THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: 2025-205156
In the matter between:-
PORTIA HALIO TSHABALALA Applicant
and
ADVOCATE HARRIET MUTENGA N.O. First Respondent
MOQHAKA LOCAL MUNICIPALITY Second Respondent
This j udgment was handed down electronically by circulation to the parties and
legal representatives by email and by uploading onto CaseLines. The date and
time for hand-down is deemed to be 02 February 2026.
Summary:
Authority – authority to institute proceedings challenged – principles
considered – proper evidence of authority provided – challenge of authority by
the applicant dismissed
Interdict – principles considered – interdict meant to deal with future events /
conduct – interdict not competent for past conduct – conduct sought to be
interdicted already transpired / happened – impossible for conduct to be
repeated – interdict sought not competent
Jurisdiction – s 157(1) – applicant failing to establish jurisdiction of the Court
to grant the relief sought – Court not having general jurisdiction as relied on by
applicant – applicant not pleading reliance on rights under the LRA or
employment laws – Cibane and Another v Premier of Province of Kwazulu-
Natal considered – C ourt having no jurisdiction to intervene in incomplete
(1) Reportable: Ye
(2) Of interest to other Judges: Yes
(3) Revised
____________ ______________
Signature Date
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disciplinary proceedings under section 157(1) – Court having no jurisdiction to
consider case based on unlawfulness – matter falls to be dismissed for want of
jurisdiction
Jurisdiction – s 158(1)(a) considered – section does not confer jurisdiction but
only conveys powers on Court – jurisdiction must be conferred based on other
provisions under LRA / other employment laws for s 158(1)(a) to apply –
applicant’s reliance on s 158(1)(a) misplaced – section cannot be used to
confer jurisdiction to consider applicant’s application
Jurisdiction – s 158(1)(h) considered – Court does have review jurisdiction
under s 158(1)(h) – requires application of ordinary principles / processes
relating to review applications – urgent and final intervention on basis of
review not competent – review also not competent where real issue in dispute
resorts under ordinary LRA remedies – applicant non-suited on such basis
Review jurisdiction – urgent review application in medias res – principles
considered – requires exceptional circumstances for intervention to be show n
– applicant failing to establish exceptional circumstances – applicant’s review
in medias res not competent
Order – interdictory relief sought by applicant not competent – overall
considered Court having no jurisdiction to consider applicant’s application –
application dismissed
Costs – application constitutes an abuse of process – application should never
have been pursued and / or persisted with – principles relating to punitive
costs considered – punitive costs awarded
JUDGMENT
SNYMAN, AJ
Introduction
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[1] It serves good purpose to start this judgment with some pertinent quotes, the
relevance of which will appear from this judgement. First, in George v Nyoka
and Others1, it was said: ‘… The Court deems it necessary to outline all of the
above for the simple reason that these antiquated shenanigans, exhausting as
they are, in the end come back to bite the employees when claiming urgency
in this Court. This Court has consistently rebuked such truant like antics, which
are in most instances aided and encouraged by legal representatives. …
These antics are truly exhausting, not only to the court’s resources but also
because in the end, they turn out to be financially draining for the already
financially depleted municipalities or government departments and its entities.
…’. Next, in Minya v SA Post Office Ltd and Others
2 the Court held: ‘ …
Equally worrisome with these applications, is that more often than not, no legal
basis is pleaded for this court to assume jurisdiction, other than flippant and
out of context references to terms such as ‘unlawful’, ‘invalid’, ‘legality’, ‘void’,
‘unconstitutional’, and in some instances, ‘unfairness’, with the hope that relief
will be granted. …’. Further, in Public Allied Workers Union of SA on Behalf of
Netshikhudini v Commission for Conciliation, Mediation and Arbitration and
Others3 the following was stated: ‘ … Despite this admonition and warning,
applications to intervene in internal disciplinary matters continue to populate
the urgent roll. The present case is no exception. ’ And finally, in National
Union of Metalworkers of SA on behalf of Members v BMW (SA) (Pty) Ltd
4 the
Court found: ‘… Truth be told, this is an application that never should have
been brought, especially not by a long standing and experienced trade union
such as the applicant. What the applicant is in essence asking this court to do
is to micro-manage internal disciplinary proceedings in an individual employer
is to micro-manage internal disciplinary proceedings in an individual employer
(the respondent), whilst such proceedings are still ongoing. …’. All four these
quotes, read together, paints the picture as to why the current application is all
wrong, and must be doomed to fail.
[2] The above being said, w hat the applicant has brought to this Court, in the
current application, is yet another instance of abuse of process by a senior
1 [2023] 7 BLLR 654 (LC) at paras 3 – 4.
2 (2021) 42 ILJ 141 (LC) at para 3
3 (2022) 43 ILJ 2812 (LC) at para 2
4 (2025) 46 ILJ 2712 (LC) at para 1.
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official in the public service, seeking to scupper disciplinary proceedings,
instead of simply participating in the same to the end and then only
challenging any adverse outcome, which is what is actually contemplated by
the Labour Relations Act (LRA) 5. It is once again another instance of a
lamentable waste of recourses, and the time of this Court. The conduct of the
applicant is deserving of censure, which I will deal with at the conclusion of
this judgment.
[3] When considering the notice of motion and the founding affidavit, it is clear
that the applicant’s case, like a plethora of preceding cases by other
applicants in similar situations, is founded on a challenge rooted in allegations
of alleged unlawful conduct by the State as employer. The applicant seeks to
interdict the disciplinary proceedings against her from continuing, pending an
application brought by her to review certain conduct / decisions of the
chairperson of her disciplinary hearing. This is exactly what the authorities of
this Court are critical about.
[4] The application first came before Makhura J on 7 November 2025. It was
however not decided on the merits on that day. As will be dealt with in this
judgment, below, the applicant challenged the authority of the respondents to
oppose the application. The authority issue could not be resolved on 7
November 2025, and as a result Makhura J postponed the matter sine die for
the respondents to resolve the authority issue.
[5] This matter then came before me on 23 January 2026. Despite initially
challenging urgency in its answering affidavit , the second respondent, in its
heads of argument, indicated that it no longer took issue with the urgency of
the matter, and stated that it was in the interest of all parties that the matter be
disposed of on the merits on an urgent basis . I would agree with these
sentiments. At the heart of this matter lies an issue of jurisdiction, and it is
sentiments. At the heart of this matter lies an issue of jurisdiction, and it is
appropriate that such an issue be urgently and finally decided. I am in any
event satisfied that the applicant gave proper effect to the principles of
urgency as set out in Association of Mineworkers and Construction Union and
5 Act 66 of 1995 (as amended).
5
Others v Northam Platinum Ltd and Another 6. I am therefore convinced to
decide this matter as an urgent application. After hearing argument by all
parties, and considering the affidavits and heads of argument filed, I granted
the following order:
1. The application is dismissed.
2. The applicant is ordered to pay the second respondent ’s costs on the
attorney and client scale.
3. Written reasons for this order will be handed down on 30 January 2026.
[6] This judgment now cons titutes the written reasons referred to in paragraph 3
of my order, above.
The authority point
[7] As touched on above, the applicant filed two notices in terms of Rule 7(1) of
the Uniform Rules of the High Court, on 3 November 2025, in terms of which
the applicant sought to challenge the authority of Peyper Attorneys, and
Phambane Mokone Attorneys, respectively, to oppose the application on
behalf the first and second respondents,
[8] The second respondent’s Executive Mayor , Motloheloa Ellis Mokatsane
(Mokatsane), in response to the Rule 7(1) notice, file d a special power of
attorney on 6 November 2025, in terms of which he authorised Phambane
Mokone Attorneys to oppose the proceedings on behalf of the second
respondent. The applicant was however not satisfied with this power of
attorney, because Mokat sane sought to rely on the resolution of the second
respondent’s Council on 30 April 2024, which authorised the institution of the
disciplinary proceedings against the applicant, as authority from the Council
for executing the power of attorney. This position adopted by the applicant was
despite this resolution also granting authority to Mokatsane to attend to any
matter arising from the disciplinary proceedings.
6 (2016) 37 ILJ 2840 (LC) at paras 21 – 26. See also Jiba v Minister: Department of Justice and
Constitutional Development and Others (2010) 31 ILJ 112 (LC) at para 18; Transport and Allied
Constitutional Development and Others (2010) 31 ILJ 112 (LC) at para 18; Transport and Allied
Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others (2015) 36 ILJ 2148 (LC) at para 11.
6
[9] Following the postponement granted by Makhura J on 7 November 2025,
because the authority issue could not be resolved, the second respondent, on
18 November 2025, filed a Council resolution adopted at a special Council
meeting on 17 November 2025, delegating all powers to the Executive Mayor
(Mokatsane) to challenge the application, which resolution was reflected in a
document signed by the Speaker on 18 November 2025. Further, the second
respondent on 6 January 2026 filed a power of attorney in the same terms as
the one filed on 6 November 2025, however this power of attorney was signed
de novo on 6 January 2026 after the Council resolution of 17 November 2025.
[10] I have difficulty understanding why the applicant would challenge the authority
of Pe yper Attorneys, as attorneys for the first respondent, on the basis of
requiring a Council resolution. This is because Peyper attorneys do not seek
to oppose the matter on behalf the Council (second respondent). Peyper
attorneys are opposing the matter on behalf of the first respondent in her own
right and as a party, herself, to the proceedings. In an explanatory affidavit
filed on 16 January 2026, the first respondent explains that she does not take
issue with the relief sought. She states that she was compelled to engage in
the matter and oppose and answer it because of all the personal disparaging
averments made against her by the applicant in the founding affidavit , which
she was not willing to leave unanswered. It is clear from this affidavit that the
first respondent authorised Peyper Attorneys to bring the answering affidavit
on her behalf, and oppose the matter on basis she advances . No Council
resolution of the second respondent is in my view therefore required.
[11] Despite the aforesaid, the applicant doggedly persist ed with the authority
challenges when this matter was argued. I must confess that I believe this is
simply yet another example of the same kind of technical point taking and
simply yet another example of the same kind of technical point taking and
obstructive conduct exhibited by the applicant throughout these proceedings.
In Elarduspark Shopping Centre Share Block (Pty) Ltd v GHG Specialised
Engineering Solutions (Pty) Ltd 7 it was said that: ‘ The practice of
unnecessarily challenging the authority of an individual to bring applications
has been decried …’. Next, and in SSG Security Solutions (Pty) Ltd v
7 2020 JDR 1268 (GP).
7
Academic and Professional Staff Association (APSA) and Another 8 it was held
that: ‘This preliminary point is perplexing in the light of the principles set out by
the Supreme Court of Appeal (SCA) in G anes and Another v Telecom Namibia
Ltd. Why then is this Court burdened with the same preliminary points that
have been settled in law is beyond comprehension … ’. In particular, and in SA
Municipal Workers Union on behalf of Members v Mangaung Metropolitan
Municipality9 the Court adopted the following clear approach:
‘… a practice has developed both in this court as well as in arbitrations
conducted under the auspices of the LRA in terms of which points about an
alleged lack of authority are taken in answering or replying affidavits, as a
matter of course, and often as part of a strategy to avoid having to engage
with the substantive merits of the matter. Given that, for obvious reasons,
there will seldom be a motive for an attorney to institute or defend legal
proceedings without a mandate, the practice of routinely challenging the
authority of legal proceedings has been decried in the civil courts where it has
been described as “unnecessary and wasteful”.
'
[12] I further refer to a pertinent example found in Value Logistics Limited v Da
Costa Rosario 10, where the lack of authority to institute the proceedings was
raised in an answering affidavit, and in response, a back dated resolution by
the board of directors was produced on reply, to which the respondent still
objected. The Court reasoned as follows in rejecting the lack of authority
point:11
‘… the resolution by the directors, which was attached to the applicant's
replying affidavit, was only produced on the 5th of September 2019 as a knee-
jerk reaction to the first respondent's answering affidavit, in which the authority
to institute these proceedings was disputed. This resolution was irregularly
backdated to the 29th of August 2019. Therefore, so it was submitted on
backdated to the 29th of August 2019. Therefore, so it was submitted on
behalf of the first respondent that the urgent application should be dismissed
on the basis that the proceedings have not been authorised by the applicant.
8 (J1456/21) [2022] ZALCJHB 68 (28 March 2022).
9 (2023) 44 ILJ 360 (LC) at paras 19 and 26.
10 2019 JDR 2387 (GJ).
11 Id at paras 7 – 8.
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There is no merit in this point in limine. That is so for the simple reason that
objectively speaking and, having regard to the evidence before me, these
proceedings have clearly been approved by the applicant … ’.
[13] The point is this. Where the Court looks at the issue of authority, such
authority to institute the proceedings can be established in several ways. It can
also be proven at any time in the litigation. 12 It is not necessary to always
provide a resolution, although the production of a resolution would be
sufficient to establish authority. 13 The particular position and capacity of a
deponent to the affidavit may in itself serve to establish authority. 14 In casu,
the second respondent has supplied a proper resolution dated 18 November
2025, which is sufficient to establish authority when considered along with the
power of attorney executed by Mokatsane. Comparable is the following dictum
in Monareng v DR J S Moroka Municipality 15 where the Court had the
following to say, which in my view appositely applies in casu:
‘… When a party is challenged to prove authority, such party is entitled at any
time during the proceedings to prove its authority. Once proof is submitted, it
is not incumbent on the other party, who called for it, to say that the proof is
unacceptable. It becomes the duty of the court to decide whether the authority
as challenged has been proven. In this regard, this court is satisfied that
Mhlanga in his capacity as a municipal manager is duly authorised to defend
this application on behalf of Moroka. There is no doubt in the court’s mind that
it is dealing with Moroka as a municipality and not some passer-by
.’
[14] This issue was also dealt with in Afgri Poultry (Pty) Ltd t/a Daybreak Farms v
Seruwe16, where the respondent party used Rule 7(1) to challenge authority to
bring the proceedings. In answer to the Rule 7(1) notice, the applicant
provided what was called ‘Special In-Committee Board Minutes’, in which the
provided what was called ‘Special In-Committee Board Minutes’, in which the
power to authorise the proceedings was delegated to the deponent to the
12 As said in Monareng v DR J S Moroka Municipality (2022) 43 ILJ 1855 (LC) at para 9: ‘… When a
party is challenged to prove authority, such party is entitled at any time during the proceedings to
prove its authority … ’. See also Hyde Construction CC v Deuchar Family Trust and Another 2015 (5)
SA 388 (WCC) at para 29; Forbes and Others v SA Municipal Workers Union (2014) 35 ILJ 687 (LC)
at paras 14 – 15.
13 Pretoria City Council v Meerlust Investments (Pty) Ltd 1962 (1) SA 321 (A) at 325.
14 For example, in M & Z Development and Investment (Pty) Ltd v Mabusela and Others 2022 JDR
1732 (GP) at para 51, the Court held that as the deponent was the sole director of the company, that
established authority.
15 (2022) 43 ILJ 1855 (LC) at para 9.
16 (J1535/21) [2021] ZALCJHB 458 (17 December 2021).
9
founding affidavit. In seeking to contradict this, the respondent argued that this
‘blanket resolution’ does not speak to any specific legal matter and it would be
unlawful for a board of directors to abdicate their responsibility with a blanket
resolution, where the board is statutorily obliged to manage the affairs and the
business of a company.17 The Court dealt with this challenge as follows:18
‘It is evident from the documents filed in response to the Rule 7(1) notice that
the Applicant’s Board had passed a number of Resolutions authorising and
mandating Mr Nage to litigate all disputes involving the Applicant and to sign a
power of attorney on behalf of the Applicant, for legal proceedings. In October
2021, whilst so authorised, Mr Nage signed a special power of attorney,
appointing the Applicant’s attorneys to have full authority to act on behalf of
the Applicant in relation to the institution of any legal proceedings, including
the proceedings between the Applicant and the Respondent.
Ultimately this Court must decide whether enough has been placed before it to
warrant the conclusion that it is the indeed the Applicant which is litigating and
not some unauthorised person on its behalf.
In casu enough has been placed before this Court to accept that the institution
of the proceedings was duly authorised and that it is indeed the Applicant
which is litigating.
’
[15] The applicant’s continued challenge of authority is comparable to the kind of
challenges discussed above, where the Courts were certainly critical of the
challenge. It is not for the applicant to say, as she does, that she considers the
document signed by the speaker on 18 November 2025 reflecting the
resolution adopted at a special Council meeting of 17 November 2025 to be
insufficient. What the resolution does is to specifically delegate the power to
oppose the application to the Executive Mayor. That, in my view, is sufficient
oppose the application to the Executive Mayor. That, in my view, is sufficient
evidence of authorisation granted to the Executive Mayor . It is not required
that particular attorneys be appointed by Council resolution, as that power is
part of what is delegated to the Executive Mayor. It is also clear that the power
of attorney provided that the Executive Mayor indeed appointed Phambane
Mokone Attorneys, in terms of the powers afforded to him. That should be the
end of the authority challenge, and I am satisfied, on the evidence, that
17 See para 22 of the judgment.
18 Id at para 39 – 41.
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authority has been proven. As pertinently said in Tasima (Pty) Ltd v Road
Traffic Management Corporation and Others:19
‘… Each case must be considered on its own merits and the Court must
decide whether enough has been placed before it to warrant the conclusion
that it is the company which is litigating and not some unauthorised person on
its behalf.
This approach was also recorded in Eskom where the Court held that in the
absence of a prescribed mode of proof of authority, it is a factual question
whether a particular person holds a specific authority, which may be proved in
the same way as any other fact. Adjudication involves consideration of what
the credible evidence means, the extent of, quality of, and sometimes the
absence of contradiction or other reason to remain unconvinced.’
[16] Consequently, the applicant’s continued challenge of the authority where it
comes to the attorneys for the first and second respondents is unfounded, and
properly considered, unduly obstructive and spurious. This challenge is
therefore dismissed.
Background facts
[17] Before setting out the background facts in this case, some things must be
said. The background facts make for disturbing reading, and reveals a sorry
state of affairs. I am in fact comfortable in saying that it is a master class of
what is not envisaged by the LRA, at all, where it comes to conducting internal
disciplinary proceedings in any employer , and of how such disciplinary
proceeding should never be conducted.
[18] I also add that the founding affidavit is replete with disparaging statements
about the first respondent as chairperson of the disciplinary hearing, which is
often speculative and based on unfounded opinions, which I consider
unacceptable. No wonder the first respondent engaged to answer. Further, the
chronology in the founding affidavit is often difficult to follow and unduly
embellished with emotive statements. As opposed to this, the first respondent
embellished with emotive statements. As opposed to this, the first respondent
has introduced, by way of her answering affidavit, the comprehensive written
19 (J890/17) [2019] ZALCJHB 36 (19 February 2019) at paras 46 – 48.
11
finding she made on 4 November 2025, which in my view cogently and
properly sets out the entire conducting of the disciplinary hearing. I will only
rely on the founding affidavit where it is not in conflict with the content of such
finding.20 The background facts, set out below, are arrived at on this basis.
[19] The applicant occupies the position of the Municipal Manager of the second
respondent, since 9 May 2023 on a fixed term contract of five years . It is
undisputed that the applicant’s employment is subject to the relevant
provisions of the Local Government: Municipal Systems Act (Systems Act) 21
as well as the applicable Regulations issued thereunder , being the Local
Government: Disciplinary Regulations for Senior Managers (the Disciplinary
Regulations)22.
[20] It was common cause that in and during 2024, the applicant was charged with
misconduct by the second respondent in terms of the Disciplinary Regulations.
On 14 May 2024, the first respondent was then instructed by the second
respondent to act as chairperson of the disciplinary proceedings against the
applicant. The first respondent is an independent advocate f rom the
Johannesburg Bar.
[21] The first sitting of the disciplinary hearing took place on 13 June 2024. On this
day, the parties only deal t with the exchange of documents, and the
proceedings were postponed by agreement between the parties to 1 and 2
August 2024 to allow the parties to exchange documents. The parties also
agreed on a timeline for this exchange.
[22] The disciplinary proceedings reconvened on 1 August 2024. Both parties
recorded that each of them had engaged the services of counsel , and thus the
issue of representation was resolved. The proceedings could however not
continue as the parties had not completed the exchange of documents . The
parties then agreed that the proceedings would reconvene on 27 August 2024
20 This approach is in line with Plascon Evans Paints v Van Riebeeck Paints 1984 (3) SA 623 (A) at
634E-635C. In short, it means that it is the admitted or undenied facts together with the facts as stated
by the first respondent that must be utilized in deciding this matter. The only exception would be if the
first respondent simply offers a bald denial, or the facts as stated by the first respondent are patently
false, absurd or fanciful.
21 Act 32 of 2000.
22 Promulgated by way of GN344 in GG 34213 of 21 April 2011.
12
and 25 September 2024 and that they would complete the exchange of
documents prior to that.
[23] The parties were however unable to resolve the issue of the exchange of
documents. As a result , the applicant brought an application on 23 August
2024 for discovery of documents. The application was opposed by the second
respondent on 25 August 2024, and the applicant replied on the 26 August
2024. This application was then argued on 27 August 2024. After hearing
argument, the first respondent decided to go through the request for
documents item by item , identify the documents that the applicant had been
furnished with, and then issue a ruling on the remaining documents sought.
[24] However, and in the same hearing on 27 August 2024, Advocate Maluleke,
who represented the applicant , raised a point in limine challenging the
lawfulness of the appointment of the first respondent to preside over the
disciplinary hearing. The challenge was made on the basis that the first
respondent had directly been appointed by the second respondent without an
instructing attorney. The first respondent directed that this challenge be
reduced to writing for proper consideration . Nonetheless, Advocate Maluleke
informed the first respondent that the applicant would not participate in the
process any further until the issue of the lawfulness of the appointment of the
first respondent had been resolved. Thus, no written challenge was filed as
directed by the first respondent.
[25] According to the first respondent, and out of abundance of caution, and to
avoid unduly delaying this matter thus prejudicing the parties , she requested
Peyper Attorneys to instruct her , which took place on 2 September 2024. On
the same day, Peyper Attorneys addressed correspondence to the applicant’s
attorneys informing them that they had been appointed as the first
respondent’s instructing attorneys.
[26] Despite this, the applicant launched an urgent application on 6 September
[26] Despite this, the applicant launched an urgent application on 6 September
2024 under case number 5109/2024 in the Free State High Court. The
application was set down on 17 September 2024. In terms of this application,
the applicant sought inter alia a declaratory order that the first respondent’s
appointment to preside over the disciplinary hearing wa s unlawful, irregular
and in contravention of the rules of professional conduct that govern legal
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practitioners This urgent application was withdrawn with costs , when it came
before the High Court on 17 September 2024.
[27] Subsequent to the withdrawal of the urgent application, the first respondent
delivered a ruling with reasons on 19 September 2024, relating to the issue of
the documents dispute, in terms of which she granted the applicant access to
some of the documents . The first respondent, in this ruling, also directed the
second respondent to provide the applicant with the clarity she had requested
relating to the charges against her. In this ruling, the first respondent
expressed discontent with the pace at which the hearing was moving.
[28] On 20 September 2024 the applicant was served with an amended charge
sheet, with clarified charges , in compliance with the first respondent’s earlier
ruling. This was followed by additional charges served on the applicant on 23
September 2024. The disciplinary hearing was set to resume on 25
September 2024.
[29] The applicant, in the hearing on 23 September 2024, filed an application for
the recusal of the first respondent. The application was premised on
allegations of professional misconduct of the first respondent, in essence
being the same issue that formed the subject matter as the earlier withdrawn
urgent application in the High Court. Issues of alleged bias of the first
respondent was also raised. In deciding the application, the first respondent
held that the applicant could not provide any evidence of actual bias .
According to the first respondent, advocate Maluleke conceded during oral
argument that there was no evidence of bias . After considering submissions
by both parties on the issue of recusal, it was refused by the first respondent in
that same hearing. The first respondent issued written reasons for refusing the
recusal application, on 2 October 2024.
[30] Undeterred, and after the recusal application being refused, the applicant
[30] Undeterred, and after the recusal application being refused, the applicant
applied for a postponement of the hearing, on the basis that she had not been
timeously provided with the audio recordings of the statements made by
interviewees during the investigation relating to her misconduct. Again, the first
respondent entertained the application, which was opposed. The first
respondent decided there was no merit in this application because the
applicant was not legally entitled to be provided with the second respondent’s
14
evidence prior to the commencement of disciplinary proceedings, including the
investigation report and documents that may inform it , as asked for by the
applicant. The applicant had already been furnished with the investigation
report which contained the testimony of all persons who testified during the
investigation. According to the first respondent, this was sufficed for purposes
of the applicant pleading to the charges against her and preparing for the
disciplinary hearing. The first respondent refused the postponement. This
refusal was promptly followed by another verbal postponement application,
this time motivated by a contention that the applicant was unable to plead to
both the original charges and the additional charges on the basis that the
more specified charges were only served on her at 21h37 on 20 September
2024, and the additional charges were only served at 16h38 on 23 September
2024, when the disciplinary hearing was due to proceed on the 25 September
2024. The first respondent considered this argument, and decided that the
applicant be afforded more time to consider the clarified charges in terms of
the original charge sheet, and the additional charges . The first respondent
postponed the matter for hearing for the total period 21 to 29 October 2024,
being dates actually agreed to between the parties.
[31] The applicant however was not done yet . On 2 October 2024, she launched
another jurisdictional challenge to the first respondent. This time, the challenge
was based on a contention that the first respondent lacked jurisdiction for want
of the second respondent’s compliance with the provisions of Regulations 4
and 5 of the Municipal Regulations on Financial Misconduct Procedures and
Criminal Proceedings . In this application, the applicant sought that the
disciplinary proceedings be dismissed altogether, or alternatively that it be
suspended until the mentioned Regulations have been complied with. The first
suspended until the mentioned Regulations have been complied with. The first
respondent however ruled that she did not have the powers to grant the relief
sought, as only a Court with the necessary jurisdiction had the powers to
declare the disciplinary hearing unlawful. The first respondent dismissed the
jurisdictional challenge in a written ruling given on 16 October 2024.
[32] In reaction to this ruling, and on 17 October 2024, the applicant dispatched a
letter to the first and second respondents , requesting that the disciplinary
hearing set down for 21 October to 29 October 2024 (despite being agreed
dates) be postponed on the basis that the applicant would by no later than 18
15
October 2024 bring an urgent application to review and set aside the first
respondent’s ruling on the recusal application earlier refused, and would also
further seek an interim interdict against the continuation of the disciplinary
hearing due to alleged lack of compliance with the Regulations referred to.
The first respondent however refused this request for postponement in a ruling
given on 18 October 2024, on the basis that there was no urgent application
shown to exist and neither was there an interim interdict to suspend
continuation of the proceedings. The first r espondent directed that the
disciplinary hearing would continue as scheduled for 21 to 29 October 2024. In
this ruling, the first respondent recorded that the dates were reserved by
agreement, and that the spirit and intent of the legal framework that governs
labour laws is that labour disputes must be resolved expeditiously and it is this
goal that must be pursued in order to preserve the interests of both e mployer
and employee.
[33] Needless to say, the applicant then launched another urgent application in the
Free State High Court on 18 October 2024, which application was set down for
hearing on 29 October 2024, the very last day of the agreed period for the
conducting of the disciplinary hearing. The relief sought was the same as in
the jurisdictional objection earlier raised before the first respondent and
dismissed by her and was based on the same grounds. Pursuant filing this
urgent application, and on 20 October 2024, the applicant brought another
application for postponement of the proceedings set down for 21 to 29 October
2024 before the first respondent . The application was bolstered by the
applicant now seeking certain information to first be disclosed concerning all
prior working engagements the first respondent may have with Phambane
Mokone Attorneys.
[34] The disciplinary hearing convened on 21 October 2024, and the postponement
[34] The disciplinary hearing convened on 21 October 2024, and the postponement
application was first argued. After hearing argument, the first respondent
refused it. The matter proceeded, and at this point, the applicant then actually
pleaded to the charges against her for the first time, and the first respondent
commenced hearing the second respondent’s evidence by way of the
testimony of the first witness.
16
[35] Nonetheless, the sitting of the disciplinary hearing for the period 21 to 29
October 2024 was severely compromised by the pending urgent application
the applicant had brought , with several days not utilised, by agreement
between the parties, because of the parties’ involvement in and preparation for
the urgent application to be heard on 29 October 2024. At a sitting of the
hearing on 28 October 2024, the parties then agreed that the hearing will
resume on 26, 27 and 28 November 2024, subject to the outcome of the
urgent application.
[36] After argument in the High Court, the applicant’s urgent application was struck
off the roll with costs on 29 October 2024. Later that same day, the first
respondent sent an e- mail to the parties requesting them to provide her with
additional dates in December 2024, to add onto the dates already reserved, so
the matter could be concluded. Following this request, and by agreement
between the parties on 31 October 2024, the matter was also scheduled for 4
and 5 December 2024.
[37] The disciplinary proceedings continued on 26 and 27 November 2024. But
during the cross examination of the second respondent’s witness that was
testifying, the applicant out of the blue discovered additional documents, which
were in excess of 150 pages . The second respondent requested time to
consider and consult on these documents with the witness, before the
finalisation of evidence. Whilst the first respondent accepted the introduction of
these documents, she decided that the second respondent should have time
to consider the same, and that the status of the documents be determined at
the sitting on 27 November 2024. She also directed that the witness would not
be cross examined on these documents until the second respondent had
considered the same. The proceedings were adjourned to 5 December 2024
to allow the second respondent such time. At the proceedings on 5 December
2024, the parties agreed that the hearing would reconvene on 23 and 24
2024, the parties agreed that the hearing would reconvene on 23 and 24
January 2025, as well as 4 to 6 February 2025.
[38] Despite th e aforesaid agreement on dates , and on 9 December 2024,
Advocate Maluleke for the applicant informed the first respondent that he had
UNISA exams in January 2025 and had a difficulty with the dates reserved in
January 2025. He suggested replacement dates . The first respondent agreed
17
to accommodate him and directed that the hearing not continue in January
2025. Two replacement dates of 26 and 27 February 2025 w ere agreed to by
the parties. However, and due to further documents being requested by the
applicant not yet having been made available , and despite having cross
examined the second respondent’s witness in all other respects, the applicant
indicated that cross examination could not be concluded without these
documents. The first respondent accepted that the applicant ought not to be
prejudiced by the requested documents not being made available to her. As a
result, the hearing was postponed to 12 and 13 March 2025, by agreement
between the parties, for the documents to be provided.
[39] In the sitting on 12 and 13 March 2025, the testimony of the second
respondent’s first witness was concluded. The second witness started
testifying, and on 13 March 2025, in the course of this witness’s evidence in
chief, it became apparent to both parties that they needed to discover
additional documents. The parties then engaged each other, and an
agreement was reached regarding exchange of further documents , with
timelines for such exchanges . It was also agreed that the hearing would
continue on 25 and 26 March 2025.
[40] At the sitting on 25 March 2025, yet another dispute arose with regard to the
discovery of c ertain documents requested by the applicant. The first
respondent then issued a directive for filing of an application by the applicant
so that this dispute could be properly ventilat ed. It was agreed by the parties
that the hearing would however resume on 26 March 2025, and on further
dates from 1 to 3 April 2025.
[41] The applicant duly brought an application for the discovery of documents on
27 March 2025. The documents sought related to a r eport made by the
second respondent’s second witness. The application was opposed by the
second respondent, by way of an answering affidavit. In terms of the directive
second respondent, by way of an answering affidavit. In terms of the directive
by the first respondent, the applicant had to file a replying affidavit by 10h00
on 28 March 2025. No replying affidavit as filed by t his deadline. The first
respondent considered what she had been provided with, and on 29 March
2025, by way of a written ruling, she dismissed the application for discovery of
documents.
18
[42] On the 31 March 2025, the applicant brought an application to rescind the first
respondent’s ruling dismissing the application for discover documents, on the
basis of a contention by the applicant that she should have been given chance
to file a reply ing affidavit, despite the clear directive issued earlier by the first
respondent, which the applicant did not comply with. Finding there was no
proper cause for rescission, the first respondent dismissed the rescission
application in a written ruling on 10 April 2025. But in the interim, and by
agreement between the parties, the first respondent directed that the hearing
continue on 12 and 13, as well as 22 and 23 May 2025.
[43] On the 15 April 2025 the applicant launched yet another application to compel
discovery of documents. In this instance, the applicant stated that these
documents were sought in the context of the evidence in chief tendered by the
second respondent’s third witness . On the basis of a finding that the
documents requested did not in any way relate to the charges against the
applicant, the first respondent dismissed the application on the 5 May 2025.
[44] The hearing on 12 and 13 May 2025 did not fare much better . During the
evidence in chief by the second respondent’s third witness on 13 May 2025,
the witness sought to lead evidence on a written statement that she allege d
was prepared on her instruction, for reporting purposes, regarding one of the
charges. Advocate Maluleke objected to testimony on this statement on the
basis that it constituted hearsay evidence. Argument on the issue ensued. The
first respondent took the view that if Advocate Maluleke objected to the
admission of the evidence, then that objection ought to be ventilated before
the leading of the evidence. Nonetheless, advocate Maluleke indicated that he
would allow the evidence to be led, but reserved the right to object to the
evidence once the testimony had been completed. The evidence was then led.
evidence once the testimony had been completed. The evidence was then led.
According to the first respondent, and because the evidence was actually led,
if the applicant wanted to still object to such evi dence, she had to file a
substantive application in this respect. On the 23 June 2025, the first
respondent issued a written ruling to this effect . Despite this ruling, the
applicant never brought a substantive application to object to the admission of
such evidence. Also on 13 May 2025, the parties agreed that the hearing
would not proceed on 22 and 23 May 2025, because the witness was not
19
available. On 26 May 2025, t he parties managed to agree to further hearing
dates, such dates being 23 to 26 June 2025 and 9 July 2025. The first
respondent then issued a directive that the matter proceed on those dates.
[45] In a pattern that was clearly repeating itself, the applicant’s attorneys, on 19
June 2025, sent an email to the first respondent, indicating that the applicant’s
counsel was not available on 23 June 2025 due to him being involved in a part
heard matter in the Labour Corut on that date. It was requested that the
matter stand down to 24 June 2025. The first respondent acceded to such
request. Also on 23 June 2025, and following further agreement between the
parties, the first respondent issued a directive that the hearing would resume
on the 24 and 25 June 2025, 9, 22 and 23 July 2025, and 4 and 5 August
2025.
[46] During the sitting on 9 July 2025, the applicant’s counsel informed the parties
that the mandate of Peyper Attorneys who are the first respondent’s instructing
attorneys had been terminated by way of a Council Resolution of the second
respondent, and that by implication she no longer had instructions to preside
over the disciplinary proceedings . As a result, the proceedings had to be
adjourned in order to resolve this issue. It appeared that such an eventuality
indeed took place, and this was challenged by Peyper Attorneys to the Free
State High Court in an urgent application. This application resulted in a Court
order granted in favour of Peyper Attorneys on 25 July 2025, setting aside the
resolution referred to , thus enabling the continuation of the disciplinary
proceedings on 4 and 5 August 2025.
[47] On 31 July 2025, the parties agreed that in addition to 4 and 5 August 2025,
the hearing would proceed on the 26 and 27 August 2025 (only for half a day
on the 27 August 2025) , and further on 8 to 10, and 22 and 23 September
2025, as well as 9 and 10 October 2025. The first respondent issued a
2025, as well as 9 and 10 October 2025. The first respondent issued a
directive confirming this on 14 August 2025.
[48] Before the reconvening of the hearing, and on 20 August 2025, the second
respondent decided that due to the difficulty of procuring some witnesses,
charges 1, 6, 7, 8, 9, 10, and 11 would be withdrawn, and a notice to this
effect was filed on such date. This led to further engagement between the
parties as the remaining charges, the details of which need not concern this
20
judgment, and as a result of these exchanges, the first respondent postponed
the hearing to continue only on 22 and 23 September 2025 and 9 and 10
October 2025 (this was again by agreement between the parties).
[49] On 4 September 2025, the second respondent brought an application seeking
to admit evidence pertaining to charges 2 and 3 by way of affidavit. The
application was premised on allegations that ever since the applicant resumed
her duties on the 12 June 2025 (her suspension being uplifted by the LAC) ,
several employees who had previously expressed a willingness to testify had
begun withdrawing their participation. After considering this application, it was
dismissed by the first respondent in a ruling on 19 September 2025, primarily
on the basis that it would materially compromise the ability of the applicant to
cross examine such witnesses.
[50] On 22 September 2025, the applicant’s counsel applied for a postponement
due to the applicant being ill. Whilst I do not quite understand why, the first
respondent then adjourned the proceedings so the applicant could bring a
substantive application for a postponement on this basis. The application was
then brought and dismissed by the first respondent on 29 Se ptember 2025. I
will say no more about these events, because it makes little sense.
[51] But during the sitting on 22 September 2025, the first respondent directed the
parties to engage on the outstanding number of witnesses and agree on
further dates taking into account the number of witnesses who were yet to
testify. The first respondent again expressed her reservations that the
proceedings had been ongoing since June 2024 and that the interests of
justice demanded that the hearing must be expedited and finalised. In
particular, the first respondent indicated her intention that the matter must be
finalised in 2025.
[52] The next sitting of the matter took place on 1 October 2025. During this sitting,
[52] The next sitting of the matter took place on 1 October 2025. During this sitting,
the first respondent requested the parties to provide at least five dates for the
further sittings, so it could be confirmed in line with her intentions expressed
above. She further indicated that such dates had to be either towards the end
of October or early November 2025. The parties undert ook that they would
agree on such dates by the following day, 2 October 2025, and provide it to
the first respondent. On 2 October 2025, the first respondent was copied in an
21
e-mail from the second respondent’s attorneys, which read: ‘We confirm that
the Employer's representatives are available on the following dates: 29 to 31
October 2025, and 3 to 7 November 2025 …’. The applicant’s attorneys did
not comply with the undertaking to provide dates by 2 October 2025. Instead,
and on 6 October 2025, such attorneys indicated availability on 31 October
2025, as well as 19 and 20 November 2025, however, ‘ … these dates are
subject to the availability of witnesses ’. This position adopted by the
applicant’s attorneys was not acceptable to the first respondent. She
answered the same day, recording: ‘ Thank you for your email below. I
unfortunately cannot accept the proposed dates. As I indicated to all the
parties my cut off date for finalisation of evidence in this matter in mid
November. It's the only way I can be able to deliver a ruling before the year
ends. This disciplinary hearing commenced in June 2024 and the interests of
justice demand that it be concluded by now. I am committed to doing so even
if it means that I impose dates on the parties. I do not intend to do so Kindly
but urgently provide me with additional dates that do not go beyond 15
November 2025. Please secure the availability of your witnesses on such
dates. I await your response by 14h00 tomorrow, failing which I will impose
dates …’
[53] The applicant’s attorneys wrote to the first respondent on 7 October 2025,
requesting her to reconsider her decision to unilaterally implement hearing
dates, as it would impede on the applicant’s right to a fair hearing and a fair
final verdict, and that such an approach was in any event impermissible in law.
The applicant’s attorneys repeated the dates they had proposed. The first
respondent pertinently answered that same day, as follows: ‘ I have made a
ruling regarding dates, and my ruling stands. I will provide you with a
substantive ruling to this effect in due course. This is your last chance to
substantive ruling to this effect in due course. This is your last chance to
provide me with 5 and not 3 dates in terms of my directive. I accept the 31
st of
October 2025. You still have until 14h00 today to provide me with 4 additional
dates, barring which I will impose such dates and the hearing will proceed on
those dates …’. Later that same day, the applicant’s attorneys provided only
two additional dates, being 25 and 27 November 2025, which were beyond the
cut-off date of mid-November 2025 imposed by the first respondent.
22
[54] Having due regard to all the aforesaid background, the first respondent issued
the following ruling on 8 October 2025: ‘In addition to the dates secured by the
parties by agreement as set out in the previous ruling; the disciplinary hearing
will convene again on the following dates: 30 and 31 October 2025 (31
October was by agreement between the parties) and 5,6 and 7 November
2025 at 10h00. I will issue a substantive ruling pertaining to this directive;
which I will not reconsider ’. The substantive ruling did follow on 9 October
2025, in which the first respondent gave detailed substant ive reasons for
imposing the dates concerned.
[55] In the course of these developments, the hearing continued to sit on the
agreed dates, with the applicant actually giving her testimony . She was cross
examined on 13 and 14 October 2025. On 13 October 2025 Advocate
Maluleke however objected to the line of cross examination being adopted,
because it related to an alleged double payment made to a service provider
pursuant to her approval , which resorted outside the charges in the charge
sheet. Advocate Qithi for the second respondent disagreed, indicating it found
expression in Charge 12. The first respondent allowed the questioning to
continue on that basis . On 14 October 2025, Advocate Maluleke again
objected to the applicant being cross examined on allegations that the same
service provider accepted an offer after the prescribed time, culminating in an
irregular appointment. He contended that this evidence was never led by the
second respondent when its witnesses testified and that the applicant was not
charged with this misconduct. Because Advocate Maluleke contended that to
allow this cross examination would cause procedural unfairness to the
applicant, the first respondent decided to adjourn the proceedings and
directed the parties to provide her with written submissions on both objections.
After considering these submissions, and in a ruling issued on 26 October
After considering these submissions, and in a ruling issued on 26 October
2025 (with reasons), the first respondent dismissed the objections.
[56] On 15 October 2025, and following further engagement between the first
respondent, the applicant’s attorneys and the second respondent’s attorneys,
the first respondent issued a directive on 15 October 2025, inter alia recording
the following:
23
‘The matter will accordingly sit again on the 27, 30 and 31 October 2025. It will
thereafter resume on 5, 6 and 7 November 2025. Should any party not be
available, the hearing will proceed in their absence. I shall issue a substantive
ruling to this effect.
I also will not be reconsidering these dates; which in my view will again not be
enough for the outstanding number of witnesses.
IN THE CIRCUMSTANCES, MAY THE PARTIES PROPOSE 5 ADDITIONAL
DATES IN NOVEMBER 2025 BY NO LATER THAN CLOSE OF BUSINESS
TOMORROW, FAILING WHICH I SHALL IMPOSE SUCH 5 ADDITIONAL
DATES.
’
[57] Pursuant to the aforesaid directive, and on 16 October 2025, the second
respondent’s attorneys confirmed their availability on the dates given. But
despite the clear terms of the directive, the applicant’s attorneys only
confirmed their availability on 30 and 31 October 2025, 7, 8 and 10
November 2025, and 19, 20 and 21 November 2025.
[58] In the face of the clear directive aforesaid, the applicant’s attorneys
nonetheless on 21 October 2025 wrote to the first respondent, reiterating that
they were unavailable on 27 October 2025 as well as 5 and 6 November 2025.
The first respondent answered the same day as follows: ‘I have already issued
a ruling regarding dates for the next sitting. As indicated my substantive
reasons will follow. The following 10 dates are reserved for the disciplinary
hearing 29
th, 30th and 31st of October 2025; and 5th, 6th, 7th, 10th, 11th, 12th, and
19th of November 2025. If any party does not attend the proceedings on the
aforementioned dates, the hearing will proceed in their absence Both parties
must come prepared to continue the proceedings on the afore- mentioned
dates’.
[59] The hearing convened on 27 October 2025, as direct ed by the first
respondent. On that day, the applicant did appear in person, but this time was
accompanied by a new attorney who introduced himself as Mr Mazibuko and
he submitted that he was standing in for Mr Nokhanda (the attorney dealing
he submitted that he was standing in for Mr Nokhanda (the attorney dealing
with the matter all along). Mr Mazibuko informed the first respondent that his
instructions were to seek postponement of the matter on account of the
unavailability of the applicant’s legal representatives, as documented in the
24
exchanges referred to earlier. No substantive application for postponement
was however produced. When the first respondent queried this, she was
informed that that the application had been prepared and would be handed up
if she accepted the postponement application. Despite the first respondent’s
clear views expressed in the hearing concerning her unwillingness to postpone
the mater, no such substantive postponement application was ever handed in.
The first respondent then duty considered the verbal postponement application
and refused it.
[60] Undeterred, yet again, the applicant herself tabled a verbal request for
postponement, based upon the fact that her legal representatives were not
there and she was not prepared to proceed with the proceedings in their
absence. The first respondent impressed on the applicant that she needed to
continue her testimony , and informed her she would be guided and assisted
by the first respondent, if necessary. The hearing stood down twice for the
applicant to obtain instructions from her attorneys as to the way forward. She
ultimately decided that she would not be willing to continue with her cross
examination in the absence of her legal representatives . Despite Mr Mazibuko
being present, he said that he had only been briefed to argue the
postponement application. He stated that the applicant would deal with the
matter going forward as he had no further instructions, but that he would
nonetheless sit in the proceedings.
[61] According to the first respondent, she pertinently asked both the applicant and
Mr Mazibuko to comment on her prima facie view that the applicant attended
at the hearing on 27 October 2025 on the assumption that the first respondent
was compelled to grant the postponement application. The applicant and Mr
Mazibuko were unable to dispel this view.
[62] The second respondent then applied that the hearing proceeds without the
participation of the applicant. With all the aforesaid in mind, the first
participation of the applicant. With all the aforesaid in mind, the first
respondent granted this request to proceed with the hearing without the further
participation of the applicant, as she had refused to further participate. The first
respondent further granted the second respondent’s request to rest the oral
testimony in this matter, and she ordered that such oral testimony was
considered rested on 27 October 2025. She further directed that the parties
25
had to file their closing submissions thereafter within seven days . Both the
applicant and Mr Mazibuko were present at the time of issuance of this order.
[63] On 30 October 2025, the applicant then brought an application to review the
orders granted by the first respondent in the course of October 2025, and in
particular, the orders concerning the dates she imposed on the parties , the
refusal of the postponement on 27 October 2025, and the ruling to rest the
oral evidence. This application was brought under case number 2025- 204594.
At the same time, the applicant also brought an urgent appl ication, being the
application in casu. This urgent application was set down for hearing on 7
November 2025, despite the written submissions by the applicant being
already due on 3 November 2025, in terms of the order given by the first
respondent on 27 October 2025. The second respondent indeed filed written
submissions on 3 November 2025, because, as at this date, there was no
order that stood in the way of this being done. Also, there was no request from
the applicant to the first respondent that this process be postponed pending
the determination of the urgent application.
[64] In the absence of any legal impediment to doing so, the first respondent on 4
November 2025 issued a comprehensive written finding concerning the
remaining charges against the applicant. She concluded that the applicant
failed to uphold the provisions of the regulatory framework that governed her
employment as a Municipal Manager and that, as such, she was guilty of
Charge 4 count 2, charge 5 and charge 12 of the charges against her. In the
finding, the first respondent directed that the parties must submit aggravating /
mitigating circumstances pertaining to an appropriate sanction by no later than
16h00 on 6 November 2025.
[65] As said, t he application came before Makhura J on 7 November 2025. No
substantive order was granted on that date. Instead, the matter was
substantive order was granted on that date. Instead, the matter was
postponed sine die as a result of the authority issue raised, as discussed
above.
[66] But considering that the applicant was required to, in terms of the finding by
the first respondent of 4 November 2025, make submissions in mitigation of
sanction, she countered with an ex parte application on 6 November 2025,
under case number 2025-209538, in terms of which she sought to interdict the
26
respondents from imposing any sanction in the disciplinary proceedings
against her, pending the final determination of the application in casu. This
application was also decided by Makhura J, who granted such an order, with a
return date of 11 February 2026. Save for expressing the view that I consider
such an ex parte application to be entirely inappropriate in this particular case,
considering what had happened between the parties , I will say no more about
this.
[67] The application in casu then came to be set down on 23 January 2026, which
is how it landed before me to decide.
[68] It is perhaps prudent at this juncture to summarize, in a nutshell, the thrust of
the case of the applicant, where it comes to the facts. According to the
applicant, the first respondent behaved unlawfully in unilaterally imposing
hearing dates on the parties. Added to that, the applicant has made a
pertinent complaint that the first respondent, for a variety of reasons and
based on a number of alleged actions, including what the applicant says is
unjustified findings against her in the course of the disciplinary proceedings
which favoured the second respondent, was biased against her, and was
compromising her right to fair hearing. In dealing with the events on 27
October 2025, the applicant stated that it was outside her control that her legal
representatives were not available on 27 October 2025 and there would have
been no prejudice if the matter was simply rolled over to 30 and 31 October
2025. The applicant takes issue with the refusal of the postponement
application by the first respondent on the basis that it was founded on incorrect
facts and made in error. The applicant in fact pleads that she was entitled to a
postponement, as it was not her fault that her legal defence team could not
appear in the hearing on 27 October 2025. And lastly, the applicant contends
that the first respondent had no authority to close her case on 27 October
2025 and acted unlawfully in doing so.
2025 and acted unlawfully in doing so.
Competence of the interdict
27
[69] The applicant is bound by the relief she seeks specifically as pleaded in the
notice of motion.23 The applicant’s notice of motion is clear in what is sought
by her. I quote, as follows:
‘Pending the finalisation of the review application under case 2025-204594,
the Respondents are interdicted and restrained from:
2.1 Requiring or permitting the parties in the disciplinary proceedings of
Moqhaka Local Municipality and Portia Halio Tshabalala on giving closing
submissions on the evidence that has been led.
2.2 Receiving, reading and considering the parties’ closing submissions on
the evidence that has been led; and
2.3 From issuing a ruling, decision, or verdict.’
[70] The above relief considered, the applicant faces a number of difficulties , most
of which being caused by the manner in which the applicant chose to bring the
application. First and foremost, the applicant was well aware, being present
when the ruling was given on 27 October 2025, that she was required to give
closing submissions on 3 November 2025. Yet she chose to only have the
application set down on 7 November 2025. The mere bringing of an
application does constitute an injunction of the further conduct of the
proceedings. Only a Court order does so . It must follow that there was no
injunction on or prohibition of the parties having to give their closing
submissions by 3 November 2025, as the second respondent had done. Once
the second respondent had actually given its closing submissions and the time
limit for the applicant to do so having expired, there was simply nothing to
interdict in this regard, as prayed for in the notice of motion.
[71] This brings me to the part of the relief sought relating to the giving of a verdict.
On the undeniable facts, the first respondent was entitled to issue her verdict
at any time after 3 November 2025, being the deadline to file closing
submissions. The first respondent proceeded to actually issue a final
submissions. The first respondent proceeded to actually issue a final
substantive verdict, finding the applicant guilty of several charges. This verdict
23 See Van Der Merwe and Another v Taylor NO and Others 2008 (1) SA 1 (CC) at para
122; President of the Republic of SA and Others v SA Rugby Football Union and Others 2000 (1) SA 1
(CC) at para 150; National Council of Societies for the Prevention of Cruelty to Animals v
Openshaw 2008 (5) SA 339 (SCA) at paras 29 – 30.
28
was served on the applicant on 4 November 2025. For the same reasons as
set out above, there was no legal impediment on the f irst respondent issuing
such verdict, and yet again, once the verdict was issued, there is nothing to
interdict.
[72] The applicant is simply unable to answer the above difficulties she faces. In
the replying affidavit , despite conceding that she received the verdict, the
applicant complains that the verdict was unlawful, because it violates the
Disciplinary Regulations which provide that a verdict can only be given after a
full hearing has been concluded. The applicant complains that the
respondents have resorted to self -help by proceeding as they did , when the
applicant’s application was still pending, and undecided, and this conduct
sought to undermine the Court proceedings set down for 7 November 2025.
But even these contentions, as they stand, do not assist her. This is because
she did not seek to amend her notice of motion and supplement her founding
affidavit, to cater for the events that took place on 3 and 4 November 2025,
before the matter was set down for hearing.
[73] As I have said, the mere filing of an application that remains undecided does
not serve as any kind of legal impediment on the respondent parties still being
entitled to act on the basis sought to be interdicted. Simply put, a filed notice of
motion is not a Court order. Considering the first respondent’s rulings of 27
October 2025, which as matters stood w ere still extant, entitled the
respondents to act as they did. In short, the applicant’s application needed to
have been decided by the Court, for her criticism of the conduct of the
respondents as set to above to have substance and be justified.
[74] What the applicant needed to have done, once she was in receipt of the
closing submissions from the second respondent and the verdict of the first
respondent, prior to this matter being heard, and considering exactly how she
respondent, prior to this matter being heard, and considering exactly how she
sought to couch her relief in the notice of motion, was to supplement her
review application and seek to review and set aside the verdict of 4 November
2025, and then supplement her founding affidavit and notice of motion in the
urgent application in casu to cater for a case of interdicting further proceedings
until all this was determined. But she did not do so. At best for her, she raises
29
this case on reply, which is impermissible: In Brayton Carlswald (Pty) Ltd and
Another v Brews24 the Court made the following clear:
‘In my view, there are two insurmountable hurdles in the 'new' version being
accepted. First, the general rule in motion proceedings is that an applicant
must stand or fall by the averments made out in its founding affidavit … ’
And in Betlane v Shelly Court CC25 the Court said:
'… It is trite that one ought to stand or fall by one's notice of motion and the
averments made in one's founding affidavit. A case cannot be made out in the
replying affidavit for the first time … ’
[75] So, and as matters stand, the applicant seeks to interdict what has already
happened. As the respondents say, the proverbial ship has sailed. This
renders the entire interdict sought by the applicant to be incompetent . This
was specifically recognised in Philip Morris Inc and Another v Marlboro Shirt
Co SA Ltd and Another 26 where the Court said: ‘ … An interdict, however, is
not a remedy for the past invasion of rights … ’. This approach was adopted by
the Constitutional Court in United Democratic Movement and Another v
Lebashe Investment Group (Pty) Ltd and Others27 where the Court held:
‘In granting an interdict, the court must exercise its discretion judicially upon a
consideration of all the facts and circumstances. An interdict is 'not a remedy
for the past invasion of rights: it is concerned with the present and future'. The
past invasion should be addressed by an action for damages. An interdict is
appropriate only when future injury is feared.’ (emphasis added)
[76] The SCA in National Council of Societies for the Prevention of Cruelty to
Animals v Openshaw28 further explained the position, deciding:
24 2017 (5) SA 498 (SCA) at para 29.
25 2011 (1) SA 388 (CC) at para 29
26 1991 (2) SA 720 (A) at 735B.
27 2023 (1) SA 353 (CC) at para 48. See also Independent Electoral Commission v Langeberg
27 2023 (1) SA 353 (CC) at para 48. See also Independent Electoral Commission v Langeberg
Municipality 2001 (3) SA 925 (CC) at para 12; Fibre Stream Proprietary Limited v York Cheese
Factory Proprietary Limited 2024 JDR 1921 (GJ) at para 11; Salamousas v South Side Restaurant
(Pty) Ltd
2023 JDR 3090 (GJ) at para 25 ; Ethekwini Municipality v Msizi Security CC and Others 2024 JDR
2538 (KZD) at para 45; Tau v Mashaba and Others 2020 (5) SA 135 (SCA) at para 26.
28 2008 (5) SA 339 (SCA) 20 and 22.
30
‘An interdict is not a remedy for past invasion of rights but is concerned with
present or future infringements. It is appropriate only when future injury is
feared. Where a wrongful act giving rise to the injury has already occurred, it
must be of a continuing nature or there must be a reasonable apprehension
that it will be repeated. …
If the infringement complained of is one that prima facie appears to have
occurred once and for all, and is finished and done with, then the applicant
should allege facts justifying a reasonable apprehension that the harm is likely
to be repeated.’
[77] What exists in casu, where it comes to the relief sought by the applicant in the
notice of motion of motion and founding affidavit, is nothing else but an alleged
past invasion of rights. That invasion constitutes a once off action, that does
not persist or continue once committed. There is certainly no possibility that it
can be repeated. As a simple example relevant in casu, once the verdict is
issued, it cannot be repeated or issued again in future. The fact that there may
be future consequences arising from the action does not matter, a s this i s an
issue that can only be resolved by legal proceedings in the ordinary course,
such as for example the applicant’s pending review application (if competent).
This is apparent from the following dictum in National Treasury and Others v
Opposition to Urban Tolling Alliance and Others
29:
‘Under the Setlogelo test the prima facie right a claimant must establish is not
merely the right to approach a court in order to review an administrative
decision. It is a right to which, if not protected by an interdict, irreparable harm
would ensue. An interdict is meant to prevent future conduct and not decisions
already made. Quite apart from the right to review and to set aside impugned
decisions, the applicants should have demonstrated a prima facie right that is
threatened by an impending or imminent irreparable harm. The right to
threatened by an impending or imminent irreparable harm. The right to
review the impugned decisions did not require any preservation pendente lite.’
[78] This Court in Choko- Choko and Others v Tharisa Minerals (Pty) Ltd 30 applied
the aforesaid ratio in Opposition to Urban Tolling Alliance, concluding as
follows:
29 2012 (6) SA 223 (CC) at para 50.
30 (2025) 46 ILJ 2618 (LC) at paras 42 and 44.
31
‘This application has to fail because in OUTA the Constitutional Court made it
clear that an interdict is meant to prevent future conduct and not decisions
already made. …
Put differently: an interdict is appropriate only when future injury is feared. This
means that when the wrongful act giving rise to the injury has already
occurred, either it must be of a continuing nature or there must be a
reasonable apprehension that it will be repeated. If the injury is one that
‘occurred once and for all and is finished and done with’, then the applicant
should allege facts justifying a reasonable apprehension that the harm is likely
to be repeated.
’
And in Department of Public Works and Roads, North West v National Union
of Public Service and Allied Workers31 this Court also held:
‘This principle has recently been confirmed in UDM & another v Lebashe
Investment Group (Pty) Ltd & others where the Constitutional Court said:
‘An interdict is not a remedy for the past invasion of rights: it is concerned with
the present and future. The past invasion should be addressed by an action
for damages. An interdict is appropriate only when future injury is feared.’
[79] The applicant in casu has advanced no facts to illustrate that any harm is likely
to repeated. In any event, and considering the issues at stake, it realistically
cannot be repeated. As I have said above, once the verdict it made, it is done
and dusted, and no repetition is possible. A comparable example can be found
in SA Commercial Catering & Allied Workers Union and Others v Western
Province Sports Club t/a Kelvin Grove Club and Another32 which related to the
applicants in that case seeking to interdict the transfer of employees to
another employer, in circumstances where the transfer had already happened.
This considered, the Court decided:
‘Although, the applicants sought in their notice of motion to interdict the
transfer of the employees from the old employer to the new employer, it is
transfer of the employees from the old employer to the new employer, it is
undisputed that by the time the applicants brought their application the transfer
had already taken place. It is also undisputed that by the time the application
was served and filed the employment of the transferred employees with the
old employer had already been terminated.
31 (2024) 45 ILJ 1003 (LC) at para 21.
32 (2008) 29 ILJ 3038 (LC) at paras 17 – 18.
32
The approach adopted by the applicant goes against the purpose of
an interdict. The purpose of an interdict is not to remedy the past invasion of
rights. This effect of an urgent interdict is to maintain the status quo and not to
return the status quo.’
[80] Another comparable example can be found in the judgment of Heradien v
Meshoa and others 33. In that case, the applicant sought to interdict hi s
expulsion as a member of ICOSA , when that had already happened. The
Court decided as follows:34
‘… the conduct that Mr Heradien seeks to interdict in prayers 2.1 and 2.2 of
Part A of the notice motion, has already occurred. He has been expelled as a
member of ICOSA and he has been replaced as a councillor. An interdict is
not a remedy for past invasion of rights but is concerned with present or future
infringements. It is appropriate where future injury is feared. An interdict is
meant to prevent future conduct and not conduct that has already occurred or
decisions already made. Consequently, Mr Heradien has failed to demonstrate
a well-grounded apprehension of irreparable harm.
’
[81] I conclude by way of reference to the following apposite dictum in National
Employers’ Association of South Africa and Another v Minister of Employment
and Labour and Others 35 which undoubtedly , I believe, finds application in
casu:
‘Counsel for the applicants conceded, correctly so, that the remedy of an
interdict may be problematic, in an instance where the Minister has already
exercised what the applicants consider to be unlawful exercise of statutory
power. Thus, an interdict would necessarily call for the unscrambling of an
egg, as it were. The proverbial horse has bolted. It was for that reason that the
notice of motion was couched in such ambivalent terms, by mentioning an
interdict and or suspension. Clearly, the Minister has exercised statutory
powers, lawfully or unlawfully, in April 2025 already. To my mind, this is a
powers, lawfully or unlawfully, in April 2025 already. To my mind, this is a
typical case of the past invasion. On the authority of UDM, an interdict is not
an appropriate remedy. … ’
33 2024 JDR 0570 (WCC).
34 Id at para 39.
35 2025 JDR 4138 (GP) at para 13.
33
[82] Therefore, and in sum, this application must fail because the relief sought by
the applicant in her notice of motion is simply not competent. She cannot seek
to interdict that which has already happened. It does not matter if the first
respondent may have issued her verdict unlawfully or lawfully. The undeniable
reality is that she did. The issuing of a verdict in a disciplinary is not something
that can be likely repeated. In is a once off decision in a fact specific process .
The applicant’s application falls to be dismissed on this basis alone.
Jurisdiction
[83] But even if I am wrong on the issue of the relief sought by the applicant not
being competent, the issue of jurisdiction remains very much alive. In their
answering affidavits, both the respondents specifically challenged the
jurisdiction of this Court to grant the applicant the relief sought in this
application. This means that the issue of jurisdiction must be first be
considered and decided. Jurisdiction is determined on the basis of the case as
pleaded by the applicant, which in motion proceedings is found in the notice of
motion and founding affidavit.
36
[84] In the founding affidavit, the applicant pleads that this Court has jurisdiction
under section 157 of the LRA to hear and adjudicate upon this application .
She further pleads that Section 158(1) (a) of the LRA empowers this Court to
grant an interdict, which is what the applicant is applying for , in the form of an
interim interdict pending the determination of her review application. The
applicant finally relies, as source of jurisdiction, on section 158(1)(h) of the
LRA.
[85] In Gcaba v Minister for Safety and Security and Others
37, the Court described
the concept of ‘jurisdiction’ as follows: ‘… The specific term 'jurisdiction', which
has resulted in some controversy, has been defined as the 'power or
competence of a court to hear and determine an issue between parties … ’.
competence of a court to hear and determine an issue between parties … ’.
36 See Gcaba v Minister for Safety and Security and Others (2010) 31 ILJ 296 (CC) at para 75; Mbatha
v University of Zululand (2014) 35 ILJ 349 (CC) at para 157; Ekurhuleni Metropolitan Municipality v SA
Municipal Workers Union on behalf of Members (2015) 36 ILJ 624 (LAC) at para 21; Moodley v
Department of National Treasury and Others (2017) 38 ILJ 1098 (LAC) at para 37; Mohlomi v
Ventersdorp/Tlokwe Municipality and Another (2018) 39 ILJ 1096 (LC) at para 42; Public Servants
Association on behalf of Members v Minister of Health and Others (2019) 40 ILJ 193 (LC) at para 15.
37 (2010) 31 ILJ 296 (CC) at para 74.
34
And in Makhanya v University of Zululand 38, the Court also dealt with the
meaning of jurisdiction as follows: ‘…. Judicial power is the power both to
uphold and to dismiss a claim. It is sometimes overlooked that the dismissal of
a claim is as much an exercise of judicial power as is the upholding of a claim.
A court that has no power to consider a claim has no power to do either (other
than to dismiss the claim for want of jurisdiction).’
[86] Considering what the applicant has relied on to establish jurisdiction, I will start
with 157(1) of the LRA . In terms of section 157(1) ,39 the jurisdiction of the
Labour Court is specifically circumscribed and determined by statute, being
the LRA itself. But does this include a general jurisdiction allowing this Court to
intervene, in medias res on an urgent basis, where it comes to any conduct of
an employer, which includes the conducting of discipline, in the event that it is
pleaded that such conduct is unfair or unlawful. In this context, it is true that as
far back as 2011, the LAC in Booysen v Minister of Safety and Security and
others
40 propagated a general approach t hat the Labour Court would have
general jurisdiction to intervene to restrain any alleged illegalities, irregularities
or unfairness in incomplete workplace proceedings, provided that exceptional
circumstances exist that would justify such intervention. The Court in that case
had said:41
‘To answer the question that was before the court a quo, the Labour Court has
jurisdiction to interdict any unfair conduct including disciplinary action.
However such an intervention should be exercised in exceptional cases … ’
[87] Following Booysen, the general approach in the Labour Court was to assume
jurisdiction to intervene in disciplinary proceedings that were not complete,
however the exercise of this jurisdiction was tempered by the requirement that
the applicant had to show the existence exceptional circumstances justifying
the applicant had to show the existence exceptional circumstances justifying
such intervention. More often than not, because of the imperative that the
dispute resolution machinery of the LRA rather be applied, showing
38 (2009) 30 ILJ 1539 (SCA) at para 23.
39 The section reads: ‘Subject to the Constitution and section 173, and except where this Act provides
otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms
of this Act or in terms of any other law are to be determined by the Labour Court.’.
40 (2011) 32 ILJ 112 (LAC).
41 Id at para 54.
35
exceptional circumstances was a difficult hurdle to clear. 42 But this approach
did not detract from the position that the Labour Court was considered to have
general jurisdiction to intervene.
[88] Things started changing after the judgment of the Constitutional Court in
Steenkamp and Others v Edcon Ltd (National Union of Metalworkers of SA
intervening)43, where the Court had the opportunity to consider if the Labour
Court had jurisdiction to determine whet her a dismissal was unlawful, as
opposed to being unfair. After referring to the fact that the LRA created special
rights and obligations that do not exist at common law, which included the right
of an employee not to be unfairly dismissed, but then also created principles
applicable to such rights and special processes and fora for the enforcement
of those rights,44 the Court, with specific reference to section 185 of the LRA,45
decided that:46
‘Conspicuous by its absence here is a para (c) to the effect that every
employee has a right not to be dismissed unlawfully. If this right had been
provided for in s 185 or anywhere else in the LRA, it would have enabled an
employee who showed that she had been dismissed unlawfully to ask for an
order declaring her dismissal invalid. Since a finding that a dismissal is
unlawful would be foundational to a declaratory order that the dismissal is
invalid, the absence of a provision in the LRA for a right not to be dismissed
unlawfully is an indication that the LRA does not contemplate an invalid
dismissal as a consequence of a dismissal effected in breach of a provision of
the LRA.’
The Court then concluded:47
‘I conclude that invalid dismissals and a declaratory order that a dismissal is
invalid and of no force and effect fall outside the contemplation of the LRA.
42 See for example Mmatli and Others v Department of Infrastructure Development (Gauteng
Province)
(2015) 36 ILJ 464 (LC) at para 13; Mere v Tswaing Local Municipality and Another (2015) 36 ILJ 3094
(LC) at paras 17 – 18; Hlabangwane v MEC for Public Works, Roads and Transport, Mpumalanga
Provincial Government and Others (2012) 33 ILJ 1195 (LC) at paras 7 – 9.
43 (2016) 37 ILJ 564 (CC) at para 106.
44 Id at para 105.
45 Section 185 reads: ‘ Every employee has the right not to be — (a) unfairly dismissed; and (b)
subjected to unfair labour practice.’
46 Id at para 106.
47 Id at para 136.
36
Such an order cannot be granted in a case based on the breach of an
obligation under the LRA concerning a dismissal.’
[89] Following the judgment in Edcon, the Labour Court started to accept that
where the case of the employee was based on allegations of unlawfulness or
illegality, the Court, based on what was said in Edc on about unlawful
dismissals, did not have the jurisdiction to so intervene. This is evident from
several authorities dealing with such issues. A few examples bear mention. In
Democratic Municipal and Allied Workers Union of SA and Others v City of
Johannesburg48 it was said: ‘… The effect of this judgment is that when an
applicant alleges that a dismissal is unlawful (as opposed to unfair), that
applicant has no remedy under the LRA and this court has no jurisdiction to
make any determination of unlawfulness. If a remedy is sought under the LRA,
the applicant must categorise the alleged unlawfulness as unfairness …’. And
in Neumann v Western Cape Education Department and Others
49 the Court
held: ‘… Since the decision of the Constitutional Court … there is now serious
doubt whether a dismissal or other forms of employer conduct or action can be
challenged under the LRA on the basis of unlawfulness ’. Similar conclusions
were arrived at in National Education Health and Allied Workers Union and
others v University of South Africa and another
50 and Shezi v SA Police
Service and Others51.
[90] Nonetheless, the ratio in Booysen remained, as the Court in Edcon did not
specifically or pertinently deal with the jurisdiction of the Labour Court to
intervene in medias res in incomplete disciplinary proceedings. However, in
this respect, a recent important development has taken place. B ased on what
was held in Edcon, the LAC in Cibane and Another v Premier of Province of
Kwazulu-Natal52 has now revisited the Booysen approach. In Cibane, the
employee parties sought declaratory orders to the effect that there was an
employee parties sought declaratory orders to the effect that there was an
unreasonable delay in bringing the disciplinary charges against them and that
the employer had waived its rights to pursue disciplinary proceedings, with the
result that the disciplinary charges f ell to be quashed. 53 In addition, these
48 (2020) 41 ILJ 912 (LC) at para 7.
49 2021) 42 ILJ 561 (LC) at para 13.
50 (2022) 43 ILJ 2351 (LC) at para 15.
51 (2021) 42 ILJ 184 (LC) at para 12.
52 (2025) 46 ILJ 2587 (LAC).
53 See para 28 of the judgment.
37
employees had applied to review and set aside the internal chairperson’s
ruling on the same issues. In deciding th e aforesaid case raised, and a fter
specifically referring the dicta in Edcon quoted above, the Court in Cibane first
said:54
‘It is clear from this passage that outside of the scope of any statutory
provision that specifically confers jurisdiction on the Court, the Labour Court
has no jurisdiction, in any general sense, to make any determination of the
unlawfulness of employer conduct.’
[91] The aforesaid conclusion in Cibane is in my view clearly in line with how the
jurisprudence with regard to jurisdiction in the case of contentions of
unlawfulness and illegality had been developing in the Labour Court since
Edcon. But that is not where the Court in Cibane stopped. The Court
specifically went further and held:55
‘In the absence of any statutory provision conferring jurisdiction on the Labour
Court both in respect of employer conduct alleged to be unlawful and in
employment-related matters generally, there can thus be no general rule, as
the judgment in Booysen might be construed, to the effect that the Labour
Court has jurisdiction to intervene in medias res to restrain any alleged
illegalities, irregularities or unfairness in incomplete disciplinary proceedings .’
(emphasis added)
The Court finally concluded:56
‘In summary: to the extent that Booysen has been interpreted to establish a
general rule, qualified only by exceptionality, that the Labour Court has
jurisdiction to intervene in uncompleted disciplinary proceedings, this is not an
interpretation that can be sustained by section 157(1) of the LRA.’
[92] In my view, Cibane has now clarified the issue of jurisdiction of the Labour
Court under section 157(1) where it comes to intervening in medias res in
internal disciplinary proceedings in an employer that are not completed. The
Labour Court does not have any general jurisdiction to intervene and / or
Labour Court does not have any general jurisdiction to intervene and / or
adjudicate any alleged unfairness, unlawfulness, illegalities or irregularities
54 Id at para 24.
55 Id at para 27.
56 Id at para 32.
38
pertaining to any conduct or failure of any party to the employment relationship
where it comes to incomplete internal disciplinary proceedings. 57 What the
applicant in any litigation proceedings, where intervention from the Labour
Court is sought, must do, is to substantiate the jurisdiction of the Labour Court
by specifically matching the cause of action or issue in dispute, to a specific
provision as contained either in the LRA itself or in any other related
employment law, such as for example the Employment Equity Act (EEA)
58 or
Basic Conditions of Employment Act (BCEA) 59. The applicant must also
specifically indicate on what provision in any of these items of legislation the
applicant relies.
60 If that cannot be done, or is not done, then there is no
jurisdiction.
[93] It is unclear from the applicant’s founding affidavit whether the basis of her
case is unfair conduct, or unlawful conduct, by the respondents towards her in
the course of her disciplinary proceedings. For example, and with reference to
the first respondent’s rulings on 27 October 2025, the applicant says that
these rulings were ‘incorrectly, prematurely, unlawfully, unfairly, unreasonably
and arbitrarily’ made, suggesting unlawfulness. But on the other hand, she
complains she was subjected to ‘unfair treatment’ by the first respondent, that
the first respondent’s actions on 27 October 2025 ‘ violated my right to a fair
disciplinary hearing, in particular the right to legal representation’, and she
suggested that the ‘first Respondent's conduct is undoubtedly aimed at denying
me a right to a fair disciplinary hearing and a right to legal representation’. This
suggests a case based on unfairness. Nonetheless, and based on what was made
clear in Cibane, this Court has no jurisdiction, by virtue of section 157(1), to
intervene in medias res in incomplete disciplinary proceedings, whether the
complaint is based on unlawfulness or unfairness.
complaint is based on unlawfulness or unfairness.
57 See also Baloyi v Public Protector and Others (2021) 42 ILJ 961 (CC) at para 24, where it was held:
‘… Crucially, s 157(1) does not afford the Labour Court general jurisdiction in employment matters … ’
29 Section 157(1) of the LRA does not refer to specific sections of that Act as sources of the Labour
Court’s exclusive jurisdiction. It only provides that they are to be found elsewhere in the Act. In some
instances, their location is clear: for example, ss 68(1), 77(2), 145 and 191. In others, it is left to the
courts to determine whether a matter is one that arises in terms of the LRA and is, in terms of that Act,
or another law, to be determined solely by the Labour Court …’.
58 Act 55 of 1998 (as amended).
59 Act 75 of 1997 (as amended).
60 In 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) at para 6, the Court
said: ‘… an applicant must necessarily identify the statutory provision that confers jurisdiction on the
court … ’. See also Shezi (supra) at para 10.
39
[94] T urning then to section 158(1)(a) of the LRA, also relied on by the applicant, it
is my view that the applicant’s reliance on this provision to confer jurisdiction
on this Court is misplaced. It has been recognised that there are in essence
two categories of powers envisaged by section 158(1). The first category is
those powers that can only be exercised if it is first found that the Labour Court
already has jurisdiction on another basis. The second category is what can be
described as jurisdiction conferring powers, meaning that the power itself
establishes jurisdiction. This was made clear in South African Municipal
Workers Union and Others v Mokgatla and Others
61, as follows: ‘… While s
157(1) and (2) relate, broadly, to the jurisdiction of the Labour Court, s 158(1)
both lists specific remedial powers and provides substantive jurisdictional
bases of that court. … ’ The same was said in Du Plessis v Public Protector
and Others 62, namely: ‘… This then only leaves s 158. Even though this
provision on face value appears to deal with powers that are conveyed to the
Labour Court only once jurisdiction is first established to exist, this section
must be read in conjunction with s 157 as a source of jurisdiction as well … ’.
[95] The nature of the powers of the Labour Court under section 158(1) was
pertinently dealt with in Merafong City Local Municipality v SA Municipal
Workers Union and Another
63. In that judgment, the Court accepted that
section 157 is the primary provision in the LRA which deals with the Labour
Court's jurisdiction,
64 however the Court added that section 157(1): ‘… directs
the reader of that section to the sources of the Labour Court's exclusive
jurisdiction, albeit in very vague and general terms … ’. Because of this, the
Court expressed the view that:65 ‘… As a result, the interpreter is saddled with
the difficult task of having, for example, to distinguish purely jurisdictional
the difficult task of having, for example, to distinguish purely jurisdictional
provisions from general empowerment provisions. This difficulty is
exacerbated by sections which purport to contain mere empowerment
provisions, whereas they, on proper construction, also actually contain
61 2016 (5) SA 89 (SCA) at para 11.
62 (2020) 41 ILJ 919 (LC) at para 24.
63 (2016) 37 ILJ 1857 (LAC).
64 Id at para 28.
65 Id at para 30.
40
provisions which are sources of the Labour Court's jurisdiction’. That all being
said, the Court then concluded:66
‘Section 158 is such a section. Its introductory wording specifically states that
it deals with the powers of the Labour Court. Because the introductory words
of the previous section, that is s 157, state that it deals with the jurisdiction of
the Labour Court, the immediate expectation is that s 158 is not a source of
jurisdiction, but merely contains provisions defining the powers of the Labour
Court in respect of matters, which, in terms of some other provision in that Act,
fall under the jurisdiction of the Labour Court. However, a close reading of the
entire s 158 dispels that initial notion. It does deal with powers (post
jurisdiction), but also with powers which cannot but be construed and
understood as sources of jurisdiction.
’
[96] The Court in Merafong supra provided examples of provisions found in section
158(1) that conferred jurisdiction, as opposed to those that could only be
exercised if jurisdiction was first established elsewhere under the LRA. In this
regard, the Court said:
67 ‘Section 158(1)(a) is clearly an example of the
powers the Labour Court may exercise in respect of a matter falling within its
jurisdiction, and it does not purport to grant the Labour Court jurisdiction, in the
sense of the power to hear and determine the matter in the first place. On the
other hand, s 158(1)(i) clearly bestows on the Labour Court jurisdiction in the
latter sense’. The Court also referred to section 158(1)(h) as being a source of
conferring jurisdiction and then also empowering the Labour Court to hear and
determine applications to review any decisions taken or acts performed by the
State in its capacity as employer.
68
[97] It thus follows that the reliance by the applicant on section 158(1)(a) as a
source of conferring jurisdiction on this Court is ill- founded. These are not
source of conferring jurisdiction on this Court is ill- founded. These are not
jurisdiction conferring provision s. These are actually provisions providing
powers to the Labour Court, only once jurisdiction is conferred from another
source. Therefore, it cannot be said that the Labour Court has jurisdiction on
this basis.
66 Id at para 31.
67 Id at para 33.
68 Id at para 34.
41
[98] It is so that the applicant has also pleaded reliance on section 158(1)(h) as a
source of conveying jurisdiction on this Court. 69 It is then correct, as said in
Merafong, that this is indeed a jurisdiction conveying provision.70 Accordingly,
this Court would have jurisdiction to entertain the applicant’s case, based on
section 158(1)(h), 71 but only within the confines of what is contemplated
specifically by such section. Section 158(1)(h) can equally not serve as some
source of general jurisdiction to challenge unlawful or unfair conduct. It is
specifically a review jurisdiction, which must be exercised within t he confines
of what is required and permitted by the LRA in dealing with such kind of
challenges. In this context, the applicant has indeed filed a review application
on 30 October 2025 seeking to challenge the various rulings of the first
respondent in the disciplinary proceedings made in the course of October
2025, and in particular her rulings made on 27 Ocftober 2025, on review to this
Court. Generally speaking, this Court would have jurisdiction to entertain such
an application, however it must still be decided whether such a review
application, and any litigation associated with it, would be competent based on
the particular facts of this case, which I will next consider.
The review application
[99] I accept that in terms of the applicant’s review application filed on 30 October
2025, she seeks relief to the effect that the various rulings by the first
respondent in October 2025 (in particular on 27 October 2025) be reviewed
and set aside. But as I have said, the fact that a review application is generally
competent under section 158(1) (h), it does not mean this Court is entitled or
should consider it. As said in Mohlomi v Ventersdorp/Tlokwe Municipality and
Another
72:
‘The enquiry whether or not to entertain such a review application however
does not stop just because it may be accepted that the Labour Court in
does not stop just because it may be accepted that the Labour Court in
general terms has jurisdiction to do so. Simply put, the fact that the Labour
Court has jurisdiction/power does not mean that the court should exercise this
69 Section 158(1)(h) reads: ‘The Labour Court may … review any decision taken or any act performed
by the State in its capacity as employer, on such grounds as are permissible in law’.
70 See also Booysen v Beaufort West Municipality and Another (2026) 47 ILJ 129 (LAC) at para 22.
71 See Vanguard of Organised Labour (Voola) v Mahlangu and Others [2025] JOL 69950 (LC) at para
22.
72 (2018) 39 ILJ 1096 (LC) at para 34. See also O’Connor (supra) at para 42.
42
power. In other words, and even though the court may have jurisdiction to
consider such a review under s 158(1) (h), it does not mean that it is
appropriate for it to exercise such power, especially where there are other
specifically prescribed alternative means by way of which the issue can be
resolved.’
[100] In such a review application, and as said in Cibane supra73, the applicant must
plead grounds of review. The actual review application filed on 30 October
2025 under case number 2025 – 204594 was not placed before me, so I do
not even know what the pleaded grounds of review are. But there are grounds
of review set out in the founding affidavit in casu, which grounds , as I have
said above, contemplates grounds based on unlawfulness, as well as grounds
based on unfairness.
[101] But what is the real cause of complaint of the applicant ? Considering that the
relief she seeks is an interim interdict founded on a pending review
application, it is essential to determine whether the review application itself is
competent or appropriate, in such context . In O'Connor v Department of
Education, Eastern Cape and Others74 the Court held that where the C ourt is
faced with a review application under s ection 158(1)(h) to challenge any
decision of the state in its capacity as employer, such as the decisions of the
first respondent in casu, it is essential for the C ourt to consider the true nature
of the decision, or, in other words, the true nature of the dispute. 75 In Magoda
v Director-General of Rural Development and Land Reform and Another76 the
Court had the following to say: ‘… section 158(1)(h) establishes a jurisdictional
footprint for review, with the permissible grounds of review being dependent
upon the nature of the impugned decision …’. The enquiry to determine the
nature of the dispute must thus always be conducted by this Court,
73 Id at para 30.
74 (2024) 45 ILJ 1041 (LC) at para 45.
73 Id at para 30.
74 (2024) 45 ILJ 1041 (LC) at para 45.
75 In Zungu v Premier, Province of Kwazulu- Natal and Another (2017) 38 ILJ 1644 (LAC) at para 18,
the Court said: ‘… Accordingly, the first exercise in any proceedings is to read, as in this case, the
allegations in the affidavits, and make the determination. It is not, primarily, the form of relief sought,
but rather the necessary averments to demonstrate the ‘cause of action’ that determines the
‘character’ of the dispute, although the form of the relief, if it is consonant with the cause of action, will
point in the same direction’. See also Mohlomi ( supra) at para 42; Ngubane v Safety and Security
Sectoral Bargaining Council and Others (2022) 43 ILJ 2543 (LC) at para 24.
76 (2017) 38 ILJ 2795 (LC) at para 5.
43
irrespective of how the review applicant may choose to label the dispute. 77 It is
here where the difference between review grounds based on unfairness, and
review grounds based on unlawfulness, are critical.
[102] Once this enquiry shows that the issue in dispute is actually one that
contemplates a violation of the rights of the applicant bestowed by the LRA, or
in other words the review grounds are founded on unfairness, then the dispute
must be resolved by way of the proper prescribed processes under the LRA ,
and this C ourt should decline to entertain the same under section 158(1)(h).
The Court in Leshabane v Minister of Human Settlements and Others78 found
as follows:
‘… insofar as this court may be empowered to consider a legality challenge by
an employee of the state such as the applicant in casu, such entitlement is
always subject to such an employee being required, if not obliged, to instead
utilise the prescribed dispute-resolution processes under the LRA, like any
other employee.’
[103] As said, the review application itself was not placed before me to consider.
And as I have also said, the founding affidavit in the application in casu
appears to rely on both unfairness and unlawfulness. But in argument, the
applicant’s counsel pri marily focussed on two principal issues, founded on
Regulation 10(5) of the Disciplinary Regulations. The first is that the first
respondent unlawfully closed the a pplicant's case in violation of
Regulation10(5), in that the Regulation ‘ does not sanction’ a chairperson to
close an accused employee's case and issue a verdict against him or her
before the completion of the disciplinary proceedings . As a result, and
according to the applicant, the first respondent’s ruling to this effect on 27
October 2025 is unlawful, null and void because she did not have the
jurisdiction, authority or power to make the ruling. Second, the applicant
complains that the first respondent ’s refusal to postpone the matter to 30 and
complains that the first respondent ’s refusal to postpone the matter to 30 and
31 October 2025 to allow the a pplicant's legal defence team to be present, ‘is
tainted with gross irregularity, justifying it to be reviewed and set aside’.
77 Compare National Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and Another
(2003) 24 ILJ 305 (CC) at para.52; Chirwa (supra) at para 63; Gcaba (supra) at para 66; Farre v
Minister of Defence and Others (2017) 38 ILJ 174 (LC) at para 17.
78 (2024) 45 ILJ 833 (LC) at para 46.
44
[104] First things first. Considering the argument that the first respondent had no
jurisdiction to grant an order closing the applicant’s case, that contention is
simply wrong. The first respondent had jurisdiction to make such a ruling. This
is evident from Regulation 10(5)(a)(iii) and (iv), which reads: ‘ The presiding
officer- (a) may, at any time during the hearing - … iii) proceed with the
hearing if no satisfactory reasons are furnished for the absence of the party
against whom charges of misconduct are being brought; (iv) make such
interim determinations or rulings as he or she deems necessary …’. These
provisions clearly contemplate a n eventuality where an employee, for
example, refuses to further participate in a hearing, and the chairperson then
directs, in order to proceed with the hearing to finality, the parties to furnish
closing arguments. The chairperson clearly exercises s discretion whether or
not to proceed on that basis, and obviously, exercising that discretion means
the chairperson must have the power to do so. So, if it is indeed true that the
applicant was deliberately obstructing the proceedings and came to the
hearing on 27 October 2025 to assert an unfounded entitlement for it to be
postponed, the first respondent would have been well within her rights to
refuse a postponement. And further, if it is true that the applicant indeed, after
her postponement was refused, declined to further participate in the
proceedings, the first respondent would be entitled to direct that the leading of
evidence is concluded and that the parties file closing argument. I am fortified
in my conclusions in this regard by Regulation 3(3)(b) which prescribes that
the disciplinary hearing must be concluded within the shortest possible time,
as well as Regulation 4(3)(b) which provides that discipline must be effected
with due regard to the Code of Good Practice provided for in Schedule 8 of the
LRA, which would be consistent with conduct by the chairperson set out
LRA, which would be consistent with conduct by the chairperson set out
above.
[105] In short, the applicant says that the first respondent was wrong in making the
ruling that she had decided to refuse the participate in the hearing, because
she never did that. The applicant also says that the first respondent was wrong
to refuse to postpone that matter, as the facts did not justify that decision and
there would have been little prejudice just to move the matter to 30 and 31
October 2025. These kinds of complaints, even if true, do not concern an
45
issue jurisdiction. It would be what can commonly be described as a bad case.
I will illustrate with reference to facts of this case, which is in fact a good
example. Using the applicant’s own terminology, t he second respondent’s
representative in the disciplinary hearing asks the first respondent as
chairperson to close the applicant’s case, because she is refusing to
participate further in the disciplinary hearing. The first respondent then grants
this request, on the basis that the first respondent believes the applicant is
refusing to further participate in the case. If that decision is plainly wrong, as
the applicant suggests, it does not detract from the first respondent’s
jurisdiction to have considered the request and to have made the decision.
Rather, the fact that the first respondent granted the request when she never
should have done so means making that decision is a bad case. In Makhanya
supra, the Court specifically dealt with the issue of the difference between an
issue of jurisdiction and a bad claim in law, and said:79
‘…. Judicial power is the power both to uphold and to dismiss a claim. It is
sometimes overlooked that the dismissal of a claim is as much an exercise of
judicial power as is the upholding of a claim. A court that has no power to
consider a claim has no power to do either (other than to dismiss the claim for
want of jurisdiction).’
[106] Therefore, the applicant’s review case cannot be said to concern a case based
on a lack of jurisdiction. Rather, it is whether the first respondent’s rulings in
October 2025 and in particular those made on 27 October 2025, constituted a
bad case on the facts, and thus on this basis being properly assailable on
review.
[107] As the applicant’s review application has nothing to do with a lack of
jurisdiction on the part of the first respondent, I believe the applicant would
have difficulty sustaining a review application in this case. This is because of
have difficulty sustaining a review application in this case. This is because of
what the case is really about. The Disciplinary Regulations stipulate that the
Regulations are a disciplin ary code which in effect seeks to give substance to
the employee’s right to fair disciplinary proceedings under the LRA. In simple
terms, it is founded on the right to procedural fairness under the LRA. Being a
disciplinary code in such context , a breach of the same must be challenged
79 Id at para 23. See also SA Maritime Safety Authority v McKenzie (2010) 31 ILJ 529 (SCA) at para 8;
SA Local Government Bargaining Council v Ally NO and Another (2016) 37 ILJ 223 (LC) at para 42.
46
under the dispute resolution processes prescribed by the LRA, and not by way
of a review application under section 158(1)(h). Where the LRA affords an
employee a right, it also prescribes a process that must be applied in giving
effect to such a right. As pertinently said in Edcon supra:80
‘The scheme of the LRA is that, if it creates a right, it also creates processes
or procedures for the enforcement of that right, a dispute-resolution procedure
for disputes about the infringement of that right, specifies the fora in which that
right must be enforced and specifies the remedies available for a breach of
that right.
’
[108] It follows that it is not competent for the applicant to challenge the rulings of
the first respondent made in October 2025, and in particular the rulings
refusing postponement and that oral evidence is concluded, granted on 27
October 2025, in terms of section 158(1)(h), should the applicant wish to rely
on her right to procedural fairness. Such a dispute must be pursued in terms of
the ordinary dispute resolution processes under the LRA, by way of a referral
to the appropriate bargaining council should the applicant be dismissed, and in
such proceedings, the applicant would be able to make out a case that her
right to procedural fairness was violated and she could then obtain relief. The
following dictum in Zungu v Premier of the Province of KwaZulu- Natal and
Others81 is apposite, where the Court held as follows:
‘The Labour Appeal Court was correct in upholding the Labour Court’s
decision that it did not have jurisdiction in the matter. This is because the claim
by the applicant relating to the Premier’s decision not to appoint her, and the
contention that this was unlawful, falls squarely within the definition of
dismissal in s 186(1) (b) of the LRA. The dispute should have been referred to
conciliation and ultimately to arbitration under s 191 of the LRA. Therefore, the
applicant cannot bypass the dispute-resolution process envisioned in the
applicant cannot bypass the dispute-resolution process envisioned in the
LRA. The applicant was obliged to follow the dispute-resolution process in
chapter VIII of the LRA but did not do so.’
80 Id at para 130. See also Chirwa (supra) at para 68; Gcaba (supra) at para 69; Hendricks v
Overstrand Municipality and Another (2015) 36 ILJ 163 (LAC) at paras 12 and 27; SA Social Security
Agency v Hartley and Others (2023) 44 ILJ 1334 (LC) at para 3; Mohlomi (supra) at para 40; O’Çonnor
(supra) at para 44.
81 (2018) 39 ILJ 523 (CC) at para 20.
47
And in Shezi supra the Court decided that:82
‘Where the employer conduct complained of is alleged to be unfair, the court is
precluded from granting final relief since it has no jurisdiction in respect of
matters that concern the procedural fairness of disciplinary proceedings. At
most, the court has jurisdiction to grant interim relief. Even then, the court has
held that it is not desirable that disputes about the exercise of workplace
discipline be dealt with on a piecemeal basis, particularly by way of the review
of every decision taken by the employer in the disciplinary process.
’
[109] But even if the merits of the applicant’s case are considered, the applicant, in
presenting argument, made it quite clear that the applicant sought to
incorporate principles applicable to a criminal trial into the disciplinary
proceedings. The applicant relied on section 342A of the Criminal Procedure
Act (CPA) 83, and argued that the same had to be applied to the disciplinary
proceedings of the applicant. In short, and in terms of that provision, in order
to close the case of an accused, a substantive application must be made
which the accused person must have the opportunity to address. The
presiding officer must then assess the application, with due consideration to
the reason advanced for the delay, whether the a pplicant or any person can
be blamed for the delay, the effect of the delay on the personal circumstances
of the accused and witnesses, the seriousness, extent or complexity of the
charge or the charges, actual or potential prejudice caused to the employer or
the defence by the delay, the effect of the delay on the administration of
disciplinary justice, and the adverse effect on the interests of the public or the
victims in the event of the prosecution being stopped or discontinued.
84
Because, according to the applicant, none of these requirements were
complied with, it was not competent for the first respondent to have closed the
applicant’s case.
applicant’s case.
[110] In my view, this approach by the applicant in seeking to apply what is in
essence a criminal justice model is lacking in substance. As far back as 2006,
82 Id at para 19.
83 Act 51 of 1977 (as amended).
84 The applicant relied directly on Mokoena v The State (200/2018) [2019] ZASCA 74 (30 May
2019) at paras 8 – 11.
48
the Court in Avril Elizabeth Home for the Mentally Handicapped v Commission
for Conciliation, Mediation and Arbitration and Others85 said:
‘The rules relating to procedural fairness introduced in 1995 do not replicate
the criminal justice model of procedural fairness . They recognize that for
workers, true justice lies in a right to an expeditious and independent review of
the employer’s decision to dismiss, with reinstatement as the primary remedy
when the substance of employer decisions is found wanting. For employers,
this right of resort to expeditious and independent arbitration was intended not
only to promote rational decision making about workplace discipline, it was
also an acknowledgment that the elaborate procedural requirements that had
been developed prior to the new Act were inefficient and inappropriate, and
that if a dismissal for misconduct was disputed, arbitration was the primary
forum for determination of the dispute by the application of a more formal
process.
’ (emphasis added)
[111] The aforesaid dictum in Avril Elizabeth is the real guiding principle when
assessing any conduct of the first respondent in the course of the disciplinary
hearing. To state it as simply as possible, the assessment that must be made
is whether the first respondent’s conduct of closing the applicant’s case (using
the applicant’s words), was fair in all the circumstances of this matter.
Considering the material factual dispute between the parties as to the causes
of delays, the alleged bias of the first respondent, whether the first respondent
in fact refused to participate in the proceedings, and whether there was proper
cause to refuse a postponement , this determination is best arrived at by way
of arbitration as prescribed under the L RA, and certainly not in motion
proceedings directly to this Court. To incorporate a criminal justice model into
the disciplinary proceedings is simply inappropriate and at odds with the LRA .
the disciplinary proceedings is simply inappropriate and at odds with the LRA .
The following dictum in Strydom v Arcelormittal SA 86 clearly illustrates the
point:
‘The LRA did not envisage the disciplinary process adopted by many
employers and abused by some employees. On the contrary, in its simplest
terms the LRA introduced a process that requires an investigation into any
alleged misconduct, an opportunity by any employee against whom any
85 (2006) 27 ILJ 1644 (LC) at 1651I-J.
86 (2024) 45 ILJ 931 (LC) at para 30.
49
allegation of misconduct is made to respond after a reasonable period with the
assistance of a representative, a decision by the employer, and notice of that
decision. Considering the number of cases challenging either the institution,
continuation or outcome of internal disciplinary hearings, or processes related
thereto, that end up in this court, it is evident that employers, trade unions and
legal practitioners (and any other relevant role player) took little note of the
provisions of the LRA and judgments of and the concerns raised by this
court.’
[112] To further illustrate, the Court in BMW supra dealt with circumstances where
an employer may even dispense with an oral disciplinary hearing and decide
the matter by way of written submissions, which would obviously not be
permitted if the model propagated by the applicant is applied. The Court in
BMW however held:
87
‘Insofar as the attenuated disciplinary process itself is concerned, there is
nothing in law that compels BMW to hold an in-person and oral disciplinary
hearing before deciding to dismiss an employee. The right to be heard, in this
context, in essence involves three considerations. The first is that the
employee should know the nature of the accusation against him or her, the
second is that the employee must be given an opportunity to state his or her
case, and the third is that the employer acts in good faith. These three
principal objectives have found their way into item 4 of schedule 8 to the LRA.
Not only is there nothing in the entire item 4 of schedule 8 that makes an in-
person/oral disciplinary hearing compulsory, but item 4(1) actually stipulates
that there does not need to be a formal enquiry in order to comply with the
employee’s right to state a case.
’
[113] Considering the complaint of the applicant based on the alleged bias of the
first respondent, and the circumstances upon which this complaint was
founded, the Court in Mathabathe v Nelson Mandela Bay Metropolitan
founded, the Court in Mathabathe v Nelson Mandela Bay Metropolitan
Municipality and Another88 appositely decided as follows, which ratio , in my
view, would be applicable in casu:
‘Insofar as bias is concerned, the applicant was afforded the benefit of an
independent chairperson. This is more than the code provides and more than
87 Id at para 54.
88 (2017) 38 ILJ 391 (LC) at para 24.
50
what is common in most workplaces where disciplinary enquiries are ordinarily
chaired by a more senior member of management. Further, as the court
observed in Avril Elizabeth Home, the code does not provide for a test for bias
in the form that applies in the civil or criminal courts, nor was the second
respondent obliged to assess the recusal application on the basis on which it
would be in those courts. I fail to appreciate why the fact that the second
respondent elected to conduct the enquiry in the manner in which he did is
necessarily an indication of bias. Further, I cannot overlook the fact that the
applicant's averments of bias arose only at the stage where the second
respondent had decided that the applicant was guilty of the alleged
misconduct, a stage where it became apparent to the applicant that the
outcome was not to her liking. In any event, bias is a procedural point. To the
extent that the applicant contends that the second respondent's refusal to
recuse himself nullified the disciplinary proceedings, the applicant's criticism of
the second respondent on that basis cannot be elevated to a submission that
the first respondent breached the applicant's contract by abiding by
the second respondent's ruling.
’
[114] In the end , it all goes back to what is a right to a fair hearing under the
provisions of the Disciplinary Regulations, and that is simply not a dispute that
can competently be pursued directly to this Court by virtue of the review
jurisdiction this Court has under section 158(1)(h) of the LRA . Therefore, and
based on the true nature of the applicant’s case, this Court would not have
jurisdiction to determine her review application under section 158(1)(h), as it is
a case that must be pursued in terms of the ordinary dispute resolution
processes in terms of the LRA . I consider the following dictum in Magoda
supra to be apposite in casu:
89
‘The principle emerging from Hendricks (and related case law) is that s
89
‘The principle emerging from Hendricks (and related case law) is that s
158(1)(h) reviews (including legality review) are only permissible where there
is no other remedy available under the LRA. The principle is not defeated
because an applicant relies on legality (ie lawfulness) in the review, while the
LRA provides for a remedy in fairness, because it is the existence of a remedy
under the LRA that renders the review impermissible. In any event, in
substance the applicant’s complaint is that she was treated procedurally
unfairly as a consequence of the procedural rulings. The founding affidavit is
89 Id at para 11.
51
replete with references to the applicant’s right to a ‘fair’ trial or hearing having
been breached. And in argument, Mr Ogunronbi placed reliance on item 4 of
the Code of Good Practice: Dismissal (schedule 8 to the LRA), which deals
with the procedural fairness of dismissals for misconduct. In effect, the
applicant has labelled a complaint about procedural fairness as one of
unlawfulness in order to mount a legality review, simply because unfairness
itself is not a ground of review. The LRA provides a remedy to address this
very complaint; a review under s 158(1)(h) is thus impermissible …
’
[115] Alternatively, and even accepting the applicant’s review application is founded
on unlawfulness and not unfairness, which means that the applicant is not
seeking remedies under the LRA but instead under the general principles of
legality, the applicant nonetheless faces another insurmountable hurdle, as
evident from the following dictum in Cibane supra:90
‘In any event, the appellants sought to review the second respondent’s ruling
in medias res. There is a general rule against a review court entertaining a
review application in these circumstances. Specifically, in a labour context, s
158(1B) expresses the general rule applicable in the Labour Court in respect
of the review of rulings issued during the course of any conciliation or
arbitration proceedings conducted under the LRA. The Labour Court may not
review any decision or ruling until a final determination has been made, except
where the court is of the opinion that it would be just and equitable to do so
before the stage of final determination. The Labour Court ought to be even
more circumspect in upholding appeals to exceptionality in the case of a
review of rulings made in the course of internal disciplinary proceedings. To do
otherwise would frustrate the LRA’s purpose of expeditious dispute resolution.’
[116] I accept that this Court is empowered to temporarily interdict proceedings or
[116] I accept that this Court is empowered to temporarily interdict proceedings or
actions pending the final determination of a review application, however in
those cases the requirement of needing to show exceptional circumstances for
such intervention always remains applicable.91 This is evident from what was
said in Magoda supra, as follows:92
90 Id at para 31.
91 Exceptional circumstances in this context means, as said in Booysen (supra) at para 34: ‘… Among
the factors to be considered would in my view be whether failure to intervene would lead to grave
injustice or whether justice might be attained by other means. The list is not exhaustive …’. In Choko-
Choko (supra) at para 33, it was described as ‘a manifest injustice’. And in BMW (supra) at para 51, it
was said that: ’… The simple point is that this court will only entertain applications to intervene in
52
‘… e ven if a legality review is available to the applicant under s
158(1)(h) despite the existence of an alternative remedy under the LRA, in
order to succeed with an application for interim relief at this stage, she would
have to establish exceptional circumstances for a review in medias res …’.
And in Shezi supra93 it was held:
‘It is important to emphasise that regardless of the legal basis on which
intervention is sought, whether by way of interim relief, a review application or
a claim in contract, the rule that intervention is exceptional remains. Once the
court determines that the pleadings disclose a jurisdictional basis for
intervention in uncompleted disciplinary proceedings, the case for
exceptionality must be made’
.
[117] I am unconvinced that the applicant has shown that it would be just and
equitable to consider his review application in medias res . The former LAC in
Zondi and O thers v President, Industrial Court and O thers94 decided as
follows:
‘There is no universal or absolute test governing the question when a court will
interfere in uncompleted proceedings, but one thing is clear from the cases
and that is that a court will only interfere in medias res in exceptional
circumstances, or when there is very good reason to do so. In ordinary
circumstances the time to take any proceedings on appeal or review is at the
termination thereof. The reasons for this attitude are equally clear. To permit
interference in unterminated proceedings delays the continuation and
completion of such proceedings. If such termination were to be readily
permitted the proceedings might be interrupted at various times, and to deal
with reviews or appeals piecemeal is clearly not practicable. In any event, the
irregularity, even if it is allowed to stand, will not necessarily affect the result
which might otherwise have followed. The tribunal concerned might
for example in any event come to a conclusion favourable to the party
for example in any event come to a conclusion favourable to the party
otherwise affected by the irregularity. Even if the irregularity does in the end
uncompleted disciplinary proceedings in truly exceptional circumstances crying out for intervention and
if material irremediable prejudice or grave injustice is shown to exist …’.
92 (2017) 38 ILJ 2795 (LC) at para 12.
93 (2021) 42 ILJ 184 (LC) at para 20. See also O’Connor (supra) at para 48.
94 (1991) 12 ILJ 1295 (LAC) at 1300D-G.
53
lead to a conclusion adverse to the person affected thereby, the time to put it
right, as I have already said, is at the termination of proceedings.’
[118] The aforesaid dictum in Zondi supra has bee n consistently applied by this
Court.95 And further, in the recent judgment of the LAC in South African Cabin
Crew Association obo Members v South African Airways (Soc) Ltd and
Others96, albeit in the context of section 158(1B) 97, the Court had the following
to say:
‘… t he court in South African Broadcasting Corporation (SOC) Limited v
Commission for Conciliation, Mediation and Arbitration and Others noted that
“[a] case must be truly exceptional to warrant a departure from the norm that a
review is appropriate only once the dispute has been finally determined in a
completed arbitration hearing. This is consistent with the statutory purpose of
expeditious dispute resolution which the LRA seeks to achieve”.
Exceptional circumstances justifying judicial intervention in incomplete
proceedings have been found to exist where such intervention was necessary
to prevent illegality, to prevent grave injustice, or where justice could not
otherwise be achieved. … ’
[119] Considering the founding affidavit, the applicant has dismally faile d to make
out any of the kind of circumstances envisaged by the judgments discussed
above. The applicant effectively adopts the approach that to expect her to
continue to participate in what she considers unlawful disciplinary proceedings
to its end conclusion, is per se exceptional circumstances justifying
intervention. This approach, in casu, is simply wrong. The case of illegality
(unlawfulness) relied on the applicant does not exist, as the first respondent
always had the jurisdiction to make the rulings that she did. Whether she was
right or wrong in doing so is beside the point. But further, a s said in Zondi
supra, this kind of irregularity, even if it exists, does not mean that it would
supra, this kind of irregularity, even if it exists, does not mean that it would
lead to an unfavourable outcome for the applicant. A ny allegation of bias on
the part of the first respondent is squarely founded on a case of a violation of
95 See for example Magoda (supra) at paras 12 – 13; Ngobeni v Passenger Rail Agency of SA
Corporate Real Estate Solutions and O thers (2016) 37 ILJ 1704 (LC) at para 13; Ramthlakgwe v
Modimolle-Mookgopong Local Municipality and Another (2023) 44 ILJ 2297 (LC) at paras 18 – 19.
96 [2025] 10 BLLR 1048 (LAC) at paras 26 – 27.
97 Section 158(1B) in effect prohibits piecemeal reviews before the conclusion of the matter, unless it
can be shown that it would be ‘just and equitable’ to permit it.
54
the right to procedural fairness under the LRA, readily resolvable by way of
LRA remedies under the LRA dispute resol ution processes. In fact, if the
applicant on any basis , did not receive a fair hearing, it must be resolved
under the LRA processes, and there is nothing exceptional about it.
[120] The applicant has been participating in these proceedings since June 2024. At
almost every step of the way, she has done everything she could to obstruct
the process. This included a plethora of postponement applications, last
minute request for documents, two abortive urgent applications in the Free
State High Court, jurisdictional challenges, a recusal application, and constant
technical point taking. When the first respondent towards the end of 2025 had
obviously run out of patience, and after having made a number of rulings
specifically warning the applicant that the matter will continue on scheduled
dates, the applicant, simply because her legal representatives were then again
unavailable, came to the hearing to effectively demand a postponement in an
entirely unacceptable manner, and in essence adopting an approach that she
was entitled to it. After the first respondent refus ed the postponement, the
applicant then elected to no longer participate in the proceedings. I know there
is a factual dispute about the aforesaid, but this dispute, as I have said, is best
determined and resolved in arbitration proceedings. For the purposes of the
application in cas u, however, the aforesaid facts would provide proper
substantiation for the conduct of the first respondent, and there nothing so
egregious or unjust in this case that would cry out for urgent intervention as an
exceptional circumstance. I believe the applicant has brought what ultimately
happened to her on herself. If anything, ‘ just and equitable ’ in casu works
against allowing a review in medias res , as it is not for this Court to
micromanage the disciplinary proceedings in an employer, which inevitably
micromanage the disciplinary proceedings in an employer, which inevitably
results in substantial delays, which I consider is what the applicant effectively
wants.
98 As pertinently said in Stokwe v Member of the Executive Council,
Department of Education, Eastern Cape and Others99:
‘The requirement of promptness not only extends to the institution of
disciplinary proceedings, but also to their expeditious completion.’
98 See Shezi (supra) at para 2; BMW (supra) at para 59; Strydom (supra) at para 26.
99 (2019) 40 ILJ 773 (CC) at para 67.
55
[121] In summary, the applicant’s pleaded reliance on section 158(1)(h) cannot save
her case. This is because insofar as she relies on unfairness, it not competent
for her to pursue a case directly to this Court on review, and she is compelled
to follow the ordinary dispute resolution processes as contemplated by the
LRA. Furthermore, and even if unlawfulness is the basis for review, the
applicant has failed to make out a case justifying urgent intervention in this
matter, in medias res . Therefore, i nsofar as the applicant relies on section
158(1)(h), her application must therefore also be dismissed.
Conclusion
[122] For all the reasons as set out above, I conclude that overall considered, this
Court does not have the jurisdiction to consider the applicant’s application and
grant her the relief sought . The applicant’s reliance on section 157(1) and
section 158(1)(iii) and (iv), as sources conferring jurisdiction, is misplaced, and
this Court does not have jurisdiction to entertain the applicant’s pleaded case
in this matter, based on these sections. Where it comes to the applicant’s
reliance on section 158(1)(h), the applicant must also fail, even though this
Court would have jurisdiction to decide it, for two reasons. First this Court has
no jurisdiction to consider this particular review application, because the
applicant, considering the particular nature of the dispute in this case, is
compelled to follow the prescribed dispute resolution processes under the LRA
and not approach this Court directly under section 158(1)(h). Secondly, the
applicant has in any event not demonstrated proper exceptional circumstances
to justify intervention in this case by way of a review application, in medias res.
But even if I am wrong in all the aforesaid respects, the interdictory relief
sought by the applicant is simply not competent, because the conduct sought
to be interdicted by her has already happened / concluded, and interdictory
to be interdicted by her has already happened / concluded, and interdictory
relief is only competent for future conduct. I therefore conclude that the
applicant’s application falls to be dismissed.
Costs
[123] This then only leaves the issue of costs. I am f amiliar with the principles
applicable to costs in employment disputes as articulated by the Court in
56
Zungu v Premier of the Province of KwaZulu- Natal and Others 100. However,
Zungu is not a blanket immunity against costs orders. The fact is that this
Court always retains a discretion, as contemplated by section 162(1) of the
LRA, to make a costs award against a party. In Union for Police Security and
Corrections Organisation v SA Custodial Management (Pty) Ltd and Others 101
the Court said:
‘In the labour context, the judicial exercise of a court’s discretion to award
costs requires, at the very least, that the court must do two things. First, it
must give reasons for doing so and must account for its departure from the
ordinary rule that costs should not be ordered. Second, it must apply its mind
to the dictates of the fairness standard in s 162, and the constitutional and
statutory imperatives that underpin it …
’
[124] The second respondent has complained that the application in casu is part of
a stratagem to either prevent or delay the conclusion of the disciplinary
proceedings, and the application is nothing less than an abuse of process .
What I have read in this matter concerning the conduct of the applicant, I tend
to agree. This disciplinary hearing has been ongoing for just short of a year
and a half, mostly due to the conduct of the applicant and her legal
representatives. As I have discussed above, this was never what was
envisaged by the LRA. A disciplinary enquiry of such duration is an untenable
proposition, and should be discouraged in str ong terms. All the while, the
applicant, who is a senior public official, is being paid out the taxpayers’
already bare purse. The applicant being the Municipal Manager, I would say it
is fairly obvious that this continued strife impacts on service delivery. And now
the Court is dragged into this case towards the end of it, to secure yet another
delay, which, considering it is based on a pending review, could be years. This
is a completely untenable state of affairs.
is a completely untenable state of affairs.
[125] I can see no feasible reason why the applicant could not simply have
participated in the disciplinary proceedings until conclusion, and then
challenge her dismissal, if she is dismissed as she stated she believed would
happen, in the ordinary course to the bargaining council pursuant to the
dispute resolution procedures specifically prescribed by the LRA. What the
100 (2018) 39 ILJ 523 (CC) at para 24.
101 (2021) 42 ILJ 2371 (CC) at para 35.
57
applicant is doing in this case is unacceptable, and a violation of the LRA. It is
deserving of some serious censure. That is why the second respondent
sought not only costs, but punitive costs.
[126] I n my view, there is force in the contentions raised by the respondents. The
applicant brought an application to this Court when she should never have
done so in the first place. It must have been clear, based on all the earlier
authorities already mentioned, that obtaining relief from this Court on the basis
as put forward by the applicant was a dubious prospect indeed. I am also
convinced that the reliance by the applicant on a criminal justice model was
contrived, and nothing more than legal shenanigans and clever lawyering to
conjure up a basis for relief in this Court, when it was always clear that the
dispute resolution process under the L RA was the only way to go. The case
was, for all intents and purposes, always hopeless. In Children’s Resource
Centre Trust and Others v Pioneer Food (Pty) Ltd and Others 102 the Court had
the following to say:
‘Whether a case is hopeless has two aspects. It is hopeless if it is advanced
on a basis that is legally untenable. It is also hopeless if it is advanced in the
absence of any credible evidence to support it. These are categories that have
long been recognised in our law and practice. A case is legally hopeless if it
could be the subject of a successful exception. It is factually hopeless if the
evidence available and potentially available after discovery and other steps
directed at procuring evidence will not sustain the cause of action on which the
claim is based. … ’
[127] But it is what the applicant did after being served with the first respondent’s
ruling that is particularly concerning. It surely must have been clear once this
ruling was received that the interdictory relief sought by the applicant, on the
factual foundation it was premised, was no longer competent nor appropriate.
factual foundation it was premised, was no longer competent nor appropriate.
At that point, the applicant should have carefully considered her options, and
should have explored how the application could perhaps be abandoned or at
the very least, substantially amended. Then there i s also the authority point
which was persisted with when, considering what was filed by the respondents
in this respect, should have been abandoned. But the applicant doggedly
102 2013 (2) SA 213 (SCA) at para 35. See also Mashishi v Mdladla NO and Others (2018) 39 ILJ 1607
(LC) at para 14.
58
pressed on with these issues . I take guidance from the following dictum in
Sepheka v Du Pont Pioneer (Pty) Ltd 103, in a case where the Court was
actually dealing with costs in the context of a punitive costs order:
‘Punitive costs will also be justified where a litigant adopts what is called an
‘unconscionable stance’, or conducts him/herself in an unacceptable manner
in the course of the proceedings. Punitive costs also serve as a mark of a
court’s displeasure. …’
[128] The applicant has clearly earned a costs award against her. This is evident , in
short, when the following dictum in Leshabane supra104 is applied.
‘In bringing the application, the applicant took up the valuable time and already
stretched resources of this court. In doing so, the applicant compelled the
respondents, which is a public institution funded out of the taxpayers virtually
empty pocket, to defend the case using these already limited and stretched
public funds, which is not acceptable. What in reality happened in this instance
as abuse of process. This court has consistently said that this kind of
unfounded litigation is deserving of costs orders. The applicant must be told, in
no uncertain terms, hopefully also serving as an example to others, that
exercising his right of access to the courts must be done in a responsible
manner and always in compliance with the rules and processes of the court
.’
[129] But the next question is whether punitive costs are justified and appropriate. In
Public Protector v South African Reserve Bank105 the Court succinctly said:
‘More than 100 years ago, Innes CJ stated the principle that costs on an
attorney and client scale are awarded when a court wishes to mark its
disapproval of the conduct of a litigant. Since then this principle has been
endorsed and applied in a long line of cases and remains applicable. … ’
[130] As to when punitive costs may be considered to be appropriate, the Court in
[130] As to when punitive costs may be considered to be appropriate, the Court in
Stainbank v SA Apartheid Museum at Freedom Park and Another 106 held as
follows:
103 (2019) 40 ILJ 613 (LC) at para 42. See also Mukanda v South African Legal Practice Council 2021
(4) SA 292 (GP) at para 13.
104 (2024) 45 ILJ 833 (LC) at para 58. See also Magoda (supra) at para 20.
105 2019 (6) SA 253 (CC) at para 223.
106 2011 JDR 0706 (CC) at para 53.
59
‘Punitive costs have been granted when a practitioner instituted proceedings
in a haphazard manner; wilfully ignored Court procedure or rules; presented a
case in a misleading manner; and forwarded an application that was plainly
misconceived and frivolous. … ’
And Geerdts v Multichoice Africa (Pty) Ltd 107 it was said:
‘In awarding costs on the attorney and client scale, the court has a discretion,
to be exercised judicially upon a consideration of all the facts. As between
the parties, it is a matter of fairness to both sides. Vexatious, unscrupulous,
dilatory or mendacious conduct on the part of an unsuccessful litigant may
render it unfair for his opponent to be out of pocket in the matter of his own
attorney and client costs.’
[131] It has been held that where is case is persisted with when it must have been
apparent, by way of the exercise of due care and diligence, that the case
should never be persisted with, it could serve as a basis for punitive costs. 108
For example, in the case of a litigant opposing an appeal where it was
apparent that it should not have done so, the Court Madzunye and Another v
Road Accident Fund109 had the following to say:
‘Regarding the costs of the appeal it was submitted on the appellants' behalf
that the Court a quo's judgment was so clearly wrong that the respondent
should never have opposed the appeal. It was accordingly argued that, as the
respondent had acted unreasonably and irresponsibly by opposing the appeal,
particularly considering its special status, it should bear the costs of the
appeal on the scale as between attorney and own client, alternatively on the
attorney and client scale. Mindful of this Court's general disinclination to use
hindsight in assessing a party's conduct in considering punitive costs awards
(AA Alloy Foundry (Pty) Ltd v Titaco Projects (Pty) Ltd 2000 (1) SA 639
(SCA) in para [20]), I am, however, inclined to agree with the appellants'
sentiment
.’
107 [1998] ZALAC 10 (29 June 1998) at para 48.
sentiment
.’
107 [1998] ZALAC 10 (29 June 1998) at para 48.
108 See NCP Chlorchem (Pty) Ltd v National Energy Regulator and Others 2017 (6) SA 158 (GJ) at
para 55.
109 2007 (1) SA 165 (SCA) at para 16.
60
[132] Also, and in the case of frivolous litigation embarked upon by a litigant when it
is clear that the Court would have no jurisdiction to entertain the same, such
conduct could be equally deserving of punitive costs orders.
110
[133] Having considered all the above, I believe that this is a case where a where a
punitive costs order against the applicant is unfortunately justified and
warranted. The applicant was, as said, legally assisted throughout, even in the
internal disciplinary proceedings. It is clear that the current proceedings are a
stratagem to scupper the disciplinary proceedings rather than a genuine and
justified plea for intervention. The past conduct of the applicant speaks clearly
to this intention, as well as the fact that she persisted with seeking the
interdictory relief as pleaded, when that clearly was no longer competent.
What makes it worse is that the respondents are dragged along and have to
rely on the taxpayers purse to defend the case. Persisting with the authority
point also did not help. And finally, the gratuitous and often unfounded
statements made about the first respondent in the founding affidavit is simply
unacceptable. In the end, the applicant should have known better, and then
worse, should have rather abandoned a course of action that was patently
obviously doomed to fail, rather than persisting with it. In BMW supra
111 the
Court held, specifically in the context of the applicant in that case pursuing an
urgent application it never should have:
‘NUMSA was legally assisted throughout these proceedings, and is itself an
experienced and well -resourced trade union, fully familiar with litigation in this
Court concerning LRA disputes. NUMSA should thus have known, from the
outset, that its application was doomed to fail. I also consider that NUMSA in
fact deliberately designed the current application to try and effectively scupper
the disciplinary proceedings, with the view to compelling BMW to negotiate
the disciplinary proceedings, with the view to compelling BMW to negotiate
some alternative resolution to the matters with it rather than dismissing its
members. … This kind of behaviour of bringing applications to achieve ulterior
purposes is not conducive to the fundamental requirement of the expeditious
110 See Du Plessis (supra) at para 48; Democratic Nursing Organisation of SA on behalf of
Ramaroane v Member of the Executive Council for Health, Gauteng Province and Others (2019)
40 ILJ 2533 (LC) at para 20; Sihlali and Others v City of Tshwane Metropolitan Municipality and
Another (2017) 38 ILJ 1692 (LC) at para 29.
111 (2025) 46 ILJ 2712 (LC) at para 67. See also Ngobeni v Passenger Rail Agency of SA Corporate
Real Estate Solutions and Others (2016) 37 ILJ 1704 (LC) at para 14.
61
resolution of employment disputes, would be an abuse of the scarce
resources of this Court, and should be frowned upon.’
[134] The continuous failure by litigants to heed the numerous warnings by this
Court where it comes to these kinds of applications, which is effectively what
the applicant has done in this instance, must be visited with adverse
consequences.112 It constitutes an abuse of process to pursue a case which is
for all intents and purposes hopeless. I fully align myself with the following
dictum in Mokoena v Merafong Municipality and Others113:
‘In casu, the applicant brought a meritless application to this court and fairness
dictates that the respondents cannot be expected to endure enormous costs
defending litigation where more thought and consideration had to be put in
before approaching this court on an urgent basis. … ’
[135] I will conclude on the issue of costs by way of reference to two authorities
where this Court, in circumstances comparable to the case in casu, granted a
punitive costs order. In Minya supra114, the Court decided:
‘… This application ought never have seen its day in court in the light of its ill -
conceived nature, more particularly in view of the procedural complaints raised
by the applicant. The applicant’s attorneys of record and counsel ought to
have foreseen the futility of bringing this application. To reiterate, this court
ought not to be seen as a first port of call for all workplace related complaints
when these can be sufficiently dealt with internally. In the event that an
employee is still aggrieved after the internal process, such issues can properly
be addressed through the dispute-resolution framework of the LRA. This is
something of which the applicant, being legally represented, ought to have
been made aware. In the circumstances, I therefore agree that the
requirements of law and fairness dictate that a punitive costs order should
follow. … ’
Next, in Choko-Choko supra it was said:115
follow. … ’
Next, in Choko-Choko supra it was said:115
112 See, for example, Magoda v Director -General of Rural Development and Land Reform & another
(2017) 38 ILJ 2795 (LC) at para 20; Botes v City of Joburg Property Company SOC Ltd and Another
(2021) 42 ILJ 530 (LC) at para 50; Shikwane and Another v Bojanala Platinum District Municipality and
Others (J 774/20) [2020] ZALCJHB 191 (29 August 2020) at para 64; BMW (supra) at para 68.
113 (2020) 41 ILJ 234 (LC) at para 36.
114 (2021) 42 ILJ 141 (LC) at para 29.
115 Id at para 81. See also Public Servants Association (supra) at para 13.
62
‘In casu the application was also wholly misguided and meritless, and the
applicant dismally failed to satisfy the requirements for the interdict he sought.
The respondent had to defend a meritless urgent application, and fairness
dictates that it cannot be expected to endure enormous costs defending
litigation that ought not to have been brought in the first place. NIA should
have put some earnest thought and consideration into the merits of this case
and the warning issued in Ngobeni before filing this urg ent application and
advising Mr Choko-Choko that it was a wise move to make.’
[136] For all the aforesaid reasons, I thus believe it is appropriate to exercise my
discretion with regard to costs by making a punitive costs order against the
applicant, on the scale as between attorney and client. The costs order is only
made in respect of the opposition by the second respondent, as the first
respondent, even though opposing the matter, has no real interest in the
outcome of the matter , and is not involved in the employment relationship
between the parties.
Order
[137] It is for all the reasons set out in this judgment that I made the order as set out
in paragraph 5 of this judgment, supra.
_____________________
S Snyman
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Advocate M D Maluleke
Instructed by: M M Baloyi Attorneys
For the First Respondent: Advocate L A Roux
63
Instructed by: Peyper Attorneys
For the Second Respondent: Advocate V Qithi
Instructed by: Phambane Mokone Inc Attorneys
Date of hearing: 23 January 2026