THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JS 83 / 2024
In the matter between:
SOUTH AFRICAN MUNICIPAL
WORKERS’ UNION First Plaintiff
ZESAZI MANGALISO Second Plaintiff
PATRICK JACA Third Plaintiff
FAITH LENGWATI Fourth Plaintiff
AMON KGANYAGO Fifth Plaintiff
TSHEPO CHOCHO Sixth Plaintiff
ERIC SMITH Seventh Plaintiff
ELLIOT NEBE Eighth Plaintiff
MICHAEL SMITH Nineth Plaintiff
and
CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY Defendant
Heard: 16 February 2026
Delivered: 24 February 2026
(1) Reportable No
(2) Of interest to other Judges: No
(3) Revised
TDM 24/02/2026
Signature Date
2
This judgment was handed down electronically by consent of the parties’
representatives by circulation to them via email. The date for hand -down is
deemed to be 24 February 2026.
JUDGMENT
PRINSLOO, J
The pleadings and pre-trial minute
[1] Before I deal with the merits of the case and the evidence adduced, it is
necessary to say something about the pleadings filed. It is trite law that th e
court and the parties are bound by the pleadings and the pre- trial agreement
1
and the issues they agreed to in the pre- trial minute 2. This Court cannot and
should not go beyond the issues it is required to determine, with reference
only to the pleadings and the pre-trial minute.
[2] Jacob and Goldrein3 aptly capture the position as follows:
‘As the parties are adversaries, it is left to each of them to formulate his case
in his own way, subject to the basic rules of pleadings… For the sake of
certainty and finality, each party is bound by his own pleading and cannot be
allowed to raise a different or fresh case without due amendment properly
made. Each party thus knows the case he has to meet and cannot be taken
by surprise at the trial.
The Court itself is as much bound by the pleadings of the parties as they are
themselves. It is not part of the duty or function of the Court to enter upon any
enquiry into the case before it other than to adjudicate upon the specific
matters in dispute which the parties themselves have raised by their
1 Chemical, Energy, Paper, Printing, Wood and Allied Workers Union and others v CTP Ltd and
another [2013] 4 BLLR 378 (LC).
2 Professional Transport and Allied Workers Union on behalf of Khoza and others v New Kleinfontein
Gold Mine (Pty) Ltd (2016) 37 ILJ 1728 (LC); National Union of Metalworkers of SA and others v
Driveline Technologies (Pty) Ltd and another (2000) 21 ILJ 142 (LAC).
3 Jacob, Goldrein, ‘Pleading: Principles and Practice’, (Sweet & Maxwell) at pp 8 - 9.
3
pleadings. Indeed, the Court would be acting contrary to its own character
and nature if it were to pronounce upon any claim or defence not made by the
parties…
The Court does not provide its own terms of reference or conduct its own
enquiry into the merits of the case but accepts and acts upon the terms of
reference which the parties have chosen and specified in their pleadings. In
the adversary system of litigation, therefore, it is the parties themselves who
set the agenda for the trial by their pleadings and neither party can complain if
the agenda is strictly adhered to.’
[3] In Candy and others v Coca Cola Fortune (Pty) Ltd,4 the Court considered the
purpose of a statement of claim and held that:
‘In its simplest terms, the statement of case must at least inform the
Respondent party what the pertinent facts are on which the Applicant will rely
in the case, and further, what the cause of action is that the Applicant will
pursue as founded on these facts. That must be done in sufficient particularity
so as to enable the Respondent to provide a proper answer to these facts and
the related cause of action. The statement of claim and the answering
statement thereto are not just for the benefit of the parties. They also serve
the court, in that the issues in dispute are properly determined and other
possible alternative causes of action are eliminated from having to be
considered by the court. A proper statement of claim and answering
statement are imperative to the fundamental requirement of expeditious
resolution of employment disputes in terms of the LRA. As the court said in
Harmse v City of Cape Town (Harmse):
“[6] The statement of claim serves a dual purpose. The one purpose is to
bring a Respondent before the court to respond to the claims made of
and against it and the second purpose of a statement of claim is to
inform the Respondent of the material facts and the legal issues
arising from those facts upon which Applicant will rely to succeed in its
claims.
arising from those facts upon which Applicant will rely to succeed in its
claims.
[7] The material facts and the legal issues must be sufficiently detailed to
enable the Respondent to respond, that is, that the Respondent must
4 (2015) 36 ILJ 677 (LC) at para 38.
4
be informed of the nature or essence of the dispute with sufficient
factual and legal particularity so that it knows what it is that the
Applicant is relying upon to succeed in its claim.”’
[4] In SA Breweries (Pty) Ltd v Louw 5 (Louw), the Labour Appeal Court (LAC)
was required to, inter alia , determine a complaint by the appellant that the
court a quo decided the case on factual issues not properly put before it on
the pleadings, nor as refined in the pre- trial conference minute. The LAC held
that:6
‘[4] To state the obvious, litigation is complex. Among the duties of legal
practitioners is to conduct cases in a manner that is coherent, free
from ambiguity and free from prolixity. True enough, the holy grail of
translating what is complex into simplicity is not always attainable, but
the ground rules are irrefrangible: say what you mean, mean what you
say and never hide a part of the case by a resort to linguistic
obscurities. The norm of a fair trial means each side being given
unambiguous warning of the case they are to meet. Moreover, these
requirements are not mere civilities as between adversaries; the court
too, is dependent upon the fruits of clarity and certainty to know what
question is to be decided and to be presented only with admissible
evidence that is relevant to that question. Making up one’s case as
you go along is an anathema to orderly litigation and cannot be
tolerated by a court. Counsel’s duty of diligence demands an
approach to litigation which best assists a court to decide questions
and no compromise is appropriate.
[5] The critical complaint in this matter is that the court a quo decided the
case on factual issues not properly put before it on the pleadings, nor
as refined in the pretrial conference minute. The complaint had been
raised during the hearing and in argument at the conclusion of the
trial, considered by the court a quo and dismissed. In our view, the
complaint is justified and the court a quo was in error.’
complaint is justified and the court a quo was in error.’
5 (2018) 39 ILJ 189 (LAC).
6 Ibid at paras 4 – 5.
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[5] The LAC further held that:7
‘The relationship between the pleadings and the pretrial conference minute
has been the subject of several judicial pronouncements. In short, a minute of
this sort is an agreement from which one cannot unilaterally resile. Also, a
pleading binds the pleader, subject only to the allowing of an amendment,
either by agreement with the adversary, or with the leave of the court. The
case pleaded cannot be changed or expanded by the terms of a minute; if it
does, it is necessary that that change go hand in hand with a necessary
amendment. The chief objective of the pretrial conference is to agree on
limiting the issues that go to trial. Properly applied, a typical minute – cum –
agreement will shrink the scope of the issues to be advanced by the litigants.
This means, axiomatically, that a litigant cannot fall back on the broader terms
of the pleadings to evade the narrowing effect of the terms of a minute. A
minute, quite properly, may contradict the pleadings, by, for example, the
giving of an admission which replaces an earlier denial. When, such as in the
typical retrenchment case, there are a potential plethora of facts, issues and
sub-issues, by the time the pretrial conference is convened, counsel for the
respective litigants have to make choices about the ground upon which they
want to contest the case. There is no room for any sleight of hand, or clever
nuanced or contorted interpretations of the terms of the minute or of the
pleadings to sneak back in what has been excluded by the terms of a minute.
The trimmed down issues alone may be legitimately advanced. Necessarily,
therefore, the strategic choices made in a pretrial conference need to be
carefully thought through, seriously made, and scrupulously adhered to. It is
not open to a court to undo the laces of the straitjacket into which the litigants
have confined themselves.’
[6] In summary, a statement of claim must inform the defendant of the material
[6] In summary, a statement of claim must inform the defendant of the material
facts and the legal issues arising from those facts upon which the plaintiff will
rely to succeed in its claims. Those must be sufficiently detailed to enable the
defendant to respond and to be informed of the nature or essence of the
dispute. Each side must be given an unambiguous warning of the case they
are to meet.
7 Id fn 5 at para 8.
6
[7] The issues raised by the Plaintiff must be considered against the backdrop
that pleadings give the architecture and that the evidence at the trial provides
the detail and texture. However, it is not for this Court to decide the case on
factual issues not properly pleaded or refined in the pretrial conference
minute.
The pleaded case
[8] The Plaintiffs’ pleaded case is that Ms Mokasi, the Defendant ’s director of
operations, informed them on 26 March 2020 that due to the outbreak of
Covid 19 and the declaration of the state of disaster, a joint operation centre
(JOC) had been established, and they were instructed to report to the JOC.
Ms Mokasi informed and instructed them that they would be required to work
overtime, night shift, Sundays and public holidays.
[9] They pleaded that the ‘instructions and acceptance of the instructions resulted
in the parties reaching an oral agreement ’ that the Plaintiffs should work
according to the new duty schedule and that they would be compensated for
working overtime, night shift, Sundays and public holidays in accordance with
the provisions of the Basic Conditions of Employment Act
8 (the oral
agreement).
[10] The Plaintiffs submitted their timesheets in support of their claim for the
payment of the hours worked as overtime and during night shift, Sundays and
public holidays. The Defendant did not pay, and the Plaintiffs followed an
internal grievance procedure to claim the monies, yet it did not resolve the
issue. The matter was subsequently referred to the South African Local
Government Bargaining Council (SALGBC) and the Commission for
Conciliation, Mediation and Arbitration (CCMA), but was not resolved as the
SALGBC and the CCMA lacked jurisdiction to adjudicate the dispute.
[11] In the statement of claim, the Plaintiffs stated that they seek payment of
overtime, night shift allowance and payment for working on Sundays and
8 Act 75 of 1997, as amended.
7
public holidays, which is to be calculated in accordance with the provisions of
the BCEA. Their claim is for the period from 26 March until August 2020.
[12] The legal issue as pleaded is whether the Plaintiffs are entitled to the payment
of overtime, night shift allowance and for working on Sundays and public
holidays, in terms of the oral agreement.
[13] It is evident from the Plaintiffs’ pleaded case that their claim is premised on
the terms of an oral agreement.
[14] It is evident from the pre -trial minute that it is common cause that Ms Mokasi
informed the Plaintiffs that they would be required to work overtime, night
shift, Sundays and public holidays. It is also common cause that the
instruction to work overtime, night shift, Sundays and public holidays was
given by the head of department (HOD) and was carried out by Ms Mokasi.
[15] The Defendant submitted that there is a difference between an instruction to
work overtime and an agreement or approval to pay overtime where an
employee falls outside the applicable provisions of the BCEA, internal policies
or collective agreements.
[16] The issue in dispute is the existence of the oral agreement to pay the Plaintiffs
for working overtime, a night shift allowance and for working on Sundays and
public holidays. Put differently, the Defendant does not deny the existence of
an instruction to work overtime, nights shifts, Sundays and public holiday, but
it denies the existence of an agreement that the Plaintiffs would be paid for
that.
[17] In the alternative and if it is found that Ms Mokasi gave an oral undertaking
that the Plaintiffs would be compensated for working overtime, night shift,
Sundays and public holidays, such an undertaking was unauthorised and
unlawful.
[18] I have alluded to the importance of pleadings. The Court does not provide its
own terms of reference or conduct its own enquiry into the merits of the case
8
but accepts and acts upon the terms of reference which the parties have
chosen and specified in their pleadings and narrowed in the pre-trial minute.
[19] The issue for this Court to decide is whether the Plaintiffs are entitled to the
payment of overtime, night shift allowance and for working on Sundays and
public holidays, in terms of the oral agreement. The existence of the said
agreement is disputed.
The evidence adduced
The Plaintiff’s case
[20] In recording the Plaintiff’s evidence, I will not repeat the facts that are
common cause between the parties and already recorded supra, nor will I
record the evidence that is not necessary for purposes of this judgment.
[21] Mr Sibiya testified that the Plaintiffs want to be paid for the hours they worked
during March to August 2020 as overtime, night shift, on Sundays and public
holidays (collectively referred to as overtime), according to the instruction they
received to work as aforesaid. The Plaintiffs’ manager, Ms Mokasi, gave them
instructions to work overtime, after she attended a meeting with the acting
HOD, Mr Mazibuko and according to Mr Sibiya, the approval for the payment
of overtime was by implication and the HOD k new that they had to be paid for
working overtime.
[22] In cross- examination Mr Sibiya agreed that the Plaintiffs were part of the
Defendant’s management structures and that they were governed by the
employer’s policies and collective agreements. Mr Sibiya was referred to the
‘Divisional Conditions of Service Collective Agreement’ (collective agreement)
which was entered between the South African Local Government Association
(SALGA) and the trade unions IMATU and SAMWU. The collective agreement
was in operation from 1 July 2019 until 30 June 2024 and Mr Sibiya agreed
that it applied to him.
[23] The collective agreement provided for overtime in clause 7.3 thereof and
relevant for purposes of this dispute, are clauses 7.3.2 and 7.3.3. The said
9
clauses provided that overtime should be approved by the municipal manager
or his/her delegated authority, which in this instance was the HOD, in writing
prior to the overtime being worked. Furthermore, persons earning above the
threshold as set out in the ministerial determination, do not have a legal right
to demand payment in respect of overtime.
[24] Mr Sibiya was also referred to ‘Circular 03/2019 Regulating Overtime’ (the
circular) wherein reference was made to the ‘Collective Agreement Conditions
of Service’ and specifically the clause providing for overtime as follows:
“All employees shall be paid overtime, except those employees on the first
four reporting levels including those acting on the first four reporting levels on
the basis of the Basic Conditions of Employment Act (Act 75 of 1997) which
excludes senior managerial employees from the payment of overtime.”
[25] The circular further recorded that:
“To regulate overtime within the City of Johannesburg, measures are put in
place to reduce departmental overtime expenditure.
With immediate effect the attached template must be completed and
approved by the Head of Department prior to any overtime worked.”
[26] Mr Sibiya also agreed that they earned above the threshold prescribed in the
BCEA and as such, they were excluded from the application of Chapter 2
(regulation of working time) of the BCEA. He agreed that under normal
circumstances the Plaintiffs do not qualify for overtime.
[27] It was put to Mr Sibiya that their overtime was not approved in writing by the
HOD, as required by the collective agreement and the circular and that Ms
Mokasi as the director: operations was not authorised or delegated to approve
overtime. Mr Sibiya could not dispute this but insisted that they had worked
under instruction, and they accepted the instruction on face value, with no
reason to believe that their overtime was not approved. He further testified
that in the municipality it was normal practice to work overtime without written
that in the municipality it was normal practice to work overtime without written
approval and at the time, circumstances were exceptional and the Covid
pandemic was different from the normal position.
10
[28] Mr Sibiya conceded that they do not have a legal right to demand overtime
payment and that they would not automatically qualify for such payment.
However, he insisted that the instruction to work overtime was given with a
promise that they would be paid and therefore, the Plaintiffs are not
demanding payment for overtime, they are merely asking the Defendant to do
as they promised.
[29] Mr Sibiya agreed that the Plaintiffs were not covered by the collective
agreement to receive payment for overtime and that their claim is premised on
an oral agreement that they would be paid. It was put to Mr Sibiya that an
agreement to pay overtime could only be entered into by an official who has
the authority to approve overtime, to which proposition Mr Sibiya responded
that in the JMPD it was not possible to follow regulations and that nobody
could plan for Covid.
[30] Mr Sibiya was referred to the Plaintiffs’ amended statement of claim where it
was pleaded in paragraph 20 that the Defendant made an oral undertaking
that the Plaintiffs would be compensated for working overtime, in paragraph
22 it was pleaded that they were promised by Ms Mokasi that they would be
compensated for working overtime and in paragraph 24 that they were
advised by Ms Mokasi that they would be compensated for working overtime.
It was put to Mr Sibiya that the Plaintiffs’ pleaded case is that ther e was an
oral agreement as to the payment of overtime, but the terms of the pleaded
case show that there was uncertainty about what their engagement and
agreement with Ms Mokasi was and that it does not make out a case that
there was indeed an oral agreement. Mr Sibiya indicated that this is merely
semantics and that he was present in Court to clarify the claim.
[31] After Mr Sibiya adduced evidence, the Plaintiffs’ case was closed. Mr
Govender on behalf of the Defendant, made an application for absolution from
the instance.
Absolution from the instance:
the instance.
Absolution from the instance:
[32] The test for absolution from the instance sought at the close of the plaintiff ’s
case is not whether the evidence led by the plaintiff established what would
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finally be required to be established, but whether there is evidence upon
which a Court , applying its mind reasonably to such evidence could or might
(not should, or ought to) find for the plaintiff9.
[33] This implies that the plaintiff has to make out a prima facie case in the sense
that there is evidence relating to all the elements of the claim in order to
survive absolution because without such evidence no court could find for the
plaintiff
10.
[34] This is the test I must apply in the application for absolution.
[35] The consideration of an absolution application entails some measure of
evaluation of the Plaintiff’s evidence, which must be compared to the
documentary evidence and the pleadings.
[36] The issue this Court must decide is whether the Plaintiffs are entitled to the
payment of overtime in terms of an oral agreement that they had concluded
with Ms Mokasi. The existence of the agreement is disputed and alternatively
the Defendant’s case is that Ms Mokasi did not have the authority to enter into
such an agreement.
[37] It is one thing to allege that an oral agreement was concluded, but it is
another thing to prove that it exists. It is trite that the burden of proof is on the
party who alleges the existence of the agreement, whether the agreement
was in writing or orally. In the case of a written agreement, the burden of proof
is obviously simplified. In casu the onus to establish that a valid and legally
binding oral agreement was concluded, rests with the Plaintiff.
[38] Mr Govender submitted that the Plaintiffs failed to prove the basic elements of
their pleaded case. They had to present evidence to raise a credible belief
that an oral agreement existed and as such they had to prove the existence of
the oral agreement, the terms of the agreement and that the person who had
entered into the agreement, had the authority to conclude the agreement.
9 See: Municipality of Christiana v Victor 1908 TS 1117; Van Rensburg v Reid [1958] 2 All SA 319 (E);
and De Wet and others v Western Bank Ltd 1977 (2) SA 1033 (W).
10 See: Gordon Lloyd Page and Associates v Rivera and another 2001 (1) SA 88 (SCA). Claude Neon
Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A).
12
[39] Mr Govender emphasized that the issue between the parties is a narrow one
– it is not whether the Plaintiffs were instructed to work overtime, but it is
whether they could have concluded an agreement with Ms Mokasi to be paid
overtime, in contravention with the provisions of the law and the applicable
collective agreements. He submitted that the Plaintiffs failed to prove the
aforesaid and therefore absolution from the instance should be granted.
[40] Mr Gwebu for the Plaintiffs submitted that in the statement of response, the
Defendant admitted that the HOD gave the instruction for the Plaintiffs to work
overtime and the instructions were carried out by Ms Mokasi. The Plaintiffs
must prove that they have worked overtime at the instruction of the employer
and if they succeed to show that, they are entitled to payment for the overtime
worked on instruction of their employer.
[41] Mr Gwebu submitted that as it is admitted that the HOD gave the instruction
for the Plaintiffs to work overtime, the Defendant has a case to answer. Ms
Mokasi gave the instruction and supported their claim for overtime, wherefore
the Defendant has a case to answer, the trial must proceed and Ms Mokasi
must come to testify.
[42] I re-iterate: the onus to establish that a valid and legally binding agreement
was concluded, rests with the Plaintiffs and they must prove their case prima
facie on a preponderance of probabilities. The onus is not on the Defendant to
disprove the Plaintiffs’ case where the existence of the oral agreement is
disputed. It is the Plaintiffs’ pleaded case that such an agreement was
concluded with Ms Mokasi and there is not a duty on the Defendant to call Ms
Mokasi as a witness where the onus to prove the exis tence of the agreement
is on the Plaintiffs.
[43] The question to be considered at this point is whether there is evidence upon
which this Court, applying its mind reasonably to the evidence, could or might
find in favour of the Plaintiffs.
find in favour of the Plaintiffs.
[44] The starting point is the pleaded case. It is evident from the Plaintiffs’
statement of claim that their claim, premised on an oral agreement, is pleaded
in vague terms. They pleaded that because they accepted an instruction by
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Ms Mokasi to work overtime, it resulted in an oral agreement. It is unclear
whether the Plaintiffs worked overtime as per instructions or whether it was in
terms of the oral agreement.
[45] Instead of pleading the terms of the agreement, the Plaintiffs made vague
averments to the effect that Ms Mokasi either made an oral undertaking that
they would be paid for working overtime, or that she ‘ promised’ or ‘advised’
that they would be compensated for working overtime.
[46] It is further evident from the pleadings that the Plaintiffs never pleaded that Ms
Mokasi had the authority to enter into an agreement with them regarding the
payment of overtime. The pleadings do not sustain the Plaintiffs’ cause of
action.
[47] The evidence adduced by Mr Sibiya neither supported a case that a binding
oral agreement regarding the payment of overtime was indeed concluded. On
the contrary, Mr Sibiya conceded that the Plaintiffs were excluded from the
applicable provisions of the BCEA regulating overtime and that the
Defendant’s policies and collective agreements were applicable to them. The
collective agreement provided specifically that overtime should be approved
by the municipal manager or his/her delegated authority (the HOD) in writing
prior to the overtime being worked
[48] In my view the difficulty with the Plaintiffs’ case is that they confused the
instruction to work overtime with an agreement to pay for overtime. It is clear
from the provisions of the BCEA and the applicable collective agreements,
regulating the conditions of service, that the Plaintiffs were excluded from the
payment of overtime. The Plaintiffs were aware of this reality, therefore Mr
Sibiya conceded that they do not have a legal right to demand overtime
payment and that they did not automatically qualify for such payment.
[49] The prescripts were clear: overtime should be approved by the municipal
manager or HOD in writing and prior to the overtime being worked. The
manager or HOD in writing and prior to the overtime being worked. The
Plaintiffs could not show any written approval for their overtime which would
entitle them to be remunerated for overtime worked.
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[50] The Plaintiffs’ acceptance of the instruction is only that – the acceptance of an
instruction by an employee who works under instruction and such acceptance
did not convert to some or other oral agreement in contravention of the BCEA
or the Defendant’s policies and collective agreements.
[51] Although I accept that the period during the Covid- 19 pandemic and the
national state of disaster was unusual and unplanned for, Mr Sibiya’s
evidence that in all his years in the employ of the Defendant overtime was
never pre- approved, it was normal practice to work overtime without written
approval and that prescripts regarding that was not followed in the JMPD, is
concerning.
[52] The Plaintiffs claim overtime for the period from March to August 2020.
Evidently the period spanned over five months , which allowed sufficient time
to follow the correct procedures . Covid-19 might have created unusual
circumstances, but in the context of the facts placed before me, this was
certainly not a situation where an unexpected crisis occurred, which called for
immediate and short-term attention, with no time to comply with the necessary
prescripts.
[53] If there is truth in Mr Sibiya’s allegations that it was normal practice to work
overtime without prior written approval, it would constitute a serious
contravention of the Defendant’s prescripts. It can never be in the interest of
the Defendant or its employees or ratepayers to act in contravention of
collective agreements, policies and procedures and to act in a manner which
undermine the principles of good governance and responsible decision taking.
Policies and collective agreements are there to provide clear direction, to
ensure a uniform approach and understanding of what is permissible and
what is not and to ensure that the relevant parties act in accordance with the
prescripts. The flouting of rules and policies and prescripts does not belong in
the running of a municipality, which is funded by ratepayers and other public
the running of a municipality, which is funded by ratepayers and other public
funds - it will undermine the rule of law and will create chaos and uncertainty.
15
[54] Be that as it may, the onus is on the Plaintiffs to prove the existence of an oral
agreement and to show that the re is an obligation to pay them overtime in
terms of the said agreement.
[55] In my view the Plaintiffs failed to make out a prima facie case and they failed
to adduce evidence to discharge their onus. There is no evidence upon which
this Court, applying its mind reasonably to the evidence, could find for the
Plaintiffs. It follows that the application for absolution from the instance should
succeed.
Costs
[56] This Court has a wide discretion in respect of costs and in my view, this is a
matter where the interest of justice will be best served by making no order as
to costs. The parties have an ongoing relationship and Mr Govender indicated
that the Defendant would leave the issue of costs in the hands of the court.
[57] Accordingly, the following order is made:
Order
1. Absolution from the instance is granted.
2. There is no order as to costs.
______________
C. Prinsloo
Judge of the Labour Court of South Africa
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Appearances:
For the Plaintiffs: Mr E Gwebu from Madlela Gwebu Mashamba Inc Attorneys
For the Defendant: Mr C Govender from Salijee Govender van der Merwe Inc
Attorneys