THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: 2026-062742
In the matter between:
DEPARTMENT OF EDUCATION LIMPOPO Applicant
and
SHERIFF OF THE POLOKWANE
HIGH COURT AND LOWER COURTS First Respondent
MORAKA ABEL MAKGAA, N.O Second Respondent
NTWAMPE TEBOGO TOBEJANE Third Respondent
MR SIPHIWE DIMANE Fourth Respondent
EDUCATION LABOUR RELATIONS
COUNCIL Fifth Respondent
Heard: 24/03/2026
Delivered: 08/04/2026
___________________________________________________________________
JUDGMENT
___________________________________________________________________
STEENKAMP, AJ
(1) Reportable: Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
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Signature Date
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Introduction
[1] This is an application in terms of which the applicant seeks interim relief,
staying a writ of execution, pending the outcome of a review application.
[2] The application was opposed by Third Respondents.
Salient Facts
[3] On 04 June 2025, an arbitration award under case number: ELRCS2 -
24/25LP was rendered by the Second Respondent in accordance with which,
the dismissal of the Third Respondent was found to be both procedurally and
substantively unfair. The Applicant was ordered to reinstate the Third
Respondent by no later than 24 June 2025, with backpay from 1 April 2020 to
May 2025 plus the pro- rata salary for June 2025 until date of reinstatement .
The quantum amounts to R 1 559 940-30.
[4] On 13 June 2025, the Applicant instructed the Office of the State Attorney,
Polokwane to institute review proceedings in respect of the arbitration award.
[5] On 26 June 2025, the Applicant issued further correspondence to the office of
the state attorney and confirmed their previous instruction and requested that
an application to stay enforcement of the award be instituted.
[6] The Applicant corresponded the office of the State Attorney, and they were
instructed to institute a review application in order to challenge the arbitration
award. It is apposite to state that at all material times, the Applicant alleges
that they had the intention of applying for stay the execution and enforcement
of the arbitration award from such a time that the applicant became aware of
the arbitration award.
[7] The Applicant alleges that due to an “oversight”, the application for stay of
execution was not pursued.
[8] The review application was only instituted on or about 30 January 2026.
[9] On or about 18 February 2026, the First Respondent served a notice of
attachment on the offices of the Applicant. Pursuant to the aforesaid, on or
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about 20 February 2026, the Applicant instructed the office of the state
attorney to institute the current application. The Application was only initiated
on 18 March 2026.
[10] The Second Respondent raised the issue of urgency, and advanced that the
urgency in casu was self-created, and accordingly, the application should be
struck from the roll.
Urgency
[11] In determining whether an application satisfies the requirements of urgency,
the Court must consider the steps taken by the applicant and the period that
elapsed between the alleged harmful conduct and the institution of the
proceedings.
[12] Urgency is not established where it is self ‑created through an applicant’s
failure to act with the necessary expedition. This court has consistently held
that the diligence with which a litigant acts once the cause of action arises is a
material consideration in determining urgency. Unexplained or undue delay is
inimical to a claim of urgency and may be fatal to it. An applicant is therefore
required to approach the Court promptly and failing a satisfactory explanation
for any delay, the matter stands to be struck from the roll for lack of urgency.
1
[13] Furthermore, an applicant seeking urgent relief bears the onus of
demonstrating that substantial redress cannot be obtained in the ordinary
course. As affirmed in Radebe and Others v Aurum Institute
2, unreasonable
delay despite awareness of the alleged harm renders any urgency
self-created, which this Court will not entertain.
Analysis
1 National Union of Metalworkers of SA v Bumatech Calcium Aluminates (2016) 37 ILJ 2862 (LC) ;
National Police Services Union and others v National Negotiating Forum and others (1999) 20 ILJ
1081 (LC); Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd
and Another (2016) 37 ILJ 2840 (LC).
2 (2024) 45 ILJ 876 (LC) at paras 35 and 37 – 38.
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[14] As already indicated, this application was initiated on 18 March 2026 and was
enrolled to be heard on 24 March 2026. This was only four clear days
between the filing of the application and the hearing thereof. The matter thus
came before the court on an extremely urgent basis.
[15] The only rationale advanced by the Applicant on this score is internal
administrative oversight. T his explanation is flimsy and unsatisfactory. The
Applicant issued an instruction state attorney in June 2025. T hereafter
however, the Applicant did nothing to ascertain whether its instructions were
acted upon. It was only once the Sheriff attended the premises of the
Applicant during February 2026 when they realised, some 8 months later, that
this application was not instituted. The affidavits filed by the Applicant do not
demonstrate that there were any enquiries made with the office of the state
attorney at all post the correspondence of 26 June 2025.
[16] There is a point beyond which a litigant cannot escape the negligence of the
representatives, particularly in circumstances where there is no record of any
reasonable steps taken by the litigant to ensure that their instructions are
executed
3.
[17] This court is of the view that given the quantum of the award and the fact that
the Applicant is an organ of state, there was an even greater onus on the
Applicant to ensure that this matter was diligently prosecuted. Any measure
of diligence is woefully absent in casu. Accordingly, the matter stands to be
struck from the roll for lack of urgency.
[18] That being the case, the merits of the application stands over to be
determined in the ordinary course.
Conclusion and costs
3 Saloojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A); Tshivhase
Royal Council and another v Tshivhase and another; Tshivhase and another v Tshivhase and another
[1992] ZASCA 185; 1992 (4) SA 852 (AD) at 859E-F.
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[19] The extreme degree of urgency with which this matter was brought before the
court is self -created, and consequently, the application stands to be struck
from the roll.
[20] This Court is of the view that costs ought to be determined in the ordinary
course, and accordingly, the issue of costs will be reserved.
[21] In the premises, the following order is made:
Order
1. The application is struck from the roll for lack of urgency;
2. Costs are reserved.
________________________
L Steenkamp
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv. N. Sikhwivhilu
Instructed by: The State Attorney
For the Respondent: Adv. T Moyo
Instructed by: Mphela Motimele Attorneys