IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case No: 2026-154789
and 2026-154790
In the matter between:
POLICE AND PRISONS CIVIL RIGHTS UNION First Applicant
INDIVIDUALS WHOSE NAMES ARE LISTED Second to Further
IN ANNEXURE ‘A’ TO THE NOTICE OF MOTION Applicants
and
DEPARTMENT OF CORRECTIONAL SERVICES First Respondent
NATIONAL COMMISSIONER OF
CORRECTIONAL SERVICES Second Respondent
MAKGOTHI SAMUEL THOBAKGALE Third Respondent
MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES Fourth Respondent
BLOEMFONTEIN CORRECTIONAL
CONTRACTS (PTY) LTD Fifth Respondent
G4S CORRECTION SERVICE
(BLOEMFONTEIN) (RF) (PTY) LTD Sixth Respondent
(1) Reportable: No
(2) Of interest to other Judges: No
Signature Date
2
Heard: 9 July 2026
Delivered: This judgment was handed down electronically by circulation to the
parties and / or their legal representatives by email. The date and time
for handing-down is deemed 15h00 on 28 July 2026.
JUDGMENT
ALLEN-YAMAN J
Introduction
[1] Albeit that the applicants initiated two separate applications, the Notice of
Motion in the second made it clear that the relief sought therein was in the
alternative to the first,
‘TAKE FURTHER NOTICE THAT this application is in terms of section 18(3) of the
Superior Courts Act 10 of 2013 and is in the alternative to the contempt of Court
application that has already been launched by the applicants.’
[2] The first application ( ‘the contempt application’) was launched under 2026-
154789, the orders sought in the Notice of Motion which was uploaded to
CaseLines having been the following,
‘1. The Second Respondent, the National Commissioner of the Department of
Correctional Services: Makgothi Samuel Thobakgale is guilty of contempt of
Court for failing to comply with the order of this Court dated 30 April 2026.
2. That Makgothi Samuel Thobakgale, be incarcerated for such period as the
Court deems appropriate or for Makgothi Samuel Thobakgale to be fined an
amount this Court deems appropriate.
3. That service of the application and this order be effected personally on the
Second and Third Respondents.
3
4. That service of this order must be effected on the State Attorney.
5. That the First Respondent forthwith complies with the Court order dated 30
April 2026.
6. That the First to Third Respondents jointly and severally shall pay the costs of
this application on an Attorney and client scale. In this regard, the Third
respondent in his personal capacity must pay 50% percent [sic] of the costs.
7. That the applicants be granted such further or alternative relief as the Court
may deem appropriate.’
[3] The applicants’ representative, Mr Mofokeng, was requested to explain how the
application had come to be on the urgent roll in the absence of an order sought
to this effect. Having taken instructions, it was explained that an erroneous
Notice of Motion had been uploaded to CaseLines , and that the correct Notice
of Motion appeared as an annexure to the applicants’ service affidavit, which
included as the first of the orders sought an order that the application be dealt
with as an urgent application under Rule 38.
[4] In the second, alternative application ( ‘the s18(3) application’) the applicants
sought the following orders,
‘1. The Rules relating to the forms, service and time periods are dispensed with
and this application is heard on an urgent basis in terms of Rule 38 of the
Labour Court.
2. The automatic suspension of the order granted by Justice Gandidze on 30
April 2026 is uplifted in terms of section 18(3) of the Superior Courts Act 10 of
2013, pending finalization of the first respondent’s application for leave to
appeal or the appeal.
3. The order granted by Justice Gandidze on 30 April 2026 is operational
forthwith and the applicants are permitted to execute on the order.
4. The first respondent shall pay the costs of this application on an attorney and
client scale.’
[5] The contempt application was opposed by the first to fourth respondents, whilst
the s18(3) application was opposed by the first and second respondents, who
were common to both applications.
4
[6] Despite the fact that the applicant approached this court with two, separate
applications, and no order of consolidation was sought or granted, in view of
the fact that they both relate to the same facts and the second was to be
determined in the alternative only in the event that the first was unsuccessful,
the parties were in agreement that it would be appropriate for this court to
deliver a single judgment in relation to both.
Background
[7] The events which led to the present applications were fully canvassed in both
the judgments of Gandidze J of 5 May 2026 under case number 2026- 065612
and Snyman AJ of 30 June 2026 under 2026-124618, and will not be repeated
in any detail herein.
[8] In anticipation of the termination of sub- contract in terms of which the sixth
respondent in the contempt application and the fourth respondent in the s18(3)
application (‘G4S’) was to render certain services to the first respondent at the
Mangaung Correctional Services on 30 June 2026, G4S applied to this court for
a declaratory order that s197 of the LRA found application, and that, in the
result its employees were to be transferred to the first respondent upon the
termination of the sub- contract. This cour t was in agreement and ordered
accordingly on 30 April 2026, the court’s reasons having been provided
thereafter on 5 May 2026.
[9] The first respondent initiated an application for leave to appeal on 21 May
2026, two days outside the time period allowed therefor in terms of R67(3), and
was therefore required to apply for condonation, which it did on 25 May 2026.
[10] As it was then accepted by the first respondent that the provisions of s18(1) of
the Superior Court’s Act would not find application until and unless Gandidze J
granted condonation for the delay in having applied for leave to appeal, it
brought an application to stay execution of the order granted under 2026-
065612. This application under case number 2026- 124618 was dismissed by
5
Snyman AJ on the day on which it was argued, with reasons having been
provided thereafter on 30 June 2026.
[11] The present applications were launched the following day.
Analysis: Contempt
[12] The first point taken by the first to fourth respondents in the contempt
application was that of lack of urgency.
[13] Despite the prolixity of the averments made in support of their contention that
the application is urgent, stripped of verbosity and in consideration of the issues
actually dealt with therein, the grounds upon which the applicants assert ed that
the application was urgent may be summarised as follows:
- Contempt of court applications are, by their very nature, urgent as there is a
general need to:
• punish the contemptor to compel compliance;
• protect the general administration of justice and integrity of both the
Rule of Law and the Constitution.
- Having failed to transfer the applicant employees the first and second
respondents have acted unlawfully, and this court has a duty to prevent
unlawful conduct.
- In the face of such unlawful conduct , and there is no reason why the
applicant employees ought to have to wait for a hearing in due course.
- If the applic ation is not heard on an urgent basis, the applicant employees’
right to transfer will be defeated, as they would have been dismissed from
their employment.
- The loss of their employment would result in the loss of the income which
they use to support their families.
- The loss of the opportunity to render services for the first respondent cannot
be repaired by any future order granted in due course as they will, in the
interim, have lost opportunities for promotions and education, and to study
towards any ‘skill within the DCS’.
6
[14] A convenient starting point in the assessment of urgency is the claim made by
the applicants that contempt proceedings are, by their very nature, inherently
urgent. Albeit that the applicants described this principle as one which is ‘trite’,
it nonetheless referred this court to Protea Holdings Ltd v Wriwt and Another
1978 (3) SA 865 (W), Wright v Saint Mary’s Hospital, Melmoth and Another
1993 (2) SA 226 (D), and Victoria Park Ratepayers’ Association v Greyvenouw
CC and Others [2004] 3 All SA 623 (SE) (11 April 2003)
[15] The court in Protea Holdings Ltd considered the question of urgency in relation
the respondents’ continuing breach of restraint of trade obligations in terms of
which they had been interdicted from the continuance of certain commercial
activities. The court stated that,
‘As one of the objects of contempt proceedings is by punishing the guilty party to
compel the performance of the order, it seems to me that the element of urgency
would be satisfied if in fact it was shown that the respondents were continuing to
disregard the order of 3 August 1977, If this be so, the applicant is entitled, as a
matter of urgency, to attempt to get the respondents to desist by the penalty referred to
being imposed.’1
[16] In Wright, pursuant to the dismissal of an appeal in which the respondent
sought to overturn a reinstatement order issued in favour of the applicant by the
Industrial Court, the applicant approached the court with an application for
contempt. The court stated,
‘In Protea Holdings Ltd v Wriwt and Another 1978 (3) SA 865 (W) it was held that if it is
established in committal proceedings that the guilty party continues to disregard the
order of court the element of urgency sufficient to justify seeking relief by way of urgent
application is thereby established. I am prima facie in agreement with this conclusion
and the reasoning of Nestadt J in arriving thereat. As, however, the question was not
and the reasoning of Nestadt J in arriving thereat. As, however, the question was not
fully argued I express no final view on the point which is, in any event, academic in the
light of my conclusion on the issue of jurisdiction.’
2
1 At 868H – 869A
2 At 228D- E
7
[17] The court in Victory Park Ratepayers’ Association aligned itself with the
abovementioned conclusion reached in Protea Holdings Ltd,
‘The legal point is that ongoing contempt of a Court order, by its very nature, is urgent.
…
I agree with the above -quoted statement of the law. I would add that it is not only the
object of punishing a respondent to compel him or her to obey an order that renders
contempt proceedings urgent: the public interest in the administration of justice and the
vindication of the Constitution also render the ongoing failure or refusal to obey an
order a matter of urgency. This, in my view, is the starting point: all matters in which
an ongoing contempt of an order is brought to the attention of a Court must be dealt
with as expeditiously as the circumstances and dictates of fairness allow.
As one of the objects of contempt proceedings is by punishing the guilty party to
compel the performance of the order, it seems to me that the element of urgency
would be satisfied if in fact it was shown that the respondents were continuing to
disregard the order of 3 August 1977, If this be so, the applicant is entitled, as a
matter of urgency, to attempt to get the respondents to desist by the penalty referred to
being imposed.’
3
[18] More recently, however, t he court in Volvo Financial Services Southern Africa
(Pty) Ltd v Adamas Tkolose Trading CC (2023/067290) [2023] ZAGPJHC 846
(1 August 2023) expressly rejected the notion that any specific type of
application could be said to be vested with inherent urgency. Dealing with a rei
vindicatio claim it said this,
‘Sometimes, Parliament sets out the circumstances in which a court ought to
determine a specific type of matter urgently (see, for example, section 18(4)(iii) of
the Superior Courts Act 10 of 2013 and section 5 of the Prevention of Illegal Eviction
from, and Unlawful Occupation of Land Act 19 of 1998). In all other cases, urgency is
from, and Unlawful Occupation of Land Act 19 of 1998). In all other cases, urgency is
determined not by the nature of the claim brought, but by the circumstances in which
the applicant seeks its adjudication. Uniform Rule 6(12) says that a matter is urgent if
the applicant will not be able to obtain “substantial redress at a hearing in due course”
without at least some urgent relief.
3 At paragraphs 26 - 27
8
It follows that, whatever the nature of the claim, there must be some reason why the
applicant will not be able to protect or advance their legal rights later, unless they are
given specific relief now. Most of the time, the applicant requires no more than
temporary protection from harm while the process of finally determining their rights
progresses. Sometimes, though, a final determination of rights is necessary on an
urgent basis because those rights will have little or no practical effect if the applicant
has to wait weeks or months to vindicate them in the ordinary course.
There is, accordingly, no class of proceeding that enjoys inherent preference. Counsel
appearing in urgent court would, in my view, do well to put the concept of “inherent
urgency” out of their minds. There are, of course, some types of case that are more
likely to be urgent than others. The nature of the prejudice an applicant will suffer if
they are not afforded an urgent hearing is often linked to the kind of right being
pursued. Spoliation is a classic example of this type of claim. Provided that the person
spoliated acts promptly, the matter will nearly always be urgent. The urgency does not,
though, arise from the nature of the case itself, but from the need to put right a recent
and unlawful dispossession. The applicant comes to court because they wish to
restore the ordinary state of affairs while a dispute about the right to possess a thing
works itself out. Cases involving possible deprivations of life and liberty, threats to
health, the loss of one’s home or some other basic essential of daily life, such as water
or electricity, destruction of property, or even crippling commercial loss, are also likely
to be urgent.’
4
[19] Addressing contempt proceedings, the court made the following observations,
‘It is sometimes said that contempt of court proceedings are inherently urgent (see for
example, Rustenburg Platinum Mines Limited v Lesojane (UM44/2022) [2022]
example, Rustenburg Platinum Mines Limited v Lesojane (UM44/2022) [2022]
ZANWHC 36 (21 June 2022) at paragraph 7 and Gauteng Boxing Promotors
Association v Wysoke (22/6726) [2022] ZAGPJHC 18 (28 April 2022) paragraph 14). I
do not think that can be true as a general proposition. I accept that the enforcement of
a court order may well qualify as urgent, in situations where time is of the essence, but
it seems to me that contempt proceedings entail the exercise of powers which often
demand the kind of careful and lengthy consideration which is generally incompatible
with urgent proceedings. For example, it cannot be sound judicial policy to commit
4 At paragraphs 4 - 6
9
someone to prison, even where the committal is suspended, or to impose a fine, on an
urgent basis, simply because that might be the only way to enforce a court order.
There must, in addition, be some other feature of the case that renders it essential that
the court order be instantly enforced, such that the penalties associated with contempt
require immediate imposition.’
5
[20] On the issue of urgency, the court concluded,
‘The fundamental point is that a matter is urgent because of the imminence and depth
of harm that the applicant will suffer if relief is not given, not because of the category of
right the applicant asserts.’
6
[21] The conclusion that a contempt application was not inherently urgent was also
reached by the High Court in S.L.M v A.D.M (2025/187545) [2026] ZAECMKHC
16 (12 February 2026).7
[22] Whatever the approach adopted by the High Court, the Labour Court does not
require every application for contempt to be treated as an urgent application .
Rule 58 regulates contempt proceedings in this court. It provides,
‘(1) An application for contempt of court must be launched on an ex parte basis in
motion court, where the applicant must seek an order that the respondent be
ordered to appear at the court to show cause why it should not be held to be
in contempt.
(2) An application which seeks for the court to make a finding that a party is in
contempt of an order of the court must be made ex parte by way of a notice of
motion accompanied by a founding affidavit. The notice of motion must seek
an order in the following terms:
(a) that the respondent [chief executive officer / head of department /
owner / proprietor / municipal manager of the respondent] (full names)
appear in the Labour Court on (date) of (month) (year) at 10h00 to
show cause why he/she should not be found guilty of contempt of
court for failing to comply with the order of this court dated (date);
5 At paragraph 7
6 At paragraph 8
7 At paragraph 14
10
(b) that the respondent may explain its conduct by way of affidavit filed
prior to the date of the hearing, although this will not excuse him/her
from being present in court;
(c) that in the absence of providing an explanation to the satisfaction of
the court, or failing to appear in court despite being properly served,
the respondent(s) be found guilty of contempt;
(d) that the respondent(s) be incarcerated for such period as the court
deems appropriate; or for the respondent(s) to be fined in an amount
the court deems appropriate; or other alternative relief; and
(e) that service of the application and order be effected personally upon
the respondent [chief executive officer / head of department / owner /
proprietor / municipal manager of the respondent] and on the state
attorney, if the matter concerns an organ of state.
(3) The affidavit in support of the application must clearly set out how service of
the relevant court order was effected upon the respondent; who accepted the
service on behalf of the respondent; the responsible person (whom the
applicant seeks the court to find to be in contempt) of the respondent was
aware of the court order and is deliberately refusing to comply therewith; in
what respect the respondent has failed to comply with the order and other
allegations that will constitute the grounds for obtaining the order sought.
(4) If a defence is raised by the respondent the court may either hear the matter
on the date on which the respondent was ordered to appear in court, or
postpone the matter.’
[23] This process prescribes a number of steps which must be followed before the
eventual hearing of the application, which may take place on the return date or
at some later date . From this it is clear that the Rules of this court do not
regard all applications for contempt as being inherently urgent , and do not
require them to be treated as such.
[24] Urgency in contempt applications, as with any other type of application,
[24] Urgency in contempt applications, as with any other type of application,
necessitates compliance with Rule 38 . In terms of this R ule an applicant who
seeks to invoke its provisions is required to demonstrate the reasons for
urgency and why urgent relief is necessary.
11
[25] In Maqubela v SA Graduates Development Association and Others (2014) 35
ILJ 2479 (LC) this court explained the issues relevant to the determination of
urgency,
‘Whether a matter is urgent involves two considerations. The first is whether the
reasons that make the matter urgent have been set out and secondly whether the
applicant seeking relief will not obtain substantial relief at a later stage. In all instances
where urgency is alleged, the applicant must satisfy the court that indeed the
application is urgent. Thus, it is required of the applicant adequately to set out in his or
her founding affidavit the reasons for urgency, and to give cogent reasons why urgent
relief is necessary.’
8
[26] The first to fourth respondents also referred this court is previous decision in
Mojaki v Ngaka Modiri Molema District Municipality and Others (2015) 36 ILJ
1331 (LC) 9 in which it r eferred with approval to the following dictum from the
judgment of East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite
(Pty) Ltd and Others [2012] JOL 28244 (GSJ),
‘… An applicant has to set forth explicitly the circumstances which he avers render the
matter urgent. More importantly, the applicant must state the reasons why he claims
that he cannot be afforded substantial redress at a hearing in due course. The
question of whether a matter is sufficiently urgent to be enrolled and heard as an
urgent application is underpinned by the issue of substantial redress in an application
in due course. The rules allow the court to come to the assistance of a litigant if the
latter were to wait for the normal course laid down by the rules it will not obtain
substantial redress.’
10
[27] The effect of the above is that a litigant seeking this court’s urgent assistance is
required to demonstrate, by way of a full and substantiated explanation, that (1)
it itself has acted with sufficient alacrity so as to negate any possibility that the
it itself has acted with sufficient alacrity so as to negate any possibility that the
situation of urgency is not of its own making, and (2) that it will be unable to
obtain substantial redress in due course in the event that the relief sought is not
8 At paragraph 32
9 At paragraph 6
10 At paragraph 6
12
granted. Above and beyond this, in the exercise of its judicial discretion and in
consideration of any other factor it deems relevant, this court must be satisfied
that the interests of justice requires it to determine the matter on an urgent
basis.
[28] The first of the applicants’ contentions, that this court has a duty to prevent
unlawful conduct is intrinsically linked to the assertion that contempt
applications are inherently urgent. The applicant in every contempt application
will, by virtue of the nature of contempt, be claiming that the respondent is
acting unlawfully. On the question of this court’s obligations, whilst the principle
that this court has a duty to prevent unlawful conduct cannot be faulted, the
issue remains that it is only in circumstances in which the requirements of Rule
38 have been met that it is required to do so on an urgent basis.
[29] As regards the issues of both transfer and loss of employment, the applicants’
case is not entirely clear.
[30] The second and third of the orders granted on 30 April 2026 read as follows,
‘2. It is declared that the termination of the ‘Conditions of Contract for the Design,
Construction, Operation, Maintenance and Financing of the prison at Bloemfontein’
(‘Concession Contract’) concluded between the Department of Correctional
Services and the Bloemfontein Correctional Contracts (Pty) Ltd, and the
consequent termination of the Operating Sub- Contract concluded between the
G4S Correction Services (Bloemfontein) (RF) (Pty) Ltd and the Bloemfontein
Correctional Contracts (Pty) Ltd, and the assumption of control and responsibility
for the operation and maintenance of the Mangaung Correctional Centre by the
Department of Correctional Services effective from 1 July 2026 constitutes a
transfer in terms of section 197 of the Labour Relations Act 66 of 1995.
3. G4S Correction Services (Bloemfontein) (RF) (Pty) Ltd’s employees will transfer
3. G4S Correction Services (Bloemfontein) (RF) (Pty) Ltd’s employees will transfer
automatically to the Department of Correctional Services upon termination of the
Concession Contract and Operating Sub-Contract.’
[31] In his judgment Snyman AJ recorded that G4S had commenced a
retrenchment process on 11 May 2026 and, that at the time that matter was
13
argued, the retrenchment process was underway. Given that the contract
between the first respondent and, indirectly, G4S was to terminate on 30 June
2026 and G4S sought, in anticipation thereof to divest itself of its employees by
way of a retrenchment process, it appears that they may well already have
been dismissed.
[32] Whether or not certain of the applicant employees have already been
dismissed, or will be dismissed by G4S in the imminent fu ture, neither
eventuality will ‘defeat’ their right to be transferred in terms of the 30 April 2026
order. The order of 30 April 2026 will not dissipate as a result of the first
respondent not having taken the applicant employees into service on 1 July
2026; that order will remain enforceable in perpetuity until and unless set aside
by way of appeal. This much was observed by Snyman AJ in his judgment of
30 June 2026,
‘Nonetheless, and if the appeal is ultimately unsuccessful, then the Department would
still have to take over those employees effective 1 July 2026, despite them having
been retrenched by G4S, … ’11
[33] The applicants’ case is further complicated by their assertions both that the first
respondent has not transferred the applicant employees , but also that the first
respondent has taken some of the applicant employees into employment,
‘The matter involves about 500 employees who are armed with a Court order that says
they must be transferred automatically to the DCS come 01 July 2026. The date of 01
July 2026 passed without the second applicants having been automatically transferred
as ordered by the April order.
The DCS has already employed some of the people on 12 months contract instead of
complying with the April order.’12
11 At paragraph 42
12 At paragraphs 13.4.1 – 13.4.2
14
[34] Although the applicants alleged that the employment by the first respondent of
the unspecified number of applicant employees was not in compliance with the
30 April 2026 order, on their own version a number of them have been
employed by the first respondent . S197(3)(a) stipulates that s197(2) is
complied with if the employees in question are transferred on ‘terms and
conditions that are on the whole not less favourable to the employees than
those on which they were employed by the old employer.’ Beyond having
stated their own belief that such employment was not in compliance with the 30
April 2026 order, the applicants placed no evidence before this court which
could lead it to find that such terms and conditions under are ‘on the whole less
favourable’ than those which previously governed their employment by G4S.
[35] The further ground upon which the applicants relied in substantiation of the
issue of urgency related to the income the applicant employees stand to lose as
a result of being obliged to await a hearing in due course. Given that an
unspecified number of them have taken up employment with the first
respondent, albeit on fixed term contracts of one year duration, none of those
applicant employees stand to suffer the potential loss of income in the
foreseeable future.
[36] To the extent that there may be individual applicants who do stand to suffer the
loss of their incomes, whilst this court is not unsympathetic to the
consequences of such a state of affairs, it has been restated through many
judgements of this and other courts that financial issues do not, without more,
give rise to grounds for urgency. Our courts have considered the question of
urgency when premised exclusively on issues of financial hardship on a
number of occasions. The principle established is that financial hardship in and
of itself does not and cannot establish grounds of urgency.
[37] In Turro and Others v Taxaid (Pty) Ltd [2000] 21 ILJ 2719 (LC) this court
[37] In Turro and Others v Taxaid (Pty) Ltd [2000] 21 ILJ 2719 (LC) this court
considered the issue and, with reference to previously decided cases on the
point stated the following,
15
‘… Financial hardship and loss of income are not per se grounds for urgency and the
applicants are required to show extremely cogent grounds for urgency. [cases cited]
In the aforesaid cases it was held that only where the detrimental consequence of
unilateral conduct cannot be addressed by an award after the arbitration or
adjudication has taken place, urgent relief may be granted. The applicants have not
shown why their case is exceptional. It must be borne in mind that in all cases of lay -
off and dismissal financial hardship follows and if the applicants’ argument is to be
accepted, then all cases of dismissal would be dealt with by way of urgent application
and on affidavit which is clearly not what was intended by the drafters of the Labour
Relations Act.’
13
[38] Similar conclusions have been reached in numerous other cases, for example
Matshidiso v Chief Executive Officer – South African Social Security Agency
and Another (J1175/2022) ZALCJHB 365 (29 September 2022), Jonker v
Wireless Payment Systems CC (2010) 31 ILJ 381 (LC) , Democratic Nursing
Organization of South Africa obo Ramaroane v Member of the Executive
Council for Health, Gauteng Province and Another (2019) 40 ILJ 2533 (LC),
and Munthali v Passenger Rail Agency of SA (2012) 42 ILJ 1245 (LC).
[39] Albeit decided with reference to a s18(3) application in relation to the immediate
execution of an order granted in favour of the employees in terms of s197
pending an appeal, the rationale of the Constitutional Court in rejecting the
proposition that non- payment of remuneration could constitute an exceptional
circumstances is equally apposite to the effect of non- payment of salaries on
the question of urgency. In Road Traffic Management Corporation v Tasima
(Pty) Limited; Tasima (Pty) Limited v Road Traffic Management Corporation
(2020) 41 ILJ 2349 (CC) the position was stated to be this,
‘In any event, the non-payment of wages or salaries pending finalisation of an appeal
‘In any event, the non-payment of wages or salaries pending finalisation of an appeal
cannot constitute exceptional circumstances for the purposes of section 18(3) without
bringing almost every labour matter within the ambit of the section. It is impossible to
find that Tasima’s employees’ position pending appeal must be protected, without
finding that this must be the case in almost every labour dispute. Differently put, the
13 At paragraph 10
16
exceptional circumstances that section 18(3) requires, ordinarily should not be located
purely in the non-payment of wages or salaries pending appeal.’14
[40] Obviously alive to the limitations placed on financial considerations as grounds
to found urgency, the applicants alleged that by waiting for the application to be
dealt with in the ordinary course the applicant employees would lose the
opportunity to render services to the first respondent, which loss cannot be
repaired by any future order granted in due course as they would in the
meantime have lost opportunities for promotions and education, and to study
towards any ‘skill within the DCS’. That assertion was both unsubstantiated
and speculative as no evidence was placed before this court in support there of
in relation to even one of the applicant employees . Mere speculation cannot
constitute a basis upon which an application can be elevated to one of urgency.
[41] In consideration of the above, there is no apparent reason why the applicants
found it necessary to approach this court on an urgent basis . If one or more of
the first respondent’s officials are indeed in contempt, nothing precludes such a
finding being made in due course. Equally, the applicant employees’ right to
enforce the order of 30 April 2026 will not disappear in time. Conversely in both
cases, no consequences that the law recognises as urgent will ensue in the
event that findings in relation to either aspect is not made now. The contempt
application will be struck from the roll for lack of urgency.
Analysis: S18(3) Application
[42] The applicants made it clear that this application was only to be determined in
the event that this court did not find in its favour in the contempt application. As
the contempt application will be struck from the roll for lack of urgency, its
merits remain to be determined in due course. This being the case, it follows
14 At paragraph 131
17
that the s18(3) application must be adjourned sine die , pending the eventual
outcome of the contempt application.
Costs
[43] The first to fourth respondents asked for a punitive costs order in the event that
the contempt application be struck from the roll for lack of urgency.
[44] They were correct, not only that the application lacked urgency but that the time
periods chosen by the applicants were wholly unreasonable. The applicants
launched both applications on 1 July 2026 in which the first to fourth
respondents were called to deliver answering affidavits by 6 July 2026. This , in
effect, afforded them two court days to prepare their responses to both
applications, which were enrolled on 9 July 2026.
[45] The applications were launched in the face of the judgment of Snyman AJ who
expressed the obiter view that to do so would be inappropriate. Moreover, in
dismissing the first respondent’s application to stay the 30 April 2026 order, he
did so on the basis of his understanding that there was no real risk of
enforcement of the 30 April 2026 order. Although that application appears to
have been decided without reference to the applicants’ affidavits, it is difficult to
imagine that those affidavits would have been excluded from consideration if
they had unequivocally expressed the applicants’ intention to enforce the 30
April 2026 order.
[46] In circumstances in which the grounds upon which the applicants relied to
found urgency have historically and repeatedly been rejected by this court, and
the time afforded to the first to fourth respondents to mount an defence to the
applicants’ contempt application was unnecessarily and unreasonably curtailed,
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the applicants’ motivations in having initiated the contempt application on an
urgent basis must be called into question.
[47] This court can conceive of no reasons, as a matter of either law or fairness,
why the first to fourth respondents (funded as they are by the taxpayer) ought
not to be awarded their costs on an attorney and client scale. Despite the first
to fourth respondents having asked that such costs order be made de bonis
propriis, there is no clear basis for such an order to be made.
Order
1. The contempt of court application under 2026- 154789 is struck from the roll for
lack of urgency.
2. The section 18(3) application under 2026-154790 is adjourned sine die, pending
the outcome of the contempt of court application under 2026-154789.
3. The applicants are ordered to pay the first to fourth respondents’ costs under
2026-154789 on an attorney and client scale, such costs to include the costs of
two counsel, where employed.
________________________
K. ALLEN-YAMAN J
Judge of the Labour Court of South Africa
Appearances
Applicants (in both case numbers 2026-154789 and 2026-154790):
Mr X Mofokeng, instructed by Mutsengi Attorneys Inc
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First to Fourth Respondents (under case number 2026-154789) and First and
Second Respondents (under case number 2026-154790):
Mr G Shakoane SC with Mr M Mpahlwa, instructed by Vilikazi Tau Inc