THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: A2026-037072
In the matter between:
INDUSTRIAL DEVELOPMENT CORPORATION
OF SOUTH AFRICA Appellant
and
TEBOGO VINCENT MODIKA First Respondent
COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION (CCMA) Second Respondent
ALLAN KAYNE N. O Third Respondent
Heard: 11 March 2026
Delivered: 17 March 2026
Coram: Tokota AJA; Djadje AJA and Moshoana AJA
JUDGMENT
MOSHOANA AJA
(1) Reportable Yes
(2) Of interest to other Judges: Yes
(3) Revised
____________ ______________
Signature Date
2
Introduction
[1] Before us is an urgent appeal launched in terms of rule 7 of the Rules
Regulating the Conduct of Proceedings of the Labour Appeal Court 1 (LAC
Rules). The appeal reaches this Court with the leave of the Labour Court
granted on 5 February 2026. In granting leave to appeal, the Labour Court
opined as follows:
‘Further, I believe that the issue of section 188A(11) and its consequences to
pending disciplinary proceedings, as well as on what basis should this court
[Labour Court] interfere in medias res in such instances, is deserving the
attention of the Labour Appeal Court. This is especially the case where it
comes to what exactly must be considered, and to what extent the Court must
be satisfied that a protected disclosure exists. The first respondent has also
pointed to conflicting judgments on this issue.’
[2] The judgment to be appealed against was delivered by the Labour Court on
13 November 2025, the matter having been heard as one of urgency in
accordance with r ule 38 of the Rules Regulating the Conduct of the
Proceedings of the Labour Court
2 (Labour Court Rules) . The present urgent
appeal is opposed by the first respondent, Mr Tebogo Vincent Modika.
Postponement application and the conduct of Mr Selala
[3] At the hearing of the appeal, Mr Modika appeared in person without his
attorney of record Mr Selala. He indicated to us that Mr Selala had advised
him that in the absence of a ruling that the appeal is urgent, this Court would
not entertain the appeal. For that view, no heads of argument were submitted
on his behalf . Additionally, he indicated that he is not financially sound to
finance the appeal and was unable to cover the fees of Mr Selala or an
advocate to be enlisted.
[4] Having said all that, ultimately , he sought a postponement of the appeal for a
period of a month. Mr Manchu, appearing for the appellant forcefully argued
1 Published: GN 4775, G. 50608 of 3 May 2024 Commencement: 17 July 2024 – GN 5038, G. 50929
of 12 July 2024.
2 Ibid
3
against the postponement and actually submitted to us that the postponement
was a stratagem and the professional conduct of Mr Selala is called into
question. This, because Mr Selala had some two days ago expressed that
heads of argument will not be submitted until a ruling on urgency is made. He
actually pointed out to him that such a directive that the appeal shall be heard
on the allocated date had been made. He actually fobbed him off instead.
After deliberating on the issue, this Court refused to postpone the appeal on
the simple basis that it is not properly grounded. A postponement is not there
for a mere taking. Absent cogent grounds, a postponement should be refused.
This Court was particularly displeased with the conduct of Mr Selala. He
remained on record and failed to withdraw from the matter. He sent Mr
Modika to Court unrepresented. If he strongly held a view that , absent a ruling
on urgency it being a legal argument, the appeal must not proceed, he ought
to have appeared before us and advance that argument. If he was not placed
in funds as it was intimated, he still had a duty to appear and seek the Court’s
indulgence to be excused.
[5] As an officer of the Court, Mr Selala was duty bound to appear before us. His
conduct as an attorney of record is not o nly unprofessional as Mr Manchu
points out, but also in fact in contempt of this Court. This Court was minded to
direct Mr Selala to deliver an affidavit to this Court to fully explain his conduct,
but this Court jettisoned that thinking because Mr Selala is actually not a party
to the appeal proceedings. However, should his professional body get wind of
these lamentations of this Court, a decision may be taken to deal with the
conduct of Mr Selala . In our view, his conduct lacks honesty, candour and
competence.
Should the appeal be heard as one of urgency?
[6] One of the basis upon which the respondent resists the present appeal is that
[6] One of the basis upon which the respondent resists the present appeal is that
it does not deserve to be heard as one of urgency. It is surprising though that
when the respondent approached the Labour Court, he contended that the
matter deserved to be heard as one of urgency. The Labour Court agreed
with the first respondent and heard the matter as one of urgency. Now that the
4
first respondent has secured an order on an urgent basis, suddenly, the
matter no longer deserves the urgent attention of a higher Court.
[7] In terms of section 166(4) of the Labour Relations Act3, an appeal against any
final judgment or final order of the Labour Court in any matter in respect of
which the Labour Court has exclusive jurisdiction may be brought only to the
Labour Appeal Court. Such an appeal is to be brought with the leave of the
Labour Court as contemplated in section 166(1) of the LRA. Urgency in the
Labour Court is governed by Rule 38 of its own rules, whilst urgent appeals
are governed by Rule 7 of the Rules of the Labour Appeal Court. Rule 7
provides as follows:
‘7. Urgent appeal
(1) A party may on notice to all other parties apply to the Judge President
for an appeal to be heard urgently . The application must be supported
by an affidavit setting out reasons for urgency.
(2) The respondent may file an answering affidavit within 10 days of
receipt of the application set out in subrule (1).
(3) No reply from the applicant will be permitted. The Judge President, or
any other appeal judge designated for the process of deciding the
application for an urgent appeal will decide the application in
chambers.
(4) If the application is successful , the Judge President must give
directions as to the future conduct of the appeal.
[8] Regard being had to the text of the above rule, the application for an appeal to
be heard urgently is to be lodged with the Judge President and not the Court
of appeal as constituted by the Judge President. Now that the Judge
President has directed that the appeal should be heard urgently, the appellant
became successful, as such the issue has become res judicata (decided
issue). It is not an issue to be decided by the appeal Court. This Court has
3 Act 66 of 1995, as amended.
5
been constituted by the Judge President as a Court of appeal within the
contemplation of section 168(2) of the LRA.
[9] In its practice note filed in accordance with Rule 12 of the LAC Rules, the
appellant recorded that one of the primary issues to be argued is whether this
is an instance that warrants the hearing of the appellant’s appeal on an urgent
basis. Further, it was recorded that the respondent’s principal contention is
that the matter does not warrant adjudication on an urgent basis. As
demonstrated above, this Court of appeal does not have powers to determine
the issue of urgent hearing. The issue has already been determined by the
Judge President. Section 174(b) of the LRA, accords the Labour Appeal
Court, as constituted by the Judge President, powers to (a) confirm; (b)
amend; or (c) set aside the judgment or order that is the subject of the appeal
and to give judgment or make any order that the circumstances may require.
The judgment or order that is the subject of the appeal is the one made by the
Labour Court on 13 November 2025. Accordingly, this Court is devoid of any
powers to decide the application that fell in the hands of the Judge President.
[10] Notably, the first order made by the Labour Court on 13 November 2025, was
one hearing the application as one of urgency in terms of Rule 38 of the
Labour Court Rules. That order is not being impugned by the appellant in the
present appeal serving before us . Therefore, the issue of urgency does not
feature before this Court. For all the above reasons, this Court shall not
entertain any issue related to urgency.
Background facts pertinent to this appeal
[11] For the purpose of readability, this Court shall briefly set out the pertinent
facts of the present appeal. Otherwise, for the full rendition of the facts, this
Court shall graciously defer to the detailed judgment of the Labour Court
4.
[12] Mr Tebogo Vincent Modika is employed by the appellant, Industrial
4.
[12] Mr Tebogo Vincent Modika is employed by the appellant, Industrial
Development Corporation of South Africa (IDC) as a Senior Specialist:
Employee Relations and Transformation. Around July 2025, issues relating to
4 Modika v Industrial Development of South Africa and Another [2026] 2 BLLR 172 (LC).
6
the conduct of Mr Modika arose. Those related to the alleged malicious and
slanderous remarks made by Mr Modika to his colleagues. The appellant was
of the view that such conduct warranted disciplinary action in terms of the
policies applicable to the employees of the appellant. Following that, the
appellant engaged the services of Werksmans to advise it on the discipline of
Mr Modika.
[13] Consequently, on or about 5 August 2025, Mr Modika was placed on a
precautionary suspension. On 20 August 2025, Mr Modika launched a
complaint with the office of the Public Protector of South Africa. Additionally
on 25 August 2025, Mr Modika referred a dispute to the Commission for
Conciliation, Mediation and Arbitration ( CCMA) and alleged an unfair labour
practice regarding his suspension from duty. On 8 September 2025,
misconduct charges were proffered against Mr Modika. On 16 September
2025, the discipli nary hearing commenced before Mr Lavery Modise as a
chairperson. Mr Modika called ill on that day and the hearing was postponed
due to his indisposition. In the meanwhile, Mr Modika launched a complaint
with the Legal Practice Council (LPC) against attorney Sono. Whilst the
disciplinary hearing was adjourned, additional misconduct charges were
proffered against Mr Modika.
[14] On 1 October 2025, the disciplinary hearing was to continue when Mr Modika
revealed that he had blown a whistle and the issues pertinent to his whistle
blowing were being investigated. Resultantly, he sought a further adjournment
of the disciplinary hearing. Such an indulgence was granted. On 22 October
2025, Mr Modika requested the CCMA to attempt resolution of the unfair
labour practice dispute through arbitration since conciliation failed to resolve
the dispute. On 23 October 2025, Mr Modika requested the appellant to
suspend the continuation of the disciplinary hearing pending the conclusion of
the Public Protector and the LPC processes. Alternatively, he requested that
the Public Protector and the LPC processes. Alternatively, he requested that
the hearing be conducted in terms of the provisions of section 188A of the
LRA.
[15] All these requests were rejected by the appellant on 27 October 2025. On the
same day, Mr Modika filed a referral to the CCMA requesting a section 188A
7
inquiry by an arbitrator. Simultaneously, Mr Modika also requested a further
adjournment of the disciplinary hearing on the grounds of ill -health. In the
meanwhile, the appellant objected to the section 188A request and made that
objection known to the CCMA. Ultimately, the disciplinary hearing was
postponed to the date of 11 and 12 November 2025.
[16] On 10 November 2025, Mr Modika launched an urgent application in the
Labour Court seeking, amongst other, reliefs of a final nature, an interdict of
the continuation of the disciplinary hearing. Mr Modika was successful before
the Labour Court, hence the present appeal.
Judgment of the Labour Court
[17] The judgment of the Labour Court is lengthy and has dealt with almost all the
issues that were debated before it. It is noteworthy that the Labour Court
heavily relied on its previous judgment by the same judge in the matter of
Fischer v Ngcuka N.O and others
5. It is troubling for this Court to note that in
the notice of motion, the relief sought by Mr Modika was that of a final
interdict. He sought that:
‘2. Interdicting and restraining the first respondent from proceeding with
disciplinary hearing against applicant scheduled for 11-12 November 2025.
[18] More troubling for this Court is the case made by Mr Modika in his founding
affidavit. This being the case that the appellant was to meet at the Labour
Court. Mr Modika testified as follows:
’47 I submit that as an employee, I have a clear right to fair labour
practices and the right not to be unfairly dismissed as provided for in the
Constitution and the LRA . Even if I were to participate in the said disciplinary
hearing as arranged by the employer in its current format, the injustice that I
stand to suffer would not be addressed by any subsequent unfair dismissal
remedies provided for in the LRA.’
[19] Mr Modika was fortunate to walk away with more than what he bargained for.
Regarding the interdict, the Labour Court fashioned the following order:
Regarding the interdict, the Labour Court fashioned the following order:
5 (2025/189683) [2025] ZALCJHB 514 ((8 October 2025).
8
‘The internal disciplinary enquiry at the first respondent into the charges of
misconduct against the applicant, is interdicted and suspended pending a
decision by the arbitrator appointed by the second respondent whether the
disciplinary enquiry should be conducted in accordance with section 188A(11)
of the Labour Relations Act.’
[20] First and foremost, this order is completely at odds with the notice of motion
as well as the case made in the founding affidavit. Mr Modika did not seek an
interdict pending a decision of the arbitrator. On the facts of this case, it is
apparent that the CCMA had already decided to hold a section 188A(11)
enquiry. That much is clear from the fact that an arbitrator was already
appointed and the process was already set down for 17 November 2025, with
Commissioner Allan Kayne already appointed. The parties had already
received a notice of set down on 10 November 2025. Such means that the
CCMA had before 10 November 2025 made a decision that the section
188A(11) inquiry shall be convened. It baffles this Court as to why an interdict
or suspension of the disciplinary hearing, as fashioned by the Labour Court,
had to occur when it was not sought. More recently, the Constitutional Court
cautioned against an approach where a Court decides what it was not asked
to decide.
6
[21] In Director of Hospital Services v Mistry 7, the Appellate Division, then, the apex
Court, stated the law as follows:
‘When, as in this case, the proceedings are launched by way of notice of
motion, it is to the founding affidavit which a Judge will look to determine what
the complaint is … and has been said in many other cases … an applicant
must stand or fall by his petition and the facts alleged therein and that
although sometimes it is permissible to supplement allegations contained in
the petition, still the main foundation of the application is the allegation of
facts stated therein, because those are the facts which the respondent is
facts stated therein, because those are the facts which the respondent is
called upon either to affirm or deny.’ [Own emphasis]
[22] In Minister of Safety and Security v Slabbert 8, the learned Mhlant la JA, as she
then was, aptly stated the following:
6 See: Vodacom (Pty) Ltd v Makate and Another 2025 (6) SA 352 (CC) at para 99.
7 1979 (1) SA 626 (A) at 635H-636B.
9
‘The purpose of pleadings is to define the issues for the other party and the
court. A party has a duty to allege in the pleadings the material facts upon
which it relies. It is impermissible for a plaintiff to plead a particular case and
seek to establish a different case at trial. It is equally not permissible for a trial
court to have recourse to issues falling outside the pleadings when deciding
the case.’ (Own emphasis)
[23] More recently, the Supreme Court of Appeal reverberated similar sentiments in
De Nysschen v Government Employees’ Pension Fund and others 9. The
learned Dambuza JA, writing for the majority, competently stated the law thus:
‘[16] … Once the interdictory relief was granted, that should have been the
end of the matter.
‘[17] The court erred in granting the further, unsolicited order for payment
against the appellant. Apart from the fact that no such order had been
sought by the Department, the issue of the (re)payment of the benefit
was not necessary for determination of the mandatory interdict. Both
this Court and the Constitutional Court have repeatedly expressed the
principle that the dispute between parties is defined in the pleadings
before court. Courts may, on their own accord raise issues of law that
emerge fully from the record where consideration of those issues is
necessary for the decision of the case. In this case, the foundation for
the relief sought by the appellant was the Department’s refusal to
submit her exit documents to the GEPF. The Department’s defence
was that its refusal to submit the documents were justified given the
appellant’s obligation to pay to it the pension benefit paid to her. The
issue fell to be determined solely on the pleadings and evidence
rather than on the interests of justice basis advanced by the high
court.
[18] As it was submitted on behalf of the appellant, if the Department
intended to claim, in these proceedings, repayment of a debt due to it,
intended to claim, in these proceedings, repayment of a debt due to it,
it was incumbent upon it to set out a properly pleaded claim, and the
relief sought. It failed to do so despite a number of invitations
extended to it by the appellant. It merely contended that the appellant
8 [2010] 2 All SA 474 (SCA) at para 11.
9 [2024] 4 BLLR 349 (SCA) at paras 16 to 18.
10
was indebted to it. It was improper for the high court to grant relief that
had not been sought. The appeal must therefore succeed.”10
(Own emphasis)
[24] Accordingly, the Labour Court erred in issuing an order not sought by Mr
Modika. Regard being had to the pleaded case of Mr Modika, what he sought
to protect was his right to fair labour practice and the right not to be unfairly
dismissed as protected by the Constitution of the Republic of South Africa,
1996, (the Constitution) and the LRA. If Mr Modika sought an interim relief
pending a decision by the CCMA, his notice of motion should have said so. In
any event, such a relief, if sought, would have been oxymoronic because at
the time of approaching the Labour Court, the CCMA had already decided .
Nevertheless, these rights were never threatened by the appellant in any
manner. Applying the subsidiarity principle, Mr Modika could not seek
protection directly from the Constitution
11. Conducting an internal disciplinary
hearing per se does not threaten the right to be fairly dismissed, on the
contrary, it enhances it, as contemplated by section 188(2) of the LRA.
[25] It is not axiomatic that every disciplinary hearing ends with a dismissal .
Looking into the crystal ball or being clairvoyant on such an issue of how the
disciplinary hearing terminates is completely unwarranted. Section 188A(11)
affords an employee the right to request an inquiry by an arbitrator, provided
the jurisdictional requirements to exercise that right is met. This right was
never threatened and it was , on the pleaded facts , already successfully
exercised by Mr Modika. Properly considered, Mr Modika approached the
Labour Court with a declaration of rights frame of mind. The CCMA had
already exercised its powers by appoi nting an arbitrator. The appellant had
already objected to the imposed process . Therefore, Mr Modika was
somewhat seeking congruency from the Labour Court regarding what he
believed to be his rights.
believed to be his rights.
10 See also: Bliss Brands (Pty) Ltd v Advertising Regulatory Board NPC and others 2023 (10) BCLR
1153 (CC).
11 Union for Police and Corrections Organisation v South African Custodial Management (Pty) Ltd and
Others (2022) 43 ILJ 341 (CC).
11
[26] The consequences of affording an employee a right in section 188A(11) is
that the internal disciplinary hearing morphs into being an occupational
detriment. These are dire consequences for any employer, hence the need to
exercise the powers in the subsection rationally and without arbitrariness. By
a stroke of a pen, an employer may find itself on the wrong side of the law.
Section 3 of the Protected Disclosures Act
12 (PDA) prohibits subjecting an
employee to occupational detriment on account of having made a protected
disclosure. When faced with an application of the nature where the rights in
subsection (11) are asserted, the Labour Court must be satisfied on the
balance of probabilities that the jurisdictional requirements of invoki ng the
subsection have been met by the time it is approached, given the dire
consequences of the invocation of the subsection. The Labour Court is not
bound by the initial determination made by the Commission that the
jurisdictional requirements were met.
[27] Such initial deter minations are made for convenience. Greater care ought to
be exercised by the Labour Court because the subsection does not envisage
hearing an employer before the exercise of the statutory power to appoint an
arbitrator to conduct an inquiry on behalf of the employer. It cannot be, that an
employer’s right to fair labour practices , guaranteed in section 23(1) of the
Constitution could be limited contrary to section 36 read with section 34 of the
Constitution. Once rights in subsection (11) are afforded to an employee, the
employer without the application of the law , becomes a felon. Its internal
disciplinary proceedings, which may be well-meaning would instantaneously
have to terminate because it has since changed character – it is an
occupational detriment. This cannot be in keeping with the spirit, purport and
objects of the Bill of Rights. Section 39(2) of the Constitution impels every
objects of the Bill of Rights. Section 39(2) of the Constitution impels every
court when interpreting any legislation to do so by promoting the spirit, purport
and objects of the Bill of Rights.
[28] Since the decision of Setlogelo v Setlogelo 13, the discretionary remedy of
interdict existed to protect legally enforceable rights that are threatened
unlawfully. More recently, the Constitutional Court in United Democratic
12 Act 26 of 2000.
13 1914 AD 221.
12
Movement and Another v Lebashe Investment Group (Pty) Ltd and Others 14,
felicitously stated the law as follows:
‘[47] An interdict is an order by a court prohibiting or compelling the doing
of a particular act for the purposes of protecting legally enforceable
right, which is threatened by continuing or anticipated harm…
[48] In granting an interdict, the court must exercise its discretion judicially
upon consideration of all the facts and circumstances. An interdict is
“not a remedy for the past invasion of rights: it is concerned with the
present and the future”. The past invasion should be addressed by an
action of damages. An interdict is appropriate only when future injury
is feared.’
(Own emphasis)
[29] For various other reasons that will follow hereunder, the Labour Court erred
when it granted an interdict, more particularly where an irreparable harm was
not demonstrated by Mr Modika. The law as codified in City of Tshwane
Metropolitan Municipality v Afriforum and another
15 was aptly stated in the
following terms:
‘[55] Before an interim interdict may be granted, one of the most crucial
requirements to meet is that the applicant must have a reasonable
apprehension of irreparable and imminent harm eventuating should
the order not be granted…
[56] Within the context of a restraining order, harm connotes a common-
sensical, discernible or intelligible disadvantage or peril that is capable
of legal protection… And that disadvantage is capable of being
objectively and universally appreciated as a loss worthy of some legal
protection… ’
[30] With considerable respect, i n a rather contradictory fashion, the Labour Court
first concluded that ‘I am satisfied that the jurisdictional requirements under
section 188A(11) as discussed above have been met’. In the same breath, the
14 An unreported judgment (CCT 39/21) [2022] ZACC 34 (22 September 2022).
15 2016 (9) BCLR 1133 (CC).
13
Labour Court concluded that the arbitrator must be given an opportunity to
discharge his or her duties to decide whether or not to convene a pre-
dismissal arbitration proceeding under section 188A. Further, the Labour
Court concluded that ‘it is my view that the applicant has properly initiated a
process under the LRA which, if accepted by the CCMA would serve to finally
terminate the internal proceedings in the IDC’.
[31] The Labour Court in Mamodupi v Property Practitioners Regulatory Authority
and Another
16, which judgment the Labour Court herein supposedly followed,
held that before the jurisdictional requirements are met, the CCMA or
bargaining council is not empowered to accept a section 188A(11) referral. It
also held that what terminates the internal hearing is the acceptance of the
referral after the jurisdictional requirements are met. Differently put , where the
jurisdictional requirements are met, the internal enquiry terminates
automatically without a need for an interdict.
[32] Regard being had to the apparent contradictory findings, with considerable
regret, the Labour Court did not follow the Mamodupi precedent. It must be
mentioned that the Constitutional Court has refused direct access application
in seeking to overturn that precedent. The Labour Court herein does not find
that Mamodupi was wrongly decided. Therefore, it remained a binding
authority on the Labour Court on application of the stare decisis principle.
[33] I now briefly turn to the grounds punted for by the appellant. Broadly, the
grounds may be summarised as follows; (i) usurpation of the CCMA’s powers;
(ii) misapplication of section 188A(11) of the LRA; and (iii) impermissible
intervention in medias res.
Usurpation of the CCMA’s powers.
[34] An administrative body like the CCMA does not finally determine its
jurisdictional powers
17. It does so for the sake of convenience. Its decision on
that is not binding on a Court. This statement of law does not suggest that the
that is not binding on a Court. This statement of law does not suggest that the
16 (J68/23) [2023] ZALCJHB 19 (13 February 2023)
17 See: South African Rugby Players Association (SARPA) and others v SA Rugby (Pty) Ltd and
others [2008] 9 BLLR 845 (LAC) at para 40.
14
administrative body cannot on its own establish whether it possesses
jurisdictional powers to act. The foundational principle of administrative law is
that administrative bodies created by statutes should not exceed powers
granted to them. Those bodies are entitled to make an initial determination
regarding their authority to exercise a statutory power. Always , that initial
determination, will be subject to judicial review.
[35] Accordingly, a Court must wait for the administrative body to make the initial
determination. If the determination is on the objective facts wrong, a Court of
law can always set aside that initial determination on review. Therefore, a
Court of law, absent any judicial review , is not empowered to exercise the
initial determinatio n on behalf of the administrative body. When the Labour
Court concluded that the jurisdictional requirements to accept a section
188A(11) referral existed, it in error usurped the powers of the CCMA. The
jurisdictional facts alluded to in Mamodupi must be established by the CCMA
since it is a body statutorily tasked with the power to accept the referral.
[36] In Matlala v Foskor Proprietary Limited and others
18, the Labour Court
concluded thus:
‘[50] The next issue is whether it is appropriate to determine whether or not
the statutory enquiry can proceed? The request is made to the CCMA
or the relevant bargaining council . It is the commissioner or panellist
who is called upon to preside in the inquiry and therefore is first seized
with the question whether the request has been properly made. As far
as possible , this court should not be usurping that primary role by
determining the jurisdictional question in the form of issuing a
declarator before the request has been considered by the arbitral
forum. This is exactly what this court would do if it considered whether
Matlala is entitled to the primary relief.
[51] Should the court then grant an interim relief by suspending the internal
[51] Should the court then grant an interim relief by suspending the internal
inquiry pending the decision of the CCMA commissioner whether to
proceed with the s 188A(11) enquiry? If the court does not stay the
internal enquiry Matlala could be denied the opportunity of exercising
18 (2025/169524) [2025] ZALCJHB 478 (22 October 2025) at paras 50 and 51.
15
the right to request the statutory enquiry because, unless the request
for the statutory enquiry is accepted, the employer can proceed with
the internal one in the meantime.’
(Own emphasis)
[37] The findings by the Labour Court in Matlala are not , in my respectful view,
entirely correct. It is not the appointed arbitrator who must determine whether
the jurisdictional requirements are met or not. It is the Commission, the
council or the accredited agency as the administrative bodies that must
determine that. That much is clear from the text of subsection (1) read with
subsection (11). An arbitrator is appointed once the Commission, council or
accredited agency accepts a referral in accordance with section 188A(11) .
The role of the appointed arbitrator once so appointed is to hear the
misconduct or incapacity allegations. The decision to appoint the arbitrator is
that of the administrative body and not the arbitrator himself . The jurisdictional
requirements alluded to in M amodupi is entirely different to a jurisdictional
issue that may arise in a conciliation or arbitration process. An appointed
arbitrator becomes functus officio on the question whether to accept or reject
the referral. However, that inquiry by the arbitrator is a still born until an
administrative decision is made to accept the referral to conduct an inquiry by
the arbitrator . Different from the present matter, in Matlala , the applicant
expressly prayed for an interdict pending a ruling by the CCMA. This prayer
somewhat justifies the order ultimately made in paragraph 2 of the order in
Matlala. The primary remedy prayed for by Matlala was a final interdict of the
disciplinary hearing, similar to the relief sought by Mr Modika. That primary
relief was refused.
[38] Inasmuch as there was evidence that de facto (factually) the CCMA, as of 2
November 2025, had accepted the referral, there was no evidence that the
jurisdictional facts were found to be present. In Mamodupi, the Labour Court
jurisdictional facts were found to be present. In Mamodupi, the Labour Court
emphatically found that the CCMA must refuse to accept the referral if the
jurisdictional requirements did not exist, in which case, the internal disciplinary
hearing remains unaffected.
16
[39] One of the crucial jurisdictional requirement is that Mr Modika had to establish
that he made a protected disclosure. No competent and objective evidence
was led by Mr Modika that he made a protected disclosure as defined in the
PDA. On the contrary, on his own version, he lodged a grievance against his
superior. A grievance against a fellow employee is not a protected disclosure
as defined. Mr Modika testified before the Labour Court as follows:
‘22. Meanwhile, on 29 July 2025 already, I lodged a Protected Disclosure
complaint under the PDA for harassment, bullying and abuse of power
with Talent Management and Organisation Effectives against the
Head Ms Lydia Mdaka. I was clear that the formal complaint is lodged
under PDA, I was since provided with a Reference Number thereto.
27. On 08 September 2025 I received an email from the DE: Human
Capital to inform me that a law firm, ENS Africa, has been appointed
to investigate my complaint which I lodged on 29 July 2025.’
[40] This Court is in full agreement with the vista shared by the learned Lekhuleni
J in the matter of Ramela v Saths Cooper (N.O) and two others 19, where t he
learned Justice said:
‘[57] The institution of disciplinary action itself is not an occupational
detriment. As foreshadowed above, for the institution of disciplinary
action to be an occupational detriment, it must be in response to a
protected disclosure’ and a causal connection must exist between the
protected disclosure and the disciplinary action…’
[41] The learned Justice in Ramela , after being influenced by Mamodupi,
dismissed an application with costs. Ramela had sought an interim interdict.
[42] Undoubtedly, what Mr Modika did was to lodge a complaint/grievance against
Ms Mdaka. As pointed out in Mamodupi , a protected disclosure invites a
misery and or detriment against an employee who makes it. In this instance,
the appellant instead took it upon itself to appoint a law firm to investigate
the appellant instead took it upon itself to appoint a law firm to investigate
what was clearly a complaint against Ms Mdaka. The fact that Mr Modika
chose to label the complaint a protected disclosure does not make it one. It is
19 (2025-055130) Western Cape Division, Cape Town (25 April 2025) at para 57.
17
not a situation of if it looks like a duck, swims like a duck, and quacks like a
duck, then it probably is a duck . Section 1 of the PDA defines what a
disclosure and a protected disclosure means. The complaint that was
investigated did not meet the requirements of section 1.
[43] Mr Modika is disclosing nothing but that he simply complained about the
treatment he allegedly received from Ms Mdaka. Ironically, Mr Modika, in his
referral documents to the CCMA, craftily seemed to be connecting the alleged
protected disclosure with the suspension that had occurred on 5 August 2025.
Impliedly, the occupational detriment would have been the suspension
because of its closeness, in terms of date, to his alleged protected disclosure.
He made the referral on 27 October 2025. It must have dawned on him that
almost three months had passed in between the alleged disclosure and the
now assumed occupational detriment, the initiation of the disciplinary inquiry.
[44] As held in Mamodupi, and accorded an imprimatur in Ramela , an
occupational detriment must be swift in order to causally connect it to the
protected disclosure. The question is , why would the appellant wait three
months in order to deal with the whistle blower ? It is preposterous for an
employer to waylay, as it were, a whistle blower. Like a female lion hunter, the
employer must pounce on its pr ey at the earliest available opportunity.
Instead Modika received joy because the appellant appointed a law firm to
investigate his complaint.
[45] The Labour Court went a little overboard in its judgment when it characterised
the complaint as a failure to comply with the legal obligations on the part of
Ms Mdaka , that she compromised the health of individuals and acted
discriminately. Nevertheless, it remains the duty of the CCMA to establish
whether a bona fide disclosure causally linked to the alleged occupational
detriment existed before invoking the statutory power in section 188A(11). It is
detriment existed before invoking the statutory power in section 188A(11). It is
not the duty of the Labour Court to establish the existe nce of the jurisdictional
requirements. The Labour Court is not empowered to exercise any power
located in section 188A(11). Accordingly, this Court agrees that the Labour
Court usurped the powers of the CCMA.
18
Misapplication of section 188A(11) of the LRA
[46] Having found that the Labour Court usurped the powers of the CCMA, it
follows axiomatically that the Labour Court misapplied the section. As
confirmed in Mamodupi , it is the CCMA that must reach a conclusion that it
must accept referral and exercise powers located in the subsection. It bears
mentioning that subsection (11) references subsection (1), which expressly
provides that the request must be directed to a council, an accredited agency
or the Commission. Thus, a similar request may be made by an employee to
the same bodies. It cannot be a request to the Labour Court. The Labour
Court cannot appoint an arbitrator. The request is specific, that is to appoint
an arbitrator. Where subsection (11) refers to an inquiry, it is not any other
inquiry but one that is conducted by an arbit rator to be appointed by the
recognised administrative bodies.
[47] There can be no doubt that Mamodupi was correct when it concluded that in
order to invoke the powers in subsection (11), the stated jurisdictional
requirements must exist. It was not suggested in Mamodupi that it is the duty
of an arbitrator during the conducting of the inquiry to determine bona fide
disclosure and all related factors of a protected disclosure. In conducting the
inquiry into allegations of misconduct or incapacity, the already appointed
arbitrator will not enquire into whether section 3 of the P DA has been
contravened. That remains the powers of a Court as contemplated in section
4(1)(a) of the PDA. Only section 191(13)(a) of the LRA grants the Labour
Court powers to determine an unfair labour practice as defined in
section186(2)(d) of the LRA. In passing, I mention that it may be argued that
section 4(1)(b) of the PDA affords the CCMA some powers to provide
remedies. However, such an issue did not arise before us. The power to
appoint an arbitrator does not lie with the arbitrator himself or herself. It lies
appoint an arbitrator does not lie with the arbitrator himself or herself. It lies
with the council, accredited agency or Commission as administrative bodies.
Before an arbitrator may be appointed – an exercise of statutory or public
power, the three mentioned bodies must ensure that they do not act ultra vires
(outside powers).
19
[48] The powers in subsection (1) and (11) are no different to the powers
contemplated in, for instance, sections 135(1) or 136(1) of the LRA. As an
example, absent a dispute – jurisdictional fact – a power cannot exist to
appoint a commissioner. Similarly , absent the jurisdictional facts tabulated in
Mamodupi, a statutory power to appoint an arbitrator cannot be exercised.
The principle of legality, as expressed in a barrage of judgments of the
Constitutional Court, simply implies that absent powers, a functionary cannot
exercise statutory or public power.
20
[49] An additional factor to highlight is that unlike in a subsection (1) situation
subsection (11) does not contemplate a consent of the other party (employer).
It is clear , as found in Mamodupi, that subsection (11) serves as a buffer
against an occupational detriment. It actual ly serves as an interdict on its own
once the jurisdictional facts are established. What immediately springs to
mind is section 64(4) and (5) of the LRA with regard to the implementation of
the unilaterally changed conditions of employment. An employee who is
buffered by the exercise of this powerful statutory power is armoured to seek
an interdict if an employer seeks to jeopardise the appropriately accorded
buffer. Self-help is inimical to a rule of law
21. Regard being had to the order
granted by the Labour Court and its reasoning considered in this judgment, it
goes without saying that the Commission when it appointed Commissioner
Allan Kayne it had not established that the required jurisdictional facts existed.
If the Commission did establish the existence of the jurisdictional
requirements, it was a futile exercise for the Labour Court to allow the
Commission to later, after the appellant being interdicted, to still accept
jurisdiction. Clearly, the purpose of accepting jurisdiction is to ensure that the
internal disciplinary hearing is terminated as found in Mamodupi.
internal disciplinary hearing is terminated as found in Mamodupi.
20 Department of Transport and Others v Tasima (Pty) Limited (CCT5/16) [2016] ZACC 39;
2017 (1) BCLR 1 (CC); 2017 (2) SA 622 (CC) para.81
21 Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC) at para 18.
20
[50] As far back as 1986, the then Appellate Division (now Supreme Court of
Appeals) in Duncan v Minister of Law and Order 22 expressed the law in the
following terms:
‘If the jurisdictional requirements are satisfied, the peace officer may invoke
the power conferred by the subsection, i.e. he may arrest the suspect. In
other words, he then has a discretion as to whether or not to exercise that
power… ’
[51] The above view was sagaciously expressed by the SCA in Minister of Safety
and Security v Sekhoto and another23 in the following terms:
‘Once the jurisdictional facts for an arrest … in terms of any paragraph of
section 40(1) … are present, a discretion arises. … In other words, once the
required jurisdictional facts are present the discretion whether to arrest or not
arises.’
[52] Duncan and Sekhoto were cited with approval by the Constitutional Court in
the matter of Raduvha v Minister of Safety and Security and another 24.
Accordingly, a proper application of subsection (11) requires a consideration
of the question whether the functionary (Council, Accredited Agency or
Commission) had established that the jurisdictional facts are present before
exercising the statutory power to accept jurisdiction and appoint an arbitrator.
According to Hoexter the point about jurisdictional facts is that the exercise of
power depends on their existence or observance, as the case may be. If the
jurisdictional facts are not present or observed then the exercise of power will
as a general rule be unlawful25.
[53] By seeking to establish and find the jurisdictional facts on its own, the Labour
Court misapplied section 188A (11). A jurisdictional fact is a pre- condition
which must exist prior to the exercise of administrative power and not after the
exercise of the power. In this matter, it is apparent that the Labour Court
condoned the exercise of the power to appoint the arbitrator and still , for
22 1986 (2) SA 805 (A) at 818G-H.
23 2011 (5) SA 367 (SCA) at para 28.
22 1986 (2) SA 805 (A) at 818G-H.
23 2011 (5) SA 367 (SCA) at para 28.
24 2016 (10) BCLR 1326 (CC).
25 C Hoexter Administrative Law in South Africa 2ed (2012) 209.
21
reasons that are not altogether clear to this Court, proceeded to afford the
Commission a reprieve, as it were, to regularise its unlawful conduct whilst at
the same time unleashing the discretionary remedy of an interdict in the
circumstances where no clear and protectable right was demonstrated. The
Labour Court, in my respectful view, had put the cart before the horses. That
is nothing but a misapplication of the subsection.
Impermissible intervention in Medias res
[54] The Labour Court correctly observed that a Court is authorised to intervene in
incomplete proceedings only in exceptional circumstances. As to what
exceptional circumstances mean, this Court can do no better than what the
Constitutional Court stated in the Law Society of South Africa and others v
President of the Republic of South Africa and others
26, when it expressed that
such circumstances arise where an aggrieved person cannot be afforded
substantial relief once a process is completed.
[55] The Labour Court accepted that Mr Modika has a right in terms of the
subsection to refer a dispute to the CCMA. The Court was satisfied that since
Mr Modika was asserting a right afforded in the LRA, a grave injustice would
occur if the internal disciplinary process is not interfered with. This Court fails
to understand this reasoning or the forensic plied by the Labour Court in this
regard. For starters, absent jurisdictional requirements the right in the
subsection does not avail to Mr Modika. No grave injustice would have
occurred, particularly because a substantial redress existed in due course.
Assuming for now that the internal disciplinary inquiry was indeed an
occupational detriment, if a dismissal ensues after the completion of the
disciplinary inquiry, section 187(1)(h) of the LRA considers that dismissal to
be automatically unfair. Such is a powerful redress which is available in due
course. No grave injustice would occur.
[56] Such simply implies that there were no exceptional circumstances that forced
[56] Such simply implies that there were no exceptional circumstances that forced
the Labour Court to have intervened. As the Law Society case decreed, the
interests of justice also play a role. It is not in the interest of justice for Courts
26 2019 (3) SA 30 (CC).
22
to interfere in incomplete domestic proceedings. A right located in the
subsection may only be asserted and availed to an employee once the
jurisdictional requirements are shown to exist. Until then a mere referral to the
CCMA is not an assertion of a protectable right. A protectable right would
arise once the jurisdictional requirements are met. Courts should truly be slow
to interfere in incomplete proceedings. On proper assessment of the facts
herein it is more probable than not that Mr Modika simply lodged a grievance,
which is not a right in terms of the LRA. In Mkokeli v Bloemberg LP
27 after
placing reliance on the judgment of this Court in DBT Technologies (Pty) Ltd v
Garnevska
28, the Labour Court concluded that lodging of a grievance does
not amount to an exercise of a right conferred by the LRA.
[57] Similarly, in lodging a complaint against Ms Mdaka, Mr Modika was neither
exercising a right in terms of the LRA nor did he make a protected disclosure.
The fact that he, with respect, labelled it a protected disclosure with a
reference number does not make it a protected disclosure, irrespective of
what appears to be an alarmist and sensational approach. It was not
necessary for him, when lodging a grievance against Ms Mdaka, to still give it
a label – Protected Disclosure. Such was a misnomer seeking to hype up
sensation and alarming. This Court repeats, just because he gave it that label
does not mean it is a protected disclosure. In my view, with due respect, the
misnomer was actuated by self -fulfilling prophecy to personally gain some
censure being meted out by the appellant against Ms Mdaka.
Conclusions
[58] This Court takes a firm view that an interdictory relief as fashioned by the
Labour Court was unwarranted. As a matter of fact, Mr Modika failed to
establish a clear right which is protectable by way of an interdict. The fact that
a decision of the CCMA pends, which in effect it was already taken, albeit
a decision of the CCMA pends, which in effect it was already taken, albeit
unlawfully, it would seem, does not entitle Mr Modika to an interdictory relief.
The Constitutional Court has long decreed that approaching a Court for
review does not give rise to a right protectable by an interdict. The fact that Mr
27 (2021) 42 ILJ 1224 (LC).
28 [2020] 9 BLLR 881 (LAC).
23
Modika referred a request to the CCMA does not give rise to a protectable
right. In National Treasury and Others v Opposition to Urban Tolling Alliance
and Alliance and others (OUTA)29, the learned Moseneke DCJ expressed the
following:
‘[50] Under the Setlogelo test, the prima facie right a claimant must
establish is not merely the right to approach a court in order to
review…it is a right to which if not protected by an interdict, irreparable
harm will ensue.
[51] … therefore, the harm that the applicants rely upon will not be
caused by the past decisions they impugn in the review. There is a
misalignment between the decisions they seek to review and the
source of the harm they fear.’
(Own emphasis)
[59] This Court is satisfied that Mr Modika will not suffer an irreparable harm if the
disciplinary inquiry, chaired by an external legal practitioner were to proceed.
As indicated earlier, if the disciplinary inquiry amounts to an occupational
detriment, a dismissal that may ensue would be in contravention of the PDA
and automatically unfair. In fact, it is the appellant who is risking by
proceeding with an occupational detriment regard being had to the provisions
of section 187(1)(h) of the LRA.
[60] As indicated in this judgment, the Labour Court erred by usurping the powers
of the CCMA, misapplying the subsection and impermissibly interfering in
medias res absent exceptional circumstances
30.
[61] Because of all the above reasons, the appeal must succeed.
[62] In the circumstances the following order is made:
Order
1. The appeal is upheld.
29 2012 (6) SA 223 (CC) at paras 50 and 51.
30 See: S v Ruldolph 2010 (1) SACR 262 (SCA) regarding the meaning of exceptional circumstances.
See also: Booysen v Minister of Safety and Security and Others [2011] 1 BLLR 83 (LAC).
24
2. The order of the Labour Court is set aside and replaced with an order
dismissing the urgent application with no order as to costs.
3. There is no order as to costs.
_______________________
G. N. Moshoana
Acting Judge of the Labour Appeal Court of South Africa
Tokota AJA and Djadje AJA concurring.
APPEARANCES:
For the Appellant : Mr T Manchu with Ms S Lindazwe
Instructed by: Werksmans, Sandton
For the Respondent : Mr Modika in person