Mabhena v Theewaterskloof Municipality and Others (2026/128968) [2026] ZALCCT 106 (30 June 2026)

THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
CASE Number: 2026 – 128968


In the matter between: -
NTHOKOZISI PAUL MABHENA Applicant
and
THEEWATERSKLOOF MUNICIPALITY First Respondent
GW HERMANUS N.O. Second Respondent
THE COUNCIL OF THE THEEWATERSKLOOF
MUNICIPALITY Third Respondent
HEDDA SCHENSEMA N.O. Fourth Respondent
SEBASTIAAN MARX N.O. Fifth Respondent
Date of hearing: 18 June 2026

This j udgment was handed down electronically by circulation to the parties and
legal representatives by email and by uploading onto CaseLines. The date and
time for hand-down is deemed to be 30 June 2026.

(1) REPORTABLE: NO
(2) OF INTEREST TO
OTHER JUDGES: YES
(3) REVISED: YES

30 June 2026

2

Summary:

Jurisdiction – s 157(1) – applicant failing to establish jurisdiction of the Court
to grant the relief sought – Court not having general jurisdiction as relied on by
applicant – applicant not pleading reliance on rights under the LRA or
employment laws – Cibane and Another v Premier of Province of Kwazulu-
Natal considered – Court having no jurisdiction to intervene in incomplete
disciplinary proceedings under section 157(1) – Court having no jurisdiction to
consider case based on unlawfulness – matter falls to be dismissed for want of
jurisdiction

Jurisdiction – s 158(1)(a) considered – section does not confer jurisdiction but
only conveys powers on Court – jurisdiction must be conferred on other
provisions under LRA / other employment laws for s 158(1)(a) to apply –
applicant’s reliance on s 158(1)(a) misplaced – section cannot be used to
confer jurisdiction to consider applicant’s application

Jurisdiction – s 158(1)(h) considered – Court does have review jurisdiction
under s 158(1)(h) – requires application of ordinary principles / processes
relating to review applications – urgent and final intervention on basis of
pending review not competent – no review grounds pleaded – review also not
competent where real issue in dispute resorts under ordinary LRA remedies –
applicant non-suited on such basis

Review jurisdiction – urgent review application in medias res – principles
considered – requires exceptional circumstances for intervention to be show n
– applicant failing to establish exceptional circumstances – applicant’s review
in medias res not competent

Suspension – applicant pleading case of unlawful suspension – Court having
no jurisdiction to consider unlawful suspension – matter can be pursued as
unfair suspension based on case raised by applicant – such dispute must be
referred to bargaining council – Court having no jurisdiction

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Jurisdiction – Court having no jurisdiction to consider applicant’s application –
application dismissed for want of jurisdiction

Costs – application constitutes an abuse of process – application should never
have been pursued and / or persisted with – principles relating to costs
considered – costs awarded

JUDGMENT

SNYMAN, AJ
Introduction

[1] Once again, I am seized with a case of a senior employee in the public service
seeking to approach this Court directly on an urgent basis in order to obstruct
a pending internal disciplinary hearing. What is even worse is that it is
apparent from the notice of motion that what the applicant seeks is in effect
that the entire disciplinary proceedings against him be permanently abolished.
This c onduct is regularly perpetrated by senior employees in the public
service, and is unacceptable, as made clear in this Court on a plethora of
occasions. The fact that it is nonetheless persisting is an intolerable state of
affairs. This conduct is pursued despite all that had been said in this Court
about the lack of competence of such conduct. 1 I once again, as I have done
in the past, fe el compelled to refer to the following dictum in George v Nyoka
and Others2, which makes this entire sorry state of affairs clear:

‘The Court deems it necessary to outline all of the above for the simple reason
that these antiquated shenanigans, exhausting as they are, in the end come
back to bite the employees when claiming urgency in this Court. This Court
has consistently rebuked such truant like antics, which are in most instances

1 See for example Public Allied Workers Union of SA on Behalf of Netshikhudini v Commission for
Conciliation, Mediation and Arbitration and Others (2022) 43 ILJ 2812 (LC) at paras 1 – 2; National
Union of Metalworkers of SA on behalf of Members v BMW (SA) (Pty) Ltd (2025) 46 ILJ 2712 (LC) at
para 1; Choko-Choko and Others v Tharisa Minerals (Pty) Ltd (2025) 46 ILJ 2618 (LC) at paras 38 –
39.

39.
2 [2023] 7 BLLR 654 (LC) at paras 3 – 4. See also Minya v SA Post Office Ltd and Others (2021) 42
ILJ 141 (LC) at paras 2 – 3.

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aided and encouraged by legal representatives. My colleague Van Niekerk J
recently delivered a trio of judgments 1 that concerned attempts at halting
internal disciplinary hearings, and in all instances, costs were awarded against
recalcitrant applicants. These judgments are amongst numerous others
delivered in this Court from the urgent roll, which have consistently set out the
law and the difficulties the applicants face when approaching the court on an
urgent basis with applications to stay internal proceedings. These frivolous
applications have caused strain on the limited judicial resources of this Court.
This message has clearly not filtered through to employees or their legal
representatives.

These antics are truly exhausting, not only to the court’s resources but also
because in the end, they turn out to be financially draining for the already
financially depleted municipalities or government departments and its entities.
This is particularly so since in most internal disciplinary enquiries held in all
spheres of government, legal practitioners are engaged to act as initiators or
chairpersons in those enquiries. I am not even taking into account all the other
officials who are taken away from their real work, in order to attend to these
stop-start disciplinary enquiries. These antics are an antithesis of the primary
purpose and objectives of the Labour Relations Act (“LRA”), primary of which
is to have labour disputes resolved expeditiously. They do not have a place
either in the workplace or in this Court, if the primary objectives of the LRA are
to be achieved.
’

[2] But what makes the matter in casu even worse is that the applicant’s legal
representative, when confronted with all the difficulties relating to the relief
sought with regard to the pending disciplinary proceedings against the
applicant, simply reacted by saying that the applicant is no longer seeking
such relief but is instead only seeking relief relating to the applicant’s alleged

such relief but is instead only seeking relief relating to the applicant’s alleged
unlawful suspension. It is unacceptable to drag the first respondent to Court to
fight a case based primarily on challenging the pending disciplinary
proceedings and cause this Court to read everything relating to such
challenge, only to then simply glibly state, when the shoe pinches in the
course of argument in Court, that it is no longer sought. But even then, this
relief sought was never formally abandoned, so I still need to decide it.

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[3] The applicant has also sought to overcome many of his difficulties by dividing
the application into part A and part B. Part A concerns the mat ter now before
Court. In part A, the applicant prays for what he labels as an interim interdict,
in which he seeks to interdict and restrain the first respondent from in any
manner conducting the disciplinary proceedings against him , until the relief
sought in part B has been decided. The applicant also seeks, under part A,
interim declaratory relief that his precautionary suspension be declared to be
of no force and effect and he be reinstated in his position of CFO, pending a
determination of part B. In part B, the applicant then seeks final relief. That
relief is firstly that his precautionary suspension be declared to have lapsed by
virtue of the expiry of the time limit under regulation 6(6)(a) of the Local
Government: Disciplinary Regulations for Senior Managers , 2010 (the
Regulations)
3. Further, he asks that such suspension be declared to be
unlawful or invalid for want of compliance with regulations 6(2), (3), (4) and (5)
of the Regulations. The applicant also seeks final relief in the form of a review
under section 158(1)(h) of the Labour R elations Act (LRA)
4, in terms of which
the applicant asks that the resolution by the first respondent on 27 February
2026 to suspend him be reviewed and set aside. The applicant finally asks
that the decision by the first respondent to discipline him be reviewed and set
aside under section 158(1)(h) of the LRA , and that the disciplinary
proceedings against him be finally interdicted.

[4] The first issue that must be dealt at the outset is the nature of the relief sought.
The applicant has couched the relief sought as an interim order under part A.
But to simply call the relief sought an interim order in the notice of motion does
not make it so. Attaching a particular label to substantive relief sought in a

not make it so. Attaching a particular label to substantive relief sought in a
notice of motion cannot change the true nature of what it is that is being
applied for. As said in Vodafin Mining (Pty) Ltd v NKK Minerals and
Construction CC
5: ‘… It is trite that when determining whether the relief sought
is interim or final, a court should look at the substance of the relief sought
rather than the form in which the prayer is couched …’. Next, in Armas
Developments (Pty) Limited v Singh 6 the court similarly held: ‘… A final
interdict is set out as being granted without any limitation as to time and which

3 Promulgated by way of GN344 in GG 34213 of 21 April 2021.
4 Act 66 of 1995 (as amended)
5 2016 JDR 0854 (GP) at para 7.
6 2017 JDR 1633 (KZD) at para 22.

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secures a permanent cessation of an unlawful course of conduct. The
substance of the relief sought must be considered. An interlocutory interdict on
the other hand is granted pendente lite to protect that right of the complainant
to protect or reserve his rights pending an action or application between the
parties. It does not involve or affect the final determination of the right of
parties. It merely suspends or reverses the position complained of until the
main issues are determined and then ceases to operate … ’. And specifically
relating to supposed interim relief pending the determination of a review
application, the Court in Zondo and Another v Uthukela District Municipality
and Another
7 decided as follows:

‘… Mr Hlatswayo confirmed that what the applicants were actually seeking is
that the disciplinary proceedings against the applicants be interdicted from in
any way proceeding until the applicants' review application in respect of the
legal representation ruling has been finally determined. This is clearly not
interim relief, but final relief. In effect, the disciplinary proceedings would be
permanently stayed until the event of the outcome of the legal representation
review application. As matters stand, this is indefinitely. …
’

[5] So, what the applicant in reality seeks in this case is final relief. In order to
establish a right to the relief sought, the applicant must show that his pending
review will likely succeed. Or differently put, his case for interim relief is
directly tied to a determination of the merits of the review, which is sought on a
final basis. Once it decided that the review has merit, which is necessary to
grant interim relief, that would dispose of the whole case. That is final relief.
But even if a later determination of the review remains competent, how can the
prospects of success on review be established without a proper review record
and without the prescribed process for review under Rule 37 being applied ?

and without the prescribed process for review under Rule 37 being applied ?
That is basically not competent. It would then follow that the mere existence of
the review is the foundation for the interim relief, which, as undesirable as this
may be, would have the practical result that nothing can happen, vis -à-vis the
pending disciplinary proceedings and the applicant’s continued suspension,
until the actual review applications are decided at some undetermined point in

7 (2015) 36 ILJ 502 (LC) at para 4. See also See Mashiya v Sirkhot NO and Others (2012) 33 ILJ 420
(LC) para 19.

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the future, which for all intents and purposes is an indefinite period. This
means that effectively, the relief sought is final in nature.8

[6] This matter came before me as an urgent application on 18 June 2026. It was
opposed by the first respondent, who filed an answering affidavit. After hearing
argument by all parties, and considering the affidavits and h eads of argument
filed, I granted the following order on the same date:

1. The applicant’s application is dismissed in its entirety.

2. The applicant is ordered to pay the respondents’ costs on the party and
party scale C.

3. Written reasons for this order will be provided on 30 June 2026.

[7] This judgment now constitutes the written reason as contemplated by
paragraph 3 of the order, supra.


Background facts

[8] The background facts in this case are straight forward, and mostly undisputed.
But where factual disputes do exist, and because the applicant is effectively
seeking final relief, I shall decide those in line with the principles enunciated in
the well-known judgment of Plascon Evans Paints v Van Riebeeck Paints 9. In
short, it follows that it is the admitted or undenied facts together with the facts
as stated by the first respondent that must be utilized in deciding this matter.
The only exception would be if the first respondent simply offers a bald denial,
or the facts as stated by the first respondent are patently false, absurd or

8 Also compare Vodafin Mining (supra) at para 8: ‘…the relief is final in nature in the sense that the
effect of the order, should it be granted, is that it will remain in place only until the period of the
agreement has run its course and will thereafter lapse. The substance of the relief sought is thus in my
view final. The format, in which it is couched, that is, to operate as an interim interdict, does not
change its nature. It remains final …’.
9 1984 (3) SA 623 (A) at 634E -635C, where the Court said: ‘ … in proceedings on notice of motion

disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other
form of relief, may be granted if those facts averred in the applicant's affidavits which have been
admitted by the respondent, together with the facts alleged by the respondent, justify such an order
…’. See also Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005
(2) SA 359 (CC) at para 53; Jooste v Staatspresident en Andere 1988 (4) SA 224 (A) at 259C – 263D;
National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) paras 26 – 27; Gbenga-
Oluwatoye v Reckitt Benckiser SA (Pty) Ltd and Another (2016) 37 ILJ 902 (LAC) at para 16; Molapo
Technology (Pty) Ltd v Schreuder and Others (2002) 23 ILJ 2031 (LAC) para 38.

8

fanciful.10 The background as set out below is arrived at based on the
application of these principles.

[9] The applicant is employed as the Chief Financial Officer (CFO) of the first
respondent, having commenced employment in 2023. The events giving rise
to this entire matter took place on 29 January 2026, when it was alleged that
the applicant had physically assaulted a co- worker. The particulars of this
event are not relevant to deciding the case in casu . This complaint served
before the first respondent’s Municipal Council (the Council) on 2 February
2026, and it was resolved to place the applicant on precautionary suspension
pending an investigation of the incident of 29 January 2026. The applicant was
informed in writing on 4 February 2026 of this suspension.

[10] Even though the applicant was informed on 4 February 2026 that he was
suspended, it was no netheless also resolved by the Council on 2 February
2026 that the applicant be afforded an opportunity to make written
representations to the Council why he should not finally be suspended, within
seven days of being informed of such suspension as aforesaid. He was also
informed that he could make written representations as to why he should not
be finally suspended to Municipal Manager , also within seven days. It thus
appears that the applicant being informed of his suspension on 4 February
2026 can be called a prima facie suspension, pending the written
representations and final decision to be made. The Council decided to adopt
this course of action due to the seriousness of the allegations and to enable a
proper investigation going forward.

[11] On 10 February 2026, the applicant’s attorneys stepped in and answered the
suspension letter of 4 February 2026. In this letter, his attorneys sought an
indulgence to file the written representations after the seven days’ deadline,
because they required additional time to consult with him for purposes of

because they required additional time to consult with him for purposes of
obtaining full and detailed instructions . It was however acknowledged that the
applicant was called on to make representations , and the applicant was of the
intention to do so. No issue was taken with lawfulness of the suspension

10 See Minister of Justice and Correctional Services and others v Tshifhango and Another [2019] 7
BLLR 627 (LAC) at para 26; TIBMS (Pty) Ltd t/a Halo Underground Lighting Systems v Knight and
Another (2017) 38 ILJ 2721 (LAC) at para 29; SA Football Association v Mangope (2013) 34 ILJ 311
(LAC) at para 12.

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effected on 4 February 2026. In this letter , the applicant’s attorneys also
demanded an independent investigation into the matter. The Council resolved
on 16 February 2026 that the applicant be afforded an extension to 20
February 2026 to file his written representations, and the applicant’s attorneys
were informed accordingly.

[12] However, and on 19 February 2026, the applicant’s attorneys again wrote to
the first respondent, acknowledging that the applicant was required to submit
his written representations by 20 February 2026. His attorneys once again
sought a further indulgence to file the representations , now citing the
applicant’s unavailability due to ill health as cause for seeking the extension.
The first respondent was not inclined to grant a further extension. In the end,
there is no evidence of any written representations being filed by the applicant
as to why he should not be suspended
.

[13] On 27 February 2026, the Council then resolved that, having regard to the
seriousness of the allegations against the applicant, he be finally suspended
with immediate effect . The Council furt her resolved on 27 February 2026 that
based on the outcome of an investigation had been conducted in the interim,
disciplinary action be instituted against the applicant in relation to the assault
which took place on 29 January 2026. And finally, the Council resolved to
appoint an independent investigator to conduct a final investigation
.

[14] Pursuant to the aforesaid resolution of the Council on 27 February 2026, the
applicant was then informed in writing on 3 March 2026 that he had finally
been placed on suspension, and what the reasons for the suspension was.
The conditions applicable to the suspension was also stipulated. No challenge
or response was forthcoming from applicant’s attorneys about this, at the time
.

[15] The current attorneys of record of the first respondent were appointed on 9

.

[15] The current attorneys of record of the first respondent were appointed on 9
March 2026 to conduct the investigation and to facilitate the conducting of the
disciplinary proceedings. The attorneys so appointed sent a letter to the
applicant’s attorneys on 30 March 2026, informing the applicant’s attorneys
that they had been appointed to conduct an independent investigation, and the
applicant was invited to attend an interview as part of the investigation. The
applicant failed to answer this request for an interview. As a result, the

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applicant was informed on 7 April 2026 that the investigation will be completed
without his input.

[16] The outcome of the investigation was submitted to the Council on 8 April 2026
by way of a written investigation report . Subsequent to receiving the
investigation report, the Council considered the report and finally resolved on
14 April 2026 to institute disciplinary action against the applicant on the basis
as recommended in the investigation report . The fourth respondent w as
appointed as the initiator of the disciplinary hearing.

[17] On 11 May 2026, the fourth respondent sent an e- mail to the applicant’s
attorneys, enquiring whether such attorneys were authorised to accept service
of the disciplinary hearing notice and charge sheet on behalf of the applicant,
and whether the applicant would be amenable to the enquiry being conducted
in person at the first respondent’s offices or by way of Microsoft Teams . The
applicant’s attorneys subsequently confirmed that the disciplinary hearing
notice and charge sheet could be served on them, on behalf of the applicant.

[18] The disciplinary hearing notification and charge sheet was then served on the
applicant’s attorneys on 14 May 2026. The date for the disciplinary hearing
was set as 22 May 2026. The applicant’s attorneys on 14 May 2026 confirmed
receipt of the same. However, and in confirming receipt of the disciplinary
hearing notification and charge sheet, the applicant’s attorneys indicate that
neither they nor the applicant would be available to commence with the
enquiry on 22 May 2026, as the applicant was required to appear in the
Caledon Magistrates Court . It was requested that an alternative date be
provided.

[19] Due to the applicant’s unavailability, the disciplinary hearing was rescheduled
to commence on 25 May 2026. The fourth respondent made telephonic
contact with the applicant’s attorney to confirm the date. In this conversation,

contact with the applicant’s attorney to confirm the date. In this conversation,
the fourth respondent and the applicant’s attorney agreed that the enquiry
would commence on 25 May 2026 and that only the plea and any preliminary
issues would be addressed on that date.

[20] Despite this agreed date of 25 May 2026, and despite the agreement as to
what would transpire on that day with regard to the conducting of the hearing,

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the applicant’s attorneys on 22 May 2026 sent a letter to the fourth
respondent, indicating that the applicant was not a vailable to attend the
hearing on 25 May 2026 due to his medical condition. A medical report was
provided to substantiate this contention.

[21] But of particular relevance to the current matter, the letter of 22 May 2026 by
the applicant’s attorneys now for the first time raises a number of preliminary
concerns. The first concern was that the applicant was not furnished with the
investigation report prior to the institution of the disciplinary hearing, as well as
the Council resolutions authorising the disciplinary proceedings . The second
concern was that the applicant’s suspension was unlawful because of the
expiry of the time period under Regulation 6(6)(a} of the Regulations. It was
stated that as a result of these alleged irregularities, the disciplinary enquiry
could not proceed. In fact, it was even said that because the suspension was
unlawful, and disciplinary proceedings flowing from it would also be unlawful.

[22] In the letter of 22 May 2026, the applicant’s attorneys stated that the applicant
would launch an urgent application in which he will seek the review and setting
aside of the precautionary suspension, alternatively declaring that the
suspension has lapsed. He further indicated that relief w ould be sought to
interdict and restrain the first respondent from proceeding with the disciplinary
process against him pending the determination of that review application. The
letter set a deadline of 17h00 on 25 May 2026 for the first respondent to
answer and provide an undertaking that the disciplinary hearing would not
proceed pending the determination of the contemplated urgent application.
Iroically, this deadline is after the disciplinary hearing was set to commence.

[23] The fourth respondent answered on the same day (22 May 2026). It was made
clear that the hearing date of 25 May 2026 had been agreed to with the

clear that the hearing date of 25 May 2026 had been agreed to with the
applicant’s attorney. It was furth er stated that the disciplinary enquiry would
proceed on 25 May 2026 at 09h00, as agreed and scheduled.

[24] The disciplinary enquiry then indeed convened on 25 May 2026 at 09h00,
before the fifth respondent as independent chairperson. The applicant failed to
attend the enquiry. The fifth respondent as chairperson then convened the
enquiry and took charge of it. He noted the medical report submitted on behalf
of the applicant, and decided to postpone the disciplinary hearing sine die until

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the period of incapacity of the applicant as indicated in the medical report had
run its course, following which an alternative date would then be arranged with
the applicant.

[25] Following the convening and then postponement of the disciplinary hearing,
the fourth respondent addressed a letter to the applicant’s attorneys that same
day (25 May 2026), in which it was stated that the hearing had convened, and
a recording was also provided of what transpired at the hearing. It was noted
that due to the applicant’s medical condition, it had been decided to postpone
the disciplinary hearing sine die, with a mutually convenient date to be
arranged after 15 June 2026, being th e date until which the applicant was
booked off. The letter also refuted all the allegations made in the letter from
the applicant’s attorneys on 22 May 2026.

[26] The current urgent application then followed on 4 June 2026, more than a
week later.

Urgency

[27] I intend to first deal with the issue of urgency , as the f irst respondent has
contended that the matter is not urgent . Urgent applications are governed by
Rule 38 of the Labour Court Rules, being the successor to the erstwhile Rule
8. The Court in Jiba v Minister: Department of Justice and Constitutional
Development and Others
11 applied Rule 8 as follows:

‘Rule 8 of the rules of this court requires a party seeking urgent relief to set out
the reasons for urgency, and why urgent relief is necessary. It is trite law that
there are degrees of urgency, and the degree to which the ordinarily
applicable rules should be relaxed is dependent on the degree of urgency. It is
equally trite that an applicant is not entitled to rely on urgency that is self
created when seeking a deviation from the rules.’

These same considerations, in my view, equally apply to Rule 38.

[28] When considering whether urgency has been established, an important
consideration, which is particular application in casu, would be whether an

consideration, which is particular application in casu, would be whether an

11 (2010) 31 ILJ 112 (LC) at para 18.

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applicant would not be afforded substantial redress in due course, and the
applicant must provide proper reasons in support of a case that this would not
be possible.
12 As succinctly described by the Court in Maqubela v SA
Graduates Development Association and Others13:

‘Whether a matter is urgent involves two considerations. The first is whether
the reasons that make the matter urgent have been set out and secondly
whether the applicant seeking relief will not obtain substantial relief at a later
stage. In all instances where urgency is alleged, the applicant must satisfy the
court that indeed the application is urgent. Thus, it is required of the applicant
adequately to set out in his or her founding affidavit the reasons for urgency,
and to give cogent reasons why urgent relief is necessary. … ’

[29] Where an applicant in effect seeks final relief, the Court must be even more
circumspect when deciding whether or not urgency has been established. 14 In
Tshwaedi v Greater Louis Trichardt Transitional Council15 the Court said:

‘… An applicant who comes to court on an urgent basis for final relief bears an
even greater burden to establish his right to urgent relief than an applicant
who comes to court for interim relief. ….
’

[30] The Court must also consider the interests of the respondent party, and in
particular, the prejudice the respondent may suffer if the matter is urgently
disposed of. In Association of Mineworkers and Construction Union and
Others v Northam Platinum Ltd and Another16 the Court held as follows:

‘But it is not just about the applicant. Another consideration is possible
prejudice the respondent might suffer as a result of the abridgement of the
prescribed time periods and an early hearing.’


12 Mojaki v Ngaka Modiri Molema District Municipality and Others (2015) 36 ILJ 1331 (LC) at para 17;
East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others [2012] JOL
28244 (GSJ) at para 6.

28244 (GSJ) at para 6.
13 (2014) 35 ILJ 2479 (LC) at para 32. See also Transport and Allied Workers Union of SA v Algoa Bus
Co (Pty) Ltd and Others (2015) 36 ILJ 2148 (LC) at para 11.
14 [2002] JOL 9452 (LC) at para 8.
15 [2000] 4 BLLR 469 (LC) at para 11.
16 (2016) 37 ILJ 2840 (LC) at para 26. See also IL & B Marcow Caterers (Pty) Ltd v Greatermans SA
Ltd and Another 1981(4) SA 108 (C) at 113D-114C.

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[31] Finally, urgency must not be self-created by an applicant, as a consequence of
the applicant having not brought the application at the first available
opportunity.17 As the Court said in Northam Platinum supra18:

‘… the more immediate the reaction by the litigant to remedy the situation by
way of instituting litigation, the better it is for establishing urgency. But the
longer it takes from the date of the event giving rise to the proceedings, the
more urgency is diminished. In short, the applicant must come to Court
immediately, or risk failing on urgency. … ’

[32] When the above considerations with regard to urgency are then applied to the
applicant’s application in casu, I am compelled to conclude that there simply
exists no basis on which to urgently intervene in this matter. The first
respondent’s criticism of the conduct of the applicant where it came to the
issue of urgency is fully substantiated by the facts, which I will turn to next.

[33] As is clear from the introduction to this judgment , the applicant takes issue
both with hi s precautionary suspension, and the disciplinary proceedings
against him. I will start with the issue of his suspension. He was informed as
far back as 3 March 2026 that he was finally placed on suspension. If he
believed that such suspension was somehow unlawful, that was the point at
which he should have instated an urgent application. To then wait until 4 June
2026 to bring it, which is some three months later, without an iota of an
explanation why it was not brought at the time, is entirely destructive of any
urgency. But that is not the end of it. The applicant also contends that his
suspension lapsed on 4 May 2026 by virtue of the time limit in the Regulations,
but once again he does nothing at that point to challenge it, and does not
explain why he did not do so. There simply exists no justified or feasible
explanation why the applicant would not have acted far earlier. In my view, the

explanation why the applicant would not have acted far earlier. In my view, the
logical inference to draw from this is that the applicant in reality had no issue
with his suspension, but is now seeking to challenge it because he wants to
use it as some basis to scupper his disciplinary hearing which followed months
later. If this is not self-created urgency, I do not know what would be.

17 See Golding v HCI Managerial Services (Pty) Ltd and others [2015] 1 BLLR 91 (LC) at para 24;
National Union of Mineworkers v Lonmin Platinum Comprising Eastern Platinum Ltd and Western
Platinum Ltd and Another (2014) 35 ILJ 486 (LC) at para 50.
18 Id at para 26. See also Sihlali and Others v City of Tshwane Metropolitan Municipality and Another
(2017) 38 ILJ 1692 (LC) at para 18.

15


[34] As to the disciplinary proceedings, it was formally ins tituted as far back as 14
May 2026. If the institution of those proceedings were somehow unlawful, that
is once again the point at which urgent intervention ( assuming it is even
competent) needed to have been sought. But yet again, the applicant’s
conduct is entirely inconsistent with a litigant seeking urgent intervention
because of being subjected to unlawful proceedings. The applicant in fact asks
for a postponement of the hearing to a suitable date because he is not
available, and then agrees to a date. When the shoe came to pinch because
the hearing must now happen, then the applicant only on 25 May 2026
complains about alleged irregularities and threatens an immediate urgent
application. But that urgent application only follows more than a week later ,
without any explanation for this furt her delay. Once again, this is an instance
of unexplained procrastination and self-created urgency.

[35] The manner in which the applicant dealt with urgency in his founding affidavit
is worthy of some criticism . He relies on what he simply calls a ‘continuous
course of conduct’, despite recognising when the relevant eventualities that
could give to an application actually occurred, as I have dealt with earlier . He
says that he became aware of ‘immanent prejudice’ when he received the
charge sheet on 14 May 2026. That being so, I find it quite inexplica ble that
the applicant’s attorney would not immediately object to the hearing, but
instead ask for a postponement because the applicant was not available, and
then agree with the fourth respondent for the hearing to take place on 25 May
2026. The applicant does not deal with the actual delays that occurred at all.
Instead, he basically says he should not be subjected to unlawful proceedings,
he is being subjected to psychiatric harm, and he will be deprived of his
employment. None of this establishes urgency.

employment. None of this establishes urgency.

[36] In fact, the applicant approaches this Court almost on the basis of an
entitlement. It seems to me that the approach adopted by the applicant is that
because he relies on alleged unlawful conduct on the part of the first
respondent, it effectively gives him some right to urgent interim relief. Such an
approach is patently wrong. No matter what the underlying cause of action
may be, where an urgent application is brought, the prescribed considerations

16

of urgency must always be satisfied. If not, this Court could be turned into a
free for all by any litigant who believes it has been unlawfully treated.

[37] I am satisfied that the applicant can obtain proper and full redress in the
ordinary course. As matters stand, he is not dismissed . But if he is later
dismissed, he can pursue an unfair dismissal dipsute to the bargaining council,
and if successful, he could obtain full redress in the form of fully retrosp ective
reinstatement as consequential relief. If he is not dismissed and receives a
lesser sanction, that is open to challenge to the bargaining council as well,
under the unfair labour practice jurisdiction provided for in the LRA, and yet
again, he can obtain full redress. The same applies to his complaints about his
suspension, in respect of which he can also obtain full redress under the
auspices of pursuing an unfair labour practice dispute to the bargaining
council.

[38] As part of any case of urgency, the interests of the first respondent must also
be considered. It has been dragged to Court on the flimsiest of grounds and
on an urgent basis to effectively stop it from pur suing disciplinary proceedings
against the applicant it is perfectly entitled to pursue. Added to this, it is done
in circumstances where the proceedings have been conducted, so far, with the
full participation of the applicant, without him expressing reservations. And
then, the first respondent is given seven days to answer what is in reality final
relief sought. I believe this kind of conduct constitutes an improper interference
with the first respondent’s rights to conduct its operations free from undue
hindrance.

[39] All said, the applicant has dismally failed to make out a case of urgency. The
requirements of Rule 38 have thus not been satisfied. In sum, there are
several periods of delay that are entirely unexplained, and the approach
adopted by the applicant is nothing short of a clear case of self -created

adopted by the applicant is nothing short of a clear case of self -created
urgency. There is a complete absence of any exceptional circumstances
justifying urgent intervention, and no such case has even been made out by
the applicant . And finally, the applicant is able to obtain full redress in the
ordinary course. For these reasons alone, the application falls to be struck

17

from the roll or be dismissed.19 The Court in February v Envirochem CC and
Another20 accepted that urgency was not established, but the Court
nonetheless proceeded to dismiss the matter. For the reasons to follow, I
believe that this is a similar situation where the matter must be finally disposed
of and dismissed and not just struck from the roll . This is especially so
because it involves, primarily, an issue of jurisdiction.

Jurisdiction

[40] In its answering affidavit, the first respondent has specifically challenged the
jurisdiction of this Court to grant the applicant the relief sought in this
application. As a result, I am from the outset compelled to decide the issue of
jurisdiction. When establi shing whether jurisdiction to decide a particular
matter exists, this must be 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.
21

[41] The appl icant’s founding affidavit at least makes it clear on basis the
application has been brought. The applicant relies on unlawfulness in several
respects. First, he contends his precautionary suspension is unlawful,
because the first respondent has breached the R egulations and / or his
suspension has lapsed by virtue of the Regulations. He then pleads the
disciplinary proceeding against him is equally unlawful , because of the
unlawful suspension that would directly impact on it , the first respondent’s
failure to provide him with the investigation report and the Council’s resolutions
authorising the disciplinary action against him, and his medical incapacity . He
seems ot then change tack , and pleads that the first respondent violated ‘my
right to procedural fairness, my right to fail labour practices guaranteed by
section 23(1) of the Constitution, and the principle of legality’. And lastly, to put

19 See Radebe and Others v Aurum Institute (2024) 45 ILJ 876 (LC) at paras 26 – 28.

19 See Radebe and Others v Aurum Institute (2024) 45 ILJ 876 (LC) at paras 26 – 28.
20 (2013) 34 ILJ 135 (LC) at para 17. See also National Union of Metalworkers of SA and Others v
Bumatech Calcium Aluminates (2016) 37 ILJ 2862 (LC) at para 33; Bethape v Public Servants
Association and Others [2016] ZALCJHB 573 (9 September 2016) at para 53; Rail Refurb CC v South
African National Road Agency 2023 JDR 3545 (GP) at para 22; National Association of SA Workers
on Behalf of Members v Kings Hire CC (2020) 41 ILJ 685 (LC) at para 32.
21 See Gcaba v Minister for Safety and Security and Others (2010) 31 ILJ 296 (CC) at para 75; Mbatha
v University of Zululand (2014) 35 ILJ 349 (CC) at para 157; Ekurhuleni Metropolitan Municipality v SA
Municipal Workers Union on behalf of Members (2015) 36 ILJ 624 (LAC) at para 21; Moodley v
Department of National Treasury and Others (2017) 38 ILJ 1098 (LAC) at para 37; Mohlomi v
Ventersdorp/Tlokwe Municipality and Another (2018) 39 ILJ 1096 (LC) at para 42; Public Servants
Association on behalf of Members v Minister of Health and Others (2019) 40 ILJ 193 (LC) at para 15.

18

matters beyond doubt, and specifically under the heading of ‘ jurisdiction’, the
applicant pleads:

‘This Honourable Court has jurisdiction to entertain this application by virtue of
section 157(1) read with sections 158(1) (a)(ii), 158(1)(a)(iii) and 158(1)(h) of
the Labour Relations Act … ’

[42] When the notice of motion is considered, which is already dealt with earlier in
this judgment, the current interim relief sought is squarely based on the
grounds for final relief under part B of the application. In this respect, the
applicant contends his suspension is ‘unlawful and invalid’. He also contends
that the decisions by the first respondent to suspend and discipline him are
reviewable based on section 158(1)(h) of the L RA, which obviously
contemplates a legality review.

[43] The aforesaid being the case as pleaded, the first issue for consideration is
whether this Court has jurisdiction to entertain the applicant ’s application and
grant him the relief sought. In Du Plessis v Public Protector and Others22 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 … ’

[44] In Gcaba v Minister for Safety and Security and Others 23, 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 … ’.
And in Makhanya v University of Zululand 24, the Court also dealt with the
meaning of jurisdiction as follows: ‘…. Judicial power is the power both to
uphold and to dismiss a claim. It is sometimes overlooked that the dismissal of
a claim is as much an exercise of judicial power as is the upholding of a claim.

a claim is as much an exercise of judicial power as is the upholding of a claim.

22 (2020) 41 ILJ 919 (LC) at para 20. See also Makhanya v University of Zululand (2009) 30 ILJ 1539
(SCA) at para 23; SA Maritime Safety Authority v McKenzie (2010) 31 ILJ 529 (SCA) at para 8.
23 (2010) 31 ILJ 296 (CC) at para 74.
24 (2009) 30 ILJ 1539 (SCA) at para 23.

19

A court that has no power to consider a claim has no power to do either (other
than to dismiss the claim for want of jurisdiction).’

[45] As set out above, it is clear that the applicant has pleaded three sources that
he says conveys jurisdiction on this Court . I will start with his reliance on
section 157(1) of the LRA. The section reads:

‘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. …’
[46] In terms of section 157(1) , the jurisdiction of the Labour Court is specifically
circumscribed and determined by statute, being the LRA itself. But does this
include a general jurisdiction allowing this Court to intervene, in medias res on
an urgent basis, where it comes to any conduct of an employer, which
includes the conducting of discipline, suspension and the like, in the event that
it is pleaded that such conduct is unfair or unlawful. In this context, it is true
that as far back as 2011, the LAC in Booysen v Minister of Safety and Security
and others 25 propagated a general approach that the Labour Court would
have general jurisdiction to intervene to restrain any alleged illegalities,
irregularities or unfairness in incomplete workplace proceedings, provided that
exceptional circumstances exist that would justify such intervention. The Court
in that case had said:
26 ‘… To answer the question that was before the court a
quo, the Labour Court has jurisdiction to interdict any unfair conduct including
disciplinary action. However such an intervention should be exercised in
exceptional cases … ’.
[47] Following Booysen, the general approach in the Labour Court was to assume
jurisdiction to intervene in disciplinary proceedings that were not complete,
however the exercise of this jurisdiction was tempered by the requirement that

however the exercise of this jurisdiction was tempered by the requirement that
the applicant had to show the existence of exceptional circumstances justifying
such intervention. More often than not, because of the imperative that the
dispute resolution machinery of the LRA rather be applied, showing

25 (2011) 32 ILJ 112 (LAC).
26 Id at para 54.

20

exceptional circumstances was a difficult hurdle to clear. 27 But this approach
did not detract from the position that the Labour Court was considered to have
general jurisdiction to intervene.
[48] Things changed after the judgment of the Constitutional Court in Steenkamp
and Others v Edcon Ltd (National Union of Metalworkers of SA intervening) 28,
where the Court had the opportunity t o consider if the Labour Court had
jurisdiction to determine whet her a dismissal was unlawful, as opposed to
being unfair. After referring to the fact that the LRA created special rights and
obligations that do not exist at common law, which included the right of an
employee not to be unfairly dismissed, but then also created principles
applicable to such rights and special processes and fora for the enforcement
of those rights,
29 the Court, with specific reference to section 185 of the LRA,30
concluded that :31 ‘I conclude that invalid dismissals and a declaratory order
that a dismissal is invalid and of no force and effect fall outside the
contemplation of the LRA. Such an order cannot be granted in a case based
on the breach of an obligation under the LRA concerning a dismissal.’
[49] Following the judgment in Edcon, th ere was a change in approach in the
Labour Court where it came to urgent intervention in incomplete internal
disciplinary proceedings. The Labour Court accept ed that where the case of
the employee was based on allegations of unlawfulness or illegality, the
Labour Court, based on what was said in Edcon about unlawful dismissals, did
not have the jurisdiction to so intervene. Several authorities so illustrate. In
Democratic Municipal and Allied Workers Union of SA and Others v City of
Johannesburg
32 it was said: ‘… The effect of this judgment is that when an
applicant alleges that a dismissal is unlawful (as opposed to unfair), that
applicant has no remedy under the LRA and this court has no jurisdiction to

applicant has no remedy under the LRA and this court has no jurisdiction to
make any determination of unlawfulness. If a remedy is sought under the LRA,

27 See for example Mmatli and Others v Department of Infrastructure Development (Gauteng
Province)
(2015) 36 ILJ 464 (LC) at para 13; Mere v Tswaing Local Municipality and Another (2015) 36 ILJ 3094
(LC) at paras 17 – 18; Hlabangwane v MEC for Public Works, Roads and Transport, Mpumalanga
Provincial Government and Others (2012) 33 ILJ 1195 (LC) at paras 7 – 9.
28 (2016) 37 ILJ 564 (CC) at para 106.
29 Id at para 105.
30 Section 185 reads: ‘ Every employee has the right not to be — (a) unfairly dismissed; and (b)
subjected to unfair labour practice.’
31 Id at para 136. See also para 106 of the judgment.
32 (2020) 41 ILJ 912 (LC) at para 7.

21

the applicant must categorise the alleged unlawfulness as unfairness …’. And
in Neumann v Western Cape Education Department and Others33 the Court
held: ‘… Since the decision of the Constitutional Court … there is now serious
doubt whether a dismissal or other forms of employer conduct or action can be
challenged under the LRA on the basis of unlawfulness ’. Similar conclusions
were arrived at in National Education Health and Allied Workers Union and
others v University of South Africa and another 34 and Shezi v SA Police
Service and Others35.
[50] Nonetheless, the ratio in Booysen remained, as the Court in Edcon did not
specifically or pertinently deal with the jurisdiction of the Labour Court to
intervene in medias res in incomplete disciplinary proceedings. Clarification
then came in the form of the judgment of the LAC in Cibane and Another v
Premier of Province of Kwazulu-Natal36. In that judgment, the Court pertinently
revisited the Booysen approach, with due regard to what was decided in
Edcon. In Cibane, the employee parties sought declaratory orders to the effect
that there was an unreasonable delay in bringing the disciplinary charges
against them and that the employer had waived its rights to pursue disciplinary
proceedings, with the result that the disciplinary charges f ell to be quashed. 37
In addition, these employees has applied to review and set aside the internal
chairperson’s ruling on the same issues. In deciding the aforesaid case raised,
and after specifically referring the dicta in Edcon quoted above, the Court in
Cibane first said:38
‘It is clear from this passage that outside of the scope of any statutory
provision that specifically confers jurisdiction on the Court, the Labour Court
has no jurisdiction, in any general sense, to make any determination of the
unlawfulness of employer conduct.’
[51] The aforesaid conclusion in Cibane is in my view clearly in line with how the
jurisprudence with regard to jurisdiction in the case of contentions of

jurisprudence with regard to jurisdiction in the case of contentions of
unlawfulness and illegality had been developing in the Labour Court since

33 2021) 42 ILJ 561 (LC) at para 13.
34 (2022) 43 ILJ 2351 (LC) at para 15.
35 (2021) 42 ILJ 184 (LC) at para 12.
36 (2025) 46 ILJ 2587 (LAC).
37 See para 28 of the judgment.
38 Id at para 24.

22

Edcon. But that is not where the Court in Cibane stopped. The Court
specifically went further and held:39
‘In the absence of any statutory provision conferring jurisdiction on the Labour
Court both in respect of employer conduct alleged to be unlawful and in
employment-related matters generally, there can thus be no general rule, as
the judgment in Booysen might be construed, to the effect that the Labour
Court has jurisdiction to intervene in medias res to restrain any alleged
illegalities, irregularities or unfairness in incomplete disciplinary proceedings .’
(emphasis added)
The Court then concluded:40
‘In summary: to the extent that Booysen has been interpreted to establish a
general rule, qualified only by exceptionality, that the Labour Court has
jurisdiction to intervene in uncompleted disciplinary proceedings, this is not an
interpretation that can be sustained by section 157(1) of the LRA.
’
[52] In my view, Cibane has now clarifies the issue of jurisdiction of the Labour
Court under section 157(1) where it comes to intervening in medias res in
internal disciplinary proceedings in an employer that are not completed. The
Labour Court does not have any general jurisdiction to intervene and / or
adjudicate any alleged unfairness, unlawfulness, illegalities or irregularities
pertaining to any conduct or failure of any party to the employment relationship
where it comes to incomplete internal disciplinary proceedings.
41 What the
applicant in any litigation proceedings, where intervention from the Labour
Court is sought, must do, is to substantiate the jurisdiction of the Labour Court
by specifically matching the cause of action or issue in dispute, to a specific
provision as contained either in the LRA itself or in any other related
employment law, such as for example the Employment Equity Act (EEA)
42 or

39 Id at para 27.
40 Id at para 32.
41 See also Baloyi v Public Protector and Others (2021) 42 ILJ 961 (CC) at para 24, where it was held:

‘… Crucially, s 157(1) does not afford the Labour Court general jurisdiction in employment matters … ’
29 Section 157(1) of the LRA does not refer to specific sections of that Act as sources of the Labour
Court’s exclusive jurisdiction. It only provides that they are to be found elsewhere in the Act. In some
instances, their location is clear: for example, ss 68(1), 77(2), 145 and 191. In others, it is left to the
courts to determine whether a matter is one that arises in terms of the LRA and is, in terms of that Act,
or another law, to be determined solely by the Labour Court …’.
42 Act 55 of 1998 (as amended).

23

Basic Conditions of Employment Act (BCEA) 43. The applicant must also
specifically indicate on what provision in any of these items of legislation the
applicant relies. 44 If that cannot be done, or is not done, then there is no
jurisdiction.
[53] The above is clearly destructive of the applicant’s reliance on section 157(1)
as source of jurisdiction . In casu , the applicant has specifically relied on
employer conduct that is alleged to be unlawful in seeking intervention from
this Court in the disciplinary proceedings against him, that are, despite having
commenced, is still incomplete. The applicant has made no reference to any
provision under the LRA that may find application here. It does not matter what
the basis of the alleged unlawfulness may be. This Court simply has no
jurisdiction to intervene, in medias res , on the basis of unlawfulness. The
applicant therefore cannot rely on section 157(1) as basis to confer jurisdiction
on this Court to grant him the relief sought.
[54] It is true that the applicant has pleaded reliance on section 23(1) of the
Constitution. But this cannot assist him, by virtue of the application of the
principle of subsidiarity, which makes direct reliance on the Constitution in the
case of disputes under the LRA impermissible. The concept of the prohibition
of unfair conduct in the workplace is regulated by the LRA, pursuant to the
Constitutional imperative in section 23, and the LRA gives actual effect to this
right.
45 It follows that the applicant cannot rely on the Constitution directly to
assert his right to procedural fairness. He is bound to find his salvation in the
LRA. This is made clear by way of the following dictum in My Vote Counts
NPC v Speaker of the National Assembly and Others46:


43 Act 75 of 1997 (as amended).
44 In SA Medical Association Trade Union on Behalf of Rikhotso v Member of the Executive Council,
Department of Health, Limpopo Province and Others (2023) 44 ILJ 1779 (LC) at para 6, the Court

said: ‘… an applicant must necessarily identify the statutory provision that confers jurisdiction on the
court … ’. See also Shezi v SA Police Service and Others (2021) 42 ILJ 184 (LC) at para 10.
45 In SA Airways (SOC) Ltd (In Business Rescue) and Others v National Union of Metalworkers of SA
on Behalf of Members and Others (2020) 41 ILJ 2113 (LAC) at para 38 it was said: ‘ … The
constitutional right to fair labour practices finds legislative expression in the LRA. Its scope covers the
interests of both employers and employees … ’. See also Public Servants Association on behalf of
Ubogu v Head of the Department of Health, Gauteng and Others (2018) 39 ILJ 337 (CC) at para 42;
Safcor Freight (Pty) Ltd t/a Safcor Panalpina v SA Freight and Dock Workers Union (2013) 34 ILJ 335
(LAC) at para 18.
46 2016 (1) SA 132 (CC) at para 160. See also South African Human Rights Commission obo South
African Jewish Board of Deputies v Masuku and Another 2022 (4) SA 1 (CC) at para 102; SA National
Defence Union v Minister of Defence and Others (2007) 28 ILJ 1909 (CC) at paras 50 – 51.

24

'First, allowing a litigant to rely directly on a fundamental right contained in the
Constitution, rather than on legislation enacted in terms of the Constitution to
give effect to that right, would defeat the purpose of the Constitution in
requiring the right to be given effect by means of national legislation. Second,
comity between the arms of government enjoins courts to respect the efforts of
other arms of government in fulfilling constitutional rights. Third, allowing
reliance directly on constitutional rights, in defiance of their statutory
embodiment, would encourage the development of two parallel systems of law
… ’
[55] So, once the applicant’s right to fair hearing is a right found in and regulated
by the LRA, which it clearly is, then the applicant faces another
insurmountable obstacle. This obstacle is created by virtue of the reality that
the LRA does not bestow rights in a vacuum. Where the LRA bestows a right,
it equally prescribes a specific process that must be followed to give effect to
such right, or to enforce that right.
47 In this context, a direct approach to this
Court where the case relates to an unfair dismissal for misconduct, or
contemplated unfair dismissal for misconduct, is simply not competent. As
pertinently said in Edcon supra:48
‘The scheme of the LRA is that, if it creates a right, it also creates processes
or procedures for the enforcement of that right, a dispute-resolution procedure
for disputes about the infringement of that right, specifies the fora in which that
right must be enforced and specifies the remedies available for a breach of
that right.’
[56] This brings me to section 158(1)(a) of the LRA. The applicant has pleaded that
this Court has jurisdiction to afford him the relief sought by virtue of section
158(1)(a)(ii) and (iii). But the applicant’s reliance on these provisions to confer
jurisdiction on this Court is misplaced. It has been recognised that there are in

jurisdiction on this Court is misplaced. It has been recognised that there are in

47 As held in Chirwa v Transnet Ltd and Others (2008) 29 ILJ 73 (CC) at para 41: ‘… 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 . …’. Also, in Gcaba (supra)
at para 56 it was similarly said: ‘… 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 …’.
48 Id at para 130. See also Chirwa (supra) at para 68; Gcaba (supra) at para 69; Hendricks v
Overstrand Municipality and Another (2015) 36 ILJ 163 (LAC) at paras 12 and 27; SA Social Security
Agency v Hartley and Others (2023) 44 ILJ 1334 (LC) at para 3; Mohlomi v Ventersdorp/Tlokwe
Municipality and Another (2018) 39 ILJ 1096 (LC) at para 40; O'Connor v Department of Education,
Eastern Cape and Others (2024) 45 ILJ 1041 (LC) at para 44.

25

essence two categories of powers envisaged by section 158(1). The first
category is those powers that can only be exercised if it is first found that the
Labour Court already has jurisdiction on another basis. The second category
is what can be described as jurisdiction conferring powers, meaning that the
power itself establishes jurisdiction. This was made clear in South African
Municipal Workers Union and Others v Mokgatla and Others
49, as follows: ‘…
While s 157(1) and (2) relate, broadly, to the jurisdiction of the Labour Court, s
158(1) both lists specific remedial powers and provides substantive
jurisdictional bases of that court. … ’ The same was said in Du Plessis supra,
namely:50 ‘… This then only leaves s 158. Even though this provision on face
value appears to deal with powers that are conveyed to the Labour Court only
once jurisdiction is first established to exist, this section must be read in
conjunction with s 157 as a source of jurisdiction as well … ’.
[57] The nature of the powers of the Labour Court under section 158(1) was
pertinently dealt with in Merafong City Local Municipality v SA Municipal
Workers Union and Another
51. In that judgment, the Court accepted that
section 157 is the primary provision in the LRA which deals with the Labour
Court's jurisdiction,
52 however the Court added that section 157(1): ‘… directs
the reader of that section to the sources of the Labour Court's exclusive
jurisdiction, albeit in very vague and general terms … ’. Because of this, the
Court expressed the view that:53 ‘… As a result, the interpreter is saddled with
the difficult task of having, for example, to distinguish purely jurisdictional
provisions from general empowerment provisions. This difficulty is
exacerbated by sections which purport to contain mere empowerment
provisions, whereas they, on proper construction, also actually contain
provisions which are sources of the Labour Court's jurisdiction’. That all being
said, the Court then concluded:
54

said, the Court then concluded:
54
‘Section 158 is such a section. Its introductory wording specifically states that
it deals with the powers of the Labour Court. Because the introductory words
of the previous section, that is s 157, state that it deals with the jurisdiction of

49 2016 (5) SA 89 (SCA) at para 11.
50 Id at para 24.
51 (2016) 37 ILJ 1857 (LAC).
52 Id at para 28.
53 Id at para 30.
54 Id at para 31.

26

the Labour Court, the immediate expectation is that s 158 is not a source of
jurisdiction, but merely contains provisions defining the powers of the Labour
Court in respect of matters, which, in terms of some other provision in that Act,
fall under the jurisdiction of the Labour Court. However, a close reading of the
entire s 158 dispels that initial notion. It does deal with powers (post
jurisdiction), but also with powers which cannot but be construed and
understood as sources of jurisdiction.’
[58] The Court in Merafong supra provided examples of provisions found in section
158(1) that conferred jurisdiction, as opposed to those that could only be
exercised if jurisdiction was first established elsewhere under the LRA. In this
regard, the Court said: 55 ‘Section 158(1)(a) is clearly an example of the
powers the Labour Court may exercise in respect of a matter falling within its
jurisdiction, and it does not purport to grant the Labour Court jurisdiction, in the
sense of the power to hear and determine the matter in the first place. On the
other hand, s 158(1)(i) clearly bestows on the Labour Court jurisdiction in the
latter sense’. The Court also referred to section 158(1)(h) as being a source of
conferring jurisdiction and then also empowering the Labour Court to hear and
determine applications to review any decisions taken or acts performed by the
State in its capacity as employer.
56
[59] It follows that each individual provision in section 158(1) must be carefully
scrutinised in order to ascertain whether the provision confers jurisdiction on
the Labour Court in addition to providing it with powers to exercise, or is only a
provision providing the Labour Court with powers to exercise once it already
has jurisdiction established by other means in the first place. In this regard, the
Court in Merafong supra has clearly said that the powers in terms of section
158(1)(a) do not serve to confer jurisdiction, and can only be exercised if

158(1)(a) do not serve to confer jurisdiction, and can only be exercised if
jurisdiction exists in the first place. It must follow that the reliance by the
applicant on section 158(1)(a)(ii) and (iii) as a source of conferring jurisdiction
on this Court is ill- founded. These are not jurisdiction conferring provision s.
These are actually provisions providing powers to the Labour Court, only once
jurisdiction is conferred from another source. Therefore, it cannot be said that
the Labour Court has jurisdiction on this basis.

55 Id at para 33.
56 Id at para 34.

27

[60] This leaves only section 158(1)(h) , with reads: ‘ The Labour Court may …
review any decision taken or any act performed by the State in its capacity as
employer, on such grounds as are permissible in law ’. It is correct, as said in
Merafong supra, that this is indeed a jurisdiction conveying provision. 57
Accordingly, this Court would have jurisdiction to entertain the applicant’s
case, based on section 158(1)(h), 58 but only within the confines of what is
contemplated specifically by such section. Section 158(1)(h) can equally not
serve as some source of general jurisdiction to challenge unlawful or unfair
conduct. It is specifically a review jurisdiction, which must be exercised within
the confines of what is required and permitted by the LRA in dealing with such
kinds of challenges. As said in Cibane supra:
59
‘Counsel relied ultimately on s 158(1) (h) of the LRA. That section empowers
the Labour Court to review any decision taken or act performed by the state in
its capacity as employer, on such grounds as are permissible in law. The
founding affidavit does not expressly disclose the grounds for review on which
the appellants rely, save for broad averments that the second respondent’s
ruling is bad in law and a finding to which no reasonable chairperson could
come on the available material. Section 158(1) (h) requires an applicant to
articulate a ground for review that is ‘permissible in law’. This requires the
ground for review on which the applicant relies to be specifically identified and
articulated. …
’
And in Public Servants Association of SA on behalf of De Bruyn v Minister of
Safety and Security and Another60 it was held:
‘… it does not follow that because the remedy of judicial review may still exist
for public servants that the Labour Court will entertain an application to review
“any act performed by the State in its capacity as employer” as a matter of
course. Recourse to review proceedings, in terms of s 158(1) (h), takes place

course. Recourse to review proceedings, in terms of s 158(1) (h), takes place
in the context of the law relating to judicial review as well as the other
elements of the system of dispute resolution which the LRA has put in place
and also other applicable statutes.’

57 See also Booysen v Beaufort West Municipality and Another (2026) 47 ILJ 129 (LAC) at para 22.
58 See Vanguard of Organised Labour (Voola) v Mahlangu and Others [2025] JOL 69950 (LC) at para
22.
59 Id at para 30.
60 (2012) 33 ILJ 1822 (LAC) at para 28.

28

[61] But because section 158(1)(h) is indeed a jurisdiction conveying provision, the
question whether it is competent for the applicant to utilize and rely on this
provision in casu is not an issue of jurisdiction . It is an issue relating to the
merits of the case, namely of it is a good or a bad case, and I will therefore
deal with that case below, in that context.
[62] In sum, and where it comes to the applicant’s reliance on section 157(1) , and
section 158(1)(a)(ii) and (iii) , as general sources of jurisdiction of this Court to
intervene in the incomplete disciplinary proceedings against him at the first
respondent, it must fail for want of jurisdiction . It does not matter if it is based
on unlawfulness or unfairness. The applicant comes to this Court under the
LRA. And when a litigant comes to this Court under the LRA, that litigant must
be mindful of what the LRA allows , which does not include direct approaches
to this Court to challenge what is in essence contemplated unfair dismissal
disputes. The statutory dispute res olution mechanisms under the L RA are
purpose built to resolve this , which do not include this Court on a direct
approach.
Analysis
[63] In part B of the notice of motion, there are several instances of direct reliance
by the applicant on section 158(1)(h). In this respect, the applicant seeks to
review and set aside the decisions taken by the first respondent on 27
February 2026 to suspend him, and then also the decision taken to discipline
him. This clearly contemplates a review application which is exactly what is
envisaged by section 158(1)(h). However , and as said in Mohlomi v
Ventersdorp/Tlokwe Municipality and Another61:
‘The enquiry whether or not to entertain such a review application however
does not stop just because it may be accepted that the Labour Court in
general terms has jurisdiction to do so. Simply put, the fact that the Labour
Court has jurisdiction/power does not mean that the court should exercise this

Court has jurisdiction/power does not mean that the court should exercise this
power. In other words, and even though the court may have jurisdiction to
consider such a review under s 158(1) (h), it does not mean that it is
appropriate for it to exercise such power, especially where there are other

61 (2018) 39 ILJ 1096 (LC) at para 34. See also O’Connor (supra) at para 42.

29

specifically prescribed alternative means by way of which the issue can be
resolved.’
[64] The applicant’s reliance on section 158(1)(h) as basis for the relief sought by
him is unsustainable on a number of grounds. First and foremost, and actually
fatal to his case, is the fact that nowhere in his f ounding affidavit has the
applicant articulated any review grounds. There can be no proposer review
without articulated review grounds, as made clear in Cibane supra. This
should really be the end of it for the applicant.
[65] Nonetheless, in O'Connor v Department of Education, Eastern Cape and
Others62 the Court held that where the Court is faced with a review application
under section 158(1)(h) to challenge any decision of the state in its capacity as
employer, which would obviously be the decisions of the first respondent in
casu, it is essential for the Court to consider the true nature of the decision, or,
in other words, the true nature of the dispute. 63 In Magoda v Director-General
of Rural Development and Land Reform and Another64 the Court had the
following to say: ‘… section 158(1)(h) establishes a jurisdictional footprint for
review, with the permissible grounds of review being dependent upon the
nature of the impugned decision …’. The enquiry to determine the nature of
the dispute must thus always be conducted by this Court, irrespective of how
the review applicant may choose to label the dispute. 65 Once this enquiry
shows that the issue in dispute is actually one that contemplates a violation of
the rights of the applicant bestowed by the LRA, then the dispute must be
resolved by way of the proper prescribed processes under the LRA , and this
Court should decline to entertain the same under section 158(1)(h). The Court
in Leshabane v Minister of Human Settlements and Others
66 found as follows:

62 (2024) 45 ILJ 1041 (LC) at para 45.
63 In Zungu v Premier, Province of Kwazulu- Natal and Another (2017) 38 ILJ 1644 (LAC) at para 18,

the Court said: ‘… Accordingly, the first exercise in any proceedings is to read, as in this case, the
allegations in the affidavits, and make the determination. It is not, primarily, the form of relief sought,
but rather the necessary averments to demonstrate the ‘cause of action’ that determines the
‘character’ of the dispute, although the form of the relief, if it is consonant with the cause of action, will
point in the same direction’. See also Mohlomi ( supra) at para 42; Ngubane v Safety and Security
Sectoral Bargaining Council and Others (2022) 43 ILJ 2543 (LC) at para 24.
64 (2017) 38 ILJ 2795 (LC) at para 5.
65 Compare National Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and Another
(2003) 24 ILJ 305 (CC) at para.52; Chirwa ( supra) at para 63; Gcaba ( supra) at para 66; Farre v
Minister of Defence and Others (2017) 38 ILJ 174 (LC) at para 17.
66 (2024) 45 ILJ 833 (LC) at para 46.

30

‘… insofar as this court may be empowered to consider a legality challenge by
an employee of the state such as the applicant in casu, such entitlement is
always subject to such an employee being required, if not obliged, to instead
utilise the prescribed dispute-resolution processes under the LRA, like any
other employee.’
[66] Bearing in mind there are no grounds of review put forw ard by the applicant,
not nonetheless applying a generous approach, it seems that the applicant’s
challenge in this case , as applying to his reliance on section 158(1)(h), is
squarely founded on his right to being fairly dealt with, and in particular his
right to procedural fairness, as prescribed by the L RA. Once that is true, it
must always be remembered that where the LRA affords an employee a right,
it also prescribes a process that must be applied in giving effect to such a
right. This was pertinently said in Edcon supra.
[67] It follows that it is not competent for the applicant to challenge the decisions of
the first respondent to suspend him or to discipline him on review to this Court,
in terms of section 158(1)(h), should the applicant wish to rely on his right to
procedural fairness. Such a dispute must be pursued in terms of the ordinary
dispute resolution processes under the LRA, by way of a referral to the
bargaining council should the applicant be dismissed, and in such
proceedings, the applicant would be able to make out a case that his right to
procedural fairness was violated and he could then obtain relief. The following
dictum in Zungu v Premier of the Province of KwaZulu -Natal and Others 67 is
apposite, where the Court held as follows:
‘The Labour Appeal Court was correct in upholding the Labour Court’s
decision that it did not have jurisdiction in the matter. This is because the claim
by the applicant relating to the Premier’s decision not to appoint her, and the
contention that this was unlawful, falls squarely within the definition of

contention that this was unlawful, falls squarely within the definition of
dismissal in s 186(1) (b) of the LRA. The dispute should have been referred to
conciliation and ultimately to arbitration under s 191 of the LRA. Therefore, the
applicant cannot bypass the dispute-resolution process envisioned in the
LRA. The applicant was obliged to follow the dispute-resolution process in
chapter VIII of the LRA but did not do so.’

67 (2018) 39 ILJ 523 (CC) at para 20.

31

And in Shezi supra the Court decided that:68
‘Where the employer conduct complained of is alleged to be unfair, the court is
precluded from granting final relief since it has no jurisdiction in respect of
matters that concern the procedural fairness of disciplinary proceedings. At
most, the court has jurisdiction to grant interim relief. Even then, the court has
held that it is not desirable that disputes about the exercise of workplace
discipline be dealt with on a piecemeal basis, particularly by way of the review
of every decision taken by the employer in the disciplinary process.
’
[68] Therefore, and based on the true nature of the applicant’s case, this Court
would not have jurisdiction to determine his review application under section
158(1)(h), as it is a case that must be pursued in terms of the ordinary dispute
resolution processes under the LRA. I consider the following dictum in Magoda
supra to be apposite in casu:69
‘The principle emerging from Hendricks (and related case law) is that s
158(1)(h) reviews (including legality review) are only permissible where there
is no other remedy available under the LRA. The principle is not defeated
because an applicant relies on legality (ie lawfulness) in the review, while the
LRA provides for a remedy in fairness, because it is the existence of a remedy
under the LRA that renders the review impermissible. In any event, in
substance the applicant’s complaint is that she was treated procedurally
unfairly as a consequence of the procedural rulings. The founding affidavit is
replete with references to the applicant’s right to a ‘fair’ trial or hearing having
been breached. And in argument, Mr Ogunronbi placed reliance on item 4 of
the Code of Good Practice: Dismissal (schedule 8 to the LRA), which deals
with the procedural fairness of dismissals for misconduct. In effect, the
applicant has labelled a complaint about procedural fairness as one of
unlawfulness in order to mount a legality review, simply because unfairness

unlawfulness in order to mount a legality review, simply because unfairness
itself is not a ground of review. The LRA provides a remedy to address this
very complaint; a review under s 158(1)(h) is thus impermissible …
’
[69] But even if I am incorrect in determining the nature of the applicant’s dispute,
and it is actually a review application to challenge the lawfulness of the actions
of the first respondent in suspending him and / or convening the disciplinary
proceedings against him , the applicant nonetheless faces another

68 Id at para 19.
69 Id at para 11.

32

insurmountable hurdle. This hurdle is evident from the following dictum in
Cibane supra:70
‘In any event, the appellants sought to review the second respondent’s ruling
in medias res. There is a general rule against a review court entertaining a
review application in these circumstances. Specifically, in a labour context, s
158(1B) expresses the general rule applicable in the Labour Court in respect
of the review of rulings issued during the course of any conciliation or
arbitration proceedings conducted under the LRA. The Labour Court may not
review any decision or ruling until a final determination has been made, except
where the court is of the opinion that it would be just and equitable to do so
before the stage of final determination. The Labour Court ought to be even
more circumspect in upholding appeals to exceptionality in the case of a
review of rulings made in the course of internal disciplinary proceedings. To do
otherwise would frustrate the LRA’s purpose of expeditious dispute resolution.
’
[70] The applicant has simply not made out a proper case for intervention in
medias res. What makes it worse is that there does not exist a separate
review application in the ordinary course making out an actual and proper
case for review. The review sought by the applicant is the very basis for the
relief sought by the applicant in this ca se, almost as component thereto,
adopting an approach inconsistent with a standalone review to be decided in
due course. That makes the requirement of ‘ just and equitable’ even more
difficult to meet. I am not aware of any review application that was finally
decided on the basis of urgency , and I simply do not believe this is a
competent approach, especially considering what is involved in properly
deciding a review application. As a result, the review application, brought on
an urgent basis seeking final relief, is incompetent, and the applicant must be
non-suited on this basis, without even considering the merits of the review

non-suited on this basis, without even considering the merits of the review
application. As made clear in Jiba supra:
71
‘Urgent applications to review and set aside preliminary rulings made during
the course of a disciplinary enquiry or to challenge the validity of the institution
of the proceedings ought to be discouraged. These are matters best dealt with
in arbitration proceedings consequent on any allegation of unfair dismissal,
and if necessary, by this court in review proceedings under s 145.’

70 Id at para 31.
71 Id at para 17.

33

[71] And finally in this regard, I am unconvinced that the applicant has shown that it
would be just and equitable to even consider his review application in medias
res. The former LAC in Zondi and O thers v President, Industrial Court and
Others72 decided as follows:
‘There is no universal or absolute test governing the question when a court will
interfere in uncompleted proceedings, but one thing is clear from the cases
and that is that a court will only interfere in medias res in exceptional
circumstances, or when there is very good reason to do so. In ordinary
circumstances the time to take any proceedings on appeal or review is at the
termination thereof. The reasons for this attitude are equally clear. To permit
interference in unterminated proceedings delays the continuation and
completion of such proceedings. If such termination were to be readily
permitted the proceedings might be interrupted at various times, and to deal
with reviews or appeals piecemeal is clearly not practicable. In any event, the
irregularity, even if it is allowed to stand, will not necessarily affect the result
which might otherwise have followed. The tribunal concerned might
for example in any event come to a conclusion favourable to the party
otherwise affected by the irregularity. Even if the irregularity does in the end
lead to a conclusion adverse to the person affected thereby, the time to put it
right, as I have already said, is at the termination of proceedings.
’
[72] The aforesaid dictum in Zondi supra has bee n consistently applied by this
Court.73 And further, in the recent judgment of the LAC in South African Cabin
Crew Association obo Members v South African Airways (Soc) Ltd and
Others74, albeit in the context of section 158(1B) 75, the Court had the following
to say:
‘… t he court in South African Broadcasting Corporation (SOC) Limited v
Commission for Conciliation, Mediation and Arbitration and Others noted that

Commission for Conciliation, Mediation and Arbitration and Others noted that
“[a] case must be truly exceptional to warrant a departure from the norm that a
review is appropriate only once the dispute has been finally determined in a
completed arbitration hearing. This is consistent with the statutory purpose of
expeditious dispute resolution which the LRA seeks to achieve”.

72 (1991) 12 ILJ 1295 (LAC) at 1300D-G.
73 See for example Magoda (supra) at paras 12 – 13; Ngobeni v Passenger Rail Agency of SA
Corporate Real Estate Solutions and O thers (2016) 37 ILJ 1704 (LC) at para 13; Ramthlakgwe v
Modimolle-Mookgopong Local Municipality and Another (2023) 44 ILJ 2297 (LC) at paras 18 – 19.
74 [2025] 10 BLLR 1048 (LAC) at paras 26 – 27.
75 Section 158(1B) in effect prohibits piecemeal reviews before the conclusion of the matter, unless it
can be shown that it would be ‘just and equitable’ to permit it.

34

Exceptional circumstances justifying judicial intervention in incomplete
proceedings have been found to exist where such intervention was necessary
to prevent illegality, to prevent grave injustice, or where justice could not
otherwise be achieved. … ’
[73] On the facts, the applicant has dismally faile d to make out any of the kind of
exceptional circumstances envisaged by the judgments discussed above. The
applicant effectively adopts the approach that because he is subjected to the
kinds of unlawfulness and unfairness he anlages the first respondent to have
perpetrated against him, that per se constitutes exceptional circumstances
justifying intervention. But this simply cannot be correct. As said in Zondi
supra, this kind of irregularity, even if it exists, does not mean that it would
lead to an unfavourable outcome for the applicant. Added to that, the applicant
has not even made out a case that the conducting of a fair disciplinary hearing
against him would somehow be compromised. The issue of the applicant’s
continued medical incapacity can be raised in the hearing itself, considering he
is legally represented, as a basis for seeking postponements if needed. It
would then be up to the fifth respondent as chairperson to decide this. And if
the chairperson decides not to postpone the proceedings, this can be raised
as a ground of unfairness in any proper proceedings under the LRA to follow.
There is simply no reason for urgent intervention.
[74] The issue relating to the suspension of the applicant is even worse. The
applicant has already been suspended for some time, with no change in
circumstance. So, it just cannot be said that without immediate intervention,
undue prejudice will result . There is simply no basis to even suggest that
challenging that suspension should not b e decided in the ordinary course
under the dipsute resolution processes prescribed by the LRA. I will later in
this judgment specifically deal with t he issue of the applicant’s suspension.

this judgment specifically deal with t he issue of the applicant’s suspension.
Suffice it say, and in this regard, especially considering the applicant is still
paid during his suspension, no exceptional circumstances for intervention in
medias res exists.
[75] In summary, the applicant’s pleaded reliance on section 158(1)(h) cannot save
his case. This is because insofar as he relies on unfairness, it not competent
for him to pursue a case directly to this Court on review, and he is compelled
to follow the ordinary dispute resolution processes as contemplated by the

35

LRA. Furthermore, and even if unlawfulness is the basis for review, the
applicant has failed to make out a case justifying urgent intervention in this
matter, in medias res. Insofar as the applicant relies on section 158(1)(h), his
application must be dismissed.
The suspension
[76] The final issue to be considered is the applicant’s suspension case. I must say
that I have difficulty in understanding why this case was now referred to this
Court on an urgent basis, for what is in reality a final determination. As already
touched on earlier, I can only assume this was done, at this most belated
stage, because the applicant intended it to serve as one of the pillars for
scuppering the disciplinary proceedings against him. Or in simple terms, the
applicant is saying that because his suspension is unlawful, and the
disciplinary proceedings flow from that suspension, the disciplinary
proceedings are also unlawful.
[77] I intend to dispose of the contention that there is some kind of inextricable
nexus between the suspension and the disciplinary hearing which would result
in an unlawful suspension rendering the disciplinary proceedings also
unlawful, without further ado. This entire notion is ill- conceived and certainly
has no substance. Under the Regulations , the disciplinary proceedings are
entirely distinct and separate f rom the process relating to precautionary
suspension. Suspensions are regulated in regulation 6, whi lst disciplinary
proceedings are regulated in regulation 10 (as read with regulation 8). The
applicable time limits in these two processes are also di fferently regulated.
Under regulation 6(6)(a), a precautionary suspension lapses if the disciplinary
hearing is not convened with three months of the suspension. Under
regulation 10(1) , the disciplinary must commence within three months of
the council resolution instituting a disciplinary hearing. The respective time
frames are thus clearly distinct and separate and do not run simultaneously.

frames are thus clearly distinct and separate and do not run simultaneously.
As pertinently said in Monyepao v Metropolitan Municipality and Others
(Reasons)
76:
‘The applicant’s interpretation of regulation 10(1) that the hearing must
commence within three months of his suspension is incorrect. Nowhere does

76 [2026] ZALCJHB 75 (10 February 2026) at para 40.

36

regulation 10(1) provide this. In addition, regulation 10(1) does not provide, as
the applicant incorrectly alleges, that the hearing will lapse if it does not
commence within the prescribed three-month time frame.’
[78] Further, the time frame under regulation 6(6)(a) is only directed at the
competence of the continued suspension, and not the disciplinary hearing.
The consequence of a suspension that exceeds the time limit is that the
suspension is uplifted. There is simply not any kind of purported unlawfulness
that carries over to the disciplinary hearing. It should also be considered that a
suspension is not necessary for the institution of disciplinary hearing. A
suspension is a holding operation and not tantamount to the conducting of
discipline.77 Disciplinary proceedings are, obviously and to the contrary ,
disciplinary in nature.
[79] Focussing now on the applicant’s complaints about his suspension per se,
these are straight forward. He says that the provisions of regulation 6 of the
Regulations were not complied with, and that in terms of regulation 6(6)(a), his
suspension has lapsed. The applicant specifically relies on an alleged non-
compliance with regulations 6(2), (3), (4) and (5), which all relate to the
applicant’s right to make representations prior to be being suspended, and
being informed in writing of the reasons for his suspension prior to being
suspended. All this , according to the applicant, means his continued
suspension is unlawful.
[80] I accept that suspension of an employee under r egulation 6 of the
Regulations, without the disciplinary proceedings having commenced within
three months of the suspension as contemplated by regulation 6( 6)(a), means
that such continued suspension terminates automatically , and the employee
must be permitted to resume his or her normal duties. 78 It could perhaps even
be said that the continued suspension is unlawful, which is what the applicant
pertinently contends.

pertinently contends.
[81] But once the applicant relies on an unlawful suspension, he walks squarely
into the same obstacles he face s where it comes to his challenge to the
disciplinary proceedings based on unlawfulness. The simple point is that this

77 See Long v SA Breweries (Pty) Ltd and Others (2019) 40 ILJ 965 (CC) at para 24.
78 See Tshabalala v Moqhaka Local Municipality and Another (2025) 46 ILJ 590 (LAC) at paras 7 – 10
and 14.

37

Court does not have jurisdiction to decide on the unlawfulness of the
applicant’s suspension. In Phahlane v SA Police Service and Others79, the
Court, with specific reference to the dictum in Edcon quoted above, had the
following to say:
‘The effect of this judgment is that when an applicant alleges that a dismissal
is unlawful (as opposed to unfair), there is no remedy under the LRA and this
court has no jurisdiction to make any determination of unlawfulness. If a
remedy is sought under the LRA, the applicant must categorise the alleged
unlawfulness as unfairness. By extension, the same principle applies to other
forms of employer conduct which are alleged to be unlawful.’
[82] With reference to suspension in particular, the Court in Democratic Municipal
and Allied Workers Union of SA and Others v City of Johannesburg80 decided:
‘The effect of this judgment (Steenkamp & others v Edcon Ltd) is that when an
applicant alleges that a dismissal is unlawful (as opposed to unfair), that
applicant has no remedy under the LRA and this court has no jurisdiction to
make any determination of unlawfulness. If a remedy is sought under the LRA,
the applicant must categorise the alleged unlawfulness as unfairness.
By extension, the same principle applies to any precautionary suspension
from employment. Section 185 of the LRA is concerned with unfair dismissals
and unfair labour practices. Section 186(2) defines an unfair labour practice. In
para (b), the Act provides that the unfair suspension of an employee or any
other unfair disciplinary action short of dismissal, constitutes an unfair labour
practice. It follows that what was good for a termination of employment
in Edcon is good for an unfair labour practice in the present instance. In other
words, the lawfulness of any suspension is not a matter regulated by the LRA,
and any remedy under that Act must be sought on the basis of fairness .’
(emphasis added)
And in Strydom v Arcelormittal SA81 the Court pertinently held:

(emphasis added)
And in Strydom v Arcelormittal SA81 the Court pertinently held:
‘… This court has no jurisdiction to decide a claim relating to unfairness or
unlawfulness of suspension in terms of the provisions of the LRA.’

79 (2021) 42 ILJ 569 (LC) at para 5.
80 (2020) 41 ILJ 912 (LC) at paras 7 – 8.
81 (2024) 45 ILJ 931 (LC) at para 48.

38

[83] The aforesaid does not mean that the applicant can never challenge the fact
that his suspension automatically ended when the three months period under
the Regulations lapsed, however he still remains suspended. Of course he
can. Even if the applicant alleges this is unlawful , it nonetheless concerns an
issue relating to the application of the Regulations , and in this context, it is
competent for the bargaining council to consider it as part of the unfair labour
practice jurisdiction under section 186(2) of the LRA . An arbitrator in such
forum could direct that the suspension be uplifted for this reason. In point in
this respect is the judgment in Department of Public Works and Another v
Vukela and Others82. That case concerned a very similar provision as found in
the SMS Handbook relating to suspension, as that found in r egulation 6. In
that application, the employer sought to review and set aside an arbitration
award issued by a bargaining council arbitrator finding that the employer
committed an unfair labour practice relating to suspension, and ordered that
the employee’s suspension be lifted and that he reports for duty. The basis for
the award can be found in the following reasoning of the arbitrator : ‘… I find
that the applicant has discharged the onus to prove that the respondents
committed an unfair labour practice in their conduct of extending his
suspension beyond the 60- day period prescribed in clause 2.7(2)(c) of the
SMS Handbook. There is absolutely no fair reason for the continuation of the
applicant’s suspension. If anything, the continuation of the suspension is both
arbitrary and egregious. It is appropriate, therefore, that the respondents lift
the suspension of the applicant ’.
83 In considering this reasoning by the
arbitrator, the Court held as follows, in dismissing review application:84
‘The interpretation adopted by the court is thus that any precautionary
suspension by an employer is limited to a period of 60 days, that a disciplinary

suspension by an employer is limited to a period of 60 days, that a disciplinary
enquiry must be convened within that period, and that any extension of the 60-
day period is a matter for decision by the chairperson of the disciplinary
enquiry. In the present instance, it is not in dispute that the 60-day period from
the date of the first respondent’s suspension lapsed on 26 September 2020,
and that Adv Berger SC did not extend the suspension beyond the 60-day
period. In the absence of any extension by Adv Berger SC of the first
respondent’s suspension beyond 26 September 2020, that suspension

82 (2022) 43 ILJ 2319 (LC).
83 See para 27 of the judgment.
84 Id at para 44.

39

automatically lapsed. It follows that the first respondent’s suspension beyond
26 September 2020 is a contravention of the SMS Handbook and for the
purposes of s 186(2) of the LRA, an unfair labour practice in the form of an
unfair act by the applicants in relation to the first respondent’s suspension.’
And in Lekabe v Minister: Department of Justice and Constitutional
Development85 the Court simply said that:
‘… the right of the employee in the event that the employer does not uplift the
suspension on the expiry of the 60 days is to file an unfair labour practice
claim or bring an application to have an order directing the employer to uplift
the suspension.’
[84] It follows that having due regard to the basis for the applicant’s case that his
suspension was unlawful, those are issues that can competent ly be placed
before the bargaining council for consideration, as part of its unfair labour
practice jurisdiction. There was no need to burden this Court with the issue,
especially on an urgent basis, considering that the alternative remedy
available to the applicant is not only an available remedy, but an actually
prescribed remedy under the LRA.
[85] A final apt illustration of the issue discussed above can be found in Democratic
Nursing Organisation of SA on behalf of Binza v Department of Health,
Western Cape Province86, which equally concerned a case founded on the 60
days’ time period under the SMS Handbook having lapsed (which as said is
the same position under regulation 6(6)(a)) . The Court made the following
interesting observations:87
‘Although he claims his suspension is unlawful, Binza does not seek an order
of specific performance but argues that he has established that he has
exceptional and compelling circumstances warranting the urgent intervention
of the court as a matter of unfairness. His reluctance to assert a right to relief
based on a claim that the suspension was unlawful is doubtless informed by

based on a claim that the suspension was unlawful is doubtless informed by
the change in approach to such claims adopted by this court since the
Constitutional Court decision in Steenkamp & others v Edcon Ltd (National
Union of Metalworkers of SA intervening).’ (emphasis added)

85 2009) 30 ILJ 2444 (LC) at para 19.
86 (2025) 46 ILJ 606 (LC).
87 Id at para 11.

40

What is clear fr om this dictum in Binza is that the Court appreciated that it
would not have j urisdiction to decide a case based on a contention that the
suspension was unlawful for this reason.
[86] The Court in Binza then considered whether it was appropriate to intervene on
the basis of it being pleaded that the suspension was unfair, because the 60
days’ time period had lapsed, and concluded:88
‘A final issue to consider is the nature of the right Binza asserts. It is a right to
have a precautionary suspension declared an unfair labour practice. The
Labour Relations Act 66 of 1995 (the LRA) has provided a process that the
legislature deemed adequate to redress such unfair conduct by an employer.
There is a danger that, if this court too readily accepts that just because it
would make some sense for it to intervene before that process has been
concluded, this could have the effect of rendering the intended statutory
remedy nugatory, because the relief afforded by the court would in many
instances be more effective than relief awarded in due course. That is why the
circumstances warranting urgent relief of this nature must be truly unusual and
exceptional, and I am not satisfied that Binza has established that the
circumstances of his suspension are such.
In the light of the discussion above, I am not satisfied that Binza does not have
a suitable alternative remedy …
’
Clearly, similar considerations apply in casu. The applicant’s dipsute relating
to his suspension now brought directly to this Court must fail for the same
reasons.
[87] In the aforesaid context, one final issue is important. There is clearly a dispute
between the applicant and the first respondent as to whether the period as
contemplated by regulation 6(6)(a) has lapsed, and whether regulations 6(2),
(3), (4) an (5 ) have been violated. The first issue to be decided in this context
is when the disciplinary hearing actually commences. In Tshabalala v

is when the disciplinary hearing actually commences. In Tshabalala v
Moqhaka Local Municipality and Another89 it was said that: ‘ … Read
sequentially, the regulations contemplate that the disciplinary hearing is
convened by the presiding officer and commenced by the reading of the
charges to the senior manager accused of misconduct …’. According to the

88 Id at paras 16 – 17.
89 (2025) 46 ILJ 590 (LAC) at para 7.

41

first respondent, the disciplinary hearing in casu actually commenced on 25
May 2026, should the reasoning in Tshabalala be properly applied, when the
chairperson convened and took charge of the hearing, and then postponed it
at the instance of the applicant himself.90 As far as the first re spondent is
concerned, the applicant was only finally suspended on 3 March 2026 after
compliance with regulation 6, and it is thus clear that the disciplinary hearing
convened for t he purposes of regulation 6(6)(a) within the three months
period. The applicant disagrees. He contends he was actually first suspended
on 4 February 2026 without compliance with regulation 6, and the three
months’ period thus lapsed on 4 May 2026. In the alternative he says that the
disciplinary hearing has in any event not convened yet, based on how he
considers the reasoning in Tshabalala should be applied. In the current case, I
need not decide which version prevails and which argument has merit , for the
simple reason that these kinds of questions are exactly what a bargaining
council arbitrator would and should be called on to decide. These are case s
that can be competently and properly raised before the bargaining council.
Whether the applicant labels it as unlawful suspension, or unfair suspension, it
does not matter. It is not an issue for this Court to decide, especially on the
basis of urgency, where no exceptional circumstances have been shown and
with a proper and suitable alternative remedy being available . I will therefore
not consider the parties’ arguments in this regard, which I believe must be
decided in the proper forum.
Conclusion
[88] For all the reasons as set out above, I conclude that overall considered, this
Court does not have the jurisdiction to consider the applicant’s application and
grant him the relief sought, especially considering that in reality, final relief is
sought. The applicant’s reliance on section 157(1) and section 158(1) (a)(ii)

sought. The applicant’s reliance on section 157(1) and section 158(1) (a)(ii)
and (iii), as sources conferring jurisdiction , is misplaced, and this Court does
not have jurisdiction to entertain the applicant’s pleaded case in this matter,
based on these sections. Where it comes to the applicant’s reliance on section

90 See the reasoning in Monyepao (supra) at para 35, where it was said: ‘On a purposive interpretation
of regulation 10, in line with jurisprudence, the hearing commences when the presiding officer takes
charge of the proceedings. In the words of regulation 10(2), the presiding officer conducts the hearing
and determines the procedures to be followed. This is what the presiding officer did in the present
application – the presiding officer commenced the proceedings, took charge and made a
determination that the hearing is postponed after hearing both parties.’.

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158(1)(h), the applicant must also fail, even though this Court would have
jurisdiction to decide it, for t hree reasons. First , the applicant has failed to
plead any review grounds. Second, this Court has no jurisdiction to consider
this particular review application, because the applicant, considering the
particular nature of the dispute in this case, is compelled to follow the
prescribed dispute resolution processes under the LRA and not approach this
Court directly under section 158(1)(h). Third , the applicant has in any event
not demonstrated proper exceptional circumstances to justify intervention in
this case by way of a review application, in medias res . As to the applicant’s
suspension case, that case also falls to be dismissed due to a want of
jurisdiction, for the same reasons . I therefore conclude that the applicant’s
entire application falls to be dismissed.
Costs
[89] This then only leaves the issue of costs. In this respect, and in terms of section
162(1), I have a wide discretion. The applicant was legally assisted throughout
these proceedings, and thus should thus have known, from the outset, that the
current application, especially brought on the basis of urgency, was doomed to
fail. I also consider that the application, considering the relief sought, was
never going to be competent. The kind of approach adopted by the applicant
should be frowned upon. In fact, I believe that when what is said by the
applicant in his founding affidavit is properly considered, this application is part
of a stratagem to finally scupper the disciplinary proceedings. I take a dim view
of this Court being used in such a manner. But what makes this even worse is
that when the applicant’s representative was confronted when this matter was
argued, with all the insurmountable difficulties with the application, he simply
glibly adopted the view that he would no longer seek any relief relating to the
disciplinary hearing, but would only focus on relief pertaining to the

disciplinary hearing, but would only focus on relief pertaining to the
suspension. This is entirely inappropriate, especially considering that a
considerable part of the case is devoted to an attack on the disciplinary
hearing, and the first respondent has been dragged to Court on that basis.
[90] And finally, the continuous failure by litigants to heed the numerous warnings
by this Court where it comes to these kinds of applications must be visited with

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proper adverse consequence. With regard to the aforesaid, I fully align myself
with the following dictum in Mokoena v Merafong Municipality and Others91:
‘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. … ’
[91] Equally apposite is the following dictum in Leshabane supra92 where it was
said:
‘In bringing the application, the applicant took up the valuable time and already
stretched resources of this court. In doing so, the applicant compelled the
respondents, which is a public institution funded out of the taxpayers virtually
empty pocket, to defend the case using these already limited and stretched
public funds, which is not acceptable. What in reality happened in this instance
as abuse 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 his right of access to the courts must be done in a responsible
manner and always in compliance with the rules and processes of the court.’
[92] All said, I believe this is a situation where a costs order against the applicant is
certainly earned and justified. The first respondent has asked for a costs order
on what it says is a punitive scale, being scale C. For the reasons set out
above, I consider that such a costs order is justified, and I make a costs order
accordingly.
Order
[93] It is for all the reasons as set out above that I made the order that I did as
respect in paragraph 6 of this judgment, supra.

_____________________
S Snyman

91 (2020) 41 ILJ 234 (LC) at para 36.
92 (2024) 45 ILJ 833 (LC) at para 58. See also Magoda (supra) at para 20.

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Acting Judge of the Labour Court of South Africa


Appearances:
For the Applicant: Advocate A Montzinger
Instructed by: Kobus Cronje Inc Attorneys
For the First Respondent: Cowan Harper Madikizela Inc Attorneys