THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: 2026-035062
In the matter between:
MOTHUPI MAGASHULE Applicant
and
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY Respondent
Heard: 20 February 2026
Reasons delivered: 21 February 2026
REASONS FOR AND VARIATION OF ORDER
PHEHANE, J
Introduction
[1] The applicant, who is self -representing, brought an urgent application to
interdict the continuation of his disciplinary hearing pending the finalization of
a review application instituted in this Court.
[2] The application was opposed by the respondent essentially on the following
bases: the application is res judicata, urgency is self-created and the applicant
(1) Reportable: NO
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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failed to demonstrate exceptional circumstances warranting this Court’s
intervention in an incomplete disciplinary hearing.
[3] After hearing the parties’ submissions, this Court issued an order dismissing
the preliminary point on res judicata and struck the application off the roll for
lack of jurisdiction with no order as to costs.
Variation of order
[4] The second order striking the application off the roll for lack of jurisdiction was
an inadvertent error . Therefore, in terms of Rule 46(1)(a)(ii) of the Rules
Regulating the Conduct of the Proceedings of the Labour Court 1 (the Rules)
order number 2 of this Court’s order issued on 20 February 2026 is varied by
replacing the word “jurisdiction” with the word “urgency”.
[5] The reasons for the order f ollow below. From the reasons provided, the error
referred to is apparent.
Relevant background
[6] On 18 July 2025, t he applicant was served with charges of grave misconduct
relating to falsifying and abusing sick leave . The disciplinary hearing was
scheduled to commence on 31 July 2025.
[7] The applicant alleged that the disciplinary hearing was instituted out of time
and contrary to the provisions of the disciplinary procedures as contained in a
collective agreement concluded in the South African Local Government
Bargaining Council that is binding on the respondent , termed the Disciplinary
Procedure Collective Agreement Circular No. 01/2018. The applicant
ultimately launched proceedings in the bargaining council relating to the
interpretation and application of this collective agreement . Following
arbitration proceedings, the Commissioner issued an arbitration award dated
8 December 2025 in which award she found that the disciplinary hearing was
launched timely and in compliance with the collective agreement.
1 Rules Regulating the Conduct of the Proceedings of the Labour Court published in GN 477a in GG
50608 of 3 May 2024.
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[8] Dissatisfied with this decision, the applicant launched proceedings in this
Court under case number 2026-016991 in terms of the provisions of section
145 of the Labour Relations Act 2 (LRA) to review and set aside the arbitration
award. The notice of motion in this review application is dated 20 January
2026. The applicant subsequently launched an urgent application under case
number 2026-026252 to stay his disciplinary hearing which was scheduled for
12 February 2026 pending the outcome of the review application. The notice
of motion in the urgent application is dated 5 February 2026.
[9] The urgent application was heard on 10 February 2026, on which date, this
Court issued the following order:
‘1. The application filed by Mr Ayanda Time, who is not eligible to
represent a party in this Court as contemplated in section 161 (1) of
the Labour Relations Act No 66 of 1995 (as amended), is dismissed.
2. There is no order as to costs’.
[10] Mr Ayanda Time signed the notice of motion in both the aforesaid urgent and
review applications. However, the deponent to the affidavits in both
applications is the applicant in these present proceedings.
[11] Following the order of this Court as aforesaid, the applicant presented himself
at his disciplinary hearing on 12 February 2026, at which hearing, he
requested and was granted a postponement due to the reported illness of his
representative. The hearing was postponed to 24 February 2026.
[12] On 16 February 2026, the applicant, then self -representing, filed this present
application to stay the hearing scheduled for 24 February 2026. The notice of
motion required the respondent to file its answering affidavit by 17h00 on 17
February 2026. However, the application was only emailed to the respondent
by the applicant on 17 February 2026 at 12h20. In his email, the applicant
informs the respondent that he attended at the respondent’s offices at 10h28
on 17 February 2026 to serve the application. There is no indication of any
on 17 February 2026 to serve the application. There is no indication of any
attempted service on the respondents before 17 February 2026. The
2 Act 66 of 1995, as amended.
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respondent confirmed receipt of the application in email correspondence
dated 17 February 2026 at 17h11.
[13] An unsigned answering affidavit was delivered on 18 February 2026 and a
signed version was delivered on 19 February 2026.
[14] No replying affidavit was delivered.
Preliminary points
Applicant’s preliminary points: late filing of pleadings and heads of argument
[15] At the commencement of the hearing, the applicant raised a preliminary point
from the Bar, challenging the late filing of the answering affidavit and heads of
argument filed by the respondent.
[16] This preliminary point lacked merit, as the applicant is the cause of the
answering affidavit being delivered out of time, as the respondent was given
severely truncated time frames within which to deliver an answering aff idavit.
The applicant did not proceed with this preliminary point.
[17] He proceeded to request this Court to adjourn the proceedings, as he wanted
to file a replying affidavit. The applicant was hard pressed to explain why he
did not file a replying affidavit after he had sight of the unsigned answering
affidavit and later, the signed answering affidavit. He could not explain why he
delivered the application on 17 February 2026 which caused the delay in
delivering the opposing papers. Faced with this predicament, the applicant
elected to proceed with the application as he ran the risk of the application
being struck off the roll for lack of urgency due to his dilatory conduct.
[18] Parties are entitled to object to the late filing of affidavits. S uch objections and
any applications for condonation for the late filing of affidavits would be
considered taking the nature of urgent applications into consideration.
Generally, technical points ought to be avoided in urgent applications.
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Respondent’s preliminary point: res judicata
[19] The respondent raise d the special plea of res judicata, as according to the
respondent, this Court’s order of 10 February 2026 dismissed the applicant’s
application. Therefore, the respondent submits, the doc trine of res judicata
precludes the applicant from launching the same application between the
same parties, seeking the same relief that has been determined by this Court.
[20] In my view, the order of 10 February 2026 did not deal finally with the merits
of the urgent application. As things stand, the respondent could not refer this
Court to a judgment by this Court which finally determined the merits of the
same application that is before this Court to sustain a special plea of res
judicata. The order itself states that the application was dismissed because it
was filed by an individual who did not have the right of representation or
appearance as contemplated in section 161 of the LRA. Therefore, I am not
persuaded that the merits of the application w ere finally determined by this
Court on 10 February 2026. It is for this reason that the preliminary point on
res judicata was dismissed.3
Urgency
[21] Rule 38 provides that an affidavit in support of an urgent application must
contain averments setting out the reasons for urgency and why urgent relief is
necessary.
[22] Rule 38(1) and (2) of the Rules read thus:
(1) A party that applies for urgent relief must file an application that
complies with the requirements of the rules relating to applications
generally.
3 In Truter v Travelstart Online Travel Operations (Pty) Ltd [2020] JOL 48470 (LC) [12], this Court
restated the doctrine of res judicata and held thus:
‘[12] It is trite law that for a matter to be treated as res judicata or, in other words, a matter that
has already been determined by a court cannot be revisited in fresh proceedings, barring
an appeal against the judgment, the following criteria must be met: there is already a
an appeal against the judgment, the following criteria must be met: there is already a
judgment on the matter, the litigation is between the same parties and, the previous
judgment concerns the same subject matter and same cause of action and relief (see for
example SA National Defence Union and another v Minister of Defence and others ; SA
National Defence Union v Minister of Defence and others).’
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(2) The affidavit in support of the application must also contain:
(a) the reasons for urgency and why urgent relief is necessary;
(b) the reasons why the requirements of the rules were not
complied with, if that is the case; and
(c) …’
[23] In Eazi Access Rental (Pty) Ltd v Suleman and Another4 this Court held:
‘‘… urgency is not there for taking and an applicant seeking an urgent relief
must adequately and in detail set out in the founding affidavit the reasons why
the matter before the Court should be treated with urgency.’
[24] In East Rock Trading 7 (Pty) Ltd and Another v Valley Granite (Pty) Ltd and
Others5, the Court stated that an applicant in urgent proceedings must s et out
explicitly in his or her affidavit the circumstances she or he avers render the
matter urgent. Failure to approach the C ourt without delay does not constitute
an automatic ground to refuse to hear the application on an urgent basis. An
applicant must persuade the C ourt that he or she will not be afforded
substantial redress at the hearing in due course.
[25] In Soobedar and another v Minister of International Relations and
Cooperation and another,
6 this Court stated as follows regarding urgency:
‘[19] The principles applicable to urgency are trite as can be gleaned
from various decisions of this and other courts. An applicant that
approaches the court on an urgent basis essentially seeks an
indulgence, and to be afforded preference in order to prevent
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
4 (2025/009793) [2025] ZALCJHB 192 (12 May 2025) at para [39].
5 2011 JDR 1832 (GSJ) at para [9].
6 (2021) 42 ILJ 1761 (LC) at paras [19] – [20].
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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.
[20] It is trite that urgent relief will not be granted in circumstances
where it is apparent that the urgency claimed is self -created.
Self-created urgency is apparent in circumstances where an
applicant failed to bring the application at the first available
opportunity. Thus, it is expected of litigants to react immediately
to remedy or prevent harm and/or prejudice, rather than
standing back and doing nothing until it is too late.’
(Own emphasis).
[26] In the present application, the applicant does not set out explic itly in his
founding affidavit, the reasons for urgency. He does not explain why he did
not bring this application at the earliest opportunity after this Court dismissed
his application due to his representative not having the right of appearance in
terms of section 161 of the LRA. He took 7 days to serve the application on
the respondent with severely truncated time frames. He does not explain this
delay. He also does not explain why substantial redress would not be
obtained in due course which necessitates this Court coming to his assistance
urgently to prevent harm he complains of. It is telling that he does not explain
what took place on 12 February 2026 . The respondent provides the
explanation that the applicant appeared at the hearing on 12 February 2026
and sought a postponement, which was granted.
[27] The applicant could not explain why he presented himself at the very hearing
that he challenged on the basis that it is unlawful, yet he participated i n the
hearing by requesting the chairperson to grant him a postponement, which
was granted at his request. The applicant now seeks to interdict a hearing in
respect of which he sought an indulgence, which was granted to him. It is
untenable for the applicant to participate in the very hearing he challenges on
untenable for the applicant to participate in the very hearing he challenges on
the basis of unlawfulness, engineer a postponement , wait 5 days before
serving this application on the respondent and expect the respondent to reply
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on the same day. This is a classic case of urgency that is self -created. The
applicant cannot cook up urgency and ask t his Court to come to his
assistance. In his own words, he exhausted processes to challenge the
hearing which commenced as far back as July 2025. Yet , he did not approach
this Court for urgent relief and all the while, he participated in the hearing he
seeks to avoid.
Costs
[28] As a general rule, in this Court, costs do not follow the result. Both parties
saddled this Court with unnecessary, voluminous documents that are not
properly indexed. This is to be discouraged, particularly in the urgent Court,
where pleadings are to be presented in a succinct manner given the nature of
the urgent Court. However, I exercised my discretion not to make an order as
to the payment of costs.
Varied Order:
1. The preliminary point on res judicata is dismissed.
2. The application is struck off the roll for lack of urgency.
3. There is no order as to costs.
_______________________
M. T. M. Phehane
Judge of the Labour Court of South Africa