1
IN THE LABOUR COURT OF SOUTH AFRICA,
HELD AT JOHANNESBURG
Case no: 2026-129269
Date of hearing: 17 June 2026
In the matter between:
THULI MAVIS MAKUBU Applicant
and
TRANSNET SOC LIMITED t/a TRANSNET FREIGHT RAIL Respondent
EX TEMPORE JUDGMENT
SNYMAN, AJ
[1] This is yet another urgent application brought by employees in the service of a
state-owned enterprise seeking to urgently intervene in decisions made by
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER
JUDGES: NO
(3) REVISED: YES
17 June 2026
2
such employers where there are specific dispute resolution processes
prescribed by the Labour Relations Act 66 of 1995 (LRA) that must instead be
followed.
[2] In the notice of motion, the applicant asks for what she describes as an
interim relief under Part A, pending the final determination of Part B of the
application. First, the applicant prays that what she calls her purported
dismissal on 1 June 2026 be stayed and suspended, and that she be
immediately reinstated pending determination of Part B She also asked that
the dismissal be interdicted and that her salary and benefits continue to be
paid pending Part B. Then in Part B, the applicant prays for a final declaratory
order to be made that the dismissal is automatically unfair based on her
making a protected disclosure, also based on discrimination against her, and
lastly based on her exercising her rights under the LRA. These would all be
individual instances of automatic unfair dismissal circumscribed under section
187(1) of the LRA. Then there is also a plethora of other relief prayed for in
part B of the notice of motion, none of which is competent in proceedings
such as these, which I will get to later in this judgment.
[3] Because the applicant is seeking interim relief with regard to these prayers in
part A of her notice of motion, she must satisfy the following requirements as
set out in National Council of Societies for the Prevention of Cruelty to
Animals v/s Openshaw 2008 (5) SA 339 (SCA) at para 20:
‘… (a) A prima facie right. What is required is proof of facts that establish the
existence of a right in terms of substantive law; (b) A well -grounded
apprehension of irreparable harm if the interim relief is not granted and the
ultimate relief is eventually granted; (c) The balance of convenience favours
the granting of an interim interdict; (d) The applicant has no other satisfactory
remedy.’
[4] The application has been brought as one of urgency . Whilst the respondent
remedy.’
[4] The application has been brought as one of urgency . Whilst the respondent
has opposed the issue of urgency and considering that the applicant was
dismissed on 1 June 2026 and the application was brought about a week
later, I will accept that the applicant took expeditious action and this
application as far as the requirements of immediate intervention is concerned,
3
satisfies the requirements of urgency. It is, however, where it comes to the
availability of substantial redress in the ordinary course that the applicant fails
dismally. However, because this issue of substantial redress in the ordinary
course ties in with the issue of jurisdiction pertinently at stake in this case, I
will decide the matter as one of urgency so the matter in its entirety can be
finally disposed of.
[5] It is in fact when it comes to the issue of jurisdiction that this application is
doomed to fail. In this respect, it is simply not necessary to consider all the
factual background set out by the applicant in the founding affidavit. All that is
necessary to consider are a number of specific facts , relating to jurisdiction.
Several of these facts are in the end undisputed and common cause
considering a comparison of the respective affidavits. But insofar as there are
disputed facts, and by virtue of the principles established in Plasco n Evans
Paints v Van Riebeeck Paints 1984 (3) SA 623 (A) at 634E -635C, the
respondent’s version on the facts must prevail.
[6] In the answering affidavit, the respondent has set out a long history of
difficulties it had with the applicant. It is not necessary to set out all these
difficulties in this judgment. Suffice it to say, the respondent ultimately
adopted the view that despite all its attempts at intervention, the applicant
refused to align with the respondent's operational requirements and exhibited
a continued unfounded resistance to the respondent’s management . This
resistance caused the employment relationship to become strained. The
respondent then instituted an incapacity process against the applicant based
on incompatibility on 17 February 2026. This process continued over a
number of months, with several hearings taking place between March and
May 2026, in which the applicant participated. It appears that the applicant
even challenged the lawfulness of these proceedings, without foundation.
even challenged the lawfulness of these proceedings, without foundation.
[7] However, the last incapacity hearing based on incompatibility took place on 6
May 2026. It was presided over by an independent third -party chairperson.
The finding by the chairperson of this incapacity hearing was delivered on 21
May 2026, in which it was recommended that the applicant be dismissed. The
applicant was then dismissed by the respondent for incapacity based on
4
incompatibility on 1 June 2026 and was presented with the outcome of the
incapacity hearing along with her notice of dismissal. She was dismissed on
one month's notice. The applicant is challenging her dismissal on the basis
that she alleges that it is automatically unfair by virtue of section 187(1) of the
LRA. She seeks to be reinstated as consequential relief for this alleged
automatic unfair dismissal.
[8] In the answering affidavit, the respondent has specifically challenged the
issue of jurisdiction, contending that the issue in dispute pursued by the
applicant, in terms of which the applicant is challenging a dismissal for
incapacity, is a challenge that must be done in terms of the dispute resolution
processes prescribed by the LRA, and cannot be pursued to this Court
directly. For the reasons to follow, there is undeniable substance in this
challenge raised by the respondent.
[9] In Du Plessis v Public Protector and Others (2020) 41 ILJ 919 (LC) at para 20
the Court said: ‘… Jurisdiction cannot be assumed or implied. It either exists
or it does not. Jurisdiction is the power of the Court to decide a matter that
has been brought before it. If the Court does not have the power to do so, it
cannot consider the matter, no matter what the merits or equities may be. … ’
In Gcaba v Minister for Safety and Security and Others (2010) 31 ILJ 296
(CC) at para 74 the Court described the concept of ‘jurisdiction’ as follows:
‘The specific term 'jurisdiction', which has resulted in some controversy, has
been defined as the 'power or competence of a court to hear and determine
an issue between parties … '
[10] The jurisdiction of the Labour Court is found in Section 157 of the LRA, which
reads:
‘(1) Subject to the Constitution and section 173, and except where this
Act provides otherwise, the Labour Court has exclusive jurisdiction in respect
of all matters that elsewhere in terms of this Act or in terms of any other law
are to be determined by the Labour Court.
are to be determined by the Labour Court.
(2) The Labour Court has concurrent jurisdiction with the High Court in
respect of any alleged or threatened violation of any fundamental right
5
entrenched in Chapter 2 of the Constitution of the Republic of South Africa,
1996, and arising from-
(a) employment and from labour relations;
(b) any dispute over the constitutionality of any executive or administrative
act or conduct, or any threatened executive or administrative act or conduct,
by the State in its capacity as an employer; and
(c) the application of any law for the administration of which the Minister is
responsible.’
[11] What is clear from the above is that the jurisdiction of the Labour Court is
specifically circumscribed and determined by statute, being the LRA itself. In
this regard, section 157(1), even though it provides that the Labour Court has
exclusive jurisdiction under that section, does not constitute a general
jurisdiction that the Labour Court can exercise in all instances where a
litigating party approaches the Labour Court and pleads a dispute is one
related to an employment matter. . In Baloyi v Public Protector and
Others (2021) 42 ILJ 961 (CC) at para 24, it was held: ‘… Crucially, s 157(1)
does not afford the Labour Court general jurisdiction in employment matters
…’ In order for the Labour Court to have jurisdiction, the issue for
determination must be specifically provided for in the LRA or in any other
related employment law. It is this critical issue that renders all the relief that
the applicant seeks in a notice of motion, other than the relief relating to the
automatic unfair dismissal, which is specifically provided for in the LRA itself ,
entirely incompetent f or the simple reason, this C ourt has no jurisdiction to
consider it as it cannot arise from the LRA . There is no pleaded reliance on
any other employment law.
[12] Jurisdiction is determined on the basis of the case as pleaded by the
applicant, which pleaded case in motion proceedings is determined by
reference to the notice of motion and founding affidavit. In the notice of motion
and founding affidavit, the applicant has at least pertinently and specifically
and founding affidavit, the applicant has at least pertinently and specifically
pleaded a case of an automatic unfair dismissal resulting from her dismissal
on 1 June 2026 and is seeking reinstatement as a remedy. As alluded to in
the applicant's founding affidavit, automatic unfair dismissals are defined and
determined in section 187(1) of the LRA. But just like any other alleged unfair
6
dismissal, it must be pursued and prosecuted by way of section 191 of the
LRA. Considering the respondent (Transnet) brackets is subject to the
jurisdiction of a bargaining council, the prescribed process requires a referral
in terms of section 191(1) to the bargaining council for conciliation and if that
fails, a referral to the Labour Court for adjudication under section 191(5 )(b). If
there is no referral to conciliation followed by unsuccessful conciliation or the
expiry of 30 days, then no referral to the Labour Court is competent and it will
not have jurisdiction to adjudicate the matter.
[13] In National Union of Metalworkers of SA v Intervalve (Pty) Ltd and Others
(2015) 36 ILJ 363 (CC) at para 40 it was held as follows: ‘ Referral for
conciliation is indispensable. It is a precondition to the Labour Court's
jurisdiction over unfair dismissal disputes … ’. And in Association of
Mineworkers and Construction Union and Others v Ngululu Bulk Carriers (Pty)
Ltd (In Liquidation) and Others 2020) 41 ILJ 1837 (CC) at para 16 it was said:
‘Although unfair dismissal disputes such as the ones we are concerned with
here fall within the jurisdiction of the Labour Court, the exercise of that
jurisdiction is deferred until a dispute has been conciliated. The LRA is
structured in a manner that obliges parties to disputes to first make use of
non-litigation dispute -resolution mechanisms, before approaching courts. Of
importance in this regard is s 191, which requires dismissed employees to
refer disputes about the ‘fairness of a dismissal to conciliation’ … ’ However,
and in this case, the applicant under Part B referred an automatic unfair
dismissal dispute directly to this court for adjudication without a referral first to
conciliation.
[14] Because there has been no referral to the bargaining council for conciliation, a
direct approach to this court is simply not acceptable, and this court will have
no jurisdiction to decide the applicant's claim under Part B in the ordinary
no jurisdiction to decide the applicant's claim under Part B in the ordinary
course. Therefore, without any competent case under Part B, the applicant's
application for interim relief must fail on this basis alone. The case under Part
B is hopeless, and must therefore, even at this juncture, also fail. As a result ,
the applicant faces an insurmountable obstacle. She came to this court
directly without making any attempt to follow the prescribed dispute resolution
7
process under the LRA for such an unfair dismissal dispute. As said above,
this process required the applicant to first refer a dispute to the bargaining
council for conciliation and if consolation ultimately failed, to then by way of
referral to this court in the ordinary course, refer that dispute for adjudication,
as this court is the final determinator of automatic unfair dismissal disputes.
The LRA does not allow a direct approach to this court.
[15] In Chirwa v Transnet Ltd and Others (2008) 29 ILJ 73 (CC) at para 41 the
Court said: ‘It is my view that the existence of a purpose- built employment
framework in the form of the LRA and associated legislation infers that labour
processes and forums should take precedence over non- purpose-built
processes and forums in situations involving employment related matters. At
the least, litigation in terms of the LRA should be seen as the more
appropriate route to pursue. Where an alternative cause of action can be
sustained in matters arising out of an employment relationship, in which the
employee alleges unfair dismissal or an unfair labour practice by the
employer, it is in the first instance through the mechanisms established by the
LRA that the employee should pursue her or his claims …’ Following on, and
in Gcaba supra at para 56 the Court held: ‘… Once a set of carefully crafted
rules and structures has been created for the effective and speedy resolution
of disputes and protection of rights in a particular area of law, it is preferable
to use that particular system. This was emphasized in Chirwa by both
Skweyiya J and Ngcobo J. If litigants are at liberty to relegate the finely tuned
dispute-resolution structures created by the LRA, a dual system of law could
fester in cases of dismissal of employees … ’
[16] So therefore, the applicant is compelled to have pursued a claim that she was
unfairly dealt with and automatically unfairly dismissed on all the grounds that
unfairly dealt with and automatically unfairly dismissed on all the grounds that
she alleged in her notice of motion and founding affidavit by way of a referral
to the bargaining council. It is not competent to approach this court directly.
As such, and by virtue of a failure to follow what is the prescribed dispute
resolution processes under the LRA, the applicant simply has no right to the
relief sought in her notice of motion, both in respect of part A and part B.
8
[17] The applicant, faced with the difficulty of being unable to establish a right to
the relief sought, then argues that because of her particular hardship she
would suffer as a result of the dismissal, including her loss of salary , benefits
and medical aid benefits, as well as her medical condition, this court should
nonetheless come to her assistance. This approach is erroneous. Logically
speaking, this kind of argument suggests that on the mere existence of
particular personal circumstances and / or hardship on the part of the
applicant, it effectively creates a right to relief when none exists in the 1st
place. This surely cannot be. If the right does not exist in the first place, no
amount of hardship can save the situation as one of the primary requirements
for obtaining relief remains absent. All considered, it is not necessary to
consider the applicant's personal circumstances. The applicant has not exited
the starting block of establishing her right to the relief she is seeking. As such,
she has not proven a prima facie right to the relief sought. That should be the
end of the matter, no matter what the consequences may be when it comes to
her particular personal circumstances.
[18] Therefore, and in sum, the applicant has failed to make out the case for the
relief sought by her. She's failed to establish a prima facie right to the relief
sought. Insofar as she seeks to rely upon an unfair dismissal, she is
compelled to follow the prescribed dispute resolution processes established
by the LRA, which entails, in the first instance, and as I have said, a referral of
the dispute to the Bargaining Council for conciliation, which she never did. As
such, her own personal circumstances upon which she placed so much
reliance cannot come to her assistance. For all the reasons set out above, the
applicant's application must fail, as she simply has not established even a
prima farce right to the relief sought. Her application thus f alls to be
dismissed.
prima farce right to the relief sought. Her application thus f alls to be
dismissed.
[19] When it comes to the issue of costs , in terms of Section 163(1) of the LRA, I
have a wide discretion. The Constitutional Court has provided some guidance
as to how this discretion needs to be exercised. In Union for Police Security
and Corrections Organisation v SA Custodial Management (Pty) Ltd and
Others (2021) 42 ILJ 2371 (CC) at para 35 where that Court said: ‘In the labour
context, the judicial exercise of a court’s discretion to award costs requires, at
9
the very least, that the court must do two things. First, it must give reasons for
doing so and must account for its departure from the ordinary rule that costs
should not be ordered. Second, it must apply its mind to the dictates of the
fairness standard in s 162, and the constitutional and statutory imperatives
that underpin it … ’
[20] In applying my discretion in line with the dictum in SA Custodial Management
as aforesaid, I must emphasize that in bringing this application, the applicant
took up the valuable time and abused the already stretched resources of this
court. And in the applicant doing so, she compelled the respondent to defend
the case out of the constrained taxpayer's purse, which is not acceptable.
What in reality happened in this case is an abus e of process. This court has
consistently said that this kind of unfounded litigation is deserving of costs
orders. The applicant must be told in no uncertain terms, hopefully also
serving as an example to others, that exercising a right of access to the courts
must be done in a responsible and proper manner. I fully align myself with the
following recent dictum in Mokoena v Merafong Municipality and Others
(2020) 41 ILJ 234 (LC) at para 36: ‘In casu, the applicant brought a meritless
application to this court and fairness dictates that the respondents cannot be
expected to endure enormous costs defending litigation where more thought
and consideration had to be put in before approaching this court on an urgent
basis. This is more so where the costs incurred by the respondents are paid
from taxpayers’ money and I can see no reason why the taxpayers should be
burdened with the costs in this application … ’.
[21] I thus conclude that this is an appropriate case where the exercise of my
discretion under section 162(1) of the LRA must lead to a finding that the
applicant being ordered to pay the costs of the application. The respondent
has indicated that costs on the scale of party and party scale B would be
has indicated that costs on the scale of party and party scale B would be
acceptable and I am inclined to agree.
[22] In the premises, the following order is made:
Order
1. The application is heard as one of urgency in terms of Rule 38.
10
2. The applicant’s application is dismissed
3. The applicant is ordered to pay the costs of the application on the party
and party scale B.
__________________
S Snyman
Acting Judge of the Labour Court of South Africa