Labour Court

Labour Law cases decided in the South African Courts (Highlights and updated 6 1997 to 12 2025 [Copyright: Marius Scheepers/16.12.1])

LABOUR COURT

Condonation, costs, court appeal, damages, execution, high court jurisdiction, interdict (see also urgent interdict), joinder, jurisdiction, labour court, order, plea, prescription, reinstatement, remedies, res judicata, rule nisi.

Condonation

Retention and share option payment.

The applicant resigned from the respondent and claimed payment of the further instalments under the agreement. Undertaking by the respondent to make good the loss that the applicant would suffer as a result of resigning. Employment contract gave rise to an enforceable obligation on the part of the respondent to pay the applicant the amount claimed.

(J1720/12) [2014] ZALCJHB 72

Grup v Renaissance BJM Securities (Pty) Ltd

Noted that a party is obliged to apply for condonation as soon as it realises that it has not complied with a time period. Held that a party applying for condonation must provide the Court with a satisfactory explanation for any delay in bringing the application for condonation.

JS741/01

NUMSA & Others v Duro Pressing (Pty) Ltd

Benefit, Other case law cited

Apollo Tyres South Africa (Pty) Ltd v CCMA and others [2013] 5 BLLR 434 (LAC)

C 546/12

South African Revenue Services v Ntshintshi

Test

Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A).

JR1367/01

Public Servants Association of South Africa obo Coetzee v MEC for Education, North West Province & Another

(a) the degree of lateness or non-compliance with the prescribed time frame; (b) the explanation for the lateness or the failure to comply with time frames; (c) prospects of success or bona fide defence in the main case; (d) the importance of the case; (e) the respondents interest in the finality of the judgment; (f) the convenience of the court; and (g) avoidance of unnecessary delay in the administration of justice.

Strong/weak prospects of success

as soon as aware of lateness

JR1552/06

Academic & Professional Staff Association v Pretorius N.O. & Others

Due to no funds to pay attorney

Dismissed

J 03/2009

Balmer and Others v Reddam (Bedfordview) (Pty) Ltd

No application for condonation

the commissioner should not have heard the matter as he did not have jurisdiction

JR2470/09

Orlando Pirates FC (Pty) Ltd v Raffee NO and Others

19 months

strong prospects of success

D534/09

NUMSA and Others v Adecco Recruitment Services Ltd

Condonation from bar

Condonation granted in application from the bar Key consideration in condonation application the prejudice to the other party

JA94/98

Tully vs Mills bank

regard to the applicants claim for leave pay. He stated that he had terminated the contract of employment because of a breach by the respondent but then simply stated that as a consequence of the above he suffered damages. He did not state whether this was due under the BCEA,

not disclose a cause of action and the exception was upheld.

(C 414/13) [2014] ZALCCT 24

Volschenk v Pragma Africa (Pty) Ltd

Late filing of statement of claim some 54 days late.

Negligence of a legal representative was not considered an acceptable excuse for a delay it was clear in the present matter that the appellant and his legal team did not believe that the statement of claim was filed out of time and that the appellant had to apply for condonation. This was so because the appellant initially referred the matter for arbitration to the CCMA.

(JA55/2013) [2015] ZALCJHB 1

Khosa v ABSA Bank Ltd

3 years late

JR2744/12

Mngomezulu and Another v Mulima N.O. and Others (JR2744/12) [2017] ZALCJHB 402 (7 November 2017)

High Tech Transformers (Pty) Ltd v Lombard the Honourable (2012) 33 ILJ 919 (LC) at page 919.

An unsatisfactory and unacceptable explanation for any of the periods of delay will normally exclude the grant of condonation, no matter what the prospects of success on the merits

NUM v Council for Mineral Technology (1999) 3 BLLR 209 (LAC) at 211 G-H at para 25.

There is a further principle which is applied and that is without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for delay, an application for condonation should be refused.

Moila v Shai and others (2007) 28 ILJ 1028 (LAC) at para. 36.

Indeed, it is clear from PE Bosman Transport Wks Com v Piet Bosman Transport 1980(4) SA 794 (4) at 799 D that in a case such as this one, it is not necessary to consider the prospects of success and that condonation could be refused no matter how strong the prospects of success are in a case such as the present one.

Van Wyk v Unitas Hospital and another [2007] ZACC 24; 2008 (4) BCLR 442 (CC) at para. 31.

A litigant is entitled to have closure on litigation. The principle of finality in litigation is intended to allow parties to get on with their lives. After an inordinate delay a litigant is entitled to assume that the losing party has accepted the finality of the order and does not intend to pursue the matter any further. To grant condonation after such an inordinate delay and in the absence of a reasonable explanation would undermine the principle of finality and cannot be in the interest of justice.

delay, explanation, prospects of success

JA37/2012

MEC for Education (North West Provincial Government) v Makubalo (JA37/2012) [2017] ZALAC 13 (3 February 2017)

NEHAWU and Others v Charlotte Theron Childrens Home [2004] 10 (BLLR) 979 (LAC).

Court held that in an exceptional case, even where a delay is substantial, the explanation for it less than adequate and the prospects of success indeterminable, it is sometimes nevertheless in the interest of justice to grant condonation.

lack of funds on its own cannot constitute reasonable explanation for the delay.

JR74/17

Madzhie v General Public Service Sectoral Bargaining Council and Others (JR74/17) [2019] ZALCJHB 304 (8 November 2019)

Du Plessis v Wits Health Consortium (Pty) Ltd [2013] JOL 30060 (LC) at para 36.

[16] It is clear that a claim of lack of funds on its own cannot constitute reasonable explanation for the delay. In other words, when pleading lack of funds as the cause of the delay, the applicant needs to provide more than a mere claim that the reason for the delay is lack of funds. In this respect, the applicant has to take the Court into his or her confidence in seeking its indulgence by explaining "when" not only that he or she finally raised funds to conduct the case but also how and when did he or she raise those funds. The "when" aspects of the explanation is important as it provided the Courts with the information as to whether there was any further delay after raising the funds and whether an explanation has been provided for such a delay.

[16]...In my view, attorneys should start advising clients to approach the Court on their own in the event that they have no funds to pay for the legal services. To the extent that the litigants have no necessary knowledge, this Court has various pro forma court documents (such as affidavits, statement of case, notice of motion, etc.) that are easy to complete or adapt. So far, they have been utilised by less sophisticated, unrepresented litigants with great success.

JR 306/15

Sitoe v Commission for Conciliation, Mediation and Arbitration and Others (JR 306/15) [2020] ZALCJHB 196 (22 May 2020)

[24] In SA Transport and Allied Workers Union v Tokiso Dispute Settlement and Others[(2015) 36 ILJ 1841 (LAC)] the LAC confirmed that where a party is out of time and has to take the jurisdictional step of applying for condonation but failed to do so, a court cannot come to the party’s assistance. The LAC held that in the absence of an application for condonation, the court cannot assist the party.

Due to attorney's conduct

JA81/19

SAMWU obo Shongwe and Others v Moloi N.O and Others (JA81/19) [2021] ZALAC 2; [2021] 5 BLLR 464 (LAC) (26 February 2021)

See, inter alia, Regal v African Superslate 1962 (3) SA 18 (A) at 23 C-H; Saloojee & another v Minister of Community Development 1965 (2) SA135 (A) at 141 B-H.

[33] Even though, generally, a party is not absolved from blame where its legal representative, through negligence, or otherwise, has not complied with time periods, an exception is made, generally, in circumstances where the party has not remained passive in the face of such non-compliance and has done something about it.[4]

45.2. The order of the Labour Court, refusing to condone the late filing of the rule 7A(8)(b) notice, dismissing the review, and ordering the appellant to pay the costs of the third respondent, is set aside and is substituted

the defect would have to be of a kind which would result in a miscarriage of justice if it were allowed to stand

JA53/2019

National Education Health and Allied Workers Union (NEHAWU) and Others v Metrofile (Pty) Ltd and Others (JA53/2019) [2021] ZALAC 8 (29 March 2021)

[10] To grant condonation is an exercise of judicial discretion that is only fettered by being judicially explained.[1] The test is whether the court whose decision is challenged on appeal has exercised its discretion judicially. The exercise of the discretion will not be judicial if it is based on incorrect facts or wrong principles of law[2] or where the court of first instance acted capriciously, or in a biased manner, or committed a misdirection or an irregularity, or exercised its discretion improperly or unfairly.[3] If none of these grounds is established, it cannot be said that the exercise of discretion was not judicial. In those circumstances the claim for interference on appeal must fail.

[11] Where time-limits are set, whether statutory or in terms of the rules of court, a court has an inherent discretion to grant condonation where the interests of justice demand it and where the reasons for non-compliance with the time-limits have been explained to the satisfaction of the court. [4]

Steenkamp & others v Edcon Ltd (2019) 40 ILJ 1731 (CC) at 1740 para 26.

[41] In giving effect to this primary object, the LRA imposes strict time-limits within which various applications and referrals must be launched. Non-adherence to these time-limits may be condoned. Both the Labour and the Labour Appeal Courts have incorporated the general principles for condonation referred to above. But they have also infused factors and considerations specific to labour law: Condonation in the case of disputes over individual dismissals will not readily be granted. The explanation for non-compliance would have to be compelling, the case for attacking a defect in the proceedings would have to be cogent and the defect would have to be of a kind which would result in a miscarriage of justice if it were allowed to stand. Whether the delay was a result of a deliberate, wilful decision not to comply with a lawful and binding award in terms of the LRA is also an important factor to consider. Where the explanation for the delay is the internal processes and procedures of trade unions, the Labour Court has taken a stricter view. (Emphasis added)

Department of Agriculture , Forestry & Fisheries v Baron & others (2019) 40 ILJ 2290 (LAC) at 2304 para 41.

Edcon Ltd v Steenkamp & others (2018) 39 ILJ 531 (LAC) at 544 para 45.

that the explanation in support of condonation, relying on a failed legal strategy to justify the delay, is not acceptable.

[24] Truth be told, the appellants and their legal representatives bungled their case. Their argument went off on a tangent and did not meaningfully, or at all, address their prospects of success. No cogent criticism can be sustained in the Labour Courts determination that the special pleas, including one concerning the identity of the employer, were destined for separate adjudication. The appellants belated attempt to call in the aid of their statement of claim, to show their reasonable prospects of success, is contrived. They failed to incorporate their statement of case into their founding papers. The Labour Court correctly invoked the time- honoured convention that an applicant must, 'stand or fall by his/her founding affidavit and resisted the temptation to consider the pleadings in the referral proceedings. Its finding that the appellants did not demonstrate their prospects of success remains unassailable.

Once party becomes aware

JR 1215/18

Greater Taung Local Municipality v South African Local Government Bargaining Council and Others (JR 1215/18) [2021] ZALCJHB 16 (17 January 2021)

[11] It is also well established that as soon as the party in default becomes aware that condonation is necessary, an application for condonation must be filed without further delay[10].

Horatious Seatlolo and others v Entertainment Logistics Services (A Division of GALLO AFRICA LTD) (2011) 32 ILJ 2206 (LC).

It is trite that an application for condonation must be brought as soon as the party becomes aware of the default. This principle has been emphasized by the Supreme Court of Appeal on numerous occasions (see Saloojee supra at 138H; Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 129G; and Napier v Tsaperas 1995 (2) SA 665 (A) at 671 B-D). This approach has been endorsed by the Labour Appeal Court which in fact advocates bringing the application for condonation on the same day it is discovered to be necessary. See in this regard inter alia Allround Tooling (Pty) Ltd v NUMSA and others [1998] 8 BLLR 847 (LAC) at 849 para 8; NEHAWU v Nyembezi [1999] 5 BLLR 463 (LAC) at 464 D-F; and Librapac CC v Fedcraw and Others [1999] 6 BLLR 540 (LAC) at 543.

Interest of justice

JS 170/20

Pheganyane v SANCA Witbank Alcohol and Drug Help Centre and Others (JS 170/20) [2021] ZALCJHB 55 (27 March 2021)

[3] See Steenkamp and Others v Edcon Limited 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC); [2019] 11 BLLR 1189 (CC), where it was held that

[36] Granting condonation must be in the interests of justice. This Court in Grootboom set out the factors that must be considered in determining whether or not it is in the interests of justice to grant condonation:[T]he standard for considering an application for condonation is the interests of justice. However, the concept interests of justice is so elastic that it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors but it is not necessarily limited to those mentioned above. The particular circumstances of each case will determine which of these factors are relevant. It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the courts indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the rules or courts directions. Of great significance, the explanation must be reasonable enough to excuse the default.The interests of justice must be determined with reference to all relevant factors. However, some of the factors may justifiably be left out of consideration in certain circumstances. For example, where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.[37] All factors should therefore be taken into account when assessing whether it is in the interests of justice to grant or refuse condonation.

barring exceptional circumstances, this is no explanation at all: a lack of funds

JR 764/18

Kock v CCMA & Others (JR 764/18) [2021] ZALCJHB 101 (31 May 2021)

Du Plessis v Wits Health Consortium (Pty) Ltd

In fact, a lack of funds is surely commonplace with all employees pursuing cases where they have been dismissed. There is nothing unique or exceptional about it. Most litigants, despite such lack of funds, manage to prosecute their disputes within the time limits prescribed. I consider the following dictum from the judgment in Du Plessis v Wits Health Consortium (Pty) Ltd[23] as apposite: a claim of lack of funds on its own cannot constitute reasonable explanation for the delay. In other words, when pleading lack of funds as the cause of the delay, the applicant needs to provide more than a mere claim that the reason for the delay is lack of funds. In this respect, the applicant has to take the Court into his or her confidence in seeking its indulgence by explaining "when" not only that he or she finally raised funds to conduct the case but also how and when did he or she raise those funds. The "when" aspects of the explanation is important as it provided the Courts with the information as to whether there was any further delay after raising the funds and whether an explanation has been provided for such a delay.

appeal in matters of discretion is strictly circumscribed

JA89/2020

Smith Capital Equipment (Pty) Ltd v Mergui (JA89/2020) [2021] ZALAC 40 (27 October 2021)

[21] As already stated earlier in this judgment, in order to determine whether good cause is shown, the following factors together with any other relevant factors are taken into account: the degree of lateness, the reasons for the lateness, the prospects of success, any prejudice that the respondent may suffer, and the respondents interest in finality.[Melane v Santam Insurance Company Limited 1962 (4) SA 531 (A) at 552.] These factors are interrelated. Thus, a slight delay and good explanation may help to compensate for prospects of success which are not strong, and strong prospects of success may tend to compensate for a long delay.[8]

[14] It is a well-settled principle that the power to interfere on appeal in matters of discretion is strictly circumscribed. For a court of appeal to interfere with the decision of the court a quo where a discretion has been exercised, the test is whether the court a quo acted improperly and unreasonably or that it acted capriciously, or upon the wrong principle or with bias, or whether the discretion exercised was based on unsubstantial reasons or whether the court a quo adopted an incorrect approach.[Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC) at para 55.]

Unfair Labour Practice: 90 days

JR1450/17

Department of Military Veterans v Moche and Others (JR1450/17) [2022] ZALCJHB 44 (7 March 2022)

[16] In Amalungelo Workers Union obo Mayisela and 29 Others v CCMA and Others,[Case No. JA07/21, dated 29 November 2021.] the Labour Appeal Court held that: The act or omission referred to in subsection (3) is clearly that which gave rise to the dispute. And the dispute, as long as it is the same one, only has one initial date on which it arose. The fact that the dispute is ongoing, in the sense that it recurs after it arose, may be because it is either never resolved, or satisfactorily resolved. But does that (sic) not imply that the parties, as it were, necessarily have a new act or omission or wrong every time the same dispute erupts again.[

[18] In casu, the act or omission that gave rise to the dispute arose in July 2013, or August 2013. The first respondent, prior to requesting a job evaluation, requested to be paid an acting allowance, which proves that he became aware of his right at that time to be paid for the additional responsibilities. Further, in June 2015 when he requested the job evaluation, he was aware of his right. On any reading of section 191(1)(b)(ii), the 90-day period cannot be said to run from the date when the employer communicates its decision of either the grievance referred by the employee or the demand or request made by the employee. This will not accord with the provision itself and will render the 90-day time limit completely useless.[Eskom Holdings SOC Ltd v NUM obo Kyaya and Others (2017) 8 BLLR 797 (LC) and City of Johannesburg v South African Local Government Bargaining Council and Others (JR3204/10) [2014] ZALCJHB68 (10 February 2014).] If the employee lodged a grievance and the decision was communicated at a later stage such that the referral of dispute to the relevant bargaining council or the Commission for Conciliation, Mediation and Arbitration (CCMA) is made outside the 90-day period, the fact that there was a grievance that took long to be resolved may be used to motivate for application for condonation.

[19] The commissioner should have, the moment he made such an award that was retrospective from 2013, enquired if he was legally empowered to make it. Put differently, he should have realised that he was not clothed with the requisite jurisdiction to entertain the dispute and to make such an award, in the absence of an application for condonation for the late referral of the dispute.

when application be made

J 1747 / 2018

Chasi v University of Johannesburg (J 1747 / 2018) [2022] ZALCJHB 275 (3 October 2022)

[58] And finally, where condonation is needed, It is essential that condonation must be applied for either immediately upon or at least as expeditiously as possible after, the applicant party became aware or reasonably should have become aware, that condonation is needed.[See Commissioner for Inland Revenue v Burger 1956 (4) SA 446 (A) at 449G; Darries v Sheriff, Magistrate's Court, Wynberg, and Another 1998 (3) SA 34 (SCA) at 401-41B; Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd 2010 (4) SA 109 (SCA) at para 39; A Hardrodt (SA) (Pty) Ltd v Behardien and Others (2002) 23 ILJ 1229 (LAC) at para 18.] The failure to expeditiously apply for condonation and the resulting delay would be considered to add to the length of the delay, and the failure to property justify and explain this further delay may of its own also lead to the refusal of condonation.[See De Beer en 'n Ander v Western Bank Ltd 1981 (4) SA 255 (A) at 257; Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 129G; Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281C-F.] In Van Der Merwe v The Minister of Police[2019 JDR 1263 (FB) at para 8.] it was said that: '... However, the period of delay before the notices were delivered, is not the only aspect that has to be considered, because the delay of 6 months in filing the condonation application is of equal importance. If, for instance, it is found that there is no reasonable and acceptable explanation for the delay in filing the application, then it would follow that the application for condonation as a whole cannot succeed ...'. A similar approach was followed by this Court in Seatlolo supra[(2011) 32 ILJ 410 (LC) at para 12.], where it was said:'... It is incumbent on a party to apply for condonation as soon as possible upon becoming aware of the default. This point has been repeatedly emphasized by the Supreme Court of Appeal ... , an approach strongly endorsed by the Labour Appeal Court. Indeed the LAC has held that an application for condonation ought to be launched on the same day that the default is discovered ... '

minimal delay...not bringing a full condonation application

JS395/19

Landman v Deutsche Bank AG Johannesburg Branch (JS395/19) [2023] ZALCJHB 44 (2 February 2023)

"[24]      The Applicant has adopted a highly technical and formalistic approach which, in the circumstances, is not appropriate.  In this light I refer to the judgment of Moshoana J in this Court, Abrahams v Murray and Roberts Power and Energy[(JS409/20) [2021] ZALCJHB 382 (19 October 2021).]:

“[3]      Given the primary aim of the Rules of Courts, it is inappropriate in my view, for litigants to attempt to gain advantage over each other in a litigation process by using the Rules, even where effectiveness and efficiency is not achieved.  Labour disputes require speedy and effective resolution. Accordingly, practitioners should be reasonable in their approach when seeking to oppose minimal departure from time periods prescribed in the Rules.  It is indeed so where a time period is prescribed in the Rule, litigants are bound to promptly comply with such time periods.  However, if a litigant minimally misses the time period, where immense prejudice is not demonstrable, it remains an unreasonable opposition to heavily oppose a quest for indulgence by this Court.”"

"[25]      The Learned Judge went on to state that:

“Practitioners and litigants should know that on application of the de minimis non curat lex – the law is not concerned with insignificant or minor matters, Courts are inclined to indulge where the delay is not excessive. Under those circumstances, opposition becomes reasonable, if immense prejudice is shown to exist. Otherwise, if prejudice is non-existent, opposition must be unreasonable”"

alleged unfair discrimination in terms of Employment Equity Act, 1998 – when the conduct complained of is continuing and repetitive there is no need to apply for condonation.

JS 903/21

Msani v Mpact Operations (Pty) Ltd (JS 903/21) [2023] ZALCJHB 11 (6 February 2023)

[18]       In the case of Moqhaka Local Municipality v The South African Legal Government Bargaining Council and Others,[6] the Court found that an application for condonation in an unfair labour practice dispute relating to demotion was not required. Although the act of demotion was a single act, the consequences thereof, namely the depletion of the employee’s duties, were continuous and therefore an application for condonation was not required.

[20]       In casu, I take note of the respondent’s contention that the act of promotion or non-promotion is a single act. However, from the applicant’s statement of case, it is clear that he is alleging a number of discriminatory acts on the part of the respondent over a period of time. In my view, I support the Solidarity judgment that regard should be had to all the relevant facts and circumstances surrounding the matter, in this instance, the 2019 and 2020 incidences.  Failure to promote has ongoing consequences for the employee’s welfare and in particular his remuneration. The consequence of the alleged discriminatory act is therefore continuous. In other words, when an employee is not promoted, the benefits that would have accrued to that employee had they been promoted, is not accruing to that employee, at least from the time the discriminatory act occurred.

explanation for the delay must have been comprehensive, convincing and compelling and should have covered every period of the delay

JR 809/2021

Olivier v Bloemfontein Metal Merchants CC t.a Southern Cross Industries and Others (JR 809/2021) [2023] ZALCJHB 276 (10 October 2023)

[36] As the Applicant sought an indulgence and bore the onus to satisfy the CCMA that condonation should be granted, it was incumbent to provide the CCMA and the arbitrator with a full explanation for every period of the delay. It is not sufficient simply to list significant events that occurred during the period in question as that does not assist in properly assessing the reasonableness of the explanation.[11] In short: the explanation for the delay must have been comprehensive, convincing and compelling and should have covered every period of the delay.

Condonation – Response to statement of case – Employer filed 84 days late

JA35/24

Government Printing Works v Public Service Association and Another (JA35/24) [2024] ZALAC 63 (28 November 2024)

Labour Court refusing condonation – Found that explanation for delay was entirely unreasonable and unacceptable and that prospects of success were immaterial – Employer’s prospects of success are excellent – Has concerns that it will contravene legislation by employing employee as security service provider – Interests of justice and fairness are best served by granting condonation – Order of Labour Court replaced with one granting application for condonation.

1]  Labour disputes, by their very nature, require speedy resolution.[1] Delays undermine the primary object of legislation designed to afford expeditious outcomes to employers and employees. An excessive delay in responding to a statement of case may also induce a reasonable belief that the claim has been accepted.[2] Adherence to the rules on the part of both parties contributes to the attainment of the broader objectives of the Labour Relations Act[3] (LRA) so that prescribed time periods are significant,[4] but they are not ironclad. A court has an inherent discretion to condone non-compliance with prescribed time-limits in the interests of justice, provided that the applicant has shown sufficient cause to obtain the indulgence.[5]

[17]  A note on the choice of language. It is arguably the labels that are frequently attached to these two kinds of discretion that have caused some confusion. As the Constitutional Court has noted, the reference is often to a ‘strict / narrow / true’ discretion, on the one hand, as opposed to a discretion in the ‘broad / wide / loose’ sense, on the other.

[18]  This court has previously held that the discretion whether to condone a late referral of a dispute is ‘loose’ because of the variety of relevant considerations.[26] The minority judgment of Zondo J in Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others is along the same lines,[27] as are various decisions of the SCA dealing with condonation.[28]

26]  Judicial discretion involves a value judgment based on the facts of the case.[51] The Labour Court must be fair to both sides.[52] It must also consider the broader objects of the LRA, including the importance of expeditious resolution of employment disputes.[53] The factors that must be considered in determining whether or not it is in the interests of justice to grant condonation, and the appropriate approach,

"27]  This description evokes a balancing approach, characterised by proportionality and flexibility. The general principle remains that the various factors are to be considered collectively, and not mechanically, in determining the interests of justice.[55] While no single factor is ever likely to be decisive, the prospects of success in favour of the party seeking condonation is usually an important factor to be considered.[56] Only in exceptional circumstances would a party’s disregard for delay and delay in pursuing a matter justify completely overlooking the merits of the case.[57] The Western Holdings principle is, in a sense, less exacting and now appears to have been overtaken by the approach of the Constitutional Court. In the words of Zondo J, where the delay is ‘unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success’ (own emphasis).[58]  The prospects remain relevant, it seems, even ‘where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party’.[59]

"

[31]  Considering these dimensions, it is evident that a court may only rarely avoid any assessment of the prospects of success based on the extent of delay and quality of the explanation. This accords with the broad approach to delay and condonation that has emerged in our jurisprudence, also in respect of legality and administrative reviews.[70] It is so that one of the primary objects of the LRA is to promote the effective resolution of labour disputes, so that procedural expeditiousness is desirable. The overall approach must nonetheless accord with the interests of justice, including fairness to both parties, in the context of an enquiry that naturally lends itself to a holistic consideration of interrelated factors to enable an objective value judgment.

36]  The explanation offered for the delay between 19 July 2022, when the response was due, and the end of August, is reasonable and acceptable. It is the further delay of approximately 50 days that is problematic. The cause of this can only be attributed to the appellant’s legal representatives, both in respect of the explained and unexplained portions.

"

[40]  On balance, the appellant has succeeded in proving that there is good cause to grant the indulgence sought.[82] The uncontested prospects of success, in particular, coupled with the importance of the issue, are such that these factors compensate for the excessive delay and complete inadequacy of part of the explanation. Considering the relevant factors in their totality, the interests of justice and fairness are best served by granting condonation."

Attorney to blame

JA42/23

Malepe and Others v Mega Volt Loden Electrical (Pty) Ltd (JA42/23) [2025] ZALAC 6 (4 February 2025)

[36]  The argument that, because the appellants were at all material times represented either by a union official or legal representatives, while it sounds attractive, ignores the fact that even where a person has been legally represented, it does not necessarily follow that condonation will always be refused. In fact, the interests of justice may very well point to the granting of a condonation application being in the interests of justice even where a litigant was legally represented and had the benefit of legal counsel.

" In Saloojee and Another, NNO v Minister of Community Development,[5] Steyn CJ said:

‘This Court has on a number of occasions demonstrated its reluctance to penalise a litigant on account of the conduct of his attorney. A striking example thereof is to be found in R v Chetty 1943 AD 321. In that case there was an even longer delay than here, and the excuses offered by the attorney concerned were clearly unsatisfactory, but the Court nevertheless granted condonation. Feetham JA remarked…:

“So far, however, as appeared from the papers before us, the applicant himself was not responsible for the delays which have occurred, save in so far as he continued to allow his case to remain in the hands of an attorney who had shown himself unworthy of his confidence, and, in view of the serious nature of the conviction recorded against the applicant, and of the fact that he was given leave to appeal by the Transvaal Provincial Division, the application for condonation is now granted.”

In Regal v African Superslate (Pty) Ltd 1962 (3) SA 18 (AD) at p.23 also, this Court came to the conclusion that the delay was due entirely to the neglect of the applicant’s attorney, and held that the attorney’s neglect should not, in the circumstances of the case, debar the applicant, who was himself in no way to blame, from relief.’"

[44]  It seems to me that the interests of justice call for the granting of the condonation application.

Is it in the interest of justice to grant condonation

JR1982/24

Seunane v South African Police Service and Others (JR1982/24) [2025] ZALCJHB 93 (5 March 2025)

"[45]  In the case of Chetty v Law Society, Transvaal,[13] the Court held that a bona fide defence and good prospects of success are not sufficient in the absence of a reasonable explanation of the delay. This principle has been interpreted NUM v Council for Mineral Technology[14] as follows:

‘There is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused.’"

"[46]  In Queenstown Fuel Distributors CC v Labuschagne N.O and others,[15] it was held that:

‘Condonation in the case of disputes over individual dismissals will not readily be granted. The excuse for non-compliance will have to be compelling, the case for attacking the defect in the proceedings would have to be cogent and the defect would have to be of a kind which will result in a miscarriage of justice if it were allowed to stand.’

"

[42]  The Constitutional Court pointed out in Brummer v Gorfil Brothers Investments (Pty) Ltd and others,[11] that an application for condonation should be granted if it is in the interest of justice and refused if it is not. The Constitutional Court went on to say that the interests of justice must be determined by reference to all relevant factors outlined in Melane supra[12], including the nature of the relief sought, the nature and cause of any other defect in respect of which condonation is sought, and the effect of the delay on the administration of justice.

16.12.1

"AI: Key points from the judgment include:

The Labour Court erred in not considering the interests of justice and the prospects of success.

The delay in filing the statement of claim was not excessive, and the appellant acted in good faith.

The dismissal of employees who were not involved in the strike (e.g., those on study leave or at home with permission) was deemed to have strong prospects of success.

The Labour Appeal Court emphasized the importance of considering the right to fair labor practices and access to justice under the Constitution."

JA111/2024

Numsa obo Members v Macsteel Service Centres South Africa (Pty) Ltd (JA111/2024) [2025] ZALAC 60 (14 November 2025)

"Melane v Santam Insurance Co Ltd (1962):

Established the principle that condonation requires consideration of the degree of lateness, explanation for the delay, prospects of success, and the importance of the case."

"Ditsoane v ACWA Power Africa Holdings (Pty) Ltd (2024):

Emphasized that courts must consider the interests of justice and prospects of success when deciding condonation applications."

"Department of Transport and Others v Tasima (Pty) Limited (2018):

Highlighted that courts may overlook delays if it is in the interests of justice, even if the explanation for the delay is unsatisfactory."

"Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited (2019):

Stated that courts must consider the merits of a case when deciding whether to condone delays"

"Khumalo v MEC for Education, KwaZulu-Natal (2014):

Stressed the importance of analysing the impugned decision and considering the merits of the challenge when assessing delays."

"Road Accident Fund and Another v Mdeyide (2011):

Highlighted the importance of time limits in ensuring certainty and stability in legal disputes"

"Chief Lesapo v North West Agricultural Bank and Another (1999):

Affirmed the constitutional right of access to courts as foundational to an orderly society."

"City of Johannesburg Metropolitan Municipality and Others v Independent Municipal and Allied Trade Union and Others (2017):

Emphasized the importance of considering the right to access courts and the interests of justice in condonation applications."

"olett v Commission for Conciliation, Mediation and Arbitration and Others (2014):

Held that without a reasonable explanation for delay, prospects of success are immaterial"

"Matoto v Free State Gambling and Liquor Authority and Others (2017):

Stated that condonation may be refused if there is no satisfactory explanation for the delay, regardless of prospects of success."

Costs

 Punitive costs

JA111/2022

Lekhesa: In re Ngwenya v Trustees for the time being of Sishen Iron Ore Company Community Development Trust and Another (JA111/2022) [2024] ZALAC 11; [2024] 6 BLLR 585 (LAC); (2024) 45 ILJ 1220 (LAC) (26 March 2024)

[17]       Punitive costs convey a court’s displeasure at a party’s reprehensible conduct[11] and are justified where the conduct concerned is extraordinary and deserving of a court’s rebuke.[12] Additionally, an order of costs de bonis propriis is made against an attorney, as an officer of the court who owes a court an appropriate level of professionalism and courtesy, as a mark of the court's displeasure for the conduct of that practitioner.[13] This occurs where a court is satisfied that there has been negligence to a serious degree, or a gross disregard for professional responsibilities, where an attorney acted inappropriately and egregiously, or where a legal practitioner misleads the court.[14]

manifestly unjust

Acted Mala Fide

P487/09

Inzuzu IT Consulting (Pty) Limited v CCMA & Others

Security for costs

peregrinus

Respondent a peregrinus seeking review of arbitration award ; Court empowered to order that security for costs to be provided

HC rule 47

C664/06

September & Another v Muddford International Services Ltd

Costs to follow the result subject to considerations of fairness

the ongoing relationship between the parties; the fact that the union was not at all unreasonable in opposing the relief sought; the unions belief that since a certificate of outcome had been issued after conciliation, which was never set aside, the strike action would be protected; the issue for decision, i.e. the legality or otherwise of the strike, was of great importance to the union and its members; the fact that the union did not oppose the granting of the final order; and the fact that the union had called off the strike immediately after the temporary order was issued.

C429/07

City of Cape Town v South African Municipal Workers Union

not vexatious and the case was not one of the exceptional cases that justified punitive costs

JR1524/06

Moshela v CCMA and Others

de Bonis Propriis

JR2454/10, JI304/13

Lusitania Food Products (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others (JR2454/10, JI304/13) [2017] ZALCJHB 148 (8 May 2017)

30]The circumstances in which a costs order bonis propriis may justifiably be imposed are however significantly more exacting. Negligence in a serious degree must be established on the part of the party against whom such a costs order is sought.

Moloi and another v Euijen and another(1999) 20 ILJ 2829 (LAC)

Costs de bonis propriis are awarded against legal practitioners in cases which involve serious delinquencies such as dishonesty, wilfulness or negligence in a serious degree.

SA Liquor Traders Association v Chairperson, Gauteng Liquor Board and Others 2009 (1) SA 565 (CC)

An order of costs de bonis propriis is made against attorneys where a court is satisfied that there has been negligence in a serious degree which warrants an order of costs being made as a mark of the courts displeasure.

Waar v Louw 1977 (3) SA 297 (O)

The tendency of time past was to make attorneys pay for their mistakes by means of an order of costsde bonis propriis. And the reason for such an order against an attorney is quite clear. The office of an attorney is a high and responsible office. The attorneys profession is a learned profession requiring great skill from its members. Mistakes which an attorney makes in litigation and which result in unnecessary costs should, therefore, not lightly be overlooked. And a litigant should not always be obliged himself to the costs which have been caused by the negligence of his attorney. But too strict action should not be taken against an erring attorney. The administration of justice is sometimes an irritating discipline, and even the most skilful practitioners can make mistakes which cause unnecessary costs. The attorneys profession should not be moved by too lenient an attitude to loosen its reins, but should also not be demoralised by too much cracking of the whip. As usual, in the affairs of man, the middle course s best. The circumstances under which a court can make an order of costs de bonis propriis against an attorney should be reasonably serious, as, eg, dishonesty, wilfulness or negligence of a serious degree.

principle

JA15/2014

Vermaak v MEC for Local Government and Traditional Affairs, North West Province and Others (JA15/2014) [2017] ZALAC 2 (10 January 2017)

[11] The rule of practice that costs follow the result does not govern the making of costs orders in the Labour Court and such orders are made in accordance with the requirements of law and fairness.[17] For the above reasons, I conclude that the Labour Court did not exercise its discretion properly. This Court is therefore at large to interfere with the award of costs and make an order that we consider appropriate in the circumstances. Taking into account considerations of law and fairness, I am of the view that the order of the Labour Court should be substituted with one of no order as to costs.

Moloi v Euijen

it was observed that the framework of s 162 supports the proposition that when making orders of costs the requirements of law and fairness are paramount

Callguard Security Services (Pty) Ltd v Transport and General Workers Union and Others (1997) 18 ILJ 380 (LC), and Xaba v Portnet Ltd (2000) 21 IJL 1739 (LAC).

The requirements of law and fairness are on equal footing, and none is secondary to the other.

Member of the Executive Council for Finance, Kwazulu-Natal and Another (2008) 29 ILJ 1707 (LAC) at para 17.

[T]he norm ought to be that costs orders are not made unless those requirements (of law and fairness) are met. In making decisions on costs orders this court should strive to strike a fair balance between, on the one hand, not unduly discouraging workers, employers, unions and employer organisations from approaching the Labour Court and this court to have their disputes dealt with, on the other, allowing those parties to bring to the Labour Court and this court frivolous cases that should not be brought to court. This is a balance that is not always easy to strike, but if the court is to err, it should err on the side of not discouraging parties to approach these courts with their disputes[8]

Lewis v Media 24 Ltd (2010) 31 2418 (LC) para 129.

it was observed that the Labour Court has generally been reluctant to order costs against an individual employee.

JS1043/16

Massmart Holdings Limited v Theron (JS1043/16) [2018] ZALCJHB 4 (11 January 2018)

Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd [1977] 4 All SA 94 (A) at page 108; 1977 (3) SA 670 (A) at page 687 C-F.

The fundamental rule in regard to the award of damages for breach of contract is that the sufferer should be placed in the position he would have occupied had the contract been properly performed, so far as this can be done by the payment of money and without undue hardship to the defaulting party To ensure that undue hardship is not imposed on the defaulting party the sufferer is obliged to take reasonable steps to mitigate his loss or damage (ibid.) and, in addition, the defaulting party's liability is limited in terms of broad principles of causation and remoteness, to (a) those damages that flow naturally and generally from the kind of breach of contract in question and which the law presumes the parties contemplated as a probable result of the breach, and (b) those damages that, although caused by the breach of contract, are ordinarily regarded in law as being too remote to be recoverable unless, in the special circumstances attending the conclusion of the contract, the parties actually or presumptively contemplated that they would probably result from its breach. The two limbs, (a) and (b), of the above stated limitation upon the defaulting party's liability for damages correspond closely to the well-known two rules in the English case of Hadley v. Baxendale, 156 E.R. 145, which read as follows (at p. 151):   "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it." Emphasis added.

37]I am persuaded that the respondent, a former employee of the applicant, was directly involved in headhunting Mr Pillay to join the bank in breach of the contractual undertaking and consequently rendered himself liable for damages suffered by the applicant in replacing Mr Pillay. The total amount claimed is fair and reasonable.

delay in delivering the answering affidavit is about 17 months

JR137/201

Passenger Rail Agency South Africa v Commission for Conciliation, Mediation and Arbitration and Others (JR137/2015) [2018] ZALCJHB 160 (26 April 2018)

[24] The granting of condonation nonetheless comes at a price. The third and fourth respondents had clearly been remiss and negligent in not delivering the answering affidavit when required to do so, compelling PRASA to file an objection in terms of clause 11.4.2 of this courts Practice Manual read with Rule 7 (5) (a) of the Rules of this Court. PRASA as a consequence of the third and fourth respondents dilatoriness was also compelled to oppose the condonation application in circumstances which the third and fourth respondents could have avoided. In the circumstances, considerations of law and fairness dictate that the fourth respondent be burdened with the costs of this application.

Constitutional Court

CCT136/17

Zungu v Premier of the Province of Kwa-Zulu Natal and others (CCT136/17) [2018] ZACC 1 (22 January 2018)

[23] ...  The correct approach in labour matters in terms of the LRA is that the losing party is not as a norm ordered to pay the successful party’s costs.  Section 162 of the LRA governs the manner in which costs may be awarded in the Labour Court.

Member of the Executive Council for Finance, KwaZulu-Natal v Wentworth Dorkin N.O. [2007] ZALAC 41 (Dorkin) at para 19.

The rule of practice that costs follow the result does not govern the making of orders of costs in this Court.  The relevant statutory provision is to the effect that orders of costs in this Court are to be made in accordance with the requirements of the law and fairness.  And the norm ought to be that costs orders are not made unless the requirements are met.  In making decisions on costs orders this Court should seek to strike a fair balance between on the one hand, not unduly discouraging workers, employers, unions and employers organisations from approaching the Labour Court and this Court to have their disputes dealt with, and, on the other, allowing those parties to bring to the Labour Court and this Court frivolous cases that should not be brought to Court.

Post CC court cost ruling: costs to be made

J1829/1

Mokoena v Credit Guarantee Insurance Corporation Africa Limited and Others (J1829/18) [2019] ZALCJHB 47 (7 March 2019)

[1]          It has become crystal clear that some practitioners believe that since section 151(1) of the Labour Relations Act[1] (LRA) refers to this Court as one of law and equity, this Court is incapable of making cost orders. Such a belief is wrong and inconsistent with section 162 of the LRA. Before me is an interlocutory application dealing with the special pleas raised by the respondents against the applicants claim as set out in the statement of case.

party be given an opportunity to make representations

JA29/2019

Kopanong Local Municipality and Another v Mantshiyane (JA29/2019) [2020] ZALAC 21; (2020) 41 ILJ 1907 (LAC) (28 May 2020)

Punitive costs in the labour dispute guided by fairness and equity----fairness dictates that a party be given an opportunity to make representations----in the absence of such representations costs order contravening the principle of natural justice---Appeal upheld.

vexatious

J 2548/2015

SASBO-The Finance Union v Duma (J 2548/2015; D 1154/2015) [2020] ZALCJHB 80 (25 May 2020)

[10]      If this Court is satisfied that the rescission is vexatious or amounts to abuse of the court processes; it may order security for costs but has to be guided inter alia by the provisions of section 162 of the Labour Relations Act[2] (LRA). The court in Fisheries Development Corporation of SA Ltd v Jorgensen and Another; Fisheries Development Corporation of SA Ltd v AWJ Investments (Pty) Ltd and Others[1980 (4) SA 156 (W)], explained the term vexatious thus: In its legal sense vexatious means: frivolous, improper: instituted without sufficient ground, to serve solely as an annoyance to the defendant. Vexatious proceeding also not doubt proceedings which, although properly instituted, continued with the sole purpose of causing annoyance to the defendant, abuse connotes a mis-use, improper use, a use mala fide, a use for an ulterior motive

Constitutional court

CCT 154/20

National Union of Mineworkers obo Masha and Others v SAMANCOR Limited (Eastern Chromes Mines) and Others (CCT 154/20) [2021] ZACC 16 (22 June 2021)

[28]           Lastly, the question of costs.  The applicant submits that the costs orders are unjustified.  The Labour Appeal Court did not apply the principle set out in Dorkin[10] and Zungu,[11] and thus did not exercise its discretion judicially.  The first respondent submits that the principles applicable to the awarding of costs are well-known and there is no principle for this Court to engage with or provide guidance on.  Further, the matter does not raise a constitutional or a legal issue of general public importance.[29]           I agree with the applicant that the Labour Appeal Court did not have regard to this Courts decision in Zungu.  In Zungu, this Court held that the rule of practice that costs follow the result does not apply in labour court matters.[12]  The Court also quoted Dorkin with approval where it was held that it is crucial not to discourage employees, unions and employers organisations from approaching the Labour Court and Labour Appeal Court by mulcting unsuccessful litigants in costs.[13]  This Court further said that reasons must be provided where a costs order is issued.[14]

[31]           The applicants role is to defend the rights of its members.  It cannot be argued that challenging a dismissal alone justifies a costs order.  Mulcting the applicant in costs in a labour matter where there is no finding of any untoward conduct on the part of the applicant is intolerable.  The costs orders will have a chilling effect on the applicant and may deter it from fulfilling its duty to represent its members without fear of reprisal.  This may affect its members right to access justice and thus, may infringe sections 23 and 34 of the Constitution.  However, there may be instances where a costs order is warranted and in that case, reasons must be provided.

Constitutional Court: no reasons from the Labour Court for departure from the general rule that costs do not follow the result in labour matters

CCT 192/20

Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and Others (CCT 192/20) [2021] ZACC 26; 2021 (11) BCLR 1249 (CC); (2021) 42 ILJ 2371 (CC); [2021] 12 BLLR 1173 (CC) (7 September 2021)

[24]          The established rule in litigation that costs follow the result does not apply in labour matters.  This Court has made that abundantly clear on a number of occasions, not least in its often-quoted decision in Zungu.[Zungu v Premier of the Province of KwaZulu-Natal [2018] ZACC 1; 2018 (39) ILJ 523 (CC); 2018 (6) BCLR 686 (CC).  See also South African Commercial, Catering and Allied Workers Union v Woolworths (Pty) Limited [2018] ZACC 44; 2019 (3) SA 362 (CC); 2019 (3) BCLR 412 (CC).]  Despite this, however, there is now a concerning pattern of this Court being requested to overturn decisions of the Labour Court and the Labour Appeal Court applying the general rule that costs follow the result, without more, to matters before those courts.[Since Zungu, we have been requested to do so on at least three occasions, including the present one.  See National Union of Mineworkers v Samancor Limited (Eastern Chromes Mines) [2021] ZACC 16; 2021 JDR 1249 (CC) (NUM) and Long v South African Breweries (Pty) Ltd [2019] ZACC 7; 2019 (40) ILJ 965 (CC); 2019 (5) BCLR 609 (CC).]  I deem it vital, then, to clarify in some detail in this judgment that it is not merely out of overzealous generosity on this Courts part that we say that costs do not follow the result in labour matters.  We are constitutionally and statutorily obliged to do so.

[27]          It is clear from a holistic reading of the LRA that the dispute resolution mechanisms that it creates were meant to be a one stop shop for the resolution of labour disputes.[Chirwa v Transnet Limited [2007] ZACC 23; 2008 (4) SA 367 (CC); 2008 (3) BCLR 251 (CC) at para 54.]  These mechanisms were intended to be simple and accessible, so that those to whom the labour rights enshrined in our Constitution are conferred can vindicate those rights speedily and cost-effectively.  This laudable statutory goal is eroded when the bearers of labour rights are faced with the threat of adverse costs orders if their claims are, for whatever reason, unsuccessful.  That brings us to the second, and closely related, constitutional right that the rule against costs in labour matters is meant to fulfil.

[33]          The principles set out above form the bedrock of how the question of costs should be understood in labour matters in the context of our democracy.  These principles find expression in section 162 of the LRA,[] which rejects the ordinary rule of litigation that costs should follow the result in favour of an approach based on law and fairness.  When we pay heed to this fairness standard, we do so because we are obliged by the LRA and the above constitutional imperatives.  Hence, I repeat: when making costs orders in labour matters, courts are enjoined to apply the fairness standard in the LRA as a matter of constitutional and statutory obligation.

Section 162 of the LRA provides:(1)         The Labour Court may make an order for the payment of costs, according to the requirements of the law and fairness.(2)           When deciding whether or not to order the payment of costs, the Labour Court may take into account(a)           whether the matter referred to the Court ought to have been referred to arbitration in terms of this Act and, if so, the extra costs incurred in referring the matter to the Court; and(b)           the conduct of the parties(i)            in proceeding with or defending the matter before the Court; and(ii)           during the proceedings before the Court.(3)           The Labour Court may order costs against a party to the dispute or against any person who represented that party in those proceedings before the Court.

[35]          In the labour context, the judicial exercise of a courts discretion to award costs requires, at the very least, that the court must do two things.  First, it must give reasons for doing so and must account for its departure from the ordinary rule that costs should not be ordered.[National Union of Metal Workers of South Africa v Bader Bop (Pty) Ltd [2002] ZACC 30; 2003 (3) SA 513 (CC); 2003 (2) BCLR 182 (CC)]  Second, it must apply its mind to the dictates of the fairness standard in section 162, and the constitutional and statutory imperatives that underpin it.  Where a court fails to do so, it commits an error of law and thus misdirects itself.  This Court explained this in Long:[W]hen making an adverse costs order in a labour matter, a presiding officer is required to consider the principle of fairness and have due regard to the conduct of the parties.  This, the Labour Court failed to do.  There is no reasoning on the question of costs beyond an indication that costs are to follow the result.  This is a misdirection of law and it follows that the Labour Courts discretion in respect of costs was not judicially exercised and must be set aside.[Long v South African Breweries (Pty) Ltd [2019] ZACC 7; 2019 (40) ILJ 965 (CC); 2019 (5) BCLR 609 (CC)]

not entitled to charge legal costs

(J 675/23; J 680/23

University of South Africa v Socikwa and Others (J 675/23; J 680/23) [2023] ZALCJHB 172 (7 June 2023)

(1) Applications are struck off the roll for want of urgency. (2) Applicants’ legal practitioners are barred from charging any legal costs flowing from these applications. If the said legal representatives have been paid, they are ordered to reimburse the Applicants within 60 days of this order and submit proof thereof to the Registrar of this court. (3) Applicants are ordered to pay the costs of the Respondents on attorney and client scale.

costs de bonis propriis

CA05/2023

Herold Gie and Broadhead Incorporated v Sun Chemical South Africa (Pty) Limited (CA05/2023) [2024] ZALAC 55 (11 November 2024)

"[13]  In Stainbank v South African Apartheid Museum at Freedom Park and another[ [2011] ZACC 20; 2011 (10) BCLR 1058 (CC) at paras 52 - 54.], Khampepe J set out the indicated approach to an award of costs de bonis propriis:

‘[52]    Although the courts have the power to award costs from a legal practitioner’s own pocket, costs will only be awarded on this basis where a practitioner has acted inappropriately in a reasonably egregious manner. However, there does not appear to be a set threshold where an exact standard of conduct will warrant this award of costs. Generally, it remains within judicial discretion. Conduct seen as unreasonable, wilfully disruptive or negligent may constitute conduct that may attract an order of costs de bonis propriis.

[53]    Punitive costs have been granted when a practitioner instituted proceedings in a haphazard manner; wilfully ignored Court procedure or rules; presented a case in a misleading manner; and forwarded an application that was plainly misconceived and frivolous.

[54]    The basic rule relating to the Court’s discretion is as relevant to the award of costs de bonis propriis as it is in other costs awards. Extending from this discretion, it appears the assessment of the gravity of the attorney’s conduct is an objective assessment that lies within the discretion of a Court making the award.’

"

17]  On the strength of the law relating to a punitive cost order of the kind made by the court a quo, there is simply no basis to conclude that the steps taken by the appellant on behalf of the applicants to seek interim relief were of a kind which constituted a material departure from the responsibilities of an attorney acting in the best interests of his or her client. On the basis of the law in respect of interim interdicts, there was no basis to conclude that the appellant had exhibited conduct which could be categorized as negligence of a sufficiently serious fashion to justify a punitive costs order.

Court Appeal

common law rule of pre-emption of a party’s right to appeal

Finding was accepted by Appellant

DA20/08

Natal Witness v Govender & Others

where an order of the Labour Court does not have the effect of a final order, it is not appealable.

J1990/07

Mofokeng, Jantjie and 12 Others v JAC Pallets Africa CC & Another

a prerequisite for appealability that the decision should at least be final in its effect and dispose of a substantial issue that may not always be sufficient,

J1990/07

Mofokeng, Jantjie and 12 Others v JAC Pallets Africa CC & Another

in the case of a periodical contract which was concluded from month to month, as opposed to a fixed term contract, the measure of damages was the remainder of the period of the contract.

a claim for compensation could not be equated to a damages claim: this was made clear by s 195 of the LRA

(JR 2152/2010) [2013] ZALCJHB 30

Continental Oil Mills (Pty) Ltd v Singh NO and Others

No cross-appeal

1975 (1) SA 730 (A) 746E

Standard Bank of SA Ltd v Stama (Pty) Ltd 1975 (1) SA 730 (A) 746E.

[23] A judgment or order cannot as a general rule be varied against an appellant to its prejudice, in the absence of the necessary cross-appeal by the respondent.[3] There are compelling reasons why this is so, including ensuring that the playing fields in the context of an appeal are levelled, that parties are aware of the issues that are in dispute between them and provided with an appropriate opportunity to answer to such issues. This also prevents litigation by ambush, which is neither fair nor permissible in our legal system.

Labour Appeal Court: to finalize a matter on appeal before it and not remit the matter to the Labour Court

CA 11/2021

South African Police Services v Coericius and Others (CA 11/2021) [2022] ZALAC 104 (29 September 2022)

[17] This Court is at large to hear issues on review not dealt with by the Labour Court a quo under certain circumstances. The circumstances where that is appropriate were addressed extensively in National Union of Metalworkers of SA on behalf of Sinuko v Powertech Transformers (DPM) & others[10]. Coppin AJA (as he then was) held:[42] Giving s 174(b) of the [Labour Relations] Act,[11] or the latter part of that section, a restricted meaning, would, in practice, inhibit the expeditious despatch of litigation and, in certain cases, cause a miscarriage of justice. It is frequently the case with appeals before this court involving a review of an award that only one, or so, grounds, out of a number, were dealt with by the Labour Court and in respect of which it dismissed the application for review, or granted the application and set aside the award, but without saying anything about the other grounds of review. It would be incongruous to suggest that in every case where the appeal (involving the one ground) was successful, this court ought to remit the matter to the Labour Court to decide on the other grounds that it did not consider initially, even though such a course might result in an unacceptable prolongation of the matter, or otherwise cause a miscarriage of justice. It is likely that in many appeals, excluding those in Joseph and Shoprite, this court has, in appropriate circumstances, itself considered the other grounds of review and finalized the application, as the Labour Court ought to have done.[43] In my view, in the light of the above, this court is legally competent, in terms of the latter part of s 174(b) of the Act, to finalize a matter on appeal before it and not remit the matter to the Labour Court if there has already been an inordinate delay in finalizing a matter, or its remittal would entail a further long delay and further costs, or if there is a reasonable possibility of a miscarriage of justice occurring due to a remittal. The exercise of the power would depend on the facts and circumstances of the matter before this court. In considering whether to finalize the matter itself, the remarks of the Constitutional Court in Fleecytex have to be taken into account. In matters involving a review of an award, the general rule is that it is the function of the Labour Court to review awards. A departure from that rule on appeal is exceptional and depends on whether, in a particular case, the interests of justice and convenience will best be served by this court finalizing the matter and not remitting it to the Labour Court. Other factors of importance include whether the issues were fully canvassed in the papers before the Labour Court; whether there is likely to be prejudice if the matter is not remitted and whether finalization of the matter by this court is requested by the parties on both sides.

[18] This view was endorsed by the Constitutional court in Stokwe v Member of the Executive Council, Department of Education, Eastern Cape & Others[(2019) 40 ILJ 773 (CC).] at para [87]:In Powertech the Labour Appeal Court held that the following factors bear on the question whether a remittal to the Labour Court is the best course to adopt. These are whether (a) the interests of justice and convenience will best be served by the appellate court itself finalising the matter;(b) the issues were fully canvassed in the papers;(c) the parties are likely to suffer prejudice if the matter is not remitted; and(d) both parties requested the appellate court to finalise the matter.

[21] Accordingly, the matter as a whole must be remitted to the Labour Court.

Damages

general and special damages,

future damages, however, was difficult in the absence of an actuarial report, any information about his career path and his qualifications.

Electronic Communications Transactions Act 25 of 2002

D204/07

Jafta v Ezemvelo KZN Wildlife

award of a solatium in terms of the actio iniuriarum

Factors regarded by courts as relevant in the assessment of damages included the nature and seriousness of the iniuria; the circumstances in which the infringement took place; the behaviour of the defendant (was the motive honourable or malicious?); the extent of the plaintiffs humiliation or distress; the abuse of a relationship between the parties; and the attitude of the defendant after the iniuria had taken place. This list was not an exhaustive list. The actual amount to be awarded was a discretionary act of the court

JA6/07

Minister for Justice and Constitutional Development & Another v Tshishonga

No solatium, loss of dignity post dismissal

JS 178/09

Allpass v Mooikloof Estates (Pty) Ltd

found guilty of misconduct that caused R7.8 million losses to their employer, counter-claim was that the respondents had breached their contracts of employment through fraudulently or negligently making unwarranted payments to suppliers. The court furthermore rejected an argument that the claim was a delictual one and therefore could not be entertained in terms of s 77(3). The fraud alleged in the pleadings was connected to the contract of employment and the allegation was that the respondents had abused their positions as servants of the appellant and had committed the fraud in this manner

JA 78/11

Rand Water v Stoop and Another

Fixed term contract, Payment for remainder of contract the maximum payable but not axiomatic that that is in all cases payable Damages must be reasonable.

JA13/11

South African Football Association v Mangope

JA113/14)

KwaZulu-Natal Tourism Authority and Others v Wasa (JA113/14) [2016] ZALAC 35; [2016] 11 BLLR 1135 (LAC); (2016) 37 ILJ 2581 (LAC) (28 June 2016)

unlike compensatory relief granted for unfair dismissal in terms of the LRA, no such relief available in a claim for breach of contract made under the BCEA. Claim under BCEA is a claim for damages the extent of the damages suffered by the party seeking damages must be proved employee that failed to prove damages as a result of the breach of contract entitled to no relief

Damages for injuria

JA104/2015

Pharmaco Distribution (Pty) Ltd v W (JA104/2015) [2017] ZALAC 48; (2017) 38 ILJ 2496 (LAC) (4 July 2017)

claims damages for non-patrimonial damages for impairment of her dignity as a result of being unfairly discriminated against held there is in principle no difference between her claim for compensation under s194(3) of the LRA and her damages claim under s50(2)(b) of the EEA for non-patrimonial loss. To award both non-patrimonial damages and compensation to the employee for the same wrongful conduct of the appellant would not be just and equitable as it would amount to penalising the employer twice.

ARB v Electrical Wholesalers (Pty) Ltd v Hibbert (2015) 36 ILJ 2989 (LAC) (ARB) at para 29.

The Court found that there is no bar for an employee, in a single action, to claim: (a) compensation for an automatically unfair dismissal as a result of unfair discrimination under the LRA, and (b) compensation for unfair discrimination under the EEA.

SA Airways (Pty) Ltd v Janse van Vuuren and Another (2014) 35 ILJ 2774 (LAC) at paras 78-80.

In the EEA damages refer to an actual or potential monetary loss (i.e. patrimonial loss) and compensation refers to the award of an amount as a solatium (i.e. non-patrimonial loss). It is conceivable that cases of unfair discrimination may involve actual (or patrimonial) loss for the claimant as well as injured feelings (or non-patrimonial loss).The purpose of an award for damages for patrimonial loss by means of a monetary award, is to place the claimant in the financial position he or she would have been in had he, or she, not been unfairly discriminated against. This is the common purpose of an award of damages for patrimonial loss in terms of the South African law in both the fields of delict and contract. In the case of compensation for non-patrimonial loss, the purpose is not to place the person in a position he or she would have otherwise have been in, but for the unfair discrimination, since that is impossible, but to assuage by means of monetary compensation, as far as money can do so, the insult, humiliation and indignity or hurt that was suffered by the claimant as a result of the unfair discrimination.

BCEA

JA91/16

Pilanesburg Platinum Mines (Pty) Ltd v Ramabulana (JA91/16) [2019] ZALAC 60; (2019) 40 ILJ 2723 (LAC); [2020] 1 BLLR 24 (LAC) (28 August 2019)

[32] I also need to add that had I found that appellant did in fact breach the agreement the only relief open to her was either specific performance or damages. In view of the facts of this case, it would not be appropriate to grant her specific performance. With regard to damages, as I said earlier there was a duty upon the respondent to prove the quantum of her damages, to simply demand damages in the amount that she would earn until her retirement is totally misconceived. Damages in a breach of contract needs to be proved, she failed to prove any, nor does she allege that she has been out of work from the date of her employment being terminated. In the circumstances, had the respondent proved a breach, she would not in law be entitled to any relief.

[29] The respondent disavowed reliance on the LRA when it sought relief in terms of the BCEA and on unlawfulness of dismissal rather than approaching the CCMA on the basis of an unfair dismissal. She relied on contractual law as opposed to equity and fairness. The respondents contention is that the appellant is bound by the terms agreed upon with regard to the process of termination and that it failed to comply therewith hence it is in breach of their agreement. However, she fails to recognise that she cannot simply raise non-compliance of a term of a contract as a breach. She has to show that the preconditions for the appellant to comply with the clauses of the agreement are met.

General and special damages

JS154/18

Zulu v Eskom Rotek Industries (SOC) Ltd (JS154/18) [2018] ZALCJHB 459 (10 December 2018)

[19] It also appears to me that his claim for an extraordinary sum of damages is expressed more in terms of the language that is used for a claim of special contractual damages. The distinction between general and special contractual damages has been expressed thus:

Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A) 687.

To ensure that undue hardship is not imposed on the defaulting party . . . the defaulting party’s liability is limited in terms of broad principles of causation and remoteness to (a) those damages that flow naturally and generally from the kind of breach of contract in question and which the law presumes the parties contemplated as a probable result of the breach, and (b) those damages that, although caused by the breach of contract, are ordinarily regarded in law as being too remote to be recoverable unless, in the special circumstances attending the conclusion of the contract, the parties actually or presumptively contemplated that they would probably result from its breach (Shatz Investments (Pty) Ltd v Kalovyrnas 1976 (2) SA 545 (A) at p 550). The two limbs, (a) and (b) of the above-stated limitation upon the defaulting party’s liability for damages correspond closely to the well-known two rules in the English case of Hadley v Baxendale (1854) 150 ER 145, which read as follows (at p 151):Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, ie according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.

notice pay, contractual leave pay

JS539/17

Pansegrouw v Rendeals Four Consulting (Pty) Ltd (JS539/17) [2019] ZALCJHB 7; [2019] 6 BLLR 572 (LC) (23 January 2019)

suffered damages for the "non-payment of non-statutory, contractual leave.

The applicant says as a result of the unlawful and breach of the employment agreement the applicant has suffered damages, therefore, wants to recover such damages. In my view, section 77 of the Act caters for instances of this nature especially if the employee is no longer employed by such an employer. Considering the applicants statement of case, the way this point is pleaded I am satisfied, unlike the contractual notice pay and leave pay claims mentioned above, that the issue is about damages.

difference between damages and compensation

JA 86/18

BMW (South Africa) (Pty) Ltd v National Union of Metalworkers of South Africa and Another (JA 86/18) [2020] ZALAC 22; (2020) 41 (ILJ) 1877 (LAC) ; [2020] 11 BLLR 1079 (LAC) (18 May 2020)

[66] What is clear from this is that Mr Deppes damages claim is for patrimonial loss (loss of earnings) and not non-patrimonial loss for a violation of his dignity. There is, therefore, no duplication between this claim and his compensation claims under the EEA and LRA, both of which are for impairment of his dignity.[16] Accordingly, the Labour Court ought to have found that BMW is liable for Mr Deppes proven damages.[67] There is a fundamental difference between damages and compensation as contemplated in s50(2) of the EEA. Damages in the EEA relates to an actual or potential monetary loss (patrimonial loss) and compensation relates to the award of an amount as a solatium (non-patrimonial loss). This Court has repeatedly held that a claimant in an unfair discrimination claim, such as we have in this case, may suffer actual (patrimonial) loss) as well as injured feelings or non-patrimonial loss. A damages award for patrimonial loss is aimed at placing an employee in the financial position that the employee would have been, had he or she not been unfairly discriminated against. Compensation for non-patrimonial loss, on the other hand, is to assuage by means of monetary compensation the insult, humiliation and indignity or hurt that a claimant has suffered as a result of the unfair discrimination. [17]

misconduct: insolence, in the form of a refusal to transfer from one site to another without an acceptable reason

JR 2013/2020

Volsec Security SA (PTY) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR 2013/2020) [2022] ZALCJHB 305 (3 November 2022)

[7]...Further, the arbitrator failed to take into account the provisions of the applicable sectoral determination insofar as it regulates transfers. The determination provides for the transfer of employees, subject to the condition that a security officer transferred to his site in excess of 60 km away from the deployment of the security officer at the time of the transfer attracts payment of an allowance.

The applicants dismissal was substantively and procedurally fair.

misconduct: cannabis

JR 1826 /2020

NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (PTY) Ltd (JR 1826 /2020) [2022] ZALCJHB 292 (1 December 2022)

[55] The Constitutional Court held that the case which was before court, as decided by the High Court, was whether the prohibition by the impugned provisions of the mere possession, use or cultivation of cannabis by an adult in private for his or her personal consumption in private is inconsistent with the right to privacy provided for in section 14 of the Constitution[10] and, therefore, invalid.[56] The Constitutional Court held that the right to privacy entitles an adult person to use or cultivate or possess cannabis in private for his or her personal consumption. Therefore, to the extent that the impugned provisions criminalise such cultivation, possession or use of cannabis, they limit the right to privacy.[57] The essence of the Constitutional Court judgment is that it declared specific provisions and sections of the Drugs and Drug Trafficking Act[11] and the Medicines and Related Substances Control Act[12] to be inconsistent with the right to privacy entrenched in section 14 of the Constitution and, therefore, invalid to the extent that they make the use or possession of cannabis in private by an adult person for his or her own consumption in private a criminal offence and to the extent that they prohibit the cultivation of cannabis by an adult in a private place for his or her personal consumption in private.

[58] In Prince v President of the Law Society of the Cape of Good Hope[[2002] ZACC 1; 2002 (2) SA 794 (CC) at para 53.] the Constitutional Court held that: The government objective in prohibiting the use and possession of cannabis arises from the belief that its abuse may cause psychological and physical harm. On the evidence of the experts on both sides, it is common cause that cannabis is a harmful drug.

[62] The Constitutional Court did not interfere with the definition of a drug nor did it declare dagga or cannabis to be a plant or a herb, as alleged by Mr Mkoko.[63] It is also evident from the Constitutional Court judgment that it does not offer any protection to employees against disciplinary action should they act in contravention of company policies or disciplinary codes.

[68] It is evident from the transcribed record that the existence of the alcohol and drug policy was not disputed. The applicants were aware of the policy and they conceded that they were trained on the policy. The issue was rather whether the alcohol and drug policy applied to dagga. In my view, the arbitrators finding that there was a rule is a reasonable one that is based on the evidence before her. The applicants attempt to introduce evidence to the effect that the policy did not provide for testing positive for cannabis, that dagga was a plant and not a drug and that cannabis could stay in ones system for a long time, was nothing but opportunistic.

[80] The court noted a difference between the effects of alcohol and cannabis and held that there is no question that, unlike alcohol which leaves an individual’s bloodstream within a few hours after consumption, cannabis may remain present in an individual’s system for a number of days or up to weeks and that tests for cannabis do not demonstrate the degree of impairment of the employees ability to perform her or his duties. Unlike alcohol, one cannot determine a level of impairment based on test results. Proof of impairment is therefore not required as with alcohol, it is automatically assumed that one is under the influence of cannabis due to its intoxicating nature.

[81] In SGB, the LAC confirmed that an employer is entitled to set its own standards to enforce discipline in its workplace. In Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and Arbitration and others[(2006) 27 ILJ 2076 (SCA) at para 46.], the court referred with approval to Myburgh and Van Niekerk[Dismissal as a Penalty for Misconduct: The Reasonable Employer and Other Approaches (2000) 21 ILJ 2145.] where they suggested that: The first step in the reasoning process of the commissioner should be to recognise that, within limits, the employer is entitled to set its own standards of conduct in the workplace having regard to the exigencies of the business. That much is trite. The employer is entitled to set the standard and to determine the sanction with which non-compliance with the standard will be visited.[82] The Respondent is entitled to set its own standards of conduct. Considering the hazardous workplace where employees work with glass, chemicals, furnaces and operate cranes and forklifts and the provisions of the Occupational Health and Safety Act, which are applicable and enforced as a matter of importance, the Respondent has a zero-tolerance in respect of contraventions of its alcohol and drug policy.

misconduct: cannabis, Zero-tolerance

JR 1826 /2020

NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (PTY) Ltd (JR 1826 /2020) [2022] ZALCJHB 292 (1 December 2022)

[85] Zero-tolerance means that a particular type of behaviour or activity will not be tolerated at all and a zero-tolerance policy is one that does not allow any violations of a rule. How many dependants an individual has or how many years of unblemished service he or she has rendered, or any other mitigating factor for that matter plays no role where a zero-tolerance policy is followed and consistently applied. The only factors that are to be considered are whether the employee was aware of the zero-tolerance policy, whether it was consistently applied and whether it is justified in the workplace. In casu, the applicants were aware of the zero-tolerance policy, it was applied consistently and it was justified due to the hazardous nature of the workplace and the Respondents duty to provide a safe working environment.

Damages against employee

JS958/2019

Mogale and Another v National Health Laboratory Services (JS958/2019) [2024] ZALCJHB 362 (13 September 2024)

Breach of contract – CEO and CFO of National Health Laboratory Services (NHLS) – Fruitless and wasteful expenditure – Irregular and unauthorised payments – Displayed severe negligence and incompetence, resulting in damage to NHLS – CEO should have been looking out for interests of NHLS – Exceeding delegations of authority – Former CEO to pay R22,135 346.70 to NHLS – Claims for unfair dismissal of CEO and CFO dismissed – Constitution, s 217 – Public Finance Management Act 1 of 1999.

[9] Subsequently, the Applicants launched proceedings in the Labour Court contesting the fairness of their dismissals and the NHLS has launched a counterclaim for damages, premised on the alleged breach of the Applicants’ employment contracts.

[57] In short: The express duties of the Applicants correlate with their common law duties and as senior employees, they were required to act in good faith, to serve the NHLS honestly, faithfully and diligently, and not to work against the NHLS’ interests and not to do anything incompatible with the due or faithful discharge of their duties.[7] In exercising their duties, the Applicants were required to do so in terms of the express terms of their contracts and in a manner which was not in conflict with the provisions of section 217 of the Constitution and the PFMA.

[70] Prof Buch commented that the aforesaid clauses in the SLA, signed by Ms Mogale, are highly irregular because the Board approved R 25 985 921.10, yet Ms Mogale signed an SLA for R 83 902 000,63. Ms Mogale was not authorised to enter into any SLA which exceeded what the Board had approved because she had to and could only procure what was approved. If the tender amount or specifications were to be amended, it had to be submitted to the Board for approval. In this instance, the R 83 902 000,63 was never submitted to or approved by the Board, nor was a competitive bid process followed, as was required for a valid tender process.

[81] Prof Buch explained that Ms Mogale breached the terms of her contract, and she failed to comply with the provisions of the national treasury regulations, the NHLS’ procurement policy, and the PFMA when she signed the SLA with Blue Future and caused the NHLS to spend almost R 90 million more than what was approved by the Board. She caused the NHLS to incur fruitless and wasteful expenditure and ultimately, she failed to perform her duties as CEO diligently and carefully as required in terms of her contract. Instead, her conduct was grossly negligent and she failed to act in the best interest of her employer.

[97] In my view, Ms Mogale acted in breach of her contract of employment when she signed the SLA for R 83 million. She disregarded her obligation of due diligence and her contractual obligations, including compliance with the applicable policies of the NHLS. This is so for the reasons set out below.

[202] This Court must, in considering the claim for damages, decide whether the damages were caused by the breach. The NHLS pleaded that it suffered damages as a result of the material breach of contract by the Applicants because had they performed their contractual obligations, the Applicant would not have suffered the damages.

203] The inquiry into whether the damages were caused by the breach, is a two-stage inquiry – first into factual causation and then into legal causation. However, before this Court can consider the question of causation, it must first consider whether the damages claimed were proved.

"[207] The Court held that any alleged benefit received by the plaintiff had to have been pleaded and proved by the defendant for purposes of quantification:

‘The initial arbitrator also found that Mr Roux had not pleaded that the money expanded by Mr Roux had been used to acquire some asset, the value of which should been taken into account in assessing the damages. Absent that pleading and proof of the allegation it was not incumbent upon the University to prove “the nature, extent and value” of any benefit obtained as a result of the unlawful expenditure of the funds improperly allocated to the cost centres of the rugby club. I should point out though, that the “value” of the benefits related to the quantification of the damages as per Japmoco. The University would, if benefits were pleaded and proved have been required to have assisted the Initial Arbitrator in the quantification of the benefit.’[Roux v University of Stellenbosch and Others and a related matter[[2023] ZAWCHC 81; [2023] 3 All SA 248 (WCC) at para 11, Ibid at para 31.],]

"

[210] In my view, the damages suffered by the NHLS cannot be calculated or awarded as claimed. The damages cannot simply be the entire value of the Afrirent contract or the entire amount of the DV8 addendum.

[225] In my view, the NHLS is entitled to the following damages in respect of the Afrirent contract: the BAC approved the amount of R 72 127 790.42 for the tender and instead of contracting for the amount approved by the BAC, the amount recorded in the letter to Afrirent and the SLA subsequently signed by Ms Mogale was increased to R 79 691 269.33. The difference was R 7 563 478.90. Prof Buch testified that even if the Afrirent tender was approved by the Board, the contract price could not have been increased by R 7,5 million without approval and a sound reason to increase the amount.

Mitigate damages: Section 77(3) of the BCEA

J502/2022

Sedumedi v Sefako Makgatho Health Sciences University (J502/2022) [2025] ZALCJHB 142 (4 April 2025)

[7] On 25 April 2022 Mr Sedumedi issued action proceedings in this court, under section 77(3) of the BCEA[1], for the outstanding 18 months’ of his contract in a total amount of R2,333,649.06.

[8] Mr Sedumedi’s claim for the balance of his contract is based on the common law position, set out in the Labour Appeal Court (LAC) decision of Buthelezi v Municipal Demarcation Board[2], that unless an employee breaches a material term of a fixed-term employment contract, or the fixed-term contract otherwise provides for termination on notice, the employer has no right to prematurely terminate a fixed-term contract prior to its natural end date. This would be in contrast to an employment contract of indefinite duration which may be terminated by providing reasonable, or otherwise agreed, notice.

[14] The seminal cases of Natal Joint Municipal Pension Fund v Endumeni Municipality[5], Capitec Bank Holdings Ltd and Another v Coral Lagoon Investments 194 (Pty) Ltd[6], and University of Johannesburg v Auckland Park Theological Seminary and Another[7], all recently approved by the LAC in Herbert v Head of Education: Western Cape[8], make it clear that interpretation begins by considering the text contained in the document, then how the text is situated within its own textual context, then its extra-textual context, then finally by considering the purpose of the document.

[15] Although the Constitutional Court in University of Johannesburg stressed that statutory interpretation is now a “unitary exercise” that must be approached “holistically: simultaneously considering the text, context and purpose”[9], there is no doubt that, as stated in both Endumeni[10] and Capitec[11], “the inevitable point of departure [remains] the language of the provision itself”.

[39] Given that the University was not entitled to terminate Mr Sedumedi’s contract of employment, by doing so it repudiated the contract. Mr Sedumedi chose to accept the repudiation and sue for damages. The LAC in Buthelezi, referring to Meyers v Abrahamson[28] held that “The measure of damages accorded [an] employee [whose fixed-term contract has been prematurely and unlawfully terminated] is… the actual loss suffered by him represented by the sum due to him of the unexpired period of the contract less any sum he earned or could reasonably have earned during such latter period in similar employment.”[29].

43] What must also be deduced from the total is “any sum he earned or could reasonably have earned during such latter period in similar employment” – which factor derives from Mr Sedumedi’s contractual duty to mitigate his loss.[Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd [1977] 4 All SA 94 (A)] This factor, in my view, means income that he may have actually received from being similarly employed, or income he could have received in similar employment if he taken reasonable steps to find such employment.

"[44] Mr Nhlapo, appearing on behalf of Mr Sedumedi, argued that there was nothing more that Mr Sedumedi was required to do to demonstrate, at least on a prima facie basis, that he had taken reasonable steps to mitigate his loss. I agree. On this point the authors of Christie’s The Law of Contract in South Africa, with reference to Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd[32] state the following:

“The plaintiff does not have to plead and prove that it has done what is reasonable to mitigate its damages, because the onus is on the defendant to prove that it has not. The plaintiff is not required to do more than a reasonable person would do to mitigate his or her damages, and the defendant's onus of proving that the plaintiff has not acted reasonably is difficult to discharge”.[33] (my emphasis)"

16.12.1

The Mine Health and Safety Act

JS382/2023

Mathebe v Cullinan Diamond Mine (Pty) Ltd (JS382/2023) [2025] ZALCJHB 330 (1 August 2025)

"35] The applicant has pleaded that the first respondent breached sections 9 and 11 of the MHSA. However, the applicant, on the face of it, does not seek any relief arising from or in relation to such alleged breaches. Differently put, the applicant has not requested this Court to make any findings specifically in relation to sections 9 or 11 of the MHSA.

[36] Section 9 of the MHSA deals with Codes of Practice to be prepared by employers. Section 11 of the MHSA deals with an employer’s obligation to assess and respond to risk.

[37] Section 82 of the MHSA provides that the Labour Court has exclusive jurisdiction to determine any dispute about the interpretation or application of any provision of that Act except where that Act provides otherwise.

[38] On the face of it, this Court would indeed have jurisdiction to hear and adjudicate a dispute/claim concerning the interpretation or application of sections 9 and 11 of the MHSA.

[39] However, as per the applicant’s pleadings, and as also argued by the applicant in his heads of argument, the applicant does not seek any relief specifically in regard to sections 9 and 11 of the MHSA. Rather, the applicant seeks damages and/or recompense for loss of earnings, due to an alleged workplace disease contracted by him. It appears that the applicant relied upon the alleged breaches of sections 9 and 11 of the MHSA to bolster his argument and claims for damages and reimbursement for loss of earnings, and serve as general (factual) allegations levelled against the first respondent, in support of the applicant’s alleged claims.

[40] On this basis, I find that any purported dispute between the parties concerning the applicability and/or contravention of sections 9 and 11 of the MHSA is not a dispute which is legitimately before this Court "

"Mine Health and Safety Act (MHSA), No.

29 of 1996:

Section 9: Codes of Practice to be prepared by employers.

Section 11: Employer’s obligation to assess and respond to risk.

Section 82: Labour Court’s exclusive jurisdiction over disputes about the interpretation or application of the MHSA."

compensation as solatium

JR1794/22

Lucchini South Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1794/22) [2025] ZALCJHB 589 (19 December 2025)

"[59] However, several decisions have held that compensation is a solatium, and that patrimonial loss is irrelevant.[Zeda Car Leasing (Pty) Ltd v Van Dyk (2020) 41 ILJ 1360 (LAC), Association of Mineworkers & Construction Union & Others v Northam Platinum Mine Ltd (2021) 42 ILJ 2565 (LAC), ARB Electrical Wholesalers (Pty) Ltd v Hibbert (2015) 36 ILJ 2989 (LAC), Bester v Small Enterprise Finance Agency SOC Ltd & Others (2020) 41 ILJ 877 (LAC), and Bester v Small Enterprise Finance Agency SOC Ltd & Others (2020) 41 ILJ 877 (LAC).] Recently, in Le Grange v Visser t/a Skukuza Medical Practice & Another[(2025) 46 ILJ 947 (LAC).] (Le Grange), the Labour Appeal Court was called upon to determine whether compensation for a procedurally unfair dismissal should be limited to the three months that an employee was unemployed. The court described the proposition as fallacious and stated this:

‘[24] The proposition is based on a misunderstanding of the difference between patrimonial damages and a solatium. In Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union, this court explained it as follows:

‘The compensation for the wrong in failing to give effect to an employee’s right to a fair procedure is not based on patrimonial or actual loss. It is in the nature of a solatium for the loss of the right, and is punitive to the extent that an employer (who breached the right) must pay a fixed penalty for causing that loss. In the normal course a legal wrong done by one person to another deserves some form of redress. The party who committed the wrong is usually not allowed to benefit from external factors which might have ameliorated the wrong in some way or another. So too, in this instance.’

[25] Dr Visser totally disregarded Dr Le Grange’s rights. She had to endure the indignity of unemployment whilst the other employees returned to work, albeit for a short period. Compensation equal to three months' salary is wholly inadequate.’

"

[61] After reviewing all the above decisions, my understanding of the legal position is that the quantum of compensation must be just and equitable for both parties, taking into account all relevant factors, including the financial loss or gain suffered or realised by an employee as a result of the dismissal, as applicable. However, the quantum of compensation is not limited to the employee's actual financial loss.

Execution

stay execution of a writ

shown a well-grounded apprehension of execution taking place and of injustice being done to the applicant by way of irreparable harm if execution was not suspended. Other important considerations were whether the attack on the underlying cause of action was brought in time and whether its prospects of success were strong; the interest all parties had in securing finality, and related to this was the question of the cost to all parties of a delay in finality and the cost to all parties of instituting or opposing further proceedings brought to attack the underlying cause of action or to stay execution pending such an attack. In considering whether justice required a stay of execution, the court would be mindful of the risk that an injustice might be done to the less powerful party.

J441/09

Bartmann AAC & Bartmann MME t/a Khaya Ibhubesi v De Lange & Another

stay execution of a writ

The grounds on which a court might choose to stay execution included that the underlying cause of action on which the judgment was based was under attack, and that execution was sought for improper reasons. The applicant had to show a well-grounded apprehension of execution taking place and that injustice would be done to the applicant by way of irreparable harm if execution were not suspended. Other considerations to take into account were whether the attack on the underlying cause of action was brought in time and whether its prospects of success were strong; the interest of all parties in securing finality; the cost to all parties of a delay in finality; the cost to all parties of instituting or opposing further proceedings to attack the underlying cause or to stay execution pending such attack; and the risk of injustice being done to the less powerful party to the dispute.

J2264/08

Robor (Pty) Ltd (Tube division) v Joubert & Others

warrant of execution to be stayed and suspended pending outcome of petition for leave to appeal

J602/08

Christo Bothma Finansile Dienste v RGP Havenga & Another

Execution of judgment

unlawful suspension

right to be back at work overrule fact getting paid.

Prejudice

J771/10

Mathe Zandile v The Minister of Water and Environmental Affairs

Execution of judgment

Other case law cited

South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A).

J771/10

Mathe Zandile v The Minister of Water and Environmental Affairs

Labour Court

CA3/2011

PROF A R COETZEE & 49 OTHERS.

Labour Court not empowered to sit as arbitrator in terms of section 158(2)(b) of the Labour Relations Act- where matter had to be referred to conciliation (arbitration)

an order staying the execution of an arbitration award issued by the CCMA on 7 February 2023, pending the outcome of an application for review filed in this court on 3 January 2023.

J 297/2023

Molemole Municipality v Sheriff Bochum and Another (J 297/2023) [2023] ZALCJHB 40 (8 March 2023)

[4] The discretion to stay an award is one that must be exercised judicially. In Robor (Pty) Ltd (Tube Division) v Joubert [2009] 8 BLLR 785 (LC), this court noted that at the heart of the enquiry, is whether the applicant has shown a well-grounded apprehension of execution taking place and of injustice being done to the applicant by way of irreparable harm being caused if execution were not to be suspended. In this sense, the approach to be adopted resonates with that applicable in applications for interim relief. The test to be applied is one in which the court must have regard to all relevant factors, including the prospects of success in the review application and the prospect and degree of prejudice to the parties respectively should the implementation of the award under review not be stayed.

writ of execution : Attachment of bank account

J3/25

Mokoma v M-Njr and Olwethu Consulting (Pty) Ltd and Others (J3/25) [2025] ZALCJHB 100 (11 March 2025)

"Attachment of bank account –requirements for attachment of incorporeal property – writ of execution – court application not necessary

"

"[7] The implications of the relief as it is drafted in the notice of motion have been explained in previous cases, including in MEC, Department of Public Works and Others v Ikamva Architects and Others (Ikamva), where a full bench, referring to the Uniform Rules of Court explained the following:[2022 (6) SA 275 (ECB); [2022] ZAECBHC 13 at para 77. See also: Ormerod v Deputy Sheriff, Durban (Ormerod) 1965 (4) SA 670 (D); [1965] 4 All SA 330 (D) at 673C-H; Burg Trailers SA (Pty) Ltd and Another v ABSA Bank Ltd and Others 2004 (1) SA 284 (SCA); [2003] ZASCA 55 at para 6; Baphalaborwa Projects CC v T & L Civil Electrical Contractors CC and others 2024 JDR 2914 (GJ); [2024] ZAGPJHC 1046 at para 26.]

‘The return of service indicates that the sheriff executed the writ in terms of 'Rule 45(8)(c) read with Rule 45(12)(a)'. The difficulty with this attachment is that the two subrules are mutually exclusive. [Rule 45(8)(c)] provides for the attachment of 'other' incorporeal rights, which in the present context would have been the Department of Health's right to the moneys standing to its credit in its banking account. Importantly, this subrule does not envisage the attachment of actual moneys but rather the right to the money in the bank account. Like any movable property that is attached, the right must be realised by its sale at a sale in execution. This subrule does not place any obligation on the bank in question to pay actual moneys to either the sheriff or the judgment creditor.’"

[8] The applicant’s representative is therefore not seeking to enforce Makhura J’s judgment and recover the judgment debt by asking the banks to pay him the money that the first and second respondent owe him pursuant to the taxed bill of costs as one would in a garnishee procedure. He merely seeks to attach a right, to be realised by monies raised at a sale in execution: the applicant is asking for the attachment of the first respondent’s right of action, which a bank account holder would have against its bank/s. This is incorporeal property.

"11] In determining the meaning of the term “attachment order” used in the National Credit Act in the case of Nkata v Firstrand Bank Limited and Others[2], Rogers J (then sitting in the Western Cape High Court) articulated the point best:

‘Where a credit provider obtains a monetary judgment against the consumer for the outstanding amount of the loan, the court order will not include an order for the attachment of any property. In such cases, the rules of court entitle the judgment creditor to obtain a writ of execution. The writ is addressed by the registrar to the sheriff. A writ of execution is not itself an ‘order’. It is a process which may be issued where an order for the payment of money has been made. Even where the loan agreement is secured by a mortgage bond and the court declares the bonded property to be specially executable, the court’s order does not include an order for the attachment of the property. The order of executability merely entitles the creditor to levy execution on the immovable property in terms of rule 46 without first attempting execution against movables in terms of rule 45. The court does not order the immovable property to be attached; it is for the judgment creditor to determine how it will go about execution.’ (own emphasis)"

[12] Put simply, a judgment creditor cannot apply to Court for an order or attachment or an order of execution – these simply do not exist. The applicant’s representative must approach the Registrar for a writ of execution.

[21] In summary, an application of this nature should never have been brought before the Court for hearing. The relief sought can only be granted by the Registrar of this Court.

High Court Jurisdiction

Court a quo found that it was a labour matter premised on an unfair labour practice and therefore fell outside the High Court’s jurisdiction.

It was argued that the claim was to enforce the rights of its members to fair administrative action as protected by s 33 of the Constitution which was clearly cognisable in the ordinary courts. Held that the claim as formulated in the application was not one within the exclusive jurisdiction of the Labour Courts and that the objection to jurisdiction of the High Court fell to be dismissed.

SCA441/04

United National Public Servants Association of SA v Digomo SJ N.O.; Premier of the Provincial Government of the Northern Province; Baloyi, C & 34 Others

Jurisdiction

since the advent of the LRA, which applies to public sector employees, dismissals in the public domain were not dealt with as administrative acts. However, it was also noted that not all issues arising from an employment relationship were governed by the LRA, as shown in Fedlife Assurance Ltd v Wolfaardt (2002 (1) SA 49 (SCA)). Held that despite the High Court having jurisdiction to hear such a matter, relief under PAJA was not intended for a complaint arising from a procedurally unfair dismissal for poor work performance and thus the employee was not entitled to pursue the matter in the High Court. Held that a claimant could not escape the provisions of the LRA by alleging that the case involved a constitutional issue as every labour dispute could be said to do so. Therefore it was held that the employees reliance on PAJA was misplaced and that she had chosen the wrong forum to enforce it.

SCA 024/05

Transnet Limited; Transnet Pension Fund & Smith, P I N.O. v Chirwa, P N N

three separate claims that could arise when an employee’s contract of employment was terminated

(i) infringement of the employees right in terms of the Labour Relations Act 66 of 1995 (LRA) not to be unfairly dismissed; (ii) infringement of the employees common law right of insisting upon performance of contract; and (iii) in the public sector, an infringement of the employees constitutional right to fair administrative action.

218/08

Makhanya v The University of Zululand

reasons related to ill health after an incapacity inquiry was held.

JR923/2013

Steenwerke v Bobbejan N.O. and Others (JR923/2013) [2016] ZALCJHB 60 (22 February 2016)

the undisputed evidence that the employee could not work in a dusty environment as his lung condition would further deteriorate and even a dust mask would not protect him, should have been considered in deciding whether reinstatement would be appropriate. The undisputed evidence was that the Applicant has no alternative position that would be dust free as there is dust everywhere due to the nature of the Applicants operations.

Section 18 of the Superior Courts Act

J 4415/18

Moloto and Another v Kagisano Molopo Local Municipality and Others (J 4415/18) [2019] ZALCJHB 25 (21 February 2019)

[39] The question is whether or not a proper case has been made out to grant leave to put the order issued by Cele J on 8 January 2019 into operation pending an appeal process.

[68] In view of the aforesaid, I am not convinced that the Respondents will suffer irreparable harm in circumstances where they will have the benefit of the services rendered by the Applicants, which will eliminate the prejudice caused by paying employees who render no service and which will alleviate the increased workload of the employees who have to perform the Applicants duties in their absence.

[71] Although the disciplinary proceedings are not an issue before me, it had been mentioned in the affidavits and on the facts placed before me, I fail to see the reason why the disciplinary proceedings had been stayed until the finalisation of the main application. It is certainly in the interest of all the parties that the disciplinary proceedings commence and that the Applicants be afforded their right to be heard and to put up a case in response to the allegations levelled against them. Any further delay in finalising the disciplinary enquiry is not in the interest of the parties, fairness or justice.

16.12.1

requirements of section 18(3) of the Superior Courts Act No 10 of 2013

2025/121270

TWK Agri (Pty) Ltd v De Lange and Another (2025/121270) [2025] ZALCJHB 361 (19 August 2025)

"AI summary: Superior Courts Act No.

10 of 2013:

Section 18(1): States that the operation and execution of a decision subject to an application for leave to appeal or an appeal is suspended unless the court orders otherwise under exceptional circumstances.

Section 18(3): Allows a court to order the enforcement of a decision pending appeal if exceptional circumstances exist, and the applicant proves on a balance of probabilities that they will suffer irreparable harm if the order is not enforced, and the respondent will not suffer irreparable harm if the order is enforced."

"[14] Section 18 of the SC Act provides that:

‘(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.’

[15] Therefore, the three requirements to be satisfied in such applications are (a) exceptional circumstances, (b) proof on a balance of probabilities that the applicant will suffer irreparable harm if the operation and execution of the order are not granted interim effect, and (c) that the party against whom the order was granted will not suffer irreparable harm if the order is enforced in the interim.

[16] The provision applies to applications for leave to appeal in this Court, which has a status similar to that of the High Court.[6]"

Interdict

Manadmus same as interdict

The applicant must therefore show, amongst others, that it has a clear right worthy of protection; that it either has suffered injury or that an injury is reasonably apprehended; and that it does not have a suitable alternative remedy available.

P161/07

Corning Products SA (Pty) Ltd v NUMWSA & Others

existence of a clear right

terminating services for operational reasons

intervention in uncompleted proceedings had to be confined to cases where grave injustice would result

to permit applications for review on a piecemeal basis would frustrate the expeditious resolution of labour disputes

C249/09

The Trustees for the time being of the National Bioinformatics Network Trust v Jacobson & Others

requirements for an interim interdict

a prima facie right had to be shown; there had to be a well-grounded apprehension of irreparable harm if the interim relief was not granted and the ultimate relief was eventually granted; the balance of convenience favoured the granting of interim relief; and there was no other satisfactory remedy available.

J1935/09

City of Johannesburg v SAMWU & Others

S189A

J2298/10

SASBO v Standard Bank of South Africa

Justice was better served by letting CCMA arbitration proceedings to run their course without intervention by the court

C255/09; C362/09

Southern Sun Hotel Interests (Pty) Ltd v CCMA and Others

Notice of court order

Inappropriate and meaningless that notice of order read in a language that employees did not speak or understand. Insufficient that notice only brought to attention of employees who might have been present at a particular time.

J2630/13

Ciro Beverage Solutions (Pty) Ltd v South African Transport & Allied Workers Union and Others

dismissal was in breach of his contract

JS 929/14

Nwaogu v Bridgestone SA and Another (JS 929/14) [2016] ZALCJHB 104 (18 March 2016)

The applicant is entitled to claim specific performance and he is not obliged to cancel the contract and claim damages at a later stage. I am also persuaded that the balance of convenience favours the applicant. The applicant will suffer irreparable harm should the relief not be granted whereas the respondent will suffer little inconvenience by simply proceeding with a process it has already started.

I have also had the occasion to write a judgment about the requirements of interim interdicts in Afrisake NPC v City of Tshwane Metropolitan Municipality and Others under case number 74192/2013 dated 14 March 2014 (not reported). I also emphasized that the proper question would be whether an Applicant in interdictory proceedings required an order now so as to protect a right which he would otherwise not be able to protect at all. One does not require an interdict pendente lite to protect the right which one can in any event protecting future by, amongst others, litigation in due course. It is an absolute minimum requirement that in repairable harm must be shown to exist before the Court can grant such an interdict, and in the present context the Constitutional desirability of such an interdict weighs heavily on my mind.

court does not ordinarily intervene in incomplete disciplinary proceedings

Booysen v Minister of Safety & Security & others(2011) 32ILJ112 (LAC)

Jibav Minister: Department of Justice & Constitutional Development & others(2010) 31 ILJ 112 (LC)at para [17]

Although the court has jurisdiction to entertain an application to intervene in uncompleted disciplinary proceedings, it ought not to do so unless the circumstances are truly exceptional. Urgent applications to review and set aside preliminary rulings made during the course of a disciplinary enquiry or to challenge the validity of the institution of the proceedings ought to be discouraged. These are matters best dealt with in arbitration proceedings consequent on any allegation of unfair dismissal, and if necessary, by this court in review proceedings under s 145.

Trustees for the time being of the Bioinformatics Network Trust v Jacobson & others[2009] 8 BLLR 833(LC)

stay of execution Rule 49 (11)

J1990/15

Passenger Rail Agency of South Africa v Moreki and Another (J1990/15) [2016] ZALCJHB 288 (2 August 2016)

Gois t/a Shakespeares Pub v van Zyl & Others (2003) 24 ILJ 2302 (LC) at paragraphs 32 - 36

this court will favourably consider granting the stay of execution when real and substantial justice requires such a stay or, put differently, where injustice would otherwise result. Waglay J (as he then was) had added that in exercising its discretion to grant a stay of execution, a court is not required to take the merits of the underlying attack on the causa of the writ into account. It is sufficient that there must be a possibility that the causa underlying the writ may ultimately be removed. An applicant is accordingly not required to satisfy the court of the existence of prospects of success in the principal dispute and furthermore, an application for a rescission, review or variation of an award qualifies as an attack on the causa underlying the award.

an interim interdict: when the initial decision to reduce benefits had been taken

CA05/2023

Herold Gie and Broadhead Incorporated v Sun Chemical South Africa (Pty) Limited (CA05/2023) [2024] ZALAC 55 (11 November 2024)

[15] In short, it is clear that a party may apply for an interim interdict if it can show that it would receive relief in the future from an action of another party which infringed upon, at the very least, a prima facie right of the applicant.[Nabuvax (Pty) Ltd and others v City of Tshwane Metropolitan Municipality and others [2013] 3 All SA 528 (GNP).]

[16] If a prima facie right has been established, then an apprehension of irreparable harm must be established. The test is whether there is a reasonable apprehension that the continuance of the alleged wrong will cause irreparable harm to the applicant.[3] Whatever the dispute as to whether, in this case, an interim interdict could and should have been granted by a court which would have heard the semi-urgent application, there can be no doubt that there was a clear legal basis, at the very least, for seeking some form of interim relief. In terms of an argument to establish irreparable harm, the latter would have been caused to the appellant’s clients by the continued conduct of the respondent to reduce their contributions and hence the amount of their post-retirement medical aid benefits. In short, the alleged harm continued after 1 June 2017.

Joinder

Definition

"Matters of mutual interest" (a matter of mutual interest had to create new or destroy existing rights in the employment relationship and had to be one be one that was in the interest of both employer and employee and had to concern the common good of the enterprise: 1) Interest dispute, 2) Rights dispute. All interest disputes constituted disputes about matters of mutual interest but not all disputes about matters of mutual interest were interest disputes.

(J658/14) [2014] ZALCJHB 159

Vanachem Vanadium Products (Pty) Ltd v Normal Union of Metalworkers of SA and Others

whether a party has a legal interest in the subject matter, which may be affected prejudicially by the judgment of the court in the proceedings concerned

JR1605/07

BHP Billiton Energy Coal South Africa Limited v CCMA & Others

Other case law sited

Gordon v Department of Health (337/2007) [2008] ZASCA 99.

t]he test is whether a party that is alleged to be a necessary party, has a legal interest in the subject matter, which may be affected prejudicially by the judgment of the court in the proceedings concerned.

JR1605/07

BHP Billiton Energy Coal South Africa Limited v CCMA & Others

Other case law sited

Minister of Safety v De Vos (2008) 29 ILJ 688 (LC),

arbitrator or a commissioner had a duty to raise the issue of non-joinder mero motu where a party who had an interest in the matter, or who was likely to be affected by the outcome of the arbitration proceedings, had not been cited

JS1698/06

Head of the Department of Education Northern Cape v Wessels & Others

191(5)(a)(i). A referral of his alternative claim to the CCMA for arbitration would have been an appropriate course for the court to have taken.

(JA63/11) [2014] ZALAC 6

Solidarity obo Wehncke v Surf4cars (Pty) Ltd

There are at least two reasons why the limited basis for intervention in criminal and civil proceedings watered extended to and completed arbitration proceedings conducted under the auspices of the CCMA, and why this court ought to be slowed intervene in those proceedings. The first is a policy-related reason for this court to routinely intervening and completed arbitration proceedings would undermine the informal nature of the system of dispute resolution established by the act. The second (related) reason is that to permit applications for review on a piecemeal basis would frustrate the expeditious resolution of labour disputes. In other words, in general terms, justice would be advanced rather than frustrated by permitting CCMA arbitration proceedings to run the course without intervention by this court.

J1013/2011

Seepe v Thermadyne Plant Rental and Another (J1013/2011) [2016] ZALCJHB 186 (5 April 2016)

National Union of Mineworkers of South Africa v Intervalve (Pty) Ltd and Others [2015] 2 BCLR 182 (CC).

Constitutional Court confirmed the decision of the Labour Appeal Court, where it was held that it is not competent to seek a joinder of a party where unfair dismissal allegation was not referred against such a Respondent to the CCMA.

Du Preez v LS Pressing and Another (J861/11) 2012 ZALCJHB 74 (26 July 2012) at para 18.

joining parties to proceedings where a final decision has already been rendered would have the effect of a judgment being taken and enforced against the parties without their cases ever being heard.

JS947/13

De Lucia v Bester and Another (JS947/13) [2017] ZALCJHB 278 (1 August 2017)

National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd and Others (2015) 36 ILJ 363 (CC) at para 186.

The test for joinder at common law is governed by the following principles:(a) There must be a legal interest in the proceedings and not merely a financial interest.(b) A party has a right to ask that someone be joined as a party if such a person has a joint proprietary interest with one or either of the existing parties to the proceedings or has a direct and substantial interest in the Courts order and to avoid a multiplicity of actions and . . . a waste of costs. (Authorities omitted)

Klaase and Another v van der Merwe N.O. and Others 2016 (9) BCLR 1187 (CC) at para 45

The test for joinder is that a party must have a direct and substantial legal interest that may be affected prejudicially by the judgment of the court in the proceedings concerned. In ITAC, this Court confirmed the test and said that a party seeking joinder must have a direct and substantial interest in the subject matter. The Court held that the overriding consideration is whether it is in the interests of justice for a party to intervene in litigation. (citations omitted)

[18] Whitcher AJ (as she then was) also had an opportunity in Strydom v T-Systems SA (Pty) Ltd[(2012) 33 ILJ 2978 (LC)] to determine an application for a joinder within the context of a section 197 of the LRA claim. Having had regard to the principles enunciated in Gordon v Department of Health: KZN[(2008) 29 ILJ 2535 (SCA) at para 9, where the SCA held that;], the learned Judge held that the position in our civil law was that the mere fact that a third party was jointly and severally liable for a debt did not qualify as a direct and substantial interest in the right that is the subject matter of the dispute, and further that joint liability for a debt did not trigger the joinder of such a party by necessity, and that mere financial interest or prejudice has been held to be secondary and indirect

(2008) 29 ILJ 2535 (SCA) at para 9, where the SCA held that; In the Amalgamated Engineering Union case, it was found that the question of joinder should not depend on the nature of the subject matter but on the manner in which, and the extent to which, the courts order may affect the interests of third parties. The court formulated the approach as, first, to consider whether the third party would have locus standi to claim the relief concerning the same subject matter, and then to examine whether a situation could arise in which, because the third party had not been joined, any order the court might make would not be res judicata against him, entitling him to approach the courts again concerning the same subject matter and possibly obtain an order irreconcilable with an order made in the first instance. This has been found to mean that if the order or judgment sought cannot be sustained and carried into effect without necessarily prejudicing the interests of a party or parties not joined in the proceedings, then that party or parties that have a legal interest in the matter must be joined.

minister

JA4/2017

Minister of Public Service and Administration and Another v Public Servants Association obo Makwela and Others (JA4/2017) [2017] ZALCJHB 409 (1 November 2017)

issue for determination is whether the failure to join the Minister constitutes a non-joinder held the Minister not an interested party to the dispute the Minister having no authority over the provincial executive authorities - the role of the Minister is to advise and assist when asked to do so and not to make decisions - the Minister acts merely as the midwife to the OSD and is not affected by a decision that derives from an award resolving a dispute about the implementation of a binding collective agreement - the dispute is one between employer and employee and Minister not employer of the employee - the absence of any legal connection between the Minister and the employee seems to have been overlooked in the argument composed on her behalf. Appeal dismissed with costs.

JA40/2018

Murray and Roberts (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA40/2018) [2019] ZALAC 58; [2019] 11 BLLR 1224 (LAC); (2019) 40 ILJ 2510 (LAC) (20 August 2019)

[24] It is a trite proposition of law that a person must be joined as a party to court proceedings if that person has an interest which is of such a nature that she (or he, or it) may be prejudicially affected by the judgment in the proceedings.[9] The true test for a joinder has also been said to be whether the person has a direct and substantial interest in the proceedings.[10] It is generally accepted that direct and substantial interest means a legal interest in the subject matter of the proceedings (i.e. litigation) which could be prejudicially affected by the judgment of the court.[11] [25] In Cape Bar Council,[2013 (1) SA 170 (SCA) (Cape Bar Council) para 12] the Supreme Court of Appeal reiterated those basic tenants of the law. The joinder of a party is only required if it is a matter of necessity, and not for convenience. The mere fact that the party has an interest in the outcome of litigation does not warrant its joinder, and the interest must be direct and substantial in the sense mentioned earlier. Similarly, in Makwela, this Court confirmed those principles. This Court specifically held that in court proceedings regarding a claim founded on a contract, a person that was not a party to the contract and had no rights or obligations in respect of it, did not have to be joined as a party.

J2217/18

National Union of Public Service and Allied Workers ("NUPSAW") and Others v General Secretary of the Public Health and Social Development Sectoral Bargaining Council and Another (J2217/18) [2018] ZALCJHB 281 (4 September 2018)

[49] The objection of non-joinder may be raised where the point is taken that a party who should be before Court, has not been joined or given judicial notice of the proceedings. The substantial test is whether the party that is alleged to be a necessary party for joinder, has a legal interest in the subject matter of the litigation, which may be affected prejudicially by the judgment of the court in the proceedings concerned

Herbstein & Van Winsen, The Civil Practice of the High Courts of South Africa, Volume 1.

whether a party which was not party to initial proceedings can be joined

J2205/18

Mabaso v Enicker and Another (J2205/18) [2018] ZALCJHB 337 (18 September 2018)

Wallejee and Another v FCSA Organisation Service (Pty) Ltd and Another (2015) 36 ILJ 1943 (LC)

a judgment or order cannot be enforced against a party that was not cited as a party in the proceedings which led to the granting of the order. The basis of that conclusion, and further placing reliance on Ngema and Others v Screenex Wire Weaving Manufacturers (Pty) Limited and others[8] was that a party sought to be cited in those proceedings must have been afforded the opportunity to be heard in relation to its potential liability to the applicant.

Ngema and Others v Screenex Wire Weaving Manufacturers (Pty) Limited and others (2012) 33 ILJ 681 (LC) at para 22

Dutch reform church entities joinder

JS725/2023

Schultz v Congregation of the Dutch Reformed Church Horizon North and Others (JS725/2023) [2024] ZALCJHB 391 (7 October 2024)

The applicant’s application to join the first respondent is granted, subject to the applicant’s compliance with the provisions of Rule 52(4) and (5) read with Rule 35 of the Rules of Court, to the extent that the Court lacks jurisdiction in respect of any dispute against the Sixth Respondent. 2. The application to join the Second to Fifth Respondents is dismissed.

"CONGREGATION OF THE DUTCH REFORMED

CHURCH HORIZON NORTH

First Respondent

CHURCH COUNCIL OF THE CONGREGATION OF THE

DUTCH REFORMED CHURCH HORIZON NORTH

Second Respondent

ROODEPOORT PRESBYTERY OF THE DUTCH

REFORMED CHURCH

Third Respondent

GOUDLAND SYNOD OF THE DUTCH REFORMED

CHURCH

Fourth Respondent

GENERAL SYNOD OF THE DUTCH REFORMED CHURCH

Fifth Respondent

DUTCH REFORMED CHURCH OF SOUTH AFRICA

Sixth Respondent"

"[8] The Church Order establishes the Church and makes provision for the establishment of various structures, viz,

(a) The ‘Congregation’, which is the primary employer of the applicant as pastor;

(b) The ‘Church Council’, which is responsible for inter alia, oversight and governance of the ‘Congregation’ and supervision of the pastor serving the ‘Congregation’ for which the relevant ‘Church Council’ is responsible.

(c) The ‘Presbytery’, which is responsible for the supervision and discipline of all pastors, and exercises powers of supervision concurrently with the ‘Church Council’. The applicant contends that it is this structure that is responsible for initiation and management of discipline against pastors of the Church.

(d) The ‘Goudland Synod’, which the applicant deems as the ‘head office’ of the Church in the area of its jurisdiction, and which prescribes through the Church Order, the conduct of pastors

(e) The ‘General Synod’, which has overall responsibility to grant competence to be called as Minister of the Church as well as the retention and termination of Minister’s status.

[9] The applicant contends that only the Church is a separate legal personality through the Church Order and that each of its structures played a significant role in his employment, discipline and dismissal, hence their joinder is sought."

Jurisdiction

prima facie right

C249/09

The Trustees for the time being of the National Bioinformatics Network Trust v Jacobson & Others

Not delictual matters. Only sec 77(3) BCEA

J1621/08

Ndlovu & Others v SACCAWU

misconduct outside workplace and outside of working hours

JR1655/07

Dolo v CCMA & Others

Not tax matters

Settlement agreement order court

J1907/2010

LSRC and Associates v Blom

Territorial

Locality of employer or enterprise

JR149/2010

Global Outdoor Systems Limited v Du Toit & Others

Certificate of outcome did not confer jurisdiction on arbitrator to do anything that it was not empowered to do

the court did not have jurisdiction at that stage

C717/10

Mickelet v Tray International Services and Administration (Pty) Ltd

Certificate of outcome did not confer jurisdiction on arbitrator to do anything that it was not empowered to do

Other case law cited

Distinguishing the matter from that in Fidelity Guards Holdings (Pty) Ltd v Epstein NO and Others (2000) ILJ 2382 (LAC), the court held, following Bombardier Transportation (Pty) Ltd v Mtiya and Others (2010) 31 ILJ 2065 (LC),

C717/10

Mickelet v Tray International Services and Administration (Pty) Ltd

CCMA

nature of its business, it fell within the jurisdiction of MIBCO

the CCMA did not exercise its assumption of jurisdiction in terms of s 147(3) of the Labour Relations Act

JR 1800/09

Pankana CC t/a R&W Transport Components v Dreyer NO and Others

illegal foreigner

employee could not lawfully tender her services and was therefore not entitled to any remuneration and that the claim was actually one under the Basic Conditions of Employment Act 75 of 1997 beside the point

C255/09; C362/09

Southern Sun Hotel Interests (Pty) Ltd v CCMA and Others

CCMA issuing certificate

Other case law cited

EOH Abantu (Pty) Ltd v CCMA and Another (2008) 29 ILJ 2588 (LC)

commissioner was bound to decide any jurisdictional point raised in conciliation proceedings before issuing a certificate of outcome, and that his failure to do so constituted a reviewable irregularity

JR 2672/08

Siemens Ltd v CCMA and Others

CCMA issuing certificate

Other case law cited

Bombardier Transportation (Pty) Ltd v Mtiya and Others JR 644/09 (11 March 2010)

fell within the power of the CCMA to determine in the course of the arbitration proceedings and are not necessarily to be determined prior to conciliation taking place

JR 2672/08

Siemens Ltd v CCMA and Others

commissioner could only arbitrate if no party had objected to the matter being dealt with as a con-arb

JR 1207/06

Modikwa Platinum Mine (Pty) Ltd v CCMA and Others

causa continua, conjunction causarum connexitas causarum and the once and for all rule Court holding that these principles not appropriate in labour law

JS21/08

Goussard v Impala Platinum Ltd

reason for the dismissal providing the forum to which dispute should serve and in that regard simply provided that forum with provisional jurisdiction Thus Labour Court has provisional jurisdiction.

JS21/08

Goussard v Impala Platinum Ltd

Labour Court does not have jurisdiction to entertain unfair dismissal disputes relating to misconduct

JR2148/08

Saga Moses Mahlangu v Minister of Sport and Recreation

Authority

Labour Court: The best evidence in such matters is a copy of the resolution authorising the agent to act, this may not be necessary depending on the nature of the challenge to authority. Noted further that even the deponents averment that he was duly authorised to make the affidavit might be sufficient to establish authority

JS1034/01

Roebuck v Aerial Excellence CC & Another

Territorial

an international contract and private international law would have to be used to determine the jurisdiction and the applicable law (noting that these concepts, while nevertheless connected, are conceptually distinct). Noted that parties are free to agree in the contract on the legal system which ought to apply to the contract, but in the absence of such agreement the Court must make that decision. Held that in doing so the LC should apply an objective test.

. Held, in particular, that the workplace of the employee, while an important factor, was not decisive in determining the appropriate jurisdiction

P151/01

Kleinhans v Parmalat SA (Pty) Ltd

; contract of employment subjected him to the company’s human resources policies which make reference to the LRA and the BCEA; parties implicitly chose South African law to apply to the contract and that the Labour Court had jurisdiction

C190/04

Parry, Roger v Astral Operations Ltd

Delictual damages of employer

Switching of machines during strike

the Labour Court had jurisdiction to decide delictual claims arising out of labour disputes as envisaged in s 67 of the LRA

relying on the doctrine of vicarious liability, had to prove that a wrongful act had been committed by someone for whom the union was responsible, causing a foreseeable loss; the employer had to prove that the union was a socius criminis as it could not be held liable if the act of authorising its agent was not criminal; none of the evidence had proved whether employees allegedly involved were identified union members

D622/02

Mondi Limited Mondi Craft Division v CEPPWAWU & Individual employees

Out of time referring statement of case

E/r entitled sit back await next move

CA 11/08

Booysen Bore Drilling (Pty) Ltd v National Union of Mineworkers and Another

Nature of dispute

Nature of dispute before court to be decided by court and not bound by a party’s description of it

Collective agreement provided for private arbitration and court had no jurisdiction.

(JS 884/2011) [2013] ZALCJHB 266

Aucamp v SARS

Territorial

The CCMA had jurisdiction to hear a dispute referred to it by employees of a South African TES even if the employees were placed with clients outside of South Africa. The logical place where a TES conducted its labour broking service was where it recruited and procured labour and not the place where its clients had their operations.

(JR455/12) [2013] ZALCJHB 195

MECS Africa (Pty) Ltd v CCMA and Others

Protected disclosure

Dispute concerning an occupational detriment other than dismissal. Effect of amendments to LRA brought about by protected disclosures legislation. Legislature envisaging that these disputes to be heard by Labour Court. The court noted that the LRA, in dealing with the right of an employee to refer a dispute, used the word may because it would be ludicrous if the statute obliged employees to refer all labour disputes to tribunals or to the court and used the peremptory shall. It noted further that s 186(2)(d) had been added to the LRA in the 2002 amendments in the wake of the promulgation of the Protected Disclosures Act 26 of 2000 and it was clear that the latter Act contemplated a distinction between the unfair labour practices which were contained in Schedule 7 and those provided for in s 186(2)(a), (b) and (c): the distinction being that an unfair labour practice in terms of para (d) could be referred to the Labour Court while the original unfair labour practice dispute could be referred to arbitration.

(C484/2012) [2014] ZALCCT 3

IMATU v Witzenberg Municipality

Dismissal by operation of law. Bargaining Council has no jurisdiction. Section 158(1)(h) LRA review by Labour Court.

(JR 2934/11) [2014] ZALCJHB 8

Public Servants Association obo Lessing v Safety and Security Services Bargaining Council and Others

Existence of dsmissal.

Correctness test applicable in jurisdictional dispute whereas reasonableness standard applicable to factual findings. Senior manager told that she should resign and left her office without resigning held not to have been dismissed on the facts.

(DA10/2012) [2014] ZALCJHB 32

Jonsson Uniform Solutions (Pty) Ltd v Brown and Others

Bargaining Council demarcation.

MIBCO vs MEIBC. Depending on the dominant activity (that is the manufacturing of either light or heavy trailers), the whole enterprise would fall under one or the other bargaining council and the parties had been invited to submit further evidence in that regard.

(JR2977/07) [2014] ZALCJHB 77

Henred Fruehauf (Pty) Ltd and Another v Marcus NO and Others

Territorial jurisdiction

Contract concluded in the UK and employee required to work only in UK. Head office situated in South Africa. Employee was South African. He was obliged to work overseas for an agreed fixed term with no right to return to South Africa. No jurisdiction.

South African Tourism v Monare and Others

Section 17(3)(a)(i) of the Public Service Act 103 of 1994.

that a parallel system of review for action which fell outside of the strict definition of administrative action in terms of the poorly drafted PAJA had developed. No dispute to the Bargaining Council. open to review in terms of s 158(1)(a) of the LRA on the grounds of legality.

Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA) at para [44]

(CA4/2013, CA5/2013) [2014] ZALAC 13

MEC for the Department of Health, Western Cape v Weder; MEC for the Department of Health, Western Cape v Democratic Nursing Organisation of South Africa obo Mangena

Territorial jurisdiction

Employee employed by a South African registered company to work in the DRC. Misconduct allegedly committed in the DRC. Contract entered into in South Africa and dismissal taking place in South Africa .CCMA having jurisdiction.

(D1118/12) [2014] ZALCD 15

Redis Construction Africa (Pty) Ltd v CCMA and Others

Labour Court and Bargaining Council

Jurisdictional point could be raised at any stage of proceedings, including at the hearing of the matter.

(JS 619/13) [2015] ZALCJHB 7

Tshehla v Emfuleni Local Municipality

Discrimination

CCMA jurisdiction to conciliate and not Bargaining Council

(JS 619/13) [2015] ZALCJHB 7

Tshehla v Emfuleni Local Municipality

A declarator sough: finding that the dismissal was unlawful would not justify.

First follow procedures laid down in the LRA.

(D1035/14) [2015] ZALCD 6

Ravhura v Zungu NO and Others

Interdict: Disciplinary hearing.

Court no Jurisdiction, go to CCMA

(D827/13) [2015] ZALCD 14

Reddi v The University of KwaZulu Natal

194(2) of the LRA; Discretion to award compensation in cases of substantive unfairness

the extent to which the employer has deviated from the norm required of him; requires that an award of compensation must be just and equitable; there is no express provision in (2) that allows compensation not to be awarded in respect of any unreasonable delay on the part of the employee (although this may be taken into account under the notion of just and equitable)

DA3/01

HM Leibowitz (Pty) Ltd t/a The Auto Industrial Centre Group of Companies v Fernandes

Compensation

Johnson & Johnson v CWIU

Compensation

The court should nevertheless be careful to ensure that the purpose of the compensation is to make good the employees loss and not to punish the employer.

Compensation

monetary compensation for a procedurally unfair dismissal has in the past been said to be a form of solatium

Compensation

Compensation CCMA; must give reasons

JR284/09

William Mohlakoana v The Commissioner, Commission for Conciliation, Mediation and Arbitration & Others

Compensation

Remuneration

section 194 of the LRA was to the total salary an employee had been receiving at the time of his dismissal

JR2649/09

Solidarity obo Bouwer v Arivia (Pty) Ltd trading as Arivia.Kom & Others

Compensation*

CCMA awarding compensation for unfair dismissal as employee not seeking reinstatement; Court on review awarding reinstatement; Labour Court not able to present; substitute commissioners award unless exceptional circumstances

DA6/07

Boxer Superstores (Pty) Ltd v Zuma & Others

Compensation

(s 194 LRA); Not the same as back pay

194

CCT88/07

Equity Aviation Services (Pty) Ltd v CCMA & Others

Jurisdiction.

the LRA does not permit parties to join in the dispute resolution process midway, and that parties may not join the action after conciliation.

J2114/00

NUMSA (sic) v Alston SA

Powers

LC is a superior court with power to regulate its own procedures. Held that the procedure adopted in casu served the same purpose as Rule 11 is meant to achieve and avoided unnecessary delay.

D893/00

De Laan v Van Dyck Carpert (sic) Company

Pre-trial meeting

employee to raise an issue not recorded as in dispute in the pre-arbitration minute

purpose of a pre-arbitration meeting is to enable the parties to try and redefine issues as emerge from the pleadings and that generally parties are bound to argue only those issues identified as being in dispute in the pre-arbitration minute. Held: In this case, the [council] agreement specifically enjoins parties to attempt; they limited the issues to those recorded in the minute must be deemed to have been their election to limit the issues to those recorded.

JR1774/01

Minister of Safety and Security v Mashego NO & Others

Procedure

Exception: When an exception is raised against a statement of claim, this Court must consider, having regard to what I have said above, whether the matter presents a question to be decided which, at this stage, will dispose of the case in whole or in part. If not, then this Court must consider whether there is any embarrassment that is real and that cannot be met by making amendments or providing of particulars at the pre-trial conference stage

an exception that a pleading is vague and embarrassing, that the applicant on exception must show that it would be seriously prejudiced should the pleading be allowed to remain (at [22] and [26], referring to International Tobacco Co v Wolheim & Others 1953 (2) SA 603 (A)

C966/02

Harmse v City of Cape Town

rescission

Attorney negligence

(a) should not show disinterest in the conduct of his own case; (b) must maintain close contact with his attorneys; (c) must have no reason to distrust his attorneys competence to look after his affairs. These factors weigh more heavily on an applicant or plaintiff in a matter

J3263/99

Fuller v Megacor Holdings

Jurisdiction - Noted that in terms of s172(2) of the Constitution, read with s157(1) of the LRA, the LC has jurisdiction to make an order concerning the validity of an Act of Parliament

J2953/00

Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO & Others

Procedure

Amendment of admission

Where [an] amendment involves the withdrawal of an admission, the party seeking the indulgence must provided the Court with a full explanation to convince the Court of the bona fides of the party seeking the amendment. A satisfactory explanation of the circumstances in which the admission was made and the reason for seeking to withdraw it (sic). If the result of allowing the admission to be withdrawn is to cause prejudice or injustice to the other party to the extent that a special order as to costs will not compensate him, then the application to amend will be refused

C552/01

Papier & Others v The Minister of Safety and Security & Others

Procedure

Joinder

Rule 22 of the Labour Court allows for joinder after conciliation proceedings and nowhere specifies that a party may be joined only after participating in conciliation. Held that the Court has discretion to join parties even if they did not participate in conciliation

J1112/99

Mokoena, Ronald & Others v Motor Component Industry (Pty) Ltd; ZL Lemforder (Pty) Ltd; Auto Industrial Spartan (Pty) Ltd & Mr Dean Cataldo Fragale

defence of lis pendens

objection failed because the Labour Court exercises an equity jurisdiction and may take different considerations into account from the High Court

J619/05

Transman v SA Post Office

Application to make Award order of court

Opposed

the party opposing such application must show that the review has reasonable prospects of success: Ntshangane v Specialty Metals CC ([1998] 3 BLLR 305(LC))

C226/04

National Education Health & Allied Workers Union (obo M Vermeulen) v The Director General: Department of Labour

Withdraw action

an applicant who withdrew was in the same position as an unsuccessful litigant: Germishuys v Douglas Besproeingsraad (1973 (3) SA 299 (NC))

that this was not a general principle covered by the provisions of s 162 of the LRA

C329/05

Van den Berg, PJ v SAPS

Review

"Misconduct"

the meaning of misconduct (of an arbitrator) had been examined in both Hyperchemicals International v Maybaker Agrichem (1992 (1) SA 19 ILJ 799 (LC)) and Abdull & Another v Cloete NO & Others ((1998) 19 IJ 799 (LC)

P539/02

United National Breweries (SA) v CCMA; Bono L N.O. & FAWU obo Mlonyeni

Review

gross irregularity related to the procedure adopted and not to an incorrect judgment

(see Ellis v Morgan, Ellis v Desai (1909 TS 576); Goldfield Investments Ltd & Another v City Council of Jhb & Another (1938 TPD 551) and County Fair Foods (Pty) Ltd v CCMA & Others ((1999) 4 LLD 459 (LAC)

P539/02

United National Breweries (SA) v CCMA; Bono L N.O. & FAWU obo Mlonyeni

Reinstatement

there were conflicting LAC judgments on this issue but that since there was no limitation or capping on reinstatement in the Act, the Court was competent to award reinstatement beyond a 12-month period.

JS 614/04

SACCAWU; Moletsane, SS; Tekane, N & Jonas, T P v Primserv ABC Recruitment (Pty) Ltd t/a Primserv Outsourcing Incorporating (Reg 1997/18792/07)

Jurisdiction;

Territorial

the Court could acquire jurisdiction over foreigners (perigrini) without an attachment to found such jurisdiction if either party submitted to the jurisdiction of the Court; held that all litigants were resident in SA and therefore incolae not perigrini.

D 102/06

Moslemany IEL v Unilever PLC & Unilever SA Foods

Rescission

JR 2774/2012

NATIONAL PROSECUTING AUTHORITY

The applicable legal principles regulating the rescission of an order granted in the absence of a party are based on a threshold of good cause shown. Specifically, this requires the applicant to furnish a reasonable explanation for its absence on 12 May 2015 when the order sought to be rescinded was granted, the application must be bona fide and the applicant must show on a prima facie basis that it has a bona fide case to present in respect of that application.

Graaff-Reinet Municipality v Van Rynevelds Pass Irrigation Board,[15] the Appellate Division defined the term jurisdiction in relation to courts as the power or competence of a court to hear and determine an issue between the parties.[16] The definition was accepted and applied by the Constitutional Court in Gcaba v Minister of Safety and Security

automatic termination of the employment contract at the behest of a third part

J2834/16, J2845/16

AMCU and Others v Piet Wes Civils CC and Another (J2834/16, J2845/16) [2017] ZALCJHB 7; (2017) 38 ILJ 1128 (LC); [2017] 5 BLLR 501 (LC) (13 January 2017)

[19]On the facts of the case before me, I hold a similar view. The contract was not intended to be for a fixed duration, or to terminate on the occurrence of a specified event or the completion of a specified task or project as contemplated by s 198B(1). And to place the construction of a specified event on the cancellation of the Exxaro contract would, in my view, go beyond the intention of the legislature. The very purpose of the enactment of s 198B was to provide security of employment, except in circumstances where a fixed term contract is clearly justified, such as seasonal work or employment to carry out a specific task or to do so within a specified period. To make the workers employment contingent upon the whims of a third party that can simply terminate the contract between it and the employer on notice, does not fit that purpose. The employers have not, in my view, discharged the onus of showing that there was a justifiable reason to employ the workers on a fixed term contract for more than three months, as contemplated by s 198B(3)(b). The employment contracts were either of an unlimited duration or must be deemed to be of an indefinite duration as contemplated by s 198B(5).

SATAWU obo Dube & ors v Fidelity Supercare Cleaning Service Group Ltd [2015] 8 BLLR 837 (LC); (2015) 36 ILJ 1923 (LC) para [51].

Given the expressions about the decisions by this court in Mampeule[12], Nape[13]and Mahlamu[14], supra, the view expressed in Twoline Trading above cannot be correct. A contractual provision that provides for the automatic termination of the employment contract at the behest of a third party or external circumstances beyond the rights conferred to the employee in our labour laws undermines an employee’s rights to fair labour practices [and] is disallowed by labour market policies. It is contrary to public policy, unconstitutional and unenforceable (Grogan The Brokers Dilemma 2010Employment Law6). This view is clear from all the decisions referred to above, and it is apparent from these that labour-brokers may no longer hide behind the shield of commercial contracts to circumvent legislative protections against unfair dismissal. The freedom to contract cannot extend itself beyond the rights conferred in the constitution, as for instance, against slavery.

Sindane v Prestige Cleaning Services [2009] 12 BLLR 1249 (LC).

Mahlamu v CCMA [2011] 4 BLLR 381 (LC).

Appealable test

JA27/14

Clencor (Pty) Ltd v Mngezana N.O. and Others (JA27/14) [2018] ZALAC 2 (25 January 2018)

susceptible to appeal

The decision must be final in effect and not susceptible of alteration by the court of first instance; second, it must be definitive of the rights of the parties; and it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings

Cilliers NO and Others v Ellis and Another (200/2016) [2017] ZASCA 13 (17 March 2017).

dismissal: no evidence of dismissal other than letter of demand

JS 29/14

Chemical Energy Paper Printing Wood & Allied Workers Union and Others v MR IS Wilson t/a ISW Pale (JS 29/14) [2018] ZALCJHB 444 (12 June 2018)

[13] At the very least, to establish evidence on which a court could conclude that a dismissal had taken place at that stage, either the applicants needed to put the respondent on terms to pay them according to the previous arrangement, failing which they would accept the breach and pursue a claim for unfair dismissal and, or alternatively contractual damages, or alternatively, they needed to lead some evidence of other unequivocal the employer terminating the relationship. On the evidence led, ignoring once again what was pleaded, at best the applicants provided evidence of a potential unprotected lockout.

business rescue proceedings

D1051/19

Marques and Others v Group Five Construction (Pty) Ltd and Others (D1051/19) [2019] ZALCJHB 330; (2020) 41 ILJ 677 (LC) (25 July 2019)

Labour Court having no jurisdiction to uplift moratorium on legal proceedings-power belongs to the High Court exclusively

[16] In the light of the decisions in Chetty, Burda, Sondamase and Shiva Uranium it seems that the weight of authority is against this court assuming the mantle of the High Court to uplift the moratorium on legal proceedings imposed by section 133 (1). That is not to say that justified circumstances may exist for the High Court to do so in instances where permission to uplift the moratorium has been refused by the business practitioner. But that is not a claim that can be pursued in this court.

Dispute must be referred for conciliation

J183/2018

Dlamini and Others v Sedtrade and Another (J183/2018) [2019] ZALCJHB 363 (12 November 2019)

National Union of Metalworkers of SA v Intervalve (Pty) Ltd(2015) 36ILJ363 (CC)

the court held that in any dismissal dispute, this court has no jurisdiction if the dispute was not referred to conciliation. At paragraph 108 of the judgment, Zondo J (as he then was) noted that this court does not even have a discretion to adjudicator dismissal dispute that has not been referred to conciliation. Mr Tlali, who represented the applicants, conceded that in so far as the applicants claim is one of unfair dismissal, there had been no referral to the CCMA. That being so, it is manifestly clear that this court lacks jurisdiction to entertain any claim of unfair dismissal made by the applicants. Mr Tlali urged me to refer the matter to the CCMA for conciliation. That is not a course of action that is open to the court. The applicants are required to make a proper referral in terms of the LRA and to the extent that the referral will be made outside of the prescribed time limit, it will be necessary for them to apply for condonation.

cannot, by any stretch of imaginative interpretation, be read as intending to provide for the determination of delictual claims arising from breach of an employment contract

J2039/19

Heightsafety Training Academy (Pty) Ltd v Mose and Others (J2039/19) [2019] ZALCJHB 326 (22 November 2019)

In my view, it would require a very elastic and strained reading of that provision to interpret it as extending to cloaking the court with jurisdiction to entertain delictual claims arising from a contract of employment. Although it is true that a delictual claim can arise from a breach of contractual obligations, unlike the determination of a dispute about the enforcement of a restraint agreement, the determination of the delictual claim is not primarily concerned with the enforceability of contractual obligations.

Unlawful dismissal

J 346/20

National Union of Public Service and Allied Workers (NUPSAW) obo Members and Another v Gauteng Department of Infrastructure and Development and Others (J 346/20) [2020] ZALCJHB 169 (5 June 2020)

[53] In summary: The Applicants approached this Court for relief in terms of the LRA and the cause of action as pleaded by the Applicants is one of unlawfulness, based on the alleged unlawful conduct by the Department. The Applicants claim of unlawful termination of their contracts is not a claim contemplated by the LRA and the LRA does not confer jurisdiction on this Court to grant relief on the Applicants pleaded case. There is no remedy that this Court can afford the Applicants to the extent that they claim that the termination of their contracts was unlawful.

Territorial jurisdiction

JR827/18

Lime Global Ltd v Myhill E N.O and Others (JR827/18) [2020] ZALCJHB 144 (21 August 2020)

[13] What the first respondent appears to have overlooked is that the rationale behind the decision in Astral was based on the courts consideration of the nature and extent of the business carried on in Malawi (in that case) where the respondent, Parry, was employed. The first respondent also apparently overlooked the decision of the Labour Appeal Court in Monare v South African Tourism and Others.[(JA45/14) [2015] ZALAC 47; [2016] 2 BLLR 115 (LAC); (2016) 37 IU 394 (LAC) (11 November 2015)] In these matters, it was clear that the employer did fall within the "territorial" jurisdiction of the CCMA and the question that arose was whether the employee, who worked outside the territorial jurisdiction of the CCMA fell within the jurisdiction of the CCMA.

[14] In Monare, the court said: “What is clear from both Astral and Genrec Mei is that the undertaking where the employee was employed (i.e. and which was situated beyond the territorial jurisdiction of the respective fora in each of those cases), has to be separate and divorced from the employer's undertaking which is located within the jurisdictional territory of the relevant forum".[13]

[15] There is no evidence to suggest that the applicant conducted a "separate" and "divorced" undertaking in South Africa. At all times the third respondent operated as an employee of the applicant serving its business in the United Kingdom "remotely" from South Africa. (As it appears did a number of its employees in various other countries). It is clear from both the third respondent's evidence and her documentation that the applicant's business was in fact based in the United Kingdom.

Bargaining Council demarcation

JR 2596/2018

National Union of Metalworkers of South Africa v Commission for Conciliation, Mediation and Arbitration and Others (JR 2596/2018) [2021] ZALCJHB 29 (4 March 2021)

Civil engineering vs Mining

In effect, Andru ran the mine on behalf of the mine owners. In the present instance, the third respondent was contractually committed to moving earth, and but for the ad hoc in limited circumstances described by Scheepers, it did not excavate coal. It was paid according to the amount of bulk material moved. It did not run the mine on behalf of South 32.

[33] In summary, the arbitrator correctly found that there was no evidence that the third respondent was responsible for the beneficiation of any mineralised material, he correctly found that the third respondent was contracted to move bulk material from one point on the mine to a designated stockpile, and that he correctly determined that the third respondent carried out one business, being civil engineering.

[34]...What the applicant ignores is that the focus in a demarcation enquiry is not on individual activities or on the association between the employer and its client, or between the client and the employers employees. The focus is on the purpose for which the employer and the employee are associated. To focus on a single, incidental activity which in the scheme of things is insignificant and to seek to elevate that activity to the purpose of association, is to entirely misconstrue the nature of the test to be applied.

Unlawfulness claim

JR 401/2021

South African Municipal Workers Union obo Makofane v Matjhabeng Municipality and Another (JR 401/2021) [2021] ZALCJHB 72 (31 May 2021)

[22] In Gcaba (supra) the Constitutional Court confirmed that if the pleadings, properly interpreted, establish that the applicant is asserting a claim under the LRA, one that is to be determined exclusively by the Labour Court, the High Court would lack jurisdiction (at paragraph 75). The corollary is that if the pleadings disclose that the applicant is not asserting a claim in terms of the LRA (or any other law) that is to be determined exclusively by this court, or a claim that engages this courts concurrent constitutional jurisdiction under section 157 (2), then this court has no jurisdiction. Given that the applicant in the present instance asserts neither, I fail to appreciate the basis on which this court has jurisdiction to entertain the application.

How to deal with jurisdictional points

JR1544/18

Sihlali and Others v South African Local Government Bargaining Council and Others (JR1544/18) [2021] ZALCJHB 199 (29 July 2021)

[32] I agree that this jurisdictional issue was intricately linked to the merits of the dispute and that it was irregular for the second respondent to have made a jurisdictional determination without hearing any evidence and engaging with the merits of the matter.[33] In any event, the question of whether the applicants were employees of the City, is not a jurisdictional issue as ordinarily raised or in the true sense, rather it’s an issue that is best dealt with together with determining whether there was an unfair dismissal. This was confirmed in Bombardier Transportation (Pty) Ltd v Mtiya NO and others[[2010] 8 BLLR 840 (LC)], where the Court held; The first step in this approach is to recognise that many jurisdictional issues raised by parties in conciliation proceedings are not jurisdictional questions in the true sense. For example, whether a person is an independent contractor or an employee as defined in section 213 of the LRA is more properly a question that falls within the power of the CCMA to determine in the course of the arbitration proceedings (ie the adjudication stage of the matter) in relation to a dispute before it. It is not a question that must necessarily be determined prior to conciliation taking place, nor is it a jurisdictional question contemplated by rule 14 of the CCMAs Rules. A challenge to the CCMAs jurisdiction on the basis that there was no dismissal falls into the same category.

New ground of review can be raised during arguments regarding jurisdiction

JR 1106/16

Bogoshi v Commission for Conciliation, Mediation and Arbitration and Others (JR 1106/16) [2021] ZALCJHB 186 (2 August 2021)

[60]...New grounds of review cannot be raised in argument.[Northam Platinum Ltd v Fganyago No and Others (2010) 31 ILJ 713 (LC) at para 27; SA Post Office v Commission for Conciliation, Mediation and Arbitration and Others (2018) 39 ILJ 1350 (LC) at para 30; ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman NO and Others (2013) 34 ILJ 2347 (LC) at para 32.] However, I do accept that the argument raised by the applicant as above concerns one of jurisdiction of the CCMA to have conducted the arbitration in the first place, and that is an issue that can be competently raised even if not specifically pleaded as a ground of review. The reason for this is that it is up to this Court to decide, de novo, and for itself, whether the CCMA indeed had jurisdiction in a particular case.[Eskom Holdings SOC Ltd v National Union of Mineworkers on behalf of Kyaya and Others [2017] 8 BLLR 797 (LC) at para 32; Nama Khoi Local Municipality v SA Local Government Bargaining Council and Others (2019) 40 ILJ 2092 (LC) at para 16.] Since it is pertinently raised by the applicant, I will thus consider this jurisdictional issue. As held in SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others[(2008) 29 ILJ 2218 (LAC) at para 40. See also Qibe v Joy Global Africa (Pty) Ltd: In re Joy Global Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2015) 36 ILJ 1283 (LAC) at para 5; Universal Church of the Kingdom of God v Myeni and Others (2015) 36 ILJ 2832 (LAC) at para 27.]:The CCMA is a creature of statute and is not a court of law. As a general rule, it cannot decide its own jurisdiction. It can only make a ruling for convenience.

Financial Sector Regulation Act (FSR Act)[Act No. 9 of 2017, as amended.]

J2383/19

Dumakude v Nedbank Group (J2383/19) [2022] ZALCJHB 40 (7 March 2022)

[21] I was referred to the judgment of Muthusamy v Nedbank Ltd[(2010) 31 ILJ 1453 (LC).] (Muthusamy). The facts of that case are very similar to the current case, except that the employee in that case, sought to interdict the employer from proceeding with a post termination RED enquiry and placing his name on RED and that after resigning, he filed a constructive dismissal dispute. The Court declined to entertain the matter and held that it had no jurisdiction.

Honourable Court does not have jurisdiction to order the removal of the Applicant on RED LISTING.

exceptio res judicata, in the form of the rule against collateral challenges

JR 2113/21

Woolworths (PTY) Ltd v Phala N.O. and Others (JR 2113/21) [2022] ZALCJHB 265 (16 September 2022)

[18] A further reason why the CCMA had no jurisdiction to entertain the unfair labour practice dispute is a rule allied to the exceptio res judicata, in the form of the rule against collateral challenges. That rule seeks to prevent a party avoiding the consequences of an order issued against it by going to another forum, and provides that a party is not entitled to launch a collateral challenge against an earlier juridical act unless and until the earlier act is set aside (see NEHAWU obo Kgekwane v Department of Development, Planning and Local Government, Gauteng (2015) 36 ILJ 1247 (LAC), at paragraph 26). The referral of the unfair labour practice dispute was nothing less than a collateral challenge in the face of the judgment and order by Mahosi J.

CCMA: job seeker

JR1708/20

Oageng v Mfati N.O. and Others (JR1708/20) [2022] ZALCJHB 336 (28 November 2022)

[9] The third respondent contends that the applicant failed to make full disclosure to its satisfaction in relation to his criminal charge of culpable homicide. As a result, it invoked clause 20.3 of the offer of employment. The applicants counsel, Mr Hulley SC, tore this contention to shreds as clause 20.3 refers to a criminal conviction as opposed to a criminal charge. I agree that the third respondents contention is untenable.

Embassies and Consulates enjoy general immunity from the South African courts

JR2186/21

Pitja v CCMA and Others (JR2186/21) [2023] ZALCJHB 79 (16 March 2023)

[13] Section 5(1) indicates that immunity does not apply where the contract was entered into within South Africa and is performed mainly in South African. He worked in the Johannesburg area. Further, he is a South African. In terms of sub-section, jurisdiction exists.

"[14] However, section 5(2)(b) sets out where section 5(1) will not apply, i.e. where the Consulate will still have immunity. It reads as follows:

“the proceedings relate to the employment of the head of a diplomatic mission or any member of the diplomatic, administrative, technical or service staff of the mission or to the employment of the head of a consular post or any member of the consular, labour, trade, administrative, technical or service staff of the post.”"

[15]... Section 5(2)(b) speaks of “any member” of such a diplomatic, administrative, technical or service staff. That would include all employees of varying levels of seniority. Issuing of visas is clearly part of the functions of a foreign entity. In other words, [Pitja’s] job is directly related to the sovereign powers of a foreign State. As such, the CCMA has no jurisdiction to Arbitrate the matter.

"[15] There is no merit to this argument. The award by Commissioner Malubane was an advisory award, advising the Consulate to either reinstate Pitja or pay him three months’ salary. If the advisory award was, by itself, not binding on the Consulate, I cannot find a basis why it would be binding on Commissioner Byrne.

[16] In this matter, the Consulate has elected not to comply with the advisory award by Commissioner Malubane. That is, in my view, a legally permissible choice if regard is had to the provisions of section 150C(5)(a) of the Labour Relations Act[3] (LRA)."

[17] It is a well-established principle of public international law that the courts (including quasi-judicial forums, in my view) of a country will not by their process make a foreign state a party to legal proceedings against its will. I refer in this regard to the judgment by Nicholas J in Liebowitz v Schwartz.[4]

[18] It is apposite to reflect briefly on the rationale behind this principle. First and foremost, this principle is grounded on the maxim: ‘par in parem imperium non habet’, which means that equals have no jurisdiction over one another. This maxim is interlinked with the principle of sovereign equality, which affirms that all states are equal members of the international community.

"[19] In Democratic Alliance v Minister of International Relations and Co-operation and Others; Engels and Another v Minister of International Relations and Co-operation and Another,[2018 (6) SA 109 (GP)] Vally J deals with the matter thus:

[17] The immunity is not for the personal benefit of the official but there to ensure that states function effectively and that there is a well-ordered workable system of international relations where peace and harmony can exist between states. It is a consequence of a simple idea, now recognised as a principle, and captured in the phrase, “par in parem imperium non habet”. However, it is a derogation from another fundamental principle that each state shall enjoy supreme sovereignty over the operation of its laws.

[18] In terms of the customary international law officials of a state enjoy immunity from civil and criminal jurisdiction. The immunity takes two forms: immunity based on the functions they perform (functional immunity or immunity rationae materiae); and, immunity granted to certain officials because of the office they hold (personal immunity or immunity rationae personae). The former concerns immunity for acts performed in an official capacity. The immunity is functional to the work of the official of the state; it attaches to the function and not the individual. The immunity rationae personae on the other hand, is given to individuals by virtue of the position they hold, such as heads of state, heads of government or ministers of foreign affairs, while in office. It is these three officials only that enjoy this immunity. This immunity attaches to the individual. The immunity rationae personae covers acts committed prior to and while the official holds office. It is temporary: it takes effect as soon as the official takes office and ceases as soon as s/he leaves office. (footnotes omitted)"

"[20] In Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre and Others,[2016 (3) SA 317 (SCA)] the Supreme Court of Appeal (SCA) explained the concept of immunity in customary international law as follows:

[66] Professor Crawford describes the basic principles of the international law of immunity in the following terms:

‘State immunity is a rule of international law that facilitates the performance of public functions of the state and its representatives by preventing them from being sued or prosecuted in foreign Courts. Essentially, it precludes the Courts of the forum state from exercising adjudicative and enforcement jurisdiction in certain classes of case in which a foreign state is a party. It is a procedural bar (not a substantive defence) based on the status and functions of the state or official in question. Previously described as a privilege conferred at the behest of the executive, the grant of immunity is now understood as an obligation under customary international law … [T]he existence of this obligation is supported by ample authority … Immunity exists as a rule of international law, but its application depends substantially on the law and procedural rules of the forum.’

This immunity is available when it is sought to implead a foreign state, whether directly or indirectly, before domestic Courts, and also when action is taken against state officials acting in their capacity as such. They enjoy the same immunity as the state they represent. This is known as immunity ratione materiae (immunity attaching to official acts). In addition, heads of state and certain other high officials of state enjoy immunity ratione personae (immunity by virtue of status or an office held at any particular time). This form of immunity terminates when the individual demits, or is removed from, office. The country concerned may waive either form of immunity. (footnotes omitted)"

[22] It is apparent that Pitja was, with this matter, courageously pursuing what he regards as a test case so as to break the established legal barrier in holding another sovereign state accountable in the local courts of a country. The principle upholding this barrier is, in my considered view, sacrosanct.

Embassies and Consulates enjoy general immunity from the South African courts

JS 528/2022

Pitja v United States of America (JS 528/2022) [2023] ZALCJHB 152 (23 May 2023)

"the applicant was a member of the ‘consular, labour, trade, administrative, technical or service staff of post’ for the purposes of section 5(2)(b). The exception established by section 5(1) is therefore not applicable, and immunity is retained under section 2. It follows that this court has no jurisdiction to entertain the referral made by the applicant on account of that immunity.

the applicant was a member of the ‘consular, labour, trade, administrative, technical or service staff of post’ for the purposes of section 5(2)(b). The exception established by section 5(1) is therefore not applicable, and immunity is retained under section 2. It follows that this court has no jurisdiction to entertain the referral made by the applicant on account of that immunity.

"

[9] This court has reached similar conclusions in Wilma Jonker v Embassy of the United States of America [1999] 1 BLLR 31 (LC) and the judgment by Voyi AJ to which I have referred, Kgalabi Pitja v Commission for Conciliation, Mediation and Arbitration and others (JR 186/21). None of the authorities referred to by the applicant cast doubt on these decisions. In short, the respondent’s point in limine stands to be upheld and the referral dismissed. In these circumstances, it is not necessary for me to consider the respondent’s submissions based on customary international law.

Labour Court for order to hand back personal data on computer

J947/2023

Seale and Another v Marce Fire Fighting Technology (J947/2023) [2023] ZALCJHB 220 (13 July 2023)

[7] The respondent's argument that the applicants should have approached the High Court is consistent with the applicants' pleaded case. The applicants seek an order that the respondent return their personal information . In terms of their pleaded case, the Labour Court derives the necessary jurisdiction from section 157 (2) of the LRA which grants it concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental rights entrenched in chapter 2 of the Constitution. Sedion-23 (1) of the Constitutional of the Republic of South Africa, 1996 guarantees everyone the right to fair labour practices. This right forms part of the rights entrenched in chapter 2 of the Constitution. Notwithstanding reference to section 157 (1) of the LRA, the pleaded case before me is based on section 157 (2) of the LRA. The principle is expressed in Chirwa (supra)[5]. The applicants have therefore established that this court has the necessary jurisdiction to hear this application.

[9] It is common cause that the respondent expressed its willingness to hand over the information the applicants are entitle to including their personal information. There are only a few documents whose ownership is in dispute. The applicants conceded that the ownership of those documents has to be determined in terms of the Companies Act[6]. An employee retains ownership of his or her personal information and the employer has no right to confiscate or deny an employee the right to that information. Employers have a duty to regulate the use of tools of trade by employees in clear terms which should be communicated to employees. Employees need to know beforehand the nature of information that can be stored in employers' devices that they have the right to use and the ownership of the information after it has been stored.

Territorial

JA45/14

Monare v South African Tourism and Others (JA45/14) [2015] ZALAC 47; [2016] 2 BLLR 115 (LAC); (2016) 37 ILJ 394 (LAC) (11 November 2015)

Territorial jurisdiction of the CCMA – employee employed overseas dismissed for misconduct – employee referring unfair dismissal to CCMA – commissioner finding employee dismissal substantively unfair – Labour Court mero motu raising lack of jurisdiction of the CCMA and reviewing and setting aside award on that ground. Appeal – principle enunciated in Astral and Genrec Mei to the effect that the undertaking where employee employed extraterritorially has to be separated and divorced from the other company in the Republic restated. – Employer a creature of statute mandated to perform functions within or outside the boundaries of the Republic – Overseas office not separated and divorced from South African operation. LRA applicable – CCMA having jurisdiction – Labour Court judgment set aside.

case is moot / LRA or RGA jurisdiction

DA31/22

CCI South Africa (Pty) Ltd v African National Congress Youth League and Others (DA31/22) [2024] ZALAC 7; [2024] 5 BLLR 435 (LAC); (2024) 45 ILJ 969 (LAC) (6 March 2024)

"[17] It is settled law that Courts do not provide advisory opinions and that matters that are moot will ordinarily not be considered. In National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others,[[1999] ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39.] the Constitutional Court explained mootness as follows:

‘A case is moot and therefore not justiciable, if it no longer presents an existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law.’[8]"

"[18] There is, however, an exception to this rule. Where it would be in the interests of justice for the matter to be heard, a Court may exercise its discretion to hear a matter that is moot. The Constitutional Court explained the exception in Normandien Farms (Pty) Limited v South African Agency for Promotion of Petroleum Exportation and Exploitation (SOC) Limited and Others[9] (Normandien):

‘[46] It is clear from the factual circumstances that this matter is moot. However, this is not the end of the inquiry. The central question for consideration is: whether it is in the interests of justice to grant leave to appeal, notwithstanding the mootness. A consideration of this Court’s approach to mootness is necessary at this juncture…

[47] Mootness is when a matter “no longer presents an existing or live controversy”. The doctrine is based on the notion that judicial resources ought to be utilised efficiently and should not be dedicated to advisory opinions or abstract propositions of law, and that courts should avoid deciding matters that are “abstract, academic or hypothetical”.

[48] This Court has held that it is axiomatic that “mootness is not an absolute bar to the justiciability of an issue [and that this] Court may entertain an appeal, even if moot, where the interests of justice so require”. This Court “has discretionary power to entertain even admittedly moot issues”.

[49] Where there are two conflicting judgments by different Courts, especially where an appeal court’s outcome has binding implications for future matters, it weighs in favour of entertaining a moot matter.

[50] Moreover, this Court has proffered further factors that ought to be considered when determining whether it is in the interests of justice to hear a moot matter. These include:

(a) whether any order which it may make will have some practical effect either on the parties or on others;

(b) the nature and extent of the practical effect that any possible order might have;

(c) the importance of the issue;

(d) the complexity of the issue;

(e) the fullness or otherwise of the arguments advanced; and

(f) resolving the disputes between different courts.’[10] [Footnotes omitted]"

[25] Therefore, it is settled that if protest action falls within the ambit of the LRA, the Labour Courts have jurisdiction, while if it does not, the RGA applies and the High Courts would have jurisdiction. The Appellant would have been within its rights to seek an interdict whether the protest action was in contravention of the LRA or the RGA. What is important is the forum in which they sought that interdict. The essence of the cases considered in the preceding paragraphs is clear – if the dispute does not revolve around an employer, employees and their union, the LRA does not apply.

ODIMWA / MPRDA / MHSA / OHSA

J400/23

UASA Union v Anglo American Platinum Limited and Others (J400/23) [2024] ZALCJHB 199; (2024) 45 ILJ 1851 (LC) (10 May 2024)

"[92] Section 82 of MHSA provides that the Labour Court has exclusive jurisdiction to determine any dispute about the interpretation or application of any provision of this Act except where this Act provides otherwise. It was also confirmed in the Constitutional Court judgment of Baloyi v Public Protector & others[37] that the exclusive jurisdiction of the Labour Court is engaged where relevant legislation mandates it.

[93] On the other hand, OHSA does not have a similar empowering provision, and so acting ultra vires is an option. It is therefore conclusive that with this section in casu as well as sections 157 and 158 of the LRA, the Labour Court is clothed with jurisdiction to entertain the declaration in respect of MHSA and its regulations. However, it is imperative to state that the necessary jurisdictional requirements are lacking in respect of OHSA, as not conferred by the statute or Act of Parliament.

"

"[63] That the application satisfied the accepted normal requirements of declaration in respect to MHSA, and dismally fails on OHSA for lack of jurisdiction.

[64] That indeed MHSA provisions are more beneficial for the health and safety scope of the First and Second Respondent’s Retained Operations. However, the tools of interpretation of statutes including the purpose, explanatory notes and application of the Act, are clearly not supportive of the Applicant’s version. The conclusion, therefore I reach is that MHSA cannot be applicable to Retained Operations of the First and or Respondents, respectively."

territorial jurisdiction: regard to the location of the undertaking to which the appellant was engaged to provide services.

CA02/2023

Sorrell v Petroplan Sub-Saharan Africa (Pty) Ltd (CA02/2023) [2024] ZALAC 48 (4 October 2024)

"Independent Contractor Agreement (ICA) was concluded in South Africa between the appellant and the respondent, a company incorporated in South Africa. In terms of the agreement, the appellant was to perform the role of Logistics Superintendent for the respondent’s clients, Sasol Petroleum Temane Limitada, Sasol Petroleum Mozambique Limitada and Sasol United Kingdom, at a gas exploration project in Mozambique.

"

[7] Annexure 1 to the ICA provided that the place where services were to be performed was Mozambique. T

[9]...The Labour Court, with reference to Commercial Workers Union of SA v Tao Ying Metal Industries & others[2], dealt with the jurisdictional challenge finding that the principle of legality obligates a court to deal with a point of law, even if the parties were unaware of it, where a failure to do so could lead to a decision based on the incorrect application of the law. That finding is not the subject of appeal.

14] In Astral[13], this Court followed the decision of Genrec Mei in which, although the employer’s principal place of business was in Durban, it recruited the employees in Durban to perform work on an oil rig outside of South African territorial waters. The Court found that (a) where an undertaking is carried on at any given time is a question of fact; (b) although Genrec carried on an undertaking in Durban, it was also engaged in another undertaking conducted on the rig; (c) the vast majority of Genrec's employees working on the rig were not part of its regular workforce; (d) the respondent employees were recruited specially for employment to work on the rig; (e) the respondent employees' contracts of employment were of limited duration and were to come to an end on the completion of a particular contract and, thereafter, they would no longer be employees of Genrec. The Court found that the employees were not employed in Durban and that the 1956 Labour Relations Act did not, prior to its amendment in 1991, apply to the undertaking operated by the employer on the oil rig above the continental shelf outside South African territorial waters.

[15] In Astral[14], this Court relied on the same criteria to find that while the employer operated a business from South Africa, its subsidiary business in Malawi was an incorporated concern with a separate personality, and that the employee was resident in South Africa but had entered into a contract of employment requiring them to work outside South Africa. The LRA was therefore found not to apply to the appellant's operation in Malawi. In Robineau, this Court followed these decisions and in Antonio v Commission for Conciliation, Mediation and Arbitration and Others[15], the Labour Court found that the CCMA lacked jurisdiction in that the employee was employed in Angola for a legal entity separate and divorced from the third respondent and when an express term of the employee's employment contract was that Angolan law would apply.

unfair labour practice dispute: CCMA lacks jurisdiction because the dispute arose and was referred after the applicant had ceased to be an employee of the first respondent.

JR1515/22

Mkhize v Rand Water Soc Ltd and Others (JR1515/22) [2024] ZALCJHB 284 (2 August 2024)

"[10] In opposition, the first respondent contends that the applicant did not qualify for the 2020/2021 STI bonus, as paragraph 4.3 of the 2019 STI policy provides that:

“4.3 Qualifying date

Employees must be in service as at 30 June to qualify for the Incentive payment. Employees who exit the organization before 30 June are not eligible for an incentive bonus...”"

[19]...The applicant argued, in reliance on the Constitutional Court judgment in Pretorius and Another v Transport Pension Fund and Another[2], that everyone has the right to protection from unfair labour practices, and that unfair labour practices under the LRA may extend beyond the termination of employment.

"27] The LAC in Apollo Tyres referred to Velinov v University of Kwazulu- Natal and Others[7] as the basis for rejecting the argument that the CCMA did not have jurisdiction because the employee had resigned and that there was therefore no employment relationship. The court in Velinov held that:

“I do not accept that an employee whose employment has been terminated either by resignation or otherwise, but who continues to work out his or her notice period, does not enjoy the protection of the provisions of the LRA and particularly the unfair labour practice provisions contained in Chapter VIII. This would not only be contrary to section 186(2) which, in defining an “unfair labour practice”, does not distinguish between different categories of employees but it is also contrary to the definition of “employee” in section 213. It is also contrary to the principle that despite termination of employment, employees have rights in the wider “ongoing employment relationship” (see National Automobile & Allied Workers’ Union v Borg-Warner SA (Pty) Ltd 1994(3) SA 15 (A) at 25 E – I)”[8]"

[28] The facts in Apollo Tyres and in Velinov can be distinguished from the facts of this matter. In Velinov the employee had resigned, but was working her notice period, and in Apollo Tyres the employee resigned before referring her unfair labour practice dispute, but after all the facts giving rise to her dispute had taken place. In other words, her cause of action was already perfected by the time Hoosen resigned. In my view, the decisions in Apollo Tyres and Velinov are not authority for a proposition that the CCMA has jurisdiction to arbitrate an unfair labour practice dispute that only arises after termination of the employment relationship.

"[29] In Pretorius supra the Constitutional Court had to decide an exception. For that purpose the court had to accept that all the allegations in the particulars of claim were true. The employer had raised a number of exceptions, including against an unfair labour practice claim under section 23(1) of the Constitution of the Republic of South Africa, 1996, on the basis that the particulars of claim did not allege an employment relationship between the parties. The court considered that the employer had made a promise to the ex-employees in 1989 when they were still employees and held that:

“Labour law jurisprudence under the Labour Relations Act (LRA) recognises that unfair labour practices under the Act may extend beyond the termination of employment.” and at [48], “In short, the LRA tabulated the fair labour practice rights of only those enjoying the benefit of formal employment – but not otherwise. Though the facts of this case do not involve these considerations, they provide a compelling basis not to restrict the protection of section 23 to only those who have contracts of employment.”[9]"

[30]...In my understanding of the Pretorius judgment, the Constitutional Court did not hold that the CCMA automatically has jurisdiction to arbitrate an alleged unfair labour practice dispute under section 186(2)(a) of the LRA referred by an ex-employee if the unfairness complained of occurred after termination of the employment relationship, and specifically not if the ex-employee relies on his former employment contract.

31]...Magoshi v Gauteng Department of Education[(JR864/15) [2018] ZALCJHB 311; (2019) 40 ILJ 168 (LC) (2 October 2018)...“[12] To the extent that the decisions in Velinov, Malope and Pretorius confirm that on the less restrictive interpretation of the definition of ‘employees’, and the extension of the protections under section 23 of the Constitution, ex-employees are not barred from referring disputes, it is my view that this cannot be read to be open sesame for ex-employees to willy-nilly refer disputes. Implicit in these decisions and as can also be gleaned from the facts of those cases is that there is a qualification. Thus, the common trend in those cases was that the alleged wrong or unfairness complained of, took place during the course of employment and before termination of that employment.”[11] (My emphasis)

[33] I am in respectful agreement with the reasoning of Tlhotlhalemaje J in Magoshi. To my mind, the distinction lies between disputes on the one hand that wholly arose during the employment relationship, but which were only referred to the CCMA or a bargaining council after termination of that employment relationship, in which cases the CCMA would have jurisdiction; and disputes that only arose after termination of the formal employment relationship, i.e. the facts that gave rise to the alleged dispute did not exist at the time of termination, in which case the CCMA would not have jurisdiction under section 186(2)(a) of the LRA. It therefore seems to me that the crisp issue for this court to decide is whether the alleged dispute arose before or after the termination of the employment relationship.

[35]...The alleged dispute therefore arose after termination of the employment relationship.

[38]...Also, in my view the fact that the legislature in section 186(2)(c) of the LRA expressly defined an unfair labour practice with reference to a former employee, while no reference is made to former employees in section 186(2)(a), supports the conclusion that the legislature intended the rights under section 186(2)(a) to be limited to disputes arising during the existence of the employment relationship.

39] If, as in this case, the alleged dispute is on a former employee’s own version about the provisions of benefits, i.e. a dispute contemplated in section 186(2)(a) of the LRA, and the facts that gave rise to the dispute on the former employee’s own version arose after termination of the employment relationship, the dispute falls outside the scope and ambit of the definition of an unfair labour practice in section 186(2)(a) of the LRA. It follows that the CCMA does not have jurisdiction to arbitrate such an alleged dispute.

jurisdictional questions at conciliation

JR1877/2022

DDP Vervoer v Commission for Conciliation, Mediation and Arbitration and Others (JR1877/2022) [2024] ZALCJHB 438 (13 November 2024)

"[15] In Bombardier Transportation (Pty) Ltd v Mtiya NO & others[(2010) 31 ILJ 2065 (LC) at para 13] Van Niekerk J (as he was then) stated as follows:

“13] The first step in this approach is to recognize that many 'jurisdictional issues' raised by parties in conciliation proceedings are not jurisdictional questions in the true sense. …. The only true jurisdictional questions that are likely to arise at the conciliation phase are whether the referring party referred the dispute within the time-limit prescribed by s191(1)(b), whether the parties fall within the registered scope of a bargaining council that has jurisdiction over the parties to the dispute to the exclusion of the CCMA, and perhaps whether the dispute concerns an employment related matter at all. The distinction to be drawn is one between facts that the legislature has decided must necessarily exist for a tribunal to have the power to act (and without which the tribunal has no such power) and facts that the legislature has decided must be shown to exist by a party to proceedings before the tribunal, the existence of which may be determined by the tribunal in the course of exercising its statutory powers. The power given to the CCMA to determine the fairness of a dismissal includes the power to determine whether or not an applicant was an employee, and whether she was dismissed. These questions ordinarily fall to be determined in the course of the CCMA's adjudication functions. It follows that a conciliating commissioner is under no obligation to determine them at the conciliation phase.” (Own emphasis)"

[16] To summarise, the existence of a dismissal (in an unfair dismissal dispute) is a jurisdictional prerequisite. An administrative tribunal, such as the CCMA, cannot finally determine its own jurisdiction. Its findings on jurisdictional facts are provisional, and are made solely for the sake of convenience. The test on review, in relation to jurisdictional findings, is one of correctness, not reasonableness.

[18] The applicant has not provided any basis, compelling or otherwise, to overturn the finding of the commissioner that the applicant told the employees to “go home and starve” while it would source cheap labour. The applicant does not state that this evidence was not presented by the employees to the commissioner. On review, findings of this nature cannot be overturned simply because a party wishes to do so. Something more is required. The finding was based on oral testimony, presented under oath, directly to the commissioner. In my view, no proper basis has been laid to set aside the finding that the respondents were dismissed.

true nature of the dispute

CA8/23

SA Steelworks division of SA Metal Group (Pty) Ltd v Metal and Engineering Industries Bargaining Council and Others (CA8/23) [2024] ZALAC 65 (6 December 2024)

[36] The objective facts show quite clearly that the arbitrator was mindful of her duty to determine if she had jurisdiction to entertain the matter based on the true nature of the dispute between the parties. That is why the arbitrator repeatedly pointed out what her understanding of the true nature of the dispute was and on each occasion, AMCU did not object to her characterisation of the dispute. On the basis of the material before her and the evidence given during the arbitration proceedings, it is clear that the arbitrator had jurisdiction to determine the dispute that had been referred for arbitration which was that of misconduct characterised by repeated refusals to obey lawful instructions. This conduct constituted gross insubordination which justified the dismissals. It is unfortunate that it was AMCU, which should know better, that encouraged if not instigated this gross disobedience for reasons that are shrouded in obscurity.

Jurisdiction – Bargaining council – Labour Court finding that bargaining council had no jurisdiction to hear and determine fairness of dismissal – Union’s case was never that dismissed was for participation in unprotected strike – Arbitrator was mindful of her duty to determine if she had jurisdiction – Dispute referred for arbitration was misconduct for repeated refusals to obey lawful instructions – Conduct constituted gross insubordination which justified dismissals – Appeal upheld.

Labour court regarding a claim for lawfulness: [25] The first issue to be considered is that of jurisdiction and specifically, whether the Labour Court has jurisdiction to grant an order declaring an employer’s failure to comply with a collective agreement to be unlawful or unfair.

JA121/2022

MEC Health Limpopo Head of Department of Health v Makgoba Others (JA121/2022) [2025] ZALAC 33 (4 June 2025)

"[28]...The Labour Court has no general jurisdiction to make declarations of unlawfulness, except in so far as the LRA or other enabling statute extends that power. In Steenkamp and Others v Edcon Ltd (National Union of Metalworkers of SA intervening)[5] the appellant employees contended that their dismissals by the employer were unlawful and invalid because their employer had not complied with time periods established by s 189A of the LRA prior to issuing notices of termination of employment. The majority of the Constitutional Court rejected this contention on the basis that the Labour Court has no jurisdiction to determine the lawfulness of a dismissal. The court observed that there was no provision in the LRA in terms of which an order could be sought declaring a dismissal unlawful or invalid. The court said the following:

‘[106] Section 189A falls within chapter VIII of the LRA. That is the chapter that deals with unfair dismissals. Its heading is: ‘Unfair dismissal and unfair labour practice’. Under the heading appears an indication of which sections fall under the chapter. . ..

Conspicuous by its absence here is a para (c) to the effect that every employee has a right not to be dismissed unlawfully. If this right had been provided for in s 185 or anywhere else in the LRA, it would have enabled an employee who showed that she had been dismissed unlawfully to ask for an order declaring her dismissal invalid. Since a finding that a dismissal is unlawful would be foundational to a declaratory order that the dismissal is invalid, the absence of a provision in the LRA for the right not to be dismissed unlawfully is an indication that the LRA does not contemplate an invalid dismissal is a consequence of a dismissal effected in breach of a provision of the LRA…’."

[29] Thus, when an applicant alleges that a dismissal is unlawful (as opposed to unfair) the Labour Court has no jurisdiction to make any determination of unlawfulness.[6] The same principle holds good for other forms of employer conduct, including an alleged failure to comply with a collective agreement. The LRA provides mechanisms for the enforcement of collective agreements, but a declaration of unlawfulness by the Labour Court consequent on a failure to implement the agreement is not one of them. The Labour Court accordingly erred when it made a declaration to this effect.

"

[32] Section 77 (3) confers concurrent jurisdiction on the Labour Court, with the civil courts, to hear and determine any matter concerning a contract of employment. Section 77(3) is one of those provisions referred to in section 157 (1) of the LRA that confers jurisdiction of the Labour Court to adjudicate defined disputes- in this instance, a dispute about a contract of employment. What the section envisages is a claim brought in contract and pleaded as such."

Foreign Mission

JR1346/22

Naidoo v Khosa NO and Others (JR1346/22) [2025] ZALCJHB 131 (18 March 2025)

"[16] Here, it appears to be common cause that the Mission operates on a budget determined by DIRCO, it acts on instructions and directions of the Department, and it acted on the instructions from the Department when it abolished her post. Furthermore, when the applicant was engaged, it appears that she was appointed by the Mission, on delegated authority from DIRCO itself.

[17] In my view, as previously explained, there is no indication from the Administrative Code, or elsewhere, that the applicant chose to have her employment contract governed by local law."

21] Whether sovereign immunity arises in this context would largely be dependent on the local legislation, in the form of the Foreign Sovereign Immunities Act of 1976 (FSIA)[17] which establishes criteria as to whether a foreign state (or its political subdivisions, agencies, or instrumentalities) is immune from jurisdiction of the federal or state courts. The FSIA also establishes procedures for service of process, attachment of property and execution of judgment against a foreign state. Accordingly, even if the applicant were permitted to proceed with her dispute in the local courts, and she succeeded, the FSIA would make execution difficult.

Labour Court

plea was one of res judicata based on an earlier application launched by Mr Bouwer in which he had sought an order declaring his position redundant because of the abolition of his post; a similar contention had been dismissed in African Farms & Townships Ltd v Cape Town Municipality (1963 (2) SA 555 (A)). Held therefore, that the special plea of res judicata succeeded.

JS 211/05

Bouwer, D W v The City of Johannesburg & National Fund for Municipal Workers

Special plea of res judicata

[To be corrected later by Constitutional Court: Sidumo case] It was held that a CCMA Commissioner had no discretion in relation to sanction, but bore only the duty of determining whether the employers sanction was fair (as explained in Nampak Corrugated Wadeville v Khoza ((1999) 20 ILJ 578 (LAC)) and further expounded upon in County Fair Foods (Pty) Ltd v CCMA ((1999) 20 ILJ 1701 (LAC)).

SCA 598/05

Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA; Moropa T J N.O. & Sidumo Z

Review

Private Arbitration

The grounds of misconduct is a very narrow one. In the result, the court found, its powers of review are limited to the grounds specified in s 33 of the Arbitration Act, i.e. misconduct by the arbitrator in relation to his duties as arbitrator; the commission of a gross irregularity in the conduct of the arbitration; the arbitrator exceeding his powers; or the award having been improperly obtained. Only the first two grounds were relevant in the current matter.

C461/03

NUM v Grogan N.O. & Another

Review

Condonation; 10-day period for filing notice of opposition to be calculated from date on which employers attorneys informed of case number

JS294/05

Windybrow Centre for the Arts v SACCAWU obo Gina & Others

Procedure

77(1) of BCEA, not s 77(3)

the employee had not pleaded a claim based on contract of employment (under s 77(3) of the BCEA),

J104/09

Ephraim v Bull Brand Foods (Pty) Ltd

Pleadings

Statement of Case

No case number , no condonation

JS822/08

Phoffu and Others v Flexible Staffing Solutions

Pleadings

Statement of claim did not contain clear and concise statement of material facts or concise statement of legal issues arising from material facts; the possibility of the parties being able to address the defects in the statement of case at the pre-trial conference

JS622/07

Davidson, Margaret & Others v Wingprop (Pty) Ltd

Statement of case

Exceptions

Party not precluded from raising an exception to the other party’s claim or defence after conclusion of a pre-trial minute

JR1037/05

The Tourism, Hospitality and Sport Education and Training Authority v TMS-Shezi Industrial Services (Pty) Ltd

Procedure

Default judgment

Entitlement to notice; Labour Court is not entitled to debar a person defending a claim without notice or opportunity to show good cause

Rule 6 (7)

JA21/07

Eberspcher v National Union of Metal Workers of South Africa o.b.o & Others

Judgment

Dispute of facts

Motion proceedings

Bound by it

CA02/09

GE Security (Africa) v Airy and Others

Pre-trial minute

fresh submissions from the bar. Party had to state all its grounds for review in its founding papers.

JR 3528/09

Communication Workers Union and Others v SA Post Office Ltd and Others

Procedure, fresh submissions from the bar

Other caselaw cited: Betlane v Shelly Court CC 2011 (1) SA 388 at para [29]

JR 3528/09

Communication Workers Union and Others v SA Post Office Ltd and Others

Procedure, fresh submissions from the bar

non-compliance with s 74(2), s 77(3) of the BCEA, the contractual claim had not been properly pleaded.

JS383&7/2007

Van Metzinger and Another v Conservation Corporation t/a CC Africa

Pleadings

Procedure, Exception, standard of pleading required of a lay litigant, a balance needed to be struck between access to justice in favour of the lay litigant and fairness to the other party. the claim had to set out the essential nature of the applicants claim and the essential basis for the claim in broad terms.

JS128/12

Chauke v Machine Tool Market (Pty) Ltd

Pleadings

Heads of arguments not evidence

JR 1151/2008

Masubelele v Public Health and Social Development Sectoral Bargaining Council and Others

Evidence

JA 87/11

Sondorp and Another v Ekurhuleni Metropolitan Municipality

Procedure, Amendment of papers, Whethernew cause of action included, Amendment to change an alleged unfair dismissal to an alleged automatically unfair dismissal. There would be no prejudice to the municipality if the amendments were allowed.

Condonation

A full and detailed account of the causes of the delay and the effect thereof had to be furnished by an applicant. The more serious the consequences of non-compliance, the more difficult it would be for the party seeking condonation to have his or her application granted. The court held furthermore that there needed to be a differentiation in approach between condonation applications under labour law on the one hand and under civil law on the other in that it should generally be more difficult to obtain the indulgence of condonation. Requires strict judical scrutiny.

(DA 4/09) [2013] ZALAC 18

Shaikh v South African Post Office Ltd and Others

(incomplete)