THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: 2025-237716
In the matter between:
SABELO MHLANGA AND 24 OTHERS Applicants
and
SILVER SOLUTIONS 2870(PTY) LTD First Respondent
HJB SERVICES (PTY) LTD Second Respondent
Heard: In Chambers
First and Second Respondents’ submissions received on 11 December
2025.
Applicant’s submissions received on 08 April 2026.
Delivered: This judgment was handed down electronically by emailing a
copy to the parties on 19 June 2026. This date is deemed to be the date of
delivery of this judgment.
JUDGMENT
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
2
KROON AJ
Introduction
[1] This matter concerned an opposed urgent application. The primary relief
sought was an interdict against the Second Respondent prohibiting the
employment of staff pending an unfair dismissal dispute referred to the
Bargaining Council. The Respondents prayed that the Applicants'
attorneys be saddled with a costs order de bonis propriis.
[2] On 10 December 2025, the Court issued a Directive regarding the further
conduct of proceedings. I quote as follows:
“
RE: S. MJALISWA INC. ATTORNEYS v SILVER SOLUTIONS
(PTY) LTD – CASE NO. 2025-237716
Dear All,
[1] The Respondent will furnish, by close of business today,
10 December 2025, a timeline of events concerning the conduct of the
Applicant’s attorneys of record, S Mjaliswa Inc. Attorneys on which it
relies in support of the submission that such attorneys should be liable
for a costs order de bonis propriis.
[2] S Mjaliswa Inc. is afforded, as per agreement, until close of business
on Friday, 12 December 2025, to make representations as to whether it
should be liable to pay the costs de bonis propriis should the Court be of
the mind that an adverse costs order is warranted.
…
Regards
Ms. Mmathato Mokatse
Associate to Acting Justice Kroon”
[3] On 6 January 2026, the Court issued an order in the following terms:
“Having heard the Mr Mvuthuza for the Applicants and Mr Du Plooy for
the First and Second Respondents, the following order is hereby issued:
3
1. The application is dismissed.
2. An order on costs and reasons will follow as soon as is
reasonably possible.
BY THE COURT
REGISTRAR”
[4] At that stage, no representations had been received from the legal
representative of the Applicants as to the appropriateness of a de bonis
propriis costs order. After several follow -ups, the legal representative of
the Applicants eventually delivered his submissions on 8 April 2026,
although they were due on 12 December 2025. In this context, I mention
that the date of 12 December 2025 was agreed to and was based on an
undertaking by Counsel for the Applicants. There was no application for
condonation for the non- compliance with the Directive , and in truth, no
justification for considering the belated submissions. This all
notwithstanding, in my view, it is in the interests of justice to take into
account the representations made by the Applicants’ legal
representative, this in the light of the potential prejudice which may flow
from disregarding the submissions.
1
[5] Essentially, there are two grounds advanced as to why a de bonis
propriis costs order should be granted. The first concerns the alleged
lack of merit in the application. The second concerns the manner in
which the litigation was conducted.
The submissions of the parties
[6] It is convenient first to quote from the affidavit of Mr du Plooy , who
appeared for the two Respondents, and who deposed to an affidavi t, at
the request of the Court, setting out the timeline on which the
Respondents would rely to seek a costs order de bonis propriis:
“I, the undersigned,
1 Cf Pangbourne Properties Ltd v Pulse Moving CC and Another 2013 (3) SA 140 (GSJ)
4
LEON GERHARDUS DU PLOOY
hereby declare under oath as follows:
…
TIMELINE
1. Firstly, we received the unissued notice of motion with no founding
affidavit or annexures at around 11h30 on 4 December 2025.
2. We only gained access to Court Online at 14h00 on 4 December
2025. At this stage no service of the urgent application, founding
affidavit or annexures has been affected on our offices or the
Respondents.
3. At 14h51 on 4 December 2025, the Applicants' legal
representative served the urgent application with the founding
affidavits and annexures on our offices and the Respondents.
4. It was required of us to draft an answering affidavit and to appear
in Court on the 5 th of December 2025 at 10h00. Therefore we had
less than 24 hours' notice.
5. We constantly contacted the Applicants representatives to invite us
on caselines, which they failed to do.
5. [duplicate number] On the 5 th of December 2025, we appeared for
the urgent application and the matter was removed with costs due
to the Applicants' Legal Representatives failing to upload the
matter on caselines. This is no excuse as the Judge's Secretary
also attached the directive on how to upload the case for the Legal
Representatives and sent same to them at 9h00 on the 5th of
December 2025. Therefore they ought to have been aware.
6. The [sic] we received a new notice of motion on the 5 th of
December 2025 at 14h50, stating that the urgent application will be
heard on the 9th of December 2025 at 10h00.
7. We were once again not invited to caselines. I reiterate that the
directive on how to upload documents on caselines where [sic]
5
furnished to them on morning of the 5 th of December 2025 at
around 9h00.
8. The entire Monday, 8 December 2025 we followed up regarding
the matter as it did not appear on the roll. I also wrote an e-mail to
the Legal Representatives indicating that this matter is not enrolled
and that we are not invited to caselines.
9. I spoke to your Lordship's Secretary Ms Mokatse at 15h20. At this
stage the matter was still not on the roll. She ensured myself that
the matter is not going to proceed on the 9
th of December 2025.
10. I wrote to the Applicants' legal representative and confirmed the
above at 15h37. Therefore they were clearly aware that we have
ensured that the matter is not enrolled for 9 December 2025.
10. The matter was then enrolled in the morning of 9 December 2025.
Ms Mokatse e-mailed the link to the Applicant's Legal
Representative at around 11h11 directing them to invite our
offices, as we were not included in the e-mail.
11. The Applicant's Legal Representatives only phoned our offices at
12h45 indicating to us that the matter is enrolled and they are
waiting for us to join the link. Once again affording us less than 10
minutes' notice. The Applicants' Legal Representative failed to
inform us that the matter is on the roll once they have established
it.
12. The Applicant's Legal Representative only sent us the link at
12h46.
13. I was on my way to Vereeniging for another case, where I had to
stop at a Sasol Garage to join the link.
14. At this stage we were still not invited to Caselines.
15. Ms Mokatse then had to invite us to Caselines during the virtual
meeting and we gained access at 13h16.
16. It then came to our attention that the Applicant's Legal
Representative failed to upload the Respondent's affidavits,
6
annexure and documents that were uploaded on Court Online and
therefore only uploaded their own papers.
17. Due to the above and myself sitting in my vehicle with no
documentation, we postponed the matter to today at 10h00. Once
again less than 24 hour's notice.
18. The aforementioned conduct of Mjaliswa Attorneys shows clear
unhanded (sic) tactics and I humbly submit that the nature of this
urgent application, together with the two "With Prejudice"
correspondences sent to the Applicant's Legal Representatives
justifies a cost order de bonis propriis.
19. Wherefore we humbly request the aforementioned cost order in
the alternative the appropriate cost order against the Applicants.”
[7] In response to the submissions, the Applicants’ legal representative
deposed to an affidavit from which I quote as follows:
“I, the undersigned
SIYAMTHEMBA MJALISWA
…
6. On the 13th of November I was approach by the representatives
of suspended employees of Silver Solution who have informed
me about their suspension from work and the interim order
granted against them by the Applicant's attorneys from labour
court Johannesburg.
7. On approaching us it was made clear that the employees have
no funds but they requested us to assist them on pro bono as
they were still yet to be paid the November salaries, it was based
on this request that we decided to assist them pending the
finalization of the matter.
8. The instruction was for us to respond to the interim order granted
against them by filing the Answering Affidavit, surprisingly the
return date for the interim order was in February 2026, that alone
7
has put the employees on a disadvantage as this clearly shows
that this matter is far from over
9. The employees have complied with the court Order by not
distabing (sic) the employer at his work premises
10. While still on suspension by the second respondent, the
employees received letters informing them to respond in writing
as to why they cannot be suspended and in deed (sic) the
applicants responded thought us as their attorneys of record.
11. It has come to our attention that the company started with the
recruitment of staff just immediately after suspension which we
felt that the company is in a mission to dismissed the employees.
12. On the date of the 27 of November the employees received letter
of termination from the second respondent despite the
submission by the employees that they do not recognized the
Second Respondent as their employer since there was never a
formal handover and compliance with Section 197 of labour
relations
13. On receIvrng the letters of termination we were informed that the
company is busy recruiting the new staff regardless of the case
being filed at the bargaining council for adjudication. The dater
(sic) was set for the 29 of January 2026.
14. The employees decided to file an urgent application for the
company to stop the employment of the new staff pending the
outcome of the Baragining (sic) council.
15. The urgent application was to halt the operations of the
employment of the new staff not to decide about the issue of
unfair dismissal as that has to be determined by the Bargaining
council and we were of the view that the parties will have meeting
of the minds at the conciliation before the matter goes to
Arbitration.
16. The employees have got a right for protection in terms of section
23(1) of the constitution for any unfair labour practice even if the
8
unfair labour practice is not covered by scope of section 186(2) of
the labor (sic) relations Act
17. The advise (sic) given to the Applicants was there to protect their
employement as the employer had started recruiting the new
staff even before the Conciliation by the Bargaining Council.
18. There was nothing wrong in filing the court interdict if the relief
from the Bargaing Council was going to defeat the purpose as
the employer by that time he would have employed all the staff
they needed.
19. The relief sought by the applicants ware (sic ) in line with section
23 of the constitution
20. The acknowledgement made by the respondent is welcome
when they submit that the employees employed on the spaces of
the Applicants will be dealt with in terms of section 189 of labour
relations Act.
21. The treats (sic) by the Respondents attorneys is uncalled for and
misleading, he was trying to scare us from continuing with the
urgent application knowing it very well that the case at the
Bargaining Council can take up to three years to be decided.
22. Therefore I maintain that the Respondent were right in bringng
the matter on urgent basis for relief sought and the case sited on
the main application was the correct one in dealing with this
matter
23. On the issue of court on line I want to apologies to the court
unreservedly, the pressure received from technical errors in
registering the court online and feeding the information was
beyond our knowledge as you know that Easton Cape has just
been part of the Court on line unlike Gauteng and other
provinces, therefore we are still on the learning cave (sic).
24. We have sought assistance from the help desk of Court on line
which they have assisted us greatly and we hope that we will not
experience such technical errors going forward as well as the
9
issue of time frames as we continue to empower ourselves with
this new technology
25. Therefore I request the above honorable court to be lenient as
this was beyond our control as the law firm and we promise that
such errors will be avoided in future.
26. The request by the Respondent for de popres (sic) costs be
dismissed and the normal cost be applicable as it is supposed to
be as the applicants have straggled (sic) to get assistance until
we assisted them with pro bono.” (own emphasis)
The validity of the claim of the Applicants
Introduction
[8] The Court deals first with the absence of a legal basis for the application
brought by the Applicants’ attorneys on behalf of the Applicants . The
Second Respondent dismissed the Applicants on 27 November 2025.
They referred an unfair dismissal dispute to the Bargaining Council. The
relief set out in the notice of motion was inelegantly formulated. It was
made clear during argument that the Applicants do not wish to have their
dismissals reversed. Rather, they seek to interdict the Second
Respondent from employing new staff pending the outcome of a case in
front of the Bargaining Council.
[9] Shorn of all elaboration, the case of the Applicants is that they have a
right to interdict the Second Respondent from filling the vacancies left in
the wake of the dismissed employees’ departures. The alleged right is
based on the premise that if the posts are filled, this could somehow
frustrate or affect the unfair dismissal claim. As will appear from what is
set out below, the relief sought is specious in the extreme.
Preliminary points
[10] Before dealing with the merits of the application, I make three
observations.
10
[11] The first is that I do not understand why the First Respondent was joined
in these proceedings . No substantive relief is sought , nor could it have
been sought, against it when it comes to the interdict, because the
Applicants were employed by the Second Respondent and not the First
Respondent. It is trite that to demonstrate that a party has a legal interest
in the outcome of proceedings, it must be demonstrated that the order
sought may prejudice that party.
2
[12] The second point is that the relief formulated is extremely vague and
overly broad, and, for that reason, would result in an unenforceable
order. The Applicants seek to interdict the Second Respondent from
employing any “new staff”. What the Applicant should have sought was
that the filling of the vacancies which were left as a result of their
dismissals be placed in abeyance pending the outcome of the
contemplated litigation. However, what the Applicants have done is to
seek relief that would result in the Second Respondent being unable to
employ anyone at all, even in posts not previously occupied by the
Applicants. For this reason alone, I have reservations as to whether the
relief sought was competent.
[13] The third point is that the relief was sought on a wrong premise, i.e., that
the B argaining Council would have jurisdiction over the meri ts of the
unfair dismissal disputes. It is, however, clear that, because the reasons
for the dismissals concern the participation in an allegedly unlawful strike,
in terms of section 191(5)(b)(iii) of the LRA, it would be the Labour Court
which would enjoy jurisdiction. Again, f or this reason alone, I have
reservations as to whether the relief sought was competent.
The merits of the application
[14] The granting of the relief sought against the Second Respondent would
truly be unprecedented. The Court is unaware of any authority supporting
the notion, let alone the proposition, that , pending the outcome of an
the notion, let alone the proposition, that , pending the outcome of an
2 Gordon v Department of Health: Kwazulu- Natal 2008 (6) SA 522 (SCA); [ 2009] 1 All SA 39
(SCA) ; 2009 (1) BCLR 44 (SCA); [2008] 11 BLLR 1023 (SCA); (2008) 29 ILJ 2535 (SCA) at
para [10]
11
unfair dismissal dispute, an employee may interdict his or her erstwhile
employer from appointing a person into his or her erstwhile post. To put it
plainly, there is no legal foundation to contend that the Applicants could
ever have enjoyed a right to interdict the Second Respondent from
appointing staff so that it could run its business.
[15] The argument advanced on behalf of the Applicant appeared to be that
because there was merit in the unfair dismissal claims, this somehow
translated into a right to be able to interdict the Second Respondent from
filling the post. That is a non sequitur. It does not follow. Rather, the
correct position is that should an employer dismiss an employee and
should that employer elect thereafter to fill the vacancy left in the wake of
the employee’s departure, the employer is at liberty to do so, but it does
so at its peril in the sense that should it be found that the dismissal was
substantively unfair and that the employee falls to be reinstated, the
employer will, so to speak, have to make a plan when it comes to the
person who was appointed into the vacant post. This may entail, inter
alia, transferring that employee, negotiating a settlement with that
employee or even dismissing that employee for operational reasons. The
one thing, however, which is beyond doubt is that it will not be open to an
Arbitrator or a Judge to find that he or she would have ordered
reinstatement, but that his or her hands are now tied because the
employer has filled the vacancy previously occupied by the employee
who was unfairly dismissed. For the sake of completeness, I would note
that the approach contended for by the Applicants is unconstitutional in
that it would infringe the Second Respondent’s right to freedom of
economic activity.
[16] In Trevin Ralph Olifant v Thembelihle Municipality
3 Tlaletsi JP explained
the position as follows:
“[22] In casu, should the Municipality employ someone in the
the position as follows:
“[22] In casu, should the Municipality employ someone in the
position contested by the applicant, it will run the risk of creating a
problem for itself in the event of a reinstatement order. It will either
3 Oliphant v Thembelihle Local Municipality and Another (2023) 44 ILJ 413 (NCK)
12
have to terminate the contract it entered into with the new
employee or come to an arrangement with that employee or the
applicant.
[23] The right that the applicant wants to protect will only come
into existence once he successfully demonstrates to the
Bargaining Council that this “dismissal” is substantively unfair. He
may or he may not succeed in that endeavour. Either of the
parties who might be aggrieved by the award by the Bargaining
Council has the right to take the award through the dispute
resolution systems provided by the law. That might cause more
delays which will be to the detriment of the residents of the
Municipality . It is not for the applicant to decide that the person
who is currently acting in the contested position should continue
until the dispute with the Municipality is finally resolved. It is the
prerogative of the Municipality to decide whether to keep the
person or permanently fill the position. Whatever delay might be
there, if, in the end, the applicant is successful, he will be
reinstated without any loss of emoluments due to him. His
conditional right does not translate into a right to keep the position
he occupied vacant indefinitely, for just in case he succeeds.
[24] In the result I am not persuaded that the applicant has shown
that he has a prima facie right to protect and further that there is
no alternative remedy should he be entitled to be reinstated. The
application should be dismissed on this basis. With this
conclusion, it is not necessary to consider other requirements for
interdictory relief.”
[17] In Mashaba v South African Football Association
4 LaGrange J dealt
thoroughly, and might I say lucidly, with the legal position which, in the
Court’s view, has been entrenched since the dawn of Labour Law
jurisprudence. The Learned Judge explained as follows:
4 (2017) 38 ILJ 1668 (LC)
13
“…
[6] Under the Labour Relations Act, 66 of 1995 (‘the LRA’) an
employee whose dismissal is found to be substantively unfair is
entitled to expect reinstatement as a remedy if the employee does
not simply want compensation, provided two other considerations
are not applicable. Section 193(2) of the LRA states:
“The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee unless-
(a) the employee does not wish to be reinstated or re-employed;
(b) the circumstances surrounding the dismissal are such that a
continued employment relationship would be intolerable;
(c) it is not reasonably practicable for the employer to reinstate or
re-employ the employee; or
(d) the dismissal is unfair only because the employer did not follow
a fair procedure.”
[7] It is clear from the preamble of the section that the
Commissioner or the Court is obliged to order the reinstatement or
re-employment of an employee whose dismissal is substantively
unfair, unless one of the conditions in the subsections applies. In
Mr Mashaba ’s case, he believes he will succeed in establishing
that his dismissal was substantively unfair and accordingly he will
not be denied reinstatement on account of section 193 (2) (d)
which has no practical effect unless a dismissal is found to be only
procedurally unfair. Clearly, subsection 193(2)(a) will not apply
unless Mr Mashaba changes his mind and abandons his quest
for reinstatement. Consequently, if he is successful in convincing
the arbitrator that his dismissal by SAFA was substantively unfair
only subsections 193 (2) (a) and (b) could stand in the way of his
reinstatement or reappointment. Whether subsection 193 and
(2)(a) would present a problem for his reinstatement will not
14
depend on the appointment of another coach, because that
provision is only concerned with the extent to which the
relationship between the dismissed employee and the employer
had deteriorated to such an extent around the time the dismissal
took place that the prospect of a relationship of mutual respect
and trust being restored is unlikely.
[8] The remaining provision which could present an obstacle to his
reinstatement, assuming he is successful in establishing that his
dismissal was substantively unfair, is subsection 193(2)(c).
Mr Mashaba fears that if a new national coach is appointed, a
Commissioner contemplating reinstating him might feel that the
existence of a newly appointed coach would make it “not
reasonably practicable” for the employer to reengage him and
might deprive him of the reinstatement he believes he deserves.
[9] However, merely because Mr Mashaba ’s reinstatement
would present a problem for SAFA if it appoints another person to
the position in the meantime, that would not be sufficient
justification for SAFA to say that the employment of a replacement
would make it “reasonably impracticable” to reinstate him. The
phrase “reasonably impracticable” does not simply mean
inconvenient or impractical. The LAC has made this clear in its
decision in Xstrata South Africa (Pty) Ltd (Lydenburg Alloy
Works) v Num Obo Masha and Others [2], where it said amongst
other things:
“The object of section 193(2)(c) of the LRA is to exceptionally
permit the employer relief when it is not practically feasible to
reinstate; for instance, where the employee’s job no longer exists,
or the employer is facing liquidation, relocation or the like. The
term “not reasonably practicable” in section 193(2)(c) does not
equate with “practical”, as the arbitrator assumed. It refers to the
concept of feasibility. Something is not feasible if it is beyond
possibility. The employer must show that the possibilities of its
15
situation make reinstatement inappropriate. Reinstatement must
be shown not to be reasonably possible in the sense that it may
be potentially futile.”
[10] An employer may not thwart a dismissed employee’s bid for
reinstatement by replacing him and then arguing that it cannot
reinstate the dismissed employee because there is someone
occupying his former position. [3] That is an eventuality the
employer must take into account when it replaces a dismissed
employee who is challenging their dismissal. In other words, if the
employer does not take suitable steps in its contract with the
replacement, it ought to realise it runs the risk that it will be faced
with the possibility of terminating that relationship or of trying to
renegotiate the replacement’s contract if the former incumbent is
reinstated.
[11] Thus, on a proper interpretation of section 193(2)(c), if SAFA
does appoint a replacement head coach before learning of the
outcome of Mr Mashaba ’s case, that appointment cannot protect
it against an order of reinstatement. Consequently,
Mr Mashaba will not be deprived of his right to reinstatement, if
the only consideration which might stand in its way is the
employment of a replacement coach before his CCMA case was
decided. That is not a factor which should influence any arbitrator
deciding if there is anything which prevents his reinstatement, if he
decides that Mr Mashaba ’s dismissal was substantively unfair.
[12] In light of the above, if SAFA takes the risk of employing a
replacement coach there is no reason to believe that this factor
will cause Mr Mashaba irreparable harm in his bid for
reinstatement. It is the arbitrator exercising his or her powers
under section 193(2)(c) who is given the power of reinstatement
under the LRA, which is the right which Mr Mashaba seeks to
preserve by bringing this application. The arbitration proceedings
provide not merely a suitable alternative remedy but the primary
16
remedy for any dismissed employee seeking reinstatement who
has been dismissed for misconduct. There was no need to bring
this application in order to preserve that remedy for the reasons
already discussed. Thus the potential harm Mr Mashaba may
suffer as a result of the appointment of a replacement before the
CCMA decides his case is not irreparable and the remedy of
reinstatement remains available as an alternative remedy
notwithstanding such an appointment.
Existence of a prima facie right to prevent SAFA employing a
replacement
[13] The right which the LRA provides by virtue of section 193(2)
is the right of an employee to be reinstated if their dismissal is
found to be substantively unfair and provided none of the
subsections are applicable. As discussed above, an order of
reinstatement pays no heed to other contractual arrangements
that might have come into existence between the employer and a
replacement. That is of no concern to the arbitrator or the court
and the employer is left to its own devices to sort out the mess it
finds itself in having employed someone and then being ordered
to re -engage someone in the same position. However, the fact
that the arbitrator or the court may impose a reinstatement on an
employer does not necessarily mean that the court can dictate
how the employer conducts itself in concluding employment
contracts with other third parties, unless such appointments may
be challenged on other grounds such as being unlawful in terms of
a statute.[4] The Labour Court, certainly has the power to enforce
the terms of employment contracts, [5] but I know of no provision
in any of the statutes which empowers the court to prevent the
conclusion of private employment contracts. Likewise, the fact that
Mr Mashaba may acquire a right to reinstatement once he is
able to establish that his dismissal was substantively unfair, does
not translate into a right to keep his position vacant merely on the
assumption that he might be able to do so.
17
[14] This brings to the fore a further complicating factor which is
implicit in this application. Since his right to reinstatement will only
arise as a possibility if Mr Mashaba succeeds in establishing the
substantive unfairness of his dismissal, and assuming that the
right of reinstatement in some way could be a platform for a right
to interfere beforehand in the employment of replacement staff,
the court would necessarily have to take a provisional view that
his dismissal will most probably be found to be substantively
unfair. This is because his prospect of reinstatement will only arise
if that is established. This would require the court to effectively
second-guess the outcome of the arbitration proceedings, which
the LRA has designated as the appropriate proceedings in which
the substantive fairness of a dismissal for misconduct and any
award of consequential relief must be determined.
[15] Consequently, the right Mr Mashaba argues for, apart from
the difficulties highlighted above, is also fundamentally premised
on his expected success in the CCMA proceedings, which is not
for the court to evaluate in the context of urgent motion
proceedings.
[16] In all the circumstances, I am not satisfied that
Mr Mashaba has demonstrated the existence of a right to
prevent the employment of a replacement coach pending the
outcome of his arbitration proceedings, even if he would be
entitled to reinstatement at the conclusion of those proceedings. In
these circumstances, it is also not necessary for me to consider
the balance of convenience.”
[18] In summary, t he correct position is that , irrespective of whether an
employer has appointed a person into the post from which the
complaining employee was dismissed, if an employee is successful in the
pursuit of the unfair dismissal dispute in the sense that it has been
demonstrated that reinstatement is , in terms of the LRA, the appropriate
remedy, that employee will, by operation of law, have a right to be
18
reinstated.5 An employer is not permitted to frustrate a legitimate claim to
reinstatement by the subsequent employment of an employee into the
post left vacant by the dis missed employee. As the maxim goes, u bi jus,
ibi remedium (where there is a right, there is a remedy). One can go
further. If a Court were to accept the proposition that an employer could
thwart the remedy of reinstatement by filling the vacancy prior to the
determination of the unfair dismissal dispute, that would effectively be
equivalent to the Court countenancing impermissible “self-help” (by the
employer), something which has been eschewed by the Constitutional
Court.6
[19] To aggravate matters, there was an undertaking contained in the
answering affidavit that, should the Applicants be reinstated, the Second
Respondent would embark on a retrenchment exercise. The relevant
paragraph reads as follows:
“4.12. Furthermore, the Applicants will suffer no harm. If the
Applicants are successful in their unfair dismissal claims and if the
Applicants are awarded reinstatement, the Second Respondent
will then have to follow procedures set out in section 189 of the
LRA to dismiss any of the Employees that were appointed in the
place of the Applicants. We hereby give an undertaking that we
will do so.”
[20] Notwithstanding this undertaking, which was, itself, strictly speaking,
unnecessary because it served only to restate the law, the application
was blindly persisted with by the Applicants. Even if the Applicants’ legal
representatives were ignorant of the trite legal position set out above
5 BKL Monitoring & Inspectorate CC v Maduka and Others (2026) 47 ILJ 887 (LAC) where the
Labour Appeal Court recently stressed that the primary remedy for an unfair dismissal is one of
reinstatement and in order to avoid this consequence, there is an onus on the employer to
demonstrate that reinstatement is not reasonably practicable “…by adducing compelling
evidence” at para [46]
evidence” at para [46]
6 Public Servants Association obo Ubogu v Head of the Department of Health, Gauteng and
Others, Head of the Department of Health, Gauteng and Another v Public Servants Association
obo Ubogu 2018 (2) BCLR 184 (CC); (2018) 39 ILJ 337 (CC); [2018] 2 BLLR 107 (CC); 2018
(2) SA 365 (CC)
19
before the launching of the application, then at this point they should
have advised the Applicants that the application should be withdrawn.
[21] I would add only that the relief sought by the Applicants, if granted, would
be draconian in nature. Given the circumstance that the unfair dismissal
disputes would, if pursued, f all to be adjudicated by the Labour Court,
experience has taught us that it may take many years before it is
finalised. The result would be that the Second Respondent would be
precluded from employing persons for many years 25 vacant posts. This
would self-evidently be disruptive and highly prejudicial to the operations
of the Second Respondent. When one steps back and looks at the matter
objectively, it is difficult not to get the impression that the application is
vexatious in nature. It is aimed at, impermissibly so, harassing the
Second Respondent by seeking to interfere with the running of its
business by placing a bar on it reaching any contractual arrangements
with third parties, i.e. the job applicants.
[22] In my view it follows, ineluctably, that the case presented on behalf of the
Applicants should justifiably attract the epithet “hopeless”. It was
untenable and unarguable. It was a non- starter from its inception. It was
a case which no reasonably competent legal representative would have
advanced. In Lion v Ram N.O and Others
7 the Court commented as
follows:
“[37] ... In Wheatley, it was stressed that a legal representative is much
more than the mere mouthpiece or hireling of his or her client.8
[38] In my view, it is appropriate to make a de bonis propriis costs order
against Ms Lion’s legal representatives. I say this for three primary
reasons. Firstly, I cannot see how, either as a matter of law or
fairness, Ms Lion, who stated in her affidavit that in bringing the
application she had relied on the advice of her legal representatives,
should, on these facts, be penalised for the legal strategy which her
should, on these facts, be penalised for the legal strategy which her
legal representatives advised her to employ.
7 (2025/240674) [2026] ZALCJHB 127 (24 April 2026)
8 para [38]
20
[39] Even if Ms Lion had not relied on the advice of her legal
representatives, as pointed out in Wheatley, there comes a stage
where legal representatives are, in terms of their overarching duty to
the Court, obliged to refuse to follow instructions which would make
them a party to an abuse of the Court process. The Court put it like
this:
“[43]... No reasonably competent legal representative would have
persisted with the application. A bare assertion that the practitioner
was acting on instructions does not constitute an answer where
those instructions, if followed, would necessarily involve a
departure from the practitioner’s paramount duty to the Court. As
explained in Engen Petroleum Ltd v Moodley NO and Another, a
legal representative’s duty to a client “…never translates into the
embarrassing charade of putting up silly points that are
unarguable…”.
9 The duties of legal practitioners in this respect
have now been formalised in the Code. The Code is not confined
to forbidding direct abuse of Court process: It equally condemns a
supine or acquiescent posture that enables a practitioner to
facilitate or become a conduit for such abuse.10”
[40] In Brown and Another v Papadakis and Another NNO, 11 Davis J,
dealing with an abuse of the process of Court and an attempt to
frustrate a proper hearing of the matter, awarded costs de bonis
propriis on an attorney and own client scale, the same order which
the Court made in this matter. The sentiments expressed by the
learned Judge apply to the current matter, and it is apposite to quote
from the judgment:
“The question therefore arises as to costs. A punitive order of
costs needs to be made in this case. There is no proper basis for
this application. It is misconceived; there is no order against which
an appeal is lodged. It is nothing more than a desperate
9 [2017] ZAGPJH 78 para [52]
10 The Code provides that:
“60.1. A legal practitioner shall not abuse or permit abuse of the process of court or
“60.1. A legal practitioner shall not abuse or permit abuse of the process of court or
tribunal and shall act in a manner that shall promote and advance efficacy of the legal
process.” (own emphasis)
11 2009 (3) SA 542
21
rummaging-around in affidavits to throw dirt at the bench to
prevent due process from taking its course.
The question arises as to whether the costs order should be de
bonis propriis, ...
Mr Khan submits that he was given instructions to so pursue this
course of action, but attorneys must surely apply a professional
standard in deciding to do this. See the dictum of Innes CJ in
Vermaak’s Executor v Vermaak’s Heirs 1909 TS 679 at 691.
Applicants have rights, but the courts are not playthings , to be
abused at the convenience of litigants who raise spurious, reckless
arguments which jeopardise the integrity of the court, ...
In my view, this is a case where the court should say: Of course,
litigants have rights; of course, courts must fastidiously respect
these rights; of course, all rights should be exhausted and an
attorney should act as energetically as he or she may be able, to
protect these rights. But when the boundary is overstepped so
grossly in circumstances where there is no legal basis, no
precedent, no serious evidential edifice on which to launch such an
application (ie even on these vague affidavits could a recusal
application ever be brought?), the court should say, you have
overstepped the mark and have crossed a bridge in circumstances
where an order of costs de bonis propriis must follow .” (own
emphasis)
[23] Lastly, there was an ancillary issue about the non- payment of salary. It
was all but conceded that the application for relief under this heading
should not have been brought on an urgent basis. The other difficulty is
that the relief sought under this heading was so vague that the Court
couldn't grant it. Furthermore, it was clear that what the Applicants were
doing in this matter was seeking final relief under disguise of temporary
relief. The Applicants remain at liberty, should they so wish, to persist
with the claim, properly formulated, in the ordinary course.
22
The manner in which the litigation was conducted
[24] As appears from the affidavit of the Applicants’ legal representative, he
does not, in any material way, dispute the version put forward by Mr du
Plooy regarding his conduct of the litigation. He chooses instead to offer
an apology. I have reservations as to whether there is true remorse here.
[25] As part of the explanation, the Applicant’s attorneys baldly contend that
they experienced “technical difficulties”. The statement is so vague that it
can carry little evidential weight. No details are furnished to substantiate
this assertion. There is also an allegation that the “help desk” was
approached but again no details are provided concerning any
communications with the help desk. The interactions with the help desk,
as described in the explanation, does however suggest that the fault lay
not with undescribed technical difficulties but with the Applicant’s legal
representatives. There is also no explanation as to why the Applicant’s
legal representatives, when they eventually appeared to get it right to
upload the papers on Case Lines, only uploaded their Court papers and
not the Court papers of the Respondents.
[26] Thus, the Court has not been taken into the confidence of the Applicants’
legal representative as to the nature and extent of the technical
difficulties, as well as, inter alia, the interactions with the help desk. As
has often been said, albeit in a different context, what is required is an
explanation sufficiently full and with the requisite particulars to place the
Court in a position where it can properly assess the conduct and motives
of the applicant.
12
[27] Insofar as it was the case that the Applicants’ legal representatives were
still, as it were, “learning the ropes” when it came to the new system, I do
not think that this is an attractive argument. Just as there is a duty on
legal representatives to acquaint themselves with the Rules of the forum
legal representatives to acquaint themselves with the Rules of the forum
in which they appear, so too is there a duty to acquaint themselves with
the applicable Directives.
12 Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 353A
23
[28] Mr Mjaliswa also appeared to contend, through the vehicle of his
submissions, that because the Applicants’ attorneys were prosecuting
the urgent application pro bono, this should also serve as a basis for not
making a costs order de bonis propriis. The Court fails to understand the
connection between the fact that a party is running a matter pro bono and
the issuance of a costs order de bonis propriis . To the extent that the
submission is that legal representatives who conduct a matter pro bono
are assessed against a lesser professional standard, such a submission
needs only to be stated to be rejected. The Court would venture to
suggest that the fact that the Applicants are impecunious and unable to
afford their own legal representation would, if anything, in these peculiar
circumstances, be a factor counting in favour of the granting of a costs
order de bonis propriis.
[29] Finally, it is noted that the Applicants’ legal representative has apologised
for how he conducted the litigation. Recently, in Nelson Mandela Bay
Municipality v Bukula
13 Prinsloo J observed that there comes a stage
where a party cannot avoid the consequences which naturally attach to
objectionable conduct by a legal representative and the offer of an
apology, ex post facto, even if genuine, cannot be used as a proverbial
get out of jail free card.
[30] The Applicants already have a cost order against them. Such cost order
will, in all likelihood, be meaningless or very difficult to enforce. The Court
has to guard against legal representatives taking advantage of
uneducated indigent litigants and then litigating with impunity pursuing
untenable and vexatious claims. Legal representatives are required, at all
times, to maintain a level of professional independence and to earnestly
and objectively consider the implications of instituting litigation before
rushing off to Court.
13 PR 17323 (12 June 2026)
24
Conclusion
[31] On the case presented on behalf of the Applicants by the Applicant’s
attorneys, it would mean that an employer could divest an employee of a
right to claim reinstatement through the mere act of employing someone
in the vacancy left by the dismissed employee. Thus unscrupulous
employers could dismiss employees for an unfair reason or no reason at
all and then immediately employ persons in the place of the dismissed
employees and then, on the back of that decision to employ a new
persons in the vacancies left by the dismissed employees , cheerfully
contend that, through their cynical manoeuvring, the employers had
stripped the employees of their statutory right to be reinstated. The more
one thinks about it, the more silly and absurd the notion, which formed
the foundation of the application, appears. Outrageously so, although the
application was without a scintilla of merit, the Applicants sought a cost
order on an attorney and own client scale against the Respondents
irrespective of whether the application was opposed . Legal
representatives need to appreciate that making excessive demands
under the heading of costs does not somehow, magically, change the
fact that the underlying case has no merit.
[32] In my view, the institution of the litigation was reckless having due regard
to the circumstance that the application was doomed from the outset and,
to boot, the litigation was conducted in an unprofessional fashion. If
regard is had both to the manner in which it was conducted as well as the
complete absence of any merit when it comes to an application which
was in truth unarguable, law and fairness dictate that the appropriate
costs order to make would be an order de bonis propriis against the
Applicant’s legal representatives.
25
Order:
1. The Applicant’s attorneys are to pay the costs of the application de bonis
propriis on Scale B.
_______________________
P N KROON
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicants: X Mvuthuza
Instructed by the S. Mjaliswa Inc
Attorneys
For the Second and Third Respondent: LG du Plooy of LG du Plooy and
Associates Inc