THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: 2026 – 092263
In the matter between:
DEPARTMENT OF CORRECTIONAL SERVICES Applicant
and
M E KGOWE First Respondent
A W ZWANE Second Respondent
I O BANDA Third Respondent
POLICE AND PRISONS CIVIL RIGHTS UNION Fourth Respondent
GENERAL PUBLIC SERVICE SECTOR
BARGAINING COUNCIL Fifth Respondent
Heard: 9 June 2026
This j udgment was handed down electronically by circulation to the parties and
legal representatives by email and by uploading onto Case Lines. The date and
time for hand-down is deemed to be 3 July 2026.
Summary: Urgency – applicant satisfying considerations of urgency – matter
involving issue of legality having some inherent urgency – no substantial
(1) REPORTABLE: YES
(2) OF INTEREST TO
OTHER JUDGES: YES
(3) REVISED: YES
3 July 2026
2
redress in ordinary course – interest of justice that matter urgently decided –
matter decided on basis of urgency
Review application – s 158(1)(h) of LRA – principles considered – legality
review involved – principles applicable to legality review considered –
applicant compelled to remedy unlawfulness / irregularity – application by
applicant qualifies as proper legality review under s 158(1)(h)
Legality review – delay in instituting of review – principles considered – no
condonation required – what must be considered i s first whether delay
reasonable – if delay unreasonable then whether it should be overlooked –
reasonableness depending on length of delay and explanation – in casu part of
delay reasonable and part unreasonable
Legality review – whether to overlook delay – principles considered – involves
holistic enquiry – nature of impugned decision, prospects of success,
prejudice and interest of justice considered – proper case made out to
overlook delay
Conclusion of settlement agreement – settlement agreement unlawfully
concluded – delegated authority not complied with – circumstances under
settlement cam e about irregular and unlawful – settlement agreement
unlawfully concluded and set aside
Rectification – rectification by conduct pleaded – cannot ratify agreement
unlawfully concluded – cannot comply with delegation requirements after
conclusion of settlement agreement – requirements must be complied with
before conclusion of agreement
Legality review – consequential relief – court has wide discretion – agreement
set aside – unfair dismissal dispute of employees settled by way of settlement
agreement remitted for arbitration on merits
JUDGMENT
SNYMAN, AJ
Introduction
3
[1] The current matter is once again an example of the challenges faced where it
comes to the State conducting employment relations. It entails this Court
having to become involved in what can readily be said to be the managing of
internal affairs in the State as employer, because of irregularities perpetrated
in the conducting of such employment relations . It is an undesirable state of
affairs. The Court does so at the request of the State itself, by way of what is
commonly known as a self -review. These interventions should be a rarity. But
unfortunately, they are not. As pertinently said in Govan Mbeki Municipality v
New Integrated Credit Solutions (Pty) Ltd1: ‘… self-review is now a burgeoning
and troubling phenomenon. As recorded by the Constitutional Court in Asla,
corruption and maladministration are inconsistent with the rule of law and are
the antithesis of open, accountable and democratic government. … We must
all of us, in every branch of the state and civil society, make every effort to
protect public moneys and ensure that our country's necessary developmental
goals as envisaged by the Constitution, in the interest of all our people, are
met … ’. And in Altech Radio Holdings (Pty) Ltd and Others v Tshwane
City2 the Court held: ‘… State self-review is a novel, but burgeoning, species
of judicial review that has occupied the attention of our courts in a number of
recent decisions. Although it seems axiomatic that unlawful conduct must be
undone, to borrow from Dr Seuss, "simple it's not" …’.
[2] This kind of self-review, in the context of employment relations under the LRA,
is provided for in in terms of Section 158(1)(h) of the Labour Relations Act
(LRA)3. It is such an application that is now before me, brought on the basis of
urgency by the applicant to review and set aside a settlement agreement
concluded between the applicant and the first, second and third respondents ,
in terms of which the unfair dismissal disputes pursued by these respondents
in terms of which the unfair dismissal disputes pursued by these respondents
to the fifth respondent as applicable bargaining council was settled. In terms of
the settlement, these respondents were reinstated with effect to the date of
their dismissal with full back pay. It was for all intents and purposes a
capitulation. The applicant challenged the validity of this settlement agreement
on a variety of grounds, all founded on the general principle of legality.
1 2021 (4) SA 436 (SCA) at para 47.
2 2021 (3) SA 25 (SCA) at para 1.
3 Act 66 of 1995 (as amended).
4
[3] The application appears to have been bought on 22 April 2 026. The
respondents were given ten days to file an answering affidavit. A
comprehensive answering affidavit was indeed filed on 2 June 2026. A
replying affidavit followed two days later. The application was set down on 9
June 2026, and came before me on that date. Considering all of the issues
involved, and the implications of any judgment I would give i n this matter, I
decided to reserve judgment. I how hand down judgment.
[4] For ease of reference, I will refer to the applicant in this judgment as ‘ the
DCS’, and the first, second and third respondents jointly as ‘the employees’.
The fourth respondent will be referred to as ‘POPCRU’, and the fifth
respondent as ‘the GPSSBC’.
The relevant facts
[5] Despite fairly extensive affidavits, I believe that the core facts in this case are
in essence either undisputed or common cause. But insofar as there any exist
factual disputes, I shall decide those in line with the principles enunciated in
the well-known judgment of Plascon Evans Paints v Van Riebeeck Paints 4. In
short, it follows that it is the admitted or undenied facts together with the facts
as stated by the POPCRU and the employees that must be utilized in deciding
this matter. The only exception would be if POPCRU and the employees
simply offers a bald denial, or the facts as stated by them are patently false,
absurd or fanciful. 5 The factual matrix as set out below is arrived at based on
the application of these principles.
[6] In 2022, the Departmental Investigation Unit (DIU) of the DCS investigated
allegations of fraudulent activity at the Krugersdorp Community Corrections
4 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.
5 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.
5
Office relating to the offender monitoring system . The allegations involved the
falsification of parolee supervision records . According to the DCS, the
employees falsified the records of parolee supervision visits , particularly with
regard to logging and recording visits of parolees than actually never took
place. The difficulty with this conduct was that the employees misrepresented
that they were monitoring parolees, when that was not the case. It would be an
offence of dishonesty.
[7] A comprehensive investigation was conducted, followed by an equally
comprehensive investigation report was issued on 17 April 2023, setting out in
detail all the facts and allegations against the employees, with documentary
evidence. The employees were then each individually charged for misconduct,
which charges all related to misrepresentation relating to the falsification of the
parole monitoring system. They were subjected to individual disciplinary
hearings before an independent chairperson. They were found guilty of all the
charges against them, by way comprehensive written findings issued by the
chairperson, and were subsequently dismissed on 13 February 2024. They
pursued internal appeals, which were all declined in the course of March 2024.
[8] The employees then each pursued individual unfair dismissal disputes to the
GPSSBC under case numbers GPBC 530 / 2024, GPBC 554 / 2024 and
GPBC 555 / 2024, respectively. The disputes were subsequently consolidated.
The disputes remained unresolved following conciliation, and then proceeded
to arbitration at the GPSSBC. In the arbitration proceedings, the DCS was
initially represented by Mr Setlhodi, who had also been the initiator in the
disciplinary proceedings . However, Mr Setlhodi resigned before the disputes
could be arbitrated, and the matters were then allocated to Mr G S Mtshweni
(Mtshweni), being the Deputy Director: Prosecutions, to attend to. The
employees were represented by POPCRU in the arbitration.
employees were represented by POPCRU in the arbitration.
[9] On 24 March 2025, Mtshweni submitted an internal memorandum to Mr S S
Mkhize (Mkhize), being the Acting Director: Code Enforcement , in which
memorandum Mtshweni sought a mandate to settle the disputes of the
employees pending before the GPSSBC , with arbitration being immanent . In
the memorandum, it appears that Mtshweni represented to Mkhize that the
DCS had insufficient evidence to prove the misconduct , and there was no
6
reasonable prospects of success in defending t he matter. A draft settlement
agreement was provided with the memorandum. Mkhize then approved the
request for a mandate to settle on that same day.
[10] The arbitration then convened on 27 March 2025. At the arbitration, the
proposed settlement agreement was then concluded, with some amendments.
What was agreed to in this settlement agreement is firstly that the employees
be r einstated effective 1 May 2025 on the same terms and conditions of
employment. It was also agreed that the employees be paid back pay with
effect from their date of dismissal on 13 February 2024 and until the agreed
date of reinstatement, which back pay would be paid on or before 31 May
2025. The employees agreed to withdraw their disputes. And finally, the DCS
would not be responsible for the pension payments that had been made to the
employees in the interim. The parties also agreed that the settlement
agreement may be made an arbitration award in terms of section 142A(1) of
the LRA.
[11] Pursuant to the aforesaid terms of the settlement agreement, it was then
indeed made an arbitration award under section 142A(1). The employees
were also paid their back pay in terms of the said agreement on 23 June and
23 October 2025.
[12] The settlement agreement came to the attention of the DIU on 12 May 2025.
The DIU then raised specific concerns about the circumstances in which the
settlement had been concluded. In an internal memorandum dated 12 May
2025 to the Acting Director of the DIU, it was requested that an investigation
be conducted into the conclusion of the settlement agreement. In th e
memorandum, it was recorded that Mtshweni’s contention that there was no
evidence to prove the misconduct and that there were no prospects of success
to defend the matter was not correct. It was further stated that Mtshweni never
consulted with investigators in the matter or the witness involved. It was
consulted with investigators in the matter or the witness involved. It was
specifically questioned whether due diligence was undertaken in settling the
matters.
[13] Pursuant to this memorandum requesting an investigation into the settlement
agreement, the DCS considered it prudent to obtain proper legal opinion on
7
the matter. In a memorandum on 4 July 2025 to the Director Litigation, the
Acting Director of the DIU requested that such legal opinion be obtained
whether the settlement agreement could be reviewed and set aside, based on
the irregularities alluded to in the memorandum of 12 May 2025. The Director:
Litigation approved this request for a legal opinion on 7 July 2 025. The State
attorneys was then instructed on 11 July 2025 to brief counsel to obtain such
an opinion.
[14] Counsel was then instructed and there were several consultations between
counsel and the relevant responsible persons at the DCS. Counsel was also
provided with all the documents, including the investigation reports. The legal
opinion from counsel came to hand on 28 November 2025. In that opinion,
counsel opined that t he settlement agreement was susceptible to being set
aside on various grounds . This included that there was no prior consultation
with the DCS’s Finance department as prescribed by the relevant delegation
of authority.
[15] The current urgent application then followed on 22 April 2026. The delay in
bringing this application is an issue that will be pertinently dealt with later in
this judgment.
Urgency
[16] The first issue to consider is that of urgency. POPCRU and the employees
have specifically taken issue with the existence of urgency, in essence
contending that the DCS has unduly delayed and procrastinated when
pursuing this case, that any urgency is self-created, and the time taken from
when the legal opinion as obtained and the application was brought has
simply not been reasonably and satisfactory explained. They also point out
that on 12 May 2025, the issue with the settlement agreement was first
realised, and on 4 July 2025 legal opinion was requested, meaning that
proceedings should have been instituted at that point . They further state that
even when considering the issue of urgency fr om when the legal opinion was
even when considering the issue of urgency fr om when the legal opinion was
obtained on 28 November 2025, the application only landed at the end of April
2026 without a proper explanation for the delay. Reference is also made to the
fact that the founding affidavit was deposed to on 27 March 2026, however the
notice of motion was only signed on 22 April 2026.
8
[17] It certainly does appear , on face value, that these criticisms of the DCS’s
conduct by POCPRU and the employees have some substance. What is
incontrovertible is that it took the DCS five months to bring the current
application after it received legal opinion on 28 November 2025, and the
explanation for this delay is questionable, as POPCRU and the employees
properly point out. But what I do not accept as a legitimate basis for criticism is
the fact that the DCS first want ed to get legal opinion before seeking to
challenge the settlement agreement . It is clear to me that the DCS promptly
acted to question the settlement agreement when the responsible persons at
the DCS first became aware of it in May 2025. There is nothing unduly lengthy
in this case where it came to getting approval to obtain legal opinion, then
briefing counsel, and an opinion ultimately coming to hand. I therefore believe
that the period from May 2025 to 28 November 2025 cannot serve as a
legitimate consideration where it comes to dispelling urgency. The DCS acted
responsibly and properly in this respect.
[18] So, the issue of urgency must be looked at as fr om 28 November 2025. Can it
be said that the DCS should be non-suited based on urgency because of the
delay that occurred as f rom that date, and until the application was finally
brought. This is the question I turn to next, and answering this question all
depends on the application of the principles relating to urgency. Thes e
principles are, as summarized in Association of Mineworkers and Construction
Union and Others v Northam Platinum Ltd and Another
6, as follows: (a) the
applicant has to set out explicitly the circumstances which renders the matter
urgent with full and proper particularity; (b) the applicant must set out the
reasons why the applicant cannot be afforded substantial redress at a hearing
in due course; (c) where an applicant seeks final relief, the court must be even
in due course; (c) where an applicant seeks final relief, the court must be even
more circumspect when deciding whether or not urgency has been
established; (d) urgency must not be self -created by an applicant, as a
consequence of the applicant not having brought the application at the first
available opportunity; (e) the possible prejudice the respondent might suffer as
a result of the abridgement of the prescribed time periods and an early hearing
must be considered; and (f) the more immediate the reaction by the litigant to
6 (2016) 37 ILJ 2840 (LC) at paras 20 – 26, and all the authorities cited there.
9
remedy the situation by way of instituting litigation, the better it is for
establishing urgency.
[19] In this instance, the requirement of the inability to obtain substantial redress in
the ordinary course must be highlighted. A critical consideration for
establishing urgency is whether an applicant would not be afforded substantial
redress in due course, and the applicant must provide proper reasons in
support of a case that the obtaining thereof would not be possible.
7 If there is
in fact substantial redress available in the ordinary course, urgent relief should
be declined, but if not, then urgent relief should ordinarily be granted. This was
made clear in Madonsela v Legal Practice Council and Others
8 as follows:
‘It is trite that what amounts to substantial redress depends on the
circumstances of the case, and the nature of the rights involved, and is a
distinct issue from that of a lack of an alternative remedy. Thus, if the applicant
can demonstrate that she will not be afforded substantial redress at the
hearing in due course, then the matter should be accorded urgency. If,
however, such substantial redress is available in due course, then the court
ought to refuse to accord the matter urgency
.’
[20] The above being established and the criticism of POPCRU and the employees
on urgency properly noted, what does the DCS have to say about this ? I am
compelled to say that where it comes to explaining the five months’ delay from
28 November 2025, the explanation by the DCS in the founding affidavit is
paper thin. The only explanation of some substance related to what can be
called the traditional holiday season in December and half of January where
the entire country partakes in what had been described as a ‘collective
slumber’. In Transport and General Workers Union and Others v Hiemstra NO
and Another 9 it was held: ‘ … I would be unduly shortsighted to fail to
7 See Mojaki v Ngaka Modiri Molema District Municipality and Others (2015) 36 ILJ 1331 (LC) at para
17; Maqubela v SA Graduates Development Association and Others (2014) 35 ILJ 2479 (LC) at para
32; Transport and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others (2015) 36 ILJ 2148
(LC) at para 11; East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and
Others [2012] JOL 28244 (GSJ) at para 6; Vanguard of Organised Labour v Mahlangu and Another
(2026) 47 ILJ 619 (LC) at para 7.
8 (2025) 46 ILJ 2664 (LC) at para 18.
9 (1998) 19 ILJ 1598 (LC) at para 7 . See also Baur Research CC v Commission for Conciliation,
Mediation and Arbitration and Others (2014) 35 ILJ 1528 (LC) at para 3; National Education Health
and Allied Workers Union (NEHAWU) obo Second to Seventeenth Applicants and others v Metrofile
(Pty) Ltd and Others [2019] JOL 41572 (LC) at para 14.
10
acknowledge that it is a norm of South African society that during the period
mid-December to early January the nation slouches to a near halt. This
customary annual shutdown may not have excused the appropriate degree of
expedition in a matter which was truly urgent but it can hardly be said that the
nature of this matter was one in which it was inexcusable not to disturb our
collective slumber … ’. It is fairly trite that in this period, persons are on leave
and little gets gone. I will thus afford the D CS the benefit of the doubt where it
comes to this period.
[21] But then what about the period after January 2026? The founding affidavit is
largely silent where it comes to providing an explanation for this period.
Instead, the DCS focusses squarely on its inability to obtain substantial
redress in the ordinary course and the fact that it is suffering undue and
excessive prejudice should the sta tus quo endure. At least, when confronted
with this lack of explanation by way of the answering affidavit, the DCS does
seek to address it on reply. It explains that it is not a simpl e and straight
forward matter in getting actual litigation going once the legal opinion was
obtained. It was still necessary to canvass that opinion with various
stakeholders and departments in the DCS, which includes operations , legal
services and finance. Also, the National Commissioner must be consulted, as
he would have to depose to the founding affidavit. It is explained that the DCS
is an organ of state, which necessitates prescribed processes and
consultations to take place before litigation is launched into, which is what
accounted for the delay.
[22] I nonetheless, despite this furthe r explanation by the DCS, still have issues
with the explanation for the period after January 2026. I believe the DCS could
have acted with far greater expedition, once the holiday season ended, and
everyone was back at work. But one cannot completely turn a blind eye to the
everyone was back at work. But one cannot completely turn a blind eye to the
fact that the kind of flexibility and ability to take prompt action that exists in the
private sector, does not exist in the highly regulated public sector. I do accept
that many hoops must be jumped through before legal proceedings can be
instituted in the public sector . It appears plausible that a variety of
stakeholders have to first be consulted, and this takes time. Then there is also
the obvious time that needs to be taken to properly and with due
circumspection draft, settle and sign the founding affidavit, and to compile the
11
annexures. Many a case has been scuppered due to over hasty action.
Despite all these considerations, and as POPCRU and the employees
properly point out, the founding affidavit was deposed to on 27 March 2026,
which means that the entire exercise preceding the actual institution of the
litigation in this case to the point of a signed founding affidavit took some two
months. Is this too long? In my view , yes. But should it per se dispel urgency
without more? I do not think so. The point remains that at least, something
was being done throughout and the realities of life in the public service cannot
be ignored. It is thus a factor to consider, but not the decisive factor.
[23] But where the DCS is properly open to being frowned upon is the period from
27 March 2026, when the founding affidavit was signed, and 22 April 2026 ,
when the notice of motion was signed. There is no explanation for this period
of some four weeks. I cannot understand why this would take so long. I thus
accept that this is an undue and unexplained delay of the kind that could serve
to dispel urgency. Ordinarily, this could have been the end of it for the DCS on
the issue of urgency, was it not for the furt her considerations of prejudice, the
nature of the di spute, and the inability to obtain substantial redress in the
ordinary course, which I will now consider.
[24] According to the DCS, w here an organ of state seeks to arrest the continuing
implementation of an allegedly unlawful exercise of public power, and where
public funds and institutional consequences continue to accumulate, it carries
with it at least some inherent urgency. This is because a situation where public
power has been unlawfully exercised, which is something distinct and
separate from the abuse of public power , it cannot be allowed to perpetuate
and the Court should in principle always be inclined to consider resolving such
an anomaly urgently, when asked. In my view, there is some merit in th ese
an anomaly urgently, when asked. In my view, there is some merit in th ese
contentions, which actually go directly to the notion of being unable to obtain
substantial redress in the ordinary course. In Apleni v President of the
Republic of South Africa and Another
10 the Court decided:
‘… the applicant also relies on urgency, with reference to specific examples,
by stating that the suspension of a director -general has a substantial negative
effect on service delivery and critical projects that the Government Department
10 [2018] JOL 39179 (GP) at para 10.
12
was carrying out. Certain of those critical functions require experience and
institutional knowledge, and are not functions that should be fulfilled by
someone acting in the position of Director -General. It is that context also that
applicant alleges that it was critical that the unlawful and irrational suspension
be set aside as a matter of urgency. There were significant projects that were
being delayed and hampered because of the instability that his suspension
has caused. He also alleged that the Minister was abusing her powers, and
was clearly attempting to remove him from his position so that she could
influence the operational decisions of the Department. I hold that the
application is urgent. Where allegations are made relating to abuse of power
by a Minister or other public officials, which may impact upon the rule of law,
and may have a detrimental impact upon the public purse, the relevant relief
sought ought normally be urgently considered
.’
[25] The above dictum in Apleni supra has been consistently applied in the Courts,
since.11 In particular, it has also been applied in this Court. Two pertinent
examples bear mention. In Sibanyoni v Speaker, City of Mbombela and
Others12 the Court held:
‘The respondents correctly pointed out that the applicant’s case on urgency
was sparse other than relying on the public interest and/or illegality or unlawful
decision to place her on special leave. It is however my view that to look at the
grounds of urgency in isolation rather than as a whole is incorrect. Even if a
single ground of urgency might lack merit, one or two other grounds may
sustain the grounds for urgency. Of course the proviso is whether other
requirements of urgency related to substantial redress in due course and
acting with the necessary haste in order to prevent a harm are evident.
In Apleni v President of the Republic of SA & another , the court held that
where allegations are made relating to abuse of power by a minister or other
where allegations are made relating to abuse of power by a minister or other
public officials, which may impact upon the rule of law, and may have a
detrimental impact upon the public purse, the relevant relief sought ought
11 See Makgata v Fetakgomo Tubatse Local Municipality and Others 2025 JDR 3234 (LP) at para 45;
Mbude v Premier of the Eastern Cape and Others 2022 JDR 1289 (ECB) at paras 25 – 26; Manamela
v National Commissioner South African Police Service 2023 JDR 2471 (GP) at paras 13 – 14; Aviation
Co-Ordination Services (Pty) Limited and others v Airports Company South Africa SOC Limited and
Others 2024 JDR 4751 (GJ) at paras 13 – 14.
12 (2024) 45 ILJ 2808 (LC) at paras 15 – 16. See also Sithole v Dannhauser Local Municipality [2024]
ZALCD 47 (8 November 2024) at paras 6 -8; Moinwe v Joe Morolong Local Municipality and Others
[2025] ZALCJHB 180 (9 May 2025) at paras 11 – 14; Vilakazi v Mpumalanga Tourism and Parks
Agency and Others [2024] ZALCJHB 437 (22 October 2024) at para 6.
13
normally to be urgently considered. [8] It is not suggested that the complaint in
this case is about abuse of power. This application is about an exercise of
public power by the council, and there is no reason why the principle set out
in Apleni should not find application, as that exercise of public power by
council, as shall further be demonstrated in this judgment, impacts upon the
rule of law.’
And in Nxano and Another v Enoch Mgijima Local Municipality and Another13
the Court had the following to say:
‘Nonetheless, I have also considered whether the applicants have substantial
redress at the hearing in due course. As mentioned above, the applicants
contend that the basis for the termination of their employment with Enoch
Mgijima Municipality was irrational, invalid and unlawful. In Apleni v
President of the Republic of SA & another , referred to by the applicants, the
court opined that, in instances where allegations relate to abuse of power by
public officials which may impact upon the rule of law, the relief sought should,
as a rule, be urgently considered. As observed also in the authorities referred
to in SA Broadcasting Corporation (Soc) Ltd v Keevy & others , albeit in review
applications, a delay which is merely a procedural obstacle should be dealt
with judiciously so that it does not preclude the court from dealing with the
merits where a probe turns on the lawfulness of the exercise of public power.
I am accordingly satisfied that the matter must be dealt with on the merits and
by way of urgency
.’
[26] So, even if the wafer thin explanation by the DCS for the bulk of the delay after
January 2026 is considered as it stands, the case for urgency can still be
saved considering the nature of the issues at stake, and in particular, because
the DCS is seeking to remedy the unlawful exercise of public power that is
currently still leading to ongoing prejudice. The judgment in National
Professional Boxing Promoter’s Association v Minister of Sports Art and
Professional Boxing Promoter’s Association v Minister of Sports Art and
Culture and others 14 is an apposite example of the point, where the Court,
after having accepted that there was an undue delay, nonetheless decided:
‘From the facts, serious allegations are made pertaining to the exercise of
power by the Executive Authority of the Arm of State. If the matter were to be
13 (2021) 42 ILJ 2650 (LC) at paras 7 – 8.
14 2024 JDR 2630 (GP) at para 18.
14
enrolled to be heard in the normal course, members of the applicant would not
be afforded substantial redress due to, amongst others, the difficulties in
quantifying their losses. In the circumstances I am satisfied that the matter is
sufficiently urgent.’
[27] Then there is the issue of continued prejudice, per se . The fact is whilst the
issue of the validity of the settlement agreement remains undecided, the DCS
remains compelled to pay the employees their ordinary remuneration every
month, even if it does not use their services. The difficulty then is that should
the DCS ultimately be successful in having the settlement agreement set
aside, all these payments to the employees would then be considered fruitless
and wasteful expenditure, and considering that the employees are in essence
persons of straw and the large quantum of the amounts involved, it is unlikely
that such payments would ever be recovered. A contractual or damages claim
for the refund of these payments would likely yield little. This excludes the
existence of a suitable alternative remedy and would be irreparable harm. It is
true that payments have already been made, but at least these proceedings
can stop further prejudice going forward. The aforesaid considerations also tie
in with the inability to obtain substantial redress in the ordinary course, as
even a successful case years down track in the ordinary course will leave the
DCS, in respect of these financial considerations, with no value for its success.
As explained in Rham Equipment (Pty) Ltd v Lloyd and Others 15, albeit in the
context of a stay of execution being urgently sought: ‘… unless the stay
of execution is granted, the applicant will loose his right to dispute his
indebtedness. It is furthermore also undisputed on the papers that the
respondent is a man of straw and that it is likely that the applicant will have no
recourse against him should the sale in execution be allowed to
recourse against him should the sale in execution be allowed to
proceed...’. And in Denel SOC Ltd v National Union of Metalworkers of SA on
Behalf of Petersen and Another
16 the Court held:
‘Therefore, real and substantial justice requires that the contested default
award be stayed otherwise an injustice will result. There is a real and
substantial risk that Denel may not recover the money from Petersen once the
default arbitration award is reversed after having been put into operation. Such
15 (2008) 29 ILJ 3033 (LC) at para 13. see also Gois t/a Shakespeare's Pub v Van Zyl and Others
(2003) 24 ILJ 2302 (LC) at para 39.
16 (2022) 43 ILJ 2303 (LC) at paras 45. See also Minister of Forestry Fisheries and Others v
Siyabonga Fishing (Pty) Ltd 2026 JDR 1138 (WCC) at paras 74 – 75.
15
constitutes irreparable harm. The balance of convenience certainly favours
Denel. Denel will suffer greater harm should the stay be refused.’
[28] A final consideration is that the facts in this matter are uncomplicated and
succinct. There is not much in form of an extensive factual chronology,
coupled with substantial factual disputes that must be decided. POPCRU and
the employees have been given proper and adequate opportunity to answer
what the DCS had to say, and there is no suggestion that they have been
prejudiced by the truncated time periods given to them within which to answer.
When this matter came before me, there was a full set of pleadings and written
submissions. This le nds furt her credence to the approach that this matter
should be considered at this juncture. The following dictum in The Democratic
Alliance v The National Commissioner of Correctional Services and Others
17 is
apposite:
‘… Comprehensive affidavits have been filed, including heads of argument on
the merits, and the matter is ripe for hearing. The Respondents cannot now
allege that the matter is not urgent when they conceded the urgency of Part A
and when the application was treated as urgent all along. The alleged lack of
urgency falls to be dismissed on this ground alone
.’
[29] The point is that the current state of affairs cannot be allowed to perpetuate. It
would not be in the interest of justice to do so. The DCS suffers harm on a
continuous basis. And not only that, but the employees also live under a
sword, not knowing what could happen to them going forward, with continued
accruing liability should the DCS ultimately win. Everyone is best served, and
justice actually demands, that this issue be resolved once and for all. The
following dictum in Ditsobotla Local Municipality and Others v Bojosinyane and
Others18 is insightful:
‘In this Court’s view a delay in the hearing of the application will not serve the
‘In this Court’s view a delay in the hearing of the application will not serve the
public interest. It will only add to the instability and uncertainty which, it seems,
now pervade the municipality’s operations. If the allegations by the applicants
are anything to go by, the respondents are destabilising the municipality and
harming its operations. The mischief that such instability creates in public
17 2022 JDR 0306 (GP) at para 13.
18 2025 JDR 1396 (NWM) at para 17.
16
bodies is self -evident. This Court therefore found that the application was
indeed urgent and that it should be heard as such.’
[30] In summary, whilst I agree with POPCRU and the employees that there is
quite a lengthy delay that has not been properly explained, this in itself is
insufficient to scupper urgency in this particular case. The other factors
relating to urgency carry the day for the DCS. These factors are the following:
(1) the inability to obtain substantial redress in the ordinary course; (2) the fact
that the DCS’s claim is squarely founded on remedying the unlawful exercise
of public power together with the continuing prejudice that goes with it; (3) the
DCS could suffer irreparable harm if this mat ter is not decided now and that it
has no realistic alternative remedy available that could mitigate this ; (4)
POPCRU and the employees have had a proper opportunity to completely
answer this case; and (5) it is in the interest of justice to finally decide this
matter on an urgent basis. I will therefore decide this matter as one of urgency.
Review principles
[31] The proper point of departure in deciding this case is a refe rence to section
195(1) of the Constitution, which provision inter alia prescribes as follows:
‘Public administration must be governed by the democratic values and
principles enshrined in the Constitution, including the following principles:
(a) A high standard of professional ethics must be promoted and
maintained.
(b) Efficient, economic and effective use of resources must be promoted. …
(d) Services must be provided impartially, fairly, equitably and without bias.
…
(f) Public administration must be accountable. … ’
[32] In terms of section 195(2), the above principles apply to all organs of state and
in the administration of every sphere of government. This would include the
DCS, who is consequently obliged to act to remedy a failure, where that failure
DCS, who is consequently obliged to act to remedy a failure, where that failure
is at odds with giving effect to these guiding principles in the Constitution.
These kinds of cases are also always unique in that the State as an employer
17
is in essence seeking to challenge its own conduct, as perpetrated by its own
functionaries.19 It is, as said earlier, a self-review.
[33] The Constitutional Court in Khumalo and Another v Member of the Executive
Council for Education: KwaZulu- Natal20 considered the application of Section
195 of the Constitution where it came to the employment relationship between
the State as an employer and its employees, and in particular where it came to
the conduct of public service functionaries in respect of the employment
relationship pertaining to such employees. The Court held as follows:21
‘Section 195 provides for a number of important values to guide decision
makers in the context of public sector employment. When, as in this case, a
responsible functionary is enlightened of a potential irregularity, s 195 lays a
compelling basis for the founding of a duty on the functionary to investigate
and, if need be, to correct any unlawfulness through the appropriate avenues.
This duty is founded, inter alia, in the emphasis on accountability and
transparency in s 195(1) (f) and (g) and the requirement of a high standard of
professional ethics in s 195(1)(a). Read in the light of the founding value of the
rule of law in s 1 (c) of the Constitution, these provisions found not only
standing in a public functionary who seeks to review through a court process a
decision of its own department, but indeed they found an obligation to act to
correct the unlawfulness, within the boundaries of the law and the interests of
justice.’
[34] Therefore, and should it come to the attention of a responsible functionary in
the DCS that a decision has been taken in the context of employment relations
that is unlawful or irregular , and in particular contrary to binding legal
prescripts, that responsible functionary has a duty to act to remedy the
situation. The point is that which is irregular or unlawful must be lawfully
corrected. This was dealt with Merafong City v AngloGold Ashanti Ltd 22 in the
corrected. This was dealt with Merafong City v AngloGold Ashanti Ltd 22 in the
following manner:
19 See Khumalo and Another v Member of the Executive Council for Education: KwaZulu-Natal (2014)
35 ILJ 613 (CC) at para 32.
20 (2014) 35 ILJ 613 (CC).
21 Id at para 35.
22 2017 (2) SA 211 (CC) at para 61. See also New Integrated Credit Solutions (supra) at para 40;
Petersen and Others v South African Social Security Agency 2025 (3) SA 153 (SCA) at para 9 ;
Zingeni v General Public Service Sector Bargaining Council and Others (2026) 47 ILJ 448 (LC) at para
66.
18
‘This was out of kilter with Merafong's duty as an organ of state and a
constitutional citizen. This court has affirmed as a fundamental principle that
the state 'should be exemplary in its compliance with the fundamental
constitutional principle that proscribes self-help'. What is more, in Khumalo this
court held that state functionaries are enjoined to uphold and protect the rule
of law by inter alia seeking the redress of their departments' unlawful
decisions. Generally, it is the duty of a state functionary to rectify
unlawfulness. The courts have a duty 'to insist that the state, in all its dealings,
operate within the confines of the law and, in so doing, remain accountable to
those on whose behalf it exercises power'. Public functionaries 'must, where
faced with an irregularity in the public administration, in the context of
employment or otherwise, seek to redress it'. Not to do so may spawn
confusion and conflict, to the detriment of the administration and the public.
’
[35] In terms of section 158(1)(h) of the LRA, 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'. This provision, as read with
section 195 of the Constitution, is clearly the proper avenue for a responsible
functionary at the DCS to seek to correct an unlawful decision and / or
irregularities in the context of the conclusion of the settlement agreement with
the employees. This is exactly what it did. In fact, such proceedings under
section 158(1)(h) would be the only basis upon which to seek such correction,
because where it comes to challenges by the S tate itself against conduct or
actions of its own functionaries, the State has no recourse to the normal
dispute resolution processes under the LRA. In Hendricks v Overstrand
Municipality and Another
23 the LAC dealt with the applicability of the dispute
resolution system under the LRA to these kinds of challenges by the State as
resolution system under the LRA to these kinds of challenges by the State as
employer, and said:
‘The underlying guiding rationale of the ratio decidendi in Gcaba and Chirwa is
that 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. In other
words, and in practical terms, remedies for unfair dismissal and unfair labour
practices contained in the LRA should be used by aggrieved employees rather
than seeking review under PAJA. The ratio cannot justifiably be extended to
23 (2015) 36 ILJ 163 (LAC) at para 27.
19
deny an employer a remedy against an unreasonable, irrational or
procedurally unfair determination by a presiding officer exercising delegated
authority over discipline. The remedies available to an aggrieved employee
under the unfair dismissal and labour practice jurisdiction of the LRA are not
available to employers. … ’
[36] In sum , there is a clear duty on a responsible functionary to correct an
unlawful decision and / or an irregularity. It is thus untenable to accept that the
responsible functionary and the employer itself must then just live with what
happened and be left without a remedy. The only feasible remedy that can be
applied is an application in terms of Section 158(1)(h) of the LRA, brought by
the responsible functionary, to remedy that which had gone wrong.
[37] The utilization of section 158(1)(h) ind eed contemplates a review application.
This being the case, it must then be established on what review grounds such
a review application must be brought. This has received the attention of the
LAC on several occasions. In Hendricks supra
24, the Court held:
‘In sum therefore, the Labour Court has the power under s 158(1) (h) to review
the decision taken by a presiding officer of a disciplinary hearing on (i ) the
grounds listed in PAJA, provided the decision constitutes administrative
action; (ii) in terms of the common law in relation to domestic or contractual
disciplinary proceedings; or (iii) in accordance with the requirements of the
constitutional principle of legality, such being grounds 'permissible in law'.
The Court in Merafong City Local Municipality v SA Municipal Workers Union
and Another25 similarly pronounced:
‘The Labour Court is not precluded by the LRA from reviewing the decisions
and acts contemplated in s 158(1) (h). It has the power (and jurisdiction) to
review them on any grounds 'permissible in law'. Permissible grounds in law
would include the constitutional grounds of legality and rationality … ’
would include the constitutional grounds of legality and rationality … ’
And lastly, in Booysen v Beaufort West Municipality and Another26 it was
decided:
24 Id at para 29.
25 (2016) 37 ILJ 1857 (LAC) at para 38.
26 (2026) 47 ILJ 129 (LAC) at para 20.
20
‘The municipality’s criticism of Merafong is unwarranted. This court has, in
different instances, confirmed the Labour Court’s jurisdiction and power to
review the decisions and acts of the state as employer contemplated in s
158(1)(h) on any grounds permissible in law, which include the constitutional
grounds of legality and rationality … ’
[38] It has now b een authoritatively determined that a self -review by an organ of
state does not contemplate a review under the Promotion of Administrative
Justice Act (PAJA)27. It is squarely a legality review. As held in New Integrated
Credit Solutions supra 28: ‘… It is now firmly established that self-reviews by
organs of state are not reviews in terms of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA), but rather are legality reviews …’. The aforesaid
being so, the Court in Premier, Gauteng and Others v Democratic Alliance and
Others29 described the applicable principle of legality in the case of legality
reviews in following manner:
‘The principle of legality has developed significantly in our jurisprudence
since Fedsure and the grounds for a legality review have expanded along with
it. They now include lack of authority, abuse of power, and jurisdictional
facts, which are all subcategories of lawfulness. The rationality of the action in
question may also be challenged as a further and separate ground of review.’
The Court in Hendricks supra
30 also considered the principle of legality, and
held:
‘…. Legality includes a requirement of rationality. It is a requirement of the rule
of law that the exercise of public power by the executive and other
functionaries should not be arbitrary. Decisions must be rationally related to
the purpose for which the power was given, otherwise they are in effect
arbitrary and inconsistent with the rule of law.’
27 Act 3 of 2000.
28 Id at para 34. See also See State Information Technology Agency SOC Ltd v Gijima Holdings (Pty)
Ltd 2018 (2) SA 23 (CC) at paras 37 – 38; Buffalo City Metropolitan Municipality v Asla Construction
(Pty) Ltd 2019 (4) SA 331 (CC) para 45.
29 2022 (1) SA 16 (CC) at para 67.
30 Id at para 28.
21
[39] In dealing specifically with the meaning of ‘legality’ in the actual context of a
review application under Section 158(1)(h), the Court in Khumalo31 held:
‘… The principle of legality is applicable to al l exercises of public power and
not only to 'administrative action' as defined in PAJA. It requires that all
exercises of public power are, at a minimum, lawful and rational. … ’
[40] In MEC for the Department of Health, Western Cape v Weder;
MEC for the Department of Health, Western Cape v Democratic Nursing
Association of SA on behalf of Mangena 32 the Court held that the principle of
legality had developed over the past decade, to the extent that a parallel
system of review for action which falls outside of the strict definition of
administrative action, has developed. Having so held, the Court then
proceeded to set out this development as follows:
33
‘… Public functionaries are required to act within the powers granted to them
by law. See Fedsure Life Assurance Ltd v Greater Johannesburg Transitional
Metropolitan Council & others 1999 (1) SA 374 (CC) at para 58, furthermore,
see the seminal judgment in Pharmaceutical Manufacturers Association of SA
& another: In re Ex parte President of the Republic of SA & others 2000 (2) SA
674 (CC) at para 85, where the court laid down the core element of legality as
follows:
'It is a requirement of the rule of law that the exercise of public power by the
Executive and other functionaries should not be arbitrary. Decisions must be
rationally related to the purpose for which the power was given, otherwise they
are in effect arbitrary and inconsistent with this requirement. It follows that in
order to pass constitutional scrutiny the exercise of public power by the
Executive and other functionaries must, at least, comply with this requirement.'
The Court in Weder34 then proceeded to consider this component of rationality
as part of the legality enquiry, and held:
as part of the legality enquiry, and held:
‘In later judgments the court has developed this concept of rationality requiring
the executive or public functionaries to exercise their power for the specific
purposes for which they were granted so that they cannot act arbitrarily, for no
31 (supra) at para 28.
32 (2014) 35 ILJ 2131 (LAC) at para 33.
33 Id at para 34.
34 Id at para 35.
22
other purpose or an ulterior motive. See Gauteng Gambling Board & another v
MEC for Economic Development, Gauteng 2013 (5) SA 24 (SCA) at para 47.
Furthermore, in Democratic Alliance v President of the Republic of SA &
others 2013 (1) SA 248 (CC) at para 39 Yacoob ADCJ held:
'If in the circumstances of a case, there is a failure to take into account
relevant material that failure would constitute part of the means to achieve the
purpose for which the power was conferred. And if the failure had an impact
on the rationality of the entire process, then the final decision may be rendered
irrational and invalid by the irrationality of the process as a whole.'’
[41] As final reference in this respect , I refer to Mohlomi v Ventersdorp/Tlokwe
Municipality and Another35 where the Court succinctly described what must be
established in order to succeed with a legality review, in the following manner:
‘In summary therefore, where a litigating party seeks to challenge a decision in
the context of the public service employment environment, on the basis of a
review application under s 158(1) (h) of the LRA, founded on the constitutional
principle of legality, the party seeking to review such a decision must show
that the decision failed to meet the following essential requirements:
29.1 the decision was rationally connected to the purpose for which the power
was given to it, thus meaning that the decision would not be considered to be
arbitrary;
29.2 the decision accounted for all the relevant facts informing the decision, to
the extent that the decision made can be said to be rational;
29.3 the process giving rise to the decision was lawful and fair; and
29.4 the decision itself was lawful, meaning that it is not a decision that falls
outside the scope of the power afforded to the functionary.
Thus, should any applicant for review succeed in showing that any one of
these requirements has not been satisfied, then the decision taken would be
these requirements has not been satisfied, then the decision taken would be
reviewable in terms of s 158(1) (h) of the LRA, based on the principle of
legality
.’
[42] Therefore, and based on the aforesaid discussion, I am convinced that the
review application by the DCS under s ection 158(1)(h) is competent and is
properly founded on the principle of legality. In a nutshell, the DCS submits
that it is confronted with a situation of unlawfulness and irregularity, in that the
35 (2018) 39 ILJ 1096 (LC) at para 29.
23
decision taken conclude the settlement agreement with the employees was in
violation of the delegated authority and that the decision to settle was founded
on wrong advice which was both unreasonable and irregular.
The issue of the delay
[43] In casu, there is very much a live issue about the delay occasioned by the
DCS in bringing the current review application. This has been pertinently
raised by POPCRU and the employees in their answering affidavit. It is
undeniable, on the facts, that the DCS first appreciated there could be
difficulties with the settlement agreement on 12 May 2025, when the issue was
first raised. The review application was ultimately brought on 22 April 2026.
This is just short a year later. What does that mean for the application,
considering that there is no time limit within which a review application in terms
of Section 158(1)(h) must be brought ? Obviously, it cannot be said that the
delay is inconsequential and that the DCS can bring the application when it
chooses, as this will in itself infringe on the Constitutional imperative of
legality.
36 However, it must always be borne in mind that there is a reason why
no specific time limit to bring a review application under Section 158(1)(h) has
been prescribed, which reason was explained by the Court in Khumalo
37 as
being the necessity to open the actions and conduct of public functionaries to
ongoing scrutiny and transparency. The Court in Khumalo further explained
the rationale for this approach as follows:
38
‘… the rule of law is a founding value of the Constitution, and that state
functionaries are enjoined to uphold and protect it, inter alia by seeking the
redress of their departments' unlawful decisions. Because of these
fundamental commitments, a court should be slow to allow procedural
36 This was explained in Khumalo ( supra) at para 46 as such: ‘… Section 237 of the Constitution
provides: 'All constitutional obligations must be performed diligently and without delay.' Section 237
acknowledges the significance of timeous compliance with constitutional prescripts. It elevates
expeditious and diligent compliance with constitutional duties to an obligation in itself. The principle is
thus a requirement of legality …’. See also Gqwetha v Transkei Development Corporation Ltd and
Others 2006 (2) SA 603 (SCA)
at para 22 where it was held: ‘ … It is important for the efficient
functioning of public bodies … that a challenge to the validity of their decisions by proceedings for
judicial review should be initiated without undue delay. The rationale for that longstanding rule … is
twofold: First, the failure to bring a review within a reasonable time may cause prejudice to the
respondent. Secondly, and in my view, more importantly, there is a public interest element in the
finality of administrative decisions and the exercise of administrative functions. … ’.
37 Id at para 44.
38 Id at para 45.
24
obstacles to prevent it from looking into a challenge to the lawfulness of an
exercise of public power. But that does not mean that the Constitution has
dispensed with the basic procedural requirement that review proceedings are
to be brought without undue delay or with a court's discretion to overlook a
delay.’
[44] It is unfortunately true that self-review applications by organs of state are often
associated with excessive delays . As a result, and even though a legality
review application does not have a time limit directly linked to it, it has been
consistently held that such delay could serve as a basis to non- suit the
applicant even in such an application. It has also been held that an actual
condonation application is not required, 39 but the issue of the delay must be
assessed in line with certain pertinent principles. This has now become known
as the Khumalo principles, and emanate from the following dictum in Khumalo
supra:40
‘In Gqwetha the majority of the Supreme Court of Appeal held that an
assessment of a plea of undue delay involves examining: (1) whether the
delay is unreasonable or undue (a factual enquiry upon which a value
judgment is made in the light of 'all the relevant circumstances'); and if so (2)
whether the court's discretion should be exercised to overlook the delay and
nevertheless entertain the application.
In terms of the first leg of the enquiry, any explanation offered for the delay is
considered. …. ’41
And as to the exercise of the discretion whether or not to overlook the delay,
the Court in Khumalo held:42
39 See Petersen (supra) at para 10; State Information Technology Agency SOC Ltd v Commission for
Conciliation, Mediation and Arbitration and Others (2019) 40 ILJ 2850 (LC) at paras 7 – 9; MEC for
Economic Development, Environment and Tourism, Limpopo Province v Mogahlane (2019) 40 ILJ 315
(LAC) at para 16.
40 Id at paras 48 – 50.
(LAC) at para 16.
40 Id at paras 48 – 50.
41 The Court was referring to the judgment in Gqwetha (supra) at para 22. See also Buffalo City
Metropolitan Municipality v Asla Construction (Pty) Ltd 2019 (4) SA 331 (CC) at para 48; Associated
Institutions Pension Fund and Others v Van Zyl and Others 2005 (2) SA 302 (SCA) at para 46 – 47;
Special Investigating Unit and Another v Engineered Systems Solutions (Pty) Ltd 2022 (5) SA 416
(SCA at para 28; Mogahlane (supra) at para 17.
42 Id at paras 52 and 57.
25
‘… On this leg of the test, the majority in Gqwetha held that the delay cannot
be evaluated in a vacuum but must be assessed with reference to its potential
to prejudice the affected parties and having regard to the possible
consequences of setting aside the impugned decision. In the context of public
sector employment, the value of security for employees and in mitigating the
arguably inherent inequality of the workplace must be kept in mind. …
An additional consideration in overlooking an unreasonable delay lies in the
nature of the impugned decision. In my view, this requires analysing the
impugned decision within the legal challenge made against it and considering
the merits of that challenge …. ’
[45] The Khumalo principles were specifically dealt with in Buffalo City Metropolitan
Municipality v Asla Construction (Pty) Ltd43 where the Court decided:
‘The approach to undue delay within the context of a legality challenge
necessarily involves the exercise of a broader discretion than that traditionally
applied to section 7 of PAJA. The 180-day bar in PAJA does not play a
pronounced role in the context of legality. Rather, the question is first one of
reasonableness, and then (if the delay is found to be unreasonable) whether
the interests of justice require an overlooking of that unreasonable delay.
The second difference between PAJA and legality review for the purposes of
delay is that when assessing the delay under the principle of legality no
explicit condonation application is required. A court can simply consider the
delay, and then apply the two step Khumalo test to ascertain whether the
delay is undue and, if so, whether it should be overlooked.
The second principle relating to delay under legality is that the first step in the
Khumalo test, the reasonableness of the delay, must be assessed on, among
others, the explanation offered for the delay. Where the delay can be
explained and justified, then it is reasonable, and the merits of the review can
explained and justified, then it is reasonable, and the merits of the review can
be considered. If there is an explanation for the delay, the explanation must
cover the entirety of the delay. But, as was held in Gijima, where there is no
explanation for the delay, the delay will necessarily be unreasonable.’
[46] But the Court in Buffalo City did not stop there. It in essence decided that the
application of the Khumalo principles is not a compartmentalised enquiry.
43 2019 (4) SA 331 (CC) at paras 50 – 52.
26
Rather, it is a holistic determination, involving issues similar to deciding to
condonation applications , namely considering the extent of the delay, the
explanation for it, the prospects of success on the merits, as well as the
prejudice to the parties. The Court explained44:
‘The approach to overlooking a delay in a legality review is flexible. In Tasima
I, Khampepe J made reference to the 'factual, multi -factor, context- sensitive
framework' expounded in Khumalo. This entails a legal evaluation taking into
account a number of factors. The first of these factors is potential prejudice to
affected parties as well as the possible consequences of setting aside the
impugned decision. The potential prejudice to affected parties and the
consequences of declaring conduct unlawful may in certain circumstances be
ameliorated by this court's power to grant a just and equitable remedy and this
ought to be taken into account. The interrelationship between prejudice and
delay was explained by Khampepe J in Tasima I:
'But what is the prejudice suffered by Tasima in overlooking the delay?
Condoning the delay does not prevent them from enforcing the court orders
that have been granted in their favour. In addition, the contract extension itself
has already expired. Setting aside the extension at this point should not,
therefore, impact negatively on Tasima going forward. It is also a factor that
this court may rely on its s 172(1) (b) powers to ameliorate the prejudice
suffered. It bears repeating that Tasima has, in addition, benefitted greatly
from the extension. In my view, the prejudice suffered is minimal, particularly
in comparison to the prejudice to be suffered by the Department and the
Corporation if the counter -application is not condoned. This is consonant with
the dicta in Khumalo that, ''consequences and potential prejudice . . . ought
not in general, favour the court non-suiting an applicant in the face of the
delay''.'
not in general, favour the court non-suiting an applicant in the face of the
delay''.'
[47] This holistic approach has also been applied by the LAC in MEC for Economic
Development, Environment and Tourism, Limpopo Province v Mogahlane45.
The Court in that case in particular considered the issue of the prospects of
44 Id at paras 54 – 55. See also Cape Town City v Aurecon SA (Pty) Ltd 2017 (4) SA 223 (CC) at para
49; New Integrated Credit Solutions (supra) at paras 36 – 38; Valor IT v Premier, North West Province
and Others 2021 (1) SA 42 (SCA) at para 30; City of Johannesburg Metropolitan Municipality and
Others v Independent Municipal and Allied Trade Union and Others (2017) 38 ILJ 2695 (LAC) at paras
55 and 57; Engineered Systems Solutions (supra) at para 30.
45 (2019) 40 ILJ 315 (LAC).
27
success of the review application as an important component to deciding
whether any delay should be overlooked, where the Court said:46
… I am of the view that there is no point in overlooking an undue delay if there
are no prospects of success on the merits. In other words, if there is no merit
in the legal challenge to the impugned decision, no purpose would be served
by overlooking the delay. Significantly, in Khumalo, the Constitutional Court
held:
‘An additional consideration in overlooking an unreasonable delay lies in the
nature of the impugned decision. In my view, this requires analysing the
impugned decision within the legal challenge made against it and considering
the merits of that challenge.’
A second factor relevant to overlooking delay is the nature of the impugned
decision. This, in essence, requires a consideration of the merits of the legal
challenge against that decision. … ’
[48] A last consideration is determining when the calculation of the delay in
question must start. This was answered in B uffalo City supra47 as follows: ‘…
(I)n both assessments the proverbial clock starts running from the date that
the applicant became aware or reasonably ought to have become aware of the
action taken.'
[49] In summary, therefore, w hat must first be considered, where it comes to the
delay occasioned by the DCS in instituting the current revie w application, is
the length of the delay, together with the explanation provided by the D CS for
it. These considerations will determine if the delay is reasonable. If the delay is
reasonable, it can for that reason be overlooked. However, if the delay is
found to be unreasonable, then it must be decided if can still be overlooked,
based on the considerations I have summarized above.
Analysis
[50] As a point of departure, it must be accepted that there is a delay in casu. But
when does that delay start? In my view, that would be when the DCS first
when does that delay start? In my view, that would be when the DCS first
contemplated that there could be something amuck with the settlement
46 Id at para 18.
47 Id at para 49. See also Engineered Systems Solutions (supra) at para 27; New Integrated Credit
Solutions (supra) at para 34.
28
agreement. On the facts, this would be on 12 May 2025. With the review being
brought on 22 April 2026, the delay is just shor t of 12 months . This is
obviously a material delay.
[51] The next step would be to consider what explanation is provided by the DCS
for the delay. This has to some extent already been dealt with under the
hearing of urgency earlier in this judgment. In my view, the explanation can be
divided into two parts, which can perhaps best be described as the first part
which is the acceptable part, and second part which is the unacceptable part.
[52] The first and acceptable part of the explanation involves the period from 12
May 2025 to end January 2026. As I have already touched on, one cannot
turn a blind eye to the manner how organs of state operate. All the noble
imperatives of expeditious action taking aside, a realistic approach is always
necessary. In the private sector, decisions to act can be taken promptly. But in
the public sector not so much. This is because of the highly regulated nature
of the public sector, which regulatory measures are often statutorily
entrenched
48 and need to be adhered to in order to be legal. After all, the very
case at hand is founded on the non- compliance with such a measure. When
taking the decision to approach a Court to litigate , there are inevitably a
number of functionaries involved that have to be consulted, and permissions
obtained. The issues must be properly considered. It will be short sighted not
to appreciate that this may take time, especially considering the criticism that
have emanated from the Court s where litigation has been pursued without
proper consideration.
49 What transpired in this case between May and
November 2025 speak to the ordinary application of these processes . It is not
as if years went by with nothing being done.
[53] To put matters in proper context, it does appear that when the DCS became
[53] To put matters in proper context, it does appear that when the DCS became
aware of the difficulties with the settlement agreement , it did not sit on it, so to
speak. The irregularity was immediately reported to higher authority , with a
request that it be investigated. The mandate to investigate was granted
48 This would include regulations promulgated under empowering statutes.
49 See for example Ntombela and Others v United National Transport Union and Others (2019) 40 ILJ
874 (LC) at para 70; Mashishi v Mdladla NO and Others (2018) 39 ILJ 1607 (LC) at para 14; Ngobeni
v Passenger Rail Agency of SA Corporate Real Estate Solutions and Others (2016) 37 ILJ 1704 (LC)
at para 14; Mokoena v Merafong Municipality and Others (2020) 41 ILJ 234 (LC) at para 36.
29
promptly. What followed was an investigation that lasted less then two months,
which, in the context of the public service, is not an unreasonable period.
Immediately following the outcome of the investigation with showed a prima
facie justification for the complaint, and on 4 July 2025, authority was sought
to obtain a legal opinion. Again, there was no procrastination, and authority
was granted within days. The state attorney was immediately instructed.
Counsel was then briefed and consulted, and documents provided. Counsel’s
opinion was provided on 28 November 2025 to the effect that the review would
have prospects of success on a number of grounds. The time taken for
counsel to provide a proper opinion in my view not unreasonable, having due
regard to all that needed to be considered. The explanation to this point, I
believe, is entirely reasonable, makes sense, and cannot speak to undue
procrastination.
[54] The case in Siyangena Technologies (Pty) Ltd v Passenger Rail Agency of
South Africa and Others 50 is comparable in casu. There the delay was also
explained by PRASA (the state entity in that matter) on the basis that it
needed to first establish the true reasons for the impugned decisions by way of
a comprehensive investigation to be conduc ted. This resulted in a delay of
approximately 10 months. The Court decided as follows in this regard:51
‘The High Court, relying on Buffalo City , exercised its judicial discretion and
granted condonation for the delay of 10 months, taking into account the nature
of the impugned decision; the conduct of PRASA; and prejudice to the public
purse. It said that Siyangena's complaint of prejudice could be ameliorated in
the form of an appropriate remedy. It was not contended in this court that the
High Court exercised its discretion on wrong principles or misdirected itself in
any way. …
I can find no ground to interfere with the High Court's decision to condone the
any way. …
I can find no ground to interfere with the High Court's decision to condone the
delay of 10 months. This period of delay was not unreasonable in the
circumstances. PRASA acted expeditiously once the true reasons for the
impugned decisions came to light. In the context of a litany of breaches of the
procurement system, condonation had to be granted in the interests of justice.
’
50 2023 (2) SA 51 (SCA).
51 Id at para 31 and 33.
30
[55] Then comes the December / January holiday season. Yes, it can be said that
holidays should not be taken, and time should immediately be devoted to the
current matter. But again, this is not realistic. We all know what happens in this
period. The answer is very little. Most persons , and in particular legal
representatives and senior functionaries would be on leave. The Courts are
closed. Idealism aside, it is not unreasonable to accept that in this period, it is
unlikely that anything constructive could have happened where it came to
pursuing the litigation, as it would involve the d rafting and settling of litigation
papers, and deposing thereto, which need the undivided attention of persons.
[56] Thus, and for the first period of delay , I believe the explanation provided is
reasonable. It therefore properly accounts for at least ni ne months of the total
delay of just short of a year.
[57] This brings me to the second and unacceptable period of delay. In this
respect, the DCS does not fair as good. The explanation is principally founded
on a contention that once the holiday season was over, stakeholders needed
to be consulted, proper instructions to legal represe ntatives needed to be
given, papers drawn and commissioned, and a final decision to bring the
proceedings had to be made. The explanation on face value may be
appealing, but it is lacking in sufficient particularity. The mere bald and general
statements to this effect provided by the DCS is insufficient to serve as an
acceptable explanation. Far more particularity as to dates, times and events
relating to these activities needed to be provided. This is exacerbated by the
fact that the founding affidavit was signed on 27 March 2026, however the
notice of motion was only signed on 22 April 2026, which period is entirely
unexplained. In my view, this means that the period from end January 2026 to
22 April 2026 when the application was brought, is in essence not reasonably
22 April 2026 when the application was brought, is in essence not reasonably
and properly explained, and therefore this period of delay can be considered
to be unreasonable.
[58] Because at least part of the delay is unreasonable, it must next be decided
whether this delay should be overlooked. In this respect, and in line with the
principles discussed above, I will have regard to specifically three
considerations. The first is the nature of the impugned decision, and tied with
this would be the prospects of success of the review application. The second
31
is the issue of prejudice. And third, I will consider whether any prejudice can at
least be significantly ameliorated by way of a proper order of consequential
relief should the settlement agreement be set aside.
[59] Where it comes to the nature of the impugned decision as considered with
prospects of success, the judgment in Valor IT v Premier, North West Province
and Others 52 is apposite to the cas e in casu. In that case, the Court
considered a supply and service agreement that had been cancelled by the
Department concerned, because t he head of Department did not have t he
authority to contract. A n application to challenge the cancellation was then
brought by the service provider. The application was considered by a state law
advisor which gave wrong advice that the service provider’s application to
challenge the cancellation should be settled on terms favourable to the service
provider because of a lack of prospects of success to defend it. Based on this
advice, the Department then concluded a settlement agreement that was
made a court order. 53 The Court acknowledged that in these circumstances:54
‘… Once the matter had been settled, the provincial government had little
choice but to comply with the order to which it had agreed. It was only when it
obtained independent legal advice that it found out that the state law advisor's
advice had been wrong, and that it should cancel the agreement again. In due
course, the counter -application was brought to set aside the SDA and
everything that followed it. This accounts for the period between the first
cancellation and the second cancellation’. In the context of these facts, the
Court decided:
55
‘One of the factors that must be considered whenever condonation is sought is
the applicant's prospects of success on the merits. It must be borne in mind
that the grant or refusal of condonation is not a mechanical process but one
that involves the balancing of often competing factors. So, for instance, very
that involves the balancing of often competing factors. So, for instance, very
weak prospects of success may not offset a full, complete and satisfactory
explanation for a delay; while strong prospects of success may excuse an
inadequate explanation for the delay (to a point).
52 2021 (1) SA 42 (SCA).
53 See paras 35 – 36.
54 Id at para 37.
55 Id at paras 38 – 39.
32
As I shall demonstrate in the following paragraphs, the provincial
government's prospects of success on the merits are strong: the scheme in
terms of which VIT purported to provide services, and for which it was
handsomely remunerated, was unlawful from start to finish. As a result, even if
it were to be found that the explanation for the provincial government's delay
was wanting, the interests of justice, in the light of its strong prospects of
success, require condonation to be granted.
[60] The comparisons between Valor IT and the case in casu are immediately
apparent. In the current mater, the employees have been dismissed for
misconduct relating to dishonesty following a comprehensive internal
investigation and proper disciplinary and appeal proceedings , and the case
was being defended on the merits by the DCS at arbitration. When the mat ter
was entrusted to a new functionary (Mtshweni) that had not been involved in
the matter before, and who did not consult any of the involved persons, that
functionary advised that prospects of success were poor and the matter
should be settled. It was then settled on most favourable terms for the
employees, involving nothing less than a complete capitulation. When this
settlement came to the attention of responsible functionaries and in particular
the investigator who had first investigated the matter, it was immediately
pointed out that the advice that prospects of success to defend the dismissal
was poor, was wrong and motivation was provided why this contention was
made. Later advi ce revealed the further anomaly that the terms of the
delegated authority were not adhered to in concluding the settlement
agreement (this is dealt with later in this judgment ). All said, the settlement
agreement was unlawful from start to finish, as the basis for concluding it was
founded on wrong advice and the agreement was not even properly
authorised. The interest of justice requires that the delay be overlooked.
authorised. The interest of justice requires that the delay be overlooked.
[61] On the merits of the review per se, there can be no doubt that if the settlement
agreement was unlawfully concluded, the review application must succeed
and the settlement agreement must be set aside. In this respect, there are two
considerations. First, there is the issue of non- compliance with Delegation
102. And second, there is the wrongful and irregular manner in which the
settlement agreement was recommended and came about.
33
[62] I will start with Delegation 102. Its terms are clear. It places a specific condition
for d elegation to any functionary to conclude a settlement agreement in an
employment dispute under the LRA, that Finance must first be consulted. The
motivation for this kind of provision is in my view obvious, being that these
kinds of settlement agreements would more often than not have material
financial implication s. The case in casu is no different. Without even
considering the prospective monthly salary payments paid to the employees
after the date of reinstatement, the back pay portion alone, as agreed to in the
settlement agreement for the three employees , exceeded R1 million. It thus
makes sense that F inance must first be consulted on the terms of any
proposed settlement, to confirm that it is financially viable and provided for ,
considering that s tate organs like the D CS operate under budget constraints ,
and must account for spending of public funds.
[63] The whole issue about F inance being consulted was a bone of contention
between the parties, and will be specifically dealt with later in this judgment.
Suffice it say at this point, it is my view that it is effectively undisputed that
Finance was not consulted prior to the conclusion of the settlement
agreement. POPCRU and the employees countered this by saying that
Finance must have been consulted after the agreement was concluded, and
that it did not matter that Finance was not consulted beforehand, as Finance
would likely have nothing to say about it and would likely have approved the
settlement or at least not objected to it. But this is simply not the point. It does
not matter what F inance may or may not have done, if it was consulted. It
remains indispensable that it must first be consulted. To ascribe to this kind of
argument propagated by POPCRU and the employees would mean that such
condition for delegation would be entirely negated, because all that needs to
condition for delegation would be entirely negated, because all that needs to
be done as a later stage is for anyone to say that it does not matter, because
Finance would have been all right with it. What is then the purpose of prior
consultation being specifically required? The simple point is that the settlement
has direct adverse financial implications , in that it is coupled substantial
financial and institutional consequences . As such prior consultation with
Finance, before the settlement is concluded, is essential , as part of the
mandatory safeguards regulating the commitment of public funds.
34
[64] Thus, Delegation 102 is the regulatory framework in terms of which Mtshweni
would be empowered to concl ude the settlement agreement. If it is violated,
then Mtshweni and / or Mkhize (as final approver) would have had no authority
to conclude the settlement agreement . And that must render the settlement
agreement unlawful.
[65] How does POPCRU and the employees then answer this? In my view, they
seek to put up what is nothing else but an unsubstantiated and speculative
factual smoke screen. In reality, they cannot dipsute that Finance was not
consulted beforehand. The National Commissioner of the DCS has pertinently
said in his founding affidavit that Finance was not consulted. What POPCRU
and the employees say is that multiple functionaries have a role to play in
giving effect to the settlement agreement, including HR , who had to prepare
their own memoranda to support the implementation of the settlement
agreement to ensure matter was approved on the correct level . It is further
stated that Finance must have considered such a memorandum fr om HR, and
Finance itself had to prepare its own memoranda to support the
implementation of the settlement agreement to ensure it was approved on the
correct level. Based on these references to what must have happened,
POPCRU and the employees complain that these memoranda were not
discovered by the DCS in this case, and some kind of inference should be
drawn from this failure in favour of a conclusion that proper approvals must
have been granted. The contention raised in this context, in short, is that the
DCS must have consulted with F inance and obtained their view about the
relevant budget constraints, fiscal accountability, and statutory obligations , in
order to implement the settlement agreement , meaning Finance was aware of
the agreement and must have ratified it.
[66] It is clear that on the facts, the entire case advanced by POPCRU and the
[66] It is clear that on the facts, the entire case advanced by POPCRU and the
employees in this regard is founded on supposition and speculation. There
was actually no direct or even proper evidence to contradict the p ertinent
contention by the National Commissioner that Finance was not consulted. This
affirmation was repeated in the replying affidavit. And in any event, why would
Finance be consulted about something that was already a fait accompli, had
been actually made an arbitration award, and where compliance was
mandatory, no matter what , unless it was lawfully set aside. I am convinced
35
that what happened, after the settlement agreement was concluded, was a
situation of what can be described as mechanical implementation without
consultation and decision making involved.
[67] But more importantly, even taking the contention by POPCRU and the
employees as it is pleaded, it misses a fundamental point. On their own
version, Finance was consulted after the fact. That does not assist their cause,
nor is it an answer to clear requirements and purpose of D elegation 102. For
the reasons already dealt with above, it is essential that F inance is consulted
before the agreement is concluded. If it was not, then Mtsweni had no
authority to conclude the settlement agreement. And as such, it is unlawful. In
Manana v King Sabata Dalindyebo Local Municipality 56 the LAC was seized
with a case where the municipality failed to honour its obligations in terms of a
settlement agreement, and the employee party then sought to enforce the
settlement agreement in the Labour Court. The employee contended that the
director: corporate services of the municipality was either properly authorised
or professed to have been properly authorised to settle the dispute on behalf
of the municipality. The municipality disputed such contended authority to
settle and contended the settlement agreement was invalid. The LAC said
that:57 ‘… It is well accepted that whenever the principle of legality is
implicated, an agent who seeks to act on behalf of the organ of state,
pertinently a local government, must be specifically authorised …’. That Court
then concluded:
58
‘The peremptory provisions of s 59 regulate the delegation of authority and
have established the boundaries beyond which the municipality may not
venture. The system of delegation of authority in a local government is not
gratuitous. Still, it ensures that appropriate checks and balances are in place
to prevent abuse of power and to ensure that decisions are made within the
to prevent abuse of power and to ensure that decisions are made within the
bounds of the law. Mr Nodo’s conduct in concluding the settlement agreement
on behalf of the municipality is at variance with the injunctions of s 59. It is
therefore apparent that the invocation of ostensible authority is untenable, as
what Mr Manana seeks, if granted, would amount to sanctioning illegality
.’
56 (2025) 46 ILJ 1899 (LAC).
57 Id at para 15.
58 Id at para 16.
36
[68] The point can be further illustrated by the judgment in National Education
Health and Allied Workers Union v Minister of Public Service and
Administration and Others; SA Democratic Teachers Union and Others v
Minister of Public Service and Administration and Others; Public Servants
Association and Others v Minister of Public Service and Administration and
Others; National Union of Public Service and Allied Workers and Others v
Minister of Public Service and Administration Others
59 (Minister of Public
Service judgment). That case concerned the issue of a challenge to increases
afforded to employees pursuant a sectoral collective agreement, based on the
fact that the collective agreement was unlawfully concluded for want of
compliance with the empowering regulatory provisions. The Court held that: 60
‘… In deciding whether there has been compliance with the statutory
injunction, what is important is the object sought to be achieved by the
injunction and whether this object has indeed been achieved. The central
element is to link the question of compliance to the purpose of the provision
…’.
61 The Court, having so held, decided as follows:62
‘Regulations 78 and 79 were promulgated by the Minister of Public Service &
Administration under s 41 of the Public Service Act, and must be read and
interpreted in conjunction with it. Under regulation 78(2) the minister may enter
into a collective agreement only if the fiscal requirements contained in
regulation 79 are met. In terms of regulation 78(3), the minister is authorised
to negotiate a collective agreement on behalf of the State, as the employer, in
the PSCBC. Regulation 79(c), in turn, authorises the minister to enter into a
collective agreement with financial implications only if the minister concerned
can cover the costs of the collective agreement from his or her departmental
budget, or on the basis of a written commitment from Treasury to provide
additional funds, or, if the costs can be covered from funds from other
additional funds, or, if the costs can be covered from funds from other
departments or agencies, with their written consent coupled with Treasury
approval.
These are conditions precedent to the minister’s exercise of the power to
negotiate and conclude collective agreements on behalf of the State … ’
59 (2022) 43 ILJ 1032 (CC).
60 Ad at para 72.
61 The Court in Minister of Public Service (supra) at para 73 also said that: ‘… It is also a fundamental
principle of our law that an actor must be legally empowered to perform any act in question and that
public power may only be exercised by a lawfully constituted authority …’.
62 Id at paras 85 – 86.
37
The Court then concluded:63
‘The end result is that the State’s failure, in its capacity as the employer, to
comply with the requirements of regulations 78 and 79 renders the resultant
collective agreement entered into between the parties under the LRA invalid
and unlawful. To hold otherwise would amount to validating the mischief the
relevant constitutional provisions and regulations seek to prevent.’
[69] The judgment in Minister of Public Service also has another nuance applicable
to this case. In that case, there was a two years’ delay in bring ing the
application, and this delay was effectively unexplained. The Court needed to
consider whether should non- suit the challenge per se. 64 The Court then,
considering the nature of the case relied on by the State , reasoned as
follows:65
‘… According to the State, the material change of circumstances, and the
applicants’ negative attitude towards re-negotiation and revision of clause 3.3,
rendered the enforcement of the collective agreement practically impossible.
Taking into account the fact that the conclusion of the collective agreement in
question was from the outset in breach of the provisions and the Constitution,
it ought not to have been implemented at all. Given the circumstances
preventing compliance with clause 3.3, the inevitable conclusion is that the
Labour Appeal Court rightly condoned the delay by the State to challenge the
legality of the impugned collective agreement. Regard being had to that
court’s treatment of the dispute between the parties, I am satisfied that all the
factors for and against the condonation of the delay were properly considered.
…
’
[70] Again, the comparisons to the case in casu are clear. The purpose of
Delegation 102 is to ensure proper fiscal oversight before settlement
agreements are concluded. Fiscal oversight is an essential competent to
63 Id at para 89.
64 At para 93, the Court in Minister of Public Service identified the issue as follows: ‘The long-standing
rule is that legality reviews must be initiated without undue delay and that the courts have the
discretion to refuse a review application because of the delay or to overlook the delay. As this court
has held on several occasions, undue delay should not be tolerated as it brings about various
difficulties ranging from prejudice to the other party, weakening a court’s ability to consider the merits
of a review and undermining the public’s interest in certainty and finality. It is common cause that the
State challenged the validity of the impugned collective agreement after two years of its conclusion
when it had performed its obligations in terms clauses 3.1 and 3.2 of the collective agreement … ’.
65 Id at para 104.
38
incurring State expenditure by way of settlement agreements. The failure to
comply with it must render a settlement agreement unlawful , and to speculate
what may have happened if Finance was consulted, or that Finance may have
been consulted after the fact, is irrelevant. The enquiry stops with the fact that
Finance was not consulted beforehand. And added this, instances such as
these strongly motivate the overlooking of any delay , with the delay in casu
being far shorter than the delay in Minister of Public Service.
[71] POPRCU and the employees argue that by implementing the settlement
agreement and paying the employees their back pay , the DCS had ‘ ratified’
the agreement. They plead that : ‘if the applicant were serious about the
invalidity of the settlement agreement, it had ample time to put a stop to the
payments made to us. Instead, however, the applicant processed the
payments to us on the Persal system in accordance with the settlement
agreement. It therefore follows that the applicant ratified (at least by its
conduct, if not explicitly) any procedural or other defects in the settlement
agreement by processing the payments to us in accordance with the
settlement agreement … ’.
[72] So, the case of ratification is not based on F inance after the fact considering
and then approving the settlement agreement . It is based solely on the
conduct of the DCS in complying with the back pay portion of the agreement
and making payment to the employees . However, ratification by conduct
where the original agreement was unlawfully concluded at the outset, is not
permissible. As the Court in Santam Insurance Ltd v Booi
66 made clear: ‘…
the contention does not accord with the settled principle of our law that a
purported juristic act which is a nullity cannot be ratified. Further, the criticism
levelled by Kerr (op cit at 100, footnote 215) is valid and should be heeded. If
an act performed by a person with no capacity were to be accorded
an act performed by a person with no capacity were to be accorded
provisional validity pending ratification or not, the 'opposing' party will be in an
impossible position. He can neither treat the act as a nullity nor, prior to the
appointment of a curator, terminate the 'relationship' by way of notice to the
incapacitated person …’.
66 1995 (3) SA 301 (A) at 302I-303A. See also Kruger v President of Republic of South Africa and
Others
2009 (1) SA 417 (CC) at para 64; Earthlife Africa and Another v Minister of Energy and Others
2017 (5) SA 227 (WCC) at paras 69 – 70.
39
[73] Some examples illustrate the point. In the context of a resolution signed on
behalf of a company to appoint an attorney where the board was not properly
constituted, the Court in Naude NO and another v Louis Pasteur Medical
Investments Ltd and O thers
67 accepted that the resolution was a nullity, and
held that: ‘… The resolution taken on 11 August 2022 is a nullity. A nullity
cannot be ratified …’, and the Court then concluded that the appointment of
the attorney was not lawful , despite a later attempt to r atify it . Further, the
following dictum in Democratic Alliance v Minister of International Relations
and Cooperation and Others68 is pertinent:
‘Put differently, given that the national executive has sought parliamentary
approval for the notice of withdrawal and the repeal of the Implementation Act,
has this question not become academic? It is not, for two reasons — one
constitutional and another practical. Constitutionally, an important
constitutional principle of doctrine of separation of powers is implicated.
Because the national executive had purported to exercise power it
constitutionally does not have, its conduct is invalid and has no effect in
law. Whatever Parliament does about the subsequent request to it by the
national executive to approve the notice of withdrawal would not cure its
invalidity. As Hoexter states, '(a)n invalid act, being a nullity, cannot be ratified,
validated or amended
'.
[74] One last issue on the notion of ratification on the basis of the conduct of the
DCS relied on by POPCRU and the employees remains to be considered. It
must be remembered that as matters stood in 2025, as a fact, there existed a
settlement agreement that was made an arbitration award and the DCS was
compelled to comply with it, without more. As such, it was always susceptible
to enforcement. Where it came to the monetary potion of the agreement, it
was enforceable through execution by the Sheriff. Whilst this reality exist ed,
was enforceable through execution by the Sheriff. Whilst this reality exist ed,
and before the settlement agreement is actually set aside, the DCS is
compelled to make payment in terms thereof and in reality, had no other
choice. Should it simply have unilaterally decided not to comply because of the
advice received that the agreement was invalid, that would be impermissible
67 2022 JDR 3253 (GP) at paras 12 – 13. See also Stellenbosch Ratepayers' Association v
Stellenbosch Municipality 2009 JDR 1227 (WCC) at para 9.
68 2017 (3) SA 212 (GP) at para 59.
40
self-help.69 In Manana v King Sabata Dalindyebo Municipality 70, which is a
different judgment to the one quoted earlier in this judgment, the SCA in this
instance dealt with resolution adopted by a Municipal Council, and accepted
that it was not open to officials , even if they have a well- founded belief that it
was invalid, to not apply it. The Court reasoned:71
‘… it seems to me that it would be conducive to disorderly public
administration if officials were entitled to choose between executing or not
executing a duly adopted resolution of the council depending upon their belief
as to its validity - whether or not the belief is well -founded. In the absence of
authority to that effect, or a principled explanation for why that should be so,
neither of which is before us, I think the submission must be rejected. A
municipal council acts through its resolutions. No doubt a municipal council is
entitled to rescind or alter its resolutions. And no doubt an interested party is
entitled to challenge its validity on review. But once a resolution is adopted in
my view its officials are bound to execute it, whatever view they might have on
the merit of the resolution, in law or otherwise, until such time as it is either
rescinded or set aside on review.
’
[75] Consequently, the settlement agreement, which was concluded without proper
compliance with Delegation 102, was unlawfully concluded and as such must
be set aside.
[76] Further, I must say that I also find merit in the second complaint of
unlawfulness raised by the DCS. The facts in this regard are undeniable . It
was not as if the employees were arbitrarily dismissed without proper cause.
There was a substantial investigation beforehand, with a comprehensive
investigation report , and it is clear to me that some effort went into it. It is
based on this report that proper consideration was had to whether the
69 As explained in MEC for Health, Eastern Cape and Another V Kirland Investments (Pty) Ltd t/a Eye
and Lazer Institute 2014 (3) SA 481 (CC) at para 89: ‘… the department's argument entails that
administrators can, without recourse to legal proceedings, disregard administrative actions by their
peers, subordinates or superiors if they consider them mistaken. This is a licence to self-help. It invites
officials to take the law into their own hands by ignoring administrative conduct they consider incorrect.
That would spawn confusion and conflict, to the detriment of the administration and the public. And it
would undermine the courts' supervision of the administration …’. See also Public Servants
Association obo Ubogu v Head, Department of Health, Gauteng and Others 2018 (2) SA 365 (CC) at
paras 66 – 67; Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC) at
para 11.
70 (2011) 32 ILJ 581 (SCA) at para 21.
71 Id at para 22. See also Valor IT (supra) at para 43; SA Municipal Workers Union on Behalf of
Mosoma v Greater Tubatse Local Municipality (2021) 42 ILJ 1047 (LAC) at para 35.
41
employees should be disciplined. A proper disciplinary hearing was convened
in line with all prescripts , in which the misconduct charges against the
employees were fully ventilated. This appears to have taken place over a
number of days. In a comprehensive written finding, an independent
chairperson, after considering all the evidence, decided to recommend the
dismissal of the employees. And this was followed by a proper internal appeal.
For the DCS to, after all this effort, expense and time spent on these cases,
then simply at arbitration come and effectively abandon everything to the
extent that it can be said the employees were never even disciplined, makes
no sense to me. In fact, and considering what the cases were all about and the
effort put into it, such a scenario, if properly considered, would be highly
unlikely, not only on the facts , but because it will be colossal waste of
resources and expenses.
[77] So how did the settlement come about? It appears that it was as a result of
unfortunate unforeseen intervening circumstances and wrong advice. Setlhodi
was attending to the matter throughout, but re signed. This brought Mtsweni
into the picture, who was not involved in the case at all and had no knowledge
of its merits. On the facts, he never consulted with the investigator or any of
the parties in the matter before venturing an opinion that defending the cases
of the employees had no prospects of success. Considering the evidence
provided as part of the founding affidavit, I must confess that have difficulty in
understanding how Mtshweni could say there are no prospects of success in
establishing that the employees committed the misconduct and were properly
and fairly disciplined and dismissed. I must reiterate that I make no finding on
the merits of the dismissal disputes , and I refer to it purely in the context of
illustrating that the advice by Mtshweni to recommend settlement of the case
was wrong.
illustrating that the advice by Mtshweni to recommend settlement of the case
was wrong.
[78] It is true that as an annexure to the answering affidavit, Mts hweni deposed to
an affidavit to explain his conduct. He confirms he ‘inherited’ the cases and
studied the investigation report to conduct what he calls an ‘ independent
assessment’. It is however clear that he did not consult any of the investigators
or the persons actually involved in the matter (such as witnesses) about these
views. His views are solely founded on his own reading of the investigation
report, even on his own version. He does say he applied his own mind to the
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facts when deciding to recommend a settlement. But what is apparent from
this affidavit is that the recommendation by Mts hweni was the sole causa for
the decision being made to settle the dispute. He decided the merits of the
case on his own, off the investigation report, as if he was some kind of
arbitrator or reviewing authority . But to me, it is apparent that the advice
provided by Mts hweni was not rational nor reasonable, considering all the
facts contained in the substantial documentary evidence he had available to
him, coupled with the fact that he did not consult with anyone to actually bring
him up to speed on the case. Was it not for this wrong advice by Mtshweni, the
settlement agreement would never have been concluded. 72 The
circumstances giving rise to the settlement agreement thus constitutes an
irregularity.
[79] What makes all of this even worse, in my view, is that the settlement
agreement is not a compromise designed to avoid the costs and possible risks
in arbitration proceedings. Ordinarily , settlement agreements in employment
disputes involve some sort of give and take. But what happened with the
settlement agreement in this case was an out -and-out capitulation. Again,
considering all that had gone before, this is in my view inexplicable.
[80] Therefore, I am convinced that the settlement agreement ca me about in an
unlawful and irregular manner. It came about solely on the basis of advice
given by Mtshweni, which was wrong and improperly provided. As such, it is
irrational and unreasonable, and violated the principle of legally. For this
reason as well the settlement agreement falls to be set aside.
[81] POPCRU and the employees have a last arrow in their quiver. They have
contended that because the settlement agreement has be en made an
arbitration award under section 142A of the LRA, it stands beyond
contestation. I do not agree with this proposition. Making a settlement
contestation. I do not agree with this proposition. Making a settlement
agreement an arbitr ation award does not turn it into something like a Court
order which must be adhered to unless it is per se specifically challenged. In
terms of section 142A(1), a settlement agreement can be made an arbitration
72 I may mention that it is apparent from an annexure to the answering affidavit that Mts hweni is being
investigated by the DCS for his conduct in this case.
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on the basis of either one of two grounds. 73 The first is where the parties have
agreed that it be made an arbitration award. The second ground applies where
there is no agreement between the parties, in which case application must be
made to the GPSSBC to make it an arbitration award. The current case is one
where it was agreed between the parties that the GPSSBC would make the
settlement agreement an arbitration award. In such an instance, no discretion
is exercised and the GPSSBC will have n o regard to the merits of the matter
and in particular whether the agreement is valid or invalid. Further, the
purpose behind making a settlement agreement an arbitration award under
section 142A is to facilitate execution thereof. It enables the bene ficiary under
the settlement agreement to invoke all the enforcement provisions under the
LRA, such as execution by the Sheriff or contempt proceedings. It does not
seek to elevate the settlement agreement to a level that makes it unassailable
in the normal course, even where its validly is challenged.
[82] All said, I am convinced that section 142A of the LRA cannot come to the aid
of POPCRU or the employees. It cannot serve as a buffer against challenging
the lawfulness of the settlement agreement, and that it can be set aside
because it was unlawfully concluded in the first place. Once the settlement
agreement is set aside, the basis for any determination under section 142A
falls away along with it. This is because section 142A was applied on the basis
of an agreement between the parties that it be applied, as contained in the
impugned settlement agreement itself. Or differently put, if there is no
settlement agreement in the first place, there can be no agreement to serve as
the basis to make it an arbitration award under section 142A(1).
[83] I will also consider the issue of prejudice. If the settlement agreement is not
set aside there will be the continued unlawful and irregular expenditure of
set aside there will be the continued unlawful and irregular expenditure of
public funds. The DCS would be compelled to continue to comply with the
settlement which remains open to execution by virtue of section 142A of the
LRA. As held in New Integrated Credit Solutions supra:
74 ‘… As to prejudice,
there is of course prejudice to the public purse when remuneration is agreed
without regard to efficiencies and costs savings and when it is open- ended
73 Section 142A(1) reads: ‘The Commission may, by agreement between the parties or on application
by a party, make any settlement agreement in respect of any dispute that has been referred to the
Commission, an arbitration award’.
74 Id at para 57.
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and there are no means of measuring effort against results …. ’ And lastly,
prejudice to the employees can be adequately ameliorated by way of just and
equitable consequential relief, which I will deal with in the conclusion to this
judgment.
Conclusion
[84] Therefore, and based on all the reasons set out above, I conclude that the
DCS’s application to review and set aside the settlement agreement of 27
March 2025 must succeed. It is relief competently and properly sought under
section 158(1)(h) of the LRA , based on the principle of legality. Where it
comes to the delay occasioned by the DCS in bringing the application , that
delay must be overlooked, on the basis that a reasonable explanation has
been provided for the bulk of the delay, and where it comes to the remainder
of the delay, the considerations of the nature of the di spute, the clear
prospects of success on review and considerations of prejudice justify that
delay being overlooked.
[85] On the substance of the review, I am satisfied that the settlement agreement
was unlawfully concluded, on the basis that Delegation 102 was not complied
with, in that the Finance department of the DCS was not consulted prior to the
conclusion of the agreement, as specifically prescribed by such delegation.
There is a specific purpose for prior consultation with Finance, which means it
simply cannot be ratified or remedied after the fact. Thus, the conclusion of the
settlement agreement without such prior consultation is unlawful. I am also
satisfied that considering the circumstances giving rise to seeking the mandate
and then approving to settle, this was sought and approved on the basis of
clearly wrong advice, and in an irrational and unreasonable manner, which
equally violated the principle of legality. Without this wrong advice and
unjustified basis in seeking settlement, the settlement agreement would not
have been concluded. The settlement agreement thus falls to be reviewed and
set aside.
have been concluded. The settlement agreement thus falls to be reviewed and
set aside.
[86] The consideration of prejudice equally favours the DCS. It will suffer
continuous financial harm, whilst this matter remains undetermined. It is
tantamount to being required continuously to incur irregular expenditure, which
45
must be prevented. Further, it is likely that the DCS will have difficulty in
recovering what has been paid to the employees fr om them, considering the
sums involved, and this risk cannot be allowed to perpetuate.
[87] But importantly in this case, the employees are not left without remedy or
further recourse. They had pursued an unfair dismissal dispute to the
GPSSBC, and the settlement agreement was concluded in the context of
those proceedings. It must follow, in my view, that if the settlement agreement
is set aside, the status quo ante must be res tored, and the employees can
then proceed to request the GPSSBC to reconvene the arbitration. If they are
successful in that arbitration, they could still get full redress, which would
include reinstatement. It is no w trite that the Court have wide powers to grant
any suitable consequential relief in the instance where a decision is set aside
based on the principle of legality.75 As opined in State Information Technology
Agency SOC Ltd v Gijima Holdings (Pty) Ltd 76: ‘… U nder section 172(1)(b) of
the Constitution, a court deciding a constitutional matter has a wide remedial
power. It is empowered to make "any order that is just and equitable". So wide
is that power that it is bounded only by considerations of justice and equity.
…’. Exercising that wide power in this instance leaves me compelled to direct,
in addition to setting aside the settlement agreement, that the unfair dismissal
dispute of the employees be remitted back to the GPSSBC for arbitration on
the merits.
[88] All said, it is in the interest of justice and in accordance with the principle of
legality that the settlement agreement be set aside, and the unfair dismissal
dipsute of the employees be remitted back to the GPSSBC for arbitration on
the merits.
[89] The DCS has asked for an order, in terms of a proposed draft order, that I
direct that all payments made by the DCS to the employees to date ‘stand
direct that all payments made by the DCS to the employees to date ‘stand
over’ pending the final determination of the unfair dismissal disputes. I see no
need to make such an order. It is up to the DCS to take whatever means it
considers prudent to recover the same, should it ultimately be successful.
75 New Integrated Credit Solutions (supra) at para 57; Special Investigating Unit v Phomella Property
Investments (Pty) Ltd and Another 2023 (5) SA 601 (SCA) at para 9 ; Johannesburg Social Housing
Company Ltd v Quickprop Systems (Pty) Ltd and Others 2025 JDR 3351 (GJ) at para 46.
76 2018 (2) SA 23 (CC) at para 53.
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There is no need for this Court to become involved in this at this juncture. And
if the DCS is not successful, then obviously what had already been paid by the
DCS to the employees would be considered by the arbitrator when
consequential relief is decided by him or her. This should be left up to the
arbitrator to determine.
Costs
[90] This then only leaves the issue of costs. In terms of the provisions of section
162(1) of the LRA, I have a wide discretion where it comes to the issue of
costs. Whilst the DCS was successful, I do not believe that the POPCRU and
the employees acted unreasonably in opposing the application, and they
certainly at least had an arguable case. Further, what is at stake in this case is
a self-review, where the DCS is asking this Court to assist with remedying its
own failures. Succeeding in such a venture should not attract the benefit of a
costs order in the circumstances of this case , where the employees were in
reality fortunate bystanders. I also consider that there is obviously still some
litigation between the parties to follow, and I do not believe it is fair to mulch
any party with a costs order in such ongoing proceedings. Finally, I am guided
by the judgment in Zungu v Premier of the Province of Kwa- Zulu Natal and
Others
77 where it comes to the issue of costs in employment disputes in this
Court, making a costs order in this case inappropriate. Exercising the wide
discretion I have, I believe that this is a case where no costs order would be
appropriate and fair.
[91] For all the reasons as set out above in this judgment , I make the following
order:
Order
1. The application is heard as one of urgency in terms of Rule 38.
2. The applicant’s application in terms of section 158(1)(h) of the LRA is
granted.
77 (2018) 39 ILJ 523 (CC) at para 25. See also Union for Police Security and Corrections Organisation
v SA Custodial Management (Pty) Ltd and Others (2021) 42 ILJ 2371 (CC) at para 35.
47
3. The settlement agreement concluded between the applicant and the
first, second and third respondents , dated 27 March 2025, and
concluded under the auspices of the fi fth respondent under case
numbers GPBC530/2024, GPBC554/2024; and GPBC555/2024, is set
aside.
4. Consequentially, the arbitration award made in terms of section 142A(1)
of the LRA by agreement between the applicant and the first, second
and third respondents, whereby the settlement agreement referred to in
paragraph 3 of this order was made an arbitration award under the
auspices of the fifth respondent, is set aside.
5. The unfair dismissal disputes pursued by the first, second and third
respondents under case numbers GPBC 530 / 2024, GPBC 554 / 2024
and GPBC 555 / 2024, are remitted to the fifth respondent for arbitration
of such disputes on the merits thereof before an arbitrator appointed by
the fifth respondent.
6. The fifth respondent is directed to enrol the unfair dismissal disputes of
the first, second and third respondents for arbitration on an expedited
basis.
7. There is no order as to costs.
_____________________
SNYMAN AJ
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Advocate S Bismilla
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Instructed by: The State Attorney (Pretoria)
For the First to
Fourth Respondents: Advocate J Basson
Instructed by: Ngada Attorneys Inc