THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: 2026-178344
In the matter between:
DEPARTMENT OF CORRECTIONAL SERVICES Applicant
and
M E KGOWE First Respondent
A Z ZWANE Second Respondent
I O BANDA Third Respondent
POLICE AND PRISONS CIVIL RIGHTS UNION Fourth Respondent
GENERAL PUBLIC SERVICE SECTOR BARGAINING COUNCIL Fifth Respondent
Heard: 25 August 2026
Delivered: 08 September 2026
This judgment was handed down electronically by consent of the parties’ representatives ,
circulated to them by email. The date for hand-down is deemed to be 08 September 2026.
JUDGMENT
PRINSLOO, J
Background
(1) Reportable Yes
(2) Of interest to other Judges: No
(3) Revised
TDM 08/09/2026
____________ ______________
Signature Date
2
[1] The Applicant employed the First to Third Respondents (employees) in
various capacities, and, after an investigation, they were charged with serious
misconduct relat ed to the offender monitoring system. F ollowing disciplinary
proceedings, they were dismissed on 13 February 2024. Their internal
appeals were unsuccessful, and they referred unfair dismissal disputes to the
Fifth Respondent ( GPSSBC) under case numbers GPBC530/2024,
GPBC554/2024, and GPBC555/2024, which were subsequently consolidated.
[2] The arbitration proceedings commenced in 2025, but before the dispute w as
finally determined on the merits, the Applicant’s representative, Mr Mtshweni,
recommended that the disputes be settled. Mr Mtshweni’s supervisor
approved the request for a mandate to settle on 24 March 2025 . On 27 March
2025, the parties concluded a written settlement agreement providing for
reinstatement and retrospective remuneration of the employees . The
settlement agreement recorded that the parties agreed that it be made an
arbitration award under section 142A (1) of the Labour Relations Act
1 (LRA).
[3] The effect of the settlement agreement was that the outcome of the
disciplinary proceedings was overturned, the employees were reinstated, and
the Applicant had to pay them substantial back pay. This raised concerns
internally, and an investigation was requested into the circumstances under
which the settlement agreement was recommended, approved and
concluded. There were serious questions about the possibility of impropriety,
lack of oversight and the absence of proper due diligence before the
settlement agreement, involving reinstatement and back pay, was concluded.
[4] The Department approached this Court on 22 April 2026 urgently to review
the settlement agreement in terms of section 158(1)(h) of the LRA. The
application was heard on 9 June 2026, and judgment was handed down on 3
July 2026. The Court (per Snyman AJ) found that the decision to conclude the
July 2026. The Court (per Snyman AJ) found that the decision to conclude the
settlement agreement was made in an unlawful, irregular , and irrational
manner, and it was set aside.
1 Act 66 of 1995, as amended.
3
[5] The Court held that the employees were not left without remedy or further
recourse and their unfair dismissal dispute was remitted to the GPSSBC for
arbitration. The GPSSBC was directed to set the unfair dismissal dispute
down for arbitration on an expedited basis. The GPSSBC has enrolled the
disputes for expedited arbitration on 4 September 2026.
[6] The employees, however, filed an application for leave to appeal on 17 July
2026, which came to the Applicant’s attention on 20 July 2026. The Applicant
subsequently, on 24 July 2026, filed this application in terms of section 18 (3)
of the Superior Courts Act 2, and the matter was enrolled for hearing on the
urgent roll of 25 August 2026.
[7] The Applicant seeks an order to the effect that the operation an d execution of
the judgment of 3 July 2026 (the judgment) , which wa s the subject of the
Respondents’ application for leave to appeal, not be suspended pending the
decision on the application for leave to appeal , any petition or further
application for leave to appeal, or an appeal process arising therefrom.
[8] The application for leave to appeal was dismissed on 25 August 2026.
[9] The application is opposed by the First to Fourth Respondents
(Respondents), who took issue with the urgency. I do not intend to set out in
detail the attack on urgency, as I am of the view that this application should be
heard urgently.
[10] The event that triggered the present application was not the judgment itself ,
but the filing of the application for leave to appeal. Until an application for
leave to appeal was delivered, the judgment remained operative , and there
was no statutory suspension which the Department was required to overcome
under section 18(3). The Department could therefore not competently seek an
order lifting a suspension which had not yet arisen. In view of this, t his Court
has exercised its discretion to deal with the merits on an urgent basis.
Section 18 of the Superior Courts Act: general principles
Section 18 of the Superior Courts Act: general principles
2 Act 10 of 2013
4
[11] The default position is that the operation and execution of a decision (other
than a decision not having the effect of a final judgment) is suspended
pending the outcome of an application for leave to appeal or an appeal.
Section 18 of the Superior Courts Act regulates the circumstances under
which a party may apply for an order that departs from the ordinary
consequence of filing an application for leave to appeal3. It provides that:
‘18 Suspension of decision pending appeal
(1) Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation and
execution of a decision which is the subject of an application for leave
to appeal or of an appeal, is suspended pending the decision of the
application or appeal.
(2) Subject to subsection (3), unless the court under exceptional
circumstances orders otherwise, the operation and execution of a
decision that is an interlocutory order not having the effect of a final
judgment, which is the subject of an application for leave to appeal or
of an appeal, is not suspended pending the decision of the application
or appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied to the court to order otherwise, in addition
proves on a balance of probabilities that he or she will suffer
irreparable harm if the court does not so order and that the other party
will not suffer irreparable harm if the court so orders.
(4) If a court orders otherwise, as contemplated in subsection (1) —
(i) the court must immediately record its reasons for doing so;
(ii) the aggrieved party has an automatic right of appeal to the
next highest court;
(iii) the court hearing such an appeal must deal with it as a matter
of extreme urgency; and
3 Luxor Paints (Pty) Ltd v Lloyd and another (2017) 38 ILJ 1149 (LC).
5
(iv) such order will be automatically suspended, pending the
outcome of such appeal.
(5) For the purposes of subsections (1) and (2), a decision becomes the
subject of an application for leave to appeal or of an appeal, as soon
as an application for leave to appeal or a notice of appeal is lodged
with the registrar in terms of the rules.’
[12] The Labour Appeal Court (LAC) in Road Traffic Management Corporation v
Tasima (Pty) Ltd and others (Tasima)4 considered the provisions of section
18(3) versus the common law position as follows:
‘[43] Prior to the enactment of section 18(3) of the SC Act there was no
statutory provision regulating interim execution orders. In terms of the
common law, the noting of an appeal automatically suspends
execution of the judgment appealed against. Where the successful
party wishes to execute upon the judgment, it is required to make an
application for leave to do so and bears the onus to show why the
judgment should be executed pending the appeal, subject, in
appropriate cases to the furnishing of security de restituendo. The
court had a wide discretion to grant or refuse leave to execute and
was required to determine what was just and equitable in all the
circumstances having regard to the potentiality of irreparable harm or
prejudice to the parties, the balance of convenience and the prospects
of success on appeal. At common law, an interim execution order is
itself an interlocutory order and was generally not appealable on the
grounds that such an order may be varied by the court granting it in
the light of changed circumstances.
[44] Section 18 of the SC Act has significantly altered the common law in
more than one respect. The court no longer has a wide discretion to
do what is just and equitable or to rely exclusively on the balance of
convenience or the appeal’s prospects of success. Now, before a
court may order interim execution, the applicant for that relief must
court may order interim execution, the applicant for that relief must
prove three things on a balance of probabilities. Firstly, the applicant
must show that exceptional circumstances exist (perhaps including the
4 [2019] 5 BLLR 434 (LAC) at paras 43 and 44.
6
balance of convenience and prospects of success) justifying the
reversal of the ordinary principle of suspension pending appeal.
Secondly, it must prove on the probabilities that it will suffer
irreparable harm if interim execution is not ordered. Thirdly, it must
prove that the other party will not suffer irreparable harm if an order of
interim execution is granted. Should the applicant fail to discharge its
onus in relation to any one of these requirements, the court may not
grant an interim execution order. Additionally, in terms of section 18(4)
of the SC Act, where an interim execution order is granted, the
aggrieved party has an automatic right of appeal against that order to
the next highest court and the order will be automatically suspended,
pending the outcome of such appeal.’
[13] In Incubeta Holdings (Pty) Ltd and another v Ellis and another 5 (Incubeta) the
Court held that:
‘[16] It seems to me that there is indeed a new dimension introduced to the
test by the provisions of Section 18. The test is twofold; the
requirements are:
• First ,whether or not ‘exceptional circumstances’ exist, and
• Second, proof on a balance of probabilities by the applicant of -
o The presence of irreparable harm to the
applicant/victor, who wants to put into operation and
execute the order, and,
o The absence of irreparable harm to the
respondent/loser, who seeks leave to appeal.’
[14] In University of the Free State v Afriforum and another (Afriforum) 6 the
Supreme Court of Appeal (SCA) held:
‘[9] What is immediately discernible upon perusing sections 18(1) and (3),
is that the Legislature has proceeded from the well -established
5 2014 (3) SA 189 (GJ).
6 [2017] 1 All SA 79 (SCA) at paras 9 and 10.
7
premise of the common law that the granting of relief of this nature
constitutes an extraordinary deviation from the norm that, pending an
appeal, a judgment and its attendant orders are suspended. Section
18(1) thus states that an order implementing a judgment pending
appeal shall only be granted “under exceptional circumstances”. The
exceptionality of an order to this effect is underscored by section
18(4), which provides that a court granting the order must immediately
record its reasons; that the aggrieved party has an automatic right of
appeal; that the appeal must be dealt with as a matter of extreme
urgency and that pending the outcome of the appeal the order is
automatically suspended.
[10] It is further apparent that the requirements introduced by sections
18(1) and (3) are more onerous than those of the common law. Apart
from the requirement of “exceptional circumstances” in section 18(1),
section 18(3) requires the applicant “in addition” to prove on a balance
of probabilities that he or she “will” suffer irreparable harm if the order
is not made, and that the other party “will not” suffer irreparable harm
if the order is made. The application of rule 49(11) required a
weighing-up of the po tentiality of irreparable harm or prejudice being
sustained by the respective parties and where there was a potentiality
of harm or prejudice to both of the parties, a weighing- up of the
balance of hardship or convenience, as the case may be, was
required. Section 18(3), however, has introduced a higher threshold,
namely proof on a balance of probabilities that the applicant will suffer
irreparable harm if the order is not granted and conversely that the
respondent will not, if the order is granted.’
[15] The effect, in short, is this: the Superior Courts Act limits a court's discretion to
grant interim execution relief, and section 18(3) introduces a higher threshold
and more onerous requirements. An applicant must prove three distinct
and more onerous requirements. An applicant must prove three distinct
requirements on a balance of probabilities:
15.1 Exceptional circumstances;
15.2 That it will suffer irreparable harm if interim execution is not ordered;
8
15.3 That the other party will not suffer irreparable harm if an order of
interim execution is granted.
[16] The provisions of section 18 of the Superior Courts Act introduced a twofold
test, which calls for an inquiry first as to whether ‘exceptional circumstances’
exist and second whether the applicant has shown the presence and the
absence of irreparable harm on a balance of probabilities.
[17] Exceptional circumstances and the existence or absence of irreparable harm
are distinct requirements that must all be satisfied in order for an applicant to
succeed with an application in terms of section 18(3). If an applicant fails to
prove any one of the requirements, the application must fail.
[18] In the context of the requirements of section 18(3) , this application is to be
decided.
Exceptional circumstances and irreparable harm:
[19] The first issue to be decided is whether there are exceptional circumstances.
[20] The question as to what would constitute ‘exceptional circumstances’ had
been considered in Incubeta and the Court held that exceptionality must be
fact-specific and circumstances which are or may be ‘exceptional’ must be
derived from the actual predicaments in which the given litigants find
themselves. The Court held that:
‘In my view the predicament of being left with no relief, regardless of the
outcome of an appeal, constitutes exceptional circumstances which warrant a
consideration of putting the order into operation. The forfeiture of substantive
relief because of procedural delays, even if not protracted in bad faith by a
litigant, ought to be sufficient to cross the threshold of ‘exceptional
circumstances.’
7
[21] Incubeta has been quoted with approval by the SCA, and it is clear that the
determination of whether exceptional circumstances exist is a fact -specific
7 Id fn 5 at para 27.
9
inquiry, and each case has to be decided on its own facts, as there is no
definition of exceptional circumstances. It was held that:
‘[18] Significantly, although it is accepted in that judgment that what is
cognisable as ‘exceptional circumstances’ may be indefinable and
difficult to articulate, the conclusion that such circumstances exist in a
given case, is not a product of a discretion, but a finding of fact.’
8
[22] In Afriforum, it was confirmed that whether or not “exceptional circumstances”
for the purposes of section 18(1) are present must necessarily depend on the
peculiar facts of each case. The LAC confirmed in Tasima that the applicant
must show that exceptional circumstances exist, including the balance of
convenience and prospects of success, justifying the reversal of the ordinary
principle of suspension pending appeal
.
[23] The question is thus whether the circumstances in casu are truly exceptional
and whether an extraordinary deviation from the norm is justified. This
question is to be answered by considering the facts and the circumstances
relied upon by the Applicant.
[24] The prospects of success in the appeal are a relevant factor in the
consideration of the application, as was held in Minister of Social
Development, Western Cape and others v Justice Alliance of South Africa and
another9 where the court said that:
‘It follows that the less sanguine a court seized of an application in terms of
section 18(3) is about the prospects of the judgment at first instance being
upheld on appeal, the less inclined it will be to grant the exceptional remedy
of execution of that judgment pending the appeal. The same quite obviously
applies in respect of a court dealing with an appeal against an order granted
in terms of section 18(3). The position is very much akin to that which pertains
when interim interdictory relief pending a judicial review is being considered.’
[25] In Afriforum, the SCA also confirmed that the prospect of success on appeal
[25] In Afriforum, the SCA also confirmed that the prospect of success on appeal
is a valid consideration when determining whether exceptional circumstances
8 Id fn 5 at para 18.
9 [2016] JOL 35612 (WCC) at para 27.
10
have been established by an applicant seeking leave to execute a pending
appeal.
[26] It is evident that, in the papers before me, the issues of exceptional
circumstances and irreparable harm are intertwined and that they overlap.
Analysis
[27] The judgment reviewed and set aside the Applicant’s antecedent decision to
conclude the settlement agreement with the employees, set aside the
settlement agreement and the section 142A award, and restored the unfair
dismissal disputes to the GPSSBC for determination on their merits.
[28] The Applicant’s case is that a s an organ of state, the Department is
constitutionally obliged to exercise public power lawfully, accountably and
within the powers conferred upon it. 10 Unless this Court orders otherwise, the
Department must continue to give practical effect to the settlement agreement
and the consequential section 142A award, which the judgment found
unlawful and set aside, while the merits of the underlying disputes remain
capable of prompt determination as early as 4 September 2026.
[29] The suspension of the judgment does not merely delay ordinary
consequential relief, but rather preserves, for the duration of the appeal
process, the practical consequences of a public sector settlement agreement
and arbitration award, which this Court has found unlawful and set aside. The
Applicant submitted that the consequence will not merely be the payment of
salaries but will also be the continued operation of an employment status
created by an unlawful settlement and the Department’s exposure to financial,
operational and institutional prejudice.
[30] The Applicant submitted that the remedy crafted by the judgment is practical,
available and capable of immediate implementation. The employees are not
left without a remedy – they have an available, expeditious and adequate
remedy, which show s that they will not suffer irreparable harm. In fact, the
10 See: Khumalo and Another v Member of the Executive Council for Education: KwaZulu Natal
10 See: Khumalo and Another v Member of the Executive Council for Education: KwaZulu Natal
(2014) 35 ILJ 613 (CC) at para 35.
11
judgment placed the employees back in the position they were in prior to the
conclusion of the unlawful settlement agreement . T heir unfair dismissal
dispute can be arbitrated expeditiously, and if they successfully challenge
their dismissal, appropriate relief, including retrospective reinstatement, could
be granted to them.
[31] The Applicant will be prejudiced if the judgment is suspended because the
appeal process will take much longer than the expedited arbitration process
and the unlawful settlement agreement will continue to regulate the parties’
relationship. The consequence is that the application for leave to appeal does
not merely preserve the position pending appeal; it will also prevent the
prompt determination of the underlying unfair dismissal dispute and prolong
the practical effect of the settlement agreement and the arbitration award. The
Department’s prejudice is not confined to the further payment of salaries – the
settlement has already resulted in retrospective payments totalling more than
R1,2 million, but the Department will be further exposed to pay remuneration,
benefits and leave, flowing from the unlawful settlement agreement. The
subsequent recovery of such amounts will be uncertain, practically difficult
and likely to generate further litigation. The financial consequences have a
public finance dimension and implication s under the Public Finance
Management Act
11.
[32] On the other hand, t he Respondents’ case is that the settlement agreement
which forms the subject matter of the dispute was concluded on 27 March
2025, the Department became aware of the alleged irregularity by 12 May
2025, and a review application to set aside the settlement agreement was
only filed in April 2026. Throughout the entire period, the Department
implemented the settlement; it reinstated the employees, restored them to the
payroll, made payments to them, and continued to regulate their employment.
The continuation of the employment relationship does not constitut e
The continuation of the employment relationship does not constitut e
irreparable harm, as the Department’s lackadaisical a pproach to setting the
settlement agreement aside demonstrates that the position was tolerable and
manageable.
11 Act 1 of 1999.
12
[33] The Respondents submitted that the fact that the Applicant must continue to
give effect to a settlement agreement that was found to be unlawful is not an
exceptional circumstance, nor is the financial consequence of salary. When
the employees tender their services, the Department can assign them
controlled duties; therefore, this constitutes remuneration for productive work.
Remuneration ‘lawfully earned for services rendered does not constitute
fruitless expenditure’ the Respondents argue. The Department has been
paying the employees’ salaries since May 2025 and continues to do so.
[34] The Respondents argue that the Applicant’s harm is purely pecuniary and
therefore it is not irreparable. Financial harm can be quantified, and if the
appeal ultimately fails, it is capable of being recovered by the ordinary means
available to any creditor. The employees, by contrast, will be removed from
their positions, denied access to their workplaces, and left without income or
employment, while the underlying disputes remain unresolved. The
employees do not have the means to absorb such an income- free period.
Stripping them of their security of income and employment, pending the
appeal, would be devastating.
[35] Did the Applicant cross the threshold of exceptional circumstances? In my
view, it did.
[36] Exceptional circumstances do not arise merely because the Applicant is an
organ of state or a public employer , or merely because public funds are
implicated, or merely because it succeeded in the underlying review. It is also
not exceptional for a public employer, during a bona fide appeal, to await the
outcome of the appeal.
[37] However, the facts of this case and the existence of ‘exceptional
circumstances’ must be considered within the context that the effect of the
judgment is that the settlement agreement (and the section 142A award) was
declared unlawful, irregular and irrational and it was set aside. It no longer
declared unlawful, irregular and irrational and it was set aside. It no longer
constitutes a lawful basis for the reinstatement or continued employment of
the employees.
13
[38] The Applicant is not an ordinary private litigant or private sector employer
seeking release from an unfavourable bargain. It is an organ of State, and as
such subject to sections 1(c), 2, 195 and 237 of the Constitution of the
Republic of South Africa (the Constitution) . The rule of law requires public
power to be exercised lawfully and within the limits of the power conferred.
Conduct inconsistent with the Constitution is invalid. Section 195 of the
Constitution requires accountable public administration, a high standard of
professional ethics and the efficient, economic and effective use of resources.
[39] In Khumalo v Member of the Executive Council for Education: Kwazulu-
Natal
12 (Khumalo) the Constitutional Court dealt with the duties of public
functionaries and held that t he rule of law is a founding value of our
constitutional democracy and that it is the duty of the courts to insist that the
state, in all its dealings, operates within the confines of the law and, in so
doing, remains accountable to those on whose behalf it exercises power.
Reference was made to section 195 of the Constitution, which compelled the
MEC, in the public interest, to avoid and eliminate illegalities in public
administration, and the fact that the MEC was not only entitled, but also duty -
bound to set aside irregular administrative acts. It was held that:
‘[35] Section 195 provides for a number of important values to guide
decision-makers in the context of public-sector employment. When, as
in this case, a responsible functionary is enlightened of a potential
irregularity, section 195 lays a compelling basis for the founding of a
duty on the functionary to investigate and, if need be, to correct any
unlawfulness through the appropriate avenues. This duty is founded,
inter alia, in the emphasis on accountability and transparency in
section 195(1)(f) and (g) and the requirement of a high standard of
professional ethics in section 195(1)(a). Read in the light of the
professional ethics in section 195(1)(a). Read in the light of the
founding value of the rule of law in section 1(c) of the Constitution,
these provisions found not only standing in a public functionary who
seeks to review through a court process a decision of its own
department, but indeed they found an obligation to act to correct the
12 (2014) 35 ILJ 613 (CC).
14
unlawfulness, within the boundaries of the law and the interests of
justice.
[36] Public functionaries, as the arms of the state, are further vested with
the responsibility, in terms of section 7(2) of the Constitution, to
“respect, protect, promote and fulfil the rights in the Bill of Rights.” As
bearers of this duty, and in performing their functions in the public
interest, public functionaries must, where faced with an irregularity in
the public administration, in the context of employment or otherwise,
seek to redress it. This is the responsibility carried by those in the
public sector as part of the privilege of serving the citizenry who invest
their trust and taxes in the public administration.’
13
[40] The Applicant’s actions in seeking to review the settlement agreement were
an attempt to rectify irregularities alleged to have been part of the settlement
agreement's conclusion, which was found to be unlawful, irrational, and
irregular. This was part of the Applicant’s effort to fulfill its constitutional and
statutory obligations to ensure lawfulness, accountability and transparency.
[41] In casu, the fact that the Applicant must continue to give effect to a settlement
agreement found to be unlawful is an exceptional circumstance.
[42] The second leg of the inquiry is ‘irreparable harm’.
[43] The employees will no doubt suffer harm if the judgment is suspended
pending appeal. The question is, however, whether such harm is irreparable,
considering the harm the Applicant will suffer if the operation of the judgment
is suspended.
[44] In my view, the Department is in an untenable position, which constitutes
irreparable harm that cannot be undone later. Pending the appeal, the
Department will continue to implement an unlawful settlement agreement,
thereby incurring further financial and institutional prejudice.
[45] The Respondent submitted that the Applicant’s prejudice is purely pecuniary,
and therefore it is not irreparable, as financial harm can be quantified and
and therefore it is not irreparable, as financial harm can be quantified and
13 Ibid at paras 35 and 36.
15
recovered by the ordinary means available to any creditor . Financial prejudice
is indeed part of the Applicant’s prejudice ; it is , however, not the only
prejudice. The Applicant’s prejudice is financial, institutional, operational and
constitutional.
[46] In view of the facts before me, it is unlikely that the financial prejudice, as
alleged by the Applicant, is prejudice that would or could be repaired in due
course, should the appeal ultimately fail. The employees, by their own
account, do not have the means or ‘budget’ to absorb an income-free period.
This raises the question of how they would afford to compensate the Applicant
for the financial harm suffered should the appeal fail. The subsequent
recovery of the Applicant’s financial harm, even if it can be quantified and
recovered by ordinary means, will be uncertain, practically difficult and likely
to generate further litigation.
[47] The obvious and overriding prejudice remains that the Applicant will be forced
to give effect to a settlement agreement that was found to be unlawful . The
unlawful settlement agreement will continue to regulate the parties’
relationship. The Respondents’ case is that if they tender their services, the
Department can assign them controlled duties and that the payments due to
them will constitute r emuneration ‘lawfully earned for services rendered.’ The
difficulty is that the settlement agreement, which formed the basis for their
reinstatement, was declared unlawful and set aside. There can be no question
of ‘lawful’ employment or remuneration ‘lawfully earned’. This is not merely an
accounting consequence. It requires an organ of state to continue
administering an employment arrangement pursuant to an agreement which
has been judicially found to have been concluded unlawfully, irrationally and
without compliance with the applicable delegation framework.
[48] Even if some amount were ultimately recoverable, financial recovery would
[48] Even if some amount were ultimately recoverable, financial recovery would
address only the monetary component. It would not reverse the continued
administration of the unlawful arrangement, restore the lawful exercise of
public power during the intervening period or remedy the institutional
consequences which had already arisen. If the appeal process is ultimately
unsuccessful, a later dismissal of the appeal cannot retrospectively restore
16
lawful public administration during the intervening period, nor can a later order
reverse the period during which public power and public resources were
administered pursuant to instruments already declared unlawful. By then, that
legality and institutional harm will have occurred.
[49] The fact that the Department has been paying the employees’ salaries since
May 2025 and has continued to do so is of no moment. Prior to the judgment,
the Department employed and remunerated the employees in terms of the
settlement agreement. That was the reality of the settlement agreement. The
position changed in July 2026, when the judgment declared the settlement
agreement unlawful. The agreement required the Respondents to employ and
remunerate the employees before the judgment, but that obligation no longer
exists.
[50] The Respondents’ harm, on the other hand, is not irreparable. The judgment
crafted a practical, readily available, and immediately implementable remedy,
and the employees are not left without a remedy . The unfair dismissal dispute
can be arbitrated expeditiously, and if they successfully challenge their
dismissal, the employees could be granted appropriate relief, including
retrospective reinstatement with the necessary back pay.
[51] The employees will not suffer irreparable harm if the judgment remains in
effect pending the appeal. Their unfair dismissal dispute remains alive - the
judgment did not deprive them of their remedies, and their unfair dismissal
dispute can be decided expeditiously, with the possibility of appropriate relief,
should they succeed. Even if the employees elect not to proceed with
arbitration expeditiously, as per the judgment, and instead wait for the ultimate
outcome of the appeal, any financial prejudice they may suffer can be
remedied by either the arbitrator, if their appeal fails and their dismissals are
ultimately found to have been unfair, or the LAC if their appeal succeeds.
ultimately found to have been unfair, or the LAC if their appeal succeeds.
[52] Prospects of success are to be considered as a factor in deciding whether or
not to grant the exceptional remedy of execution of a judgment pending
appeal. In my view, a court seized of a section 18(3) application should be
17
slow to reach a concluded view on the prospects of success. This is not a
deciding factor in casu.
[53] A section 18 order regulates the interim position only. It does not determine
the merits of the application for leave to appeal, restrict the grounds upon
which an appeal may be pursued or prevent an appellate court from granting
effective relief. Proceedings under sections 18(3) and 18(4) are sui generis
and substantially separate from the merits of the principal appeal. Nothing
decided in the section 18 proceedings determines what may ultimately
happen in the appeal on the merits.
[54] In short, a section 18 order is interlocutory and temporary. It does not dispose
of the merits, impede the appeal or determine the appellate proceedings. Its
purpose is to regulate the interim position until the merits are finally decided.
The Respondents’ appeal will remain intact and will be determined
independently of the interim enforcement order.
[55] It follows that all the requirements under sections 18(1) and (3) of the Superior
Courts Act have been satisfied.
Costs
[56] The last issue to be decided is the issue of costs.
[57] Insofar as costs are concerned, this Court has a broad discretion in terms of
section 162 of the LRA to make orders for costs according to the
requirements of the law and fairness.
[58] In my view , this is a matter where the interests of justice and fairness will be
best served by making no order as to costs.
[59] In the premises, I make an order as follows:
Order
1. The Labour Court judgment and order delivered on 3 July 2026 under
case number 2026- 092263 operates and is extant pending the final
determination of the application for leave to appeal , any petition or
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further application for leave to appeal, any appeal or further appeal
process arising from the said judgment and order;
2. There is no order as to costs.
______________________
Connie Prinsloo
Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Advocate S Bismilla
Instructed by: State Attorney, Pretoria
For the First to Fourth Respondents: Advocate A L Cook
Instructed by: Ngada Attorneys