IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CIRCUIT LOCAL DIVISION, THEMBALETHU
JUDGMENT
Case number: 648/2025
In the matter between:
THABANG MOTJAMELA APPLICANT
And
GEORGE LOCAL MUNICIPALITY RESPONDENT
Neutral citation: Thabang Motjamela v George Local Municipality (Case no
648/2025) [2026] ZAWCHC ___ (23/04/2026)
Coram: GOLIATH, DJP
Heard: 23 March 2026
Delivered: 23 April 2026
_________________________________________________________________________
ORDER
________________________________________________________________
The application for leave to appeal is dismissed with costs.
_______________________________________________________________
JUDGMENT ELECTRONICALLY DELIVERED ON 23 APRIL 2026
__________________________________________________________________________________
GOLIATH, DJP
[1] This is an appl ication for leave to appeal. On 08 December 2026 the
applicant, who is self -represented, launched an urgent application seeking delictual
damages from respondent . On 06 February 2026 the court handed down an ex-
tempore judgment and granted an order striking the matter from the roll for being res
judicata, having already been ventilated in other legal proceedings. On 8 February
2026 the applicant lodged an application for leave to app eal against the aforesaid
order. The respondent opposes the application for leave to appeal.
The nature of the relief sought by Applicant
[2] The urgent application has its genesis in an employment dispute referred to the
Bargaining Council in terms of section 198B of the Labour Relations Act (LRA) , the
applicant contending that he was deemed to be permanently employed by George
Municipality on account that he had been employed on fixed term contracts for a period
exceeding three months. At the time the applicant was employed at the Municipality in
terms of Extended Public Works Programme (EPWP) contracts.
[3] The arbitrator found that the applicant signed two EPWP contracts, that same
was justified in terms of section 198B (4) (g) of the LRA and that the employment
contract had lawfully expired at the time of the referral. The applicant-initiated litigation
seeking to review and set aside the arbitration award in the Labour Court, which was
dismissed by Van Niekerk J.
Relief under case number 125/2025
[4] On 2 May 2025 Dolamo J dism issed an urgent application launched by the
applicant under case number 125/2025 on the basis that the matter was res judicata.
In that matter the applicant sought reinstatement as a permanent employee of the
Municipality following his appointment in terms of EPWP contracts, compensation in
the sum of R 65 million, enforcement of section 198B of the LRA as well as an order
directing the Municipality to cease exploitation of temporary workers under the EPWP
scheme. The applicant sought to subpoena a list of documents from the Municipality
relating to his employment and the EPWP framework. Applicant claimed that these
documents were crucial to prove allegations of fraud, exploitation, misrepresentation,
and unfair discrimination in the workplace.
[5] The Municipality provided a detailed history of the matter that was referred to
arbitration under the auspices of the Western Cape Division of the South African Local
Government Bargaining Council (SALGBC) under case number WCP101805, taken on
review and subsequently dismissed by the Labour Court under case number
C824/2019. The Municipality indicated that the applicant unsuccessfully petitioned the
Labour Appeal Court for leave to Appeal, and thereafter approached the Constitutional
Court, which application was dismissed as it was found to have no reasonable
prospects of success.
[6] It is evident that Dolamo J reasoned that the relief sought by the applicant
stemmed from the same facts as the Labour Court dispute . It is against this
background that Dolamo J found that the relief sought under case number 125/2025
was res judicata. Applicant subsequently filed an application for leave to Appeal against
the ruling, which Dolamo J dismissed with costs on 12 June 2025. There is no pending
application for leave to appeal before the Supreme Court of Appeal in that matter. The
two orders made by Dolamo J are annexed to this judgment marked A and B.
Relief sought in this matter
[7] In this matter the applicant sought relief declaring the respondent delictually
liable for wrongful, negligent, unlawful conduct and misrepresentation committed
against the applicant during his employment at the Municipality in terms of EPWP
arrangements, which according to applicant, were engineered to exploit cheap labour.
The applicant stated that the Municipality had failed to comply with the provisions of
section 198B of the LRA and unlawfully employed EPWP mechanisms to avoid
statutory and constitutional duties and discriminate against the applicant. The applicant
submitted that the Municipality had failed to recognize his permanent employment
status and sought compensation for:
7.1 past loss of income;
7.2 future loss of earnings;
7.3 General damages for emotional distress, psychological harm, humiliation,
and loss of dignity;
7.4 constitutional damages; and
7.5 legal costs.
[8] The applicant based his claim on the following background facts:
8.1 His first appointment by the Municipality as an EPWP worker on or about
the 19th of February 2018, expired on the 30th of June 2018;
8.2 His second appointment by the Municipality as an EPWP worker on or
about the 2nd of July 2018, expired on the 21st of December 2018;
8.3 His belief that his fixed term appointments were to be made permanent
as they exceeded the three (3) month threshold and triggered the
provisions of section 198B(5) of the Labour Relations Act; and
8.4 His belief that the Municipality allegedly misrepresented the nature of his
employment above to him entitling him to the damages sought.
Applicant’s Submissions
[9] Applicant submitted that this matter is not res judicata since none of the previous
cases addressed delictual damages or triggered constitutional issues . Applicant
therefore argued that the cause of action in the other matters differed substantially from
the facts in this matter, and the fact that there may be overlapping issues do not render
a matter res judicata. Applicant also takes issue with the fact that the matter was
considered as being res judicata on the basis of the ruling of Dolamo J in case number
125/25. Applicant stated that the matter before Dolamo J is legally distinct from this
matter and the dismissal was premature and unfair.
[10] Applicant contended that he was employed by respondent for 10.5 months
continuously under fixed-term contracts, but was wrongfully treated as a temporary
worker, thus resulting in him being denied of job security and employment benefits.
Appellant argued that Section 198B of the LRA was never interpreted in a constitutional
context, which justifies his contention that the matter is not res judicata. The applicant
referred to case law in support of his contentions that delictual liability is independent of
statutory liability; constitutional damages can co -exist with other remedies; multiple
cases cannot block a separate cause of action; and the principle of res judicata should
not be applied restrictively.
[11] Applicant submitted that he has a constitutional and legal right to be heard on
the merits of this case, and another court may find that the principle of res judicata was
misapplied and that his dismissal was premature and unfair. He therefore contended
that he has reasonable prospects of success on appeal. I n his submissions the
applicant criticized the approach adopted by Van Niekerk J, the Labour Appeal Court,
as well as the Constitutional Court in dismissing his claims. Applicant therefore argued
that it is in the interests of justice that leave to appeal be granted in this matter.
Respondent’s Submissions
[12] As in case number 125/2025 the Municipality raised a multitude of technical
defences in this matter, but in the main contended that the applicant’s claims are res
judicata. With reference to Evins v Shield Insurance,1 respondent noted that the SCA
expressed its views on the interplay between the once and for all rule and res judicata,
as follows:
1 [1980] 2 All SA 40 (A); 1980 (2) SA 814 (AD)
“[The once and for all rule] is a well -entrenched rule. Its purpose is to prevent a
multiplicity of actions based upon a single cause of action and to ensure that
there is an end to litigation. Closely allied to the "once and for all" rule is the
principle of res judicata /which establishes that where a final judgment has been
given in a matter by a competent court, then subsequent litigation betw een the
same parties, or their privies, in regard to the same subject matter and based
upon the same cause of action is not permissible and, if attempted by one of
them, can be met by the exceptio rei judicatae vel litis finitae. The object of this
principle is to prevent the repetition of lawsuits, the harassment of a defendant by
a multiplicity of actions and the possibility of conflicting decisions.”
[13] Respondent averred that the labour dispute (“the EPWP dispute”) ha d finally
been determined by the Labour Court (case number C824/2019). Respondent
indicated that Van Niekerk J dismissed the review application and the application for
leave to appeal as having no prospects of success. The Labour Appeal Court and
Constitutional Court also dismissed the applications for leave to appeal, citing no
prospects of success. Respondent contends that the relief sought in this matter is
substantially similar to the relief sought under case number 125/2025, w hich was
considered, argued and dismissed for being res judicata on the 2 nd of May 2025 by
Dolamo J.
[14] Respondent therefore submitted that the applicant continuously and
opportunistically litigates against the Municipality based on the same cause of action in
multiple forums camouflaged in different proceedings. According to respondent there
are no outstanding legal and factual matters relating to the dispute arising from the
EPWP employment contract between the parties requiring determination.
[15] Respondent referred to the judgment of this Court dated 20 October 2025 under
case number 267/2025 (a vexatious litigant judgment), where Thulare J, with reference
to the applicant, held that:
“[13] … The respondent also simply changed fora when he failed in one. Out
of the same facts he approached the Labour Court under case
C824/2019. When he failed, he instituted proceedings in the High Court
in case number 125/25, and when he failed, he went to report a fraud
criminal case in George CAS 569/9/2024.”2
[16] Respondent pointed out that not only do the disputes above stem from the same
set of facts as this matter for which leave to appeal is sought, but emphasised that this
Court in 267/2025 has already found that the applicant forum shops and institutes
litigation based on the same facts as against the Municipality. Respondent contends
that even should the nature of the relief change between the different actions (i.e. relief
in terms of the LRA and/or common law and/or based in delict), the once and for all
rule, as highlighted in Evins (supra) would still find application as the factual basis had
already been pronounced upon.
[17] Respondent submitted that there is no reasonable prospects of success on the
merits of the applicants claim because applicant’s claims have prescribed in law as
they stem from 2018; applicant failed to comply with the provisions of the Institution of
2 Paragraph 13 of the judgment.
Legal Proceedings Against Certain Organs of the State Act 40 of 2002 prior to
instituting case number 648/2025; applicant failed to institute action proceedings
knowing that a material dispute of fact would arise between the parties for which
evidence would have to be led; and the relief sought by the applicant falls within the
remedies provided for in the LRA.
[18] Respondent argue d that the Municipality cannot continuously utilize public
funding to oppose unmeritorious High Court litigation with no recourse available to it.
Respondent noted that this is the exact reason why the relief was sought in the
proceedings under case number 267/2025 to declare the applicant as a vexatious
litigant. The respondent submitted that the granting of a costs order in opposing this
application for leave to appeal, would negate further unsuccessful attempts by the
applicant at seeking an appeal in a matter with no merit. The respondent therefore
contended that leave to appeal should be refused, with an order for costs.
Further Submissions
[19] After the hearing of this matter the applicant sought permission to file further
submissions, which were filed on 17 April 2026. In the submissions the applicant
emphasised that he relies on the provisions of sections 23, 34 and 195 of the
Constitution. He stated that was engaged by the resp ondent on two successive fixed
term contracts, ending on 21 December 2018. Applicant arg ued that respondent’s
use of fix term contracts falls to be considered in light of section 198 B of the LRA,
which regulates the use of fixed term employment. He further stated that the
continued use of fix term contracts triggers a dispute as to whether the employment
relationship remained fixed-term or become indefinite by operation of law.
[20] Applicant submitted that objective indicators such as employment records,
organograms, and salary records are inconsistent with a purely external or short -
term EPWP placement. Applicant referred to case law in support of his contention
that the true nature of his employmen t was that of a permanent worker, and argued
that labour legislation must be interpreted consistently with constitutional rights and
the realities of employment relationships. Furthermore, the termination of his
employment depends on the correct classifica tion of the employment relationship at
the time.
[21] With regard to res judicata , applicant argued that this doctrine does not
dispose of the matter since no prior proceedings determined the full merits of the
nature of the employment relationship. Applic ant therefore noted that the present
dispute involves broader questions of the legal characterisation and constitutional
interpretation which were not fully adjudicated. Applicant further submitted that the
matter engages constitutional consideration, incl uding the right to fair labour
practices, lawful administrative action, and access to court.
[22] Respondent contended that applicant expressly requires the court to revisit
the question as to what the true nature of the employment relationship was between
the parties. Respondent pointed out that a court would first have to make a definitive
finding on the nature of applicant’s employment before it can make any
determination whether there is a valid delictual claim for damages. Respondent
emphasised that the nature of the employment contract was definitively pronounced
upon by the SALGBC and Labour Court.
The test for leave to Appeal
[23] Section 17(1) of the Superior Courts Act, Act 10 of 2013 regulates
applications for leave to appeal and provides:
“Leave to appeal
17. (1) Leave to appeal may only be given where the judge or judges
concerned are of the opinion that-
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be
heard, including conflictin g judgments on the matter under
consideration;
(b) the decision sought on appeal does not fall within the ambit of section
16(2)(a); and
(c) where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead t o a just and prompt
resolution of the real issues between the parties.”
[24] The test, which was applied previously in applications of this nature, was
whether there were reasonable prospects that another court may come to a different
conclusion. With the enactment of section 17 of the Act the threshold for granting
leave to appeal a judgment of a High Court has been significantly raised. In Mont
Chevaux Trust v Goosen & 18 Others3 the following was stated:
“It is clear that the threshold for granting leave to appeal against the judgment
of a high court has been raised in the new A ct. The former test whether leave
to appeal should be granted, was a reasonable prospect that another court
might come to a different conclusion. See Van Heerden v Cronwright &
Others 1985 (2) SA 342 (T) at 343H. The use of the word ‘would’ in the new
3 2014 JDR 2325 (LCC) at para 6
Statute indicates a measure of certainty that another court will differ from the
court who’s judgment is sought to be appealed against.”
[25] The fact that the test for leave to appeal is more stringent was reaffirmed by
the SCA in the matter of S v Smith4 where the following was stated:
“In order to succeed, therefore, the appellant must convince this court on
proper grounds that he has pros pects of success on appeal and that those
prospects are not remote, but has a realistic chance of succeeding. More is
required to establish that there is a mere possibility of success, that the case
is arguable on appeal or that the case cannot be categori zed as hopeless.
There must, in other words, be a sound, rational basis for the conclusion that
there are prospects of success on appeal”.
Analysis
[26] The grounds of appeal have been succinctly set out in the Notice of
Application for leave to appeal. Most notably at paragraph 3.3 of the applicant’s
affidavit in support of his application for leave to appeal, he states that:
“While all disputes arise from the same employment, each claim has a separate
cause of action, legal basis, and remedy.”
[27] The matter before Dolamo J followed the same pattern as this matter, namely, an
urgent application, a dismissal on the basis of the principl e of res judicata, and an
4 2012 (1) SACR 567 (SCA) at para 7
application for leave to appeal. The order of Dolamo distinctly refers to the fact that the
Constitutional Court had considered the matter.
[28] Ultimately, the applicant seeks to revisit the lawfulness of the EPWP
employment contract which was fully ventilated . Applicant exhausted all his legal
remedies in this regard. Applicant had failed to overcome the first hurdle in challenging
the finding that the EPWP contract was justified in terms of section 198 B (4) (g) of the
LRA, and that applicant was deemed to be in temporary employment. All the other
ancillary relief sought by the applicant such as reinstatement and damages stems from
the status and interpretation of the EPWP contract. Significantly, the applicant
conceded that all his claims arise from the same factual basis, which is exactly what
the defence of res judicata seeks to prevent.
[29] I am satisfied that the claim and relief sought in this matter is substantially similar
to that under case number 125/2025. Multiple forums have already delivered numerous
judgments and orders dismissing the applicant’s claims, which are based on the same
set of facts, and it is accordingly highly unlikely that any other Superior Court would
come to any other c onclusion than those already reached. The applicant had
exhausted all his remedies to challenge the EPWP contract and be reinstated as a
permanent employee. The Labour Appeal Court and Constitutional Court dismissed the
applications on the basis that there exist no reasonable prospects of success on
appeal. The applicant’s submissions that the matter triggers constitutional
considerations cannot be sustained since the Constitutional Court had found, after a
dispassionate assessment, that an appeal has no re alistic, sound, or rational chance
of succeeding, or that another court would not reasonably reach a different
conclusion.
Conclusion
[30] I have considered the facts of the matter, and the grounds of appeal in the
Notice of Appeal, together with all the submissions made by the parties. I have
carefully reconsidered my judgment and have concluded that the arguments raised
by the applicant are without merit. Considering the above, I am satisfied that there are
no reasonable prospects of success on appeal in this matter, that the matter is res
judicata and stands to remain struck from this Court’s roll.
[31] In the result, the following order is made:
The application for leave to appeal is dismissed with costs.
__________________________________
DEPUTY JUDGE PRESIDENT GOLIATH
Appearances
Thabang Motjamela
Applicant in Person
Tel: 064 664 1504
Email: tm427975@gmail.com
Attorneys For Respondent
Marco van der Walt / F Schrëuder
Schröter Inc. Attorneys
Tel: 044 874 5372
Email: marco@schroterlaw.co.za
.