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REPUBLIC OF SOUTH AFRICA
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IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, THOHOYANDOU
CASE NO: 511/2020
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES{# rf,
(3) REVISED. v
In the matter between:
RALEPHENYA PHEEHA MOSES : APPLICANT /PLAINTIFF
And
THE SOUTH AFRICAN CUSTODIAL MANAGEMENT (PTY) LTD: RESPONDENT /
DEFENDANT
CASE NO: 583/2020
In the matter between:
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VINCENT MUNGALO: APPLICANT /PLAINTIFF
And
THE SOUTH AFRICAN CUSTODIAL MANAGEMENT (PTY) LTD: RESPONDENT/
DEFENDANT
JUDGMENT
DENGE AJ
PRELUDE
[1) The virtual hearing of the application for leave-to appeal in this matter, took place on 11
November 2025. Just after the parties had wrapped up the argument , I let them know that I
would need the transcript of the court proceedings so I could prepare for the writing of this
judgment. Twice during November and December 2025 respectively, I received a transcript
that unfortunately could not open. On 16 January 2026, Vodacom Service Provider helped
to open the transcript for me. Thereafter; was I then put in a position to do the relevant
preparation.
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INTRODUCTION
[2] The applicants/plaintiffs brought a consolidated application for leave-to appeal to the
Supreme Court of Appeal (SCA), the judgment that I handed down on 06 September 2024.
The application was opposed by the respondent. Hereinafter, I shall refer to the applicants
by their names, namely; Mungalo and Ralephenya and to the respondent as SACM.
Whenever it will be necessitated by the context, I shall use the parties' names and or their
respective appellations ('plaintiff/s' or 'defendant') , interchangeably .
LEGAL FRAMEWORK
[3] Section 17 (1) of the Superior Courts Act, number 10 of 2013 provides as follows:
"Leave to appeal may only be given where the j udge 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 conflicting judgments on the matter under consideration;
(b) ... "
[4] The legal representative for the defendant, Mr. Matumba submitted in argument that the
proposed appeal has no prospects of success. I pause to give a brief summary of the
factual background .
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FACTUAL BACKGROUND
[5] Ralephenya and Mungalo are former employees of SACM; who served SACM
respectively, as a unit manager and a custodial officer. They were dismissed from
employment following disciplinary hearings at which they were both found guilty as
charged. Ralephenya was found guilty of gross negligence following his failure to report to
his supervisors, an alleged threat by a disgruntled inmate, to burn his cell, which threat the
inmate executed eventually. An investigation report had suggested that he should not be
charged, but the prison director decided otherwise. Ralephenya was aggrieved thereby,
and expressed that he was not supposed to have been charged without first being afforded
an opportunity to make representations, as to why he should not be charged. There was
however no dispute that SACM had never before given an employee an opportunity to file
any such representations. It is conducive to clarity to mention that if he had been given an
opportunity to submit such representations; that would have taken place over and above
the statement that he had furnished to the investigator wherein he admitted failure to report
the said threats to his supervisor. Mungalo was found guilty for absenting himself from
work without informing his manager of the fact, and also without furnishing reasons for
absenting himself. He was found guilty on his guilty plea. He, however was aggrieved by
SACM's failure to implement the Chairperson's sanction, that, he be issued with a final
written warning, valid for 12 months. Both plaintiffs referred their respective unfair dismissal
disputes to the CCMA, which ruled that its jurisdiction was ousted as the respective
SACM's contracts required that the dispute be referred to arbitration. The plaintiffs'
requests to be re-instated back to work while their matters were referred for arbitration were
not acceded to by SACM. They then approached this Court by way of action, seeking
not acceded to by SACM. They then approached this Court by way of action, seeking
damages for loss of earning capacity and emotional shock; which they both averred in their
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respective pleadings and also testified about before me; flowed from SACM's conduct,
which conduct , according to them, violated their respective rights to fair labour practice as
envisaged in section 23 (1) of the Constitution of the Republic of South Africa, 1996 (the
Constitution); violated their respective rights to just administrative action as envisaged in
section 33 (1) of the Constitution and also violated their respective rights to a fair hearing,
in terms of section 34 of the Constitution .
[6] The plaintiffs asked for the following orders, respectively : (1) that it be declared that the
SACM's conduct is unconstitutional and a violation of their respective rights to fair labour
practices , their respective rights to just administrative action and their respective rights to a
fair hearing; and thus invalid; (2) that they respectively, be awarded damages for loss of
earning capacity, in the amount of R6 912 000. 00 and R6 864 000, 00; (3) that they each
be awarded damages for emotional shock, in the amount of R 800 000. 00; (4) that SACM
be ordered to pay costs of action, including costs of employment of 2 attorneys and (5)
granting further and or alternative relief.
[7] Importantly, as against both plaintiffs; in its plea SACM denied the alleged infringements
of their constitutional rights, and put them to proof. SACM further denied that it was in fact
or in law obliged to pay the respective plaintiffs the amounts claimed. Further that in the
case of Mungalo; SACM denied that the conduct he was complaining about was an
administrative action in terms of PAJA.
[8] Subsequently, and after listening to the evidence adduced by either side and after the
parties' closing argument, I disposed of the matter _ most importantly; by upholding the
point- in limine relating to the applicability of the subsidiarity principle, which point-in limine
was raised on behalf of SACM, during the parties' closing argument. I had found, in that
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regard, and based on the view that I had of the matter, that, instead of implicating the
Constitution directly, the plaintiffs should have attacked the Labour Relations Act, number
66 of 1996 (LRA); which legislation SACM averred, and was also common cause, that, it is
or was deficient in that, section 193 thereof provided limited remedies for unfair
dismissals , in the form of re-instatement , re-employment or compensation of not more than
the equivalent of 12 months' remuneration , calculated at the employee rate of remuneration
on the date of dismissal, in terms of section 194 of the same Act. I further held that, the
'delictual claims' were not sustainable , therefore. Lastly, I ordered each of the plaintiffs to
pay the costs of suit.
[9] In their application for leave-to appeal , against the judgment or order relating to my
upholding of the said point-in limine and the respective cost orders, the plaintiffs raised and
argued the grounds that I shall refer to briefly below.
GROUNDS FOR LEAVE TO APPEAL
[1 O] The legal representative for the plaintiffs, Mr. Ravele submitted, as a point of
departure , that, the High Court conflated the plaintiffs' prayers for a declarator and their
respective 'delictual' claims for damages arising from loss of earning capacity and
emotional shock; also contending that, the conflation was due to the High Court not having
been alive to the legal principle that, the same set of facts may give rise to several causes
of action. Mr. Ravele further submitted, that, so the argument goes; had the High Court
been alive to that principle, it would have found that the plaintiffs' respective damages
claims were delictual claims in common law; further that it would have found that their other
respective claims were for constitutional declarators _ and most importantly that, they
were not claiming constitutional damages. Mr Ravele submitted that the High Court should
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have granted the plaintiffs the relevant declarators and that it should have decided on their
'delictual' claims; instead of non-suiting them. He also contended that the High Court ought
to have found that the plaintiffs' respective causes of action had been litigated before, in
Good Year SA (Pty) Ltd v Weitz, [2013] ZAECPEHC 49; (2014) 35 ILJ 441 (ECP) _
further that, on that ground alone, so the argument goes, there was a prospect of success
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that 'the Supreme Court of Appeal would intervene and set aside the High Court order.
[11] Dealing with the question whether the principle of subsidiarity found application or not;
Mr. Ravele complained that the related point-in limine raised by Mr. Matumba was raised
for the first time during argument, as it was not pleaded. Mr. Ravele contended that, the
High Court ought to have held the defendant strictly to the pleadings. The same argument,
which was resisted by Mr. Matumba, was also raised during the trial proceedings. I dealt
with that question in paragraph [31] of my judgm ent; which paragraph ought to be read
together with paragraphs [28] and [29] of the same judgment_ where I dealt with case-law
that allows a litigant to raise a point-in limine even outside the pleadings .. It is my view, on
the foregoing, that, the relevant ground has no merit.
[12] Further on the principle of subsidiarity , Mr. Ravele submitted that, the principle was of
no relevance, as, so the argument goes; the pleaded case was based on delict, and that
the plaintiffs were not directly relying on a fundamental right 'contained in the Constitution.'
Importantly, in the same regard, Mr. Ravele contended that the plaintiffs confronted the
LRA head-on and 'invoked the constitutional declarator and delictual claims as a
means to show that the LRA falls short of fulfilling the obligations of Parliament.' It
was further contended in the same regard, that, 'the High Court should have found that
was further contended in the same regard, that, 'the High Court should have found that
where a gap exists in legislation, the principle of subsidiarity does not apply and that the
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litigant may resort directly to common law or Constitution and or both.' Thus, in my view
partly contradicting the holding of the Constitutiona l Court per Jafta J in Thubakgale and
Others v Ekurhuleni Metropolitan Municipality and Others (CCT 157/20) [2021] ZACC 45;
2022 (8) BCLR 985 (CC) (7 December 2021) where; as seen from paragraphs [43] and
[44] of my judgment, Jafta J dealt with the principle of subsidiarity as a hurdle standing in
the way of constitutional damages. More pertinent is the extract from Thubakgale in
paragraph [44] of my judgment that reads thus: "If these pieces of legislation were
defective, the remedy open to the applicants was for them to challenge the validity of
this legislation rather than relying directly on the Constitution.[206]" I shall address
the common law aspect of Mr. Ravele's said argument later in this judgment. Suffice it to
say, that, the relevant legislation referred to in Thubakgale (above) was an effect-giving
legislation, or legislation, that was meant to give effect to a fundamental right, contained in
the Constitution.
[13].One of the most notable of Mr, Ravele's arguments in the same regard was that, in
fact; unlike in for example PAJA; the legislation in respect of which section 33 (3) of the
Constitution provides that "[N]ational legislation must be enacted to give effect to
these rights ... "; the LRA is not legislation that was enacted to give effect to the right
envisaged in section 23 of the Constitution. [My underlining .l. In the process, Mr. Ravele
laid emphasis on the employment of the word 'musf in PAJA, as opposed to the word
'may', that is employed in the LRA. Nothing turns on that difference, in my view. First,
because the word 'may' in the LRA is to do only with legislating in relation to collective
bargaining. Lastly, and as Mr. Matumba has correctly argued, in my view; and further, as I
held in paragraph [66] of my judgment also; one of the objectives of the LRA is to give
held in paragraph [66] of my judgment also; one of the objectives of the LRA is to give
effect to section 23 of the Constitution. It matters not, that, unlike section 33 (3) of the
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Constitution, that has a sweeping provision that relates to the enactment of an effect-giving
legislation; section 23 of the Constitution does not contain a similar provision. What matters
is that, the same parliament that has enacted the Constitution , has not only enacted the
LRA, but it has made one of the objectives of the LRA, as being to give effect to section 23
of the Constitution. For these reasons, the relevant argument by Mr. Ravele cannot stand.
[14] One of the grounds advanced by Mr. Ravele in support of the plaintiffs' application for
leave-to appeal was that the High Court was functus officio when it decided on the question
of the subsidiarity principle, as Semenya DJP had, at the beginning dismissed SACM's
special plea of the Court's alleged lack of jurisdiction _ thus, in my view suggesting that, I
have revisited the same question that DJP Semenya had disposed of, and had not even
been appealed against. As Mr. Matumba contended in argument, and correctly so, in my
view; unlike DJP Semenya who dealt with the question of jurisdiction, I dealt with the
question of the principle of subsidiarity that arose after I had heard the evidence on the
merits. This ground, therefore cannot stand also.
[15] The whole question of the subsidiary principle was dealt with within the context of the
plaintiffs' respective pleaded cases. It unavoidably called for the interpretation of the
relevant pleadings. As alluded above, Mr. Ravele attempted to draw a parallel between the
facts in this matter and the facts in the matter in Good Year SA (Pty) Ltd (Good Year SA)
(above); both in support of his argument that each plaintiff instituted 3 different actions, and
in support of his argument that the delictual claims in Good Year SA and the averred
'delictual claims' in the present matter, are or were based on similar facts or averments. In
the ensuing paragraphs, I shall demonstrate why, in my view; the two matters are
the ensuing paragraphs, I shall demonstrate why, in my view; the two matters are
distinguishable, and why on the relevant advanced ground alone, there is no prospect of
success that the Supreme Court of Appeal would intervene and set aside the impugned
judgment. .
[16] In Good Year SA, the High Court was doing with an exception that was directed at one
of the two claims that actually arose out of the same set of facts. The respondent/ plaintiff
was employed by the 1st defendant/applicant. During the course of the plaintiff's
employment the 2nd and the 3rd defendants (who were the 1st defendant's employees ,
apparently) lodged a complaint against the plaintiff ( of the alleged racism at the workplace)
with the 1st defendant. The 1st defendant subjected the plaintiff to a disciplinary enquiry
without first properly investigating the said allegations . Two charges were withdrawn , and
the plaintiff was acquitted on the remaining charges, eventually. Subsequent to that, the
plaintiff , among others, sued the 1st defendant for damages for loss of earning capacity,
which he averred in his combined summons, he had suffered as a result of the emotional
damage that had rendered him unemployable . He averred that the conduct of the 1st
defendant in acting on the said false and malicious information from the 2nd and 3rd
defendants without properly investigating the matter; resulted in him suffering the said
damages . The 1st defendant then excepted on the basis that the Particulars of Claim lacked
averments necessary to sustain a cause of action.
[17] Eksteen J dealt with all the five requisites for a conduct that found a claim under the
actio legis aquiliae. Regard being had to the facts of the matter that is the subject of the
matter at hand; I will confine myself to the element of "unlawfulness" or "wrongfulness ".
Dealing with the element of "unlawfulness" or "wrongfulness ", Eksteen held in paragraph
[19):
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"In the circumstances, particularly where a serious charge which may hold serious
consequences is leveled against an employee, the Code of Good Practice: Dismissal
requires of an employer to conduct an investigation into the a/legations prior to the
disciplinary proceedings being initiated. His failure to do so would, in my view,
constitute a breach of a legal duty. In the absence of such an enquiry I do not think
that there are considerations of public policy which would induce a court to deny
liability in an appropriate case."
[18] I alluded above, when I dealt with the matter of Ralephenya in particular, that, a pre
hearing investigation did take place. That is apart from the fact that, that was common
cause between the parties. I have also expressed that it appeared that, it was not unusual
for the prison director or SACM to institute disciplinary proceedings against an employee,
even if the pre-hearing investigation report did not recommend that such proceedings be
instituted. Seemingly, it is no wonder, in my view, that, the plaintiffs pleaded their cases in
the manner they did. As I shall later demonstrate in this judgment; the plaintiffs appeared to
have found themselves in an awkward situation or between the rock and a hard place.
Suffice it to say, at this stage, that, the matter that is the subject of the matter at hand, is
distinguishable from Good Year South Africa.
[19] In dealing with the general principles governing the interpretation of pleadings, the
Supreme Court of Appeal held as follows in paragraph [21], in the matter of Presidency
Property Investments (Pty) Ltd and Others v Patel (2001 (5) SA 432 (SCA) [2011] ZASCA
73; 407/10 (25 May 2011):
" ......... . . It may well be that a putative claim may be winkled out of a clearly pleaded
cause of action sufficient to support another barely discernable cause... Such
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recognition of the concealed cause would be at odds with the object of pleading, viz
clear and precise definition of issues, and be an invitation to misleading formulation
of claims. As such the party seeking to rely on it will necessarily require special
circumstances to persuade a court to come to his assistance. In the end however he
will have no leg to stand on if recognition can only be afforded to the prejudice of the
opposing party or at the cost of proper investigation into the emerging issue. This is
such a case."
[20] As I have expressed in my earlier judgment, the respective plaintiffs' pleadings were or
are couched in a way that, there is an averred nexus between the averred conduct on the
part of SACM, which conduct, according to them, constituted an infringement of their
constitutional rights; and the averred emotional shock and loss of earning capacity, that
they averred had resulted in damages.
[21] Linked to that in my view, are the plaintiffs' averments in their respective replications ;
as stated in paragraphs [24] and also in paragraphs [48] to [52] of my earlier judgment. In
that regard; erroneously relying on the judgment of the Constitutional Court in Pretorius and
Another v Transport Pension Fund and Another, 2019 (2) SA 37 (CC) (26 April 2018)
ZACC, paragraph [51], the plaintiffs averred that "a fair labour practice claimant may be
entitled to rely on the Constitution directly without having to show that the LRA (or
patchwork of other statutes) is deficient." As I have reasoned in my earlier judgment , it is
trite, that, the applicability of the principle of subsidiarity is not rigid. The relevant principle
applies on a case-by-case basis. I then found therefore, that, the fact that the subsidiarity
principle was not applied in Pretorius (above) did not necessarily mean that it was not
applicable to the matter that is the subject of this judgment.
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[22] In my view the plaintiffs herein clothed their respective claims in the Constitution; yet
they wanted me to grant declarators and to simultaneously decide on their putative delictual
claims. I am being accused of having omitted to grant the declarators ; and also of having
nonsuited the plaintiffs in relation to the supposed delictual claims, without even giving any
reasons; so the argument goes. I venture to say, that, the plaintiffs have not been
nonsuited. Seen as a whole , the matter had to be decided on the subsidiarity point in
limine. It followed therefore, that, the putative delictual claims were not sustainable. Put
differently; the matter was disposed of purely on the basis of the principle of subsidiarity.
[23] That said; the application for leave to appeal the High Court's decision to the Supreme
Court of Appeal, in relation to the question of the applicability of the principle of subsidiarity,
falls to be dismissed. The appeal on that question would have no reasonable prospect of
success.
LEAVE TO APPEAL THE COST ORDER (S)
[24] Mr Ravele urged me to grant the plaintiffs' respective applications for leave to appeal
the cost orders against them. He argued, among others, in the same regard, that, the
Supreme Court of Appeal would find that Biowatch should have been applied. Mr Ravele
also contended that, the only reason given by the High Court in casu, in denying the
plaintiffs costs was that "the plaintiffs were conscious of the fact that they were
supposed to have taken the LRA route but chose to rely on the Constitution directly
and they tailored their case to suit their choice."
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[25] It is important to note that the above-quoted part of my judgment was not expressed in
vacuum. I did not stop there. I also, in the same paragraph (paragraph [76]) described the
plaintiffs' respective conduct as improper. I dealt with the Biowatch principle, in paragraphs
[69] to [71] of my judgment. In the process I demonstrated through references to case-law
dealt with in Biowatch, that, the Biowatch principle is or was not inflexible; as there may be
circumstances; for example, where the litigant is frivolous or vexatious, wherein a Court
may deviate from that principle. And as I have emphasized above, I found that the way that
the plaintiffs conducted their respective matters was improper and thus warranted a cost
order against them, individually.
[26] Although Mr. Matumba opposed the application by the plaintiffs for leave to appeal the
respective cost orders; he had erroneously perceived them as having been an order that
each party would bear its own costs. And according to him, such an order was
unassailable . On the foregoing, I find that the application for leave to appeal the respective
cost orders cannot succeed. The appeal (against the cost orders) to the Supreme Court of
Appeal , would have no reasonable prospect of success.
CONCLUSION
[27] The following order issues:
27 .1 Ralephenya's application for leave to appeal the whole judgment of this Court to the
Supreme Court of Appeal is dismissed with costs;
27.2 Mungalo's application for leave to appeal the whole judgment of this Court to the
Supreme Court of Appeal is dismissed with costs.
APPEARANCES
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ACTING-JUDGE o~EH!dH C0U ~
LIMPOPO LOCAL DIVl~H8HO¥ANCl0O
FOR THE APPLICANTS/ PLAINTIFFS : Mr. S.0 Ravele, attorney with a right of
appearance in the High Court , from 5 .0 Ravele Attorneys , Louis Trichardt , Makhado -
Assisted by Ms. H.R Ramuhovhi;
INSTRUCTED BY: N/A.
FOR THE RESPONDENT / DEFENDANT: Mr. Tambani Matumba , attorney with a right
of appearance in the High Court , from Tambani Matumba Attorneys Inc, 39 Songozwi
Street, Louis Trichardt
INSTRUCTED BY : N/A.
DATE OF VIRTUAL HEARING : 11 NOVEMBER 2025.
DATE OF JUDGMENT: 16/04/2026
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