THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
CASE NO: J2375/2019
In the matter between:
MONGALE, MOJALEFA WILLIAM Plaintiff
and
MANGAUNG METROPOLITAN MUNICIPALITY Defendant
Heard: 27 February 2026
Delivered: 11 May 2026
Headnote: Special plea ~ failure to give notice in terms of Institution of Legal
Proceedings Against Certain Organs of State Act. Special plea upheld.
JUDGMENT
(1) Reportable: YES
(2) Of interest to other Judges: YES
Signature Date
DANIELS J
Introduction
[1] Following his dismissal on 12 November 2012 and reinstatement on 1 August
2018, the plaintiff instituted a contractual claim against the defendant for
arrears of remuneration.
[2] The defendant raised three special pleas, the first of which relates to the
plaintiff’s failure to give notice in terms of section 3(1)(a) of the Institution of
Legal Proceedings Against Certain Organs of State Act No. 40 of 2002, as
amended (“the ILPA”).
[3] This judgment concerns only the first special plea, as the parties have agreed
that the second and third special pleas can only be properly determined after
evidence is presented.
Non-appearance of the plaintiff
[4] The plaintiff’s attorney, despite having been sent the notice of set down, failed
to appear. Prior to the hearing, the defendant delivered a request for the
enrolment of its first special plea and its heads of argument. This alone should
have alerted the plaintiff to the matter being enrolled.
[5] The Rules do not explicitly address instances in which the plaintiff fails to
attend court to argue a special plea, separately enrolled prior to trial .
However, Rule 71 of the Rules of this Court, together with Rule 39(3) of the
Uniform Rules of Court, provides guidance. Rule 71 provides that where a
situation arises for which the Rules do not provide, the court may adopt any
procedure it deems appropriate and expedient in the circumstances to
achieve the objects of the LRA. Rule 39(3) states that, when a trial is called,
and the defendant is present, but the plaintiff is absent, the defendant is
entitled to an order granting absolution from the instance, but it may also lead
evidence and seek final judgment. It is necessary to take all the
circumstances into consideration. First, there is no reason to believe that the
plaintiff was unaware of the hearing and unable to attend. Second, the dispute
was referred to this court on or about 30 January 2020, and the plaintiff seeks
relief regarding the period from 2012 until 2017. Thus, the dispute relates to
events going back more than ten years. Third, one of the primary objects of
the Labour Relations Act No. 66 of 1995 is the expeditious resolution of
employment disputes. Fourth, the plaintiff can suffer no real prejudice given
that it has replied to the special plea, and its arguments are before the court.
Fifth, in respect of a special plea raised by the defendant, the plaintiff’s
position is more aligned with that of the defendant, on the merits.
[6] In addition , in PFE International and others v Industrial Development
Corporation of South Africa Ltd
1 the Constitutional Court held as follows:
“[30] Since the rules are made for courts to facilitate the adjudication of cases,
the superior courts enjoy the power to regulate their processes, taking into
account the interests of justice. It is this power that makes every superior
court the master of its own process. It enables a superior court to lay down a
process to be followed in particular cases, even if that process deviates from
what its rules prescribe. Consistent with that power, this court may in the
interests of justice depart from its own rules.”
(own emphasis)
[7] Bearing this in mind, in the exercise of my discretion, having also considered
the prejudice to the defendant , the effect on the administration of justice, and
the absence of any prejudice to the plaintiff, it is in the interests of justice to
decide the first special plea in the absence of the plaintiff.
Special plea and analysis
1 2013 (1) SA 1 (CC)
[8] It is common cause that no notice has been given by the plaintiff to the
defendant in terms of the ILPA, nor has the defendant consented to the failure
to give notice. Instead, the plaintiff submits that notice is only required in
terms of the ILPA when damages are sought and he does not seek damages.
[9] The defendant argues that the claim is incompetent because the plaintiff failed
to comply with section 3 of the ILPA. That the defendant is an organ of state is
clear from section 1(1) of the ILPA.
[10] The following provisions of the ILPA are relevant:
10.1 Section 1(1) defines “debt” as any debt arising from any cause of action:
(a) which arises from delictual, contractual or any other liability, including
a cause of action which relates to or arises from any-
(i) act performed under or in terms of any law; or
(ii) omission to do anything which should have been done under or in
terms of any law; and
(b) for which an organ of state is liable for payment of damages, whether
such debt became due before or after the fixed date,
10.2 Section 3(1) (a) of the ILPA states that no legal proceedings for the
recovery of a debt may be instituted against an organ of state unless the
creditor has given the organ of state notice in writing of his intention to
institute legal proceedings or the organ of state has consented in writing
to the failure to give notice. Notice must be given within six months of the
date the debt became due.
10.3 Section 4(a) of the ILPA states that if an organ of state relies on a
creditor's failure to serve a notice, the creditor may apply to a court having
jurisdiction for condonation of such failure. The plaintiff has not sought
condonation.
[11] In re sponse, the plaintiff submits that it does not seek damages but fails to
explain why backpay sought for the alleged breach of contract does not
constitute damages. Presumably , it believes that the claim relates to
compensation. This submission is without merit. Back pay cannot be equated
with compensation. Our courts have held as much. 2 And contractual
damages3 cannot be equated with compensation contemplated by section
194 of the Labour Relations Act No. 66 of 1995.4
[12] Section 1(1) itself is clear that the ILPA applies where contractual damages
are sought.
[13] In summary, the ILPA is clear that, where damages are claimed from an
organ of state, arising from any cause of action, notice must be given to that
organ of state unless it is prepared to consent to the failure to give notice.
Here, no notice has been given to the defendant , and no consent to the
absence of such notice was given. Accordingly, the special plea must
succeed.
Conclusion
2 Equity Aviation Services (Pty) Ltd v CCMA & others (2008) 29 ILJ 2507 (CC) at para [40]
[1] The nature of damages for breach of contract was stated by Innes CJ in Victoria Falls &
Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd 1915 AD 1 as: “The sufferer
by such a breach should be placed in the position he would have occupied had the contract
been performed, so far as that can be done by the payment of money, and without undue
hardship to the defaulting party.”
[2] In SA Airways (Pty) Ltd v Jansen van Vuuren & another (2014) 35 ILJ 2774 (LAC), in relation
to a discrimination claim brought under the Employment Equity Act No. 55 of 1998, the
Labour Appeal Court distinguished between damages and compensation. At para [76] Coppin
JA stated: “In my view, the only rational meaning that can be given to the terms is that
'damages’ connotes a monetary award for patrimonial loss and 'compensation' connotes a
monetary award for non-patrimonial loss (including a 'solatium').”
[14] Although the defendant has been successful, costs do not follow the result. 5
There being no reason in law and fairness to award costs, I make no order as
to costs.
5 See Member of the Executive Council for Finance, KwaZulu-Natal & another v Dorkin NO &
another (2008) 29 ILJ 1707 (LAC) at para [19]
[15] In conclusion, I make the following order:
15.1 The special plea raised by the defendant is upheld,
15.2 There is no order as to costs.
RN Daniels
Judge of the Labour Court of South Africa
For the plaintiff:
No appearance
For the defendant:
Adv Boda SC
Phatshoane Henney Inc