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THE DIRECTOR-GENERAL IN THE PRESIDENCY Fifth Respondent
CABINET OF THE REPUBLIC OF SOUTH AFRICA Sixth Respondent
JUDGMENT
NXUMALO, AJ
Introduction
[1] This matter serves before this Court, on an urgent basis, with the first applicant
seeking an interim interdict pending the finalisation of the relief set out in Part
B of his notice of motion.
[2] The relief in Part B of the application essentially seeks to review and set aside
a directive issued by the first respondent, and to declare that the first applicant
was lawfully appointed as the Chief Executive Officer (“CEO”) of the National
Skills Fund, an institution which, according to the first applicant, was
established to advance skills development for the benefit of, inter alia, the youth
of South Africa.
[3] It is common cause that the first applicant emerged as the most suitable
candidate from 93 applicants wh o submitted their applications and from the
shortlisted candidates who were interviewed by a selection committee.
[4] The first applicant alleges that in February 2026, his appointment was
confirmed to him personally and was acted upon.
[5] On 18 July 2025, the then Minister of High Education and Training, submitted
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a memorandum to the Minister for Public Service and Administration,
requesting Cabinet’s concurrence with the first applicant’s appointment. The
memorandum stated that the first applicant had been found to be the most
suitable candidate and enclosed , inter alia, documents pertaining to the list of
candidates who applied for the post, the competency-based assessment report
and the related supporting documents.
[6] During or about May 2026, the first applicant got wind of the fact that the first
respondent intends to rerun the recruitment process for the appointment of a
CEO for the National Skills Fund. T he first respondent proceeded to issue a
directive on or about 17 June 2026, directing the second respondent to
readvertise the post and set a deadline of 29 June 2026 for the steps to give
effect to the directive.
[7] The first respondent’s justification for the directive is that as the Executive
Authority, he is obliged to act and to interfere with what he perceived to be an
incorrect process, and that where material irregularities become apparent
before an appointment process has reached legal finality, it is incumbent upon
the Executive Authority to ensure that those irregularities are addressed before
the process proceeds further.
[8] It is the directive and its effect that the applicants seek to challenge through
Parts A and B of their application.
Condonation
[9] In their notice of motion, the applicants had given the respondents until
Tuesday, 14 July 202 6 to deliver their answering affidavit /s. The respondents
failed to adhere to this timeframe and only delivered their answering affidavit on
or about 21 July 2026.
[10] They provided an explanation for their delay in their answering affidavit, which
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included the first respondent’s unavailability to consult due to being outside of
the country, as well as senior counsel’s unavailability due to being occupied in
another matter.
[11] By the time the matter was heard before this Court, the full set of papers,
including each party’s heads of argument, was before this Court. Relying on the
principles set out in Pangbourne Properties Ltd v Pulse Moving CC and
Another[1], I granted condonation for the respondents’ late delivery of their
answering affidavit.
Jurisdiction
[12] The next issue that came up for determination was the issue of jurisdiction. The
respondents contend that this Court does not have jurisdiction to hear this
matter by virtue of section 31 of the Skills Development Act 97 of 1998 (“the
Skills Development Act”) which, according to the respondents, provides for the
exclusive jurisdiction of the Labour Court.
[13] Section 31 of the Skills Development Act reads as follows:
“31. Jurisdiction of Labour Court.
(1) Subject to the jurisdiction of the Labour Appeal Court and except where
this Act provides otherwise, the Labour Court has exclusive jurisdiction in
respect of all matters arising from this Act.
(2) The Labour Court may review any Act or omission of any person in
connection with this Act on any grounds permissible in law.
(3) If proceedings concerning any matter contemplated in subsection (1) are
instituted in a court that does not have jurisdiction in respect of that
matter, that court may at any stage during proceedings refer the matter
to the Labour Court.”
[14] The respondents contend that the applicants’ application is based primarily on
section 29(1)(d) of the Skills Development Act.
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[15] Interestingly, both parties relied on the principles set out in National Gambling
Board v Premier of Kwazulu-Natal and Others[2] (“National Gambling Board”)
to advance their respective cases on the jurisdiction issue.
[16] Both parties quoted paragraphs [49] to [53] of the National Gambling Board
judgment at length in their respective heads of argument. For ease of reference,
the said paragraphs, including paragraph 48, read as follows:
“[48] This matter is not within this Court’s exclusive jurisdiction. The High Court
therefore had jurisdiction to deal with the application for an interim interdict. Mr
Prinsloo however pointed out that the National Board had been advised to bring
the applicatio n for the interim interdict in this Court because there was no
precedent to guide it in the choice of the correct court. It is important that this
Court gives guidance in that respect.
[49] An interim interdict is by definition
‘a court order preserving or restoring the status quo pending the final
determination of the rights of the parties. It does not involve a final
determination of these rights and does not affect their final determination.’
The dispute in an application for an interim interdict is therefore not the same
as that in the main application to which the interim interdict relates. In an
application for an interim interdict the dispute is whether, applying the relevant
legal requirements, the status quo should be preserved or restored pending the
decision of the main dispute. At common law, a court’s jurisdiction to entertain
an application for an interim interdict depends on whether it has jurisdiction to
preserve or restore the status quo. It does not depend on whether it has the
jurisdiction to decide the main dispute.
[50] Whether a high court will have jurisdiction to grant interim relief pending a
matter exclusively within this Court’s jurisdiction does not depend on the form
matter exclusively within this Court’s jurisdiction does not depend on the form
or effect of the interim relief. It depends on the proper interpretation of the
relevant provision and on the substance of the order: Does it involve a final
determination of the rights of the parties or does it affect such final
determination? If it does not, the High Court will, depending on the provision
that grants exclusive jurisdiction, have jurisdiction to grant interim relief.
[51] It does not follow that a high court will always have jurisdiction to grant or refuse
interim relief pending the decision of a matter exclusively within this Court’s
jurisdiction. To decide whether a high court has such jurisdiction the provision
in terms of which this Court has exclusive jurisdiction must be interpreted.
Section 167(4)(c) of the Constitution is an example of a provision giving to this
Court exclusive jurisdiction to grant interim relief. It provides that this Court has
exclusive jurisdiction to “decide applications envisaged in section 80 or 122".
Sections 80 and 122 respectively provide that members of the National
Assembly and provincial legislatures may apply to the Constitutional Court for
an order declaring that all or part of respecti vely a national or a provincial Act
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is unconstitutional. Sections 80(3) and 122(3) are identical. They provide:
“The Constitutional Court may order that all or part of an Act that is the
subject of an application in terms of subsection (1) has no force until the
Court has decided the application if -
(a) the interests of justice require this; and
(b) the application has a reasonable prospect of success.”
Read together, sections 167(4)(c) and sections 80(3) and 122(3) assign
exclusive jurisdiction to this Court to grant interim relief.
[52] A court hearing an application for an interim interdict can obviously only decide
the main dispute if it has jurisdiction to do so. A court that does not have
jurisdiction in the main dispute will simply determine whether the applicant has
a prima facie right to the relief which is to be sought in the court having
jurisdiction to deal with it.
[53] Section 167(4)(a) provides that only this Court “may decide disputes between
organs of state” in the relevant spheres and concerning those organs’
constitutional status, powers or functions. The exclusive jurisdiction of this
Court is to decide the disputes in question. There is no reason why the ordinary
common law should not apply. Provided that a high court is not called upon
to decide a dispute within this Court’s exclusive jurisdiction, it has jurisdiction
to grant interim relief pending the final determination of such a dispute.”
[17] The question that arises in this matter is the following: will this Court , in Part
A, be called upon to decide a dispute within the Labour Court’s exclusive
jurisdiction? In other words, does the relief sought in Part A of this application
raise matters that fall within the exclusive jurisdiction of the Skills Development
Act?
[18] This Court found the answer to this question in paragraphs 207 and 208 of the
first applicant’s founding affidavit, which are quoted herein for ease of
reference:
“207. I am advised that, at this stage, I am required to establish no more
reference:
“207. I am advised that, at this stage, I am required to establish no more
than a prima facie right, even it if be open to some doubt. I have such
a right and more.
208. My right flows directly from section 29(1)(d) of the Skills Development
Act and from the completed appointment made under it .” (My
emphasis)
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[19] It is evident that even in determining whether or not the applicants are entitled
to interim relief, this Court would, on the applicants’ own pleaded case, need to
make a determination on issues that fall within the exclusive preserve of the
Labour Court, in terms of section 31 of the Skills Development Act.
[20] This Court cannot grant the interim relief sought by the applicants without
determining whether or not the first applicant has a prima facie right. The first
applicant has told this Court unequivocally that his prima facie right in this
matter flows directly from section 29(1)(d) of the Skills Development Act.
[21] It therefore follows that even the issues pertaining to the interim relief, as framed
by the applicants, fall within the exclusive jurisdiction of the Labour Court, in
terms of section 31( 1) of the Skills Development Act. Afterall, jurisdiction is
determined on the basis of the pleadings . The pleadings, properly interpreted,
demonstrate that the applicants, even in Part A of their application, are
asserting a claim under the Skills Development Act, which is to be determined
exclusively by the Labour Court.[3]
[22] It has been held in an earlier decision of this Court that a proper construction of
the term “matter” in section 31 is wider than a cause of action engaging the
Skills Development Act and encompasses all disputes that relate causally to
the S kills Development Act or functions performed under the S kills
Development Act.[4]
[23] This Court is therefore constrained to find that it does not have jurisdiction to
entertain the interim relief sought by the applicants.
Referral
[24] The finding that this Court does not have jurisdiction is not the end of the
enquiry. Section 31(3) of the Skills Development Act affords this Court the
discretion, having found that it does not have jurisdiction to hear the matter, to
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refer the matter to the Labour Court at any stage during the proceedings.
[25] The interests of justice dictate that this matter be referred for adjudication before
the correct forum.
[26] Contrary to what was submitted by counsel for the respondents, the fact that
the application, in its current form, does not comply with the Rules of the Labour
Court, is not a bar to this Court exercising its discretion to refer the matter to
the Labour Court. The Labour Court Rules make provision for a party to seek
condonation in the event of non -compliance with the Rules and to amend its
pleadings, where necessary.
[27] I am of the view that b oth parties, for different reasons, deserve their day in
Court. The first applicant, having emerged as the most suitable candidate, is
certainly deserving of the opportunity to test the soundness of the directive that
seeks to undo the entire selection process that led to his emergence as the
most suitable candidate, while the respondents, as representatives of the State,
are also deserving of their moment to demonstrate that the exercise of their
public power was carried out in a lawful and constitutional manner. [5]
Transparency and accountability are important principles in any democratic
state, therefore having the matter determined on its merits will only serve to
bolster the public confidence in the Executive.
Costs
[28] The issues pertaining to the jurisdiction of the Court to grant interim relief in
matters in which the Court does not have jurisdiction to hear the main
application are by no means straightforward. This much is demonstrated by the
parties’ reliance on the same authority to advance their respective arguments,
which stand on opposite ends.
[29] There can also be no suggestion that this application is frivolous or vexatious.
Burdening the applicants with the costs under the circumstances would only
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serve to hinder the advancement of constitutional justice.[6]
[30] The following order is therefore made:
1. the matter is referred to the Labour Court in terms of section 31(3) of the
Skills Development Act;
2. each party shall bear its own costs.
NS NXUMALO
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Appearances
For the applicants: Adv K Prehmid, with Adv L Moela
Instructed by: Matlhwana Attorneys Inc.
For the respondents: Adv L Halgryn SC, with Adv T Mabuza
Instructed by: The State Attorneys
Date of hearing: 30 July 2026
Date of judgment: 6 August 2026
This Judgment is handed down electronically by circulation to the parties’ legal
representatives by email and publication on Case Lines and SAFLII. The date for the
handing down is deemed to be 10am on 6 August 2026.
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[1] 2013 (3) SA 140 (GSJ) [18] – [19]
[2] 2002 (2) SA 715 (CC)
[3] Gcaba v Minister for Safety and Securtiy and others 2010 (1) SA 238 (CC) [75]
[4] Jet Education Services NPO v Manufacturing Engineering and Related Services Sector Education and
Training Authority (2023/070358, 2023/071032) [2024] ZAGPJHC 709 (2 August 2024) pars. 35 to 36
[5] Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) [49]
[6] Ibid [138]