THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR2548/2023
In the matter between:
GORDON MZWANDILE YEKELO Applicant
and
DEPARTMENT OF INTERNATIONAL RELATIONS Respondent
AND COOPERATION
Heard: 4 August 2026
Delivered: (This judgment was handed down electronically by emailing a
copy to the parties. The 9 September 2026 is deemed to be the date of delivery
of this judgment).
Summary: Review of the finding of the chairperson of an internal departmental
disciplinary hearing — application brought in terms of s 145 of the Labour
Relations Act 66 of 1995 — whether the decision is an arbitration award issued
under the auspices of the CCMA or a bargaining council — no dispute referred
to conciliation or arbitration and no arbitration held — s 145 not engaged —
belated reliance on s 158(1)(h) impermissible and, in any event, misplaced
where the complaint is procedural fairness of disciplinary action short of
dismissal, being an unfair labour practice referable under s 191 — jurisdiction
cannot be conferred by agreement — Court lacking jurisdiction — application
dismissed — no order as to costs.
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ _______________
Signature Date
2
JUDGMENT
MHAMBI, AJ
Introduction
[1] This is an opposed application in which the applicant, Mr Gordon Mzwandile
Yekelo, seeks to review and set aside the finding of the chairperson of an
internal disciplinary hearing, Mr Nyameko Goso, dated 15 May 2023, in terms
of which the applicant was found guilty of five counts of misconduct and held
personally liable for rental costs said to be owing to Phenicia Group (Pty) Ltd.
The application is brought in terms of section 145 of the Labour Relations Act
1
(the LRA). The applicant also seeks condonation for the late delivery of the
application.
[2] The respondent, the Department of International Relations and Cooperation
(the Department or DIRCO), opposes the application and raises, in limine , the
jurisdiction of this Court. It contends that the decision sought to be reviewed is
not an arbitration award issued under the auspices of the Commission for
Conciliation, Mediation and Arbitration (the CCMA) or a bargaining council,
and that neither s ection 145 nor s ection 158(1)(h) of the LRA confers
jurisdiction on this Court to entertain the application.
[3] For the reasons that follow, I uphold the point in limine . This Court does not
have jurisdiction to determine the application, and it falls to be dismissed on
that ground. It is, in consequence, neither necessary nor appropriate for me to
1 Act 66 of 1995, as amended.
3
determine the application for condonation or the merits of the grounds of
review.
[4] For convenience I refer to the parties as they are cited: the applicant is ‘ the
applicant’, and the Department is ‘the respondent.’
Background
[5] The applicant, a retired Major General of the South African National Defence
Force, was appointed as the Republic’s Ambassador and Head of Mission in
Juba, South Sudan. He assumed duty on 19 September 2017 and concluded
a written fixed- term contract of employment with the respondent on 22
September 2017. He served the full term of that contract, which expired on 15
December 2021, whereafter he was no longer in the employ of the
respondent.
[6] The misconduct with which the applicant was charged arose from his decision
to bring the lease of the official residence with Phenicia Group (Pty) Ltd to an
end, and to take up occupation of a new official residence at the Juba Grand
Hotel with effect from 1 December 2019, without the approval of the Chief
Financial Officer to whom that authority was delegated, and, so it was alleged,
contrary to written instructions not to do so.
[7] On 19 October 2020 the applicant was served with a notice to attend a
disciplinary hearing on five charges of misconduct. The hearing was convened
as an internal disciplinary enquiry chaired by Mr Goso. It commenced on 9
November 2020 and, after a series of postponements, was finalised on 15
May 2023, when the chairperson found the applicant guilty of all five charges
and directed that he be held personally liable for the rental said to be owing.
[8] It is common cause that the applicant did not refer any dispute concerning the
disciplinary action taken against him to the CCMA or to a bargaining council
for conciliation or arbitration. He instead launched this application directly,
seeking to review the chairperson’s finding under s ection 145 of the LRA. In
his founding affidavit he relied upon s ection 145. In reply he raised,
4
additionally, s ection 158(1)(h) of the LRA and the terms of his contract of
employment.
The issue
[9] The threshold question is whether this Court has jurisdiction to entertain the
application. Jurisdiction is logically anterior to both condonation and the
merits: if the Court lacks jurisdiction, the enquiry ends there. I therefore
address it first.
The approach to jurisdiction
[10] This Court is a creature of statute. It enjoys only the jurisdiction conferred
upon it by the LRA or by other law, and it does not have jurisdiction over every
dispute arising from an employment relationship.
2 A party who approaches
this Court for relief must identify the provision of the LRA, or of some other
law, that confers jurisdiction on the Court to entertain the claim.
[11] Jurisdiction is determined on the basis of the applicant’s pleadings , the legal
basis of the claim as pleaded, and not on the merits or the eventual substance
of the dispute.
3 In motion proceedings such as these, the jurisdictional basis
for the relief sought must be established in the founding affidavit.4
[12] The applicant relied, in turn, on three bases for the jurisdiction of this Court:
section 145 of the LRA; s ection 158(1)(h) of the LRA; and the jurisdiction
clause in his contract of employment. I deal with each.
Section 145 of the LRA
[13] Section 145(1) permits a party to a dispute who alleges a defect in ‘ any
arbitration proceedings under the auspices of the Commission’ to apply to this
Court for an order setting aside the arbitration award. 5 The section is thus
concerned only with the review of arbitration awards issued under the
2Shezi v South African Police Service and Others (2021) 42 ILJ 184 (LC) at paras 9–10.
3Gcaba v Minister for Safety and Security and Others (2010) 31 ILJ 296 (CC) at para 75; Chirwa v
Transnet Ltd and Others (2008) 29 ILJ 73 (CC) at para 155.
4Id fn 2 at para 10.
5Section 145(1) of the LRA.
5
auspices of the CCMA or, by extension, a bargaining council. It presupposes
that a dispute has been referred to, and arbitrated by, such a body.
[14] That is not what occurred in this matter. The decision that the applicant seeks
to review and set aside is the finding of the chairperson of an internal
departmental disciplinary hearing. It is not an award made under the auspices
of the CCMA or a bargaining council. It is common cause that no dispute was
referred to conciliation or arbitration, and that no arbitration took place.
[15] Nor does the record reflect that the enquiry was one conducted by an
arbitrator in terms of section 188A of the LRA, the award of which would have
been deemed to be an arbitration award susceptible to review under s ection
145.
6 The enquiry was, on the papers, an ordinary internal disciplinary hearing
chaired by an official of the respondent. Indeed, the Minister’s
correspondence of 27 June 2023 describes it as ‘ the internal disciplinary
hearing’ and records that the applicant’s remedy, if dissatisfied, lay in referring
the matter to ‘the competent tribunal outside the Department.’
[16] It follows that section 145 of the LRA is not engaged. The applicant’s reliance
on that section to found the jurisdiction of this Court is misconceived, and on
that basis he has failed to establish jurisdiction as pleaded in his founding
affidavit.
Section 158(1)(h) of the LRA
[17] In his replying affidavit the applicant sought, for the first time, to rely on
section 158(1)(h) of the LRA, which empowers this Court to review any
decision taken or any act performed by the State in its capacity as employer,
on such grounds as are permissible in law.
[18] There are two answers to this. The first is procedural. As I have noted, the
jurisdiction of the Court must be established in the founding affidavit. An
applicant may not make out the jurisdictional basis of the application for the
first time in reply, thereby depriving the respondent of the opportunity to meet
first time in reply, thereby depriving the respondent of the opportunity to meet
6Section 188A of the LRA. An award made pursuant to an inquiry by an arbitrator under s 188A is
deemed to be an arbitration award for the purposes of s 145. The record does not reflect that the
enquiry was conducted under s 188A, and no party contended that it was.
6
it. The belated invocation of s ection 158(1)(h) is, for that reason alone,
impermissible.
[19] The second answer is one of substance. Even had the point been properly
raised, s ection 158(1)(h) does not avail the applicant. The gravamen of his
complaint is that the disciplinary action taken against him was procedurally
unfair, that no preliminary investigation was held, that the charges omitted a
prayer for suspension and recall, that there was undue delay, that the
chairperson was not independent, and that his documentary evidence was
disregarded. A complaint of that character is not to be brought as a review
under section 158(1)(h).
7
[20] Where the true cause of action is the fairness of disciplinary action short of
dismissal, it meets the definition of an unfair labour practice and must be
pursued through the dispute- resolution machinery that the LRA ordains for
such disputes. This Court has cautioned against contrived reliance on s ection
158(1)(h) to review procedural decisions of the State as employer, when the
real complaint is one of procedural unfairness adequately catered for
elsewhere in the Act.
8 Unfair labour practice includes the unfair suspension of
an employee or any other unfair disciplinary action short of dismissal in
respect of an employee, 9 and such a dispute must be referred to the
appropriate council or the CCMA in terms of section 191 of the LRA.10
[21] The applicant had, accordingly, a remedy under the LRA that he did not
pursue. Section 158(1)(h) is not an open invitation to review each and every
act of the State as employer, and it does not confer jurisdiction on this Court
to entertain what is, in substance, an unfair labour practice dispute dressed up
as a review.
7Hendricks v Overstrand Municipality and Another (2015) 36 ILJ 163 (LAC) at para 29.
8Democratic Nursing Organisation of South Africa (DENOSA) obo Ramaroane v Member of the
Executive Council for Health, Gauteng Province and Others (2019) 40 ILJ 2533 (LC) at paras 13–15.
9Section 186(2)(b) of the LRA.
10Section 191(1) of the LRA.
7
Jurisdiction by agreement
[22] The applicant also relied on clause 6.4.1 of his contract of employment, by
which he consented to the jurisdiction of the High Court in any dispute arising
from the contract or the employment relationship, coupled with the concurrent
jurisdiction of this Court and the High Court under section 157(2) of the LRA.
11
[23] This argument, too, must fail. Section 157(2) confers concurrent jurisdiction on
this Court and the High Court only in respect of alleged or threatened
violations of fundamental rights entrenched in Chapter 2 of the Constitution
arising from employment and labour relations. It is not a general gateway
through which any employment dispute may be brought to this Court. The
applicant’s complaint is not pleaded as, and is not in substance, a
constitutional-rights claim of that kind.
[24] More fundamentally, jurisdiction cannot be conferred upon this Court by
agreement between the parties where the Court does not otherwise possess
it. The nature of the dispute referred must be one that this Court is competent
to adjudicate; and where it is not, no consent or contractual stipulation can
supply the deficiency.
12 A clause conferring jurisdiction on the High Court
cannot, in any event, confer jurisdiction on this Court.
The reasonableness of the award
[25] Because the Court lacks jurisdiction, the reasonableness of the chairperson’s
finding, measured against the standard in Sidumo and Another v Rustenburg
Platinum Mines Ltd and Others ,
13 whether it is a decision that a reasonable
decision-maker could not reach on the material before him ,14 does not arise
for determination, and I express no view upon it. I record only that a dismissal
for want of jurisdiction is not a decision on the merits of the applicant’s
complaints, and does not preclude him from pursuing whatever competent
remedy may remain available to him in the proper forum.
11Section 157(2) of the LRA.
remedy may remain available to him in the proper forum.
11Section 157(2) of the LRA.
12South African Motor Industry Employers' Association and Another v National Union of Metalworkers
of South Africa and Others [1997] 9 BLLR 1157 (LAC).
13 (2007) 28 ILJ 2405 (CC).
14Ibid at para 110.
8
Condonation
[26] For the same reason, the application for condonation of the late delivery of the
review does not fall to be decided. Condonation would avail the applicant
nothing in a matter over which the Court has no jurisdiction.
Conclusion
[27] The application is brought under a section of the LRA that does not apply to
the decision sought to be reviewed; the belated reliance on s ection 158(1)(h)
is both impermissible and misplaced; and jurisdiction cannot be conferred by
agreement. On no basis pleaded does this Court have jurisdiction to entertain
the application. It must be dismissed for want of jurisdiction.
Costs
[28] In terms of s ection 162 of the LRA, costs in this Court are governed by the
requirements of the law and fairness, and do not follow the result as a matter
of course.
15 Although the respondent sought costs on the attorney -and-client
scale, I am not persuaded that such an order would be just. Having regard to
the nature of the dispute, the applicant’s long service to the Republic, and the
fact that the jurisdictional defect did not occasion the respondent any undue
prejudice, I consider that the interests of justice are best served by making no
order as to costs.
[29] In the premises, I make the following order:
Order
1. The application is dismissed for lack of jurisdiction.
2. There is no order as to costs.
15Section 162 of the LRA; Zungu v Premier of the Province of KwaZulu- Natal and Others (2018) 39
ILJ 523 (CC).
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_______________________
M. H. Mhambi
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant : Adv P Lebea
Instructed by : Bares & Basson Attorneys, Pretoria
For the Respondent : Adv F Storm
Instructed by : The State Attorney, Pretoria