About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
You are here:
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2026
>>
[2026] ZALCCT 76
|
Noteup
|
LawCite
Khoza v South African Police Service and Others (2025/155699) [2026] ZALCCT 76 (11 May 2026)
Download original files
PDF format
RTF format
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case No: 2025-155699
In the matter between:
NOMBUSO
PORTIA KHOZA
Applicant
and
THE
SOUTH AFRICAN POLICE SERVICE
First
Respondent
NATIONAL
COMMISSIONER OF THE SOUTH
AFRICAN
POLICE SERVICE
Second
Respondent
SEHLAHLE
FANNIE MASEMOLA
Third
Respondent
Heard:
27 March 2026
This judgment is handed
down electronically by circulation to the parties’ legal
representatives by email, publication on
the Labour Court website and
release to SAFLII. The date and time for handing down this judgment
is deemed to be 10h00 on 11 May
2026.
JUDGMENT
DE KOCK, AJ
Introduction
[1]
This judgment concerns an interlocutory
application brought by the respondents in the contempt proceedings
between the applicant
and the South African Police Service (SAPS),
the National Commissioner of SAPS, and Lieutenant General Sehlahle
Fannie Masemola
NO. The application seeks the joinder of the National
Head of the Directorate for Priority Crime Investigation (the DPCI)
as a
fourth respondent to the proceedings, alternatively leave for
the National Head to intervene as a party. The respondents further
seek declaratory relief that the applicant’s contract of
employment is inconsistent with section 17CA(6) and (7) of the South
African Police Service Act 68 of 1995 (the SAPS Act) and is therefore
invalid; alternatively, that the contract is to be construed
as a
fixed-term appointment under section 17CA(6) which terminated by
operation of law on 31 January 2026. The contempt application
was not
argued on 27 March 2026 and falls to be determined on 4 June 2026.
This judgment disposes of the joinder application and
the application
for declaratory relief only.
Background
[2]
The Labour Court, on 9 September 2025,
issued an Order directing the second and/or third respondent to
appear at the Labour Court
to show cause, on 10 October 2025, why he
should not be found guilty of contempt of court to comply with the
arbitration award.
It is not necessary for purposes of this judgment
to refer to the full Order granted by Daniels J, save to add that the
Court granted
leave to the applicant to approach this Court on the
same papers, duly supplemented, if necessary, for any further or
alternative
relief.
[3]
The Labour Court, on 10 October 2025, and
following an agreement between the parties, issued an Order
containing, in summary, the
following orders: (i) directing the
respondents to reinstate the applicant; (ii) ordering the respondents
to pay to the applicant
retrospective remuneration for the period 29
September 2021 to 30 September 2025; (iii) ordering that the
applicant shall report
for duty at the premises of the Directorate
for Priority Crime Investigation (DPCI); (iv) directing the
respondents to ensure that
the applicant suffers no prejudice in
respect of her pensionable service and benefits under the Government
Employees Pension Fund
(GEPF); (v) in the event of non-compliance
with any term of the Order, granting the applicant leave to re-enrol
the contempt application
on the same papers, duly supplemented where
necessary, on an expedited basis; and (vi) ordering the respondents
to pay the applicant’s
costs for the opposed review application
under case number C315/2023 and contempt application under case
number 155699/2025.
[4]
It is necessary to repeat that this Order
was granted by agreement between the parties as cited above, i.e.,
between the applicant
and the first, second and third respondents. In
fact, the third respondent concedes in his answering affidavit that
he agreed to
the 10 October 2025 Order. The statement that he agreed
to the Order because he feared non-compliance with the September
Order
does not assist the third respondent given that he consented to
the Court Order dated 10 October 2025. It is simply not permissible
for a party to consent to a Court Order due to fear of non-compliance
of a previous Order and then, thereafter, attempt to dispute
the
Court Order because the SAPS was not the employer. If that was the
case, the issue ought to have been raised with the Court.
It was
never raised.
[5]
The validity of the applicant’s
contract was not disputed leading to the Order being granted, nor was
there any issue raised
by or on behalf of the respondents that the
wrong employer was cited. Gandidze J had no reason not to issue the
Order on the terms
agreed upon by the parties. The Order was
therefore properly issued on a clear agreement having been reached
between the parties
as cited in the Court Order.
[6]
The
respondents, at no stage from 10 October 2025 to the 27
th
of March 2026 when the contempt application came before this Court,
applied for the variation or rescission of the Court Order
dated 10
October 2025, nor have the respondents applied for leave to appeal in
respect of the said Order. The Order, as issued
on 10 October 2025,
therefore remains a valid and binding Order between the parties.
[1]
[7]
On 28 January 2026 the applicant filed an
urgent supplementary contempt application in terms of paragraph 7 of
the Order dated 10
October 2025, which granted the applicant leave to
re-enrol the contempt application on the same papers, duly
supplemented where
necessary, on an expedited basis. The matter came
before this Court on 30 January 2026 where a rule
nisi
was issued calling upon the second and/or third respondents to show
cause on 6 March 2026 why the Order should not be made final.
It is
not necessary for purposes of this judgment to set out the nature of
the Order, save to state that the essence of the rule
nisi
was declaring that the second and/or
third respondents are in contempt of Court for their failure to
comply with the Court Order
dated 10 October 2025.
[8]
On 25 February 2026, Barthus AJ issued an
Order declaring, in essence, that the continued reflection on PERSAL,
PERSAP, and POLFIN
of the applicant’s employment status as
“inactive” and/or “contract expiry” is in
breach of the interim
Order dated 30 January 2026 and granting the
applicant leave to approach this Court on the same papers, duly
supplemented, for
further relief, including contempt in the event of
non-compliance in respect of the Order dated 25 February 2026.
[9]
This Court, on 6 March 2026, issued an
Order making a draft order, as agreed between the parties, an Order
of this Court. The essence
of this Order is that the rule
nisi
was extended to 27 March 2026 and
provided time periods in which further pleadings were to be filed.
[10]
The matter then again came before this
Court on 27 March 2026. However, despite the matter having been
enrolled for the applicant’s
contempt application, the
respondents, in the period between 6 March 2026 and 27 March 2026,
filed the interlocutory application
as a Notice of Application. The
respondents sought leave to bring a counter application and requested
the Court to join a party
to the matter. The interlocutory
application will be addressed more fully below.
[11]
This Court, on 27 March 2026, after hearing
submissions from both parties, reserved judgment in respect of the
interlocutory application.
The contempt application was not
addressed, and the parties were advised that a judgment will be
delivered in respect of the interlocutory
application first. The
contempt application was postponed to 4 June 2026 to allow for the
judgment to be delivered in respect of
the interlocutory application.
The respondents’
interlocutory application
[12]
The respondent, on or about 16 March 2026,
filed a Notice of Application, citing the respondents in the contempt
application as
the applicants in respect of the interlocutory
application. This Court will continue to refer to the parties in
respect of the
application served on or about 16 March 2026 as their
respective citations in the contempt application. The respondents,
cited
as applicants in the application, also cited the National Head
of the DPCI as the fourth applicant / intervening applicant. The
respondents, in terms of the application, are seeking an order as
follows: (i) that the National Head be joined as a party to these
proceedings; (ii) alternatively, that the National Head is granted
leave to join, alternatively, intervene as a party in these
proceedings; (iii) declaring, in the event of the relief sought as
aforementioned is granted, that the employment contract concluded
between the applicant and the DPCI is set aside on the basis that it
is inconsistent with the provisions of
section 17CA(6)
and (7) of the
South African Police Service Act 68 of 1995
and therefore invalid and
unlawful; alternatively, that the employment contract concluded
between the applicant and the DPCI on
1 February 2016 is a contract
as contemplated is
section 17CA(6)
and (7) of the South African
Police Service Act 68 of 1995 concluded for a maximum period of ten
years with effect from 1 February
2016 and has terminated on 31
January 2026.
[13]
It is important to note that this
application was only served on the applicant on or about 16 March
2026. The contempt application
came before this Court on 30 January
2026 when a rule
nisi
was
issued. Despite the issuing of the rule
nisi
on 30 January 2026, the respondents did
not bring the interlocutory application and the relief sought
therein, which was filed on
or about 16 March 2026, to the Court’s
attention. In fact, further pleadings were exchanged between the
parties wherein the
respondents failed to bring the issues contained
in the interlocutory application to the Court’s attention.
[14]
As already stated above, the matter was
heard before Barthus AJ on 25 February 2026 and again the respondents
failed to raise these
issues when the contempt application was heard
and considered by Barthus AJ. When this Court considered and granted
an Order, as
drafted and agreed upon between the parties on 6 March
2026, the respondents failed to raise these issues. It was only on 16
March
2026, some 9 court days before the contempt application was to
be heard on 27 March 2026 that the Notice of Application was filed.
[15]
Rule 35 of the 2024 Labour Court Rules
provides for applications in general. In terms of Rule 35(4)(e), an
application must contain
a notice advising the other party that if it
intends to oppose the matter, that party must deliver an answering
affidavit within
10 days after the application has been served. The
respondents’ Notice of Application does not contain such a
notice. Instead,
the respondents’ notice gave the applicant a
self-imposed deadline to deliver an opposing affidavit on 23 March
2026. This
self-imposed time period did not afford the applicant the
required 10 days in which to serve and file an answering affidavit.
It
is not for a party to self-impose the dates on which a substantive
answering affidavit is to be delivered in opposition to a substantive
application. The 10-day requirement has not as yet expired on 27
March 2026 when the matter came before this Court.
[16]
The respondents are not entitled to invoke
Rule 58 of the Rules of this Court to justify the truncated time
periods. Rule 58(1)
authorises a contempt application to be brought
on an
ex parte
basis, as a departure from Rule 35(1), and the respondents themselves
recognise this in their heads of argument. The respondents’
interlocutory application, however, is not a contempt application. It
is a substantive application for joinder and for declaratory
relief
in respect of the validity of the applicant’s contract of
employment. As such, it falls squarely within Rule 35 and
the
prescribed time periods. Any abridgement of those time periods
requires an application to court, supported by a proper case
for
urgency or expedition. No such application was made.
[17]
It is this Court’s finding that,
based on the respondents’ failure to file a proper application
in terms of Rule 35,
and their failure to allow 10 days in which the
applicant was to file an answering affidavit, the Notice of
Application is procedurally
defective. There is no reasonable
explanation why the respondents only filed the Notice of Application
on 16 March 2026, without
containing the notice requiring the
applicant to file an answering affidavit within 10 days, and why the
applicant was not afforded
the full 10 days in which to file an
answering affidavit. The respondents had sufficient opportunities and
time, with at least
3 prior court appearances, to bring this
application and chose to do so only on 16 March 2026. For the reasons
that follow, this
Court goes further and addresses the substance of
both applications.
[18]
This Court will, however, despite the
defective application, nonetheless address the issues raised therein.
This Court does so to
ensure that all issues are determined before
the contempt application is heard on 4 June 2026. It is not in the
interest of justice
to continue delaying the contempt application and
to unnecessarily use the valuable time of this Court to consider, and
dispose
of the contempt application.
The application for
joinder
[19]
Insofar as the respondents are seeking to
join the National Head of the DPCI to the contempt proceedings as a
fourth/intervening
respondent, this Court finds that there is no
justifiable reason to do so. The National Head was not a party to the
10 October
2025 Order issued by agreement between the applicant and
the first, second and third respondents. The National Head was not a
party
to the Court proceedings on 30 January 2026, 25 February 2026
and on 6 March 2026. The respondents’ belated attempt to join
the National Head on 16 March 2026 cannot succeed. The first, second
and third respondents agreed to the Court Order of 10 October
2025
and participated in all three subsequent Court hearings. The National
Head cannot be part of a contempt application when the
10 October
2025 Order did not include him as a party in the agreement made an
Order of Court. In respect of the Court Order of
25 February 2026,
the National Head complied with the Order insofar as he was directed
to file an affidavit. The order that the
National Head must file an
affidavit did not have the result that he became a party in the
contempt proceedings, which is conceded
by the respondents given
their application to apply for a joinder.
[20]
There is, in any event, a more fundamental
reason why the National Head of the DPCI cannot be joined to face
contempt of the 10
October 2025 Order. A court cannot, by way of an
order taken by agreement, impose enforceable obligations on a
non-party who did
not consent to that agreement and who was not
before the court when the Order was granted. Insofar as paragraphs 5
and 6 of the
10 October 2025 Order make reference to the DPCI, those
paragraphs must be understood as obliging the cited respondents, who
include
the National Commissioner of the South African Police
Service, to take all necessary steps, including procuring DPCI
cooperation,
to give effect to the reinstatement and to ensure
pension continuity directed by the Order. The obligation rests on the
cited respondents.
They consented to the Order. They are bound by it.
The DPCI’s conduct may well be evidential, in the contempt
enquiry on
4 June 2026, to the extent that it bears on whether the
cited respondents have discharged the obligations they undertook; but
it
is not the subject of the contempt enquiry. To find otherwise
would be to permit a contempt finding against an entity that never
had the opportunity to be heard before the Order was granted, and
which never consented to the obligations purportedly imposed
on it.
Such a finding would offend the
audi
alteram partem
principle, which is a
foundational requirement of natural justice.
[21]
The first, second and third respondents
agreed to the Order and compliance with the Order was their
responsibility. Inasmuch as
the respondents agreed to the Order and
were obliged to give effect to the Order, so too should they be held
liable for any non-compliance
of the Court Order and any possible
contempt proceedings that arises from any non-compliance thereof.
Should this Court allow this
belated application for joinder, when
the National Head is not the subject of the Court Order of 10 October
2025, it would unnecessarily
delay and frustrate these contempt
proceedings, waste this Court’s valuable time, and cause even
further unnecessary legal
fees for the applicant. It is not in the
interest of justice or in the interest of speedy and effective
resolution of labour disputes
to entertain this belated application
for joinder.
[22]
The Court notes, in any event, that
Lieutenant General Dumisani Patrick Mbotho, in his capacity as Acting
National Head of the DPCI,
deposed to a compliance affidavit on 3
March 2026 pursuant to the Order of Barthus AJ. The respondents are
entitled to refer to
and rely upon that affidavit on 4 June 2026 to
the extent that its contents bear on the issues for determination in
the contempt
enquiry. The filing of that affidavit is, in this
Court’s view, sufficient for the respondents to address
whatever relevant
information is contained therein in showing why
they should not be found in contempt.
[23]
The application for joinder is accordingly
dismissed.
Declarator
[24]
This Court now turns to the belated
declaratory relief sought by the respondents. As stated above, the
respondents, in essence are
seeking an order that the applicants’
contract of employment is inconsistent with the provisions of
section
17CA(6)
and (7) of the
South African Police Service Act 68 of 1995
and is therefore invalid and unlawful. The respondents seek an order
that the employment contract be set aside.
[25]
This Court in not in a position to
entertain a belated application for a declarator in the contempt
application. The respondents
agreed to the Court Order of 10 October
2025 and continued to participate as the affected parties in another
three subsequent court
hearings. The belated attempt to declare the
contract of employment invalid and unlawful in contempt proceedings
is irregular.
If the respondents were of the genuine belief that the
contract of employment was invalid and unlawful, they should not have
entered
into the agreement, which was made an order of this Court on
10 October 2025.
[26]
The respondents’ relief was to ask
for a variation or rescission of the Court Order, alternatively to
seek leave to appeal
against the Court Order. None of this was done.
A further possible alternative was to file an application for such a
declarator
as soon as the respondents became aware of the alleged
invalidity and unlawfulness of the contract of employment. The proper
route
to have been followed would in all probability have been to
approach the Court for a variation or rescission of the 10 October
2025 Court Order based on any new information that may have come to
light.
[27]
The respondents have raised, in their
answering affidavit, criticism of the manner in which the orders of 9
September 2025 and 30
January 2026 were obtained, contending that
they were not afforded a proper opportunity to oppose. Those
criticisms do not withstand
scrutiny by this Court. The orders stand
and the respondents were given more than sufficient opportunity to
deliver their response
by 27 March 2026. In respect of the Court
Orders of 10 October 2025 and 25 February 2026, the appropriate route
available to the
respondents to challenge them was through variation,
rescission or leave to appeal. The respondents took none of those
steps. They
cannot now seek to relitigate the propriety of those
orders by way of an answering affidavit in contempt.
[28]
The respondents were obliged to comply with
the Court Order of 10 October 2025, which was granted by agreement
between the parties.
A party who has consented to an order, who has
acted under it, and who has invoked its machinery for several months,
cannot thereafter
be heard to contend that it never bound them at
all. It is not for the respondents to determine, on their own, that
the contract
of employment is invalid and unlawful and in the process
fail to comply with the Court Order, if there was indeed such a
failure.
This Court will determine the contempt application on 4 June
2026 and a determination will only be made after reading the papers
and after having listened to the parties’ legal
representatives’ submissions. No decision has yet been made
whether
there was non-compliance with the Court Order and whether the
respondents are to be held in contempt.
Conclusion
[29]
The
respondents’ belated application for joinder and for a
declarator that the employment contract is invalid and unlawful
is
dismissed. The interlocutory application bears the hallmarks of an
abuse of process: it was filed late, in violation of the
prescribed
time periods, without condonation, and after three prior court
appearances at which the issues could have been raised.
It served
only to delay the contempt enquiry and to dilute the accountability
that the rule
nisi
was designed to enforce. This leaves the question of costs. This
Court is mindful of the requirements that awarding costs must
be
based on law and fairness. There is no reason why the respondents
should not be ordered to pay the applicant’s costs in
respect
of the Notice of Application served on 16 March 2026 and costs for
the proceedings held on 27 March 2026.
[2]
The
costs for the postponement of 6 March 2026 will be determined when
the contempt application is heard.
Order
[30]
In the premises, the following order is
made:
1.
The application for joinder is dismissed.
2.
The application for a declarator is
dismissed.
3.
The respondents are ordered to pay the
applicant’s costs of the interlocutory application served on 16
March 2026 and of the
proceedings on 27 March 2026, on Scale C.
4.
The costs of the postponement on 6 March
2026 are reserved for determination at the hearing of the contempt
application.
5.
The contempt application is postponed to 4
June 2026 for argument.
6.
The rule
nisi
issued on 30 January 2026 is extended to 4 June 2026.
C.
de Kock
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicant:
Mr C Hendricks from Marais Muller Hendricks Inc
For
the Respondents:
Adv E
A De Villiers-Jansen SC
Instructed
by:
State Attorney
[1]
See
Department
of Transport and Others v Tasima (Pty) Ltd
2017 (1) BCLR 1
(CC);
2017 (2) SA 622
(CC) at paras 181–189. A
court order, regardless of whether it was wrongly granted or
otherwise objectionable, must be
obeyed unless and until it is set
aside.
[2]
See
Zungu
v Premier of the Province of KwaZulu-Natal and Others
2018 (6) BCLR 686
(CC); (2018) 39 ILJ 523 (CC);
[2018] 4 BLLR 323
(CC) at para 24.
Section 162
of the
Labour Relations Act 66 of 1995
confers on this court a discretion to award costs in accordance with
the requirements of law and fairness.