THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: 2026-049347
In the matter between:
MNIKELWA NXELE Applicant
and
THE CHAIRPERSON OF THE DISCIPLINARY
HEARING: CHRIS MUDAU N.O. First Respondent
NATIONAL COMMISSIONER: DEPARTMENT
OF CORRECTIONAL SERVICES Second Respondent
THE INITIATOR: PUKE MASERUMULE N.O. Third Respondent
Heard: 13 March 2026
Delivered: 24 March 2026
Labour Law - Precautionary Suspension - Authority of chairperson – declaratory relief –
Cout lacks general jurisdiction – Application dismissed.
Protected Disclosures - Section 188A(11) of LRA – Employee’s request for s 188A(11)
process - Effect on i nternal disciplinary hearing – pending decision by administrative
body, internal hearing halted - Interdict - Disciplinary hearing halted by a s 188A( 11)
pending administrative body’s decision – Application dismissed.
(1) Reportable: Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
JUDGMENT
MAKHURA, J
Introduction
[1] What began as a seemingly routine internal employment dispute between the
Department of Correctional Services (DCS), represented by the second
respondent, and the applicant back in 2016 has evolved into something more
enduring, probably far more than either party could have ant icipated. A decade
later, the parties remain entangled in what has become an unfortunate and
troubling pattern marked by repeated precautionary suspensions, multiple referrals
to the bargaining council and several urgent applications brought before this Court.
[2] In this latest segment of t he parties’ legal entanglement, the applicant seeks an
order as follows:
‘2. Declaring that the First Respondent does not possess the requite (sic)
legal authority in terms of the SMS Handbook clause 2.7.2 (c) to suspend
and/or cause to be suspended the Applicant;
3. Declaring that the First Respondent does not possess the requite (sic)
legal authority in terms of the PUBLIC SERVICE PRECAUTIONARY
SUSPENSIONS GUIDE (DEPARTMENT OF PUBLIC SERVICE AND
ADMINISTRATION) dated 04/12/2015 clauses 3 (bullets 2, 7 and 9), 4
(bullet) 5; 7; 8; 9; 10 and 11; to extend and/or cause to be extended, any
suspension of the Applicant on behalf of the Second Respondent;
4. Directing the Second Respondent to allow and/or cause to be allowed,
the conversion of any further disciplinary hearing in terms of Section
188A(11) of the Labour Relations Act 66 of 1995 (as amended);
5. That the Second Respondent be compelled to convene and/or cause to
be convened, a properly constituted disciplinary hearing under Section
3
188A(11) to allow the Applicant to fully and meaningfully participate
therein.
6. That the Second Respondent is ordered to allow and facilitate the
participation of the Applicant, without any hindrance to the said Section
188A(11);
7. That the First and Third Respondents be interdicted from proceeding with
the disciplinary hearing against the Applicant, scheduled for the 26 March
2026 and/or any other date there-after.’
Material facts
[3] The litigation history of the matter is well documented in various judgments of this
Court and the Labour Appeal Court (LAC) judgment issued on 17 April 2025. This
historical background, drawn from these judgments , is also addressed as part of
the facts leading to this current application.
[4] On 18 December 2017, this Court, in proceedings between the parties brought
under section 158(1)(h) of the Labour Relations Act
1 (LRA) to review the
chairperson’s finding of guilt and refusal to convert the disciplinary process into an
inquiry in terms of section 188A(11), delivered judgment in Nxele v National
Commissioner: Department of Correctional Services & others
2 (Nxele I) . In that
decision, the Court held that where an employee invokes section 188A(11), the
request for a pre- dismissal arbitration is peremptory, requiring the employer to
terminate the internal disciplinary hearing and refer the matter to the relevant
dispute-resolution body for inquiry by an arbitrator.
[5] Consequently, the Court reviewed and set aside both the chairperson’s ruling and
the internal disciplinary hearing that had culminated in the finding of guilt. The DCS
was directed that, should it wish to persist with the misconduct allegations against
the applicant, it must do so through a section 188A process. The Court had at that
1 Act 66 of 1995, as amended.
2 [2019] JOL 43840 (LC); (2018) 39 ILJ 1799 (LC).
4
time observed that the matter had “long and protracted history” , dating back to
May 2016.
[6] In 2018, the applicant made a disclosure to the Public Service Commission (PSC).
On 10 October 2019, the PSC found that the applicant’s disclosure constituted a
protected disclosure in terms of the Protected Disclosures Act3 (PDA) and that the
applicant had been s ubjected to an occupational detriment in terms of the PDA. It
is common cause that the applicant was subsequently subjected to an inquiry by
an arbitrator in terms of section 188A(11) of the LRA. Following this inquiry, the
applicant was issued a written warning for the misconduct committed, his
suspension was uplifted and he was ordered to report for duty on 14 February
2022.
[7] The DCS , dissatisfied with the outcome of the inquiry , sought to challenge it on
review. It informed the applicant not to report for duty pending the review
application and instructed the applicant not to report for duty pending the outcome
of that application. The applicant took the view that he was legally entitled to return
to work, which prompted the D CS to launch urgent proceedings to interdict his
return. That application was dismissed with costs on 23 February 2022 4, paving
the way for the applicant’s return to work.
[8] Notwithstanding this Court’s confirmation that the applicant was lawfully entitled to
resume duty, he was, merely three working days later on 28 February 2022, again
placed on precautionary suspension pending an investigation into allegations of
misconduct. The alleged misconduct concerned the very same attempt to return to
work in compliance with the outcome of the section 188A inquiry , which the Court
had confirmed on 23 February 2022 that he was entitled to resume his duties . The
applicant challenged the suspension before the General Public Service Sectoral
Bargaining Council (GPSSBC).
3 Act 26 of 2000, as amended.
4 Department of Correctional Services v Nxele & others [2022] ZALCJHB 37; (2022) 43 ILJ 1668 (LC)
(Nxele II).
5
[9] In May 2022, the applicant was charged with misconduct arising from his return to
work on 14 February 2022. In response, he approached this Court on 17 May
2022 seeking, firstly, an order converting the disciplinary hearing into a section
188A(11) inquiry, secondly, a declaration that his suspension had lapsed by virtue
of having exceeded the prescribed 60-day period. A rule nisi was issued on 23
May 2022, granting the relief sought, with a return date set for 22 July 2022.
[10] When the matter returned to Court on 22 July 2022, it was argued before Allen-
Yaman AJ (as she then was). Judgment was subsequently delivered on 2 August
2022 in Nxele v National Commissioner: Department of Correctional Services and
Another5 (Nxele III), in which the Court confirmed the rule nisi. The effect of this
order was that, should the DCS wish to pursue the charges against the applicant, it
was obliged to do so through an inquiry conducted in terms of section 188A of t he
LRA.
[11] The DCS thereafter appealed the judgment to the LAC. On 17 April 2025, the LAC
handed down judgment in National Commissioner Department of Correctional
Services v Nxele and Another
6 (Nxele IV). In summarising this Court’s decision of
2 August 2022, the LAC noted that the charges brought in 2022 were directly
connected to the earlier misconduct allegations, and that the applicant’s perception
of ongoing victimisation could not be regarded as objectively unreasonable.
7
[12] On appeal, the DCS contended that the Labour Court erred in its approach,
arguing that a more stringent and direct nexus was required between the protected
disclosure made in 2018 and the charges brought in 2022. According to the DCS,
the events of 14 February 2022 bore no relation to the earlier disclosure and
therefore could not amount to an occupational detriment under the PDA.8
[13] The issue before the LAC was whether the Labour Court erred in finding that the
applicant had, in good faith, alleged that proceeding with the internal disciplinary
applicant had, in good faith, alleged that proceeding with the internal disciplinary
5 [2022] ZALCD 32.
6 [2025] ZALAC 9; [2015] 5 BLLR 472 (LAC).
7 Ibid at para 9.
8 Ibid at para 10.
6
hearing amount ed to a contravention of the PDA entitling him to invoke the
protections of section 188A(11). In dismissing the appeal and upholding the
decision of this Court, the LAC emphasised that section 188A(11) does not require
an employee to prove the contravention, but merely to allege in good faith that the
internal process infringes the protections afforded under section 188A(11) . The
LAC held that:
‘The concept of good faith is sensitive to context. The undisputed facts before the
Labour Court were that the appellant refused to accept the outcome of the
section 188A(11) inquiry. This response caused the appellant on Sunday 13
February 2022 to serve on Mr Nxele an application to review the outcome of the
inquiry and an application to interdict his return to work. When Mr Nxele sought
to return to work on 14 February 2022, there was no lawful impediment on him
from doing so, yet, the appellant neverthel ess had deployed members of the
National Emergency Response Team to bar Mr Nxele from entering the DCS
premises and resuming his duties. Mr Nxele was then suspended from duty and
at the ensuing arbitration hearing in May 2022 considering the fairness of his
suspension, he was served proposed disciplinary charges, related in the main to
his failed attempt to return to work on 14 February 2022. In addition, Mr Nxele
was notified that the disciplinary hearing which would consider such charges
would be held in Pretoria and not in Pietermaritzburg where he worked.
The appellant was aware the first disciplinary hearing instituted against Mr Nxele
had been converted into a section 188A(11) inquiry which found that he had
raised the allegation in good faith and that the holding of such disciplinary
hearing contravened the PDA. Yet, in spite of this, the appellant’s response to
the outcome of that inquiry was not only calculated but also unusual in a number
of respects. The appellant immediately sought to bar Mr Nxele’s return to work,
of respects. The appellant immediately sought to bar Mr Nxele’s return to work,
going as far as to serve review papers and an interdict application on him on a
Sunday. Furthermore, he caused members of the National Emergency Response
Team to be deployed to bar Mr Nxele from physically entering the DCS premises
and resuming his duties. This was not an ordinary response to the outcome of an
inquiry with which an employer took issue. It was a heavy -handed and directed
response which reflected a particular and unusual degree of antipathy to the
7
outcome of the inquiry and the return of a senior employee to work. There was
no indication why such a response was required and no reason advanced why
Mr Nxele’s return to work would pose any particular threat or danger given his
position in the DCS if this was not related to the protected disclosure he had
previously made.
The appellant’s decision thereafter to institute disciplinary proceedings against
Mr Nxele related to his attempt to return to work was a similarly unusual and
heavy-handed response to the events which had transpired in circumstances in
which Mr Nxele was legally entitled to return to work given the outcome of the
inquiry, and his attempt to contact politicians responsible for correctional service
could not reasonably justify him being physically barred from reporting for duty in
the matter that occurred. His suspension from duty and the decision to serve
proposed disciplinary charges on Mr Nxele at the arbitration hearing convened to
consider the fairness of his suspension reflected a clear intent on the part of the
appellant to take whatever steps necessary to prevent Mr Nxele’s return, with the
decision to hold the hearing to consider such charges in Pretoria and not in
Pietermaritzburg where he worked being similarly calculated.’
9
[14] In summary, the LAC observed an unusual and disproportionate pattern of conduct
by the second respondent , an unexplained and heightened hostility toward the
applicant, its heavy-handed conduct when the applicant sought to report for duty
and its resistance to the section 188A(11) inquiry outcome and found that the
above factors support the applicant’s good faith belief that the disciplinary process
against him was linked to his earlier protected disclosure and that he met the
threshold of alleging in good faith that the disciplinary process contravened the
PDA.
[15] The LAC’s judgment meant that the DCS must continue with the disciplinary
process in terms of section 188A(11). The DCS, after its failed appeal, elected not
process in terms of section 188A(11). The DCS, after its failed appeal, elected not
to pursue the charges against the applicant. It abandoned the charges and
disciplinary hearing.
9 Ibid at para 20 – 22.
8
[16] Approximately three weeks after the LAC delivered its judgment, the applicant was
summoned to a meeting with the second respondent on 9 May 2025, during which
he was served with a letter of suspension premised, inter alia, on allegations of
procurement irregularities. Although the applicant was invited to submit
representations, the suspension had in effect already been imposed. In his
representations, the applicant raised several concerns relating to allegations of
irregularities in the DCS’s procurement processes, which led to a suspension of at
least two officials under his authority and a recommendation for the second
respondent to suspend one of the officials. The applicant also raised concerns
relating to the second respondent ’s failure to act on his recommendation to
suspend the official. He further noted that he had reported these matters to the
Public Protector and the Chairperson of the relevant Portfolio Committee in April
and May 2025. The applicant regarded the suspension as retaliatory and linked to
these disclosures.
[17] The applicant further stated that the second respondent:
‘is prepared to bend the rules and modus operandi to suspend me with haste and
remove me from the system in order to silence me on the perishable and non-
perishable contract and to protect the Durban SCM officials. I mention bending
the rules and modus operandi because the previous process to suspend an
employee, drawing from the recent December 2024 experience, is to afford me
an opportunity to make representations before suspending me. This time, the
National Commissioner opted to take away that opportuni ty and went for a
straight suspension. One wonders why?
It is difficult to resist a conclusion that the National Commissioner is subjecting
me to occupational detriment because of the protected disclosure I made to the
National Commissioner himself, Minister, Public Protector and Portfolio
Committee Chairperson. This is impermissible and I will stop at nothing to
Committee Chairperson. This is impermissible and I will stop at nothing to
vindicate my rights against an apparently unlawful conduct.’ (Emphasis added)
[18] On 30 June 2025, the applicant referred two disputes, contained in a single referral
form. The first concerned an alleged unfair labour practice dispute relating to his
9
suspension; the second alleged that he had been subjected to an occupational
determinant in contravention of the PDA. The applicant contended that the
suspension had been imposed unilaterally and in retaliation for disclosures he had
made regarding procurement irregularities in the award of food contracts,
irregularities in the 2025 learnership recruitment process, and the second
respondent’s failure to act against what he described as “corrupt officials” within
the Durban Supply Chain Management Unit. He further submitted that these
disputes must be viewed against the backdrop of the parties’ extensive litigation
history. The applicant sought a declaration that the suspension was unfair and
constituted a breach of the P DA and sought c ompensation of 12 and 24 months’
remuneration, respectively.
[19] Following his suspension, the applicant was charged and called to attend a
disciplinary hearing on 8 July 2025, chaired by the first respondent . At the
commencement of the disciplinary hearing, the applicant raised several preliminary
points, including that he had made a protected disclosure under the PDA, that the
disciplinary proceedings constituted an occupational detriment and that he had
referred an unfair suspension dispute to the G PSSBC. The disciplinary hearing
was postponed sine die. Later that day, the second respondent addressed a letter
to the applicant informing him that his suspension had not lapsed and that he was
still not permitted to report for duty . The applicant was warned that any attempt to
return to work would constitute contravention of his suspension conditions.
[20] On 9 July 2025, the DCS’s attorneys of record, Puke Maserumule Attorneys,
addressed correspondence to the applicant instructing him not to report for duty on
the basis that he remained on suspension. Several days later, on 15 July 2025, the
applicant launched an urgent application in this Court seeking a declaratory order
applicant launched an urgent application in this Court seeking a declaratory order
that his suspension of 9 May 2025 had lapsed in terms of clause 2.7.2(c) of the
SMS Handbook. That application was ultimately unsuccessful.
10
10 Nxele v National Commissioner: Department of Correctional Services [2025] ZALCJHB 571; [2026] 3
BLLR 262 (LC) (Nxele V).
10
[21] On 14 August 2025, the second respondent addressed a letter to the applicant
recording that his suspension had lapsed on 4 August 2025 and that he was
required to report for duty on 5 August 2025. The applicant was instructed to report
for duty on Friday, 15 August 2025, which he duly did. On his second working day
back at work on Monday, 18 August 2025, the second respondent issued a notice
to the applicant in the following terms:
‘This Office received a letter dated 9 July 2025 from Puke Maserumule Attorneys
Inc., which represents the Department in the disciplinary proceedings initiated
against you, which are currently pending.
The letter contains serious allegations of possible gross misconduct against you,
and this Office has been requested to investigate them. For ease of reference, a
copy of the letter is attached.
In light of the nature and seriousness of the allegations, the Department is
contemplating your suspension from duty, pending the outcome thereof. You are
accordingly invited to make written representations why you should not be
suspended whilst the investigation is conducted…’
[22] The allegations referred to in the notice related to a claim by Puke Maserumule
Attorneys that, in response to their correspondence of 9 July 2025 advising him
not to report for duty, the applicant had telephoned a member of the firm and had
allegedly made threats directed at her and the firm. The applicant, however,
disputed this characterisation and said that he stated that he did not take
instructions from the attorney concerned.
[23] On 27 August 2025, the applicant was again placed on suspension. He remained
on suspension until 26 October 2025, upon which he reported for duty the
following day, 27 October 2025, and notified the second respondent in writing that
his suspension had since lapsed and that he was back at work.
[24] However, the applicant would be suspended again on 26 November 2025. This
[24] However, the applicant would be suspended again on 26 November 2025. This
time, he was suspended on allegations of maladministration for inter alia issuing
11
an instruction to his subordinate “to perform his private duties using the human
and physical resource of the Department whilst you were on precautionary
suspension”. The conduct in question was alleged to have occurred between 1
July and 7 November 2025.
[25] On 9 February 2026, the applicant was served with a notice to attend a disciplinary
hearing scheduled for 19 February 2026. The charges preferred against him
related to alleged misconduct committed between 1 July and November 2025,
during periods when he had been on precautionary suspensions. These included
allegations that he had issued unauthorised i nstructions to a subordinate to
perform private tasks for his personal benefit, misused departmental assets and
human resources, prejudiced the proper administration and functioning of the
DCS, and caused the DCS to incur irregular, wasteful, and fruitless expenditure in
contravention of sections 45(b) and (c) of the Public Finance Management Act
11
(PFMA).
[26] On 15 February 2026, the applicant sent a WhatsApp message to the second
respondent seeking to invoke section 188A(11) and requesting that the disciplinary
hearing be convert ed into an inquiry by arbitrator . The second respondent replied
on 18 February 2026, acknowledging receipt of the request but indicating that any
preliminary point, such as section 188A(11), should be raised before the appointed
chairperson at the hearing scheduled for 19 February 2026.
[27] On 16 February 2026, the applicant referred a request too the GPSSBC for an
inquiry by arbitrator in terms of section 188A(11) of the LRA. On 17 February
2026, the GPSSBC sent a tax invoice to the applicant.
[28] When the disciplinary hearing convened on 19 February 2026, the second
respondent indicated an intention to consolidate the charges issued on 9 February
2026 with those arising from the earlier allegations relating, inter alia, to
procurement irregularities for which the applicant had been called to a disciplinary
procurement irregularities for which the applicant had been called to a disciplinary
hearing on 8 July 2025. The second respondent further advised that a new,
11 Act 1 of 1999.
12
additional charge sheet would be served on the applicant and that, in conjunction
with the consolidation application, a postponement would be sought together with
an extension of the applicant’s suspension. The applicant o bjected to the
consolidation, contending that the earlier proceedings had been abandoned. His
primary objection was however directed at the internal disciplinary hearing in light
of his pending section 188A(11) referral, which he submitted required that the
internal process be halted until the GPSSBC had pronounced on the matter.
[29] The chairperson, having heard the submissions by both parties, postponed the
disciplinary hearing to 26 March 2026 and extended the applicant’s suspension to
the same date. The applicant objected to the extension, contending that the
chairperson lacked the authority to extend his suspension. The chairperson
nevertheless maintained his ruling and subsequently issued a written decision on
24 February 2026 confirming both the postponement and the extension of the
suspension. It was this ruling that prompted the applicant to launch the present
application.
Analysis
The substantive relief
[30] The applicant seeks two primary forms of relief. First, he seeks a declaration that
the first respondent lacks legal authority, whether under clause 2.7.2(c) of the SMS
Handbook or under the Public Service Precautionary Suspensions Guide issued
by the Department of Public Service and Administration, to impose or extend any
precautionary suspension against him on behalf of the second respondent.
[31] Second, the applicant seeks mandatory relief directing the second respondent to
initiate a process under section 188A(11) of the Labour Relations Act, to convene
a properly constituted inquiry in terms of that provision, and to ensure that the
applicant is afforded participation in those proceedings. Interwoven with these
orders is an order to interdict the disciplinary hearing scheduled for 26 March
2026.
13
[32] The second respondent raised two preliminary points – urgency and non-joinder of
the DCS. Having considered the issues, I was satisfied that the application should
be entertained on an urgent basis. The non- joiner is highly technical and
unnecessary and falls to be dismissed. The DCS is before Court represented by
the second respondent, who is cited in his official capacity. The point was not even
pursued during the hearing.
[33] I proceed to consider the merits of the application. In doing so, I address the
issues in two discrete parts – first, the issue of suspension; and second, the
section 188A(11) process, which deals with the conversion of the disciplinary
hearing into a section 188A(11) process and the consequent interdict of the
disciplinary hearing scheduled for 26 March 2026.
Suspension
[34] The applicant contends that the application is brought in terms of section 77(3)
read with section 77A of the Basic Conditions of Employment Act 12 (BCEA). He
characterises his claim as one grounded in “the rule of law” and his “contractual
entitlement” to render his services as the Regional Commissioner. He argues that
his claim do es not concern the fairness of his suspension. The applicant then
submits that this Court has jurisdiction and powers to determine “a legality review”
in terms of section 157(1) and (2) read with section 158(1)(h) of the LRA. Section
158(1)(h) deals with legality reviews, and there is no review application before this
Court.
[35] It is trite that this Court’s jurisdiction is specifically circumscribed by the legislation
and that it does not enjoy general jurisdiction and general supervisory authority
over all employment -related matters.13 Certain disputes must be referred to the
CCMA or relevant bargaining council. Accordingly, the question is whether, on the
pleadings, the applicant has established a proper jurisdictional basis for this Court
12 Act 75 of 1997.
12 Act 75 of 1997.
13 See: Baloyi v Public Protector & others [2020] ZACC 27; (2021) 42 ILJ 961 (CC) ; Passenger Rail
Agency of South Africa & others v Ngoye & others [2024] ZALAC 18; (2024) 45 ILJ 1228 (LAC); Cibane &
another v Premier, Province of KwaZulu-Natal & another [2025] ZALAC 44; (2025) 46 ILJ 2587 (LAC).
14
to issue the two declaratory orders – first, that the cha irperson has no authority to
suspend in terms of clause 2.7.2(c) 14 of the SMS Handbook, and second, that the
chairperson has no authority to extend or cause to extend the suspension in terms
of the Public Service Precautionary Suspensions Guide (Department of Public
Service and Administration) dated 4 December 2025. The Public Service
Precautionary Suspension Guide is exactly that, a guideline issued by the Minister.
Any claim grounded on this document is certainly not one based on a breach of
contract.
[36] The pleadings fail to disclose any statutory or contractual source conferring
jurisdiction on this Court to determine these questions or to issue declaratory relief
of the kind sought. On this basis alone, the application must fail for want of
jurisdiction.
[37] Even assuming, for argument’s sake, that this Court were vested with jurisdiction,
there is no practical purpose to be served by issuing the declaratory relief sought.
The SMS Handbook already regulates the issue of precautionary suspension and
expressly provides that, where a suspension exceeds 60 days, it is the
chairperson of the disciplinary hearing who must determine whether any further
postponement is warranted. The applicant therefore seeks a declaration that
merely restates what the regulatory framework already stipulates. During
argument, Mr Mataka, on behalf of the applicant, correctl y conceded that the
second respondent had the authority to impose the suspension and that the
chairperson acted within the powers afforded by clause 2.7.2(c) in extending it.
[38] The applicant ’s complaint does not concern the review of the chairperson’s
decision – whether it was reasonable, irrational or ot herwise irregular. Rather, h is
challenge is against the very source of the chairperson’s authority. Accordingly,
the application for declaratory relief in respect of the suspension cannot be
sustained and falls to be dismissed.
sustained and falls to be dismissed.
14 This clause provides that: “If a member is suspended or transferred as a precautionary measure, the
employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on
any further postponement”.
15
Section 188A(11)
[39] In opposing this relief, the s econd respondent submits that the orders sought are
incompetent and that the applicant has failed to demonstrate that he made a
disclosure in good faith, as required under the PDA. It is further contended that the
applicant will not suffer any occupational detriment should the internal disciplinary
hearing proceed, and that the interdict sought in respect of the hearing scheduled
for 26 March 2026 cannot be sustained independently of the section 188A(11)
relief.
[40] The record reflects that the applicant was initially suspended in May 2025 on
allegations relating to procurement irregularities. It is common cause that he raised
concerns regarding these alleged irregularities and that these concerns amounted
to a disclosure, even though the disclosure itself is not included in the papers
before this Court. Thereafter, he faced two further suspensions arising from a
variety of allegations. The conduct leading to the two further suspensions and the
charges against the appl icant occurred during the time he was on the May 2025
suspension and continued into the time when he was on the 27 August 2025
suspension.
[41] For present purposes, it is not necessary for this Court to consider whether a
nexus exists between each set of charges brought against the applicant. Further, it
is not for the Court to decide whether the applicant has made a disclosure in good
faith and whether the internal disciplinary hearing must be converted to section
188A(11) proceedings. That is an issue for the GPSSBC.
[42] Section 188A(11) provides:
‘Despite subsection (1), if an employee alleges in good faith that the holding of
an inquiry contravenes the Protected Disclosures Act, 2000 (Act 26 of 2000), that
employee or the employer may require that an inquiry be conducted in terms of
this section into allegations by the employer into the conduct or capacity of the
employee.’
16
[43] This Court’s earlier decision i n Nxele I clarified the effect of such a request or
invocation of section 188A(11) . There, Nkutha -Nkontwana J (as she then was),
held that:
‘In my view, the only proper construction to be accorded to s 188A( 11) is that,
where an employee or employer requires a pre -dismissal arbitration in terms of s
188A, that request is imperious. This construction gives effect to the purpose of
the legislature which is to provide a degree of protection to employees who make
protected disclosures and to avoid parallel litigation, typified in the present case.
Basically, following a s 188A(11) request by the employee, the employer is
enjoined to institute a pre- dismissal arbitration in terms of s 188A. The internal
disciplinary enquiry that would have commenced and is pending must terminate.
It must be emphasised that, since it is the employer’s managerial prerogative to
exercise discipline that gets delegated in terms of a s 188A process, the
employer remains responsible for referring the request to the relevant dispute-
resolution institution and attending to the payment for the services of that
institution.’
15
[44] The issue was again examined by this Court in Mtweta v Transnet Freight Rail and
Operating Division of Transnet (SOC) Limited 16 (Mtweta), where Tlhohlalemaje J,
having referred to Nxele I above and the judgment of Moshoan a J in Mamodupi v
Property Practitioners Regulatory Authority and Another17, held that:
‘... it was posited that once a section 188A(11) request was made, the employer
was enjoined to institute a pre -dismissal in terms of 188A, and that the ongoing
internal disciplinary enquiry must be halted…
It is however my view that the position in Nxele was properly qualified in
Mamodupi v Property Practitioners Regulatory Authority and Another [2023]
ZALCJHB 19 (13 February 2023). The Court as in Nxele , correctly identified the
purpose of section 188A(11) as being a buffer to a continuation of an
purpose of section 188A(11) as being a buffer to a continuation of an
occupational detriment equivalent to an interdict necessitating a halt of the
15 Nxele I at paras 31 – 32.
16 [2024] ZALCJHB 17.
17 [2023] ZALCJHB 19.
17
internal proceedings. The Court’s proposition however was that from a reading of
section 188A(11), a mere allegation that a protected disclosure was made was
not on its own sufficient. I agree with this proposition that a contravention must
not only be alleged, but that it must prima facie factually exist. Furthermore, I
agree that an employee relying on section 188A(11), must have demonstrated
that the contravention occurred, that a protected disclosure as defined in the
PDA was made, and further demonstrate as to when, where, and to whom the
disclosure was made. Equally so, and as submitted on behalf of Transnet, a
causal link between the occupational detriment and the disclosure must have
been established.
A further question however that arises is whether it is for the Chairperson at the
enquiry to make a finding that there is a prima facie case of a protected
disclosure, or whether that determination must be made by the CCMA or the
Bargaining Council when the matter is referred. In other words, the question is
whether the Chairperson can simply halt the proceedings upon the allegation
being made without more.
The answer is to be found in section 4(1)(a) of the PDA as already pointed out
elsewhere in this judgment. This therefore implies that a chairperson of a
disciplinary enquiry, is not required to enquire into the merits of the alleged
protected disclosure, or whether the employee is subjected to an occupational
detriment. The Chairperson is indeed obliged to halt the proceedings, but on
condition that the employee has made the allegation before the CCMA or
Bargaining Council or has already approached the Court for relief as
contemplated in section 4(1)(a) or section 4(2)(b) of the PDA .’18 (Emphasis
added)
[45] On what the employee’s dut y is in invoking section 188A(11), the LAC has now
provided authoritative clarification in Nxele IV , confirming that an employee
invoking section 188A( 11) bears no duty to prove that the internal process
invoking section 188A( 11) bears no duty to prove that the internal process
contravenes the P DA; it is sufficient that the allegation is made in good faith. The
threshold is therefore a lower one than suggested in Mtweta . The employee must
18 Mtweta at paras 22 – 26.
18
demonstrate only that the allegation is bona fide, not that the occupational
detriment has in fact occurred.
[46] Whether the jurisdictional requirements for a section 188A(11) inquiry have been
met is a matter reserved for the CCMA or bargaining council to determine upon
receipt of the referral, rather than for the employer or the chairperson of the
internal hearing. This principle is now trite.
[47] In Matlala v Foskor Proprietary Limited and Others
19 (Matlala), this Court was
confronted with an application to interdict the disciplinary hearing and to compel
the disciplinary hearing to be converted into an inquiry by an arbitrator under
section 188A(11), alternatively to s tay the disciplinary proceedings pending the
CCMA’s decision on the section 188A(11) request . The Court granted the
alternative relief, holding that once a section 188A(11) request is placed before the
CCMA or a bargaining council, it was for the appointed arbitrator to decide whether
the jurisdictional requirements have been satisfied and that the Court should not
usurp those powers.20
[48] In its more recent decision handed down on 16 March 2026, the LAC in Industrial
Development Corporation of South Africa v Modika 21 (Modika) affirmed the above
principle and explained that the administrative act of enrolling a section 188A(11)
matter constitutes a jurisdictional finding or decision by that body and that contrary
to Matlala, it is not the appointed arbitrator who determines whether the
jurisdictional requirements for the inquiry have been met.22 The LAC continued:
‘An administrative body like the CCMA does not finally determine its jurisdictional
powers. It does so for the sake of convenience. Its decision on that is not binding
on a Court. This statement of law does not suggest that the administrative body
cannot on its own establish whether it possesses jurisdictional powers to act. The
foundational principle of administrative law is that administrative bodies created
19 [2025) ZALCJHB 478.
19 [2025) ZALCJHB 478.
20 Ibid at para 50.
21 Case No. A2026-037072 dated 16 March 2026.
22 Ibid at para 37.
19
by statutes should not exceed powers granted to them. Those bodies are entitled
to make an initial determination regarding their authority to exercise a statutory
power. Always, that initial determination, will be subject to judicial review.
Accordingly, a Court must wait for the administrative body to make the initial
determination. If the determination is on the objective facts wrong, a Court of law
can always set aside that initial determination on review. Therefore, a Court of
law, absent any judicial review, is not empowered to exercise the initial
determination on behalf of the administrative body. When the Labour Court
concluded that the jurisdictional requirements to accept a section 188A(11)
referral existed, it in error usurped the powers of the CCMA. The jurisdictional
facts alluded to in Mamodupi must be established by the CCMA since it is a body
statutorily tasked with the power to accept the referral.’
[49] In summary, a request made in terms of section 188A(11) operates to halt or
pause any internal disciplinary proceedings , at least temporarily, pending the
determination by the CCMA or the relevant bargaining council. Should that body
accept and enroll the matter, the internal process falls away and the dispute
proceeds as an inquiry by an arbitrator in terms of section 188A(11) . The
administrative decision by the administrative body ( per the binding authority of
Modika and not the appointed arbitrator as per Matlala) to accept (or reject) the
referral constitutes a jurisdictional ruling by the CCMA or bargaining council, which
may be reviewed on objectively justifiable grounds . For these reasons, this Court
should not interfere with or anticipate the administrative body’s decision on the
employee’s request or referral.
[50] Turning to the present matter, the GPSSBC had not yet pronounced on the
applicant’s section 188A(11) request at the time of the hearing, by either enrolling
applicant’s section 188A(11) request at the time of the hearing, by either enrolling
or rejecting the request . At the time of the hearing, the GPSSBC had only issued
an invoice signaling receipt and acknowledgment of the request . Whilst this
development suggests that the request is processed, it would be inappropriate for
this Court to speculate or to pre-empt the GPSSBC’s decision. For the purpose of
20
the application, the GPSSBC has not made the jurisdictional determination and it
should be allowed space to do so.
[51] Against this backdrop, the applicant seeks orders directing the second respondent
to convert the disciplinary hearing into section 188A(11) inquiry , compelling him to
convene the inquiry and to allow and facilitate the applicant’s participation in the
inquiry. This relief is misconceived because that is a matter within the competence
of the GPSSBC, not this Court. This Court is not empowered to issue this relief.
[52] The applicant further seeks to interdict the disciplinary hearing s cheduled for 26
March 2026. In light of the principles outlined above, that relief is unnecessary. As
already stated, o nce a section 188A(11) referral is placed before the CCMA or
bargaining council, the internal process is, at minimum, paused pending the CCMA
or bargaining council’s decision. If the matter is enrolled, the internal process falls
away in favour of the inquiry by arbitrator. If it is not enrolled, the applicant would
have a c hoice whether to challenge that decision or to subject himself to what he
considers an occupational detriment. The application for a final interdictory relief is
therefore premature, unsustainable and falls to be dismissed . There is no
application for interim interdictory relief.
Costs
[53] The question of costs falls within the discretion of this Court in terms of section 162
of the LRA. The applicant’s ordeal since 2016 cannot be underestimated . In
considering an appropriate cost order, the Court is mindful of the protracted history
of litigation between the parties and the considerable personal burden this may
have placed on the applicant, who has been obliged to finance his litigation from
his own resources. By contrast, the second respondent has, over the past year
alone, suspended the applicant in May, August and November. This is not and
cannot be considered a normal working environment.
cannot be considered a normal working environment.
[54] The Court cannot ignore or disregard the applicant’s evident loss of confidence in
the internal disciplinary mechanisms of the D CS, an apprehension not without
21
foundation given the rapid succession of suspensions imposed between May and
November 2025, as well as the fact that none of the disciplinary hearings had
taken off. The record further reflects that the applicant had also been suspended in
December 2024, resulting in four suspensions within an eleven- month period. The
timing of the suspensions, particularly the suspension imposed on 27 August
2025, which followed closely upon the expiry of the previous suspension , and on
an allegation the second respondent became aware of as early as 9 July 2025 but
waited f or the expiry of the May 2025 to lapse before imposing the second,
reinforces the applicant’s loss of confidence in the internal disciplinary process.
Another factor is that the DCS simply abandoned the February 2022 disciplinary
charges after its failed appeal bid to resist the hearing being conducted under
section 188A(11).
[55] Against this background, although the applicant has not s ucceeded in the present
application, his decision to approach this Court was neither frivolous nor vexatious.
On the contrary, the application appears to have been driven by a genuine attempt
to protect and vindicate his statutory rights in circumstances where he perceived,
not unreasonably in my view, as unfair and an abuse of internal disciplinary
mechanisms, particularly given the abnormal frequency of suspensions and the
patterns of issuing multip le charge sheets at or closer to each 60-day interval.
From the proceedings of 19 February 2026, the applicant was due to be issued a
fourth set of charge sheets, in a period between the end of June 2025 and
February or March 2026. In exercising my discretion, I therefore do not believe that
an order of costs would be warranted.
[56] In the premises, the following order is made:
Order
1. The application is dismissed.
2. There is no order as to costs.
22
____________________
M. Makhura
Judge of the Labour Court of South Africa
23
Appearances:
For the Applicant: Mr R. Mataka
c/o Morathi & Mataka Attorneys
For the 2nd Respondents: Mr P. Maserumule
c/o Puke Maserumule Attorneys Inc.