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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: 2026-201594
POLICE AND PRISONS CIVIL RIGHTS UNION
ON BEHALF OF MAJOR GENERAL FEROZ KHAN Applicant
and
MINISTER OF POLICE First Respondent
ACTING NATIONAL COMMISSIONER OF THE
SOUTH AFRICAN POLICE SERVICE:
LT GENERAL H.K. SENTHUMULE Second Respondent
DIVISIONAL COMMISSIONER: CRIME INTELLIGENCE:
LT GENERAL S.D. KHUMALO Third Respondent
MAJOR GENERAL J.B. KHUMALO N.O. Fourth Respondent
Heard: 25 and 26 August 2026
Delivered: 31 August 2026
JUDGMENT
PRINSLOO, J
(1) Reportable: Yes
(2) Of interest to other Judges: No
(3) Revised
TDM 31/08/2026
____________ ______________
Signature Date
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Introduction
[1] The Applicant (POPCRU), acting on behalf of its member (Khan) approached
this Court on an urgent basis to interdict the Respondents from invoking
Regulation 9(7) of the South African Police Service Discipline Regulations,
20161 (Regulations) pending the determination of an application for
declaratory relief, premised on the provisions of sections 22 and 23 of the
Basic Conditions of Employment Act 2 (BCEA) and a review of inter alia the
decision to invoke Regulation 9(7)(a) and (b) and of the refusal of an
application for legal representation and the postponement of the disciplinary
proceedings.
[2] The application is opposed. The Respondents raised urgency, jurisdiction and
locus standi as points in limine. I will deal with the points infra.
The Regulations
[3] Regulation 9 is central to the matter before me. The Regulations were
promulgated to regulate discipline within the South African Police Service
(SAPS), and their purpose is, inter alia, to provide a framework for the
application of discipline in a prompt, fair, consistent, and progressive manner,
as part of a line management function.
[4] Regulation 9 provides for an expedited process, and relevant for purposes of
this judgment are the following provisions:
‘Expeditious Process
(1) A supervisor who is satisfied that the alleged misconduct is of a serious
nature and or falls within the ambit of regulation 5(4) he or she must ensure
that the expeditious process is initiated, and a full substantiated report is
submitted to the National Commissioner or a person designated by him or
her, which person may not hold a rank lower than that of Brigadier and
assumes the power of the employer for purposes of this regulation.
1 GN R1361, GG 40389, 1 November 2016.
2 Act 75 of 1997, as amended.
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(2) The said person must-
(a) on receipt of the full substantiated report satisfy himself or herself that
the alleged misconduct is misconduct as contemplated in regulation
6(4) and that the nature of the misconduct justifies an expeditious
procedure;
(b) if satisfied that the misconduct justifies an expeditious procedure he or
she must notify the employee of the allegations of misconduct and
instruct the employee to appear before him or her to answer to the
allegations of misconduct. The notice must contain a description of the
allegations of misconduct, that he or she has the right to be
represented, the date and time when the employee must appear, and
supporting documents and statements (if available). The notice period
may not be less than five (5) calendar days , and it must be served in
the manner set out in these Regulations. If not satisfied that the
misconduct justifies an expeditious procedure he or she must refer the
matter back to the supervisor for it to be dealt with in accordance with
the normal procedure;
(c) when the employee appears before him or her, he or she must inform
the employee of the allegations of misconduct and allow the employee
to defend him - or herself against the allegations (as provided in the
expeditious procedure). The said person may take any steps deemed
necessary to finalise the matter provided for in these Regulations;
……
(7) If the employee fails to appear before the said person referred to in regulation
9(1) on the date set out in the notification or any other date determined -
(a) the employee shall, from the date of such failure to appear, be
deemed to be suspended without remuneration;
(b) the said person must postpone the matter indefinitely, and it shall only
reconvene at the instance of the employee concerned, after liaising
with such person: Provided that in the event that the employee fails to
take steps to reconvene the matter within ten (10) working days of
take steps to reconvene the matter within ten (10) working days of
such date, the said person must record such failure and the employee
shall forthwith be deemed to be discharged from the Service; and
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(c) in the event of the matter being reconvened the said person must
inquire into the reasons for the employee's failure to appear and in the
absence of good cause shown, confirm or set aside the suspension
and finalise the matter,
(8) If the all eged misconduct does not justify an expeditious procedure, the
procedure as per regulation 8(1), (2), (3), (4) and (5) must be followed.’
Background
[5] Khan is employed as the Head of Crime Intelligence and holds the rank of
Major General.
[6] On 28 June 2026 Khan was shot and subsequently hospitalised until 17 July
2026. On 29 July 2026, Khan’s representative was served with a notice of an
expedited disciplinary process as envisaged in Regulation 9(2) (b). The
supporting material was also delivered, and proceedings were scheduled to
commence on 12 August 2026. Khan was required to appear in person at an
inquiry scheduled for 12 to 14 August 2026.
[7] At the time the expedited process was initiated, Khan had a medical certificate
stating he was booked off work until 3 August 2026. The dates he had to
appear in terms of the Regulation 9(2)(b) notice were after the expiry of the
period indicated on his medical certificate.
[8] Khan did not appear on 12 August 2026 , as was required, but instead
POPCRU and his legal representatives appeared on his behalf . They
presented two applications to the Fourth Respondent ( presiding officer ), to
wit: an application for legal representation and an application for
postponement. The Applicant sought a postponement until the expiry of
Khan’s medical incapacity and the reassessment of his condition. The
application for legal representation was refused.
[9] The presiding officer also rejected the postponement application and directed
that the proceedings be convened the following day, 13 August 2026, and that
Khan was required to attend, even if virtually.
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[10] Once again, Khan failed to appear. On 17 August 2026, the chairperson
delivered a written decision, which form s the subject matter of the review
application. Regulation 9(7) was invoked , and it exposed Khan to suspension
without remuneration and the operation of the ten working day mechanism
contemplated in Regulation 9(7)(b). The said period expired on 26 August
2026.
[11] The presiding officer recorded that Khan, as the charged employee, was
afforded a period of ten working days, expiring on 26 August 2026, within
which to reconvene and/ or liaise with him in relation to the disciplinary
proceedings. It was clearly recorded that s hould Khan fail to do so within the
prescribed period, the disciplinary process shall proceed in accordance with
the provisions of Regulation 9(7)(b).
[12] The Applicant subsequently filed this urgent application , instead of liaising
with the presiding officer.
[13] The Applicant submitted that Regulation 9(7) must be used in exceptional
circumstances and that there is no objective reason why this should have
been invoked. It was submitted that t he narrow issue is whether R egulation
9(7), with its extraordinary consequences of suspension without remuneration
and potential deemed discharge, could lawfully and rationally be invoked
against an employee whose non- attendance was medically explained,
objectively supported by medical evidence, while he actively engaged with the
process through his representatives. This will nevertheless be an issue to be
canvassed under Part B of this application when the review of such decision
is considered.
[14] The Respondents’ case is that the Applicant has instituted an urgent
application to interdict the disciplinary process, rather than liaising with the
presiding officer regarding when the disciplinary proceedings can be
reconvened, as provided for in Regulation 9(7). The Applicant rather seeks to
stop the process by seeking the Court’s intervention. The Applicant uses the
stop the process by seeking the Court’s intervention. The Applicant uses the
Court to stall the coming into operation of the regulatory provisions. All that
Khan is required to do to avoid the drastic consequences of this non -
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appearance is to liaise with the presiding officer as to when the disciplinary
process will reconvene.
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Analysis
[15] As already alluded to, the Respondents raised points in limine that warrant
closer consideration.
Jurisdiction
[16] The first issue to be considered is whether this Court has jurisdiction to grant
the relief sought by the Applicant in part A of his notice of motion. This Court
is not concerned with the merits of part B (the review application) as the
Applicant does not seek to pursue the review application as an urgent matter.
[17] In part A, the Applicant seeks the following relief:
‘1. Pending the final determination of Part B of this application, including any
application for leave to appeal and appeal prosecuted with reasonable
expedition:
a. the operation and implementation of the decision and/or ruling of the
Fourth Respondent dated 17 August 2026, invoking Regulation 9(7) of
the South African Police Service Discipline Regulations, 2016 ("the
impugned decision") in respect of Major General Feroz Khan, is
suspended;
b. the Respondents are interdicted and restrained from invoking,
implementing or giving effect to Regulation 9(7)(a) against Major
General Khan pursuant to the impugned decision;
c. the Respondents are interdicted and restrained from suspending
Major General Khan without remuneration, alternatively withholding
any salary, remuneration, medical aid, benefits or other employment -
related entitlements pursuant to the impugned decision;
d. the running of the ten- working-day period contemplated in Regulation
9(7)(b), and recorded by the Fourth Respondent as having
commenced on 13 August 2026 and expiring on 26 August 2026, is
suspended;
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e. the Respondents are interdicted and restrained from deeming Major
General Khan to have been discharged from the South African Police
Service pursuant to Regulation 9(7)(b);
f. the Respondents are interdicted and restrained from recording,
processing, implementing or otherwise giving effect to any deemed
discharge of Major General Khan pursuant to the impugned decision;
g. Major General Khan shall not be regarded as having failed to take any
step contemplated in Regulation 9(7)(b) during the period in which the
orders granted under Part A remain operative.
h. Major General Khan’s absence from the disciplinary proceedings
during the currency of his medically certified incapacity shall, pending
the final determination of Part B, be treated as absence on authorised
sick leave, and his remuneration and benefits shall continue to be paid
accordingly.
2. Pending the final determination of Part B, the Respondents are interdicted
and restrained from proceeding further with the Regulation 9(2)(b)
disciplinary proceedings against Major General Khan arising under
case/reference number CI HQ DR 40/05/2026.
3. To the extent that any salary, remuneration or employment benefit has
already been withheld pursuant to the impugned decision, the Respondents
are directed forthwith to restore payment thereof pending the determination
of Part B.’
[18] The Applicant pleaded that:
‘the present matter directly concerns the exercise of public power against one
of the Applicant’s members and threatens his employment, his remuneration,
his contractual entitlement to remuneration under the incapacity leave granted
to him, and his constitutional right to fair labour practices. In addition, the
applicant has a direct institutional interest in ensuring that disciplinary powers
exercised by SAPS against its members remain within the limits of the
empowering Regulations and the Constitution.’
[19] On jurisdiction, the Applicant submitted that Khan’s primary claim is
[19] On jurisdiction, the Applicant submitted that Khan’s primary claim is
contractual. The impugned decision strips him of remuneration assured to him
by the grant of incapacity leave. It was made clear that this is not ‘an unfair
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dismissal claim disguised as a review” and that the Applicant does not ask
this Court to determine whether a dismissal is fair under the LRA. The issue is
that Regulation 9(7) purports to alter Khan’s remuneration and employment
status and creates a mechanism capable of terminating his employment by
operation of the Regulation. As the matter concerns a contract of
employment, the Court has jurisdiction under section 77(3) of the BCEA.
[20] The Respondents disputed this Court’s jurisdiction and stated that the
Applicant has no remedy for this Court to intervene or interdict incomplete
disciplinary proceedings; accordingly, this Court has no jurisdiction to
determine whether the disciplinary hearing should be interdicted pending the
review application. The Labour Court does not have any jurisdiction to
intervene or adjudicate any alleged unfairness, unlawfulness, illegalities or
irregularities pertaining to any conduct or failure of any party t o the
employment relationship, where it comes to incomplete disciplinary
proceedings. Regulation 9(7) is the product of a collective agreement, and
matters specific to the Regulations fall within the jurisdiction of the Safety and
Security Sectoral Bargaining Council (SSSBC). The Respondents further
submitted that the provisions of Regulation 9(7) are triggered by the operation
of law and that there is no ‘decision’ which could be the subject of an
application for review.
[21] The Applicant’s answer is that the Respondents’ characterisation of the matter
as an attempt to interdict an incomplete disciplinary process, misconstrues the
application. This is so because a decision has already been taken under
Regulation 9(7), with consequences for Khan’s remuneration and imminent
discharge. In argument, I canvassed the issue of jurisdiction with Mr Dollie, for
the Applicant, and he submitted that this is not an unfair dismissal dispute but
a contractual claim, and that, therefore, this Court has jurisdiction. Mr
a contractual claim, and that, therefore, this Court has jurisdiction. Mr
Mphahlele, for the Respondents, submitted that the Regulations constitute a
collective agreement that binds the Applicant and the Respondents, and that
this is not a case premised on a contractual claim.
[22] In my view, this is a classic case of ‘disavowal’ - a litigation strategy where an
employee attempts to bypass the statutory dispute resolution procedures set
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out in the LRA, by explicitly denying or ‘disavowing’ any reliance on the LRA .
In employing the disavowal strategy, an internal disciplinary process, a
dismissal or suspension, is framed as a breach of contract or an ‘unlawful’ act,
so that the employee could rush directly to the Labour Court on an urgent
basis, where all or any reference to ‘fairness’ or the LRA is then renounced.
[23] Distilled to its essence, Part A of the relief sought seeks an order to interdict
and restrain the Respondents from invoking, implementing or giving effect to
Regulation 9(7)(a) against Khan, from suspending him without remuneration,
from deeming Khan to have been discharged from the SAPS pursuant to
Regulation 9(7)(b) and from proceeding further with the Regulation 9(2)(b)
disciplinary proceedings against him. Although couched as a contractual
claim, t he relief sought does not aris e from a breach of contract but rather
from the institution and application of the Regulations, which provide the
framework for disciplinary action within the SAPS.
[24] The Labour Appeal Court (LAC) in Passenger Rail Agency of South Africa and
Others v Ngoye and Others
3 held that:
‘While there are provisions in the legislation, notably section 77(3), that
endow the Labour Court with authority to adjudicate contractual claims. In my
view, these provisions must be interpreted by having regard to the objectives
sought to be achieved by the labour law dispensation as a whole. I do not
believe that the intention of the legislature in enacting section 77(3) was to
give the Labour Court jurisdiction over disputes that arise from dismissals and
ULPs which should, in the first instance, be categorised as unfair dismissal
disputes or unfair labour practice disputes and dealt with by the CCMA. In
dealing with employment disputes, our first point of reference should be the
constitutional right to fair labour practices, which is given effect in the LRA.’
(My emphasis)
(My emphasis)
The motive for litigants choosing to follow an alternate route to that which is
set out in the LRA is seemingly to be awarded a quicker remedy than that
which is available in terms of the LRA. However, it appears that litigants are
not aware of the requirements that must be met to qualify for a contractual
3 (2024) 45 ILJ 1228 (LAC) at paras 28 and 29.
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remedy such as specific performance or damages. This is potentially the
reason for the proliferation in the use of contractual recourse. In this regard, I
refer to what was said by this Court more than five years ago in Toyota SA
Motors (Pty) Limited v Nzuza and others:
“….it appears to have become fashionable for dismissed employees to
come to the Labour Court in terms of the BCEA and claim breach of
contract seeking either specific performance or damages. I do not
know the reason that has given rise to this, but the risk associated
with claims made in terms of the BCEA, as in this matter before this
Court, is enormous. Firstly, unlike in the LRA the claimant must prove
an unlawful breach and not unfairness for the termination of the
employment; next in terms of the LRA reinstatement is generally
compulsory where a dismissal is found to be substantively unfair,
specific performance consequent upon a breach is not, and generally
it is a discretionary relief.” ‘
[25] In SA Broadcasting Corporation (SOC) Limited v Commission for Conciliation,
Mediation and Arbitration and Others 4, the Court was faced with a matter in
which the employer denied having dismissed an employee and instead
submitted that it was a termination of the contract. The Court held that:
‘The point in limine amounts to an assertion that an employer is entitled to
elect to treat an act of alleged misconduct by an employee either as a breach
of contract, or a breach of a disciplinary rule. In the former case, the
employee may not claim to have been dismissed in the sense that ‘dismissal’
is defined in s 186 of the LRA , and may certainly not claim to have been
unfairly dismissed. Any recourse by the employee, so the argument goes, is
thus confined to a contractual remedy, a remedy that the CCMA is not
empowered to grant. This proposition only has to be stated in those terms to
illustrate how profoundly unsound it is.
The definition of ‘dismissal’ in s 186 of the LRA expressly includes
The definition of ‘dismissal’ in s 186 of the LRA expressly includes
circumstances where the employer “has terminated employment with or
without notice.” Whether the employer casts the termination in the contractual
language of acceptance of the repudiation of a contract of employment and
4 (2020) 41 ILJ 493 (LC) at para 12.
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an election to cancel the contract, this is no more or no less than a
termination of employment, with or without notice (i.e. a summary
termination), which in turn, by definition, constitutes a dismissal for the
purposes of s 186. This is a matter over which the CCMA exercises
jurisdiction, at least where the reason for dismissal is misconduct, a reason
that is not in dispute in the present instance (see s 191(5)).
I find it disconcerting to have to record such a trite principle – to any labour
lawyer, this is a statement of the manifestly obvious. Were the SABC’s point
in limine to be upheld, it would be open to employers to avoid the statutory
consequences of an unfair dismissal simply by casting a termination of
employment in common law contractual terms. The inadequacies of the law of
contract to protect employees against a termination of employment without a
fair reason and without following a fair procedure is the raison d’etre of the
statutory protection against unfair dismissal. This protection has its roots in
the power imbalance inherent in the employment relationship and the
remedial constitutional right to fair labour practices, a fact acknowledged
many times over by this court, the LAC and the Constitutional Court.
[26] The same principles apply where an employee seeks to avoid the statutory
consequences of an unfair disciplinary process, suspension or dismissal by
framing the dispute in contractual terms.
[27] The Labour Court derives its jurisdiction from section 157(1) and (2) of the
LRA and its powers from section 158 thereof. In Natal Sharks Board v SA
Commercial Catering and Allied Workers Union and Others 5 the Court held
that ‘Powers and jurisdiction are separate concepts that should not be
confused.’
[28] In Moropane v Gilbeys Distillers and Vintners (Pty) Ltd and Another6 the Court
held that:
‘I must accordingly turn to the question whether this court has jurisdiction to
entertain the present application. This question is intimately intertwined with
entertain the present application. This question is intimately intertwined with
the question whether the applicant has a right to have the court intervene and
come to his assistance at this stage. I might, at the outset state that if the
5 1997 18 ILJ 1324 (LC) at p1327 I.
6 1998 19 ILJ 635 (LC) at p638 E-F.
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court has the jurisdiction it would have the power to grant an appropriate
remedy. …… But because it has a power does not mean that it has
jurisdiction. This proposition is sometimes overlooked.’
[29] In Shezi v SA Police Service and Others 7(Shezi) the Court considered the
issue of jurisdiction and held that:
‘This court is a creature of statute. Its inherent powers, authority and standing
are equal to that of a Division of the High Court, but only in relation to matters
under its jurisdiction (see section 151 (2) of the LRA). There is a
misconception that the court has jurisdiction over all disputes that arise in the
context of an employment relationship. It does not.’
[30] The question is whether, absent a specific statutory provision that delineates
the Labour Court’s jurisdiction, intervention in internal suspension disputes
and incomplete disciplinary proceedings are matters that arise in terms of the
LRA or another law, and which are to be determined by the Labour Court.
[31] The Applicant did not point to any specific provision in the LRA , save for
broad reference to sections 157 and 158 of the LRA and to sections 22 and
23 of the BCEA, which confer jurisdiction on this Court to interfere in internal
suspensions or incomplete internal disciplinary hearings.
[32] As alluded to, the pertinent question is whether this Court has jurisdiction to
intervene in internal suspensions or incomplete internal disciplinary hearings.
[33] The jurisdiction of the Labour Court is specifically circumscribed and
determined in s ection 157 of the LRA and it does not include general
jurisdiction to intervene, in medias res and on an urgent basis, in any conduct
of an employer, relating to inter alia the conducting of discipline or suspension
etcetera, in the event that it is pleaded that such conduct is unfair or unlawful.
[34] In Steenkamp and Others v Edcon Ltd (National Union of Metalworkers of SA
intervening)
8(Edcon), the Constitutional Court considered whether the Labour
intervening)
8(Edcon), the Constitutional Court considered whether the Labour
Court had jurisdiction to determine if a dismissal was unlawful, as opposed to
being unfair. As the LRA created special rights and obligations that do not
7 (2021) 42 ILJ 184 (LC) at para 9.
8 (2016) 37 ILJ 564 (CC) at para 130.
14
exist at common law, including the right of an employee not to be
unfairly dismissed, it also created principles applicable to those rights, as well
as special processes and fora for their enforcement. The Court confirmed that
where the LRA bestows a right, it equally prescribes a specific process that
must be followed to give effect to such right, or to enforce that right. It was
held that:
‘The scheme of the LRA is that, if it creates a right, it also creates processes
or procedures for the enforcement of that right, a dispute-resolution procedure
for disputes about the infringement of that right, specifies the fora in which
that right must be enforced and specifies the remedies available for a breach
of that right.’
[35] In Cibane and Another v Premier , Province of Kwazulu- Natal and Another 9
(Cibane) the LAC confirmed that, outside the scope of any statutory provision
that specifically confers jurisdiction on the Court, the Labour Court has no
jurisdiction, in any general sense, to determine the unlawfulness of employer
conduct. The position was finally clarified by the LAC , which pertinently
revisited Booysen, with due regard to what was decided in Edcon. Specifically
referring to the dicta in Edcon, the LAC held that:
‘It is clear from this passage that outside of the scope of any statutory
provision that specifically confers jurisdiction on the Court, the Labour Court
has no jurisdiction, in any general sense, to make any determination of the
unlawfulness of employer conduct.’
[36] The LAC held that:
‘In summary: to the extent that Booysen has been interpreted to establish a
general rule, qualified only by exceptionality, that the Labour Court has
jurisdiction to intervene in uncompleted disciplinary proceedings, this is not an
interpretation that can be sustained by section 157(1) of the LRA. As with
every matter that serves before the Labour Court, jurisdiction is a matter to be
determined in every case by reference to the pleadings and an enabling
determined in every case by reference to the pleadings and an enabling
statutory provision, in the form of the LRA or other jurisdiction conferring
statute, that extends jurisdiction to the Court to adjudicate the dispute
disclosed by the pleadings.
9 (2025) 46 ILJ 2587 (LAC) at para 24 and 32.
15
[37] It is evident from Cibane that the LAC clarified the position to be that there is
no general rule to the effect that the Labour Court has jurisdiction to
intervene in medias res to restrain any alleged illegalities, irregularities or
unfairness in incomplete disciplinary proceedings.
[38] In Mabhena v Theewaterskloof Municipality and Others 10 the Court followed
Cibane and held as follows:
In my view, Cibane has now clarified the issue of jurisdiction of the Labour
Court under section 157(1) where it comes to intervening in medias res in
internal disciplinary proceedings in an employer that are not completed. The
Labour Court does not have any general jurisdiction to intervene and / or
adjudicate any alleged unfairness, unlawfulness, illegalities or irregularities
pertaining to any conduct or failure of any party to the employment
relationship where it comes to incomplete internal disciplinary proceedings.
What the applicant in any litigation proceedings, where intervention from the
Labour Court is sought, must do, is to substantiate the jurisdiction of the
Labour Court by specifically matching the cause of action or issue in dispute,
to a specific provision as contained either in the LRA itself or in any other
related employment law, such as for example the Employment Equity Act
(EEA) or Basic Conditions of Employment Act (BCEA). The applicant must
also specifically indicate on what provision in any of these items of legislation
the applicant relies. If that cannot be done, or is not done, then there is no
jurisdiction. (Footnotes omitted)
[39] In casu Khan effectively seeks to stay his internal disciplinary process and the
consequences of Regulation 9(7), pending an application for review of the
said process as well as an application for declaratory relief in terms of the
BCEA. Although this Court has jurisdiction to adjudicate disputes under the
BCEA, as provided for in section 77(3) of the BCEA, it has no jurisdiction to
BCEA, as provided for in section 77(3) of the BCEA, it has no jurisdiction to
intervene in incomplete internal disciplinary hearings or suspension disputes.
[40] In any event, Khan’s reference to sections 22 and 23 of the BCEA does not
assist him in this urgent application and the relief sought in Part A. This is
because the dispute is evidently about Regulation 9(7), its operation and
application, and not about whether Khan has a right to sick leave.
10 (2026/128968) [2026] ZALCCT 106 (30 June 2026) at para 52.
16
[41] Section 23(1) of the Constitution guarantees everyone the right to fair labour
practices. The LRA was enacted to give effect to the said section. T o the
extent that t he Applicant placed reliance on the Constitution , such reliance
cannot assist the Applicant by virtue of the application of the principle of
subsidiarity. The LRA gives effect to section 23 of the Constitution, which
makes direct reliance on the Constitution in disputes under the LRA
impermissible. The prohibition of unfair conduct in the workplace is regulated
by the LRA, pursuant to the Constitutional imperative in section 23, which
gives effect to this right. It follows that the Applicant cannot rely on the
Constitution directly to assert his rights set out in the LRA, without challenging
the constitutionality of the LRA. This is made clear by the Constitutional Court
in My Vote Counts NPC v Speaker of the National Assembly and Others11:
‘First, allowing a litigant to rely directly on a fundamental right contained in the
Constitution, rather than on legislation enacted in terms of the Constitution to
give effect to that right, would defeat the purpose of the Constitution in
requiring the right to be given effect by means of national legislation. Second,
comity between the arms of government enjoins courts to respect the efforts
of other arms of government in fulfilling constitutional rights. Third, allowing
reliance directly on constitutional rights, in defiance of their statutory
embodiment, would encourage the development of two parallel systems of
law … ’
[42] It was confirmed, once again, that the LRA has created a statutory dispute
resolution process to determine substantive and procedural fairness of
dismissals and that disputes about procedures followed in disciplinary
proceedings ought to be determined by the institutions created for that
purpose. It was held that12:
‘This approach is consistent with the structure of the LRA as it applies to
‘This approach is consistent with the structure of the LRA as it applies to
workplace discipline. The Act replaced the onerous procedural requirements
in disciplinary enquiries developed by the industrial court under the 1956 LRA
with a focus on informal workplace disciplinary processes and arbitration as
the primary means to ensure fair employer conduct (see Avril Elizabeth
11 2016 (1) SA 132 (CC) at para 160. See also South African Human Rights Commission obo South
African Jewish Board of Deputies v Masuku and Another 2022 (4) SA 1 (CC) at para 102; SA National
Defence Union v Minister of Defence and Others (2007) 28 ILJ 1909 (CC) at paras 50 – 51.
12 Id fn 7 at para 21.
17
Homes [2006] 9 BLLR 833 (LC)). As the court has previously observed
(Ngobeni v Prasa Cres and others [2016] 8 BLLR 799 (LC), urgent
applications where this Court is asked to intervene in disciplinary hearings run
the risk of bypassing the statutory dispute resolution structure as established
by the LRA, in the form of the CCMA and bargaining councils. One of the
primary functions of those structures is to determine the substantive and
procedural fairness or otherwise of dismissals. This court, and in particular the
urgent court, has regrettably become the means through which process -
related grievances are sought to be aired, more often than not as an element
of a legal strategy in which every step of a disciplinary process is subjected to
challenge. This Court ought to be cautious not be become a willing
accomplice to strategies of this nature. Genuine disputes about fair procedure
in the exercise of workplace discipline ought to be determined at the lowest
possible level primarily by the institutions created for that purpose.’
[43] In George v Nyoka and Others 13 the Court also dealt with an urgent
application to intervene in disciplinary proceedings. The Court remarked on
the stratagem to approach this Court on an urgent basis to intervene in
workplace disciplinary hearings as follows:
‘The Court deems it necessary to outline all of the above for the simple
reason that these antiquated shenanigans, exhausting as they are, in the end
come back to bite the employees when claiming urgency in this Court. This
Court has consistently rebuked such truant like antics, which are in most
instances aided and encouraged by legal representatives. My colleague van
Niekerk J recently delivered a trio of judgments that concerned attempts at
halting internal disciplinary hearings, and in all instances, costs were awarded
against recalcitrant applicants. These judgments are amongst numerous
others delivered in this Court from the urgent roll, which have consistently set
others delivered in this Court from the urgent roll, which have consistently set
out the law and the difficulties the applicants face when approaching the court
on an urgent basis with applications to stay internal proceedings. These
frivolous applications have caused strain on the limited judicial resources of
this Court. This message has clearly not filtered through to employees or their
legal representatives.
13 [2023] 7 BLLR 654 (LC) (10 March 2023) at paras 3 and 4.
18
These antics are truly exhausting, not only to the court’s resources but also
because in the end, they turn out to be financially draining for the already
financially depleted municipalities or government departments and its entities.
This is particularly so since in most internal disciplinary enquiries held in all
spheres of government, legal practitioners are engaged to act as initiators or
chairpersons in those enquiries. I am not even taking into account all the
other officials who are taken away from their real work, in order to attend to
these stop-start disciplinary enquiries. These antics are an antithesis of the
primary purpose and objectives of the Labour Relations Act (LRA), primary of
which is to have labour disputes resolved expeditiously. They do not have a
place either in the workplace or in this Court, if the primary objectives of the
LRA are to be achieved.’
[44] The LRA envisages a disciplinary hearing as a quick, efficient process, not to
be impeded by onerous procedural requirements. The LRA protects the right
not to be unfairly dismissed and provides remedies to employees who are
unfairly dismissed. The fairness of a dismissal, be it substantive or procedural,
is to be decided consequent to dismissal through the statutorily designed
dispute resolution mechanisms. I reiterate what the Court held in Avril
Elizabeth Home: true justice lies in an employee’s right to an expeditious and
independent review of the employer's decision to dismiss, with reinstatement
as the primary remedy when the substance of the employer's decision is
found wanting. For employers, this right of resort to expeditious and
independent arbitration was intended not only to promote rational decision-
making about workplace discipline but also to acknowledge that the elaborate
procedural requirements developed prior to the LRA, as it now applies, were
inefficient and inappropriate. If the fairness of a dismissal is disputed,
inefficient and inappropriate. If the fairness of a dismissal is disputed,
arbitration is the primary forum for determining the dispute through a more
formal process.
[45] In my view, the Respondent’s point on the lack of jurisdiction has merit.
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Urgency
[46] Even if I am wrong on the issue of jurisdiction, there is another reason why
this application must fail.
[47] Rule 38 of the Rules for the Conduct of Proceedings in the Labour Court
provides for urgent applications. An applicant who approaches the court on an
urgent basis essentially seeks indulgence and preference to prevent prejudice
or harm if the conduct complained of continues. Central to a determination of
whether a matter is urgent is whether the applicant has in the founding
affidavit, set forth explicitly, the circumstances which render the matter urgent,
and the reason why substantial relief cannot be attained at a hearing in due
course. Thus, it is required of an applicant to adequately set out in his or her
founding affidavit the reasons for urgency, and to give cogent reasons why
urgent relief is necessary.
14
[48] In Mojaki v Ngaka Modiri Molema District Municipality and others 15 the court
referred with approval to the following dictum from East Rock Trading 7 (Pty)
Ltd & another v Eagle Valley Granite (Pty) Ltd & others16:
‘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 absence of substantial redress in an application in due course. The
rules allow the court to come to the assistance of a litigant because if the
latter were to wait for the normal course laid down by the rules it will not
obtain substantial redress.'
[49] The principles regarding urgency have been developed and considered by the
courts, and on numerous occasions the courts have made it clear that self -
created urgency is not to be entertained by an urgent Court.
created urgency is not to be entertained by an urgent Court.
14Transport and Allied Workers Union of SA vs Algoa Bus Company (Pty) Ltd (2015) 36 ILJ 2148
(LC).
15 (2015) 36 ILJ 1331 (LC) at para 17.
16 (11/33767) [2011] ZAGPJHC 196 (23 September 2011) at para 6.
20
[50] In Soobedar and another v Minister of International Relations and
Cooperation and another 17 the Court restated the principles applicable to
urgent applications and held that:
‘The principles applicable to urgency are trite as can be gleaned from various
decisions of this and other courts. An applicant that approaches the court on
an urgent basis essentially seeks an indulgence, and to be afforded
preference in order to prevent prejudice and harm that may materialise or
persist, if the conduct complained of continues. Central to a determination of
whether a matter is urgent is whether the applicant has in the founding
affidavit set forth explicitly the circumstances which render the matter urgent,
and the reason why substantial relief cannot be attained at a hearing in due
course.’
[51] Emanating from the provisions of Rule 38 and the principles set out in the
authorities referred to, it is evident that urgency is not there for taking, and an
applicant seeking urgent relief must adequately and in detail, set out the
reasons why the matter before the court should be treated with urgency.
[52] The Respondents challenge the urgency of this application and submit that
the Applicant must explicitly set forth the reasons why Khan claims he could
not be afforded substantial redress in due course. The Respondents’ case is
that Khan had a substantial redress a t a hearing in due course in that
Regulation 9( 7)(b) compels the presiding officer to postpone the matter
indefinitely if the employee was not in attendance on 12 August 2026. The
disciplinary hearing would only reconvene at Khan’s instance, after liaising
with the presiding officer.
[53] The Applicant’s case, on the other hand, is that Khan has no substantive,
adequate remedy if the Regulation is permitted to run its course, as he will
face a change in his employment status. Furthermore, his absence due to sick
leave is converted into unpaid suspension.
leave is converted into unpaid suspension.
[54] In my view, Regulation 9(7)( c) provides a clear alternative to Khan to avoid
the consequences of Regulation 9(7)(b). Khan had to contact the presiding
officer and arrange to appear , and he had to do so before the expiry of the
17 (2021) 42 ILJ 1761 (LC) at para 19.
21
ten-working-day period. The Regulation provides that, in the event the matter
is reconvened, the presiding officer must inquire into the reasons for the
employee's failure to appear, and that the suspension may be confirmed or
set aside, depending on whether good cause is shown. The facts Khan seeks
to canvas in his application before this Court, should have been raised with
the presiding officer.
[55] Khan was given a 10- day period to contact the presiding officer, which is a
substantive remedy to avoid the consequences he seeks to interdict with this
application. In fact, Mr Dollie submitted that submissions were indeed made a
day before the expiry of the 10- day period. This is indicative not only that
Khan had an alternative remedy, but that he was aware of it and indeed
exercised it.
[56] If Khan’s employment status is amended by the termination of his services,
he has a clear remedy to approach the SSSBC to challenge the fairness
thereof, and if he seeks to challenge the conversion of his sick leave to unpaid
suspension, that is a dispute that is specifically catered for in the LRA and
over which the SSSBC has exclusive jurisdiction to adjudicate.
[57] The urgent roll in this C ourt has become increasingly, and regrettably,
populated by applications seeking, in one way or another, intervention in
workplace disciplinary hearings. The present application is no different . I am
not convinced that this matter is urgent.
Costs
[58] The last issue to be decided is costs.
[59] Insofar as costs are concerned, this Court has broad discretion under section
162 of the LRA to make orders for costs in accordance with the requirements
of the law and fairness.
[60] In Public Servants Association of SA on behalf of Khan v Tsabadi NO and
others18 it was emphasised that:
18 2012 33 ILJ 2117 (LC) at p2119 H.
22
“……unless there are sound reasons which dictate a different approach, it is
fair that the successful party should be awarded her costs. The successful
party has been compelled to engage in litigation and compelled to incur legal
costs in doing so. An appropriate award of costs is one method of ensuring
that much earnest thought and consideration goes into decisions to litigate in
this court, whether as applicant, in launching proceedings or as respondent
opposing proceedings.”
[61] Mr Mphahlele submitted that the Applicant must be ordered to pay the costs
of this application on a punitive scale. The application was brought on
extremely truncated timelines , even though the Applicant has substantial
redress in due course. Mr Dollie submitted that the Applicant came to Court in
good faith, seeking protection for Khan and that a cost order should not be
appropriate.
[62] In my view, this is a matter in which the interests of justice will be best served
by granting a cost order. It is doubtful that earnest thought and consideration
went into the decision to approach this Court on an urgent basis in the
circumstances set out supra . The taxpayers of this country cannot be
expected to bear the cost of defending a matter in which the Applicant failed
to establish jurisdiction or urgency.
[63] The Respondents are entitled to costs. I can see no reason to deviate from
the general rule that the costs should follow the result , more so where the
Applicant made it clear that the claim was not pursued in terms of the LRA,
but that it was a contractual dispute.
[64] In the premises, the following order is made:
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Order:
1. The application is struck off the roll for lack of jurisdiction, alternatively
for lack of urgency;
2. The Applicant is to pay the costs on a party-and-party scale.
___________________
Connie Prinsloo
Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Advocate M Dollie
Instructed by: Muhammed Vally Attorneys Inc t/a MVip Attorneys
For the Respondents: Advocate S Mphahlele
Instructed by: State Attorney, Pretoria