THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: 2026-023985
In the matter between:
DERRICK WELENT BARRY First Applicant
and
THE DEPARTMENT OF INTERNATIONAL RELATIONS
AND COOPERATION First Respondent
MINISTER OF INTERNATIONAL RELATIONS
AND COOPERATION Second Respondent
DIRETOR – GENERAL OF INTERNATIONAL RELATIONS
AND COOPERATION Third Respondent
Heard: 18 February 2026
Reasons delivered: 10 March 2026
JUDGMENT
PHEHANE, J
Introduction
[1] The applicant held the position of Corporate Services Manager , deployed to
the South African Embassy in Antananarivo, Madagascar . He launched an
urgent application seeking various orders, essentially, declaratory orders that
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
his dismissal from the employ of the first respondent and recall to the
Republic of South Africa by the s econd respondent on 26 November 2025 is
unlawful and contravenes section 16B (1)(b) and section 17(1) of the Public
Service Act 1 (PSA) and section 16(1) of the Foreign Service Act 2 as the
aforesaid sections of the said statues empow er the third respondent to
dismiss him from employment and to recall him to the Republic of South Africa
and not the second respondent. In the alternative, he seeks an order
reviewing and settin g aside the second respondent’s decision to recall him .
The applicant seeks further related relief.
[2] The application is opposed by the respondents , who seek condonation for the
late filing of their answering affidavit. Condonation is unnecessary as the
applicant has not objected to the late filing of the answering affidavit. In
essence, the grounds of opposition are that urgency is self -created and the
application lacks merit.
Relevant chronological sequence of events
[3] The applicant was suspended from duty as a precautionary measure on 14
January 2025. He was brought before a disciplinary hearing in terms of the
provisions of the Public Service Co-ordinating Bargaining Council Resolution,3
the disciplinary procedures for the public service to answer serious allegations
of misconduct.
[4] At the conclusion of the disciplinary hearing, the chairperson meted out a
sanction of dismissal on 30 June 2025, which sanction was received by the
applicant on 2 July 2025.
[5] On 8 July 2025, the applicant lodged an appeal to the second respondent.
[6] In a letter dated 13 July 2025, the third respondent issued a letter in which he
informed the applicant that the chairperson of his disciplinary hearing meted
out a sanction of dismissal and that in terms of the provisions of section 16B
(1)(b) of the PSA, the sanction was given effect to; further, that the applicant
1 Act 103 of 1994.
2 Act 26 of 2019.
3 Resolution No. 1 of 2003.
3
was provided 30 days to transfer back to the Republic of South Africa, and in
this regard, a transport officer would be appointed to assist him with his
transfer. In addition, the applicant was afforded 5 working days within which to
lodge an appeal. The applicant received this letter on 14 July 2025.
[7] On 18 July 2025, pursuant to receiving the letter by the third respondent dated
13 July 2025, the applicant avers that, as directed by the third respondent, he
lodged an appeal to the second respondent. This appeal was identical to the
first, save for an addition that the letter by the third respondent of 13 July 2025
was premature.
[8] On 12 September 2025, the applicant requested to resume his duties as his
appeal had not been determined with in 30 days .4 No response was
forthcoming.
[9] On 26 November 2025, the second respondent dismissed the applicant’s
appeal and informed him that the decision by management to dismiss him is
upheld. The applicant was further informed that he had 30 days to transfer to
the Republic of South Africa and that a transport officer would be appointed to
assist him with his transfer. The applicant avers that this decision by the
second respondent is unlawful, as only the third respondent is empowered to
dismiss and recall him.
[10] On 2 and 5 December 2025, the trans fer appointee sent email
correspondence to the applicant regarding his transfer , which went
unanswered. The applicant avers that he did not receive this correspondence.
[11] On 8 December 2025, the applicant referred an unfair dismissal dispute to the
bargaining council. The arbitration hearing for this dispute is scheduled for 14
April 2025. The applicant informs this Court that the referral of this dispute
was an error and that he was contemplating withdrawing this dispute. When
this application was heard, the dispute was not withdrawn.
[12] On 10 December 2025, Mr Ben Bosch, the applicant’s union official who
[12] On 10 December 2025, Mr Ben Bosch, the applicant’s union official who
represented the applicant in an unfair labour practice dispute in November
4 The correspondence to which the applicant refers is not attached to his founding affidavit.
4
2025, received e-mail correspondence from the first respondent’s Director of
Labour Relations, Mr Lungisani Ntombela in which correspondence
addressed to the applicant, the applicant was informed that Mr Ntombela had
received information that the applicant was not co- operating with the transfer
process. The applicant was put to terms and was informed of the
consequences that would follow if he did not co- operate. He was informed
that after 31 December 2025, he would not receive his salary and benefits.
[13] In correspondence dated 10 December 2025, Mr Bosch informed Mr
Ntombela inter alia, that the second respondent had no authority to dismiss
the applicant , and until such time that the third respondent issued the
applicant with a letter of dismissal, he remained an employee of the first
respondent. Mr Ntombela responded that , as the outcome of the appeal was
received by the applicant on 26 November 2025, the instructions remained
unchanged. In further correspondence of the same date, Mr Bosch informed
Mr Ntombela that the applicant did not dispute that the appeal outcome was
issued on 26 November 2025 and reiterated that this letter did not give effect
to the sanction of the disciplinary hearing. Mr Ntombela responded that he
would not comment any further in view of the applicant’s arbitration hearing
scheduled to take place in April 2026.
[14] In a letter dated 11 December 2025, the applicant’s erstwhile attorney of
record informed Mr Ntombela inter alia, that the transfer was ultra vires and
should the first respondent continue with the unlawful transfer , a request was
made to “ immediately postpone all transfer arrangements to 31 January
2026”.
Urgency
[15] Rule 38(1) and (2) of the Rules of the Conduct of the Proceedings of the
Labour Court5 (the Rules) makes provision for urgent applications and reads
thus:
5 Published under GN 4775a in GG 50608 of 3 May 2024.
5
‘(1) A party that applies for urgent relief must file an application that
complies with the requirements of the rules relating to applications
generally.
(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.’
[16] It is trite that urgency is not there for the taking and an applicant seeking
urgent relief must set out adequate and detailed reasons in his/her founding
affidavit why the matter should be treated with urgency.6
[17] In Mojaki v Ngaka Modiri Molema District Municipalit y and others7 this Court
held as follows:
‘An applicant has to set forth explicitly the circumstances which he avers
render the matter urgent. More importantly, the applicant must state the
reasons why he claims that he cannot be afforded substantial redress at a
hearing in due course. The question of whether a matter is sufficiently urgent
to be enrolled and heard as an urgent application is underpinned by the issue
of absence of substantial redress in an application in due course. The rules
allow the court to come to the assistance of a litigant because if the latter
were to wait for the normal course laid down by the rules it will not obtain
substantial redress.’
[18] In Soobedar and another v Minister of International Relations and
Cooperation and another,8 this Court stated as follows regarding urgency and
self-created 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
6 Eazi Access Rental (Pty) Ltd v Suleman and Another (2025/009793) [2025] ZALCJHB 192 (12 May
2025) at para [39].
7 (2015) 36 ILJ 1331 (LC); [2014] ZALCJHB 433 at para [17].
8 (2021) 42 ILJ 1761 (LC) at paras [19] – [20].
6
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.
[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).
Evaluation
[19] The applicant did not approach this Court soon after 26 November 2025,
when he received the letter from the second respondent, which he contends is
unlawful.
[20] What reason does he provide for not approaching the Court soon after 26
November 2025 ? The applicant states that firstly, he was under the
impression that the offices of the first respondent closed over the festive
season and staff worked on a skeletal basis during the “whole of December ”
and the first week of January 2026 and therefore, he anticipated that Mr
Ntombela would formally respond to the letter dated 11 December 2025 by his
erstwhile attorney during the second week of January 2026.
[21] There is no basis for such anticipation, and it is unreasonable, as Mr
Ntombela stated in no uncertain terms, that he would not be engaging further
in light of the arbitration hearing scheduled for April 2026. Further, the
applicant was pleaded with to co- operate with the trans ferring appointee
during the month of December 2025. The applicant does not explain why he
did not approach this Court in November 2025 for the urgent relief sought ,
soon after he received the letter from the second respondent.
7
[22] The second reason the applicant provides for not approaching this Court
immediately is that the offices of his erstwhile attorney closed from 12
December 2025 to 6 January 2026. He explains that he was experiencing
anxiety and family -related difficulties over the festive season arising from
uncertainty surrounding this family’s transfer and only contacted his erstwhile
attorney again on 15 January 2026.
[23] This explanation is unconvincing. There was no uncertainty surrounding the
applicant’s transfer. He was informed in no uncertain terms that he must co-
operate with the transfer process and would not receive a salary and benefits
after 31 December 2025. He was also aware from the e-mail correspondence
he refers to of 1 December 2025, that his landlord in Madagascar was
appraised that his residential lease would terminate early. It is odd that the
applicant was aware of this email sent to his work address, yet he alleges that
he was not aw are of the emails by the transfer appointee of 2 and 5
December 2025 sent to his work email address and private email address. His
version therefore, that he did not receive the emails by the transfer appointee
due to his work email being blocked, is improbable. What is clear is that the
applicant was aware that during December 2025, steps were taken to transfer
him back to the Republic of South Africa, which transfer he averred is
unlawful, yet he took no steps to approach this Court for the urgent relief.
[24] It is only when he did not receive his salary on 15 January 2026 that he
contacted his erstwhile attorney, after which, it took him close to three weeks
to approach this Court. The reason that his current attorney of record’s
selected counsel lacked the requisite expertise to deal with a labour law
dispute is not a convincing reason for failure to approach this Court on an
urgent basis , as the legal principles relating to urgency apply to all Courts.
urgent basis , as the legal principles relating to urgency apply to all Courts.
Further, as the applicant’s case is premised on a contractual claim in terms of
section 77(3) of the Basic Conditions of Employment Act
9 this reason to
explain the delay in approaching this Court is shocking.
[25] The applicant’s delay in approaching this Court soon after 26 November 2025
has diminished urgency. On his own version, he sat back and waited for
9 Act 75 of 1997.
8
responses he was told on 10 December 2025, would not come yet, he did not
approach the Court soon after 10 December 2025. He waited a month and a
half without sound reasons for doing so and approached this Court on
severely truncated time frames.
[26] In National Union of Metalworkers of SA and others v Bumatech Calcium
Aluminates10 this Court held as follows:
‘Urgency must not be self-created by an applicant, as a consequence of
the applicant not having 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 applicant seeks 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”.’ (Own emphasis).
[27] The reason provided by the applicant as to why he will not obtain substantial
relief if his application is heard in the ordinary course, is the precarious
situation him and his family are in. In my view, while the situation of the family
is n ot taken lightly this does not justify the applicant jumping the proverbial
queue. The applicant states that he has no objection to returning the Republic
of South Africa following the sanction of dismissal which he intends to
challenge at the relevant bargaining council , however, he is waiting for the
third respondent to give effect to this decision and to recall him. 11 With this
remedy at his disposal, he sat back and waited. He now seeks to challenge
the dismissal on the grounds of unlawfulness , yet he failed to approach this
the dismissal on the grounds of unlawfulness , yet he failed to approach this
Court immediately and created the anxiety he now wants this Court to assist
him to lift.
10 (2016) 37 ILJ 2862 (LC); [2016] ZALCJHB 329 at para [26].
11 Founding affidavit at para 26 on p 002-9.
9
[28] In Sihlali and others v City of Tshwane Metropolitan Municipality and another12
this Court held as follows:
‘It is good practice for practitioners practicing in this court to keep themselves
abreast with the judgments of this court particularly those arising from the
urgent court. There is a developing trend that points to the fact that the urgent
court is being abused. Might I state, an urgent court is meant for urgent
matters. This court should not be detained to use its scarce, valuable time
entertaining self-created urgent matters. Practitioners should exercise greater
care when considering approaching this court on urgency in matters where
substantial redress is obtainable in due course.’
[29] 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.
___________________
M T M Phehane
Judge of the Labour Court of South Africa
12 (2017) 38 ILJ 1692 (LC) at para [29].
10
Appearances:
For the applicant: Adv S Swartz
Instructed by: GP Bouwer Attorneys
For the respondent: Adv F Thema
Instructed by: State Attorney