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[2026] ZAGPJHC 686
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Mahlomonyane and Another v South African Municipal Workers Union (2023/014975) [2026] ZAGPJHC 686 (23 June 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
Number:
2023-014975
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
23
June 2026
In the matter between:
SEGONYE
MAHLOMONYANE
First
Plaintiff
CONSTANCE
MBONANI
Second
Plaintiff
and
SOUTH
AFRICAN MUNICIPAL WORKERS UNION
Respondent
This Judgment is
handed down electronically by circulation to the Applicant’s
Legal Representatives and the Respondents by
email, publication on
Case Lines and saflii. The date for the handing down is deemed to be
23 June 2026 at 10 am.
JUDGMENT
ON APPLICATION FOR ABSOLUTION FROM THE INSTANCE
MUDAU J:
Introduction
[1]
The plaintiffs, two former employees of the
Kungwini Local Municipality (later incorporated into the City of
Tshwane), sue the defendant,
a trade union, for damages arising from
an alleged breach of a contract of mandate. They claim that the union
failed to prosecute
a review application diligently, causing their
underlying unfair labour practice claim to lapse. At the close of the
plaintiffs’
case, the defendant applied for absolution from the
instance. This judgment determines that application.
[2]
The matter has a long history. The
plaintiffs were initially employed on fixed term contracts in
the Office of the Speaker.
Following a municipal merger, they were
offered permanent positions at lower grades and salaries. They
contend this constituted
a demotion. They approached the defendant
union for assistance. The union referred an unfair labour practice
dispute to the South
African Local Government Bargaining Council
(SALGBC). When the SALGBC issued a jurisdictional ruling that the
referral was out
of time, the union, on the plaintiffs’
instructions, launched a review application in the Labour Court. That
review application
was never finalised. The plaintiffs now blame the
union for the failure.
[3]
The defendant moved for absolution from the
instance after the plaintiffs closed their case. The parties filed
heads of argument,
and I heard oral submissions. I reserved judgment.
What follows is my ruling.
The legal test for
absolution from the instance
[4]
The
test is well settled. In
Claude
Neon Lights (SA) Ltd v Daniel
[1]
the Appellate Division held:
“…
when
absolution from the instance is sought at the close of plaintiff’s
case, the test to be applied is not whether the evidence
led by
plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which a Court,
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff.”
[5]
The
implication is that a plaintiff must make out a
prima
facie
case
with the evidence relating to all the elements of the claim to
survive absolution because without such evidence no court
could find
for the plaintiff.
[2]
The
Supreme Court of Appeal in
Gordon
Lloyd Page & Associates v Rivera and Another
[3]
,
however, emphasised that absolution is to be granted sparingly,
but
when the occasion arises, a court should order it in the interests of
justice
.
A decree of absolution effectively condemns the plaintiff unheard and
denies the plaintiff the opportunity to test the defendant’s
version under cross examination. The court should grant
absolution only where the plaintiff’s case is so weak that no
reasonable court could find for the plaintiff.
[6]
Nevertheless,
as the Constitutional Court held in
Carmichele
v Minister of Safety and Security
[4]
,
absolution is an appropriate order where a court, applying its mind
reasonably to the evidence, could not or might not find for
the
plaintiff.
The
underlying reason being that it is ordinarily in the interests of
justice in such circumstances to bring the litigation to an
end.
[5]
Inferences
drawn from the evidence need not be the only reasonable inferences,
but they must be reasonable.
[6]
[7]
For present purposes, the court assumes the
plaintiffs’ evidence to be true, unless it is inherently
improbable or self contradictory
to the point of being
unacceptable. Credibility findings are not finally made at this
stage. The question is whether, on that assumed
evidence, a
reasonable court could or might find in favour of the plaintiffs.
The elements of the
plaintiffs’ claim
[8]
The plaintiffs’ case is founded on a
contract of mandate. The essential elements that they must prove are:
a.
the existence of a contract of mandate;
b.
the material terms of that contract;
c.
a breach of those terms by the defendant;
d.
causation – that the breach caused
the plaintiffs to suffer loss; and
e.
the quantum of that loss.
[9]
I will examine the evidence on each
element, applying the
Claude Neon
test.
The evidence adduced
by the plaintiffs
a.
First plaintiff: Mr Segonye
Mohlamonyane
[10]
The first plaintiff testified that he
commenced employment with Kungwini Local Municipality on 1 August
2007 as a Public Participation
Coordinator. On 20 July 2009 he was
appointed as Manager in the Office of the Speaker on a fixed term
contract ending 28 February
2011, at a salary of R257,154.52 per
annum (post level 3). His contract was extended to 30 June 2011.
[11]
On 19 May 2011, he was offered a permanent
appointment as Clerk: Labour Relations with effect from 1 June 2011,
at a salary of R103,678.08
per annum (post level 9). He said he
signed the contract under pressure and did not agree to a demotion.
He never applied for that
position; it was not advertised. He was a
member of the defendant union and paid monthly subscriptions, as
reflected in his payslips
(Exhibit U).
[12]
He instructed the union through his shop
steward, Mr Sonnyboy Moloto, to challenge the demotion. The union
referred an unfair labour
practice dispute to the SALGBC on 28
November 2014. On 17 September 2015, Commissioner Mathole issued a
jurisdictional ruling that
the referral was out of time (Exhibit N).
[13]
The first plaintiff said the union then
obtained a resolution from its Provincial Executive Committee
authorising a review application.
A review application was launched
in the Labour Court on 16 November 2015. A condonation application
was filed on 9 June 2016,
supported by an affidavit deposed to by the
first plaintiff himself (Exhibit O).
[14]
Thereafter, nothing of substance happened
for a long period. The first plaintiff testified that he followed up
with the appointed
attorneys, Maimane Inc. Initially they said they
were busy. Later, they told him that the union had not paid them, so
they had
put the file aside. He then approached the union’s
regional office, where Mr Ntuli informed him that the matter would be
reallocated to other attorneys. Eventually, Phakedi Attorneys were
appointed.
[15]
On 29 January 2020, the first plaintiff and
Mr Moloto consulted with Phakedi Attorneys. He said they were told
that the attorneys
would study the file and formulate an opinion. On
20 February 2020, he received a written legal opinion (Exhibit Q –
but
there was confusion about exhibit numbers; the opinion appears at
pages 18 5 to 18 12). The opinion stated that the review
application had been archived because more than 12 months had passed
without prosecution, and that there were no reasonable prospects
of
success.
[16]
The first plaintiff said he only then
realised that his case was effectively dead. He consulted with his
current attorneys, who
advised him that the union might be liable for
breach of mandate. He sued for the difference between his former
managerial salary
and his clerk’s salary, quantified at
R3,567,536.00.
b.
Second plaintiff: Ms Constance
Mbonani
[17]
The second plaintiff’s evidence
followed a similar pattern. She was employed from 10 October 2006. By
2007 she was an MMC
Coordinator. On 25 June 2009 her fixed term
contract was amended with a salary of R188,047.00 per annum (post
level 6.2).
Her contract was extended to 30 June 2011.
[18]
On 9 May 2011 she was appointed as Clerk
EAP with effect from 1 June 2011, at a salary of R103,678.08 per
annum. She perceived this
as a demotion and did not agree to it. She
joined the union, paid subscriptions, and instructed the union to
challenge the demotion.
[19]
The union referred her dispute to the
SALGBC and later launched a review application. She testified that
the union appointed attorneys
but that the matter was never
finalised. She eventually obtained a legal opinion indicating that
the review application had lapsed.
She sued for damages of
R1,240,184.00, being the difference between her former and current
salaries.
c.
The documentary record
[20]
The plaintiffs placed a substantial volume
of documentary evidence before the court, including:
a.
Employment contracts and amendments
(Exhibits S, T).
b.
Payslips showing union subscriptions
(Exhibit U).
c.
The SALGBC jurisdictional ruling (Exhibit
N).
d.
The review application papers (Exhibit V –
notice of motion).
e.
The condonation affidavit (Exhibit O).
f.
The memorandum of 10 May 2011 from Kungwini
Local Municipality recommending the absorption of contract workers
into permanent positions
(Exhibit K).
g.
The letter from the Office of the Speaker
dated 16 September 2011 concerning the placement of staff, which
listed the first plaintiff
as “Acting Deputy Director:
Stakeholder Relation and Mobilisation” (Exhibit L).
h.
The legal opinion of Phakedi Attorneys
(referred to as Exhibit Q or R, but in any event part of the record).
The defendant’s
application for absolution
[21]
The defendant argues that the plaintiffs
have failed to make out a
prima facie
case of breach of mandate. Its main submissions are:
“
The
union complied with its mandate by referring the dispute to the
SALGBC and by launching the review application. That is all
that the
contract of mandate required. In support, the defendant relies on
Food and Allied Workers Union v Ngcobo
2014 (1) SA 32
(CC), where the Constitutional Court held that a
union’s duty is to refer the dispute timeously to the relevant
tribunal.”
[22]
There is no evidence from the Labour Court
file that the review application was archived, or that it could not
have been reinstated.
The legal opinion of Phakedi Attorneys is an
opinion, not primary evidence, and it contradicts the plaintiffs’
own pleaded
fact that the matter was indexed and paginated on 2 April
2019.
[23]
The underlying unfair labour practice claim
was prescribed in any event. The plaintiffs only instructed the union
in November 2014,
more than three years after the alleged demotion of
May/June 2011.
Section 191(1)(b)
of the
Labour Relations Act 66 of
1995
requires a referral within 90 days. Thus, even if the review had
succeeded, the plaintiffs would not have been able to pursue the
merits of the demotion claim.
[24]
The plaintiffs have not identified which
specific Labour Court rules were breached, nor have they provided
objective evidence of
the quantum of loss. The damages are based on
bare assertions without reference to salary scales or expert
evidence.
Analysis of the
evidence against the test for absolution
[25]
I turn to apply the
Claude
Neon
test to each element of the
plaintiffs’ claim. I accept the plaintiffs’ evidence as
true for present purposes, unless
it is inherently improbable or
self contradictory.
a.
Existence and terms of the mandate
[26]
The evidence of membership, payment of
subscriptions, the instruction to the shop steward, the referral to
the SALGBC, and the formal
PEC resolution authorising the review
application all point to the existence of a contract of mandate. A
reasonable court could
certainly find that the union accepted a
mandate to challenge the demotion on behalf of the plaintiffs.
[27]
The material terms of the mandate are
pleaded at paragraphs 6 and 8 of the Amended Particulars of Claim.
They include that the union
would be an advocate for the plaintiffs’
workplace rights, would represent them in court, and would execute
its duties with
necessary skill and diligence – including the
diligent prosecution of cases to completion. The evidence supports
the existence
of such terms.
[28]
On this element, the plaintiffs have
crossed the low threshold for absolution.
b.
Breach of mandate
[29]
This is the core of the dispute. The
plaintiffs contend that the union failed to prosecute the review
application diligently, allowing
it to lapse. The defendant contends
that it did all that was required: it referred the dispute and
launched the review.
[30]
The
leading authority is
Food
and Allied Workers Union v Ngcobo
[7]
.
In that case, the Constitutional Court found that a union which had
agreed to assist its members by timeously referring their
dispute to
the CCMA and, if necessary, to the Labour Court, was obliged to take
the steps necessary to have the dispute determined
in accordance with
the
Labour Relations Act. The
union failed by not referring the
dispute in time and by not securing condonation. Critically, the
Court held that to succeed against
the union, the employees had to
establish only that their dispute, had it been properly referred,
would have been resolved in their
favour.
[8]
That is a causation enquiry.
[31]
In this case, the plaintiffs’
evidence shows that the union did refer the dispute to the SALGBC and
did launch the review
application. The complaint is not about initial
referral but about what happened afterwards – the failure to
pursue the review
to finality.
[32]
The
plaintiffs rely heavily on the legal opinion of Phakedi Attorneys,
which states that the review application was archived in
December
2016 because 12 months had elapsed with no prosecution and there were
no prospects of success. However, this opinion is
contradicted by the
plaintiffs’ own particulars of claim (paragraph 17), which
state that on 2 April 2019 the review application
was “indexed
and paginated for set down purposes”. If the matter was
archived in December 2016, it could not have
been indexed and
paginated in April 2019 without a court order for reinstatement.
There is no evidence of any such order. This
inherent contradiction
is not merely a matter of weight; it goes to the plausibility of the
plaintiffs’ case. Even at the
absolution stage, evidence that
is self contradictory to the point of being inherently
improbable need not be accepted as
true.
[9]
[33]
Moreover, there is no direct evidence from
the Labour Court file – no rule nisi, no notice of set down,
no registrar’s
communication – confirming that the review
application was indeed archived or that it could not be revived. The
plaintiffs
ask the court to infer from the opinion that the matter is
dead. But an opinion is not primary evidence. Without objective facts
from the court record, a reasonable court might not be able to draw
the inference that the union’s conduct was the cause
of the
loss. At best, the evidence shows that the union’s appointed
attorneys were slow and that the union changed attorneys
several
times. But whether that amounts to a breach of the mandate to
“diligently prosecute” is, on this sparse record,
highly
doubtful.
[34]
In addition, the plaintiffs themselves were
not passive. The first plaintiff admitted that he followed up with
the attorneys and
with the union. The union did appoint alternative
attorneys. The fact that the matter eventually came to a halt was not
because
the union refused to act, but because the attorneys (Maimane
Inc.) allegedly were not paid. The plaintiffs do not suggest that the
union refused to pay; rather, there appears to have been a payment
dispute. Without evidence of what happened in the Labour Court,
it is
difficult to see how a reasonable court could conclude that the union
breached its mandate.
[35]
On the element of breach, therefore, the
plaintiffs’ evidence is weak and contradictory. A reasonable
court, applying its
mind reasonably, might not find for the
plaintiffs. Indeed, the evidence is so lacking that no reasonable
court could find a breach
on the facts presented.
d.
Causation and loss
[36]
Even
if there were evidence of breach, the plaintiffs would need to show
that the breach caused them to lose a real and substantial
opportunity to succeed in the review and, ultimately, in the
underlying demotion claim. The Constitutional Court in
Food
& Allied Workers Union v Ngcobo NO and Another
[10]
held that causation is established by showing that the dispute, had
it been properly referred, would have been resolved in the
employees’
favour. That is a factual enquiry.
[37]
The plaintiffs’ case on causation is
highly speculative. First, the underlying demotion claim was likely
prescribed. The alleged
demotion occurred in May/June 2011. The
plaintiffs only instructed the union to refer the dispute in November
2014 – over
three years later.
Section 191(1)(b)
of the LRA
requires a referral within 90 days. The SALGBC already ruled that the
matter was out of time. The review application
was an attempt to
challenge that jurisdictional ruling. But even if the review had
succeeded, the bargaining council would still
have had to consider
whether to grant condonation for the late referral. There is no
evidence that condonation would have been
granted. The plaintiffs
have not provided any explanation for the delay between 2011 and
2014. That is a fatal gap.
[38]
Second, the plaintiffs claim that they
would have been reinstated to their former grades and salaries, but
they have produced no
evidence of what the outcome of an unfair
labour practice arbitration would have been. The documents show that
the fixed term
contracts expired by effluxion of time. The
plaintiffs accepted permanent employment at lower grades. Whether
that constituted
a demotion or a voluntary acceptance of a different
position is a contested issue. There is no evidence that they would
have succeeded
on the merits.
[39]
Third, the quantum of loss is not
objectively established. The plaintiffs gave figures – R3.56
million and R1.24 million –
but they did not produce salary
scales, job grading documentation, or any expert report. The first
plaintiff said he “went
to HR” but did not produce any
document from HR. The court is left with bare allegations. At the
absolution stage, the evidence
need not be conclusive, but there must
be some objective foundation. Here, there is none.
[40]
For these reasons, the plaintiffs have
failed to make out a
prima facie
case on causation and loss. No reasonable court could find, on this
evidence, that the plaintiffs lost a real opportunity to succeed
in
their demotion claim, or that the claimed amounts are even
potentially recoverable.
e.
The underlying dispute: demotion or
legitimate expectation?
[41]
The defendant also argued that the
plaintiffs were never demoted because their fixed term contracts
came to an end, and they
voluntarily accepted new permanent
contracts. The plaintiffs relied on the letter of 16 September 2011
(Exhibit L) which listed
the first plaintiff as Acting Deputy
Director. They argued that this created a legitimate expectation that
they would be placed
at that grade.
[42]
However, that very letter states that “as
soon as the placement and migration process has been finalised, all
staff members
will be issued with confirmation letters”. There
is no evidence that such confirmation letters were ever issued. The
letter
did not appoint the first plaintiff as Deputy Director; it
merely reflected an acting arrangement during a transition. There is
no appointment letter to that effect. The plaintiffs accepted
permanent appointments as clerks in 2011 and worked in those
positions
for many years without taking any legal steps until 2014.
[43]
Even if the plaintiffs had a legitimate
expectation, that would be a matter for the Labour Court, not this
court. The question for
this court is whether the union breached its
mandate. The weakness of the underlying claim is relevant to
causation and to the
reasonableness of the union’s conduct. The
fact that the plaintiffs’ own case is so tenuous underscores
why a reasonable
court would not find in their favour on the mandate
claim.
Conclusion on
absolution
[44]
I have considered the evidence as a whole.
The plaintiffs have shown that they were union members, that they
gave instructions,
and that the union took initial steps. But on the
critical elements of breach, causation, and loss, the evidence is
either contradictory,
speculative, or entirely lacking. The legal
opinion on which they rely is contradicted by their own pleadings.
There is no evidence
from the Labour Court file. The underlying
demotion claim appears prescribed and weak on the merits. The quantum
of damages is
unsupported.
[45]
Absolution from the instance is to be
granted sparingly, but it is not to be withheld where the plaintiff’s
case is so weak
that no reasonable court could find for the
plaintiff. That is the situation here. A reasonable court, applying
its mind to the
evidence, could not or might not find for the
plaintiffs on the essential elements of breach of mandate. It follows
that the defendant
is entitled to absolution.
Costs
[46]
The defendant has asked for costs. There is
no reason to deviate from the ordinary rule that costs follow the
result. The plaintiffs
have not established any special circumstances
that would justify a different order.
Order
[47]
In the result, I make the following order:
1.
The defendant’s application for
absolution from the instance is granted.
2.
The plaintiffs are absolved from the
instance.
3.
The plaintiffs are ordered to pay the
defendant’s costs.
MUDAU J
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPEARANCES
For
the Plaintiffs:
Mr N Xabendlini
Instructed
by:
Xabendlini Attorneys
For
the Defendants:
Mr E Gwebu
Instructed
by
Madlela Gwebu Mashamba Inc
Date
of Hearing:
12-14 May 2026
Date of
Judgment:
23 June 2026
[1]
1976
(4) SA 403
(A) at 409G–H
[2]
See
Marine
& Trade Insurance Co Ltd v Van der Schyff
1972 (1) SA 26
(A) at 37G - 38A
[3]
2001
(1) SA 88
(SCA) at 92E–93A
[4]
[2001] ZACC 22
;
2001
(4) SA 938
(CC) at para 79
[5]
See
Mazibuko
v Santam Insurance Co Ltd and Another
1982 (3) SA 125
(A) at 134E - 135A
[6]
See
Smith
v Road Accident Fund
[2015] ZAGPPHC 322 at para 10
[7]
2014
(1) SA 32 (CC)
[8]
Id
at para 14
[9]
See
Anwary
v Loch Logan Waterfront (Pty) Ltd
[2022] ZAFSHC 362
[10]
2013
(5) SA 378
(SCA) at para 50