THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: 2026-140169
In the matter between:
SOMISA VALENCIA MAWELA Applicant
and
DEPARTMENT OF CORRECTIOINAL
SERVICES
NATIONAL COMMISSIONER OF
CORRECTIONAL SERVICES
Heard: 26 June 2026
Delivered: 02 July 2026
1st Respondent
2
nd Respondent
JUDGMENT
LAGRANGE, J
Introduction
(1) Reportable: No
(2) Of interest to other Judges: Yes
(3) Revised
____________ 02 July 2026
Signature Date
2
[1] This is an opposed application for urgent final relief. The applicant , Ms S
Malewa, a director of the respondent (‘the department’) wishes to protect her
eligibility to apply for early retirement, under the General Public Service
Dispensation, first announced in October 2025. At the time of considering the
application the applicant must not be the subject matter of an active
investigation into alleged misconduct nor be subject to pending disciplinary
proceedings. She seeks final interdictory relief preventing the Respondent from
excluding her from participation in the Government's Incentivised Early
Retirement Programme ("ERP") solely on the basis of a disciplinary process
that has remained unresolved for an excessive period due to the Respondent's
own failure to prosecute the matter diligently.
[2] The specific relief sought, apart from asking that the matter be heard as one
of urgency and seeking costs, is for an order that:
‘3. The Respondents’ decision to exclude or disqualify the
Applicant from consideration for the Incentivised Early
Retirement Programme on the basis of the unresolved
disciplinary process is unlawful and unfair.
4. The Respondents are directed to process and consider
the Applicant's application for the Incentivised Early Retirement
Programme without regard to the said disciplinary process
pending the final determination of this application.’
(emphasis added)
[3] At present and at the time of launching this urgent application, the applicant is
facing disciplinary charges, although the disciplinary inquiry has not made
much progress since it commenced last year. Both parties blame the other for
the delay.
[4] In any event , before the cutoff dat e of 30 June 2026 for the submission of
applications for consideration for early retirement, the applicant filed her
application. It appears she had done this by 4 May 2026. A n annotation on
her application forms dated 14 May 2026 made by an official dealing with the
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application stated that "The application cannot be considered at this stage as
the Director has a pending disciplinary case". The applicant was notified of
this internal communication and interpreted it as a violation of her
constitutional right to fair labour practices under Section 23(1) of the
Constitution and asserts that she has a clear right to have her application
processed rationally w ithout regard to her being subject to a disciplinary
inquiry.
[5] The department contends that she cannot claim such a clear right when there
is no guarantee that, even if she was not facing disciplinary charges , her
application would be approved.
Evaluation
[6] Although the parties argued the matter fully, argument on the merits was
heard provisionally, depending on the determination of the questions of
urgency and jurisdiction, which obviously might determine the application
without consideration of the merits.
[7] The applicant is seeking final relief on an urgent basis and accordingly must
satisfy the test set out in Setlogelo v Setlogelo
1, and confirmed by the
Constitutional Court, namely she must establish (a) the existence a clear right,
(b) an injury actually committed or reasonably apprehended, and (c) the
absence of an adequate alternative remedy.
2
[8] The appli cant asserts that her constitutional right to fair labour practices
provides her with a clear right not to be excluded from the early retirement
dispensation, on account of her pending disciplinary enquiry. The department
argues that there is no obligation on the department to grant every eligible
applicant early retirement. In terms of paragraph 5 of DPSA Circular 38 of 2025
dated 13 October 2025, the authority to grant the Incentivi sed ERP is vested
with the Executive Authority of the relevant department , in accordance with
section 16(6) of the Public Service Act, which means, the decision maker is the
1 Setlogelo v Setlogelo 1914 AD 221.
1 Setlogelo v Setlogelo 1914 AD 221.
2 Setlogelo above at 227; Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC)
in para 8.
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Minister of the department. He is required to consider ERP requests based on
‘reasonable criteria set by the department ’. When signing the application form
the applicant also accepted the following express acknowledgment:
‘I acknowledge that my application is subject to approval by the
executive authority or his/her delegate and should my application be
approved, I must exit from the public service as agreed.’
[9] The applicant argues that the internal communication of 14 May 2026 stating
that the application " will not be processed at this stage" is nonetheless an
operative, prejudicial bar that creates immediate harm because given the
prolonged and inconclusive disciplinary inquiry it is highly unlikely that the
inquiry would be concluded before the end of June, which indeed is the case,
she will to all intents and purposes be excluded from participating in the
scheme. The department points out, correctly, that 30 June was merely the
deadline for applying for the ERP. In terms of cl ause 2.3, of the policy ,
departments have until the end of July to consolidate applications for
submission to the Treasury and accordingly no decision has been taken on the
applicant’s application.
[10] The department points out that it has also established a multi -tiered
governance structure to manage the ERP. Nonetheless, it defends the
interrupted processing of the applicant’s application on account of her pending
disciplinary action, on t he basis that it ‘ falls within the broader category of
reasonable and rational exclusions’.
[11] Given the prolonged lack of concrete progress in the pace of the enquiry, it
does seem to be a virtual certainty that it will not be concluded by the end of
July either, irrespective of who is to blame for this. Therefore, there is a strong
likelihood the applicant will effectively be excluded from consideration from the
ERP, which is plainly prejudicial vis -à-vis, other applicants not under
investigation or facing disciplinary action.
investigation or facing disciplinary action.
[12] The critical question is whether it would be considered unfair to discriminate
against the applicant on the basis of disciplinary measures which have not
been concluded and could notionally end in her acquittal, just because they
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happened to be underway at the time the ERP was being implemented.
Further, assuming that can be construed as unfair, what is the legal remedy to
rectify matters? The applicant herself specifically asserts that the objectionable
exclusion is a breach of her right to fair labour practices. It is notionally
possible, even if it might be rather difficult, to formulate her exclusion from the
ERP as a p unitive measure amounting to some kind of disciplinary sanction
short of dismissal under s 186(2)(b) of the Labour Relations Act, 66 of 1995
(‘the LRA’). Alternatively, it might conceivably be construed as an unfair
deprivation of a benefit under s 186(2)(a) of the Act.
[13] Similarly, though she does not expressly plead that her exclusion from
consideration is a breach of the principle of legality, it is implied from her attack
on the lawfulness and rationality of the objectionable exclusion in the ERP. She
also did not expressly indicate if her application is based on s 157(2)(b) of the
LRA, in order to attack the constitutionality of the ERP.
[14] In passing, I should add that it is not plainly obvious that the exclusion based on
unresolved disciplinary matter is inherently without any rational basis and I am
not persuaded the applicant has a clear right to relief based on irrationality.
[15] However, merely articulating the existence of these remedies pertinently raises
the question why the court should address them on an urgent basis. Firstly, any
unfair labour practice dispute under s 186 of the LRA is adjudicated by way of
arbitration under the auspices of a bargaining council or the CCMA. This court
has no jurisdiction to entertain a claim of final relief for an unfair labour practice.
This application was not launched to stay any decision to exclude the applicant
from considerat ion under the scheme pending the outcome of unfair labour
practice proceedings but to obtain a final declaration from this court, which
lacks the jurisdiction to do so.
lacks the jurisdiction to do so.
[16] Further, if she believes she would be entitled to set aside the objectionable
provision on grounds of illegality, she could likewise have applied to stay a
decision on her exclusion from consideration, pending such review. She may
still pursue such a cause of action.
[17] What emerges from this, is that there are alternative remedies available t o the
applicant, quite apart from this court’s lack of jurisdiction to determine any
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unfair labour practice claim. She has also not made out a case that none of
those remedies could adequately provide restitution for her exclusion from the
ERP.
[18] In the circumstances, even if for the sake of argument, I accept that the
applicant did not unduly delay in launching this application, she cannot succeed
because other requirements of urgency are not met. The Applicant has failed to
establish the absence of suitabl e alternative remedies for the relief she seeks,
or that the harm she might face in the short term is irreparable. Accordingly,
aside from the jurisdictional question, the application fails for lack of urgency.
[19] On the question of costs, I accept that the application was not frivolous and that
it raised serious legal issue. Accordingly, it would not be appropriate
considering questions of law and fairness to make a cost award.
Order
1. The court has no jurisdiction to consider the fairness of the Applicant
being excluded from consideration for early retirement under the
Directive of the Respondent attached to the Applicant’s founding
affidavit as “SMV1”.
2. Insofar as the court has jurisdiction to consider other relief, the
remainder of the application is struck off the roll for lack of urgency.
3. No order is made as to costs.
_______________________
R Lagrange
Judge of the Labour Court
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Appearances
For the Applicant: --- Adv. CP Naude
Instructed by: --- Issac Teke Mothibe Attorneys Inc.
For the Respondent: --- Adv. T Modisenyane
Instructed by: --- The State Attorney