THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Reportable: Yes
Of interest to other judges: Yes
Revised: Yes
Case No: 2026-066392
In the matter between:
SAMWU obo SITHABILE I. MAPHUMULO Applicant
and
UMZINYATHI DISTRICT MUNICIPALITY First Respondent
MR MLUNGISI NTANZI Second Respondent
ME THOKOZANI QWABE Third Respondent
MR SIPHIWE DIMANE Fourth Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL Fifth Respondent
Heard: 25/03/2026
Delivered: 25/03/2026
Summary: Urgent application to stay implementation of disciplinary sanction
pending the issuing of a compliance order by the Bargaining Council – Labour
lacks jurisdiction to determine dispute – Application dismissed.
2
Mootness – At the time the application was heard, the sanction of dismissal
already implemented. The relief sought is moot. Application dismissed.
Jurisdiction – Labour Court lacks general jurisdiction to intervene in
disciplinary proceedings. No jurisdictional facts pleaded. Labour Court lacks
jurisdiction to determine the dispute. Application dismissed.
Practice and Procedure – The requirement of service on Respondents not
ousted by the utilisation of the Courtonline or Case lines systems. The
uploading of documents on the electronic platforms does not constitute
service.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
STEENKAMP, AJ
Introduction
[1] This is an application in terms of which the applicant seeks interim relief,
staying the implementation of a disciplinary sanction of dismissal, pending the
issue of a compliance order by the Fifth Respondent , which was brought on
an extremely urgent basis.
[2] The application was opposed by the First and Second Respondents.
Salient Facts
[3] The Applicant’s case is that a disciplinary hearing was convened on or about
04 March 2026. The Fourth Respondent, who acted as the representative of
the First Respondent , requested a postponement of the matter in order to
consult, and the postponement was granted by agreement between the
parties.
[4] The parties discussed dates for continuation of the disciplinary hearing, and
the dates of 06, 20 and 23 March 2026 were identified. The Applicant alleges
3
that her representative indicated that h e was involved in a different matter
before the First Respondent on 06 March 2026, but a postponement had been
applied for.
[5] A notice of set down for the continuation of the disciplinary proceedings on 06,
20 and 23 March 2026 was issued. The Applicant alleges that this notice was
not served on her “ personally”
1. The main thrust of the Applicant’s case
herein is that the lack of personal service of the notice of set down vitiates the
continuation of the disciplinary hearing in her absence. It was also submitted
by the Applicant’s representative at the hearing of this application that th is
perceived error has the effect of the disciplinary hearing having to be
conducted de novo.
[6] It is alleged that on some undisclosed date, the Applicant’s union
representative became aware that a postponement in his other matter was not
granted, he allegedly notified the “parties” and requested a postponement of
the disciplinary hearing. It apposite to state that the union representative did
not depose to a confirmatory affidavit . No proof the alleged “communication”,
let alone an application for postponement , was annexed to the founding
papers. The effect hereof is that the allegations in the founding affidavit on
this score constitutes inadmissible hearsay evidence.
[7] The Applicant asserts that the Presiding Officer was duty bound to render a
ruling in this regard, and no ruling indicating that a postponement was refused
was “communicated” with her. The hearing proceeded on 06 March 2026 in
absentia. There is no explanation why the Applicant did not , despite the
unavailability of her representative, attend the proceedings on 06 March 2026
to request a postponement in the prevailing circumstances. Be that as it may,
the Presiding Officer delivered his verdict on 10 March 2026. The Applicant
1 Personal service of the notice to attend disciplinary enquiry is not mandatory in accordance with
Clause 7.10 of the Collective Agreement . A number of means of service is listed in this clause,
including service by email.
4
was found guilty of gross misconduct, and the sanction meted out was one of
dismissal2.
[8] The Applicant alleges that in the absence of the notice of set down having
been served on her personally, the Second Respondent violated the terms of
the collective agreement by proceeding with the hearing in absentia. She
alleges that she reported the First Respondent’s “non-compliance” to the Fifth
Respondent for a compliance and enforcement order . It is apposite to state
that the Applicant did not disclose the date upon which she reported the
alleged violation to the First Respondent . Instead, a copy of a letter authored
by her union was simply annexed to the founding affidavit, despite no proper
reference thereto having been made in the affidavit itself
3. The court gleaned
from the letter that the complaint of non- compliance was in actual fact
authored by the Regional Organiser: KZN . It is necessary to repeat that no
confirmatory affidavit in this regard was attached to the papers.
[9] The Applicant seeks an urgent interdict, restraining the First Respondent from
implementing the disciplinary sanction, pending finalisation of the “compliance
and enforcement process” reported to the First Respondent.
[10] An answering affidavit was filed by the First and Second Respondents,
wherein it is alleged that the sanction of dismissal was implemented, and the
Applicant was paid her pro- rata remuneration to date of dismissal and
accrued leave pay on 25 March 2026.
[11] The Applicant filed no replying affidavit , and the First and Second
Respondents’ version that the sanction has been implemented must thus be
accepted.
Proceedings in this Court
2 The decision of the Presiding Officer is final and binding upon the Employer in accordance with
Clause 8.5 of the collective agreement.
3 Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2) SA
279 (T) at 324-G wherein the following was said:
279 (T) at 324-G wherein the following was said:
‘Regard being had to the function of affidavits, it is not open to an applicant or a respondent
to merely annexe to its affidavit documentation and to request the Court to have regard to it.
What is required is the identification of the portions thereof on which reliance is placed and
an indication of the case which is sought to be made out on the strength thereof.’
5
[12] The Applicant’s notice of motion in the urgent application is dated 19 March
2026, and it appears from the founding affidavit that same was deposed to on
20 March 2026.
[13] According the audit trail on the Court Online System, the electronic court file
was created on 24 March 2026 and the matter was enrolled for hearing on the
urgent roll of 25 March 2026.
[14] The Applicant filed a completely defective service affidavit , which she
deposed to, as opposed to the person who served the application on the
Respondents, being the union official. None of the prescripts of Rule 9(2)(b)
of the Rules were complied with in respect of the service affidavit.
[15] Service of the application was only effected on the Respondents on 24 March
2026. This essentially left them with a little less than 24 hours’ notice of this
application. Despite the wholly unreasonable timeframe, the First and Second
Respondent managed to file an answering affidavit on the morning of hearing.
[16] The application was heard on 25 March 2026.
Mootness
[17] As already alluded to, at the time of hearing, the sanction of dismissal was
already implemented.
[18] The appropriate relief in the circumstances is provided for in Section 191 of
the LRA.
[19] Despite the fact that the employee’s right to refer an unfair dismissal dispute
to the appropriate forum was triggered upon her dismissal being effected, the
urgent application in this court was persisted with, in circumstances where the
relief sought has become moot.
[20] The appropriate course of action in the prevailing circumstances would have
been to withdraw or abandon the application when it became known that the
employee was dismissed, but the Applicant stubbornly persevered with the
relief sought before this court.
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Jurisdiction
[21] Mr Hlongwane, appearing for the First and Second Respondents asserted
that the relief sought by the Applicant was incompetent, and the jurisdiction of
this court was not pleaded adequately in the founding papers. I pause here to
state that parties routinely make the vague statement in their founding
affidavits that this court has jurisdiction to determine the matter, which is
wholly insufficient, as the jurisdiction of this court is determined by statute. It
is incumbent upon parties to plead jurisdiction with reference to the applicable
statute to prove that this court is vested with jurisdiction.
[22] Mr Mpanza, appearing for the Applicant in turn argued that the jurisdiction of
the court in casu is derived from Section 158(1) of the LRA, and persisted with
this argument even when the difference between jurisdiction of the court and
powers of the court as contemplated in sections 157 and 158 was raised by
the court.
[23] The powers of this court are only triggered once it is established that this court
has the requisite jurisdiction. The LRA has been in existence for nearly 31
years, and one would certainly have expected parties to be acutely aware of
this requirement. Lamentably, parties still routinely plead that this court is
clothed with jurisdiction in general without any proper reference to statute
engaging same.
[24] The contemporary jurisprudence of Cibane and Another v Premier of Province
of Kwazulu-Natal
4 (‘Cibane’) the Labour Appeal Court (‘LAC’) finds application
in casu. Therein, the LAC said the following on the score of j urisdiction of this
court to intervene in incomplete disciplinary proceedings:
‘In summary: to the extent that Booysen has been interpreted to
establish a general rule, qualified only by exceptionality, that the Labour
Court has jurisdiction to intervene in uncompleted disciplinary
proceedings, this is not an interpretation that can be sustained by
proceedings, this is not an interpretation that can be sustained by
section 157(1) of the LRA. As with every matter that serves before the
4 (2025) 46 ILJ 2587 (LAC) at para 32
7
Labour Court, jurisdiction is a matter to be determined in every case by
reference to the pleadings and an enabling statutory provision, in the
form of the LRA or other jurisdiction conferring statute, that extends
jurisdiction to the Court to adjudicate the dispute disclosed by the
pleadings.’
[25] From the aforesaid, it is clear that the jurisdiction of this court is not engaged
in the present matter. T he Applicant’s reliance on Section 158(1)(a) of the
LRA on the score of jurisdiction is bad in law.
[26] Notably, in Cibane, the LAC has decisively dispelled the fiction that this court
has jurisdiction to intervene in incomplete disciplinary processes fettered only
by the requirement of “ exceptional circumstances ”. Employees seeking
interdictory relief halting ongoing disciplinary hearings routinely place reliance
on the judgment in Booysen v Minister of Safety and Security & others
5
(‘Booysen’) judgment, and with reference to Booysen, the LAC in Cibane said
the following:
‘This ruling has been interpreted to mean that the Labour Court has the
jurisdiction to interdict or otherwise intervene in incomplete disciplinary
proceedings, limited only by the consideration of exceptionality. The implication
is that the Labour Court may exercise powers over matters that, in terms of the
LRA, are to be determined by arbitration, in particular, the fairness of internal
proceedings relating to alleged misconduct or incapacity 6. (own emphasis)
And
In the absence of any statutory provision conferring jurisdiction on the Labour
Court both in respect of employer conduct alleged to be unlawful and in
employment-related matters generally, there can thus be no general rule, as
the judgment in Booysen might be construed, to the effect that the Labour
Court has jurisdiction to intervene in medias res to restrain any alleged
illegalities, irregularities or unfairness in incomplete disciplinary proceedings.
’7
5 (2011) 32 ILJ 112 (LAC); [2011] 1 BLLR 83 (LAC)
6 Ibid at para 22
’7
5 (2011) 32 ILJ 112 (LAC); [2011] 1 BLLR 83 (LAC)
6 Ibid at para 22
7 Ibid at para 27
8
[27] The provisions of the LRA and the concomitant rights of employees have not
been subverted by the LAC in Cibane. Instead, the legal position in respect of
jurisdiction of this court to intervene in incomplete disciplinary proceedings
relating to conduct or capacity has been definitively clarified. Employees
alleging that their rights have been infringed upon due to irregularities in
disciplinary proceedings ultimately have recourse to the CCMA or Bargaining
Council as procedural fairness will be determined at arbitration in those fora.
Abuse of process
[28] Despite the clear provisions of statute, and even on a misplaced application of
Booysen, parties continue to exploit the urgent court process to halt
disciplinary enquiries, which not only unduly burdens the court but also
constitutes a gross abuse of process.
[29] In George v Nyoka and Others8 (‘George’) the court said the following:
‘This application is representative of the now familiar and habitual abuse of the
urgent Court by employees, especially those who occupy senior positions in all
spheres of government, especially in the municipalities. These employees, after
being placed on prolonged periods of precautionary suspensions and when
called upon to answer to the charges of misconduct, will take all means
necessary in order to avoid the conclusion of those enquiries. When all the
strategies deployed to avoid the hearing comes to nought, the next step is to
seek sanctuary from this Court, with contrived and legally unsustainable urgent
applications, with the hope that the serious charges of misconduct will vanish.’
and further:
‘These antics are truly exhausting, not only to the court’s resources but also
because in the end, they turn out to be financially draining for the already
financially depleted municipalities or government departments and its entities.
This is particularly so since in most internal disciplinary enquiries held in all
This is particularly so since in most internal disciplinary enquiries held in all
spheres of government, legal practitioners are engaged to act as initiators or
chairpersons in those enquiries. I am not even taking into account all the other
8 [2023] 7 BLLR 654 (LC) at paras 1 and 4
9
officials who are taken away from their real work, in order to attend to these
stop-start disciplinary enquiries. These antics are an antithesis of the primary
purpose and objectives of the Labour Relations Act (LRA), primary of which is
to have labour disputes resolved expeditiously. They do not have a place either
in the workplace or in this Court, if the primary objectives of the LRA are to be
achieved.’
[30] The current application is no different. A contrived reason was invoked in an
attempt to delay or circumvent the finalisation of the internal disciplinary
process. A novel iteration of this delaying tactic was employed in casu.
[31] The trade union raised purported non-compliance with a procedural aspect of
the applicable collective agreement on discipline with the Bargaining Council
and the fact that a compliance order is sought as a means of staying rulings
and decisions of a disciplinary tribunal. This tactic is invoked for the sole
purpose of delaying finalisation of the disciplinary proceedings. This court is
then approached on an extremely urgent basis to stay the disciplinary
proceedings and prevent the implementation of sanction pending the
finalisation of the purported “compliance” issue by the Bargaining Council.
[32] The employment of this tactic is lamentable. It has the potential of
systematically eroding the value and efficacy of compliance orders in general
as same is being abused for ulterior motives.
[33] Parties who continue with this practice run the real risk of being penalised with
an adverse cost order, as the principles articulated by the Apex Court in
Zungu v Premier of the Province of Kwa- Zulu Natal and others
9 does not
shield litigants in this court from cost orders in matters that are conspicuously
frivolous and vexatious.
Conclusion and costs
[34] On the basis set out herein, the application must fail.
[35] The only remaining issue is the issue of costs.
9 (2018) 39 ILJ 523 (CC) at paras 23 – 26.
10
[36] In casu, the court seriously considered ordering the trade union to pay the
costs of this application as there was a clear abuse of process in instituting
these proceedings. That being said, the dismissal of the employee was only
effected just prior to the hearing of the matter, and the trade union appeared
to be unaware of this fact. This is the only reason why the court deems it
unfair to award the Respondents costs. If the dismissal was effected soon
after the verdict and sanction was delivered, this applicati on, albeit fatally
flawed, could have been avoided.
[37] In the premises, the following order is made:
Order
1. The application is dismissed;
2. There is no order as to costs.
________________________
L Steenkamp
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr M Mpanza
Instructed by: Union Official - SAMWU
For the Respondent: Mr Hlongwane
Instructed by: Mhlanga Attorneys