THE LABOUR APPEAL COURT OF SOUTH AFRICA, GQEBERHA
Case no: PA09/25
In the matter between:
EDGRAY DISTRIBUTORS (PTY) LTD
t/a JUMBO CLOTHING Appellant
and
SOUTH AFRICAN COMMERCIAL CATERING
AND ALLIED WORKERS UNION First Respondent
EMPLOYEES WHOSE NAMES ARE LISTED
ON ANNEXURE “A” Second Respondent
Heard: 02 April 2026
Delivered: 14 April 2026
Coram: DJAJE AJA; COLLIS AJA and MOSHOANA AJA
JUDGMENT
MOSHOANA, AJA
(1) Reportable No
(2) Of interest to other Judges: Yes
(3) Revised
____________ ______________
Signature Date
2
Introduction
[1] One of the primary purposes of the Labour Relations Act1 (LRA) is to promote
effective resolution of labour disputes. Proc rastinating resolution of labour
disputes is not only inimical to effective resolution of labour disputes but also
defeats the constitutional project anticipated in section 23 of the Constitution
for the Republic of South Africa, 1996 2. That said, t his is an appeal against
the order of the Labour Court delivered on 13 September 2024, in terms of
which, the Labour Court dismissed an application to strike out allegations in a
statement of case with no order as to costs. The appeal is with the leave of
this Court granted on 06 May 2025. The respondents oppose the appeal.
[2] It bears mentioning at this embryonic stage that the archaic main dispute –
the unfair dismissal claim - between the parties pends the decision of the
Labour Court in due course. One of the crucial questions to be answered in
this appeal is whether the impugned order of the Labour Court of dismissing
the interlocutory application to strike out is appealable or not. This being the
question sharply raised by the respondents. If this Court finds that the order is
not appealable, such may be dispositive of the present appeal.
Background facts pertinent to the present appeal
[3] On 12 August 2020, the appellant, Edgray Distributors t/a Jumbo Clothing
dismissed about 68 of its employees for reasons related to its operational
requirements. The South African Commercial Catering and Allied Workers
Union (SACCAWU), hereafter the trade union, referred for conciliation a
dispute alleging unfairness of the dismissal of its member employees. After
conciliation failed to resolve the dispute, the unresolved dismissal dispute was
referred to the Labour Court for adjudication.
1 Act 66 of 1995, as amended.
2 See Shoprite Checkers (Pty) Ltd v CCMA [2009] ZASCA 24 para 34, wherein it was stated that the
philosophical underpinning of the entire scheme of the LRA is easy access to dispute resolution and
of its clear intentions is the speedy outcome of disciplinary processes. See also Billiton Aluminum SA
Ltd t/a Hillside Aluminum v Khanyile and others (2010) 31 ILJ 273 (CC) where the Court was also
critical of the systematic delay of resolution of labour disputes.
3
[4] The trade union alleged that the dismissal was automatically unfair within the
contemplation of section 187(1)(c) of the LRA. Additionally, an order was
sought declaring that the dismissal was substantively unfair. In due course,
the trade union amended its statement of case. In claim 2, set out i n the
amended statement of case, it was alleged that the dismissal was, plinthed on
several grounds, not for a fair reason. Some of the grounds seeking to
support an allegation that the dismissal was not for a fair reason included the
following: (a) lack of transparency during the retrenchment process; (b) failure
to consult in good faith and non- disclosure of material information for
consultation process; (c) refusal to consult in good faith on the issue of
severance pay; and (d) failure to consult properly within the contemplation of
section 189 of the LRA.
[5] The trade union specifically sought a declaration that the dismissals are
substantively unfair. The primary remedy of reinstatement was sought , as an
alternative remedy, compensation was sought. In responding to the case
made by the trade union in its amended statement of case, the appellant
raised a point in limine (preliminary point) and suggested that procedural
challenges were impermissibly raised in the amended statement of case. The
appellant prayed in the following manner:
‘5. Accordingly, the respondent [appellant before us] prays for an order
striking out all procedural issues raised by the applicants [respondents
before us] and in particular striking out clause 30.11(C) of the
statement of case, with costs. ‘
(Own emphasis)
[6] In clause 30.11(C), the trade union alleged the following as part of the
grounds in support of the allegations of lack of a fair reason for the dismissal:
’30.11C The respondents failed and/or refused to consult properly as
contemplated by section 189 of the LRA and, more particularly, in
good faith and by disclosing material and relevant information for the
good faith and by disclosing material and relevant information for the
purposes of the consultation process thus resulting in a woefully
4
inadequate and tainted process thus rendering the applicant
employees’ dismissals substantively unfair.
(Own emphasis)
[7] The “striking out” prayer was enrolled for hearing as a preliminary point, in
terms of the rules of the Labour Court. After hearing the parties, the Labour
Court made the impugned order. Dissatisfied with the impugned order, the
present appeal was launched.
Judgment of the Labour Court
[8] Before dismissing the order prayed for, the Labour Court eruditely stated the
following:
‘[8] The defendant provided no authority for its argument that the plaintiffs
may not rely on alleged procedural irregularities in alleging that their
dismissal for operational reasons was substantively unfair . I could find
no reason for not following the judgments of the LAC in which it was
found that procedural irregularities during a consultation may be relied
upon when allegations of substantive unfairness of dismissals for
operational requirements are made. The defendant provided no valid
reasons why the principle should not apply to dismissals for
operational requirements that are governed by section 189A of the
LRA.’
(Own emphasis)
[9] This Court fully agrees with the sentiments expressed by the Labour Court.
This Court in Woolworths (Pty) Ltd v SACCAWU and others 3 stated the
following:
‘[22] The distinction between procedural and substantive fairness lies close
together. It is well -known that procedural irregularities may result in
substantive unfairness.’
(Own emphasis)
3 (2018) 39 ILJ 222 (LAC) at para 22.
5
[10] It is indeed correct that in a case of dismissal for operational requirements,
issues of procedure and substance may be inextricably intertwined 4. There is
nothing to prevent a pleader to allege any procedural irregularities – this is
known as facta probantia (subsidiary facts, evidence to prove the primary
material facts), to prove substantive unfairness as facta probanda (essential
material facts to establish a cause of action or defence). When the statement
of case is viewed holistically, the case alleged by the trade union is primarily
that of automatically unfair dismissal alternatively a substantively unfair one.
[11] No claim of procedural unfairness of the dismissal is made by the trade union.
What section 189A(18) of the LRA prevents the Labour Court to adjudicate in
a section 191 referral instance is the procedural unfairness as a distinct leg of
unfairness contemplated in section 188(2) of the LRA . In terms of the current
LRA, 1995, there is a clear bifurcation bet ween procedural and substantive
unfairness. A procedural unfairness arises if the dismissal is effected without
following a fair procedure, whilst a substantive unfairness arises if there is no
fair reason for the dismissal. The trade union did not in its pleadings ,
holistically viewed, bring a procedural unfairness as a dis tinct and actionable
cause of action. It is correct that the Constitutional Court in its judgment of
Regenesys Management (Pty) Ltd v Ilunga and Others5 confirmed that there
is no distinction between procedural irregularities and procedural unfairness.
However, the trade union is not claiming any relief for procedural unfairness,
whether by the name procedural irregularities or not.
[12] The preliminary point raised by the appellant was directed to a pleading and
nothing more. It is a type of challenge that is directed to a pleading, and it is
procedural in nature and effect . Thus, the guiding document in dealing with
procedural in nature and effect . Thus, the guiding document in dealing with
such a challenge is the impugned pleading or the procedural allegations made
in it. In action proceedings, a pleading serves to set out the issues to be
determined at the trial. It is not expected of a pleader to plead evidence. Thus,
at the trial of an action, evidence in support of the pleaded allegations is
4 See: NUMSA obo members and others v Bell Equipment Co SA (Pty) Ltd (2011) 32 ILJ 382 (LC)
and Buthelezi v Municipal Demarcation Board (2004) 25 ILJ 2317 (LAC).
5 [2024] 8 BLLR 777 (CC).
6
required – facta probantia. The issue whether the Labour Court lacks or
possesses jurisdiction was not raised by the appellant. All what the appellant
raised was the relevance of the allegations to the pleaded cause of action. In
considering relevance, it was not required of the Labour Court to determine
whether it has the necessary jurisdiction to determine a claim for procedural
unfairness. It was not further necessary for the Labour Court to even consider
whether the provisions of section 189A(18) could be successfully raised. As it
shall be demonstrated later in this judgment, there is no bar for the appellant
at the trial of the action to object to any evidence or case seeking to prove the
unpleaded case of procedural unfairness. For that reason, it is unnecessary
for this Court to resolve the question whether the Constitutional Court in
Regenesys has or has not overruled Steenkamp and others v Edcon Limited
6.
It will be purely academic for this Court to resolve that question.
Appealability of the order
[13] It is rested law that an appeal lies against the order and not the reasons for
the order. The order to be attacked on appeal is that of dismissing the strike
out application. Indubitably, the order is interlocutory in nature and effect.
Section 166(1) of the LRA specifically provides that an appeal lies against the
final judgment and final order of the Labour Court. Accordingly, statutorily, no
appeal should lie against an order that is not final in nature and effect
7.
[14] The High Court in Pretoria High School for Girls: School Governing Body v
The Gauteng Department of Education and six others 8 confirmed that finality
contemplated in matters of this nature, is one that is dispositive of any issue
or portion of the main action. In the present instance, the non-striking out does
not dispose of any portion of the main action – the unfair dismissal claim.
Recently the Supreme Court of Appeal (SCA) in Taljaard and Another v Land
Recently the Supreme Court of Appeal (SCA) in Taljaard and Another v Land
6 (2019) 40 ILJ 1731 (CC). (Steenkamp II)
7 See: Pretoria High School for Girls: School Governing Body v The Gauteng Department of
Education and six others [2026] 1 All SA 547 (GP).
8 [2026] 1 All SA 547 (GP)
7
and Agricultural Development Bank of South Africa and Others 9, reverberated
the law in the following terms:
‘[31] Accordingly, the first step in any appeal is to decide appealability.
[43] Upon careful consideration of the relevant circumstances, it is
manifest that the order made in the interim application does not satisfy
the established criteria for appealability as articulated in the
longstanding principles originating from the Zweni judgment.
Moreover, there is no justification for concluding that the interests of
justice necessitate treating the impugned order as one that is
appealable. The result is that the second jurisdictional fact necessary
for this Court to assume jurisdiction is not present. Consequently, this
Court lacks jurisdiction to hear the appeal. In the light of the foregoing,
the appeal cannot proceed and must accordingly be struck from the
roll.
(Own emphasis)
[15] This Court is in full agreement with the sentiments expressed above.
However, this Court shall not opt for the stern approach of striking the appeal
from the roll and shall , for the sake of convenience, depart from the
assumption that the order is appeal able. Unlike the SCA, in terms of section
167(1) of the LRA, the LAC is also a Court of equity. Section 1(d)(iv) of the
LRA promotes effective resolution of labour disputes. To my mind, striking the
appeal from the roll is not consistent with the effective resolution of labour
disputes and most importantly with the interests of justice. In my view though,
an appropriate order to make, in a situation where a court lacks jurisdiction, is
9 (161/2025) ZASCA 29 (17 March 2026) at paras 31 and 43.
8
to dismiss a matter for want of jurisdiction 10. Absence of jurisdictional facts or
requirements affects the exercise of power, in a sense of lack of authority11.
[16] Nevertheless, nothing much turns on this point. Where an order is not
appealable, to my fervently held view , the appeal court still retains jurisdiction
but may refuse to exercise it for reasons that the order it may make will be
ineffective and not yield practical results . By entertaining the question of
appealability, the Court of appeal would be exercising jurisdiction over the
matter as contemplated in section 19 of the Superior Courts Act 12 read with
section 168(3)(b)(ii) of the Constitution. Similarly, when a Court strikes the
matter off the roll due to lack of urgency , the Court would have exercised its
jurisdictional powers. The approach I take on this one is to exercise appeal
jurisdiction and dismiss the appeal on its merits.
Analysis
[17] In seeking to strike out the allegations made in the statement of case; the
appellant did not use any specific rule in the Rules Regulating the Conduct of
the Proceedings of the Labour Court (old rules). The new Labour Court R ules
came into effect on 17 July 2024. At the time when the application to strike out
was launched – 06 December 2021 – the Rules had not yet come into effect.
However, Rule 23(2) of the Uniform Rules of the High Court was available for
adoption by the Labour Court in terms of rule 11 of its old Rules. Rule 23(2)
provides as follows:
‘(2) Where any pleading contains averments which are scandalous,
vexatious, or irrelevant, the opposite party may, within the period
10 In Evans v Oregon Short R.R. Co [1915] 51 Mont 107, the following was stated: “If a court has no
jurisdiction of the subject of an action, a judgment rendered therein does not adjudicate anything. It
does not bind the parties, nor can it thereafter be made the foundation of any right. It is a mere nullity
without life or vigour. The infirmity appearing on its face, its invalidity can be assailed on appeal or by
motion to set it aside in the court which rendered it , or by objection to it when an effort is made to use
it as evidence in any other proceedings to establish a right.”
11 See for instance Famous Idea Trading 4 (Pty) Ltd t/a Dely Road Courier Pharmacy v Government
Employees Medical Scheme and Others 2026 (4) BCLR 291 (CC) , where the Court found that where
there is no exercise of public power , a Court lacks jurisdiction to entertain a review in terms of PAJA
as well as a rule 53(1)(b) record request.
12 Act No 10 of 2013.
9
allowed for filing any subsequent pleading, apply for the striking out of
the aforesaid matter…
(2)(b) The court shall not grant the application unless satisfied that the
applicant will be prejudiced in the conduct of any claim or defence if
the application is not granted.
(Own emphasis)
[18] For reasons that are not altogether clear, the new R ules having adopted Rule
23(2), word for word omitted to adopt the text in Rule 23(2)(b). This is a
lacuna which may be an oversight on the part of the drafters of the new Rules.
That notwithstanding, any Court dealing with a strike out application is to be
guided by the vista shared by the SCA in Beinash v Wixely13. The vista is that
there are two requirements that are to be satisfied before an application to
strike out a matter from a pleading or affidavit can succeed. Those
requirements are that (a) the matter sought to be struck out must indeed be
scandalous, vexatious, or irrelevant; and (b) the Court must be satisfied that if
such a matter was not struck out the party seeking a relief will be prejudiced .
It has been held that the striking out procedure is not intended to be utilised to
make technical objections which merely serve to increase costs and are of no
advantage to the litigating parties
14.
[19] Although the Labour Court did not concern itself with the presence of the two
requirements to be met for a strike out, its order dismissing the strike out
application is correct for the reasons it advanced in its support. Regard being
had to the statement of response, it is apparent that the appellant takes a
view that the allegations are irrelevant for reasons that their presence leads to
the Labour Court lacking jurisdiction in terms of section 189A(18) of the LRA.
The appellant is wrong in this regard. As stated before, given the inextricable
intertwine between substance and procedure, allegations of procedural
unfairness (irregularity) are still relevant to sustain a substantively unfair
13 1997 (3) SA 721 (SCA).
13 1997 (3) SA 721 (SCA).
14 See: Anderson and Another v Port Elizabeth Municipality 1954 (2) SA 299 (E).
10
dismissal claim for reasons related to o perational requirements, better still an
alleged automatically unfair dismissal claim.
[20] Taking into account the totality of the allegations and the case punted for by
the trade union, it can hardly be said that the appellant will be prejudiced by
the allegations not being struck out. For automatically unfair dismissal, the
trade union will be required to show credible evidence that shows the
possibility that the dismissal was for a proscribed reason
15. For a
substantively unfair dismissal, the onus 16 is on the appellant to show that the
established dismissal it effected was for a fair reason related to its operational
requirements. Therefore, there is no demonstrable or palpable prejudice to be
suffered by the appellant if the allegations are not struck out.
[21] Consequently, the appellant failed to establish the necessary two
requirements in order to succeed for a struck -out order. Accordingly, the
Labour Court did not err when it dismissed the application. It is clear to this
Court that when the statement of case is considered as a whole, seeking to
strike out the allegations is nothing but a technical manoeuvre, which
increased the costs of litigation unnecessarily and actually delayed the
effective resolution of the underlying and unresolved unfair dismissal dispute.
In my view, a cost order was warranted at the Labour Court . However, since
there is no cross -appeal on the issue of costs, this Court cannot disturb the
cost order of the Labour Court.
[22] Regarding the costs of this appeal, this Court takes a firm view that the
dictates of law and fairness17 are such that the appellant must be mulcted with
the costs of this appeal. In the first instance, the order appealed against was
interlocutory in nature and thus non-appealable, this despite this Court’s
departure point stated above. Secondly, it is clear to this Court that the
appellant was advancing technical defences, which have no place in labour
appellant was advancing technical defences, which have no place in labour
litigation because they are inimical to the effective resolution of labour
15 See: Kroukam v SA Airlink (Pty) Ltd (2005) 26 ILJ 2153 (LAC) per Davis AJA at para 28.
16 See: Section 192(2) of the LRA.
17 See: section 179(1) and (2) of the LRA.
11
disputes. Perplexingly, before us, Mr Kirchmann, appearing for the appellant ,
submitted that the prayer of striking out was inelegantly pleaded.
[23] This was truly perplexing, owing to the fact that this matter was before us
because of that ver y gauchely pleaded case. In an attempt to obfuscate
issues, Mr Kirchmann submitted that t he true gripe, ostensibly, the elegant
case, was whether a Court may adjudicate procedural unfairness claim at the
section 191 of the LRA referral stage. This kind is ordinarily raised as a
jurisdictional attack. It was not raised as such before the Labour Court .
Therefore, it is patently incorrect to submit before us that the true gripe was in
the nature of a jurisdictional attack . The order prayed for was made lucid and
clear – strike out the offending paragraphs in the statement of case . Even if
that was the elegant case gauchely couched, as it is now submitted to be the
case, then, the Labour Court did not squarely deal with such a case and it
cannot find its way to the Court of appeal . I emphatically state that such a
case did not even obliquely lie at the Labour Court. A striking out of
allegations was loudly prayed for and nothing more.
[24] Mr Kirchmann, with considerable regret, wrongly submitted that the Labour
Court ordered that it may adjudicate procedural unfairness claim at the trial of
the action. No such order was made by the Labour Court. Mr Kirchmann
ambivalently and ebulliently crossed path with a clear procedural submission
dexterously made by Mr E uijen, appearing for the respondents , that at the
trial, where evidence is led seeking to advance a procedural unfairness claim ,
an objection may be raised. This Court was and still is unable to understand
Mr Kirchmann’s objection to such an elementary procedural submission. Mr
Euijen is pitch-perfectly correct that such an objection may be raised. For two
obvious reasons, such an objection, if raised at the trial, is sustainable in law;
obvious reasons, such an objection, if raised at the trial, is sustainable in law;
because; (a) it is not part of the trade union’s pleaded case; and (b) section
189A(18) precludes adjudication on such a claim at the section 191 referral
stage. It is however wrong for this Court to prejudge the outcome of the
objection, if so raised. It remains squarely within the remit of the trial Court.
12
[25] Mr Kirchmann conceded that the striking out had nothing to do with the main
claim of automatically unfair dismissal , yet the entire case was set back five
years because of the striking out quest. This, as correctly submitted by Mr
Euijen, was a delaying tactic , suggesting that the appellant is litigating in a
frivolous and vexatious manner . Forging ahead with an appeal against an
interlocutory order was another foray or delaying tactic demonstrating
vexatiousness and frivolity. The fact that a leave to appeal was granted is no
answer to the non- appealability of an interlocutory order. Had it not been for
this patently vexatious and frivolous appeal, the main dispute could have long
been disposed of by now. As a sign of displeasure for all the above conducts
displayed by the appellant and its legal team , this Court is minded to making
an order of costs , which costs include the costs of employing two counsel,
against the appellant.
[26] In the premises, the following order is made:
Order
1. The appeal is dismissed with costs, which include the costs of
employing two counsel. The costs of the senior counsel are to be taxed
or settled at scale C and those of a junior counsel at scale B.
_______________________
G. N. Moshoana
Acting Judge of the Labour Appeal Court of South Africa
Djaje AJA and Collis AJA concurring.
APPEARANCES:
For the Appellant : Mr MC Kirchmann
13
Instructed by: Kirchmanns Inc, East London.
For the Respondents : Mr TMG Euijen SC and Mr L Voultsos
Instructed by: Wesley Pretorius and
Associates Inc, East London.