THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JS 680/2020
In the matter between:
LORRAINE BALESENG MOLABA Plaintiff
and
MAMBA TECHNICAL (PTY) LTD Defendant
Heard: 20 August 2026
Delivered: 26 August 2026
This judgment was handed down electronically by circulation to the parties
via email. The date for hand-down is deemed to be 26 August 2026.
JUDGMENT
PRINSLOO, J
Introduction
[1] It is common cause that following a retrenchment process, the Plaintiff was
dismissed by the Defendant (Mamba) on 30 June 2020.
[2] The Plaintiff filed a statement of claim on 5 October 2020, challenging the
fairness of her dismissal. The Defendant filed a statement of response on 2
December 2020. For three years, no further steps were taken to prosecute
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
TDM 26/08/2026
____________ ______________
Signature Date
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the claim, until November 2023, when the Plaintiff filed an amended
statement of case. The parties signed a pre -trial minute in February 2025,
and the Plaintiff requested that the matter be enrolled only in October 2025.
[3] This Court must express its concern that this matter was not properly and
actively prosecuted and that it went to trial more than six years after the
Plaintiff’s dismissal.
[4] One of the primary objects of the Labour Relations Act 1 (LRA) is the effective
resolution of disputes. The Constitutional Court, in the opening paragraph of
Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and others
2 (Toyota) held that:
‘Time periods in the context of labour disputes are generally essential to
bring about timely resolution of the disputes. The dispute -resolution
dispensation of the old Labour Relations Act was uncertain, costly, inefficient
and ineffective. The new Labour Relations Act (LRA) introduced a new
approach to the adjudication of labour disputes. This alternative process was
intended to bring about the expeditious resolution of labour disputes which,
by their nature, require speedy resolution. Any delay in the resolution of
labour disputes undermines the primary object of the LRA. It is detrimental
not only to the workers who may be without a source of income pending the
resolution of the dispute but, ultimately, also to an employer who may have
to reinstate workers after many years.’
[5] The delay in the prosecution of this case no doubt undermined the statutory
purpose of expeditious dispute resolution and finality.
The pleadings and pre-trial minute
[6] Before I deal with the merits of the case and the evidence adduced, it is
necessary to say something about the pleadings filed. It is trite law that th e
court and the parties are bound by the pleadings , the pre-trial agreement 3,
and the issues they agreed to in the pre- trial minute.4 This Court cannot and
1 Act 66 of 1995, as amended.
1 Act 66 of 1995, as amended.
2 (2016) 37 ILJ 313 (CC) at para 1.
3 See: Chemical, Energy, Paper, Printing, Wood and Allied Workers Union and Others v CTP Ltd
and Another [2013] 4 BLLR 378 (LC).
4 See: Professional Transport and Allied Workers Union on behalf of Khoza and Others v New
Kleinfontein Gold Mine (Pty) Ltd (2016) 37 ILJ 1728 (LC); National Union of Metalworkers of SA and
Others v Driveline Technologies (Pty) Ltd and Another (2000) 21 ILJ 142 (LAC).
3
should not go beyond the issues it is required to determine, with reference
only to the pleadings and the pre-trial minute.
[7] Jacob and Goldrein5 aptly capture the position as follows:
‘As the parties are adversaries, it is left to each of them to formulate his case
in his own way, subject to the basic rules of pleadings… For the sake of
certainty and finality, each party is bound by his own pleading and cannot be
allowed to raise a different or fresh case without due amendment properly
made. Each party thus knows the case he has to meet and cannot be taken
by surprise at the trial.
The Court itself is as much bound by the pleadings of the parties as they are
themselves. It is not part of the duty or function of the Court to enter upon
any enquiry into the case before it other than to adjudicate upon the specific
matters in dispute which the parties themselves have raised by their
pleadings. Indeed, the Court would be acting contrary to its own character
and nature if it were to pronounce upon any claim or defence not made by
the parties…
The Court does not provide its own terms of reference or conduct its own
enquiry into the merits of the case but accepts and acts upon the terms of
reference which the parties have chosen and specified in their pleadings. In
the adversary system of litigation, therefore, it is the parties themselves who
set the agenda for the trial by their pleadings and neither party can complain
if the agenda is strictly adhered to.’
[8] In SA Breweries (Pty) Ltd v Louw 6 (Louw), the Labour Appeal Court (LAC)
was required to, inter alia, determine a complaint by the appellant that the
court a quo decided the case on factual issues not properly put before it on
the pleadings, nor as refined in the pre-trial conference minute. The LAC held
that:7
‘[4] To state the obvious, litigation is complex. Among the duties of legal
practitioners is to conduct cases in a manner that is coherent, free
practitioners is to conduct cases in a manner that is coherent, free
from ambiguity and free from prolixity. True enough, the holy grail of
translating what is complex into simplicity is not always attainable,
but the ground rules are irrefrangible: say what you mean, mean
5 JHI Jacob, IS Goldrein, ‘Pleading: Principles and Practice’, Sweet & Maxwell, at pp 8 - 9.
6 (2018) 39 ILJ 189 (LAC).
7 Ibid at paras 4 to 5.
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what you say and never hide a part of the case by a resort to
linguistic obscurities. The norm of a fair trial means each side being
given unambiguous warning of the case they are to meet. Moreover,
these requirements are not mere civilities as between adversaries;
the court too, is dependent upon the fruits of clarity and certainty to
know what question is to be decided and to be presented only with
admissible evidence that is relevant to that question. Making up one’s
case as you go along is an anathema to orderly litigation and cannot
be tolerated by a court. Counsel’s duty of diligence demands an
approach to litigation which best assists a court to decide questions
and no compromise is appropriate.
[5] The critical complaint in this matter is that the court a quo decided the
case on factual issues not properly put before it on the pleadings, nor
as refined in the pretrial conference minute. The complaint had been
raised during the hearing and in argument at the conclusion of the
trial, considered by the court a quo and dismissed. In our view, the
complaint is justified and the court a quo was in error.’
[9] The LAC further held that:8
‘The relationship between the pleadings and the pretrial conference minute
has been the subject of several judicial pronouncements
9. In short, a minute
of this sort is an agreement from which one cannot unilaterally resile. Also, a
pleading binds the pleader, subject only to the allowing of an amendment,
either by agreement with the adversary, or with the leave of the court. The
case pleaded cannot be changed or expanded by the terms of a minute; if it
does, it is necessary that that change go hand in hand with a necessary
amendment. The chief objective of the pretrial conference is to agree on
limiting the issues that go to trial. Properly applied, a typical minute – cum –
agreement will shrink the scope of the issues to be advanced by the litigants.
This means, axiomatically, that a litigant cannot fall back on the broader
This means, axiomatically, that a litigant cannot fall back on the broader
terms of the pleadings to evade the narrowing effect of the terms of a
minute. A minute, quite properly, may contradict the pleadings, by, for
example, the giving of an admission which replaces an earlier denial. When,
such as in the typical retrenchment case, there are a potential plethora of
facts, issues and sub -issues, by the time the pretrial conference is
8 Id fn 6 at para 8.
9 See: Price NO v Allied - JBS Building Society 1980 (3) SA 874 (A) at 882D - E; Zondo and others v
St Martin’s School (2015) 36 ILJ 1386 (LC) at paras 10 to 11.
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convened, counsel for the respective litigants have to make choices about
the ground upon which they want to contest the case. There is no room for
any sleight of hand, or clever nuanced or contorted interpretations of the
terms of the minute or of the pleadings to sneak back in what has been
excluded by the terms of a minute. The trimmed down issues alone may be
legitimately advanced. Necessarily, therefore, the strategic choices made in
a pretrial conference need to be carefully thought through, seriously made,
and scrupulously adhered to. It is not open to a court to undo the laces of the
straitjacket into which the litigants have confined themselves.’
[10] In summary, a statement of claim must inform the defendant of the material
facts and the legal issues arising from those facts upon which the plaintiff will
rely to succeed in its claims. Those must be sufficiently detailed to enable the
defendant to respond and to be informed of the nature or essence of the
dispute. Each side must be given an unambiguous warning of the case they
are to meet.
[11] The issues raised by the Plaintiff must be considered against the backdrop
that the pleadings provide the architecture and the evidence at trial provides
the detail and texture. However, it is not for this Court to decide a case on
factual issues not properly pleaded or refined in the pre- trial minute. This
principle was confirmed by the Supreme Court of Appeal (SCA) in MEC for
Health and Social Development of Gauteng Provincial Government v
Slabbert
10, where it was held that:
‘A party has a duty to allege in the pleadings the material facts upon which it
relies. It is impermissible for a plaintiff to plead a particular case
and seek to establish a different case at the trial. It is equally not permissible
for the trial court to have recourse to issues falling outside the pleadings
when deciding a case.’
The pleaded case
[12] The Plaintiff was employed by Mamba as a technical coordinator on 5
The pleaded case
[12] The Plaintiff was employed by Mamba as a technical coordinator on 5
February 2019, and she was dismissed on 30 June 2020. The Plaintiff’s
pleaded case, as recorded i n her amended statement of claim, is that on 28
April 2020, all employees were given a notice of contemplated restructuring
10 [2010] 2 All SA 474 (SCA).
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and retrenchment, as envisaged in section 189(3) of the LRA. The Plaintiff’s
case is that her dismissal was substantively and procedurally unfair because
the Defendant failed to comply with the legal principles set out in section 189
of the LRA.
[13] She pleaded that Mamba failed to provide relevant information despite
requests from the Plaintiff and other affected employees. During the trial, the
Plaintiff adduced no evidence to show what information was requested or
that such a request was refused. The pleaded averment was unsupported by
any evidence and requires no further consideration by this Court.
[14] The crux of the Plaintiff’s pleaded case is that she was not part of the
consultation process, because the Defendant failed to consult in good faith
‘after the affected employees were advised in writing to elect three
representatives to partake in the consultation processes, but however the
Respondent decided unilaterally to appoint one of the managers, Ms
Terblanche to represent the Applicant and others.’
[15] In respect of substantive fairness, the Plaintiff referred to the provisions of
section 189(3) of the LRA, which requires that the reason for retrenchment
must be fair. She stated that the Defendant ‘referred to COVID-19 during the
retrenchment process that happened a month prior’. Her case is that she was
retrenched for operational reasons.
[16] It has to be emphasized that the LRA recognises three grounds on which a
termination of employment might be legitimate, which include the operational
requirements of the employer’s business.
Substantive fairness
[17] Substantive fairness involves more than merely showing the existence of an
operational requirement and a decision to retrench based on that operational
requirement. The employer has to present evidence substantiating the basis
for its decision to retrench.
[18] As alluded to, the Plaintiff’s pleaded case did not properly set out the
grounds on which she challenges the substantive fairness of her dismissal or
grounds on which she challenges the substantive fairness of her dismissal or
disputes the Defendant’s business rationale for retrenchment.
7
[19] In the pre- trial minute, it was recorded that there was no reason to retrench
the Plaintiff , and she disputed the existence of the need to retrench. The
Defendant’s case is that the need to retrench was directly related to Covid-
19.
[20] In terms of section 192(2) of the LRA, the onus of proving that the
employees’ dismissals were substantively fair rests on the D efendant. In
casu the Defendant has to prove, on a balance of probabilities , the existence
of a valid commercial rationale, that it considered alternatives and that the
selection criteria were fair, in order to establish the substantive fairness of the
dismissal.
[21] The test to be applied in evaluating substantive fairness was described by
the Labour Appeal Court (LAC) in National Union of Food Beverage Wine
Spirits and Allied Workers v Coca Cola Beverages South Africa (Pty) Ltd 11
(Coca Cola) as:
‘[41] To the extent that the appellants pursue the submission that there
was no general need to retrench and that the retrenchment was
substantively unfair for that reason, this is not a submission that can
be sustained by reference to the evidence. The economic case for
restructuring and the consequent redundancies in particular
occupational posts was made in the s 189(3) notice and elaborated
on in detail in the evidence given by Leonhardt, Rajbally and Phetha .
Although certain of the English authorities to which the Labour Court
referred in its judgment may reflect an overly deferential approach,
the Labour Court acknowledged that fairness, rather than
correctness, was the applicable benchmark and that the Court was
obliged to determine the rationality between the retrenchment and
CCBSA’s commercial objectives and in particular, whether the
decision to retrench was a reasonable option in all the
circumstances. This approach cannot be faulted.’
[22] In HeroTel (Pty) Ltd v Moses and Others 12 the LAC confirmed the applicable
test for substantive fairness in operational requirements dismissals - a
test for substantive fairness in operational requirements dismissals - a
decision to retrench will be substantively fair if it is a rational and reasonable
response to the operational requirements predicament faced by an employer.
11 (2024) 45 ILJ 1813 (LAC) at para 41.
12 [2025] 10 BLLR 1026 (LAC).
8
The LAC affirmed that whilst employers have the prerogative to restructure
their operations to maximise profits and operational efficiency, the courts do
not accept the employer’s proffered rationale at face value. Rather, adopting
the test in BMD Knitting Mills (Pty) Ltd v SA Clothing abd Textile Workers
Union13, a court is entitled to examine whether the particular decision has
been taken in a manner which is also fair to the affected employees, and to
enquire as to whether a reasonable basis exists on which the decision to
dismiss for operational requirements is predicated. Fairness, not correctness,
is the mandated test. The LAC further endorsed the principle that there must
be a rational connection between the employer’s scheme and its commercial
objective, and that through consideration of alternatives an attempt must be
made to find the option which least harms the rights of the employees.
[23] In Edge Line Engineering (Pty) Ltd v Association of Mineworkers and
Construction Union and others 14 the LAC confirmed that in scrutinising the
grounds advanced for a retrenchment, a court does not second- guess the
commercial or business efficacy of the employer’s ultimate decision but
rather determines whether the decision was genuine and not a sham. It is not
the court’s function to decide whether the decision was the best decision
under the circumstances, but only whether it was a rational commercial or
operational decision.
[24] The starting point when scrutinising the commercial rationale or the reason
for retrenchment is to establish the presence of a bona fide operational
requirement. An operational requirement is defined in section 213 of the LRA
as ‘requirements based on the economic, technological, structural or similar
needs of an employer’ . This is followed by an inquiry into whether the
decision to retrench was, in fact, based on that operational requirement
15.
[25] Where an employer contends that there is operational justification for its
15.
[25] Where an employer contends that there is operational justification for its
decision to retrench, it must put forward evidence to show that the
operational reason is real and that the dismissal was a fair consequence of
its existence. This calls for a consideration of the evidence adduced.
13 [2001] 7 BLLR 705 (LAC).
14 [2026] 4 BLLR 327 (LAC).
15 Retrenchment Law in South Africa, Rochelle le Roux, LexisNexis 2016 at p 187 - 191.
9
[26] The evidence adduced by the Defendant’s technical manager, Ms
Terblanche, was that the nature of the Defendant’s business is the
installation of alarm systems and closed- circuit televisions and the rendering
of general operational services in the security industry. Covid- 19, which
resulted in a hard lock down in March 2020, affected Mamba severely. There
were 15 employees at Mamba, but during the Covid- 19 pandemic period
there was not enough work to keep the teams busy. The state of national
disaster had a devastating effect on the business. The Defendant
experienced a drastic decline in revenue, and Ms Terblanche testified that
the Defendant’s turnover dropped from R 800 000 in January/February 2020
to R 70 000 by May 2020. Mamba’s sales figures dropped by 90%.
[27] Ms Terblanche further testified that new business virtually ceased,
cancellations increased, and the Defendant’s new contracts and customers
dropped by two- thirds, from 150 in January 2020 to 35 in April 2020. It
declined even further as businesses closed and people stayed home.
[28] The Plaintiff did not dispute the substantial evidence proffered by the
Defendant regarding the reasons or business rationale that it advanced for
retrenchment. In my view, the Defendant’s evidence established that its
constrained financial circumstances , drastic downturn in business and
decline in revenue as well as the devastating effects of Covid- 19, constituted
a sound reason for retrenchment. In fact, it resulted in the retrenchment of 12
employees. Measured against the applicable standards, it cannot be said
that the Plaintiff’s retrenchment was irrational or disconnected from Mamba’s
operational requirements, nor that it was an unreasonable option in the
prevailing circumstances.
[29] The Defendant indeed discharged its onus to establish an operational
rationale, which was justifiable and reasonable.
[30] The Plaintiff’s contention that there was no consideration of alternatives and
[30] The Plaintiff’s contention that there was no consideration of alternatives and
that she should have been moved to a control room position is without merit.
[31] The evidence showed that the Plaintiff was informed of a vacant control
centre operator position at another entity, Mamba Strike, but she did not
apply for the position. The Plaintiff, in her evidence before the Court,
10
conceded that she had not applied for the said vacant position, as she did
not possess the required PSIRA qualification.
[32] In relation to the selection criteria, the Plaintiff has not pleaded that the
criteria applied were unfair or applied unfairly. In the pre- trial minute , the
Plaintiff recorded that there was no selection criteria and that the Defendant
failed to use fair and reasonable criteria.
[33] I already referred to the LAC authority, which confirmed that t he case
pleaded cannot be changed or expanded by the terms of a pre-trial minute,
and that, if it does, the change must go hand in hand with a necessary
amendment. The chief objective of the pre- trial conference is to agree on
limiting the issues to be tried and to shrink the scope of the issues to be
advanced by the litigants.
[34] The Plaintiff cannot be permitted to include a dispute about the fairness of
selection criteria in a pre- trial minute, when that was not part of her pleaded
case.
[35] In conclusion , the Defendant has discharged the onus to prove that the
Plaintiff’s retrenchment was substantively fair.
Procedural fairness
[36] Section 189(1) of the LRA requires an employer to consult with certain
parties when it contemplates retrenchment. The employer must invite the
relevant parties to consult by way of a notice issued in terms of section
189(3). Section 189(3) enumerates the relevant information that is required
to be disclosed to the consulting parties.
[37] Section 189(2)(a) of the LRA provides that the employer and other consulting
parties must consult and engage in a meaningful joint consensus -seeking
process to attempt to reach consensus on certain prescribed issues.
[38] The main objective of consultation before a final decision on retrenchment is
taken must be to avoid retrenchments altogether, alternatively to reduce the
11
number of retrenchments and to mitigate the consequences 16. The objective
is not to ensure that the status quo is maintained.
[39] Section 189 of the LRA imposes a number of obligations in peremptory
terms, for instance, that the employer ‘must consult’, ‘must issue a written
notice’, and that the employer and the other consulting parties ‘must’ engage
in a meaningful joint consensus-seeking process.
[40] Consultation in a retrenchment process must be distinguished from
negotiations during a collective bargaining process. Consultation in
anticipation of retrenchment calls for a joint problem -solving approach to
explore the needs of all parties. Section 189(2) places an obligation on both
parties to consult. The employer has to invite the other parties to consult, but
the consultation process is a two- way street and requires engagement by all
the consulting parties, with the aim of reaching consensus. There is a duty on
the other consulting party to put alternatives on the table and to participate
meaningfully.
[41] The Plaintiff’s pleaded case is that her dismissal is procedurally unfair
because she was not part of the consultation process, because the
Defendant failed to consult in good faith ‘ and the Defendant decided
unilaterally to appoint Ms Terblanche, to represent her and others’.
[42] Ms Terblanche testified that she was elected by the employees in the
technical department as their representative during the retrenchment
consultation process. She explained that the section 189 (3) notice was
issued on 28 April 2020 to all employees in the technical department. The
section 189 (3) notice sets out the reason for the contemplated need to
retrench as the economic conditions occasioned by the pandemic, the drastic
decline in revenue and the fact that the current structure became
unsustainable. The notice further addressed all the topics, as envisaged in
section 189(3) and stated inter alia that 13 positions would be affected out of
section 189(3) and stated inter alia that 13 positions would be affected out of
the 15 employees, LIFO would be used as proposed method of selection and
severance pay would be as per the provisions of section 41 of the Basic
Conditions of Employment Act
17 (BCEA). It was made clear in the notice that
16 Atlantis Diesel Engines (Pty) Ltd v National Union of Metalworkers of SA (1994) 15 ILJ 1247 (A).
17 Act 75 of 1997.
12
elected employee representatives would participate in the consultation
process.
[43] Ms Terblanche testified that the first consultation meeting was held on 4 May
2020, and the second on 8 May 2020, both of which she attended as the
elected employee representative. The second consultation focussed on
alternatives to retrenchment. She referred to the minutes of the two meetings
and explained that a consultation was held with all the employees in the
technical department, including the Plaintiff, where all the issues discussed in
the consultation meetings were discussed with the employees, questions
were answered, and they were provided with the minutes of the meetings.
[44] A third consultation was held on 14 May 2020, with the focus on selection
criteria, and the same process was followed. A meeting was held with all the
employees on 15 May 2020 to give them feedback and to provide them with
copies of the minutes.
[45] Ms Terblanche testified that the Plaintiff attended all the aforesaid meetings,
she was properly consulted and she never objected to Ms Terblanche being
the elected representative of the employees in the technical department. The
Plaintiff also did not object to the process followed and she raised no issues.
Had the Plaintiff objected, she too could have attended the meetings which
Ms Terblanche had attended as elected representative.
[46] The gist of the Plaintiff’s case is that she was not part of the consultation
process because a representative was elected to attend the consultation
meetings with Mamba’s management.
[47] There is no merit in this complaint. Section 189(1)(d) of the LRA provides
specifically for an employer to consult with a nominated representative of the
employees likely to be affected by the proposed dismissals. There is no
requirement in the LRA, or in general, that when a representative has been
elected to consult with the employer, the employer must consult with the
elected to consult with the employer, the employer must consult with the
affected employees directly and individually. Consultation with the nominated
representative constitutes consultation for purposes of section 189.
[48] Ms Terblanche gave feedback to the employees, including the Plaintiff, after
consulting with the employer; she discussed the issues with them, provided
13
them with copies of the minutes, and raised the issues the employees had
with the employer.
[49] The Plaintiff’s case that she was not part of the consultation process because
Ms Terblanche was representing the employees has no merit and is
premised on a wrong understanding of the provisions of section 189 of the
LRA. She was indeed invited to consult on the issues prescribed in section
189 (3) and the evidence shows that three consultation meetings were held,
which were attended by the Plaintiff and she did not adduce any evidence to
show that she objected to the process or that she was denied an opportunity
to be consulted.
[50] The Plaintiff’s dismissal was procedurally fair.
[51] In my view this is a case where the interest of justice will be best served by
making no cost order.
[52] In the premises, the following order is made:
Order
1. The Plaintiff’s case is dismissed;
2. There is no order as to costs.
__________________
Connie Prinsloo
Judge of the Labour Court of South Africa
14
15
Appearances:
For the Plaintiff: In person
For the Defendant: Ms T von Holdt from Von Holdt Attorneys