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[2026] ZALCCT 40
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Mthethwa v Department of Cultural Affairs and Sport and Another (2026/024379) [2026] ZALCCT 40 (4 March 2026)
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT CAPE TOWN
CASE
NO: 2026-024379
Not
reportable
In
the matter between:
MOSES
GE MTHETHWA
Applicant
And
DEPARTMENT
OF CULTURAL
AFFAIRS
AND SPORT
1
st
Respondent
THE
HEAD OF DEPARTMENT,
CULTURAL
AFFAIRS AND SPORT:
GUY
REDMAN
2
nd
Respondent
Date
of Hearing:
24 February 2026
Date
of Judgment:
4 March 2026
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on
the
Labour Court website and release to SAFLII. The date and time for
handing down judgment is deemed to be 10h00 on 5 March 2026.
JUDGMENT
V
BARTHUS AJ
Introduction
[1]
The Applicant launched an urgent application seeking the following
relief:
“
1. Declaring
that the First and Second Respondents’ ongoing failure to
allocate the Applicant meaningful duties commensurate
with his post,
level, and skills constitutes an ongoing unfair labour practice and a
breach of the Applicant’s right to fair
labour practices.
2. Directing the First
and Second Respondents, pending the finalisation of proceedings
before the GPSSBC and/or any related review
proceedings, to:
2.1. Assign the
Applicant substantive and meaningful duties consistent with his
designation, job title, and level of appointment;
and
2.2. Ensure that
such duties are recorded in writing and communicated to the Applicant
within five (5) court days of this order.
3. Alternatively,
directing the First and Second Respondents to place the Applicant in
a temporary position or assignment that:
3.1. Is consistent
with his experience, qualifications, and managerial status; and does
not prejudice his career progression, performance
assessment, or
professional development.
3.2nterdicting and
restraining the Respondents from subjecting the Applicant to any form
of disciplinary action, intimidation, or
adverse treatment arising
from his refusal to perform no work or to acquiesce in being
underutilised pending the finalisation of
the dispute.”
[2]
The Applicant served the application on the Department directly
instead of The State Attorney. The State Attorney only
accessed the
application on Caselines on 10 February 2026, hence the late filing
of its answering papers.
[3]
Since the application was launched on truncated timelines and service
was delayed, the Respondent’s late filing
is condoned.
Background
Facts
[4]
There is a litigious history between the parties that spans over the
period of a year. The Applicant was suspended in
February 2025 after
the Board of the CP Nel Museum became aware of significant financial
loss suffered while the Applicant was
at the helm as manager.
[5]
The Applicant challenged his suspension at the Bargaining Council.
The Arbitrator found the suspension without pay to
be fair. The
Applicant launched a review application to set aside the award.
[6]
On 4 August 2025, the Applicant launched an urgent application to
stay the award and for reinstatement pending the outcome
of the
review application. On 1 October 2025, Judge Le Grange struck the
application for a lack of urgency with costs.
[7]
The Applicant has since withdrawn the review application against the
award.
[8]
The Applicant wrote to the Respondents seeking clarity regarding his
duties and responsibilities. He was notified that
the terms and
conditions of his employment and his reporting lines remained the
same as was communicated on 18 September 2025.
[9]
The Applicant requested an “assignment letter”, which was
provided on 24 February 2025, after the present
application was
launched. The letter purports to be a record of what was communicated
to the Applicant on 1 October 2025.
[10]
The Applicant asserts that he has not been assigned any meaningful
work and that this is impacting his mental health.
The Applicant
contends that he is suffering psychological distress, humiliation,
erosion of professional standing, stagnation of
skills and
reputational harm. He has lodged a grievance and has referred an
unfair labour practice dispute to the GPSSBC on 3 December
2025,
which is pending.
[11]
It is the Respondents’ case that this application lacks urgency
because the Applicant has been aware of his duties
since 1 October
2025 and has been aggrieved since then but has waited until February
2026 to launch an urgent application. The
Respondents further contend
that the Applicant will obtain redress through the pending
arbitration process.
Principles
applicable to urgency
[12]
Rule 8 of
the Rules for the Conduct of Proceedings in the Labour Court provides
for urgent applications. An applicant who approaches
the court on an
urgent basis essentially seeks an indulgence and to be afforded
preference, to prevent the prejudice and harm that
may materialise or
persist if the conduct complained of continues. Central to a
determination of whether a matter is urgent is
whether the applicant
has, in the founding affidavit, set forth explicitly the
circumstances which render the matter urgent, and
the reason why
substantial relief cannot be attained at a hearing in due course.
Thus, it is required of an applicant to set out
adequately in the
founding affidavit the reasons for urgency and to give cogent reasons
why urgent relief is necessary
[1]
.
[13]
In
National
Union of Metalworkers of SA and others v Bumatech Calcium
Aluminates
[2]
,
the Court held that:
‘
Urgency must not
be self-created by an applicant, as a consequence of the applicant
having not brought the application at the first
available
opportunity. In other words, the more immediate the reaction by the
litigant to remedy the situation by way of instituting
litigation,
the better it is for establishing urgency. But the longer it takes
from the date of the event giving rise to the proceedings,
the more
urgency is diminished. In short, the applicant must come to court
immediately, or risk failing on urgency. In
Collins t/a Waterkloof
Farm v Bernickow NO & another,
the court held that:
“
if the
applicants seek this court to come to its assistance, it must come to
the court at the very first opportunity; it cannot
stand back and do
nothing and some days later seek the court's assistance as a matter
of urgency
.”
[14]
An applicant who is aware of the harm he or she alleges to suffer,
who takes no steps over a protracted period, and then
launches an
urgent application, is likely to have his or her application struck
from the urgent roll. Thus, to the extent that
an applicant wishes
its matter to be accorded urgency, by the same token, it is expected
of such an applicant to have acted with
the same urgency that the
matter deserves, failing which the invariable conclusion to be
reached is that any urgency claimed is
self-created.
[15]
The Applicant in the present matter did not make out a case for
urgency, and the truncated time frames are not justifiable.
The
urgency is self-imposed.
Conclusion
[16]
While I did not delve into the merits of the application, I have
considered the submissions and am of the view that the
Applicant has
not made out a case to sustain the relief sought. To consider the
merits, the Applicant would have to traverse the
urgency hurdle,
which he has failed to do. The Applicant has not demonstrated that he
has acted diligently and with the urgency
that the matter he seeks to
pursue requires.
[17]
This application, like the previous urgent application, is doomed to
fail for a lack of urgency.
In
the premises, the following order is made:
Order
1.
The application is struck off the roll for lack of urgency.
2.
There is no order as to costs.
V
Barthus AJ
Acting
Judge of the Labour Court of South Africa
Representatives:
For
the Applicant: Moses Mthethwa
For
the Respondent: Adv Liziwe Dzai
Instructed
by: The State Attorney
[1]
Transport and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd
and others [2015] ZALCJHB
[2]
[2016] ZALCJHB 329; (2016) 37 ILJ 2862 (LC) at para 26