THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: 2026-014787
In the matter between:
NATIONAL UNION OF METALWORKERS OF
SOUTH AFRICA First applicant
DITAU KLAAS MAMUSHI AND AYANDA GXUMISA Second Applicants
and
DENEL SOC LTD Respondent
Heard: 13 February 2026
Delivered: 16 February 2026
Summary: An application to declare the appointment of an external chairperson and
external initiator for a disciplinary hearing in breach of contract , as the Disciplinary
Code forms part of the terms of service. The Disciplinary Code has no provisions
prohibiting the appointment of an external chairperson and external initiator.
JUDGMENT
GANDIDZE, J
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Not revised
____________ 16 February 2026
Signature Date
2
Introduction
[1] The matter first came before the Court on 11 February 2026, but no pleadings
were uploaded to Caselines. Although the Court expressed concern about the
applicants’ attempts to upload documents to Caselines at the last minute when
the application was filed on 29 January 2025, the matter was not struck from
the roll because, according to the parties, the help desk confirmed that
Caselines was offline. The matter was rescheduled to 13 February 2026.
Nature of the application
[2] The applicant employees, Mr Mamushi and Mr Ayanda Gxumisa, are
represented by their trade union, National Union of Metalworkers of South
Africa (NUMSA ), collectively referred to as the applicants, in an urgent
application for a rule nisi, where the following orders are sought:
2.1 Declaring that the employer’s disciplinary code and procedure, which is
incorporated into the applicant’s employment contract, does not provide
for or authorise the respondent to appoint an external initiator or an
external chairperson for the applicant employee’s disciplinary hearing;
2.2 That the employer’s conduct in appointing an external initiator and
chairperson constitutes a breach of the applicant employees’ contracts
of employment;
2.3 Interdicting the employer from proceeding with the disciplinary hearing
of the applicant employee with an external initiator and an external
chairperson, in breach of the contract of employment.
[3] Although a rule nisi was sought, when the matter was heard, all the pleadings
had been filed; therefore, the case will be considered on the basis that final
relief was sought.
[4] The requirements for final relief are (i) a clear right, (ii) harm committed or
reasonably apprehended, (iii) the absence of a suitable alternative remedy.
3
[5] As the application was filed on an urgent basis, the applicants must
demonstrate that the matter is urgent and that they cannot secure substantial
redress through normal channels in due course. Whether these criteria are
satisfied can only be assessed by considering the context in which the dispute
arose, an issue I now turn to.
Background facts
[6] The applicant employees are employed by Denel SOC Ltd (the employer), as
Category Specialist s in the Procurement Departmen t. They have been
suspended since March 2025, and a disciplinary hearing against them is
pending. In the Notice to attend the disciplinary hearing issued on 11 November
2025, the applicant s were informed that MNS Attorneys would initiate the
disciplinary hearing, which MBA Inc Attorneys would chair . The hearing was
scheduled for 13 November 2025. It was agreed that the hearing would be
rescheduled to 26 November 2025, on which date preliminary points would be
dealt with.
[7] On 24 November 2025, NUMSA sent a letter requesting information about the
appointment of external parties to conduct the disciplinary hearing. Their
argument was that the Disciplinary Code, incorporated into employment
contracts, did not permit an external chairperson or initiator.
[8] On 26 November 2025, it was agreed that NUMSA would submit written
representations regarding the recusal of the external chairperson and external
initiator by 12 December 2025, and that a ruling would be issued by 12 January
2026.
[9] The ruling was delayed. On 20 January 2026, an order was issued dismissing
the recusal application, with the reasons to be provided on 23 January 2026.
[10] The current application was launched on 26 January 2026, following the
employer's refusal to provide an undertaking to appoint an internal chairperson
and initiator.
4
[11] The reasons in the recusal application were provided on or around 28 January
2026. The date for the continuation of the hearing has not yet been scheduled.
Jurisdiction
[12] Before discussing the requirements that I have specified the applicants must
meet to succeed in obtaining the relief they seek, there is an additional
requirement. The court must have jurisdiction to hear the dispute. This matter
concerns an alleged breach of contract, and therefore, this court has jurisdiction
to entertain the matter by virtue of the provisions of section 77( 1) and section
77(3) of the Basic Conditions of Employment Act.1
[13] I disagree that an alleged breach of contract claim is a right under the Labour
Relations Act2 (LRA), as submitted by the respondent. To the extent that there
was some confusion about whether this Court has jurisdiction over contractual
claims, the court in Passenger Rail Agency of SA and Others v Ngoye and
Others
3 stated the following:
‘[19] …if non- compliance with the LRA is not relied on, an employee can
pursue a contractual claim if a contractual remedy is sought.’
[14] This is the situation in this case, as the applicants have not relied on any
provision of the LRA but have alleged a breach of contract, and they are seeking
specific performance. They are entitled to do so, and this Court has jurisdiction
over such claims. It is not for the respondent to tell the applicants to allege an
unfair labour practice and to assert that the relief granted for such a claim will
be more than satisfactory, as the respondent submit . Applicants choose a
cause of action to pursue. This Court has jurisdiction to determine the
applicants’ chosen cause of action, and section 157(5) of the LRA, and the
Booysen v the Minister of Safety and Security and others
4 decision, which found
that this Court can inter vene in incomplete disciplinary proceedings in
1 Act 75 of 1997.
2 Act 66 of 1995, as amended.
3 2025 (2) SA 556 (LAC) at para 19.
4 [2011] 1 BLLR 83 (LAC).
5
exceptional circumstances , does not change the fact that this Court has
jurisdiction to determine the alleged contractual breach.
[15] Further clarity was provided in Cibane and Another v Premier, Province of
KwaZulu-Natal and Another5, when the Court stated the following:
‘[29] ….When pressed on the basis on which the Labour Court had
jurisdiction to entertain the declaratory orders sought, counsel for the
appellants appealed to s 77(3) of the Basic Conditions of Employment
Act. (BCEA). That section confers concurrent jurisdiction on the Labour
Court (with the civil courts) to hear and determine any matter
concerning a contract of employment. The difficulty with this submission
is that the pleadings make no reference to the appellants' contracts of
employment, even less do they assert a contractual term (or any breach
of any contractual term) that might form the basis of the right that they
assert. At best for the appellants, they assert that the SMS Handbook
contains ‘indications' that, as a matter of fairness, disciplinary action
ought to be taken promptly once the employer is aware of the alleged
misconduct. Contrary to what counsel submits, the pleadings disclose
no claim that is founded on any term of a contract of employment, nor
do the appellants seek to enforce any contractual right.’
[16] The applicant employees have alleged a breach of contract, and it follows that
this Court has jurisdiction to hear the case. Whether the claim has merit is a
different matter entirely, an issue addressed later in the judgment.
Urgency
[17] The sole basis on which urgency was contested is that it was self -created. It
was argued that the applicants knew, as early as 11 November 2025, when the
Notices to Attend the disciplinary hearing were issued, that an external
chairperson and an external initiator had been appointed, yet they only filed the
application on 26 January 2026.
5 (2025) 46 ILJ 2587 (LAC).
6
[18] Based on the timeline I have outlined above, I disagree that the applicants
delayed in bringing their case to Court. In fact, the opposite is true. They raised
the issue of the external chairperson as early as November 2025. The outcome
that the chairperson and the initiator would not recuse themselves was known
by 23 January 2026, and on 26 January 2026, they filed the current application.
[19] The matter is urgent also because, if the applicants are correct that having an
external chairperson and external initiator breaches their employment contract,
then this Court must consider the application before the hearing begins. They
have a right to insist that the employer comply with the terms of the employment
contract. The alleged breach must be addressed, as redress in due course will
not be substantial. This would be the exceptional circumstances warranting the
Court’s interference in the discipli nary proceedings , in accordance with
Booysen v Minister of Safety and Security and Others
6.
Clear right
[20] The question is whether appointing an external chairperson and an external
initiator breaches the employment contracts of the applicant employees.
[21] The answer depends on whether the Disciplinary Code forms part of the
conditions of service. The Letter of Appointment includes this provision.
’10. DISCIPLINARY CODE AND GRIEVANCE PROCEDURES
The Disciplinary Code and Grievance Procedure forms part of these
Conditions of Service (COSAID- 00220-603).’
[22] Then, clause 13 states as follows:
‘13. ACCEPTANCE
Please note that this appointment is subject to the terms set out in the
MEIBC conditions and/or the Denel Industrial properties conditions of
employment of which the disciplinary code and grievance procedure
forms part.’ (Own underlining)
6 (2011) 32 ILJ 112 (LAC).
7
[23] Mr Mzinyathi submitted that the Disciplinary Code was not incorporated into the
applicant employee’s contracts of employment, as the specific clauses of the
Disciplinary Code that were incorporated ought to have been specified. For this
position, he relied on an unreported decision of this Court in Siseko Siyotula v
Mogale City Local Municipality7. There, the court stated the following:
‘[25] … Incorporation must be specific, with specific reference in the
employment contract to the provision sought to be incorporated. An
example of such a case can be found where the employment contract
of an employee in the public service specifically provided and recorded
that the SMS handbook (being the regulatory provision dealing with
discipline) was incorporated into the employment contract and regarded
as part thereof. In short, actual contractual incorporation cannot be
established by mere referenc e in the employment contract to such
regulatory provisions as being applicable to the discipline of an
employee. More is needed.
[24] I disagree with the submission. The provisions I mentioned earlier in the Letters
of Appointment clearly indicate that this Disciplinary Code is part of the terms
and conditions of employment. This means the entire Disciplinary Code is
included.
[25] What then is the provision in the Disciplinary Code, which is part of the contract
of employment, that prevents an external chairperson from chairing their
disciplinary hearing and an external person from initiating the hearing?
[26] The founding affidavit states the following:
‘The policy neither explicitly and/ or implicitly permit the appointment of an
external initiator, or an external chairperson. Nor does it give the respondent
the discretion to do so unilaterally in respect of internal disciplinary inquiries.’
[27] That submission is reiterated in the applicants’ heads of argument. Given this,
the inquiry into whether the applicants have a clear right to the relief they seek
the inquiry into whether the applicants have a clear right to the relief they seek
must conclude. If, according to his own version, the Disciplinary Code is silent
7 Unreported decision. Case number: J224/23. Delivered on 22 March 2024.
8
on the matter, there can be no question of a breach of the employment contract
in appointing an external chairperson to oversee the disciplinary hearing and
an external person to initiate proceedings. Consequently, there can be no
discussion of a variation in the terms and conditions of employment, as argued
by the applicants.
[28] Mr Shezi, for the applicants, relied on the decision in Denel (Pty) Ltd v Vorster8
(Vorster), which he submitted established that the employer could not act
beyond that which the Disciplinary Code was silent on. I have been unable to
locate the relevant part of the judgment relied upon, but found these
paragraphs:
‘[5] The procedures that had to be followed when disciplinary action was
taken against an employee, and the identities of the persons who were
authorised to take such disciplinary action, were circumscribed in the
appellant’s disciplinary code. The terms of the disciplinary code were
expressly incorporated in the conditions of employment of each
employee with the result that they assumed contractual effect.
…
[15] … It might be that the construction advanced by the appellant would
create a disciplinary regime that was equally acceptable (whether that
is so is by no means certain) but that is not the test: through its
disciplinary code, as incorporated in the conditions of employment, the
appellant undertook to its employees that it would follow a specific route
before it terminated their employment and it was not open to the
appellant unilaterally to substitute something else.’
[29] Therefore, in Vorster, the Court held that the employer had to be bound by what
it had agreed to in the Disciplinary Code, and not by what the Disciplinary Code
was silent on.
[30] The applicants’ case worsens. Clause 1 of the Disciplinary Policy states that
the initiator is the employer's representative who alleges misconduct and
8 (2004) 25 ILJ 659 (SCA).
9
presents the case against the employee. The clause does not specify that the
initiator cannot be an external person. Similarly, the argument that the initiator
must be an employee of Denel is not supported by this provision or any other
part of the Disciplinary Policy, which was brought to the Court’s attention.
[31] The fact that the Disciplinary Code states that an employee may only be
represented by a fellow employee or a trade union does not mean that the
employer cannot be represented by an external person. If anything, this
provision makes it clear that an employ ee may only be represented by the
specified persons, and nothing is said about who may represent an employer.
The interpretation urged by Mr Shezi must be rejected.
[32] If the complaint is that an employer cannot have an external initiator who is a
legal practitioner, while the applicant employees can only be represented by a
fellow employee or a trade union representative, who are not legal practitioners,
then the recourse is to apply to the chairperson to be allowed legal
representation as well.
[33] Regarding whom should be the chairperson of the hearing, Mr Shezi argued
that the policy is ambiguous and unclear. Accepting this view, it follows that
appointing an external chairperson cannot be regarded as a breach of the
employment contract. The provision that forbids the appointment of an external
chairperson cannot be identified.
[34] On behalf of the employer, the submission was made that clause 7.2.5 of the
policy expressly provides for the appointment of an external chairperson. The
provision states that the Chairperson appointed by the employer shall keep a
record of the proceedings but says nothing about an external chairperson. The
provision is silent on whether the chairperson must be internal or external, a
concession made in the respondent’s heads of argument.
[35] Realising that the breach of contract argument was unlikely to succeed, the
[35] Realising that the breach of contract argument was unlikely to succeed, the
submission was made that it has been the practice for internal staff to be
appointed to chair and initiate disciplinary hearings. This practice was denied
10
in the answering affidavit, and that version will be accepted in accordance with
the Plascon-Evans rule, as it is neither far-fetched nor fanciful.
[36] The subsequent submission is that the practice aligns with the provisions of the
disciplinary code. This is not correct, as I have demonstrated above.
[37] Even if the applicants are correct that the practice has been to appoint internal
chairpersons and initiators, the claim before the Court concerns an alleged
breach of contract. Unless the applicants point to the contractual provision that
has been breached, the claim must fail.
[38] Whether there is justification for appointing an external chairperson and an
external initiator, or whether the employer is obliged to explain to NUMSA why
it has done so, are matters between the parties that this Court should not
concern itself with in an alleged breach of contract claim. The only issue for
determination is whether the appointment of an external chairperson and
initiator breaches the employees' employment contract.
[39] The above finding on a clear right means that the issue of irreparable harm
does not even arise.
[40] The Court has accepted jurisdiction to hear a claim for alleged breach of an
employment contract. Therefore, the employer’s submission that the applicants
could have referred an alleged breach of contract claim to the Commission for
Conciliation, Mediation and Arbitration is incorrect. In reaching this conclusion,
the Court was mindful of the submission made in the applicants’ heads of
argument that ‘It is respectfully submitted that the respondent’s conduct of
employing external parties to participate on its behalf at the second applicant’s
disciplinary enquiry may very well be procedurally unfair’, but that the applicants
were unconcerned about this, rather focusing on th e lawfulness of the
employer’s decision.
[41] As I conclude, I observe that the recusal ruling determined that both the
[41] As I conclude, I observe that the recusal ruling determined that both the
chairperson and the initiator would not recuse themselves. That being the case,
and without providing legal advice to the applicants, which this Court does not
do, the applicants have recourse if they are aggrieved by the recusal ruling.
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[42] The challenge to Mr Victor Maduka’s authority to depose to the founding
affidavit does not require any further attention other than to point out that he is
employed as the Group Manager: Employee Relations and Transformation.
Clearly, a person holding such a position would have the authority to depose to
an answering affidavit in a matter like this.
Costs
[43] The applicants submitted that they were entitled to approach the Court for the
relief they sought, and therefore even if the application fails, they should not be
burdened with a costs order. The respondent submitted that the applicants must
be ordered to pay their costs as they had been unsuccessful with the claim.
Although the applicants’ claim will be dismissed, the respondent made several
submissions that the court rejected. An order that each party pays its costs
would be in accordance with the requirements of law and fairness.
[44] In the result, the following order is made:
Order:
1. The application is dismissed.
2. Each party pays its own costs.
_____________________
T. Gandidze
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr V Shezi (NUMSA Regional Legal Officer)
For the Respondent: Mr Mzinyathi of Mncedisi Ndlovu & Sedumedi Attorneys