissed with effect from 1 July 2025. The applicant did not itself set out the substantive basis for dismissal in its founding affidavit, but referred to the first respondent’s CCMA referral, which characterised the dismissal as one for incapacity due to illness, coupled with an allegation of discrimination arising from an alleged failure to accommodate her illness. The dispute was referred to the CCMA under case number LP 6491-25, was conciliated unsuccessfully on 30 July 2025, and proceeded to arbitration.

The arbitration was set down for 20 and 21 November 2025. The proceedings commenced and evidence was led from the applicant’s HR manager. The arbitration did not conclude because the first respondent was admitted to hospital, leading to a postponement for continuation on 24 and 25 February 2026. It was not in dispute that the second and third respondents were not participants in the CCMA proceedings.

The second respondent was a political party registered on 28 March 2025, operating principally in Limpopo (including the region where the applicant conducted operations). The third respondent was the party’s president and used a Facebook page for party communications. On 29 December 2025 the third respondent posted a video featuring the first respondent, accompanied by a statement alleging psychological abuse, discrimination, marginalisation of locals, and “quiet firing” practices at the applicant and at the mine where the applicant operated. The video drew substantial online engagement and was also posted on TikTok.

In the video, the first respondent spoke about workload, the appointment of a new buyer, perceived exclusion from meetings, office allocation, reassignment to menial purchasing, and alleged discrimination. The court recorded that she did not address the merits of the pending CCMA case in the video. A further video and statement followed on 31 December 2025, broadening allegations to a “pattern” of bullying and discrimination, and indicating that the political party had served a letter and contemplated legal action and mass mobilisation if demands were not met.

On 5 January 2026, the applicant’s attorneys issued a letter of demand to the second respondent (and a similar letter to the first respondent’s attorneys) asserting that the publications concerned a matter that was sub judice due to the part-heard CCMA arbitration, and demanding undertakings, including cessation of statements and withdrawal of content. The second respondent replied on 7 January 2026, denying that it was a party to CCMA proceedings or acting as a litigant there, asserting political advocacy rights, and contending it had not commented on evidence, pleadings, or the merits of the CCMA process. It refused to provide the undertakings sought. The applicant then launched the urgent Labour Court application on 9 January 2026.

Legal Issues

The central issue was whether the Labour Court had jurisdiction to grant the interdictory and mandatory relief sought against the first, second, and third respondents. The jurisdictional foundation pleaded by the applicant was section 157(2)(a) of the Labour Relations Act 66 of 1995 (LRA), on the basis of an alleged or threatened violation of a fundamental right in Chapter 2 of the Constitution “arising from employment and from labour relations”.

This raised questions that were primarily questions of law, including the proper construction and limits of the Labour Court’s jurisdiction under section 157, whether the pleaded dispute arose from “employment and labour relations” as required by section 157(2)(a), and whether an applicant invoking section 157(2)(a) must identify the specific constitutional right allegedly infringed and plead how it is infringed.

A further issue, raised in argument but not pleaded in the founding affidavit, was whether the applicant could rely directly on section 23 of the Constitution (the right to fair labour practices) as the “fundamental right” for purposes of section 157(2)(a). In addition, although the applicant’s complaint was framed around the sub judice rule, the court had to decide whether adjudication of that complaint (and the defamation-oriented relief sought) fell within the Labour Court’s remit or was instead a matter for the High Court.

Court’s Reasoning

The court approached the matter on the basis that jurisdiction is determined by the applicant’s pleaded case, and not by later reformulation in argument. It further applied motion-proceedings principles for factual disputes, but noted that the material factual matrix was largely common cause and that the matter ultimately turned on jurisdiction.

Although the matter was brought urgently, the court accepted urgency. It reasoned that the applicant acted promptly after the end-December publications, first sought undertakings to avoid litigation, and launched proceedings shortly after receiving the refusal. The court regarded it as appropriate to dispose of the matter on the merits given the centrality of jurisdiction.

On jurisdiction, the court emphasised that section 157(1) of the LRA does not confer a general jurisdiction on the Labour Court in “employment matters” broadly stated. The Labour Court’s power is statutory and must be sourced in the LRA or another employment statute allocating jurisdiction and remedies to it. The court accepted that the kind of relief sought—interdicting publications and requiring their removal—would ordinarily be relief a High Court could grant, but held that it did not follow that the Labour Court could exercise the same power unless the strict requirements of section 157(2)(a) were satisfied.

Interpreting section 157(2)(a) narrowly (consistent with Constitutional Court and appellate authority), the court held that two conjunctive requirements must be met. There must be an alleged or threatened violation of a Chapter 2 fundamental right, and that violation must arise from “employment and from labour relations”. The court treated the “employment and labour relations” requirement as requiring more than the subject-matter of labour practices in the abstract; it requires an employment/labour-relations nexus of the kind regulated by the LRA, typically involving the relationship between an employer and employees (often including collective labour relations), and remedies contemplated by the LRA.

Applying these principles, the court identified several jurisdictional obstacles on the pleaded case. First, the second and third respondents were strangers to the applicant’s labour relationship: they were neither employer nor employee, nor trade union or employer organisation, nor parties contemplated by the LRA dispute-resolution scheme in relation to the applicant. The court accepted that the LRA can in some circumstances reach third parties, including political parties, but held that this would be where the third party actually performs labour-relations functions (for example, instigating or supporting strike action with employees and acting in a role akin to a trade union), and where the conduct engages the LRA’s regulatory framework and remedies. The court contrasted such cases with the present matter, where the political party’s publications were characterised as political/community advocacy rather than participation in an employer-employee labour dispute.

Second, the first respondent had been dismissed months earlier and was no longer an employee. The court regarded the absence of an existing employment relationship as an additional jurisdictional impediment to the Labour Court granting the relief sought against her, particularly where the dispute did not fall within an LRA-created remedy for the circumstances pleaded.

Third, and critically, the applicant pleaded reliance on section 157(2)(a) but did not identify the particular fundamental right allegedly violated, nor plead how such violation arose from employment and labour relations. The court held that an applicant invoking section 157(2)(a) must clearly identify the right relied upon and plead a case bringing the matter within the ambit of that provision. The applicant’s attempt in argument to locate the right in section 23(1) of the Constitution was treated as problematic because it was not pleaded and, in any event, direct reliance on a constitutional right is not permitted where legislation (here, the LRA) gives effect to that right, and the claim is not brought within the remedial architecture of that legislation.

As to the sub judice complaint, the court described the doctrine and noted authority linking it to protection of the fairness of adjudicative processes, potentially implicating section 34 of the Constitution. However, it held that it was not for the Labour Court to decide whether the sub judice rule was violated on these facts because the dispute, as pleaded, was not a matter of employment and labour relations under the LRA and involved parties outside the CCMA proceedings. The court further observed that the applicant had not substantiated any real risk that the CCMA proceedings would be compromised, and that the thrust of the applicant’s complaint was reputational harm and defamation-type consequences—matters ordinarily within the High Court’s domain when litigated between parties not linked by the labour-relations framework.

In sum, the court concluded that the pleaded claim sought to draw the Labour Court into a defamation/sub judice dispute against a political party and its president, without the necessary employment-and-labour-relations nexus and without a properly pleaded constitutional-right infringement under section 157(2)(a). Accordingly, the Labour Court lacked jurisdiction.

On costs, the court considered the labour-law costs principles and reaffirmed that they do not confer blanket immunity from adverse costs orders. Applying the fairness standard in section 162(1) of the LRA, the court held that the application was hopeless and constituted an abuse of process, particularly given that the applicant was legally represented and should have appreciated that the Labour Court was the incorrect forum. The court declined to award punitive costs but granted party-and-party costs on scale B.

Outcome and Relief

The court directed that the matter be heard as urgent, but dismissed the application for want of jurisdiction.

The applicant was ordered to pay the costs of the first, second, and third respondents on the party and party scale B. No relief was granted against the CCMA or the commissioner.

Cases Cited

| Citation |
|---|
| Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another (2016) 37 ILJ 2840 (LC) |
| Baloyi v Public Protector and Others (2021) 42 ILJ 961 (CC) |
| Besani v Maquassi Hills Local Municipality (2016) 37 ILJ 1386 (LC) |
| Boomerang Fruits (Pty) Ltd v Umkhonto WeSizwe and Others (2025) 46 ILJ 2599 (LC) |
| Booysen v Beaufort West Municipality and Another (2021) 42 ILJ 2415 (LC) |
| Calgan Lounge (Pty) Ltd v National Union of Furniture and Allied Workers of SA and Others (2019) 40 ILJ 342 (LC) |
| Chirwa v Transnet (2008) 29 ILJ 73 (CC) |
| Children’s Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others 2013 (2) SA 213 (SCA) |
| Cibane and Another v Premier of Province of Kwazulu-Natal [2025] 10 BLLR 1004 (LAC) |
| CCI SA (Pty) Ltd v African National Congress Youth League and Others (2024) 45 ILJ 969 (LAC) |
| Du Plessis v Public Protector and Others (2020) 41 ILJ 919 (LC) |
| Ekurhuleni Metropolitan Municipality v SA Municipal Workers Union on behalf of Members (2015) 36 ILJ 624 (LAC) |
| Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) |
| Gbenga-Oluwatoye v Reckitt Benckiser SA (Pty) Ltd and Another (2016) 37 ILJ 902 (LAC) |
| Gcaba v Minister for Safety and Security and Others (2010) 31 ILJ 296 (CC) |
| Hadjidakis v Independent Newspapers (Pty) Ltd 2004 JDR 0281 (C) |
| Hix Networking Technologies v System Publishers (Pty) Ltd and Another 1997 (1) SA 391 (A) |
| Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC) |
| Jooste v Staatspresident en Andere 1988 (4) SA 224 (A) |
| Langplaas Boerdery CC and Others v Matshini and Others (2021) 42 ILJ 1210 (LC) |
| Magoda v Director-General of Rural Development and Land Reform and another (2017) 38 ILJ 2795 (LC) |
| Makhanya v University of Zululand (2009) 30 ILJ 1539 (SCA) |
| Mashishi v Mdladla NO and Others (2018) 39 ILJ 1607 (LC) |
| Mbatha v University of Zululand (2014) 35 ILJ 349 (CC) |
| Midi Television (Pty) Ltd v Director of Public Prosecutions (WC) 2007 (5) SA 540 (SCA) |
| Minister of Justice and Correctional Services and others v Tshifhango and Another [2019] 7 BLLR 627 (LAC) |
| Mokoena v Merafong Municipality and Others (2020) 41 ILJ 234 (LC) |
| Molapo Technology (Pty) Ltd v Schreuder and Others (2002) 23 ILJ 2031 (LAC) |
| Moodley v Department of National Treasury and Others (2017) 38 ILJ 1098 (LAC) |
| Motor Industry Staff Association v Macun NO and Others (2016) 37 ILJ 625 (SCA) |
| National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) |
| Norodien v Ajax Cape Town Football Club (Pty) Ltd t/a Ajax Cape Town Football Club and Others (2015) 36 ILJ 472 (LC) |
| Performing Arts Council of Free State v Commission for Conciliation, Mediation and Arbitration and Others (JR 82/18) [2021] ZALCJHB 70 (27 May 2021) |
| Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) |
| Primedia Outdoor, Division of Primedia (Pty) Ltd v Phala NO 2013 JDR 0076 (LC) |
| Public Servants Association on behalf of Members v Minister of Health and Others (2019) 40 ILJ 193 (LC) |
| Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2) SA 359 (CC) |
| Romero v Gauteng Newspapers Ltd and Others 2002 (2) SA 431 (W) |
| SA Maritime Safety Authority v McKenzie (2010) 31 ILJ 529 (SCA) |
| SA Medical Association Trade Union on Behalf of Rikhotso v Member of the Executive Council, Department of Health, Limpopo Province and Others (2023) 44 ILJ 1779 (LC) |
| SA Municipal Workers Union and Others v Mokgatla and Others (2016) 37 ILJ 1317 (SCA) |
| SAMWU obo Nemo and Others v Mopani District Municipality (J3047/12) [2013] ZALCJHB 34 (9 April 2013) |
| Shezi v SA Police Service and Others (2021) 42 ILJ 184 (LC) |
| Shikwane and Another v Bojanala Platinum District Municipality and Others (J 774/20) [2020] ZALCJHB 191 (29 August 2020) |
| Soobedar and Another v Minister of International Relations and Cooperation and Another (2021) 42 ILJ 1761 (LC) |
| South African Broadcasting Corporation (SOC) Ltd v Keevy and Others [2020] 6 BLLR 607 (LC) |
| South African Football Association v Mangope (2013) 34 ILJ 311 (LAC) |
| TIBMS (Pty) Ltd t/a Halo Underground Lighting Systems v Knight and Another (2017) 38 ILJ 2721 (LAC) |
| Transport and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others (2015) 36 ILJ 2148 (LC) |
| Union for Police Security and Corrections Organisation v SA Custodial Management (Pty) Ltd and Others (2021) 42 ILJ 2371 (CC) |
| Vodacom (Pty) Ltd and Others v National Association of SA Workers and Another (2019) 40 ILJ 1882 (LC) |
| Waco Africa (Pty) Ltd t/a Form-Scaff v Sack and Others (2020) 41 ILJ 1771 (LC) |
| Zungu v Premier of the Province of KwaZulu-Natal and Others (2018) 39 ILJ 523 (CC) |

Legislation Cited

| Legislation |
|---|
| Constitution of the Republic of South Africa, 1996 |
| Labour Relations Act 66 of 1995 |
| Employment Equity Act 55 of 1998 (as amended) |
| Basic Conditions of Employment Act 75 of 1997 (as amended) |
| Regulation of Gatherings Act (referred to as “RGA”) |

Rules of Court Cited

| Rule |
|---|
| Rule 7(1) of the Uniform Rules of the High Court |

Held

The court held that it lacked jurisdiction to grant the relief sought against the first, second, and third respondents. The application, although framed as one implicating section 157(2)(a) of the LRA, did not plead the identification and violation of any specific fundamental right in Chapter 2 of the Constitution, and it did not establish that any such violation arose from employment and labour relations as required by section 157(2)(a).

The court further held that the second and third respondents were not parties to the employment relationship or to the CCMA proceedings and were not shown, on the pleaded facts, to be performing labour-relations functions in a manner attracting the LRA’s framework. The first respondent was also no longer an employee at the time of the publications. The substance of the claim, centred on alleged defamation and reliance on the sub judice principle, was characterised as falling within the domain of the High Court rather than the Labour Court.

LEGAL PRINCIPLES

The judgment applied the principle that jurisdiction must be determined from the applicant’s pleaded case, and that a court without jurisdiction has no power to decide the merits other than to dismiss for want of jurisdiction. In motion proceedings, factual disputes are approached on the basis of admitted facts together with the respondent’s version, subject to established exceptions.

The judgment reaffirmed that the Labour Court does not enjoy general jurisdiction over disputes merely because they relate to employment in a broad sense. The Labour Court’s jurisdiction is statutorily conferred, principally by section 157 of the LRA, and litigants must identify the statutory source that empowers the Labour Court to determine the dispute and to grant the remedy sought.

In relation to section 157(2)(a) of the LRA, the judgment applied a narrow construction consistent with constitutional and appellate authority. For section 157(2)(a) to confer jurisdiction, there must be an alleged or threatened violation of a fundamental right entrenched in Chapter 2 of the Constitution, and that violation must arise from employment and from labour relations, construed conjunctively and within the LRA’s regulatory setting.

The judgment further applied the requirement that an applicant relying on section 157(2)(a) must identify and plead the specific fundamental right relied upon and plead facts showing how it is infringed in the employment-and-labour-relations context. A litigant cannot ordinarily rely directly on a constitutional right where legislation gives effect to that right, and the claim is not brought within the remedial framework created by that legislation.

The judgment also recognised that, while third parties such as political parties may in some cases fall within the Labour Court’s jurisdiction, this occurs where such actors actively involve themselves in labour relations regulated by the LRA (for example by instigating or supporting employee industrial action and effectively performing functions associated with a trade union), and where the dispute engages LRA remedies. Mere public commentary or political advocacy about labour practices, without the requisite labour-relations nexus and employee involvement, does not by itself bring the matter within the Labour Court’s jurisdiction.

On costs, the judgment applied the principle that the Labour Court retains a discretion to award costs under section 162(1) of the LRA, and that the fairness standard may justify costs where litigation is hopeless, legally untenable, or constitutes an abuse of process, even in the labour-law context.

Redpath Mining South Africa (Pty) Ltd v Nkuna and Others (2026/002899) [2026] ZALCJHB 18 (23 January 2026)