THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case no: 2026-130909
In the matter between:
MSUNDUZI MUNICIPALITY Applicant
and
SOUTH AFRICAN MUNICIPAL WORKERS UNION First Respondent
INDEPENDENT MUNICIPAL AND ALLIED
TRADE UNION Second Respondent
ALL EMPLOYEES OF MSUNDUZI MUNICIPALITY Third Respondent
AFRIKA MAYIBUYE WORKERS DESK Fourth Respondent
MZWANDILE GOGE Fifth Respondent
Heard: 10 September 2026
Date of Judgment: This judgment was handed down electronically by circulation to
the parties’ legal representatives by email, publication on Caselines and release to
SAFLII. The date of handing down judgment is deemed to be 11 September 2026.
JUDGMENT
GANDIDZE, J
(1) Reportable: No
(2) Of interest to other Judges: No
11 September 2026
Signature Date
Introduction
[1] On 5 June 2026, the Msunduzi Municipality, the applicant, filed an urgent
application seeking to restrain and interdict the respondents from unlawful
conduct during what it contended was an unprotected strike that commenced
on 1 June 2026 and was still ongoing when the application was heard on 8
June 2026. In addition, the applicant sought this order against the South
African Municipal Workers Union (SAMWU), the first respondent:
‘2.1.2. That the First Respondents be and is hereby restrained and
interdicted from inciting, or planning, engaging on a unlawful and
unprotected strike in terms of its notice dated 03 June 2026 which is
intended to commence on 10 June 2026.’ (sic)
[2] As regards costs, the order sought was as follows:
‘2.4 The Respondents pay the taxed costs of the application only if
they unsuccessfully oppose it.’
[3] When the matter was heard on 8 June 2026, only SAMWU had filed a notice
of opposition and an answering affidavit.
[4] The court ordered that the matter be heard as urgent and issued a rule nisi
interdicting the respondents from engaging in an unprotected strike and
unlawful conduct. Importantly, the court did not grant the prayer in prayer
2.1.2, which sought to interdict SAMWU from engaging in the strike action
scheduled to commence on 10 June 2026. In oral argument, the court was
informed that a separate application had been filed in respect of that strike
action, and the court declared the strike protected.
[5] The return date for the rule nisi issued on 8 June 2026 was 10 September
2026, and the matter came before the court on that date.
[6] At the commencement of oral argument, Mr Tshangana, for the applicant,
informed the court that the rule nisi should be discharged, that the only issue
remaining for determination was costs, and that the other issues had become
moot. Mr Dlamini appeared surprised by the submission, and the court stood
the matter down to allow the parties to agree on the issues requiring
the matter down to allow the parties to agree on the issues requiring
determination. The court was informed that only the issue of costs required
determination.
The parties’ submissions
[7] Mr Tshangana submitted that costs orders are governed by section 162 of the
Labour Relations Act 1 (LRA), which provides that this Court may order
payment of costs in accordance with the requirements of law and fairness. He
further submitted that one consideration is the parties' conduct . He submitted
that, despite pictures of strikers blocking the depot entrance, the
administration building, and the roads, as well as trashed bins and punctured
tyres, SAMWU chose to oppose the application. He also submitted that
SAMWU denied that its members were participating in the strike action,
despite pictures of strikers wearing SAMWU regalia. However, Mr Tshangana
readily conceded that there was a dispute as to when the pictures relied upon
were taken and by whom, that the SAMWU members said to be implicated in
the unlawful conduct had not been identified, and, importantly, that the rule
nisi had been issued against ‘all employees of the municipality’ and that the
list of employees was not annexed to the application.
[8] Mr Dlamini submitted that , as a cited party, SAMWU had no choice but to
oppose the application. R egarding the order interdicting unlawful conduct, he
submitted that the court granted it on the basis that SAMWU would not suffer
any prejudice if such an order was granted, despite the applicant not
identifying the SAMWU members allegedly involved in the unlawful conduct ,
with reference to the decision in Commercial Stevedoring Agricultural & Allied
Workers Union & Others v Oak Valley Estates (Pty) Ltd & Another
2. He also
submitted that the court did not grant an order declaring the strike
unprotected, and that the order sought against SAMWU to interdict the strike
set to commence on 10 June 2026 was successfully opposed and therefore
not granted. Because the applicant insisted on arguing costs, SAMWU sought
costs against the applicant.
[9] In reply, Mr Tshangana conceded that, properly interpreted, the court did not
[9] In reply, Mr Tshangana conceded that, properly interpreted, the court did not
declare the 1- 8 June 2026 strike unprotected. Having heard Mr Dlaimin, he
1 Act 66 of 1995, as amended.
2 (2022) 43 ILJ 1241 (CC).
also submitted that, if the Court was disinclined to order costs against
SAMWU, an appropriate order would be for each party to pay its own costs.
Discussion
[10] On the return date, the only sensible order to have been sought was to
discharge the rule nisi and to have each party pay its own costs. This explains
why, after hearing Mr Dlamini, Mr Tshangana conceded as much in his reply.
All of Mr Dlamini’s contentions were on point and accepted. SAMWU did not
act unreasonably in opposing the application on the grounds it advanced.
[11] In addition, costs were sought only against a respondent who unsuccessfully
opposed the application. A s held in Member of the Executive Council for
Finance, KwaZulu-Natal & another v Dorkin NO & another
3, in this court costs
do not follow the resul t. Importantly, the order granted on 8 June 2026 shows
that the applicant and SAMWU were each partially successful. That being the
case, it is difficult to understand why the applicant persisted in seeking a costs
order against SAMWU on the return date.
[12] As regards Mr Dlamini’s submission that the applicant must be ordered to pay
SAMWU’s costs for insisting on a costs order, the Court took judicial notice of
his surprise at the start of oral argument that all issues had become moot,
except the issue of costs. It remained unclear what issues, other than costs,
he expected to argue on the return date.
[13] In the premises, I make the following order:
Order
1. Each party pays its own costs.
_______________________
3 (2008) 29 ILJ 1707 (LAC) (Dorkin) at para 19.
T. Gandidze
Judge of the Labour Court of South Africa
Appearances
For the Applicant: Mr Tshangana
For the Respondent: Mr Dlamini