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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: 2026-059416
In the matter between:
PUBLIC SERVANTS’ ASSOCIATION OF
SOUTH AFRICA obo LUTENDO MALUSHA
Applicant
And
DEPARTMENT OF MILITARY VETERANS First Respondent
ACTING DIRECTOR-GENERAL OF THE
DEPARTMENT OF MILITARY VETERANS
Second Respondent
Heard: 20 March 2026
Delivered: 30 March 2026
JUDGMENT
HARVEY J
Introduction
(1) Reportable: Yes
(2) Of interest to other Judges: Yes
Signature Date
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[1] The applicant employee, represented by her trade union, was employed as a
Senior State Accountant by the first respondent Department in 2017. On 11
March 2026 she received a letter signed by the second respondent summarily
terminating her contract of employment.
[2] Contending that the termination was in breach of the employment contract, she
approached this court for urgent relief in the form of specific performance. The
application is brought in terms of section 77(3) read with section 77A(e) of the
Basic Conditions of Employment Act.
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[3] The Department opposed the application. It raised a point of jurisdiction,
disputed urgency, and denied that the termination was in breach of contract.
[4] The matter was heard virtually (on Teams) on 20 March 2026, as the
Johannesburg Labour Court is presently undergoing renovation.
[5] On 27 March 2026 the Court handed down the following Order:
“[1] The application is heard as one of urgency.
[2] The termination of Ms Malusha’s employment by the First Respondent on 11
March 2026 is in breach of her contract of employment.
[3] The First Respondent is directed to restore Ms Malusha to her position in
terms of the contract of employment with effect from 11 March 2026.
[4] There is no order as to costs.”
[6] These are the reasons for the Order.
Background facts
[7] The letter terminating the employee’s services is headed “Termination of your
services with the Department of Military Veterans (employer) on account of
breach of duty, cooperate ( sic) and failure to perform work.” It states that she
refused to complete her performance agreements, does not recogni se her
supervisor, and refuses to perform her duties or responsibilities. It records that
the acting Director General sought to intervene in May 2025 and in January and
1 Section 77(3) of the BCEA confers jurisdiction on this court to hear and to determine any matter
concerning a contract of employment, while section 77A(e) empowers it, in such a matter, to make a
determination that it considers reasonable, including an order for specific performance.
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March 2026, but without success. The letter concludes that , for these reasons,
the employer “has decided to terminate your employment contract and/or
services with immediate effect on receipt of this letter”.
[8] After receiving the letter, t he employee left the workplace. She returned the
following day, 12 March 2026, to speak to a shop steward to lodge an appeal,
but was informed that she was trespassing and that the SAPS would be called.
[9] The trade union launched this application on her behalf on 13 March 2026,
relying expressly on section 77(3) of the BCEA (read with section 77A(e) ). The
applicant does not rely on a cause of action under the LRA, nor does it seek
any remedy provided for in the LRA.
Jurisdiction
[10] The respondents contend that this Court lacks jurisdiction to entertain the
application on the basis that the dispute, properly construed, concerns an unfair
dismissal which must be referred to the bargaining council. In support of this
submission, reliance is placed on the decision of the Labour Appeal Court in
Passenger Rail Agency of South Africa v Ngoye.
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[11] That submission cannot be sustained. It is now well -established that the
existence of the dispute- resolution mechanisms created by the LRA does not
extinguish an employee’s right to pursue a claim arising in contract. In Baloyi v
Public Protector and Others
3 the Constitutional Court affirmed that the
character of a claim is determined by the pleadings, and that contractual
causes of action arising from employment may be pursued independently of the
LRA framework.
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[12] In Ngoye, the Labour Appeal Court followed Baloyi and proceeded on the basis
that employees are entitled to frame their claims in contract rather than under
the LRA. While Waglay JP (as he then was) expressed concern about the
proliferation of causes of action arising from dismissals and the potential for
2 Passenger Rail Agency of South Africa and Others v Ngoye and Others (JA78/21) [2024] ZALAC
2 Passenger Rail Agency of South Africa and Others v Ngoye and Others (JA78/21) [2024] ZALAC
18; (2024) 45 ILJ 1228 (LAC); [2024] 7 BLLR 706 (LAC); 2025 (2) SA 556 (LAC) (26 March 2024)
3 Baloyi v Public Protector and Others (CCT03/20) [2020] ZACC 27; 2021 (2) BCLR 101 (CC); [2021]
4 BLLR 325 (CC); (2021) 42 ILJ 961 (CC); 2022 (3) SA 321 (CC) (4 December 2020)
4 Baloyi (note 3 above) at paras 38-48.
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incoherence in the law, 5 he accepted that the Court was bound by Baloyi.
Ngoye is therefore not authority for the proposition that dismissal -related
contractual claims constitute an impermissible circumvention of the LRA.
[13] What Ngoye does emphasise is that the remedy of specific performance in
employment matters is not automatic. The Court cautioned that the LRA
provides a carefully calibrated system for resolving dismissal disputes, and that
where a contractual claim is pursued, the grant of specific performance remains
subject to the Court’s discretion.
6 In Ngoye, that discretion was exercised
against granting reinstatement.
[14] In the present matter, the applicant has elected to pursue a claim for breach of
contract. This Court is required to determine that claim as pleaded. The
respondents’ challenge to jurisdiction is rejected.
Urgency
[15] The applicant in the founding affidavit submits that the matter is urgent because
the contract is binding and the employer ’s violation thereof is void ab initio. In
argument it was further contended that specific performance as a remedy loses
its efficacy if not granted urgently and that the present harm to the employee –
which encompasses loss of livelihood and reputational damage - is irreparable
if left to proceedings brought in the ordinary course.
[16] The respondents contend that the application is not urgent because loss of
income does not justify urgent intervention, and because the employee has
adequate available remedies including an appeal or an unfair dismissal referral.
[17] The primary consideration in determining whether a matter should be heard as
one of urgency is whether substantial redress may be obtained in the normal
course.
7 The Court will also consider whether, in the interests of justice, other
factors may preclude an urgent hearing (such as culpable delay in approaching
5 Ngoye (note 2 above) at paras 25-28.
5 Ngoye (note 2 above) at paras 25-28.
6 See also the discussion in Mahonono v National Heritage Council and another (2022) 43 ILJ 2335
(LC) at paras 37-41.
7 O’Connor v Lexis Nexis (Pty) Ltd (P18/24) [2024] ZALCPE 11; (2024) 45 ILJ 1287 at [28]. See also
Maphalle v National Heritage Council & Others (2023) 44 ILJ 579 (LC) at [18]; Vumatel (Pty) Ltd v
Majra & Others (2018) 39 ILJ 2771 (LC) at [8]; Association of Mineworkers & Construction Union &
Others v Northam Platinum Ltd & Another (2016) 37 ILJ 2840 (LC) at [21]; East Rock Trading 7 (Pty)
Ltd & another v Eagle Valley Granite (Pty) Ltd & others [2012] JOL 28244 (GSJ) at [6].
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the court, procedural prejudice to the respondent, or prejudice to the
administration of justice).
[18] The question concerning whether the applicant may obtain substantial redress
at a hearing in due course must be answered with reference to the claim before
the court, being one for specific performance.
[19] In Mahonono v National Heritage Council and another
8 Lagrange J dealt with
urgency in the context of claim for specific performance where there was an
alleged breach of contract and held as follows:
‘…Of course it also must not be forgotten that an order of specific performance
for a material breach of contract is a remedy available to a party to a contract,
who is not obliged to simply sue for damages. When applied to an unlawful
termination of employment, it requires the restoration of the actual employment
relationship to what it was prior to the breach. The value of this remedy is
naturally diluted if it is not sought as a matter of urgency. The timely availability
of an order of specific performance as a remedy cannot be equated, except
superficially, to an order of reinstatement under the LRA, which must be given
effect to if the prerequisites of s 193(2) are met, even years after the dismissal.’
[20] The employee’s contract was terminated with immediate effect, based on
allegations which carry reputational consequences , and with a resultant loss of
livelihood. The applicant acted with expedition, launching this application within
two days of the termination. In these circumstances, I am satisfied that the
applicant will not obtain substantial redress in due course, and that the matter
should be heard on an urgent basis.
Was there a breach of contract?
[21] The applicant contends that the summary termination of her contract of
employment was in breach of its terms. The respondents deny that the
contractual provision relied upon finds application.
[22] The provision in question is contained in a collective agreement known as
[22] The provision in question is contained in a collective agreement known as
Resolution 1 of 2003 (“the Agreement”), concluded under the auspices of the
8 Mahonono v National Heritage Council and another (note 6 above) at [24] as well as Ngubeni v
National Youth Development Agency and another (2014) 35 ILJ 1356 (LC) and Letsholonyane v
Minister of Human Settlements and Another (J616/23) [2023] ZALCJHB 147; [2023] 8 BLLR 796 (LC);
(2023) 44 ILJ 1740 (LC).
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Public Sector Coordinating Bargaining Council. In terms of section 23 of the
LRA, the Agreement forms part of the employee’s contract of employment.
[23] The Agreement prescribes procedures to be followed in cases of alleged
misconduct before sanctions, including dismissal, may be imposed. These
include the convening of a formal hearing on notice to the employee, the
opportunity to be represented and heard, the right to make submissions in
mitigation prior to sanction, and a right of appeal.
[24] The applicant contends that the employer terminated the employee’s
employment on account of allegations of misconduct without following any of
those procedures, without affording her an opportunity to respond to the
allegations, and without a right of appeal.
[25] The respondents deny this. They assert that the termination was effected for
reasons of “ performance and incompatibility ”, whereas the Agreement
regulates disciplinary action for misconduct.
[26] That submission cannot be sustained. The termination letter itself attributes the
termination to the employee’s conduct , in particular her refusal to complete
performance agreements, refusal to recognise a supervisor, and refusal to
perform duties or responsibilities. Those are allegations of misconduct,
whatever label the respondents now seek to attach to them. In those
circumstances, I am persuaded that the procedures prescribed by the
Agreement applied.
[27] It is undisputed that these procedures were not followed. I am accordingly
satisfied that the termination was effected in breach of the terms of the
employee’s contract of employment.
Is an order of specific performance appropriate in this case?
[28] Where a party establishes a breach of contract, specific performance (in this
case, an order restoring the employment contract/relationship) is an available
remedy. The grant of such relief, however, does not follow as a matter of
course. It remains a matter for the Court’s discretion, to be exercised judicially
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and with due regard to all the relevant circumstances. 9 As the Labour Appeal
Court emphasised in Passenger Rail Agency of South Africa v Ngoye, 10 even
where a dismissal is impugned as a breach of contract, specific performance in
the form of reinstatement is not automatic.
[29] The discretion is informed by considerations of fairness, practicality, and justice
between the parties. Specific performance will ordinarily be granted unless
there are sound reasons for refusing it, such as where its enforcement would
be inequitable, impracticable, or would give rise to consequences that are
unconscionable in the circumstances. In the employment context, courts are
cautious to ensure that the remedy does not compel the continuation of a
relationship that has become untenable or incapable of performance, but
equally they will not permit an employer to disregard binding contractual
constraints on termination.
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[30] In exercising that discretion, regard must be had to the nature of the contractual
right asserted, the consequences of compelling continued performance, and
whether the employment relationship remains capable of continuation. Where
the breach consists in the failure to comply with a prescribed pre- termination
process, the contractual limitation on the employer’s power to terminate is
directed at regulating how and when that power may be exercised. If the
contract is terminated in disregard of that limitation, the appropriate remedy
may, in a proper case, be to restore the parties to the position they occupied
before the breach, so that the agreed process may take its course.
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[31] In the present matter, the breach is fundamental: the employer terminated the
relationship summarily without any regard to the prescribed process mandated
by the Agreement. The application was brought with expedition, at a stage
where the employment relationship has not yet irretrievably broken down.
There is no suggestion on the papers that continued employment pending
There is no suggestion on the papers that continued employment pending
9 Mahonono (note 8 above) at 37-38; National Union of Textile Workers v Stag Packings (Pty) Ltd &
another (1982) 3 ILJ 285 (T)
10 Note 2 above.
11 See National Union of Textile Workers v Stag Packings (Pty) Ltd & another (note 9 above) with
reference to Haynes v King Williamstown Municipality 1951 (2) SA 371 (A) at 378 and 379.
12 See Mahonono (note 8 above) at [39] – [41] and the authorities cited there; Letsholonyane v
Minister of Human Settlements and Another (note 8 above).
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compliance with the agreed procedures would be impracticable or untenable, or
that the employer would be unable to follow the mandated procedures going
forward.
[32] The relief sought is directed at restoring the contract , and the parties may then
proceed in accordance with the contractual terms. Having regard to the time -
sensitive nature of the right asserted, the inadequacy of delayed remedies, and
the absence of countervailing considerations , I am satisfied that this is an
appropriate case in which to exercise the Court’s discretion in favour of specific
performance. The Order is framed in terms that give effect to the substance of
the relief sought, namely the restoration of the employment relationship,
expressed in contractual terms consistent with the cause of action before the
Court.
Costs
[33] This Court in Mahonono and Letsholonyane awarded costs against the
employer in comparable circumstances. However, in the exercise of my
discretion in accordance with the requirements of law and fairness, I consider
that, although the applicant was compelled to approach the Court to enforce
her contractual rights, my order restores an ongoing employment relationship
between the parties. In those circumstances, a costs order may undermine
rather than support the continuation of that relationship. The interests of
fairness are therefore best served by making no order as to costs.
Conclusion
[34] It is for the above reasons that the Order reproduced in paragraph [5] of this
Judgment was issued on 27 March 2026.
_______________________
SJ Harvey
Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Mr Mphahlele, Union official
For the Respondents: Mr Sibanyoni instructed by the State Attorney, Pretoria