IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NUMBER: 2026-190428
In the matter between:
SIYABONGA ROBSON NTULI APPLICANT
and
UMKHANYAKUDE DISTRICT MUNICIPALITY FIRST
RESPONDENT
THE MAYOR: UMKHANYAKUDE DISTRICT
MUNICIPALITY SECOND RESPONDENT
THE SPEAKER: UMKHANYAKUDE DISTRICT
MUNICIPALITY THIRD
RESPONDENT
SCELO MKLHIZE N.O. FOURTH
RESPONDENT
NXUMALO AND PARTNERS FIFTH
RESPONDENT
SIPHO NDABANDABA SIXTH RESPONDENT
DR NHLANHLA JOSHUA SIBEKO SEVENTH
RESPONDENT
JUDGMENT
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P C BEZUIDENHOUT J:
[1] On 12 August 2026 Applicant brought an urgent application against Respondents
seeking the relief set out in part A of the notice of motion being interim relief pending the
review application in terms of part B. The relief sought was that a disciplinary hearing
instituted against him and scheduled for 12 and 13 August 2026 be interdicted or
restrained that it should not proceed and that the costs of the application be paid by
Respondents.
[2] On the said day when the matter came before Harrison J. in this court it was
opposed and stood down until 2 p.m.
[3] There appears to be contradictory views as to what transpired on 12 August
2026. What is clear is that when the matter was called at 9:30 a.m. Mr. Potgieter SC
appeared on behalf of all Respondents and Applicant was represented by Mr.
Hlongwane.
[4] It is contended by Mr. Hlongwane that the presiding Judge was then informed
that the disciplinary hearing would not commence and would stand down until this
application had been finalised. However it transpired that this did not happen and that
while the matter was standing down the disciplinary hearing proceeded in the absence
of Applicant. An order was then made at the disciplinary hearing that Applicant be
dismissed. Applicant did not attend this disciplinary hearing.
[5] It was submitted by Mr. Potgieter SC that when the matter was called on 12
August 2026 he appeared on behalf of all Respondents. When the matter was before
Court on 24 August 2026 Mr. Potgieter SC informed the Court that he was appearing
only for First, Second, Third and Seventh Respondents. There was no appearance for
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the other Respondents. Mr. Potgieter SC submitted that he gave no assurance that the
disciplinary hearing would not commence while the proceedings on 12 August would
progress until they were finalised. This is not an issue which I need to deal with at this
stage. This can be dealt with inter alia in review proceedings.
[6] Due to the fact that Applicant was dismissed at the disciplinary hearing on 12
August 2026 Applicant filed an amended notice of motion in terms of which he sought
relief on 24 August 2026. In the amended notice of motion Applicant sought that the
ruling by Fourth Respondent that he be dismissed be suspended , that First, Sixth and
Seventh Respondents do not implement the recommendations made at the disciplinary
hearing and in the event that they had been made that they be suspended and that it
could also not be reconvened . F urther that disciplinary proceedings against him be
interdicted unless there is compliance with the provisions of the Local Government
Disciplinary Regulations for senior managers.
[7] It was submitted on behalf of Applicant that the Labour Relations Act 66 of 1995
does not prevent an employee to rely on common law recourse. Accordingly Applicant
made a choice to approach this Court for relief. It was submitted that this Court has
jurisdiction to entertain the application.
[8] First Respondent ’s coun cil appointed Seventh Respondent as its municipal
manager during a council meeting on 2 April and 13 April 2026. It also appointed Sixth
Respondent to act in the position of municipal manager in terms of section 54A of the
Local Government Systems Act. These appointments were challenged by Applicant on
the grounds that First Respondent’s decisions were unlawful and invalid. This however
does not form part of the relief claimed in part A and B of the notice of motion. On 8
May 2026 Sixth and Seventh Respondents suspended Applicant. On 5 August 2026 an
May 2026 Sixth and Seventh Respondents suspended Applicant. On 5 August 2026 an
order was granted by this court that review ed and set aside Sixth and Seventh
Respondents appointments as municipal manager and acting municipal manager
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respectively. Fourth and Fifth Respondents refused to stay the disciplinary hearing
against Applicant despite this order and are of the view that it does not prevent the
proceedings against Applicant.
[9] It was submitted that Sixth and Seventh Respondents were conflicted to make
the decision to take disciplinary action against Applicant because of the conflict of
interest flowing from Applicant’s challenge to the decision to appoint them that was
taken by First Respondent and the judgment of Marion AJ.
[10] It was submitted that the requirements for interim relief were satisfied in that
Applicant had a prima facie right, will suffer irreparable harm and the balance of
convenience favours Applicant. Further that there is no other satisfactory remedy.
[11] It was submitted that the Labour Court does not have jurisdiction to hear this
matter and I was referred to the decision of Cib ane and Another v Premier of KwaZulu-
Natal (2025) 46 ILJ 2587 (LAC) (15 July 2025).
[12] The MEC of Cogta had not consented to the appointment of Seventh Respondent
and accordingly the appointment was unlawful. It was further submitted that there was
no resolution by First Respondent’s council to oppose this application.
[13] This Court has jurisdiction and I was referred to paragraph 23 in the Cibane
judgment and a lso to the judgment in Steenkamp v Edcon 2016 (3) SA 251 (CC) at
paragraph 11. This Court can make an order as the relief in paragraph ( A) is merely to
preserve the status quo. Applicant cannot go to the Barga ining Council to dispute his
dismissal. In terms of section 193 of the Labour Relations Act the dismissal cannot be
challenged in the Labour Court as it was unlawful.
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[14] It was submitted on behalf of First, Second, Third and Seventh Respondents that
Applicant must convince the Court that he would have been successful with the relief
sought on 12 August 2026. I was referred to paragraph 16 of Applicant’s supplementary
affidavit wherein it is set out that Applicant was informed of the undertaking and that
accordingly he did not attend the disciplinary hearing as he was awaiting the outcome
of the urgent application. It was submitted that Applicant had to convince the Court
that he would be successful. The application for leave to appeal against the order of
Marion AJ which found the appointment of Seventh Respondent invalid suspended the
order.
[15] The relief which was sought on 12 August 2026 is no longer applicable due to the
dismissal of Applicant. The facts are now different. I therefore do not agree that
Applicant must prove what he would have had to prove on 12 August 2026. That is no
longer in issue. I was also referred by Respondents to a passage from the Cibane
judgment where it was held:
“There can thus be no general rule to the effect that the Labour Court has
jurisdiction to intervene and medius reis to restrain any alleged irregularities,
illegalities or unfairness in incomplete disciplinary proceedings.”
It was submitted that this Court does not have jurisdiction and that the matter had to be
instituted in the Labour Court. It was submitted that Applicant has to go to the
Bargaining Council which is the right forum to deal with it. There is an alternative
remedy available and accordingly interim relief should not be granted . Further it was
submitted that nowhere in the papers does he deny that he was guilty of any of the
offences with which he was charged in the disciplinary hearing. No costs order was
sought against Applicant.
[16] Applicant reiterated that the decision to discipline him was unlawful , Seventh
Respondent’s appointment was unlawful, that this was not disputed and that the
Respondent’s appointment was unlawful, that this was not disputed and that the
Labour Appeal Court cannot review unlawful conduct for employer as found in
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paragraph 24 of the Cibane judgment. The Bargaining Council cannot deal with matters
of this nature.
[17] A copy of the South African Local Government Bargaining Council disciplinary
procedure was attached to the answering affidavit of Respondents. In paragraph 2
under the heading “Exclusion from Collective Agreement” it sets out as follows:
“Municipal Managers and employees appointed as Senior Managers who are
directly accountable to Municipal Man agers in terms of section 54A and 56 of
the Municipal Systems Act 32 of 2000 , as amended, shall be excluded from all
the terms of this agreement. ”
It is not in dispute that Applicant was appointed as a Senior Manager of Operations . I n
his contract of employment it states under paragraph 11 that the Council falls in the
jurisdiction of the South African Local Government Bargaining Council and agreements
reached at the SALGBC shall apply . It would therefore appear that although the
Municipality is subject to the South African Local Government Bargaining Council it
does not apply to Senior Managers.
[18] It appears that Senior Managers fall under the Local Government Disciplinary
Regulations for Senior Managers 2010. In paragraph 13 thereof it states:
“A Senior Manager has the right to refer a dispute against any disciplinary finding
and or sanction imposed on him or her at a disciplinary hearing to the Bargaining
Council, Commission for Conciliation Mediation and Arbitration or an accredited
agency in terms of section 133 of the Labour Relations Act 66 of 1955.”
[19] Bargaining Council is defined as Bargaining council for Municipalities in terms of
the Labour Relations Act. Although Senior Managers are excluded from the Local
Government Bargaining Council it appears that they can appeal thereto against a
sanction at a disciplinary hearing.
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[20] The present position is therefore that Applicant has been dismissed. The issue
whether the proceedings were not to proceed while the matter was proceeding in the
High Court is an issue which can be addressed either on appeal, o r review proceedings
etc. The further issue whether there is an alternative remedy is set out in the
Regulations in respect of Senior Managers which is quoted above in terms of which
Applicant has recourse to the Bargaining Council in that regard. There also does not
appear to be any irreparable harm to be su ffered by Applicant. There is thus alternative
remedies available to him at this stage and therefore it would appear to me that the
requirements for the relief in part A of the notice of motion has not been satisfied.
[21] The question which remains is whether the matter must proceed in the Labour
Court as contended by Respondents or whether this court has concurrent jurisdiction
and that Applicant was entitled to proceed in this forum. Both parties relied on the
decision of Cibane which I have referred to above in support of their contentions.
[22] In paragraph 24 states as follows:
“It is clear from this passage that outside of the scope of any statutory provision
that specifically confers to jurisdiction on the court, the Labour Court has no
jurisdiction, in any general sense, to make any determination of the
unlawfulness of employer conduct. ”
A consideration of the relief set out in part A and B of the notice of motion does not
appear to me to exclude the jurisdiction of the Labour Court. However it also does not
appear that it is of such a nature that it excludes the jurisdiction of this Court to hear the
matter. The issue of whether there was any unlawful conduct by the employer as
alleged by Applicant can be dealt with on review.
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[22] The relief which is claimed in part A as I have already dealt with above does not
fulfil the requirements for interim relief in the sense that besides the fact that there is an
alternative remedy available to Applicant in terms of the Regulations for Senior
Managers there is also no irreparable harm which he would suffer.
[23] Respondents indicated that they are not seeking a costs order against Applicant.
Accordingly the following order is made.
The application for the relief in terms of part A of the notice of motion is dismissed.
______________________
P C BEZUIDENHOUT J.
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JUDGMENT RESERVED: 24 AUGUST 2026
JUDGMENT HANDED DOWN ELECTRONICALLY: 4 SEPTEMBER 2026
COUNSEL FOR APPLICANT: S A C HLONGWANE
Instructed by: Mhlanga Incorporated
Umhlanga Ridge
Tel: 031 305 7537
Email: admin@mhlangainc.co.za
Ref: Mhlanga/an/CVL: MAT1226
c/o: Stowell & Company
Pietermaritzburg
Ref: S Norgot
COUNSEL FOR RESPONDENTS: A POTGIETER SC
V G SIBEKO
Instructed by: Nxumalo and Partners
Pinetown
10
Ref: Themba Nxumalo/UKDM2646/26/nng
c/o: Mabaso and Partners
Pietermaritzburg
Tel: 033 015 5006
Email: mabasoandpartners@gmail.com