THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case no: 2026-040712
In the matter between:
NHLANHLA MDAKANE First Applicant
PAMELA MNTAKA Second Applicant
THEMBELA NXUMALO Third Applicant
and
KWADUKUZA MUNICIPALITY First Respondent
COUNCIL OF KWADUKUZA MUNICIPALITY Second Respondent
MAYOR OF KWADUKUZA MUNICIPALITY Third Respondent
SPEAKER OF KWADUKUZA MUNICIPALITY Fourth Respondent
Heard: 27 February 2026
Reasons delivered: 2 March 2026
REASONS FOR ORDER
PHEHANE, J
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
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Signature Date
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Introduction
[1] The applicants launched an urgent application seeking various orders,
essentially, declaratory orders that the second respondent acted contrary to the
provisions of Regulation 6 of the Local Government : Disciplinary Regulations
for Senior Managers, 20101 in placing them on precautionary suspension on 17
February 2026. In addition, the applicants sought declaratory orders regarding
the failure by the second and fourth respondents to comply with the provisions
of section 30 of the Local Government Municipal Structures Act 2 read with
section 160 of the Constitution of the Republic of South Africa,1996, (the
Constitution) in relation to their precautionary suspensions. Further, the
applicants sought orders uplifting their suspensions, as well as interdictory relief
interdicting and restraining the respondents f rom preventing them from
accessing the workplace and rendering their services. The applicants sought a
rule nisi calling upon the respondents to show cause on the return date, why
the aforesaid orders should not be made final.
[2] The application was opposed by the respondents, who at the outset raised
preliminary issues.
[3] Pursuant to this Court hearing the submissions by both parties on the
preliminary issues the following order was made on 27 February 2026:
‘Order:
1. The application is struck off the roll.
2. There is no order as to the payment of costs.’
[4] The following constitute the reasons for such order.
1 Published under section 120 of the Local Government: Municipal Systems Act 32 of 2000.
2 Act 117 of 1998.
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Preliminary issues
First preliminary issue
[5] The first is that the applicants’ founding affidavit deposed to by the first
applicant, Mr Nhlanhla Mdakane (Mr Mdakane) in support of the notice of
motion is invalid for non- compliance with the provisions of Regulation 4 of the
Regulations Governing the Administration of an Oath or Affirmation, 3 (the
Regulations), in that the Commissioner of Oaths who commissioned the
founding affidavit deposed to by Mr Mdakane, did not sign the affidavit, but only
affixed his stamp.
[6] Regulation 4 reads thus:
‘(1) Below the deponent’s signature or mark the commissioner of oaths shall
certify that the deponent has acknowledged that he [or she] knows and
understands the contents of the declaration and he [or she] shall state the
manner, place and the date of taking the declaration.
(2) The commissioner of oaths shall-
(a) sign the declaration and print his [or her] full name and business
address below his [or her] signature; and
(b) state his [or her] designation and the area for which he [or she] holds
his [or her] appointment of the office held by him [or her] if he [or she]
holds his [or her] appointment ex officio’.
[7] In addition, the respondents contend that the initials of both Mr Mdakane and
the Commissioner of Oaths on the impugned founding affidavit do not accord
with their names.
Second preliminary issue
[8] The second preliminary issue is that the manner in which the prayers in the
notice of motion are drafted are such that the applicants seek interim relief that
3 Published under GN R1258 in GG 3619 of 21 July 1972, in terms of section 10 of the Justices of the
Peace and Commissioners of Oaths Act 16 of 1963.
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the respondents be ordered to pay the costs of the application. 4 The
respondents accordingly contend that an order for the payment of costs,
improperly sought before substantive relief, is devoid of urgency. They submit
that should the applicants attempt to amend their notice of motion, such
amendment would be opposed on the basis that the case made out on the
applicants’ papers as they stand, seek interim relief, whereas the prayers 3.1 to
3.6 properly construed, seek final relief.
Applicants’ reply
[9] In repl y, the applicants filed as an annexure to their replying affidavit, an
explanatory affidavit deposed to by the C ommissioner of O aths who
commissioned the founding affidavit deposed to by Mr Mdakane, namely, Mr
Senzesihle Mthembu (Mr Mthembu). Mr Mthembu explains that he is a
practicing attorney. He stated that he commissioned the founding affidavit on
23 February 2026 and made an error by not signing the affidavit and only
affixing his stamp on that date. He further explains that he c alled Mr Mdakane
to his offices on 26 February 2026 and signed the founding affidavit before Mr
Mdakane on that date, which affidavit had only been stamped by him
previously. Mr Mthembu stated that the presumably corrected affidavit is
attached as “SM1”. “SM1” however, is not annexed as an annexure to Mr
Mthembu’s explanatory affidavit.
[10] The respondents inform this Court that annexure “SM1” was not attached to Mr
Mthembu’s affidavit when the replying affidavit was served on them. “SM1” was
filed on caselines on 27 February 2026, some 30 minutes after the replying
affidavit was filed. Neither Mr Mthemb u nor Mr Mdakane explain the
discrepancy between their initials on the founding affidavit and their names as
contained in their respective affidavits.
[11] In reply to the challenge regarding the prayer sought on an interim basis for the
payment of costs only, the applicants saw it fit, on the day of the hearing of this
payment of costs only, the applicants saw it fit, on the day of the hearing of this
4 Prayers 3.1 to 3.6 of the notice of motion are drafted in a manner that the applicants seek interim
declaratory orders. Payer 3.7 seeks an order that the respondents pay the costs of the application in
the event of opposition. Prayer 4 of the notice of motion seeks an order that prayer 3.7 operates as
interim relief pending the return date.
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urgent application, to file an application to amend the notice of motion, in which
application, they sought to amend prayer 4 by deleting “ 3.7” and replacing it
with “3.6”.
Evaluation
[12] Although annexure “SM1” was not served on the respondents, the respondents
maintain that the failure to comply with Regulation 4 of the R egulations is not
cured by the explana tory affidavit of Mr Mthembu, as it is imper missible to
simply sign the founding affidavit on a later date without reflecting that the
correction was made on that later date, as this creates the impression that the
founding affidavit was properly commissioned on 23 February 2026, whereas
this was not the case. I agree.5
[13] The replying affidavit was deposed to by Mr Mdakane and was commissioned
on 27 February 2026 by Ser geant NP Mkhungo. 6 The replying affidavit
mentions 12 annexures. “SM1” which is said to be attached to annexure
“RA12”, being the explanatory affidavit of Mr Mthembu, is not initialled by the
Commissioner of Oaths. Therefore, it is unlikely that “SM1” was annexed as an
annexure to Mr Mthembu’s affidavit.
[14] Annexure “RA12” was commissioned on 27 February 2026 before a different
SAPS Commissioner of Oaths.
7 This Commissioner’s initials do not appear on
“SM1”. This demonstrates that “SM 1” was not annexed to Mr Mthembu’s
explanatory affidavit and did not form part of the replying affidavit.
[15] In my view, the way the applicant s attempted to correct the defect in the
founding affidavit compounded the applicants’ problems, as annexure “SM1”
itself is not annexed to Mr Mthembu’s explanatory affidavit marked “RA12” to
the replying affidavit. As an officer of the Court, Mr. Mthembu ought to have
seen to it that annexure “SM1”, being an annexure he mentions in his affidavit,
was attached and properly commissioned. Further, the Regulations provide that
5 See p 006- 108. Mr Mthembu did not sign the founding affidavit on 23 February 2026. To simply
append his signature on a later date, 26 February 2026, is improper and does not accord with the
import of Regulation 4(1). It must be noted that this annexure, “SM1” was not served on the
respondents as it was not attached to the replying affidavit.
6 See p 006-19.
7 See p 006-78.
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the deponent must sign the declaration in the presence of the Commissioner of
Oaths,8 not the other way around, as Mr Mthembu tells this Court that he called
Mr Mdakane to his office for Mr Mdakane to witness a Commissioner of Oaths
signing the affidavit before the deponent.9
[16] Therefore, as things stood, there was no valid founding affidavit before this
Court when this application was heard.
[17] Rules 35 and 38 of the Rules Regulating the Conduct of the Proceedings of the
Labour Court 10 make provision the way applications generally , and urgent
applications specifically, must be brought in this Court. 11 The said rules provide
that an application, or urgent application must be brought on notice supported
by an affidavit.
[18] For an affidavit to be valid, it must comply with the provisions of the
Regulations. The founding affidavit is invalid for want of compliance with the
Regulations. In the premises, there is no valid affidavit that supports the
applicants’ notice of motion. Therefore, the application is fatally defective.
[19] The application to amend the notice of motion is an interlocutory application. In
view of the afore- going it is not nec essary to decide the application to amend
the notice of motion and the opposition thereto.
Costs
[20] Applications that are genuinely urgent are often prepared in constrained
timeframes. However, legal practitioners are to ensure that the correct and
applicable Rules are adhered to in approaching the Court and are to avoid
short cuts. They are to ensure that their conduct is not a hindrance to their
clients’ right of access to Court as enshrined in section 34 of the Constitution.
[21] This is an instance where the requirements of the law and fairness indicate that
no order as to the payment of costs should be made.
8 Regulation 3(1).
9 See: annexure “RA12” at para 7 on p 006-77.
10 Published under GN 4775a in GG 50608 of 3 May 2024.
10 Published under GN 4775a in GG 50608 of 3 May 2024.
11 The applicants’ notice of motion incorrectly refers to Rule 8 in prayer 2. Rule 8 was repealed on 17
July 2024.
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[22] It is for these reasons that the order above was made.
___________________
M T M Phehane
Judge of the Labour Court of South Africa
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