LabourLawAI

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])

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

Procedure

Interim order: Rule against non-appealability of interim order not an inflexible rule.

(JA 52/12) [2013] ZALAC 27

Palace Group Investments (Pty) Ltd and Another v Mackie

Appeal

Labour Court Rules, the court adopted the procedure in Rule 47 of the Uniform Rules of the High Court. He had no current residence in South Africa of any permanent or settled nature and had both a South African and a British passport.

Such person a peregrinus and security for costs. Considerations of fairness and equity favoured the respondent. Pay R75 000.

C134/2013

Ganga v St Johns Parish

peregrinus and security for costs

(C 636/2012) [2013] ZALCCT 46

Sun International (Pty) Ltd t/a The Table Bay v CCMA and Others

Default judgment order in any event not appealable.

Procedure for setting down matters on the roll in Practice Directions to be followed.

(J 2845/13) [2014] ZALCCT 2

Tadyn Trading CC T/A Tadyn Consulting Services v Steiner and Others

Practice directions of 2013.

For late filing of statement of case. 2 years late. Union rep, good prospects in unprotected strike. The totality of the evidence did not in any manner suggest that the applicants had lost interest in pursuing their claim.

(JS 142/11) [2014] ZALCJHB 12

National Union of Metal Workers of South Africa v Parbar (Pty) Ltd

Condonation.

Section 144 of LRA. Good cause as a ground for the rescission of a default arbitration award. Commissioners should avoid a rigid approach in the adjudication of dispute.

(DA13/12) [2014] ZALAC 20

Lavangee v National Bargaining Council for the Chemical Industry and Others

Rescission.

General rule that court would not ordinarily receive more than three sets but court retained discretion to file further pleadings.

(C335/14) [2014] ZALCCT 31

ARB Electrical Wholesalers (Pty) Ltd v Texan Grove and Others

Pleadings. Number of sets of affidavits.

Statement of defence filed 2 weeks out of time. It was also taken into account that the applicant had always intended to defend the matter which was evident from the fact that it had attended to it at the CCMA when the dispute was initially lodged and where it had raised its preliminary issues. Furthermore, considering the issue of prejudice, it was the applicant that stood to suffer more prejudice.

(J 456/12) [2014] ZALCJHB 253

Liquor Runners Johannesburg CC v Smit

Condonation

Dispute erroneously referred to CCMA. Most of delay taken up by incorrect referral to CCMA. Unfair to punish employees for lack of diligence of union officials. Applicants having some prospects of success.

(JA54/13) [2014] ZALAC 40

SATAWU v South African Airways (Pty) Ltd and Others

Condonation

JR685/11

Compass Group SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR685/11) [2015] ZALCJHB 365; 2015 (6) SA 256 (LC) (27 August 2015)

Pankana CC t/a R and W Transport Components v Dreyer NO and Others (2012) 33 ILJ 692 (LC)

this court held that a party is not precluded from raising a jurisdictional point at the review stage. This must be so, since the issue of jurisdiction is closely related to that of the rule of law, and especially that element of it that demands that statutory institutions exercise only those powers that are conferred on them by enabling legislation.

Jurisdiction

J1876/15

Showgroupworld (Pty) Ltd v Johannes and Another (J1876/15) [2015] ZALCJHB 353 (12 October 2015)

Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA)

55]  That conflicting affidavits are not a suitable means for determining disputes of fact has been doctrine in this court for more than 80 years.  Yet motion proceedings are quicker and cheaper than trial proceedings and, in the interests of justice, courts have been at pains not to permit unvirtuous     respondents to shelter behind patently implausible affidavit versions or bald denials. More than 60 years ago, this Court determined that a Judge should not allow a respondent to raise ‘fictitious’ disputes of fact to delay the hearing of the matter or to deny the applicant its order.   There had to be ‘a bona fide dispute of fact on a material matter’. This means that an uncreditworthy denial, or a palpably implausible version, can be rejected out of hand, without recourse to oral evidence. In Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd, this Court extended the ambit of uncreditworthy denials. They now encompassed not merely those that fail to raise a real, genuine or bona fide dispute of fact but also allegations or denials that are so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers.

Motion proceedings: affidavits: raise a real, genuine or bona fide dispute of fact

JR2078/13

Pick ‘n Pay Retailers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2078/13) [2015] ZALCJHB 373 (26 October 2015)

[5]       There was an in limine challenge to the authority of the deponent to the founding affidavit to institute review proceedings on behalf of the applicant, but this objection falls away in light of the authority of the SCA judgment in [zRPz]Unlawful Occupiers, School Site v City of Johannesburg 2005 (4) SA 199 (SCA) at 206-207, paras [14]-[15]

pleadings, authority to dispose

JR698/2013; J271/2015

Edcon (Pty) Limited v Commission for Conciliation, Mediation and Arbitration and Others; In re: Thulare and Others v Edcon (Pty) Limited (JR698/2013; J271/2015) [2015] ZALCJHB 392; (2016) 37 ILJ 434 (LC) (13 November 2015)

Enforceability of provisions of Practice Manual restated. Effect of deemed archiving of review application what must be proven in order to reverse this. Good cause to be shown same principles as utilised in rescission applications

26] In Superb Meat Supplies CC v Maritz[2] the Labour Appeal Court adopted the same test used in the determination of applications for the rescission of default judgments when determining whether good cause has been shown. I am of the view that these wide-ranging principles are most certainly of application to a revival application such as the present. These principles are:26.1 the applicant must give a reasonable explanation of its default;26.2 the application must be made bona fide;26.3 the applicant must show that it has a bona fide defence to the respondents claim (and must set out sufficient facts which, if established at trial, would constitute a good defence).

Rules, Revival Application in terms of clause 16.2 of Practice Manual read with Rule 11 to reverse deemed archiving of review court file.

JS737/12

Serongwa v University of Johannesburg (JS737/12) [2016] ZALCJHB 82 (4 March 2016)

De Klerk v Absa Bank Ltd and Others

[10] The correct approach to an absolution application is conveniently set out by Harms JA in Gordon Lloyd Page & Associates v Rivera and Another2001 (1) SA 88 (SCA) at 92E – 93A :'[2] The test for absolution to be applied by a trial court at the end of a plaintiff’s case was formulated in Claude Neon Lights (SA) Ltd v Danie1976 (4) SA 40(A) at 409G – H in these terms:”. . . (W)hen absolution from the instance is sought at the close of plaintiff’s case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not   should, nor ought to) find for the plaintiff. (Gascoyne v Paul and Hunter1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson(2)1958 (4) SA 307 (T).) This implies that a plaintiff has to make out a prima facie case – in the sense that there is evidence relating to all the elements of the claim – to survive absolution because without such evidence no court could find for the  plaintiff (Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37G – 38A; Schmidt Bewysreg 4th ed at 91 – 2). As far as inferences from the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one (Schmidt at 93). The test has from time to time been formulated in different terms, especially it has been said that the court must consider whether there is ”evidence upon which a reasonable man might find for the plaintiff” (Gascoyne (loc cit)) – a test which had its origin in jury trials when the ”reasonable man” was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue. The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another ”reasonable” person or court. Having said this, absolution at the end of a plaintiff’s case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a court should order it in the interests of justice.”

Order: absolution

CA12/2015

Commercial Stevedoring Agricultural and Allied Workers Union v Robertson Abattoir (CA12/2015) [2016] ZALAC 44; [2016] 12 BLLR 1163 (LAC); (2017) 38 ILJ 121 (LAC) (22 August 2016)

Gordon Lloyd Page and Associates v Rivera and Another 2001 (1) SA 88 (SCA).

Claude Neon Lights (SA) Ltd v Daniel1976 (4) SA 403(A) at 409 G-H

(W)hen absolution from the instance is sought at the close of plaintiffs case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD at 173; Rutor Flour Mills (Pty) Ltd v Adelson (2)This implies that a plaintiff has to make out a prima facie case  in the sense that there is evidence relating to all the elements of the claim  to survive absolution because without such evidence no Court could find for the plaintiff (Marine & Trade Insurance Co Ltd v Van de Schyff(A) at 37 G  38 A; Schmidt Bewysreg 4th ed at 91-2).  The test has from time to time formulated in different terms, especially it has been said that the Court must consider whether there is evidence upon which a reasonable man might find for the plaintiff (Cascoyne (loc cit))  a test which had its origin in jury trials when the reasonable man was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue.  The Court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another reasonable person or Court.  Having said this, absolution at the end of a plaintiffs case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a Court should order it in the interest of justice.

Order: absolution

C285/14

Louw v South African Breweries (Pty) Ltd (C285/14) [2016] ZALCJHB 156 (19 April 2016)

Zondo and Others v St Martins School (2015) 36 ILJ 1386 (LC) at paras 10-11.

[10] The purpose of a pre-trial minute is to narrow down issues in dispute and to limit the scope of litigation. The consequences of signed pre-trial minutes are that the positions taken by the parties in their respective pleadings may be reconciled or compromised. The contention of the applicants that the signed pre-trial minutes contradict what is stated in the pleadings has no merit in as far as the validity and enforceability of the pre-trial minutes. In my view, it is the natural consequence of the pre-trial minutes that certain aspects of the pre-trial minutes may contradict certain aspects of the pleadings. For instance the employer could in its statement of case dispute the employment contract but then concede the existence of the employment contract in the pre-trial minutes.[11]      It is well established in our law that a pre-trial minute is no different to any other agreement concluded consequent to deliberations between the parties or those that they may have expressly or impliedly authorised to represent them. It follows therefore that a pre-trial minute constitutes a binding agreement between the parties. It is for that reason that the courts ordinarily hold the parties to the contents of their pre-trial minute. A party can only resile from a pre-trial minute on condition special circumstances exist to do so. [91]     To my mind the cases are consistent that whether or not a party will be allowed to raise or rely upon or introduce a cause of action or issue after a pre-trial agreement or pre-trial minute has been concluded in a case depends on whether it can be said that the party seeking to rely upon or to introduce or raise such cause of action or issue has abandoned that cause of action or has agreed either expressly or by implication (I would say necessary implication) not to pursue or rely upon such cause of action or point or has informed the Court or the other party that such point or such cause of action or issue will not be relied upon. If he has, he cannot be allowed. If he has not, he can be allowed. This is quite apart from those circumstances where a party would be able to resile from such an agreement on the same basis as he would be able in law to resile from any other contract.

NUMSA and Others v Driveline Technologies (Pty) Ltd (2000) 21 ILJ 143 (LAC) at para 17. See also Putco (Pty) Limited v Transport and Allied Workers Union of South Africa and Another (2015) 36 ILJ 2048 (LAC).

[17] The flaw in Mr Pretorius argument is that the pre-trial minute in the present case was, on a proper interpretation thereof, not a settlement of any issue between the parties. All it did was to more closely define the issues as they were then perceived to be. There is not the faintest suggestion that the appellants intended to abandon any claim for relief not already incorporated in their statement of case. The contention that by framing the issues as they did the parties intended to exclude every other issue from consideration is not supported by the wording of the pre-trial minute.

Pre-trial minutes

J1951/15

SACCAWU v Sun International (J1951/15) [2015] ZALCJHB 341 (6 October 2015)

Application to interdict the use of replacement labour after the end of a protected strike  and during the continuation of a protected lock-out; interpretation of section 74(1)(b) of the LRA; the judgment in Ntimane & others v Agrinet t/a Vetsak (Pty) Ltd (1999) 20 ILJ 896 (LC) not followed

Replacement labour not after strike ended and during lock-out

JA123/2014

Metsimaholo Local Municipality v South African Municipal Workers Union and Others (JA123/2014) [2016] ZALAC 19 (11 May 2016)

(no) rule nisi when it was clear that final relief ought to have been given. A rule nisi should only be granted as interim relief pending the institution of judicial proceedings or because the other side has not been given proper opportunity to challenge the allegations in the application for a rule nisi.

Rule nisi

JA44/2015

Motsomotso v Mogale City Local Municipality (JA44/2015) [2016] ZALAC 48; [2016] 11 BLLR 1146 (LAC); (2016) 37 ILJ 2803 (LAC) (21 July 2016)

The Bargaining council does not having jurisdiction to conciliate such dispute. Labour Court correct in holding that it lacks jurisdiction to adjudicate an unfair discrimination dispute which had not been referred for conciliation to the CCMA.

CCMA jurisdiction unfair discrimination dispute conciliation

JS363/12

Nord v Civicus World Alliance for Citizen Participation Inc (JS363/12) [2016] ZALCJHB 162 (21 April 2016)

Johnson and Johnson (Pty) Ltd v Chemical Workers Industrial Union (1999) 20 ILJ 89 (LAC) at 41.

Compensation

JS1002/09

MEWUSA obo Mahatola and Others v F and J Electrical (JS1002/09) [2016] ZALCJHB 167 (26 April 2016)

Colett v Commission for Conciliation, Mediation & Arbitration & others (2014) 35 ILJ 1948 (LAC)

[38] There are overwhelming precedents in this court, the Supreme Court of Appeal and the Constitutional Court for the proposition I that where there is a flagrant or gross failure to comply with the rules of court condonation may be refused without considering the prospects of success. In NUM v Council for Mineral Technology it was pointed out that in considering whether good cause has been shown the well-known approach.

Condonation of referral of dispute

Harris v MD Solar (Pty) Ltd t/a Suntank and Others (JS 710/2007) [2016] ZALCJHB 348 (8 September 2016)

JS 710/2007

Du Preez v LS Pressings CC and another (2013) 34 ILJ 634 (LC)

this Court has confirmed that joinder in terms of Rule 22 is in respect of proceedings before Court and that the purpose of a joinder is to allow participation in live proceedings. [48] In casu there are no live proceedings between the Applicant and the Third, Fourth or Fifth Respondents to which they could be joined. There are no live proceedings in which any of the Respondents can participate and be afforded the opportunity to be heard. [49] The Applicant has a Court order that was issued after trial proceedings were concluded. There is a final judgment and that per se precludes a joinder.

Joinder

JR2319/2015

SAPS vs MARINDA ERASMUS and another

Imprefed (Pty) Ltd v National Transport Commission [1993] 2 All SA 179 (A) at 188.

At the outset it need hardly be stressed that: The whole purpose of pleadings is to bring clearly to the notice of the Court and the parties to an action the issues upon which reliance is to be placed.(Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) 1082.)This fundamental principle is similarly stressed in Odgers Principles of Pleading and Practice in Civil Actions in the High Court of Justice (22nd ed) 113:The object of pleading is to ascertain definitely what is the question at issue between the parties; and this object can only be attained when each party states his case with precision. The Court further held:[29]. Particularly in this context, it goes without saying that a pleading ought not to be positively misleading by referring explicitly to certain clauses of the contract as identifying the cause of action when another is intended or will at some later stage-in this case at the last possible moment-be relied upon. As it was put by Milne J in Kali v Incorporated General Insurances Ltd 1976 (2) SA 179 (D) at 182A:. . .a pleader cannot be allowed to direct the attention of the other party to one issue and then, at the trial, attempt to canvass another.

Knox DArcy AG and another v Land and Agricultural Development Bank of South Africa [2013] 3 All SA 404 (SCA) at para 35.  See also Naidoo v Minister of Police and Others [2015] 4 All SA 609 (SCA) at para 30; Minister of Safety and Security v Slabbert [2010] 2 All SA 474 (SCA) at para 11.

It is trite that litigants must plead material facts relied upon as a basis for the relief sought and define the issues in their pleadings to enable the parties to the action to know what case they have to meet. And a party may not plead one issue and then at the trial,  attempt to canvass another which was not put in issue and fully investigated.

Pleadings:

JR827/15

Nwaogu v Motor Bargaining Council Dispute Resolution Centre and Others (JR827/15) [2016] ZALCJHB 368 (27 September 2016)

[13] In this instance, though the parties are the same and some of the evidence led in the arbitration and the Labour Court would undoubtedly have overlapped, the cause of action before the arbitrator was an alleged unfair dismissal for misconduct and the cause of action before the Labour Court was a somewhat incoherent claim of discrimination based on perceptions of unfair treatment by the employer up to and including the time of his dismissal but which did not include the dismissal itself in the unfair treatment. Secondly, though both claims were claims for relief in the form of compensation, the basis on which any compensation might be paid relate to the different causes of action and separate statutory provisions providing such relief.

Caesarstone Sdot-Yam Ltd v World of Marble and Granite 2000 CC and Others 2013 (6) SA 499 (SCA), at 505.

[12]Voetsaid that there are three requirements for a successful reliance on a plea of lis pendens. They are that the litigation is between the same parties; that the cause of action is the same; and that the same relief is sought in both. In Hassan and Another v Berrange NO Zulman JA expressed these requirements in the following terms: ‘Fundamental to the plea of lis alibi pendens is the requirement that the same plaintiff has instituted action against the same defendant for the same thing arising out of the same cause.’

lis pendens and Jurisdiction: two cases referred to Labour Court and CCMA respectively

JR492/201

Moabelo v Gold Fields Group Services (Pty) Ltd (JR492/2015) [2016] ZALCJHB 444 (18 November 2016)

[10]However, Rule 11(3) provides that ifa situation arises in any proceedings before the Labour Court, which is not provided for in the Labour Court Rules, the court may adopt any procedure that it deems appropriate in the circumstances. The provisions of Rule 11(3) have in the past been utilized by the Labour Court to in essence incorporate and adopt selected provisions of the Uniform Rules into the Labour Court dispute resolution proceedings.

L’Oreal SA (Pty) Ltd v Kilpatrick and Another (2015) 36 ILJ 2617 (LC) at para 23.

From the outset, I must state that the High Court Rules do not apply to or regulate proceedings in the Labour Court. The Labour Court has its own rules. But, from time to time, it has been found that there is a lacuna in the Labour Court Rules relating to certain proceedings. What the Labour Court has equally done in such cases is use its powers in terms of rule 11(3) of its own rules and import or adopt specific High Court Rules into its own proceedings.

Labour Court rules and High Court rules

JR492/201

Moabelo v Gold Fields Group Services (Pty) Ltd (JR492/2015) [2016] ZALCJHB 444 (18 November 2016)

[18]Accordingly, and in my view, provision must be made for a replication to the answering statement in the context of Labour Court dispute resolution proceedings, if circumstances require it. This replication is not intended to answer to the facts as pleaded in the answering statement, in a manner such as a replying affidavit in motion proceedings would do. It is only intended to provide a legal defence, so to speak, to a case as raised or pleaded by the respondent party in the answering statement. This would most often arise in the case of estoppel[14], but as referred to above, there can be other instances as well.

replication

JR2640/2013

SAMWU obo Nobhuzana v South African Local Government and Others (JR2640/2013) [2016] ZALCJHB 517 (15 December 2016)

[7] Whilst taking cognizance of what the court stated in Raloin regard to striking the matter from the roll, clause 2.2 of the Practice Manual also provides that It must be emphasised that no judge is bound by practice directives; this manual is not intended to limit judicial discretion.

practice directives

(JS01/12

National Union of Mineworkers and Others v Aluminium and Shades (Pty) Ltd t/a Procon Interios (JS01/12) [2017] ZALCJHB 18 (18 January 2017)

Dr Harms (Civil Procedure: Superior Courts) LAWSA, 3rdEd, vol 4, LexisNexis, 2012 at para 94.

A cornerstone of our legal system is that a person is entitled to notice of the institution of proceedings against him or her. Legal proceedings cannot, in general, commence unless the party against whom relief is claimed (and any other party with an interest in the matter) is notified of the initiating process by means of service. When proceedings have begun without any notice, the subsequent proceedings are null and void and may be disregarded or set aside at the option of the other party. However, if the initiating document such as the summons was served incorrectly, the subsequent proceedings are not void, but may be voided: the summons may be set aside as an irregular step although the court may condone the irregularity. (Footnotes omitted and emphasis added)

proof of service

JS287/2012

Dorey v TSB Sugar RSA Ltd (JS287/2012) [2017] ZALCJHB 168 (3 May 2017)

[32] Mr Mooki for the respondent argued that the case as pleaded by the applicant behooved her to show that there are improprieties. The applicant cannot rely on tends to show. Mr Van Der Westhuizen for the applicant argued that tends to show was pleaded.[9] It is trite that only facts need to be pleaded and not conclusions of law.[10] Accordingly, to my mind tends to show is a legal conclusion to be arrived at by the Court upon reflection on certain facts. In terms of section 1 of the Protected Disclosures Act (PDA) 26 of 2000 a disclosure is defined with those two positions-show or tends to show. Accordingly, I come to the conclusion that the facts pleaded allow me to come to a legal conclusion required in this case.

Jowell v Bramwell Jones 1998 (1) SA 836 (W) and First Rand Bank Limited v Jooste [2015] ZAGPJHC 11 (3 February 2015).

pleadings

JS45/13

Noriega v Sony South Africa (Pty) Ltd (JS45/13) [2017] ZALCJHB 151 (8 May 2017)

[15]The jurisprudence of this Court is clear that where a notice of set down does, genuinely, not come to a party’s attention, any judgment by default would be granted erroneously.

Gay Transport (Pty) Ltd v SA Transport & Allied Workers Union & others (2011) 32 ILJ 1917 (LC) and Roux v City of Cape Town [2004] 8 BLLR 836 (LC)

rescission

JS230/15

Du Plessis v Amic Trading (Pty) Ltd t/a Toy’s R Us (JS230/15) [2017] ZALCJHB 196 (23 May 2017)

test for absolution from the instance relating to a dismissal

Commercial Stevedoring Agricultural and Allied Workers Union (CSAAWU) obo Dube and others v Robertson Abattoir [2016] 12 BLLR 1163 (LAC) at para 16-17.

[16] It is important to bear in mind that this appeal is based on a grant of an order of absolution from the instance. Accordingly, the test which must be determined is whether firstly there was a dismissal and secondly whether the appellant has provided evidence which raises a credible possibility that the dismissal in question fell within the scope of section 187(1)(c) of the LRA. This approach has been confirmed by this Court in Kroukamp v SA Airlink (Pty) Ltd [2005] 12 BLLR 1172 (LAC) at par. 28In my view s187 imposes an evidential burden upon the employees to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove to the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstance envisaged in s187 for constituting an automatically unfair dismissal.

Gordon Lloyd Page and Associates v Rivera and Another 2001 (1) SA 88 (SCA).

The test for absolution to be applied by a trial court at the end of a plaintiffs case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409GH in these terms:. . . [W]hen absolution from the instance is sought at the close of plaintiffs case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307(T).This implies that a plaintiff has to make out a prima facie case  in the sense that there is evidence relating to all the elements of the claim  to survive absolution because without such evidence no Court could find for the plaintiff (Marine & Trade Insurance Co Ltd v Van de Schyff 1972 (1) SA 26 (A) at 37G38A; Schmidt Bewysreg 4th ed at 91-2). The test has from time to time formulated in different terms, especially it has been said that the Court must consider whether there is evidence upon which a reasonable man might find for the plaintiff (Cascoyne (loc cit))  a test which had its origin in jury trials when the reasonable man was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue. The Court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another reasonable person or Court. Having said this, absolution at the end of a plaintiffs case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a Court should order it in the interest of justice.[5]

absolution from the instance

JR297/12

Tlali v Commission for Conciliation, Mediation and Arbitration and Others (JR297/12) [2017] ZALCJHB 192 (24 May 2017)

Superb Meat Supplies CC v Maritz (2004) 25 ILJ 96 (LAC) at para 15 and Lumka and Associates v Maqubela (2004) 25 ILJ 2326 (LAC) at para 26.

Lodhi 2 Properties Investments CC and Another v Bondev Developments 2007 (6) SA 87 (SCA) at para 24.

Where notice of proceedings to a party is required and judgment is granted against such party in his absence without notice of the proceedings having given to him such judgment is granted erroneously. That is so not only if the absence of proper notice appears from the record of the proceedings as it exists when judgment is granted but also if, contrary to what appears from such record, proper notice of the proceedings has in fact not been given. That would be the case if the sheriffs return of service wrongly indicates that the relevant document has been served as required by the Rules whereas there has for some or other reason not been service of the document. In such a case, the party in whose favour the judgment is given is not entitled to judgment because of an error in the proceedings. If, in these circumstances, judgment is granted in the absence of the party concerned the judgment is granted erroneously.

Starfish Greathearts Foundation v Lekalakala [2015] ZALCJHB 381; (2016) 37 ILJ 501 (LC) at para 25.

Similarly, it would be impossible, given that it is the registrar who serves the notice of set down by fax, for a party who has attracted the onus to prove on a balance of probability that another party, who denies same, has in fact received a particular fax. The party seeking to prove such receipt would have to obtain any evidence that it could from the registrar which would inevitably prove a hindrance both to the registrar and to that party.

rescission

J2455/16

Hlehlethe v CEPWAWU (J2455/16) [2017] ZALCJHB 215 (5 June 2017)

Jansen van Rensburg NO and Others v Steenkamp and Another  Janse van Rensburg and Others v Myburgh and Others 2009 (1) All SA 539 (SCA) at paragraph 27

The scope of the once and for all rule was said in the National Sorghum case Supra at 241 D to E to require that all claims generated by the same cause of action be instituted in one action.

Fidelity Guards Holdings Pty Ltd v Professional  Transport Workers Union and Others (1999) 20 ILJ 82 (LAC) at paragraph 7

The cause of action is the same whenever the same matter is in issue: Wolfaardt v Colonial Government 16 SC 250 at 253. The same issue must have been adjudicated upon. An issue is a matter of fact or question of law in dispute between two or more parties which a court is called upon by the parties to determine and pronounce upon in its judgment, and is relevant to the relief sought: Horowitz v Brock & others 1988 (2) SA 160 (A) at 179F-H. .  The reason for the rule is to prevent difficulties arising from discordant or mutually contradictory decisions due to the same action being aired more than once in different judicial proceedings: Voet 44.2.1. The object of the rule is that of public policy which requires that there should be an end to litigation and that a litigant should not be harassed twice upon the same cause

once and for all rule

JS297/14

Mavundlela v Matlosana City Council (JS297/14) [2017] ZALCJHB 224 (7 June 2017)

Randwater v Stoop & Another [2012] ZALAC 32; (2013) 34 ILJ 576 (LAC); [2013] 2 BLLR 162 (LAC).

1 The word ‘concurrent’ in s 77(3) places the Labour Court in exactly the same position as the High Court with the same powers and authority in relation to matters concerning a contract of employment.2 The last part of s 77(3) provides the Labour Court with jurisdiction irrespective of whether any basic condition of employment constitutes a term of the employment contract. This demonstrates that the Labour Court has jurisdiction over any claim as long as it involves a contract of employment3 The words ‘concerning a contract of employment’ mean about or in connection with an employment contract. The pleaded claim clearly falls within this categorization.4 The words ‘any matter’ in s 77(3) are broad and the literal interpretation does not limit the claims, in relation to a contract of employment, to a specific category. Damages, both liquid and illiquid, are included.[3]

section 77(3) BCEA

J779/2017

Rustenburg Local Municipality v South African Local Government Bargaining Council and Others (J779/2017) [2017] ZALCJHB 261; (2017) 38 ILJ 2596 (LC); [2017] 11 BLLR 1161 (LC) (30 June 2017)

Court has discretion where it comes to furnishing security; no employer exempt from providing security in order to suspend award pending a review  Court must always exercise a discretion in this regard; Suspension of arbitration award; proper case made out for suspension; no case made out for waiving of security; award suspended provided that security is set

Moqhaka Local Municipality v Motloung and Others (2017) 38 ILJ 649 (LC) at para 25.

On a plain reading of the phrase unless the applicant furnishes security to the satisfaction of the Court in s 145(7), the reference to the Court is obviously a reference to the Labour Court in s 145 (8) which is entrusted with deciding whether or not the amount of security stipulated in s 145 (8)(a) and (b) needs to be provided. Moreover, the form which the security provided under either of those subsections must take is not prescribed by the LRA. Although the furnishing of a bond of security may be the typical and most convenient form of security, other forms of security might also be considered satisfactory, such as depositing funds with the sheriff.

[18] Accordingly, security can be provided in the form of a payment into Court or the Sheriffs trust account. Further, the issuing of a security bond by a legal practitioner or a registered banking institution would also qualify as the requisite providing of security.

security: Sections 145(7) and (8)

JR483/11

Cullinan Diamond Mine (Pty) Ltd v Pienaar NO and Others (JR483/11) [2017] ZALCJHB 256 (4 July 2017)

Lis alibi pendens can only be raised if there is pending litigation between the same parties or their privies based on the same cause of action before the same court or another court with equal competence.

lis alibi pendens

J653/15

St Michaels Spar and Others v SACCAWU obo Nyapholi (J653/15) [2017] ZALCJHB 263 (6 July 2017)

22] In the matter of Bakoven Ltd v GJ Homes (Pty) (Ltd),[13] it was held that rescission application Rule 42(1)(a)it seems to me, is a procedural step designed to correct expeditiously an obviously wrong judgment or order. In my view, a period of more than four months cannot be said to be a reasonable time, therefore, a reasonable time, based on the facts and circumstances of this matter,

Gcaba v Minister for Safety and Security and Others2010 (1) SA 238(CC);2010 (1) BCLR 35(CC); (2010) 31 ILJ 296 (CC);[2009] 12 BLLR 1145(CC) at para 1.

One of the purposes of law is to regulate and guide relations in a society. One of the ways it does so is by providing remedies and facilitating access to courts and other fora for the settlement of disputes. As supreme law, the Constitution protects basic rights. These include the rights to fair labour practices and to just administrative action. Legislation based on the Constitution is supposed to concretise and enhance the protection of these rights, amongst others, by providing for the speedy resolution of disputes in the workplace and by regulating administrative conduct to ensure fairness. (Emphasis added.)

Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (CCT 228/14); [2015] ZACC 557 at para 1.

Time periods in the context of labour disputes are generally essential to bring about timely resolution of the disputes. The dispute resolution dispensation of the old Labour Relations Act was uncertain, costly, inefficient and ineffective.  The new Labour Relations Act (LRA) introduced a new approach to the adjudication of labour disputes. This alternative process was intended to bring about the expeditious resolution of labour disputes which, by their nature, require speedy resolution. Any delay in the resolution of labour disputes undermines the primary object of the LRA. It is detrimental not only to the workers who may be without a source of income pending the resolution of the dispute but, ultimately, also to an employer who may have to reinstate workers after many years.  (Emphasis added and footnotes omitted.)

recission: time periods

JA/29/16

Kenco Engineering CC v National Union of MetalWorkers of South Africa (NUMSA) obo Members (JA/29/16) [2017] ZALCJHB 274 (1 August 2017)

Kemp t/a Centralmed v Rawlins(2009) 30 ILJ 2677 (LAC)at 2688-2690 paras 21-23.

[29] On the second ground of appeal. A challenge to an order of the Labour Court awarding or refusing an employee compensation in terms of s193(1)(c)of the Act is not limited to the grounds applicable where an order is made pursuant to the exercise of a true discretion or narrow discretion. It is only in regard to the determination of the amount of compensation that the Labour Court or arbitrator exercises a true or narrow discretion. It is in regard to that decision that the powers of this Court is circumscribed and can only be exercised on the limited grounds. These grounds include the following: That the Labour Court or arbitrator (a)did not exercise a judicial discretion; or (b) exercised its discretion capriciously; or (c)exercised its discretion upon a wrong principle; or (d)has not brought its unbiased judgment to bear on the question; or (e)has not acted for substantial reason; or(f)has misdirected itself on the facts; or (g)reached a decision in which the result could not reasonably have been made by a court properly directing itself to all the relevant facts and principles. In the absence of one of those grounds this court has no power to interfere with the amount of compensation determined by the Labour Court.

compensation

J1932/17

Nkosi and Others v Nkabinde and Others; In re: Nkabinde and Others v Mhlongo and Others (J1932/17) [2017] ZALCJHB 369 (10 October 2017)

South African Riding for the Disabled Association v Regional Land Claims Commissioner and Others 2017 (8) BCLR 1053 (CC)

It is now settled that an applicant for intervention must meet the direct and substantial interest test in order to succeed.  What constitutes a direct and substantial interest is the legal interest in the subject-matter of the case which could be prejudicially affected by the order of the Court.  This means that the applicant must show that it has a right adversely affected or likely to be affected by the order sought. But the applicant does not have to satisfy the court at the stage of intervention that it will succeed.  It is sufficient for such applicant to make allegations which, if proved, would entitle it to relief. If the applicant shows that it has some right which is affected by the order issued, permission to intervene must be granted.  For it is a basic principle of our law that no order should be granted against a party without affording such party a pre decision hearing.  This is so fundamental that an order is generally taken to be binding only on parties to the litigation. Once the applicant for intervention shows a direct and substantial interest in the subject-matter of the case, the court ought to grant leave to intervene.  In Greyvenouw CC this principle was formulated in these terms: In addition, when, as in this matter, the applicants base their claim to intervene on a direct and substantial interest in the subject-matter of the dispute, the Court has no discretion: it must allow them to intervene because it should not proceed in the absence of parties having such legally recognised interests.[6]  [Authorities and citations omitted]

[11] Other considerations in such applications include that; a)            A party seeking to intervene must demonstrate that he/she is specifically concerned in the issue; that the matter is of common interest to him/her and the party he/she desires to join; and that the issues are the same;[7]b)            A party must establish that he or she has standing, whether as an applicant or plaintiff or as a respondent or defendant, the test being whether the party 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.[8]c)            Any person may at any stage of the proceedings, seek leave to intervene, provided it can be demonstrated that such a person has a direct and substantial interest in the proceedings. d)            The application is not frivolous and was made seriously.

applications to intervene in proceedings

JS1145/12

Tshivhase-Phendla v University of Venda (JS1145/12) [2017] ZALCJHB 491 (12 October 2017)

[65] In this part of the judgment I am acting as an arbitrator. The parties have consented and I believe that it is expedient to consider the claim. A dismissal is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to amongst others the conduct of the employee.[66] An arbitrator dealing with a dispute of misconduct must establish whether the employee was indeed guilty of the misconduct that led to his or her dismissal. In addition, he or she must establish whether dismissal was an appropriate sanction for the misconduct. The charge that led to the dismissal of the applicant has been set out in the applicants heads of argument. It can be summarized to be improper meeting with the potential service provider, accepting gratification, breach of policies and non-disclosures.

[73] Turning to the question of the appropriateness of the sanction of dismissal, I conclude that the misconduct with which the applicant was found guilty and dismissed, is a serious one. The principle that the punishment must fit the crime finds application here. It is clear that the employment relationship has broken down. Professor Mbati testified that corruption is a big problem within the institution and would not have a person such as the applicant in employment. Further he testified that it would be impossible to continue employment with a person who makes unsupported allegations of sexual harassment.

acting as arbitrator

J2722/17

Mathole and Others v Governing Body of the CCMA and Others (J2722/17) [2017] ZALCJHB 429; (2018) 39 ILJ 1079 (LC) (20 November 2017)

United Watch and Diamond (Pty) Ltd v Disa Hotels Ltd 1972 (4) SA 409 (C) at 415A

“to establish that one has locus standi in judicio, one must show,… that he has an interest in the subject matter of the judgment or order sufficiently direct or substantial…”

[8] The prevailing theme in both section 161 (2) of LRA and Rule 25 (1) (d) of the CCMA Rules for the purposes of this case is that an individual professing to be a union official/employer representative in proceedings before the Commission or the Court, is specifically prohibited from charging a fee or receiving a financial benefit in consideration for agreeing to represent that party, unless permitted to do so by the Commission or an order by the Court.[9] The Supreme Court of Appeal in Commission for Conciliation, Mediation and Arbitration and Others v Law Society of the Northern Provinces (Incorporated as the Law Society of Transvaal)[8] has pronounced on the constitutional validity of the Rule 25 (1) (c) of the CCMA Rules, and I will not burden this judgment with the conclusions reached therein as they are not pertinent to this case.[10] As to under what circumstances a Court, or the CCMA can permit any person other than a legal practitioner to represent a party in proceedings for a fee is not clear from the Rules. One can only assume that the factors to be considered in that regard for the purposes of CCMA proceedings, would include those in Rule 25 (1) (c). For the purposes of court proceedings, one can only assume that factors to be considered would include whether it is in the public interest to grant permission, or whether it would be in the interests of justice to permit such individuals to represent others at proceedings for a fee.

locus standi in judicio

JR2738/13

Transport and Allied Workers’ Union of South Africa obo Maphosa v South African Road Passenger Bargaining Council and Others (JR2738/13) [2017] ZALCJHB 440 (21 November 2017)

[7] To the extent that the replying affidavits did contain new matter the Court has a discretion to allow such material to remain in the replying affidavit, giving the Respondent an opportunity to reply thereto should special or exceptional circumstances exist – Shephard v Tuckers Land and Development Corporation F (Pty) Ltd (1) SA 173 (T) at 177G-178A.

Fick v Walter

the circumstances in which the court will allow an applicant to include new material in the replying affidavit:

Nedbank Ltd v Hoare 1988 (4) SA 541 (E ) at 543 E

I do not read this Rule as implying that a deponent to an affidavit can in no way depart from the terms thereof. If this were so, a party could not, in a supplementary affidavit, vary or explain the terms of a founding affidavit. This is a matter of frequent occurrence, more particularly where it is not sought to withdraw or vary factual allegations, but only to amplify or amend legal conclusions or submissions, which are frequently incorporated in an affidavit, in order to clarify a cause of action.

Pat Hinde & Sons Motors (Brakpan) (Pty) Ltd v Carrim and Others 1976 (4) SA 88 (T) at 63 A-64 A

the Court pointed out that, although the principle is that the Court will not allow an Applicant to supplement an application in the replying affidavit in order to cure a defect in the founding affidavit, it has a discretion to either strike out the new matter or allow the respondent to file a second set of answering affidavits to deal with the new matter.

Schreuder v Viljoen  1965 (2) SA 88 (O).

A Court should not permit an Applicant in motion proceedings, where it is not certain on the application as a whole that the Respondent has no defence, to supplement his application in his replying affidavit in order to cure the defect where the application does not disclose a cause of action and the Respondent has taken an objection in limine against it.

Replying affidavit

JS611/2016

Association on Mineworkers and Construction Union (AMCU) v Chamber of Mines South Africa and Others [2017] ZALCJHB 462 (5 December 2017)

[11] Exceptions may be raised in two forms, namely, where a party is alleging that the pleading lacks the averment to sustain the cause of action, and/or where a party alleges that the pleading is vague and embarrassing…[16] Summing up, the person who raises an exception has a burden to convince the court that, he is not raising an over-technical point which would prevent the substantial merits of the case from being decided by a court, it is not possible that evidence and/or any step that would be taken such as pre-trial minutes would not correct the alleged defect. It is my view, that such court in deciding on this aspect has to take into account inter alia (i) the manner in which the pleadings have been crafted, (ii)the onus of proof,(iii) burden to adduce evidence, (iv) the manner in which such point has been raised, (v)the relief sought, and (vi)the type of exception (either lacks averments which are necessary to sustain an action or vague and embarrassing) that has been raised by such party and other factors. I deal with this below.

Lyon v South African Railways and Harbours 1930 CPD 276. See also McKenzie Appellant v Farmers Co-Operative Meat Industries Ltd Respondent 1922 AD 16, where it was held that: What is the real meaning of the phrase cause of action arising in the city’? It has been defined in Cook v Gill (L.R., 8 CP 107) to be this: every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.

But a much narrower meaning has also been given to the expression “cause of action. “After considerable difference of opinion, it was decided in England that the expression “cause of action” in the Common Law Procedure Act meant “that particular act on the part of the defendant which gives the plaintiff his cause of complain(Own emphasis)

[20] In contrast with what the SCA said in Childrens Resource Centre Trusts  matter, that UASAs exception of lack of cause of action is based on what the law should apply and not on the factual matrix thereof. Therefore, the question of whether AMCU has brought its claim in respect of the correct section of the EEA or not cannot succeed , as the test in exception is about facts (that particular act on the part of the [respondent] which gives the [applicant] his cause of complain) and not which law to apply, as in the pleadings. What is required is that a litigant should plead facts, not law and such facts will have to support a principle.

Exception

JS611/2016

Association on Mineworkers and Construction Union (AMCU) v Chamber of Mines South Africa and Others [2017] ZALCJHB 462 (5 December 2017)

Socratous v Grindstone Investments 134 (Pty) Ltd 2011 (6) SA 325 (SCA).

[13] It is necessary to consider the underlying principle of the defence of lis alibi pendens. In Nestle (South Africa) (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA) para 16 this court said the following: The defence of lis alibi pendens shares features in common with the defence of res judicata because they have a common underlying principle, which is that there should be finality in litigation. Once a suit has been commenced before a tribunal that is competent to adjudicate upon it, the suit must generally be brought to its conclusion before that tribunal and should not be replicated (lis alibi pendens). By the same token the suit will not be permitted to revive once it has been brought to its proper conclusion (res judicata). The same suit between the same parties, should be brought once and finally. This principle has been stated and repeated by the authorities over a period of more than a century.1.

lis alibi pendens and res judicata

J2720/17

Mikeva Cash and Carry (Pty) Ltd and Another v Marx (J2720/17) [2017] ZALCJHB 463 (12 December 2017)

[25] An issue which arose in this matter was whether this application should have been launched at the Johannesburg seat of the Labour Court, when both the first applicant and the respondent were located in Mossel Bay, which is roughly equidistant from the Port Elizabeth and Cape Town Labour Courts both of which are about one third of the distance from Mossel Bay to Johannesburg. I was given the impression before the matter was heard that there had been agreement the matter could be heard in Johannesburg, but it became clear I had been misinformed.[26] It is true that the Labour Court is a national court with national jurisdiction, but in my view it is an abuse of process to put respondents to the inconvenience of having to defend a matter in the seat of the Labour Court that is furthest away from where the respondent is situated and where the dispute arose. Had I not been under the wrong impression prior to the matter been heard, I would have directed that it should be transferred either to the Labour Court in Port Elizabeth or Cape Town. Since the matter did proceed in Johannesburg, it is at least appropriate that the respondent should not have to pay any travel and accommodation costs incurred as a result of the application being set down in Johannesburg.

jurisdiction

JA81/16

KBC Health and Safety (Pty) Ltd v Solidarity obo Smith (JA81/16) [2017] ZALAC 53 (19 September 2017)

Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) at para 11.

[11].The authorities emphasize that it is unwise to give a precise meaning to the term ‘good cause’. As Smalberger J put it in HDS Construction (Pty) Ltd v Wait [1979 (2) SA 298 (E)]:’When dealing with words such as ”good cause” and ”sufficient cause” in other Rules and enactments the Appellate Division has refrained from attempting an exhaustive definition of their meaning in order not to abridge or fetter in any way the wide discretion implied by these words (Cairns’ Executors v Gaarn 1912 AD 181 at 186; Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 352 – 3). The Court’s discretion must be exercised after a proper consideration of all the relevant circumstances. ‘With that as the underlying approach the Courts generally expect an applicant to show good cause (a) by giving a reasonable explanation of his default; (b) by showing that his application is made bona fide; and (c) by showing that he has a bona fide defence to the plaintiff’s claim which prima facie has some prospect of success (Grant v Plumbers (Pty) Ltd [ 1949 (2) SA 470 (O)], HDS Construction (Pty) Ltd v Wait supra, Chetty v Law Society, Transvaal [1985 (2) SA 756 (A)]).

MTN South Africa v Van Jaarsveld and Others (2002) 23 ILJ 1597 (LC) at 1602 para 13

where correspondence had been transmitted by facsimile but had not reached the official responsible

[12] It is plain from anyone who attends the hearings of the Labour Court, that the enormous growth in the number of applications for rescission in circumstances where the respondent party claims that albeit on the face of it a telefax transmission was sent, it was not received or did not reach the person responsible for giving it attention, leads to the conclusion that the provisions of the Act in this regard require reconsideration. In my view, it is appropriate that the statute be reappraised in this regard and that the Rules Board for the Labour Courts gives its attention to this matter of procedure. As aptly illustrated on the facts of this case, the arrival of a document in the midst of a deluge of others, handled by staff not inducted to divine, in the absence of some clue, who should be given the document nor how rapidly that should happen, may predictably lead to delay or misplacement or outright loss of the document.

See Vemisani Security Services CC v Mmusi and another: In re Mmusi and Another v Vemisani Security Services CC (2013) 34 ILJ 440 (LC) at 445-446 paras 16-18 and other authorities cited therein.

[17] The authorities are replete that a successful fax transmission slip does not render conclusive proof that indeed a document was received

that there was a wholly blameless absence of a defaulting party at the time of the hearing, the force of that explanation should be balanced against the force of the case which the employer sought to present in support of its decision to dismiss an employee. The weight of a bona fide case will usually make up for the inadequate explanation for the default.

JA81/16

rescission: good cause

CA16/2016, C285/2014

South African Breweries (Pty) Ltd v Louw (CA16/2016, C285/2014) [2017] ZALAC 63; [2018] 1 BLLR 26 (LAC); (2018) 39 ILJ 189 (LAC) (24 October 2017)

[8] The relationship between the pleadings and the pre-trial conference minute has been the subject of several judicial pronouncements.[1] In short, a minute of this sort is an agreement from which one cannot unilaterally resile. Also, a pleading binds the pleader, subject only to the allowing of an amendment, either by agreement with the adversary, or with the leave of the court. The case pleaded cannot be changed or expanded by the terms of a minute; if it does, it is necessary that that change go hand in hand with a necessary amendment. The chief objective of the pre-trial conference is to agree on limiting the issues that go to trial. Properly applied, a typical minute  cum  agreement will shrink the scope of the issues to be advanced by the litigants. This means, axiomatically, that a litigant cannot fall back on the broader terms of the pleadings to evade the narrowing effect of the terms of a minute. A minute, quite properly, may contradict the pleadings, by, for example, the giving an admission which replaces an earlier denial. When, such as in the typical retrenchment case, there are a potential plethora of facts, issues and sub-issues, by the time the pre-trial conference is convened, counsel for the respective litigants have to make choices about the ground upon which they want to contest the case. There is no room for any sleight of hand, or clever nuanced or contorted interpretations of the terms of the minute or of the pleadings to sneak back in what has been excluded by the terms of a minute. The trimmed down issues alone may be legitimately advanced. Necessarily, therefore, the strategic choices made in a pre-trial conference need to be carefully thought through, seriously made, and scrupulously adhered to. It is not open to a court to undo the laces of the strait-jacket into which the litigants have confined themselves.

pre-trial minutes

J1499/17

Smith and Another v Office of the Chief Justice and Others (J1499/17) [2018] ZALCJHB 45 (2 February 2018)

Steenkamp and Others v Edcon Limited [2016] 4 BLLR 335 (CC), (2016) 37 ILJ 564 (CC).

The LRA created special rights and obligations that did not exist at common law. One right is every employee’s right not to be unfairly dismissed which is provided for in s 185. The LRA also created principles applicable to such rights, special processes and fora for the enforcement of those rights. The requirement for the referral of dismissal disputes to conciliation is one of the processes created by the LRA. The CCMA, bargaining councils and the Labour Court are some of the fora. The principles, processes, procedures and fora were specially created for the enforcement of the special rights and obligations created in the LRA. Indeed, the LRA even provides for special remedies for the enforcement of those rights and obligations. The special remedies include interdicts, reinstatement and the award of compensation in appropriate cases. These special rights, obligations, principles, processes, procedures, fora and remedies constitute a special LRA dispensation.

the LRA vs Unlawful

JS2000/2011

General Industrial Workers Union of South Africa and Others v Johannesburg Foundry VV and Another (JS2000/2011) [2017] ZALCJHB 57 (17 February 2017)

Du Preez v LS Pressings CC & Another (2013) 34 ILJ 634 (LC) at paras 12 and 17.

joinder in terms of rule 22 is in respect of proceedings before Court and that the purpose of a joinder is to allow participation in live proceedings.

Section 359(2)(a) and (b) of the Companies Act, Act 61 of 1973.  See sections 358 and 359.

2(a)    Every person who, having instituted legal proceedings against a company which were suspended by a winding-up, intends to continue the same, and every person who intends to institute legal proceedings for the purpose of enforcing any claim against the company which arose before the commencement of the winding-up, shall within four weeks after the appointment of the liquidator give the liquidator not less than three weeks’ notice in writing before continuing or commencing the proceedings.

Joinder: liquidator

JR1061/2007

Samancor Limited v NUM obo Maloma and Another (JR1061/2007) [2017] ZALCJHB 98 (24 March 2017)

SASBO  The Finance Union v UFIWO and Others(2003) 24 ILJ 231 (LC)

Court confirmed that Rule 25 of the Labour Court Rules affords a party who is aggrieved by a taxing masters decision a single remedy, namely that of common law review. It is trite that at common law, decisions are subject to be reviewed and set aside if the requisite standards of procedural fairness are not met. In this case, the bills were taxed on an unopposed basis in breach of a binding undertaking given to the applicant. This meant that the applicant was unfairly deprived of an opportunity to be heard in relation to the bills. The taxing of the bills was therefore procedurally unfair and they fall to be reviewed and set aside for this reason.

Taxing of Bill of Costs

J190/15, JR2361/16

Passenger Rail Agency of South Africa v Moreki and Others (J190/15, JR2361/16) [2017] ZALCJHB 114 (28 March 2017)

Whether other party who filed Notice of intention to oppose, should receive notice of set down?

[17] Moreover, Rule 7(6A) which refers to a section 158(1)(c) application states that when such application is unopposed, it must be enrolled by the Registrar on notice to the applicant. I have serious misgivings in the argument that unopposed application includes an application where a notice of opposition has been filed without an answering affidavit. Rule 7(6) does not specify whether such an application should be set down on an opposed or unopposed roll, while the Practice Manual fills that lacuna by providing that it be set down on an opposed roll and parties thereto be notified thereof. It is therefore my conclusion that the respondent had to ensure that the applicant is served with a notice of set down or somehow notified of the date of hearing of the rescission as contemplated by the Practice Manual.

Rescission

J190/15, JR2361/16

Passenger Rail Agency of South Africa v Moreki and Others (J190/15, JR2361/16) [2017] ZALCJHB 114 (28 March 2017)

Mutebwa v Mutebwa 2001 (2) SA 193 (CC) paras [15] and [16]

clarified the position as follows in relation to Rule 42(1)(a) of the Uniform Rules, which is worded in similar terms as section 165(a) of the LRA:[15] I shall now consider whether a proper case for rescission has been made under Rule 42 of the Rules of the High Court. Rule 42(1)(a) empowers the Court to rescind an order erroneously sought or erroneously granted in the absence of the party seeking rescission provided that such party is affected by such order or   judgment. The prerequisite factors for granting rescission under this Rule are the following. Firstly, the judgment must have been erroneously sought or erroneously granted; secondly, such judgment must have been granted in the absence of the applicant; and, lastly, the applicant’s rights or interest must be affected by the judgment.[16] Once those three requirements are established, the applicant would ordinarily be entitled to succeed, cadit quaestio. He is not required to show good cause in addition thereto. See Hardroad (Pty) Ltd v Oribi Motors (Pty) Ltd  1977 (2) SA 576 (W) at 578G; De Sousa v Kerr  1978 (3) SA 635 (W).

Shongwe and Others v The City of Johannesburg Metropolitan Municipality Unreported judgment JR 483/14 (25 February 2016).

[26]     In Dumisani and Another v Mintroad Saw Mills (Pty) Ltd, the Labour Appeal Court held that it was against public policy that litigants should be able to consistently demand the same relief and on the same grounds from the same adversary. Furthermore, the primary purpose of the LRA is the effective and speedy resolution of disputes, and in line with that purpose, this court and other tribunals are duty bound to a measure of both finality and certainty in dealing with disputes between parties.[27]      In the light of the above, it is therefore untenable for the applicants to approach this Court with essentially the same claim under a different guise and effectively seek the same relief that was determined by the CCMA.

Rescission

JS502/16

Association of Mine Workers Construction Union and Others v Ngululu Bulk Carriers (Pty) Ltd (JS502/16) [2017] ZALCJHB 122 (30 March 2017)

It is trite that the requirements for the granting of a plea of lis pendens are pending litigation between the same parties or their privies based on the same course of action and in respect of the same subject matter.

Caesarstone Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others 2013 (6) SA 499 (SCA).

[2]       As its name indicates, a plea of lis alibi pendens is based on the proposition that the dispute (lis) between the parties is being litigated elsewhere and therefore it is inappropriate for it to be litigated in the court in which the plea is raised. The policy underpinning it is that there should be a limit to the extent to which the same issue is litigated between the same parties and that it is desirable that there be finality in litigation. The courts are also concerned to avoid a situation where different courts pronounce on the same issue with the risk that they may reach differing conclusions. It is a plea that has been recognised by our courts for over 100 years.[3]        The plea bears an affinity to the plea of res judicata, which is directed at achieving the same policy goals. Their close relationship is evident from the following passage from Voet 44.2.7:’Exception of lis pendens also requires same persons, thing and cause. The exception that a suit is already pending is quite akin to the exception of res judicata, in as much as, when a suit is pending before another judge, this exception is granted just so often as, and in all those cases in which after a suit has been ended there is room for the exception of res judicata in terms of what has already been said. Thus the suit must already have started to be mooted before another judge between the same persons, about the same matter and on the same cause, since the place where a judicial proceeding has once been taken up is also the place where it ought to be given its ending.’

plea of lis pendens

JS454/16

Mhlanga v Synergy Global Consulting (Pty) Ltd and Another (JS454/16) [2017] ZALCJHB 113 (31 March 2017)

Gauteng Shared Services Centre v Ditsamai (2012) 33 ILJ 348 (LAC)

[37]This approach does not of course prevent an employee who has raised an ordinary dismissal dispute on the one hand and an unfair discrimination claim on the other, which does not relate to the dismissal as such, from pursuing both claims in the respective arbitration forum and the Labour Court.

jurisdiction: both unfair discrimination and unfair dismissal claims

JS454/16

Mhlanga v Synergy Global Consulting (Pty) Ltd and Another (JS454/16) [2017] ZALCJHB 113 (31 March 2017)

Chauke v Machine Tool Market (Pty) Ltd (2013) 34 ILJ 1150 (LC) at 1154

[25] …The respondents readily conceded that they do not expect the applicants pleadings to be of the same standard as a legal practitioners, but asked for a balance to be struck between the unions towards the applicant as a lay person and fairness to the respondents.[1] This is obviously the correct approach though it must also be recognised that the extent to which a lay persons deviation from the normal standard of pleading will be tolerated will also vary according to the education and literacy of the individual. There is a vast difference in the abilities of lay persons who appear in this court and that consideration also plays a role in striking the balance referred to.

exception

JS454/16

Mhlanga v Synergy Global Consulting (Pty) Ltd and Another (JS454/16) [2017] ZALCJHB 113 (31 March 2017)

Wardlaw v Supreme Mouldings (Pty) Ltd (2007) 28 ILJ 1042 (LAC) at 1050-1051, paras [17]  [21] on the substantive approach in terms of which the real nature of the dispute determined whether a dismissal dispute should be referred to arbitration or adjudication.

A necessary corollary of this approach is that an employee cannot obtain relief for one dismissal by having it adjudicated on the one hand as an automatically unfair dismissal and on the other as an ordinary dismissal for misconduct, incapacity or operational reason. Even if this court is dealing with a claim of automatically unfair dismissal and an alternative claim of unfair retrenchment, both of which it has jurisdiction over, it will award relief based on which of the two alternative reasons the court determines the real reason for dismissal.

[20] In my judgment the option available to the applicant in the circumstances is reinstitution of review proceedings in the same way as the applicants in the Ncaphayi and SAMWU matters (supra) sought and were, in fact, allowed to refer withdrawn disputes to the CCMA afresh as opposed to reinstating them.

Real reason for the dispute

JR484/15

Ellies Electronics (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others, Ellies (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR484/15) [2018] ZALCJHB 96 (9 March 2018)

withdrawal of a matter is akin to an order of absolution from the instance and, as such, does not bar a party from reinstituting

See Ncaphai v CCMA & Others [2011] 32 ILJ 402 (LC) at paragraph 27; SAMWU v CCMA & Another [2014] 35 ILJ 2011 (LC) and section 6(a) of Criminal Procedure Act, 51 of 1977.

[12] The withdrawal of a matter is akin to an order of absolution from the instance and, as such, does not bar a party from reinstituting the proceedings with the consequence that the exceptio rei judicatae is not available as a defence in the same way in which withdrawn criminal charges can, in terms of our criminal justice system, be reinstituted against the accused person without a plea of autrefois acquit or autrefois convict being available to the latter.

withdrawal of a matter… does not bar a party from reinstituting

JR484/15

Ellies Electronics (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others, Ellies (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR484/15) [2018] ZALCJHB 96 (9 March 2018)

See State Information Technology Agency (Pty) Ltd v Swanevelder & Others [2009] 30 ILJ 2786 (LC).

[13]The test for joinder in our law is that a party sought to be joined in the proceedings must have a direct and substantial interest in the matter in the sense of an interest in the right which is the subject matter of the litigation and not merely a financial interest

joinder

JR2255/11

Eicker v PSCBC and Others (JR2255/11) [2018] ZALCJHB 115 (13 March 2018)

Zungu v Premier of the Province of KwaZulu-Natal and Others [2018] ZACC 1 par 24-26.

The rule of practice that costs follow the result does not apply in Labour Court matters.  In Dorkin, Zondo JP explained the reason for the departure as follows: 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. In this matter, there is nothing on the record indicating why the Labour Court and Labour Appeal Court awarded costs against the applicant.  Neither court gave reasons for doing so.  It seems that both courts simply followed the rule that costs follow the result.  This is not correct.

costs

JR722/15

Independent Municipal and Allied Trade Union obo Bonn and Others v Nama Khoi Municipality and Others (JR722/15) [2018] ZALCJHB 133 (27 March 2018)

National Union of Metalworkers of South Africa obo Sinuko v Powertech Transformers (DPM) and others [2014] 2 BLLR 133 (LAC) at 139-140,

Wardlaw v Supreme Moulding (Pty) Ltd[2007] 6 BLLR 487 (LAC).

[20] What is clear from Wardlaw is that a two stage process in the adjudication before the Labour Court was not necessarily being advocated. The Labour Court assumes jurisdiction on the basis of what the employee alleges the reason for the dismissal to be – but if it later becomes “apparent” to the court that the reason for the dismissal is a different one and one in respect of which it does not have jurisdiction, the Labour Court should not adjudicate the merits of the dispute, but allow the matter to be referred to the right forum with jurisdiction in order for that forum to determine the merits of the dispute. In Wardlaw, this Court did not exclude the possibility that the true nature of the dispute may only become apparent once all the evidence has been led and the court has considered it. Generally, this is the time when the court will become aware of the true nature of the dispute. However, in Wardlaw, this Court also did not exclude the possibility that the true nature of the dispute may also become apparent earlier, i.e. Before all the evidence is led. An example that readily comes to mind is if the issue of jurisdiction and the true nature of the dispute is separated from the merits of the dispute and raised at the outset of the proceedings, requiring the court to determine those issues on the evidential material available, or presented during that phase of the proceedings.[21] There is no valid reason why the procedure that applies in the Labour Court does not also apply in arbitrations conducted in terms of or under the Act.

jurisdiction: nature of dispute

vexatious litigant

JR1282/10

Maseko v CCMA and Others (JR1282/10) [2016] ZALCJHB 322; (2017) 38 ILJ 203 (LC) (23 August 2016)

The Vexatious Proceedings Act[Act 3 of 1956.] provides in s 2(1)(b):

If, on an application made by any person against whom legal proceedings have been instituted by any other person or has reason to believe that the institution of legal proceedings against him is contemplated by any other person, the court is satisfied that the said person has persistently and without any reasonable ground instituted legal proceedings in any court or in any inferior court, whether against the same person or against different persons, the court may, after hearing that person or giving him an opportunity of being heard, order that no legal proceedings shall be instituted by him against any person in any court or any inferior court without the leave of the court, or any judge thereof, or that inferior court, as the case may be, and such leave shall not be granted unless the court or judge or the inferior court, as the case may be, is satisfied that the proceedings are not an abuse of the process of the court and that there is prima facie ground for the proceedings.

Beinash v Ernst & Young 1999 (2) SA 116 (CC) para 15 [per Mokgoro J].

This purpose is ‘to put a stop to persistent and ungrounded institution of legal proceedings’. The Act does so by allowing a court to screen (as opposed to absolutely bar) a ‘person (who) has persistently and without any reasonable ground instituted legal proceedings in any Court or inferior court’. This screening mechanism is necessary to protect at least two important interests. These are the interests of the victims of the vexatious litigant who have repeatedly been subjected to the costs, harassment and embarrassment of unmeritorious litigation; and the public interest that the functioning of the courts and the administration of justice proceed  unimpeded by the clog of groundless proceedings. The effect of s 2(1)(b) of the Act is to impose a procedural barrier to litigation on persons who are found to be vexatious litigants. This serves to restrict the access of such persons to courts. That is its very purpose. In so  doing, it is inconsistent with s 34 of the Constitution, which protects the right of access for everyone and does not contain any internal limitation of the right. The barrier which may be imposed under s 2(1)(b) therefore does limit the right of access to court protected in s 34 of the Constitution. But, in my view, such a limitation is reasonable and justifiable.

Hurter v Hough 1989 (3) SA 545 (C) 552 c.

Sover ek kon vasstel is daar geen beslissing oor hierdie onderwerp wat handel met sui generis verrigtinge soos die onderhawige nie. Die dicta in die sake is, soos verwag kan word, beperk tot die gevalle waarmee gehandel word. Daar is egter geen aanduiding dat die Hof, by die uitoefening van sy inherente bevoegdheid om sy eie prosedure te rel (cf Universal City Studios Inc and Others v Network Video (Pty) Ltd [1986] ZASCA 3; 1986 (2) SA 734 (A)  D op 754G), nie by magte is om ook kwelsugtige sui generis verrigtinge, of selfs sui generis verrigtinge wat nie as sodanig bestempel kan word, op ‘n wyse te beheer wat die belange van die regspleging dien nie. Na my mening is hierdie Hof wel in beginsel bevoeg om ‘n opskortingsbevel onder hierdie omstandighede te maak.  Regter Schreiner beklemtoon in Potchefstroom Town Council v Botes 1939 TPD 4 dat ‘the foundation of all such orders is the inherent right of the Court to prevent its procedure being abused’ (op 5). Daar is heelwat gesag vir die stelling dat ‘n litigant wat in staat is, maar hardnekkig weier om sy teenstander se kosterekening in vroëre verrigtinge  te betaal, hom kwelsugtig gedra. White v Northern Insurance Co 1918 WLD 25 op 27.

Locus Standi/Litigant

DA10/2015

Ilembe Outsourcing and Recruitment CC and Others v Nosango (DA10/2015) [2018] ZALAC 7; [2018] 7 BLLR 650 (LAC) (19 April 2018)

Civil contempt is the wilful and mala fide refusal or failure to comply with an order of court

Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA)

when a committal to prison for civil contempt is sought, the criminal standard of proof applies, while the civil standard applies when an application is made for a declarator of contempt without imprisonment and a mandatory order.

(a) the order; (b) service or notice of the order; (c) non-compliance with the terms of the order and (d) wilfulness and mala fides, beyond reasonable doubt. But, once the applicant has proved (a), (b) and (c), the respondent bears an evidentiary burden in relation to (d).[4] Should the respondent fail to advance evidence that establishes a reasonable doubt as to whether his or her non-compliance was wilful and mala fide, the applicant would have proved contempt beyond a reasonable doubt.

Contempt of court

CA04/2016, C338/2015

National Commissioner of the South African Police and Another v Myers (CA04/2016, C338/2015) [2018] ZALAC 13; [2018] 9 BLLR 882 (LAC); (2018) 39 ILJ 1965 (LAC) (25 May 2018)

[36] In Eke v Parsons 2016 (3) SA 37 (CC) at para 59, the Constitutional Court clarified the principles that apply to the interpretation of court orders and confirmed the well-established test on the interpretation of court orders as follows:

The starting point is to determine the manifest purpose of the order. In interpreting a judgment or order, the courts intention is to be ascertained primarily from the language of the judgment or order in accordance with the usual well-known rules relating to the interpretation of documents. As in the case of a document, the judgment or order and the courts reasons for giving it must be read as a whole in order to ascertain its intention

Interpretation court orders

DA04/2017

National Bargaining Council for the Clothing Manufacturing Industry (KZN Chamber) v Glamour Fashions Worker Primary Co-Operative Limited and Others (DA04/2017) [2018] ZALAC 10; (2018) 39 ILJ 1737 (LAC); [2018] 9 BLLR 876 (LAC) (15 May 2018)

[14] Declaratory relief is of particular value in a constitutional democracy in enabling courts, after a consideration of relevant circumstances, to declare the law with it then left to other arms of government, the executive and the legislature, to decide how best to observe the law.[4] In deciding whether a declaratory order should be made, the court applies a two-stage test: firstly, it must be satisfied that the applicant is a person interested in an existing, future or contingent right or obligation. Secondly, if so satisfied, the court must decide whether the case is a proper one for the exercise of the discretion conferred on it.[5] Whether alternative remedies exist is a factor to be taken into account by the court in the exercise of its discretion;[6] and while the public interest may be a factor,[7] declaratory relief should not be granted where the issue raised is hypothetical, abstract and academic.[8]

[13] While s158(1)(a)(v) of the LRA permits the Labour Court to make a declaratory order, neither the LRA nor the Rules of the Labour Court prescribe the circumstances in which an order may be made.[3] S21(1)(c) of the Superior Courts Act 10 of 2013 provides that a High Court may in its discretion, and at the instance of any interested person, enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon the determination.

Declaratory order

JS711/13

Midway Two Contractors (Pty) Ltd and Another v South African Transport and Allied Workers Union and Another (JS711/13) [2018] ZALCJHB 448 (21 May 2018)

[18]      Section 158 (1) (c) confers the power on this court to make settlement agreements orders of court. The power to make a settlement agreement an order of court is a discretionary power that must be exercised judicially, having regard to all of the relevant factors (see AB Civils (Pty) Ltd t/a Planthire v Barnard [1999] 12 BLLR 1233 (LAC))…[20]      The misconception that underlies the applicants submissions is that it does not automatically follow that simply because a settlement agreement is valid in contractual terms, the court is obliged to make the agreement an order of court.

[25]      The interpretation of s 193(1) by the Constitutional Court is clear. Reinstatement may be granted with back pay to a date not earlier than the date of dismissal, or the employee may be re-employed or granted compensation. These are mutually exclusive remedies. The terms of the order envisage reinstatement with full retrospective effect, to the date of dismissal, plus the maximum compensation that may be awarded (24 months remuneration). To this extent, the order is ultra vires s 193 (1) and for the purposes of s 165, it was thus granted erroneously or in error. The order therefore stands to be rescinded.

Settlement order of court

JR456/15

Malatji v Bokoni Platinum Mine and Others (JR456/15) [2018] ZALCJHB 219 (28 June 2018)

[14] In Westing House Break and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A) the court stated that an appeal should be allowed where the matter is of great importance or where the matter is of public importance or where the court is of the view that the decision might affect other questions. This matter involves a review and setting aside of the arbitration award. The principles governing reviews are trite, the Court has had the benefit of the pleadings as well as the record. No novel point arises from the facts of this matter. There is no reason why the LAC should be burdened with a meritless appeal.

Leave to appeal

J1984/18

Glencore Operations South Africa (Pty) Ltd and Others v National Union of Metal Workers of South Africa (NUMSA) (J1984/18) [2018] ZALCJHB 434 (29 June 2018)

It is trite by now that in motion proceedings, affidavits serve dual purpose. On the one hand, it is a pleading and on the other it is evidence. A party can only make a claim by presenting evidence in support of such a claim. It is not worth repeating to state that in motion proceedings, a party stands and fall by the allegations made in its affidavit.

Motion court: Affidavits

J1833/18

Association of Mineworkers and Construction Union v Anglo American Platinum Ltd and Others (J1833/18) [2018] ZALCJHB 238; [2018] 11 BLLR 1110 (LC); (2018) 39 ILJ 2280 (LC) (2 July 2018)

Centre for Child Law v Hoëskool Fochville and Another 2016 (2) SA 121 (SCA)

the Supreme Court of Appeal recently affirmed that the self-contained sanction in Rule 35 (12), being of a negative nature, is one that comes into effect automatically upon non-compliance with the Rule. But where a party who gives notice under Rule 35 (12) is not content with the negative sanction and seeks production of the documents concerned, then it is for that party to give notice in terms of Rule 30A that it intends, after the lapse of 10 days, to apply for an order compelling compliance with its Rule 35 (12) notice. The respondents contend that the Rule 35 application is thus defective, in that the appropriate mechanism through which a party may seek to compel another to produce documents in terms of Rule 35(12) is Rule 30A. This contention is unassailable. In the absence of an application in terms of Rule 30A, there is no basis on which the court is empowered to grant the relief sought.

seeks production of the documents concerned,

JA150/17

Ncanana and Another v Dual Products International (SA) CC and Others (JA150/17) [2019] ZALAC 37; [2019] 11 BLLR 1238 (LAC) (13 June 2019)

Pheko and Others v Ekurhuleni Metropolitan Municipality 2015 (5) SA 600 (CC) para 47.

When a court order is disobeyed, not only the person named for the party to the suit but all those who, with the knowledge of the order, aided and abetted the disobedience or wilfully, are party to the disobedience [and] are liable. The reason for extending the ambit of contempt proceedings in this manner is to prevent any attempt to defeat and obstruct the due process of justice and safeguard its administration. Differently put, the purpose is to ensure that no one may, with impunity, wilfully get in the way of, or otherwise interfere with, the due course of justice or bring the administration of justice into disrepute.

Contempt of court order: who is liable?

CA12/18

Archer v Public School-Pinelands High School and Others (CA12/18) [2019] ZALAC 70; (2020) 41 ILJ 610 (LAC); [2020] 3 BLLR 235 (LAC) (25 November 2019)

court holding that employee having both an unfair dismissal claim and a contractual claim arising from the termination of his employment contract. This entitled him to pursue an unfair dismissal claim in the CCMA and an independent contractual claim in either the High Court or the Labour Court which have concurrent jurisdiction to determine a contractual claim

[18]      The upshot of this is that the appellant was not precluded by the principle of res judicata from pursuing his two claims in different fora. This is because the claim that was before the Labour Court, and the one that was pursued in the CCMA were not the same claims. The one is for payment of damages arising from a purported breach of contract by the first and second respondents, and the other is for compensation arising from an unfair dismissal as envisaged under the LRA. The two claims do not have the same cause of action. The pleadings bear this out.

res judicata

CA12/18

Archer v Public School-Pinelands High School and Others (CA12/18) [2019] ZALAC 70; (2020) 41 ILJ 610 (LAC); [2020] 3 BLLR 235 (LAC) (25 November 2019)

an unfair dismissal claim and a contractual claim arising from the termination of his employment contract…This entitled him to pursue a claim in the CCMA and an independent contractual claim in either the High Court or the Labour Court which have concurrent jurisdiction to determine a contractual claim in terms of section 77 of the BCEA

It follows from this that the claimant in each case was capable of pursuing both claims in the Labour Court, either simultaneously or in succession (because they were different claims). In one claim the Labour Court (as one of the Labour Forums) would be asked to enforce an LRA right (falling within the exclusive power of the Labour Forums). And in the other claim it would be asked to enforce a right falling outside the LRA (but within the concurrent jurisdiction of the Labour Court). Similarly, the claimant would have been capable of bringing one claim (the claim to enforce an LRA right) in a Labour Forum and to bring the other claim (for enforcement of the right arising outside the LRA) simultaneously, or sequentially, in the high court.

The appellant elected to pursue his contractual claim in the Labour Court. In relation to this election, the SCA in Makhanya observed as follows:

concurrent jurisdiction

J 2497-18

Mpele v Municipality Council of the Lesedi Local Municipality and Others (J 2497-18) [2018] ZALCJHB 383; [2018] 12 BLLR 1192 (LC); (2019) 40 ILJ 572 (LC) (13 August 2018)

Aucamp v SA Revenue Service (2014) 35 ILJ 1217 (LC) at para 18.

it is the duty of the Labour Court to determine the true nature of the issue in dispute between the parties before court, no matter how an applicant may choose to label or describe the dispute. The court is not bound by the description of the dispute as may be articulated by an applicant.

Chirwa v Transnet Ltd and Others (2008) 29 ILJ 73 (CC)  .

It could not have been the intention of the legislature to allow an employee to raise what is essentially a labour dispute under the LRA as a constitutional issue under the provisions of s 157(2). To hold otherwise would frustrate the primary objects of the LRA and permit an astute litigant to bypass the dispute-resolution provisions of the LRA. This would inevitably give rise to forum shopping simply because it is convenient to do so or as the applicant alleges, convenient in this case ‘for practical considerations’. What is in essence a labour dispute as envisaged in the LRA should not be labelled a violation of a constitutional right in the Bill of Rights simply because the issues raised could also support a conclusion that the conduct of the employer amounts to a violation of a right entrenched in the Constitution.

true nature of the issue in dispute

JR1252/16

Vea Road Maintenance and Civils (Pty) Ltd v Dekker N.O. and Others (JR1252/16) [2018] ZALCJHB 282 (4 September 2018)

[19] Once the provisions of section 144(a) of the LRA were found to be inapplicable or unsustainable to a set of facts as in this case, the defaulting party is then required to show good cause for its default under the provisions of section 144(d) of the LRA. The requirements of good cause were explained in Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills Cape Order[[2003] 2 All SA 113 (SCA)] as follows;… In order to succeed an applicant for rescission of a judgment taken against him by default must show good cause (De Wet and others v Western Bank Ltd, supra). The authorities emphasize that it is unwise to give a precise meaning to the term good cause. As Smalberger J put it in HDS Construction (Pty) Ltd v Wait: “When dealing with words such as ‘good cause’ and ‘sufficient cause’ in other Rules and enactments the Appellate Division has refrained from attempting an exhaustive definition of their meaning in order not to abridge or fetter in any way the wide discretion implied by these words (Cairns’ Executors v Gaarn 1912 AD 181 at 186; Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 3523). The Court’s discretion must be exercised after a proper consideration of all the relevant circumstances. “With that as the underlying approach the courts generally expect an applicant to show good cause (a) by giving a reasonable explanation of his default; (b) by showing that his application is made bona fide; and (c) by showing that he has a bona fide defence to the plaintiff’s claim which prima facie has some prospect of success (Grant v Plumbers (Pty) Ltd, HDS Construction (Pty) Ltd v Wait, supra, Chetty v Law Society, Transvaal).

section 144(a) rescission

J2205/18

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

is ordered to file an affidavit to show cause why he should not be found to be jointly and severally liable under the execution of a default award granted against the first respondent (Tatum Enicker) in favour of the applicant.

section 158(1)(a)(iii) of the LRA, this Court is empowered to make any appropriate order directing the performance of any particular act

J3321/18

National Education Health and Allied Workers Union (NEHAWU) v Minister of Health and Another (J3321/18) [2018] ZALCJHB 320 (2 October 2018)

De Beer v Minister of Safety and Security and Another (2011) 32 ILJ 2506 (LC).

It is trite law that an applicant must stand or fall by his or her founding affidavit. The applicant is therefore not permitted to introduce new matter in the replying affidavit. The courts strike out such new matter. New matter may be allowed in the absence of prejudice and in circumstances where the new matter amplifies and enlarges upon the case made out by the applicant in the founding affidavit. In this regard see Union Finance Holdings Ltd v IS Mirk Office Machines IIA  (Pty) Ltd & another 2001 (4) SA 842 (W) and unreported case of Nondwedwe Kama & others v Nombulelo Anoria Kama & another case no 1357/20050 of the Eastern Cape High Court.

New evidence in replying affidavit

J267/18

Sepheka v Du Point Pioneer (J267/18) [2018] ZALCJHB 336; (2019) 40 ILJ 613 (LC) (9 October 2018)

President of the Republic of South Africa and others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC) at paras 40  41 (SARFU). See also South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) (2000) 21 ILJ 1583 (CC) at para 12; S v Basson 2007 (3) SA 582 (CC) at para 30; Ntuli and another v S [2018] 1 All SA 780 (GJ) at para 16.

In applying the test for recusal, Courts have recognised a presumption that judicial officers are impartial in adjudicating disputes. This is based on the recognition that legal training and experience prepare Judges for the often difficult task of fairly determining where the truth may lie in a welter of contradictory evidence. The test should be applied on the assumption that a reasonable litigant would take these considerations into account. A presumption in favour of Judges impartiality must therefore be taken into account in deciding whether such a reasonable litigant would have a reasonable apprehension that the judicial officer was or might be biased.

Turnbull-Jackson v Hibiscus Coast Municipality and others (Ethekwini Municipality as amicus curiae) 2014 (11) BCLR 1310 (CC) at para 35.

I am moved to caution against wanton, gratuitous allegations of bias  actual or perceived  against public officials. Allegations of bias, the antithesis of fairness, are serious. If made with a sufficient degree of regularity, they have the potential to be deleterious to the confidence reposed by the public in administrators. The reactive bias claim stems from unsubstantiated allegations of corruption and incompetence. These are serious allegations, especially the one of corruption. Yes, if public officials are corrupt, they must be exposed for what they are: an unwelcome, cancerous scourge in the public administration. But accusations of corruption against the innocent may visit them with the most debilitating public opprobrium. Gratuitous claims of bias like the present are deserving of the strongest possible censure.

Turnbull-Jackson

This would be the easiest stratagem for the unscrupulous to get rid of unwanted decision-makers: if I insult you enough  whatever enough may be  you are out. This is without substance. It proceeds from an assumption that officials with decision-making power would respond the same way to insults. It ignores the following: the training of the officials; their experience; possibly even their exposure to abuse and insults  from time to time  and the development of coping skills; and other personal attributes, all of which may render them impervious to, or tolerant of, insults. A finding of bias cannot be had for the asking. There must be proof; and it is the person asserting the existence of bias who must tender the proof. The applicant has failed dismally in discharging the onus on the so-called reactive bias

allegations of bias

JR2333/2015

Belo & Kies Construction (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2333/2015) [2019] ZALCJHB 2 (9 January 2019)

[45] … The heads of argument submitted by the Applicants counsel were of no use or assistance to this Court as 29 pages of the heads of argument contained nothing but a verbatim repetition of the founding and supplementary affidavits. There was no attempt whatsoever to narrow the issues and to present them in the form of heads of argument. A repetition of affidavits and lengthy quotations from case law do not assist this Court and heads of arguments as submitted by the Applicant burdened rather than assist this Court.

Heads of Arguments : Review

J2501/15

Maanaso and Another v Techniflex CC and Another (J2501/15) [2019] ZALCJHB 50 (19 March 2019)

1. The Respondents are held to be in wilful contempt of the court order dated 8 September 2015.     2. The Respondents are to reinstate the Applicants within 15 days of the date of this order.     3. The Respondents are to pay a fine in the amount of R50 000 (Fifty Thousand Rand), being R25 000.00 (Twenty-Five Thousand Rand) payable to each of the Applicants. This fine is to be paid within 15 days of this order.

Contempt of court

JR505/15

Rampersad v Byrne NO and Others (JR505/15) [2018] ZALCJHB 241 (6 July 2018)

[4] An application for rescission of a court order may be brought in terms of the provisions of Rule 16A(1)(a)(i)[1] of the Rules of this Court, read together with those of section 165 of the Labour Relations Act (LRA)[2]. A party may have an order of the Labour Court rescinded under section 165(a) if it is shown that the order was erroneously sought or granted in the absence of that party.

Rescission

J 3321/18

National Education Health and Allied Workers Union (NEHAWU) v Minister of Health and Another (J 3321/18) [2018] ZALCJHB 349 (31 October 2018)

Application dismissed as the evidence was available at the time of the filing of the application with no acceptable explanation why it was not placed before Court earlier

National Education Health and Allied Workers Union (NEHAWU) v Minister of Health and Another (J 3321/18) [2018] ZALCJHB 349 (31 October 2018)

application to admit into evidence further affidavits

jurisdiction re High Court

NEHAWU v University of Cape Town and others [2000] 7 BLLR 819 (LC).

The injunction to interpret the LRAs provisions in a purposive way must mean that the interpretation of the provisions of the LRA must not be done in a manner that will lead to a proliferation and multiplicity of court proceedings.  In my view the Labour Court has jurisdiction to consider whether the resolutions of the council of the university were properly adopted and also whether the council was properly constituted.  In fact, the adoption of those resolutions is incidental to the resolution of the section189 and section 197 disputes.[6]

JS1308/09;JS419/10

Sasol Technology and Another v Petros Fakazi Zwane ; In re: Petros Fakazi Zwane v Sasol Technology and Another (JS1308/09;JS419/10) [2019] ZALCJHB 42 (8 March 2019)

CUSA v Tao Ying Metal Industries and Others [[2009] 1 BLLR 493 (LAC)]  and was recently restated in Toyota SA Motors (Pty) Ltd v Commission for Conciliation Mediation and Arbitration[[2016] 3 BLLR 217 (CC).at para 34]

The LRA introduces a simple, quick, cheap and informal approach to the adjudication of labour disputes. This alternative process is intended to bring about the expeditious resolution of labour disputes. These disputes, by their very nature, require speedy resolution. Any delay in resolving a labour dispute could be detrimental not only to the workers who may be without a source of income pending the resolution of the dispute, but it may, in the long run, have a detrimental effect on an employer who may have to reinstate workers after a number of years. The benefit of arbitration over court adjudication has been shown in a number of international studies. (Footnotes omitted)

[26]…excessive delays in litigation may induce a reasonable belief, especially on the part of a successful litigant, that the order or award had become unassailable. This is so all the more in labour disputes.

Delay: 3years

JS382/18

National Education Health and Allied Workers Union (NEHAWU) and Others v Metrofile (Pty) Ltd and Others (JS382/18) [2019] ZALCJHB 63 (8 March 2019)

Vivabet (Pty) Ltd v Gauteng Gambling Board (28058/2017) [2017] ZAGPJHC 304.

in support of the contention that a party is permitted to rely on other pleadings in a matter. In that case the pleadings in a review application were relied on in an interim application.

[28]       In view of the aforegoing, this Court is of the view that it is not permitted to have regard to any pleading that the applicant did not (at least) incorporate by reference in their founding affidavit.

pleadings in a matter

JR1294/13

Mashaba v Citibank N.A. SA Branch and Others (JR1294/13) [2019] ZALCJHB 122; [2019] 11 BLLR 1265 (LC); (2019) 40 ILJ 2762 (LC) (29 May 2019)

Rule 16A(1)(a): Application for amendment of Court order

JR2380/2016

Matsha and Others v Public Health and Social Development Sectoral Bargaining Council and Others (JR2380/2016) [2019] ZALCJHB 128; (2019) 40 ILJ 2565 (LC) (7 June 2019)

The grossly excessive delay, the failure to comply with the Practice Manual, and the complete absence of good cause being shown, must bring an end to the proceedings, once and for all, by way of the dismissal of the review application.

In Toyota SA Motors(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2016) 37 ILJ 313 (CC) at para 45.

Excessive delays in litigation may induce a reasonable belief, especially on the part of a successful litigant, that the order or award had become unassailable. This is so all the more in labour disputes.

See Sepheka v Du Pont Pioneer (Pty) Ltd (2019) 40 ILJ 613 (LC) at para 7; National Education Health and Allied Workers Union on behalf of Leduka v National Research Foundation (2017) 38 ILJ 430 (LC) at para 31. See also Ralo v Transnet Port Terminals and Others (2015) 36 ILJ 2653 (LC) at para 9; Tadyn Trading CC t/a Tadyn Consulting Services v Steiner and Others (2014) 35 ILJ 1672 (LC) at para 11; Butana v SA Local Government Bargaining Council and Others [2016] JOL 36088 (LC) at paras 8-9.

[22]       The Practice Manual is not just some sort of guideline which litigating parties may or may not comply with at their leisure, but has binding force, just like the Labour Court Rules.

Macsteel Trading Wadeville v Van der Merwe NO and Others (2019) 40 ILJ 798 (LAC) at para 25.

As indicated, the review application was archived and regarded as lapsed as a result of NUMSAs failure to comply with the Practice Manual. There was also no substantive application for reinstatement of the review application, and no condonation sought for the undue delay in filing the record. As contended for by Macsteel, the Labour Court was, as a matter of law, obliged to strike the matter from the roll on the grounds of lack of jurisdiction, alternatively, give Macsteel an opportunity to file a separate rule 11 application demonstrating why the matter should be dismissed or struck from the roll on the basis of undue delay.

Rule 11

J1366/19

Mbuyisa and Others v Passenger Rail Agency of South Africa and Others (J1366/19) [2019] ZALCJHB 132 (11 June 2019)

Chirwa v Transnet Ltd [2008] 2 BLLR 97 (CC)

[12]       It is trite that jurisdiction is determined on the basis of the pleadings, and not on the substantive merits of the case

Pleadings

JR2768/2017

Osho Steel (Pty) Ltd v Ngobeni N.O and Others (JR2768/2017) [2019] ZALCJHB 213; (2020) 41 ILJ 476 (LC) (27 August 2019)

{18}…Any record of proceedings other than that provided by the CCMA or Bargaining Councils as further obtained through Rule 7A(5) cannot be regarded as an official and legitimate record for the purposes of compliance with Rule 7A(6).

[18]…Applicant parties cannot set their own rules in regards to review proceedings. Any record of proceedings other than that provided by the CCMA or Bargaining Councils as further obtained through Rule 7A(5) cannot be regarded as an official and legitimate record for the purposes of compliance with Rule 7A(6).

Review record of CCMA only admitted

JR2768/2017

Osho Steel (Pty) Ltd v Ngobeni N.O and Others (JR2768/2017) [2019] ZALCJHB 213; (2020) 41 ILJ 476 (LC) (27 August 2019)

City of Johannesburg v SAMWU obo Monareng and Another (JA120/2017) [2019] ZALAC 54; (2019) 40 ILJ 1753 (LAC)

[10]      Although section 145(8) of the LRA makes specific reference to the applicant, it effectively applies to only employers. It makes no provision for an employee who brings a review application to furnish security. The purpose of sections 145(7) and (8) is essentially to dissuade employers from bringing frivolous review applications with no prospects of success and ensure that they are timeously and expeditiously prosecuted (Citations omitted)

[25]       It is further my view that the practice of filing a Notice of Motion encompassing prayers to review and set aside an award, a stay of execution, and exemption from furnishing security, is clearly at odds with the purpose of section 145(7) of the LRA. This specifically so since review applications are placed on the ordinary roll and heard long after a favourable award was obtained. This practice in effect results in  a stay of execution and exemption from furnishing security being obtained by default, and this is clearly a circumvention of section 145(7) of the LRA.

Review: Security of costs

J1121/17

Mahloko v Bhekani Abantu Services (Pty) Ltd (J1121/17) [2019] ZALCJHB 217 (2 September 2019)

[2]        The principles applicable to civil contempt are well-established. The purpose of contempt proceedings is to compel compliance with orders of court and to vindicate the courts dignity and authority consequent on the disregard of its orders. The principles relevant to contempt were set out by Cameron J in Fakie NO v CCI Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA). It is a crime unlawfully and intentionally to disobey a court order, the essence of which lies in violating the dignity, repute or authority of the court. The order in question must be one ad factum praestandum, the order must have been served on the respondent or the respondent must have been advised of the order in circumstances where there are no reasonable grounds for disbelieving the information, and respondent must have failed to comply with the order. The failure to comply must be both mala fide and wilful (see Fakie NO (supra), Uncedo Taxi Service Association v Maninjwa & others [1998] BCLR 683 (E))

9.     The test for disobedience of a civil order constitutes contempt has come to be stated is whether the breach was committed deliberately and mala fide. A deliberate disregard is not enough, since the non-compliant may genuinely, albeit mistakenly, believe him or herself entitled to act in the way claim to constitute the content. In such a case good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bona fide (although unreasonableness could evidence lack of good faith).        10.   These requirements  that the refusal to obey should be both wilful and mala fide, and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt  accord with the broader definition of the crime, of which non-compliance with civil orders is a manifestation. They show that the offences committed and not by mere disregard of a court order, but by the deliberate and intentional violation of the courts dignity, repute or authority that this evinces. Honest belief that non-compliance is justified war proper is incompatible with that intent.

Consolidated Fish (Pty) Ltd v Zive & Others 1968 (2) SA 520 (CPD)

The court will not order the attachment of the respondent for contempt in not complying with the judgement of the court if it appears that the non-compliance is not due to wilful disobedience but rather to a misunderstanding of the true meaning of the judgement. This seems to be merely another way of stating the rule that, if a respondent can establish bona fide is in relation to his disobedience of the court order, he will not be held to have been in contempt of that order.

Contempt of court order

JA5/18

Rapoo v Rustenburg Local Municipality (JA5/18) [2020] ZALAC 5; [2020] 6 BLLR 533 (LAC) (20 February 2020)

principle that applicant must state in his statement of case the nature and quantum of damages sought restated  impermissible for an employee to file a document extraneous to his statement of claim in which he seeks to particularise his damages – such document does not constitute proof of damages.  Not competent for the appeal court to consider an application to adduce new evidence in a claim for damages that was not properly before the court below.

[32]      An employee must set out the heads of damages and the amounts claimed in his statement of claim so as to enable the employer to reasonably assess the quantum thereof and reply to the claim. It is impermissible for an employee to file a document extraneous to his statement of claim in which he seeks to particularise his damages. It bears noting that any such document will not constitute proof of damages.

[26]      Unlike section 194(3) of the LRA which places an upper limit on the amount of compensation that may be awarded to an employee whose dismissal is found to be automatically unfair in terms of section 187(1) of the LRA, section 50(2)(a) provides no limit on the amount of compensation that the Labour Court may award to an employee who has been unfairly discriminated against by his or her employer. The Labour Court ordered the Municipality to pay the appellant compensation on account of unfairly discriminating against him as contemplated in section 6 of the EEA. The appellant is therefore wrong in submitting that he was dismissed by the Municipality for reasons contemplated in section 187(1)(f) of the LRA and is entitled to a maximum of 24 months remuneration in terms of section 194(3) of the LRA.

statement of case: damages

JA15/2019

Mashaba and Another v Telkom SA SOC Ltd (JA15/2019) [2020] ZALAC 40; (2020) 41 (ILJ) 2347 (LAC) (22 June 2020)

Reinstatement order is enforced by Contempt of court application, while compensation by way of writ of execution

Prescribed rate of interest act

Once unliquidated claim is grated mora interest runs from date of summonce

interest calculation

JR1611/16

Mogale City Local Municipality v IMATU obo Moreki and Others (JR1611/16) [2020] ZALCJHB 12 (29 January 2020)

[41]       The normal practice in this Court is that before one party (the Applicant) could invoke a Rule 11 dismissal application, at least the other party (the Respondent) should be placed on terms first. It is only after those terms have not been complied with, that a Rule 11 dismissal application can be instituted. This version is supported by the judgement in Karan t/a Karan Beef Feedlot and Another v Randall[ (2009) 30 ILJ 2937 (LC).].

[42]       Further, in MEC, Department of Sport, Recreation, Arts and Culture v GPSSBC and Others[(2015) 36 ILJ 2893 (LC).] , the Labour Court held that a Rule 11 application should not be granted unless the dilatory party had been placed on terms, and when appropriate, after any further steps as may have been available to the aggrieved party to bring the matter to finality, have been taken. This means that the conduct of the aggrieved party is to be considered as well.

Rule 11

J1544/1

Fourie v Alleyroads Construction (Pty) Ltd; Beyer v Alleyroads Construction (Pty) Ltd (J1544/19) [2020] ZALCJHB 15 (29 January 2020)

A pleading is excipiable only if no possible evidence led on the pleading can disclose a cause of action (McKelvey v Cowan NO 1980 (4) SA 525 (Z)). A distinction is drawn between facta probanda, primary factual allegations that must be made, and the facta probantia, or secondary factual allegations in support of the former. Generally, the latter are matters for particulars for trial or matters of evidence.

Pleadings: excipiable

JR2438/16

National Union of Mineworkers and Others v Maake N.O and Others (JR2438/16) [2020] ZALCJHB 23 (4 February 2020)

[13]       The above principle was applied in the case of Bayete Security Holdings v Mokgadi and Others[[2000] 9 BLLR 1020 (LC).] where the Labour Court distinguished between Rule 16A(1)(a)(i) and Rule16A(1)(b). According to the court, Rule 16A distinguishes between judgments erroneously granted in the absence of a party (e.g. where notice was not given to a party) and judgments granted in the absence of a party other than erroneously (e.g. where notice had been properly given but the party was nevertheless absent). In the first situation, there is no need to show good cause and there are no time limits, whereas, in the second situation, good cause must be shown and the application must be brought within the prescribed time limits. This was quoted in approval in the case of Mphahlele v Muswede[(JS 173/14(2017) ZALCJHB 20 (25 January 2017).].

[14]       In the case of Sizabantu Electrical Construction v Gama and Others[[1999] 4 BLLR 387 (LC).], the court held that good cause is not required to be shown if the judgment or order was erroneously granted in the absence of a party. However, in terms of Rule 16A(1)(b), it is similar to rule 31(2)(b) of the Uniform Rules of the High Court. The requirements of good cause as contemplated by Rule 31(2)(b) have been stated as follows: the applicant must give a reasonable explanation for his default. If it appears that his default was wilful or that it was due to gross negligence, the court should not come to his assistance; the application must be bona fide and not made with the intention of merely delaying the plaintiffs claim; and the applicant must show that he has a bona fide defence to plaintiffs claim. It is sufficient if it makes out a prima facie defence in the sense of setting out averments which, if established at the trial, would entitle him to the relief asked for. He need not deal fully with the merits of the case and produce evidence that the probabilities are actually in his favour.

Rescission

JR 2036/17

Department of Education: Mpumalanga Province and Others v Mthala N.O and Others (JR 2036/17) [2020] ZALCJHB 202 (21 April 2020)

[29]      Finally, there is the matter of the application to strike out. In response to the notice of motion and founding affidavit, the employees filed a supplementary affidavit. They did so prematurely, since the record and the applicants Rule 7A (8) notice had not been filed.  The applicant elected not to take issue with this state of affairs, from a practical perspective. After the Rule 7A (8) notice and supplementary affidavit had been filed, the employees then filed a second answering affidavit, expanding on the content of the first. The applicants then objected on the basis that there is no provision in the Rules for the filing of a further affidavit. There is no merit in the application to strike out, firstly because the applicant has clearly acquiesced in the premature filing of the first answering affidavit, and having done so, can hardly deny the employees the opportunity to respond to the matters that were raised in the supplementary affidavit. Secondly, and as I pointed out during the hearing, the value and usefulness of answering and replying affidavits in review proceedings are minimal.

Application to strike out: filing two answering affidavits

JR 284/2019

Lucerne Transport v TAWUSA and Others (JR 284/2019) [2020] ZALCJHB 195 (7 May 2020)

[36]        In Early Bird Farm (Pty) Ltd v Food and Allied Workers Union and Others[(2004) 25 ILJ 2135 (LAC) para 50.]the LAC held that: In this appeal the respondents’ attorney was required to file heads of argument succinctly setting out the points to be argued at the hearing of the appeal. A document purporting to be heads of argument was timeously filed on behalf of the respondents. However, it was of such poor quality that it can hardly be described as heads of argument. This court could not derive any assistance from that document nor was the attorney helpful to the court at the hearing of the appeal. Properly prepared heads of argument play an important role in the adjudication of a matter – especially in an appeal court. Useful heads of argument cannot be prepared unless the person preparing them has taken the trouble to study the record and has done such research on the legal issues raised by the matter or appeal as may be necessary. Where heads of argument are drawn without the necessary understanding of the facts or the evidence in the record and/or without doing the necessary research on the legal issues that arise in the appeal, such heads – and it is very easy to recognize this in heads of argument – are bound to be of no assistance to the court hearing the appeal. That kind of conduct on the part of a practitioner is unacceptable. A practitioner should not accept instructions or a brief in a matter if he does not have the time to do justice to a client’s case. It is inexcusable for a practitioner to file heads of argument the contents of which bear no relation to the issues raised. In this case the document purporting to be heads of argument filed by the respondents’ attorney was totally unacceptable.

[37]         In Minister of Safety and Security v Mashego and Others[(2003) 24 ILJ 1690 (LC).] it was held that It is not acceptable that practitioners should merely send up heads which are not helpful, which do not cite authorities and which suggest hurriedness of preparation. Counsel draw heads for the purpose of assisting the court.

Heads of Arguments

J 235/2020

Kuhlmann v City of Joburg Property Compnay (SOC) Ltd and Another (J 235/2020) [2020] ZALCJHB 146 (2 July 2020)

[12]   Applications for contempt of court are ordinarily dealt with in terms of the practice manual.

contemplates an application brought ex parte and the allocation of a return date on which the respondent is required to show cause why he or she should not be held in contempt of the order concerned. In the present instance, the applicant has failed to comply with this procedure and has sought to secure an order holding the respondents in contempt by way of urgent proceedings.

contempt: Clause 13 of the practice manual

J 199/20

Democratic Municipal and Allied Workers Union of South Africa (DEMAWUSA) v Registrar of Labour Relations (J 199/20) [2020] ZALCJHB 110 (6 July 2020)

Legal Skills and Practice Management: Litigation Skills for South African Lawyers,[5] CG Marnewick SC explained the difference between substantive and interlocutory applications in the following, There are two main forms of application. Substantive applications are applications with the purpose of obtaining final relief on affidavit evidence. A substantive application stands on its own. Interlocutory applications, on the other hand, are used for interim or procedural relief and are parasitic in the sense that they cannot have an independent existence; they are always made in the course or in anticipation of an action or substantive application. Interlocutory applications take their name from the Latin loqui, meaning to speak and inter, meaning in the course of.

[11]           Now, the Applicant advises this court that the Order is an order under subsection 18(2) of the Act, wherein lodging an appeal does not suspend its operation.

[7]          The Applicant, in its papers, relied on Section 18 of the Act. For the sake of brevity, this court opts to cite the full section due to its relevance herein. It reads thus:18.   Suspension of decision pending appeal.(1)  Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.(2)  Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision that is an interlocutory order not having the effect of a final judgment, which is the subject of an application for leave to appeal or of an appeal, is not suspended pending the decision of the application or appeal.(3)  A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.(4)  If a court orders otherwise, as contemplated in subsection (1)(i)the court must immediately record its reasons for doing so;(ii)the aggrieved party has an automatic right of appeal to the next highest court;(iii)the court hearing such an appeal must deal with it as a matter of extreme urgency; and(iv)such order will be automatically suspended, pending the outcome of such appeal.(5)  For the purposes of subsections (1) and (2), a decision becomes the subject of an application for leave to appeal or of an appeal, as soon as an application for leave to appeal or a notice of appeal is lodged with the registrar in terms of the rules.

interlocutory applications

JS1079/18

Eloff v Imvula Roads and Civils (Pty) Ltd (JS1079/18) [2020] ZALCJHB 208 (1 September 2020)

High Court in Living Hands (Pty) Ltd and Another v Ditz and Others 2013 (2) is a 368 (GSJ)

“(a) In considering an exception that a pleading does not sustain a cause of action, the court will accept, as true, the allegations pleaded by the plaintiff to assess whether they disclose a  cause of action.(b) The object of an exception is not to embarrass one’s opponent or to take advantage of a technical flaw, but to dispose of the case or portion thereof in an expeditious manner, or to protect oneself against an embarrassment which is so serious as to merit the costs.(c) The purpose of an exception is to raise a substantive question of law which may have the effect of settling the dispute between the parties.(d) An excipient who alleges that a summons does not disclose a  cause of action must establish that, upon any construction of the particulars of claim, no cause of action is disclosed.(e)  An over technical approach should be avoided because it destroys the usefulness of the exception procedure, which is to weed out cases without legal merit.(f) Pleadings must be read as a whole, and an exception cannot be taken to a paragraph or a part of a pleading that is not self-contained.(g) Minor blemishes and unradical embarrassments caused by a pleading can and should be cured by further particulars.”

Labour Court in Irving v Amic Trading (Pty) Ltd JS 104/2014 ZALC JHB 418 at para 14

“(a) In each case the Court is obliged first of all to consider whether the pleading does lack particularity to an extent amounting to vagueness. Where the statement is vague it is either meaningless or capable of more than one meaning.(b) If there is vagueness in this sense, the court is then obliged to undertake a quantitative analysis of such embarrassment as the excipient could show is caused to him or her by the vagueness complained of.(c) In each case an ad hoc ruling must be made as to whether the embarrassment is so serious as to cause prejudice to the excipient if he or she is compelled to plead to the pleading in the form to which he or she objects. (A point may be of the utmost importance in one case, and the omission thereof may give rise to vagueness and embarrassment, but the same point may in another case be only a minor detail.)(d) The ultimate test as to whether or not the exception should be upheld is whether the excipient is prejudiced “

[41]    The respondent argued that the pre-trial proceedings resulting in a pre-trial minute are very important. The respondent relied upon the Irving  matter[JS 104/2014 ZALC JHB 418 at para 14] and Harmse v City of Cape Town (2003) 24 ILJ 1130 (LC) at paras 8 – 10. Both matters emphasise the importance of sorting out the factual disputes at the pre-trial meeting. The Court in Harmse further stated: “When an exception is raised against the 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.”

[48]    If there are no specific terms in contract C 998 that the applicant is in breach of, or if contract C998 does not provide for forfeiture, then a material part of the counterclaim stands to fail. The exception cannot then be said to be merely convenient but goes to the heart of the counterclaim and may dispose of the whole or part of the counterclaim.[49]    The counterclaim is pleaded vague and embarrassing in that it is either pleaded that the applicant neglected to ensure that the contractual requirements are met and, secondly, claims for payment were not timeously submitted, or it may mean that he only neglected his duties in respect of the timeous submission of claims.

exceptions

JA68/2018

Telkom SA SOC Limited v van Staden and Others (JA68/2018) [2020] ZALAC 52 (1 December 2020)

[24]…I am satisfied that the approach taken in CEPPWAWU is correct. No special circumstance has been shown such as would allow the respondents to resile from the agreement. In any event, the respondents raise the issue in argument on appeal for the first time which is impermissible.[14]

[45]        The Courts failure to have regard to the narrowing effect of the pre-trial minute is clearly seen in its finding that an alternative to retrenchment existed in the form of placement into one of the 169 positions that remained vacant at Telkom. This finding overlooked the agreement between the parties that Telkom was required to prove the fairness of the non-appointment and retrenchment of the respondents in relation only to the three positions applied for during phases 1 and 2 of the restructuring process. Telkom was not called upon to show why the respondents were not appointed into any other vacant positions. That was simply not an issue for determination and was consequently, although referenced, not properly addressed. The result was that by disregarding the narrowing effect of the pre-trial minutes and finding that any of these positions constituted an alternative to the retrenchment of the respondents, the Court clearly erred.

Pre-trial minutes: Given the status of a pre-trial agreement as a contract entered into between the parties

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)

Failure to incorporate statement of claim into founding affidavit fatal to the determination of prospects of success.

[8]     The Labour Court noted that the appellants had failed to address their prospect of success in their founding papers. On the basis of the trite principle, that in motion proceedings a party stands or falls by its papers, the Labour Court declined an invitation to consider the statement of claim for purposes of assessing the appellants prospects of success because the statement was not incorporated by reference into the condonation affidavit.

Affidavit and Statement of case

JS87/2018

Molefe and Others v South African Police Service (JS87/2018) [2021] ZALCJHB 18; (2021) 42 ILJ 1240 (LC) (11 February 2021)

[7] The relevant legal principles are well-established. The court has a discretion to allow or refuse an amendment, and in doing so, takes into account the right of a party to amend its pleadings where the amendment is made bona fide, and the rights of the other party to object to the amendment where the amendment has the potential to  prejudice that party. Ultimately, the primary object of permitting an amendment is to obtain a proper ventilation of the dispute between the parties, to determine the real issues between them, so that justice may be done (Cross v Ferreira 1950 (3) SA 443 (CPD). In particular, the court must have regard to whether the text of the amendment is set out in clear and particular terms; an amendment that would render the pleading excipient will ordinarily be granted.

Amendment of statement of claim

J111/21

Ngoye and Others v Passenger Rail Agency of South Africa and Others (J111/21) [2021] ZALCJHB 21; (2021) 42 ILJ 1267 (LC) (2 March 2021)

[28]              Section 77(3) of the Employment Act provides, similarly, that the Labour Court “has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract”. That disputes arising from contracts of employment do not, without more, fall within the exclusive jurisdiction of the Labour Court is further made clear by section 77(4) of the Employment Act, which emphasises that the exclusive jurisdiction of the Labour Court referred to in section 77(1)-“does not prevent any person relying upon a provision of [the Employment Act] to establish that a basic condition of employment constitutes a term of a contract of employment in any proceedings in a civil court or an arbitration held in terms of an agreement.”

[27]              However, both the LRA and the Employment Act expressly recognise that there are certain matters in respect of which the Labour Court and the High Court enjoy concurrent jurisdiction. Section 157(2) of the LRA

[18]             Based on what is placed before this Court, I am of the view that this Court has jurisdiction  for the” reasons  appearing  below. Section  157 of  the Labour Relations Act has been given a consistent interpretation by various Courts as to the jurisdiction of this Court.   The Constitutional Court has   put this issue to bed in Baloyi v Public Protector & Others[(2021 (2) BCLR 101 (CC) (4 December 2020).] and held as follows at paragraphs 26 – 29:”[26] By virtue of section 157(1), the Labour Court will enjoy exclusive jurisdiction over any matter “in terms of’ the Employment Act. Matters governed by or concerning the enforcement of a provision of, the Employment Act accordingly fall within the ambit of the Labour Court’s exclusive jurisdiction. The Labour Court and the Labour Appeal Court have held on a number of occasions that “the provisions of section 77(1) do no more than confer a residual exclusive jurisdiction on the Labour Court to deal with those matters that the [Employment Act] requires to be dealt with by the court”.

[33]             The respondents’ contention that the absence of plea of a breach of contract disentitles the applicants a claim of unlawfulness in respect of their termination cannot in my view be sustainable in the context of this matter. By acting in a manner that is contrary to the terms of a contract, on its own amounts to breach which is unlawful. It is immaterial on how it is pronounced.   The unlawfulness may as a result occur. The Court in Ngubeni v National Youth Development Agency & Another[[2014] 35 ILJ 1356 (LC).] found the employer’s conduct to be in breach of contract for termination of the employee’s contract in violation of the terms of the contract and concluded at paragraph 21 as follows:

[21] In so far as the remaining requirements relevant to the relief sought are concerned, there is no alternative remedy that is adequate in the circumstances. Ngubeni has no right to pursue a contractual claim in the CCMA, and the law does not oblige him to have recourse only to any remedies that he might have under the LRA. Equally, he is fully entitled to seek specific performance of his contract, and is not obliged to cancel the agreement and claim damages. The balance of convenience dictates that the order sought should be granted – there is little inconvenience to the NYDA should it continue with and complete the disciplinary hearing; the result may well be the same. For Ngubeni, the effect of the NYDA’s decision to terminate his employment at this stage is to deprive him of his employment and livelihood. Similarly, I am satisfied that Ngubeni will suffer irreparable harm should the application not be granted. He stands to suffer financially, and the high public profile of this matter (it is not specifically denied that much of the raising of this profile has been at the instance of the NYDA) has ensured that Ngubeni has been branded as corrupt and dishonest, with little prospect of alternative employment.

[37]…The respondents’ act of terminating the applicants’ contracts of employment with immediate effect gives rise to unlawfulness on account of violation of the terms and conditions of the applicants’ contracts of employment.

Jurisdiction: unlawfulness

J 533/2021

Marhule v Minister of Home Affairs and Others (J 533/2021) [2021] ZALCJHB 63 (30 May 2021)

Mantzaris v University of Durban – Westville and Others [2000] 10 BLLR 1203 (LC) at 1212; MEC for Education, North West Provincial Government v Gradwell (JA58/10) [2012] ZALAC 8; [2012] 8 BLLR 747 (LAC); (2012) 33 ILJ 2033 (LAC) at para 46

[13]       Even more fatal to the applicants application is that to the extent that he seeks declaratory order in respect of the issue surrounding legal representation and the Chairpersons ruling in that regard, it has long been stated that a declaratory order will normally be regarded as inappropriate where the applicant has access to alternative remedies, such as those available under the unfair labour practice jurisdiction[6].

declaratory order

Booysen Bore Drilling (Pty) Ltd v National Union of Mineworkers and Others (2011) 32 ILJ 2075 (LAC) at para 13.

Insofar as the application for condonation is concerned, this could only be entertained by the Labour Court on notice to the appellant. The notice was necessary in the light of the wording of the application for condonation and the failure by the respondents to comply with rule 7(e) of the rules that regulate proceedings in the Labour Court or to call upon the appellants to file their opposition, if any, to the application within a given time

A Transport and Allied Workers Union and Another v Tokiso Dispute Settlement and Others (2015) 36 ILJ 1841 (LAC) at para 18.

where the steps constitutes a jurisdictional step, a time-limit, and the party is out of time then, in the absence of an application for condonation, a court cannot come to the party’s assistance.

Notice of Motion must have prayer for condonation, if sought

JR 764/18

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

[49]…Clause 11.2.3 is undoubtedly, in my view, intended to be proactive. It specifically provides for extension of time by way consent being sought from the other party and the Judge President being approached, during that period, referring to the 60 days deadline. It is simply not appropriate nor competent to wait until the deadline expires and then only try to extend the period. By that time, the review application is already withdrawn, and there is simply no longer an operative deadline that can be extended. All that remains is for the applicant to apply for reinstatement of the review application and condonation for her failure.

[51]        The final problem is the manner in which the applicant sought to bring the application to extend the time period. It simply could not be brought in the form of an ordinary motion to be dealt with in the ordinary course on the motion roll. Again, the application for extension is a proactive measure addressed to the Judge President and is then allocated to a Judge in chambers to deal with.

Zono v Minister of Justice and Correctional Services; In Re: Minister of Justice and Correctional Services v Zono and Others [2020] 11 BLLR 1160 (LC) at para 17. See also Mlalandle (supra) at para 6.9; MJRM Transport (supra) at para 21.

Jele was clearly aware of the deadline, and his failure to meet it. What he fails to explain is why he did not have recourse to the procedure established by clause 11.2.3 as soon as he realised that the record would not be available in time. He did not seek the consent of the employees attorneys to any extension of time within which to file the record, nor did he seek a directive from the Judge President. What clause 1.2.3 affords is a remedy to an applicant in a review when difficulties in filing the record timeously are encountered. All that need to be done is to seek an extension by consent, failing which the Judge President may be approached to issue any directive appropriate in the circumstances, given the particular difficulties that may have been encountered in preparing the record. It is not open to an applicant simply to ignore these remedies and continue with the preparation of the record as if the 60-day time limit did not exist. It should be recalled that in terms of the practice manual, a review application is to be treated with the same degree of urgency and diligence as an urgent application. What the facts disclose in the present instance is an approach that displays no sense of urgency or even any sense of concern that the applicant was in breach of its obligations.

[53]        This leaves the reinstatement part of the application. It is of course true that a reinstatement application to revive a review application deemed to be withdrawn under clause 11.2.3 can be brought at any time. This application takes the form of a condonation application. As held in Zono supra[20]:An application for reinstatement of a review application deemed to have been withdrawn is, in essence, an application for condonation. It is incumbent on the applicant to show good cause why, in this case, the record of the proceedings under review was not filed within the prescribed time limit. Condonation is not there merely for the asking, nor are applications for condonation a mere formality

[68]…As such, there is no review application properly before this Court to consider, and this Court has no jurisdiction to entertain the same.

[76]        In conclusion, and in the end, none of the applicants contentions on the merits of her review application matter, because this Court simply has no jurisdiction to entertain the same in the first place. Accordingly, the applicants review application must be dismissed for want of jurisdiction.

[76]        In conclusion, and in the end, none of the applicants contentions on the merits of her review application matter, because this Court simply has no jurisdiction to entertain the same in the first place. Accordingly, the applicants review application must be dismissed for want of jurisdiction.

Practice Manual, Clause 11.2.3. (sixty days)

JR 764/18

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

[65]…In terms of this clause, the applicant was required to have filed all the necessary papers for the prosecution of the review application, within 12 months of the filing of her review application. These necessary papers in my view include a proper and complete record, as well as the supplementary affidavit in terms of Rule 7A(8)(a) or at least notice as contemplated by Rule 7A(8)(b)

Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC) at para 17.

is also in all material respects similar and related to an application for condonation.[28] In Samuels v Old Mutual Bank[29] the Court held: In essence, an application for the retrieval of a file from the archives is a form of an application for condonation for failure to comply with the court rules, time frames and directives. Showing good cause demands that the application be bona fide; that the applicant provides a reasonable explanation which covers the entire period of the default; and show that he/she has reasonable prospects of success in the main application, and lastly, that it is in the interest of justice to grant the order.

Macsteel Trading Wadeville v Van der Merwe NO and Others (2019) 40 ILJ 798 (LAC) at para 25.

As indicated, the review application was archived and regarded as lapsed as a result of NUMSAs failure to comply with the Practice Manual. There was also no substantive application for reinstatement of the review application, and no condonation sought for the undue delay in filing the record. As contended for by Macsteel, the Labour Court was, as a matter of law, obliged to strike the matter from the roll on the grounds of lack of jurisdiction

[68]…As such, there is no review application properly before this Court to consider, and this Court has no jurisdiction to entertain the same.

clause 11.2.7 of the Practice Manual

JS412-20

Muller v Mpumalanga Tourism and Park Agency (JS412-20) [2021] ZALCJHB 76 (2 June 2021)

Gcaba v Minister of Safety and Security and Others 2010 (1) SA 238 (CC)

75. Jurisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa [supra] and not the substantive merits of the case. If Mr Gcabas case were heard by the High Court, he would have failed for not being able to make out a case for the relief he sought, namely review of an administrative decision. In the event of the Courts jurisdiction being challenged at the outset (in limine), the applicants pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the Courts competence.(Own emphasis)

[28]    the Labour Appeal Court also considered  the Labour Court’s  jurisdiction  having regard to section 77(3) of the BCEA. In Rand Water v Stoop and Another[(2013) 3 for ILJ 579 (LAC)] the Labour Appeal Court held that the Court had jurisdiction where an employer claims damages from the former employee arising from the provisions of the contract of employment whether explicit or implied, provided the contractual provisions are pleaded.

[29]    In summary, the authorities referred to, require of the applicant to plead a contractual term and the breach thereof. The Court must only look at the pleading and not consider any evidence or look at the substantive merits of the case, except in this matter also at any agreed facts..[30]       Having regard to the applicant’s statement of claim, he pleaded that the policy forms part of his contract of employment. He therefore relies upon a contractual term for the relief he claims. In addition, the applicant pleaded that it is the respondent that is obliged in terms of the contract of employment to pay him the benefit.[31]       In summary, the applicant pleads that in terms of a contractual term incorporating the policy, he is entitled to benefits to be paid by the respondent. That brings the claim, as pleaded, within the ambit of section 77 of the BCEA.

Pleadings ito Section 77(3)

JS844-20

Coetzee v Ivanhoe Mines SA (Pty) Ltd (JS844-20) [2021] ZALCJHB 78 (2 June 2021)

[9]          In Irving v AMIC Trading (Pty) Ltd [(JS104/2014) 2014 ZALCJHB 418 at [14] and [15]] the Labour Court held that a plaintiff cannot, in responding to an exception, rely on the fact that apart from the allegations contained in the statement of case, the defendant of his own knowledge, knows what case he is required to meet. It is incumbent upon the applicant to set out her case.

[10]       In respect of Rule 6, in Harmse v City of Cape Town[[2003] 6 BLLR 557 (LC], Waglay J (as he then was) said the following:”[6]   The statement of claim serves a dual purpose. The one purpose is to bring a Respondent before the Court to respond to the claims made of and against it and the second purpose of a statement of claim is to inform the Respondent of the material facts and the legal issues arising from those facts upon which applicant will rely to succeed in its claims.

[7]  The material facts and the legal issues must be sufficiently detailed to enable the Respondent to respond, that is, that the Respondent must be informed of the nature or essence of the dispute with sufficient factual and legal particularity so that it knows what it is that the Applicant is relying upon to succeed in its claim.[8]   The Rules of this Court do not require an elaborate exposition of all facts in their full and complex detail  that ordinarily is the role of evidence, whether oral or documentary. There is a clear distinction between the role played by evidence and that played by pleadings  the pleadings simply give the architecture, the detail and the texture of the factual dispute are provided at the trial.

The pre-trial conference provides an occasion for the detail or texture of the factual dispute to begin to take shape. In terms of rule 6(4)(b) the parties in the pre-trial conference must attempt to reach consensus on facts that are common cause, facts that are in dispute, the issues that the Court is required to decide and the precise relief claimed. “[11]       The applicant is obliged to plead various relevant facts that she would rely upon. The statement of case does not contain those factual allegations. The absence of such facts will also make it impossible at a pre-trial meeting to reach consensus on facts in dispute and those who are disputed.

Pleadings: Statement of Case

JS844-20

Coetzee v Ivanhoe Mines SA (Pty) Ltd (JS844-20) [2021] ZALCJHB 78 (2 June 2021)

Liquid Telecommunication (Pty) Ltd v Carmichael-Brown (2018) 39 ILJ 1779 (LC) (27 March 2018)

“[12] As a starting point, the Uniform Rules are not applicable to proceedings in this court. Rule 11 of the Rules of this Court provides, amongst other things, that if a situation arises for which the Rules do not provide the court may adopt any procedure that it deems appropriate (own emphasis) in the circumstances (see Rule 11 (3)).[13] Rule 11 (3) has often been cited as a basis for applying the Uniform Rules into this courts practice and procedure. This court has recognised that in the absence of any Rule concerned specifically with exceptions, parties may, under Rule 11, have recourse to Rule 23 of the Uniform Rules (see, for example, Volscenck v Pragma Africa (Pty) Ltd (2015) 36 ILJ 494 (LC)). But this court has never gone so far as to suggest that parties are obliged or entitled to conduct litigation in this court on the basis of the Uniform Rules.  It is clear from the formulation of Labour Court Rule 11 (3) that the Uniform Rules are not a form of default procedure in this court, nor is it open to litigants and their representatives to rely selectively on the Uniform Rules in the conduct of litigation in this court. Rule 11 (3) is permissive, and provides that the court (not the parties and their representatives) may sanction the use of a procedure not contemplated by the Rules when this is appropriate. In other words, Rule 11 (3) establishes a procedural mechanism for the convenience of the court. It is not an invitation to practitioners to invoke the Uniform Rules and conduct litigation in this court on the basis that the Uniform Rules apply.

[14] This is not to say that there is no procedure applicable in this court when a party contends that a pleading is vague and embarrassing, or discloses no cause of action or defence. Until the Rules of this court are amended so as specifically to regulate the filing of exceptions, Rule 11, as this court has held, is an appropriate basis on which to file an exception, and that Uniform Rule 23 is an appropriate guide as to when and how an exception should be filed. What I wish to emphasise is that this limited application of Rule 11 is not the gateway to the wholesale importation and application of the Uniform Rules, and thereby the creation of a parallel system of procedure in this court. In the present instance, for example, the thrust of the excipients complaints is that the respondent has failed to comply with the provisions of Uniform Rule 18, which regulates generally pleadings in the High Court. Whether or not the respondents statement of claim is excipiable is to be determined by reference to Rule 6 of the Rules of this court, not Rule 18 of the Uniform Rules. Rule 6 requires no more than that a party referring a statement of claim record in a concise manner the relevant facts on which that party relies, and also in concise terms, the legal issues that arise. In the absence of any directive to the contrary, this is all that is required, and the standard against which any pleading is to be measured.”

[18]       In the absence of an amendment to her statement of claim, this matter cannot proceed orderly to a pre-trial conference. The purpose of a pre-trial conference is to deal with the factual and legal issues and to separate the admitted facts from the facts in dispute. The material facts and legal issues contained in the statement of case must be sufficiently detailed to enable the respondent to respond and that means[5]:that the Respondent must be informed of the nature or essence of the dispute with sufficient factual and legal particularity so that it knows what it is that the Applicant is relying on upon to succeed in its claim.”[19]        Van Niekerk J clearly stated that[6]:”[17] Care must be taken to distinguish the facts which must be proved in order to disclose a cause of action from the facts necessary to prove them. The determination of the latter, in each particular case, is essentially a matter of substantive law rather than procedure (Alphedie Investments (Pty) Ltd v Greentops (Pty) Ltd  1975 (1) SA 161 (T)).”

2.        The applicant’s statement of claim is vague and embarrassing lacking the factual  averments to enable the respondent to plead.         3.        The applicant is granted 14 days in which to amend her statement of claim, if she so wishes, failing which the statement of claim is struck out.

Exception

JS 900-19

Nefale v Office of the Premier Gauteng Province (JS 900-19) [2021] ZALCJHB 84 (2 June 2021)

[7]          There is no provision in the Rules to add a second statement of case once a statement of case has been served and filed and has not been withdrawn. The correct procedure for an applicant would be to give notice of an intention to amend, followed by an amendment if it is not objected to. Otherwise the first statement of defence must be withdrawn.

1.        The applicant’s (second) statement of case dated 24 November 2020 is set aside as an irregular proceeding.

Statement of Case

JA39/20

Groom v Daimler Fleet Management (Pty) Ltd (JA39/20) [2021] ZALAC 23; (2021) 42 ILJ 2179 (LAC); [2021] 11 BLLR 1079 (LAC) (4 August 2021)

[59]     There is no doubt that the Labour Court had jurisdiction to determine the main claim of the appellant. The defence involving the invocation of the deeming provision, albeit by way of a rule 11 application, and the counter-application, which is also interlinked to that application, are ancillary or incidental to the Labour Courts determination of the main claim.[60]     Section 12 of the 1973 Companies Act does not preclude the Labour Court from assuming and exercising jurisdiction in respect of any ancillary aspects to a claim that is before it, and in respect of which it has jurisdiction. It is also a trite principle that if a court has jurisdiction in the main action it also has jurisdiction in any ancillary matter to that main claim[14].[61]     Convenience is a key consideration. In terms of the common law principle of causae continentia, for example, in order to avoid duplication of proceedings, or conflicting decisions in the same matter, or in order to dispose of cases more conveniently: (a) more than one claim against different persons or in respect of different things in different jurisdictional areas may be joined in one process before one court if it could be said that together they really constituted one case in that the one began where the other ended; and (b) one indivisible obligation in respect of an indivisible thing which was situated in two different jurisdictional areas may be enforced in any of the areas concerned. [See: NCS Plastics (Pty) Ltd v Erasmus 1973 (1) SA 275 (O) at 278A; and Joubert et al (eds) LAWSA (First Re-Issue) Vol 11 para 451  Jurisdiction.]

JURISDICTION: Rule 11: deemed dismissed ito Companies act: appellants unfair dismissal claim against the respondent to be deemed abandoned, as contemplated in section 359(2)(a) of the 1973 Companies Act for failing to give the requisite notice, and dismissing it.

JA25/2020

Ntsimane and Others v Memela (JA25/2020) [2021] ZALAC 27 (6 September 2021)

[11]   A day before the grant of the leave to appeal, the respondent had brought an application in terms of section 18 of the Superior Courts Act[1] for an order directing the immediate implementation of the order made by Whitcher J pending the outcome of the application for leave to appeal, or any future appeal that is to be noted by the appellants against that order.[12]   The section 18 application was heard by Prinsloo J on 5 September 2019, and was dismissed on 11 September 2019. The court made no costs order in respect of that application, having found, in essence, that since the appellants had done nothing further to prosecute the appeal after having been granted leave to appeal by Whitcher J, the appeal had lapsed, and that, in effect, a section 18 order was not appropriate as the order of Whitcher J had become operative again and that the appellants had to comply with it.

section 18 of the Superior Courts Act for an order directing the immediate implementation of the order  pending the outcome of the application for leave to appeal

J735/21

National Union of Metal Workers of South Africa v Eskom Holdings SOC Ltd and Others (J735/21) [2021] ZALCJHB 182; [2021] 10 BLLR 1049 (LC) (6 July 2021)

[20]        In summary, on application of the stare decisis et quieta non movere, this Court is bound to follow its previous decision which settled the question whether an employer acts unlawfully by implementing its final offer in wage negotiations. The protection that NUMSA seeks with regard to the unilateral variation lies in section 64 (4) of the LRA. The parties involved herein have deadlocked and bargaining is over. Properly interpreted section 74 (4) of the LRA does not give NUMSA any further rights than that of referral to arbitration, which right is not under threat and has been exercised. The section does not gag Eskom from implementing its offer or vary the conditions. The doctrine of res judicata and issue estoppel finds no application in this matter. Thus NUMSA has failed to demonstrate a clear right protectable by an interdictory relief nor a declaratory relief. Accordingly, the application is bound to fail with no order as to costs owing to the continuing bargaining relationship between the parties.

[7]The literal meaning of this doctrine expressed in Latin is to stand by things decided and not disturb settled points. In modern days, the doctrine is named binding precedent. The legal position around this doctrine is that the doctrine not only binds lower Courts but also binds the Court of final jurisdiction to their own decisions, Courts can depart from a previous decision of their own only when satisfied that the decision is clearly wrong. This is a manifestation of the rule of law which is the founding value of our Constitution. To deviate from this rule is an invitation of legal chaos. Further anything in a judgment that is subsidiary is considered to be said along the way side or stated as part of the journey (obiter dictum) is not binding on subsequent Courts.

stare decisis et quieta non movere

JS 746/17; JS 643/18; JS 210/18

National Union of Mineworkers and Others v BMW (South Africa) (Pty) Ltd (JS 746/17; JS 643/18; JS 210/18) [2021] ZALCJHB 142 (7 July 2021)

[53]        It is trite that a party is entitled to apply for an amendment of its pleadings at any time prior to the Court handing down a judgment, in which instance the Court will have due regard to the prejudice to the other party [NUMSA v Driveline Technologies (2002) 21 ILJ 142 (LAC).]. The court has a discretion, which must be exercised judicially, to grant or refuse the amendment.[54]        In Strauss v Investec Group Ltd [(2004) 25 ILJ 576 (LC).] the Court confirmed that the primary object of allowing an amendment is to obtain a proper ventilation of the dispute between the parties, to determine the real issues between them, so that justice may be done.[55]        In Sondorp and Another v Ekurhuleni Metropolitan Municipality [(2013) 34 ILJ 3131 (LAC). Also see: Peake v Global Technology Ltd [2004] 3 BLLR 266 (LC); East Cape Midlands College v Abdullah  [2018] 8 BLLR 788 (LC).] (Sondorp) the employees applied for the amendment of their statement of case after the employer already led its evidence and closed its case.

[84]        I accept that an amendment should be refused on the grounds of excipiability where it is clear that the amended pleading will be excipiable.

[87]        Considering and applying the principles set out in Sondorp, I am inclined to allow the amendment sought by BMW for the reasons set out infra.

[90]        Generally, an amendment will be allowed if the main issue remains the same. In casu I am satisfied that the main issue remains the same as BMW is not introducing a new defence.[91]        In Sondorp the Labour Appeal Court made it clear that an amendment should be allowed even if new claims are introduced if there is no specific prejudice caused to the other party which cannot be compensated by costs. The exercise of judicial discretion, in relation to amendment of pleadings, has to reflect a degree of generosity on the part of the Court.[92]        Prejudice to the Applicants is a main consideration and I am alive to the fact that the individual applicants are elderly persons who have been waiting for a Court date for some time and that a delay in finalising this matter, will be prejudicial to them.[93]        However, this Court should also ensure that as much relevant facts and material as possible are placed before it, to facilitate and expedite the determination of the real issue between the parties. This is a factor that weighs heavily in BMWs favour.[94]        The amendment should be permitted as it would be reasonable and necessary to do so in the determination of the real issue between the parties.

The law on amendment of pleadings

JS 129/21

Motloung and Others v Hesmona Plaster (Pty) Ltd (JS 129/21) [2021] ZALCJHB 163 (20 July 2021)

[11]          As earlier indicated, Mr Jooste, for the respondent introduced a further preliminary point which was that only the first (4) four pages of the founding affidavit that is filed on behalf of the applicants was initialled at the bottom of the page. It was then submitted that there was no proper affidavit before the Court in that the version of the applicants was not confirmed.[12]          In this regard, the Court was referred to the decision of the High Court in Absa Bank Ltd v Botha NO and Others [2013] 5 SA 563 (GNP) and it was submitted that in order for the evidence in the affidavit to be admitted, it is incumbent on the deponent to ensure that the papers before the Court are in order and that the version is confirmed.[13]          Mr Monera, for the applicants submitted that there was substantial compliance in that most of the pages were initialled and that the deponent signed at the end of the affidavit and the commissioner confirmed that the deponent confirmed knowledge of the contents of the affidavit and that he is bound by the contents thereof.[14]          In ABSA Bank Ltd v Botha, NO and Others referred to in [Para12] above, the Court held [ at Para 8 of the judgment] that: subject to whether there has been substantial compliance with the regulations, the Court has a discretion to refuse an affidavit which does not comply with the regulations.[15]          In Exparte Du Toit [1962] 1 SA 445 (E.C.D), it was held that the requirement of signature is merely directory and not peremptory in that there is no endorsement that says in the absence of a certificate by a commissioner of oaths the affidavit would be invalid.[16]          It is to be noted that in the matter before this Court, only a few pages were not initialled. The deponent initialled some of the pages and appended his signature at the end of the affidavit and the commissioner of oaths signed the certificate that deponent understood the contents thereof.  In this regard, I find that there was substantial compliance with the regulations. Accordingly, this preliminary point must also fail.

Affidavit not signed on all pages

JS 129/21

Motloung and Others v Hesmona Plaster (Pty) Ltd (JS 129/21) [2021] ZALCJHB 163 (20 July 2021)

[27]          In Universal Products Network (Pty) Ltd v Mabaso & Others [2006] 3 BLLR 274 (LAC), the Court held inter alia that litigants should not necessarily be debarred because of the negligence of their attorneys. The prospects of success should also be considered.

negligence of attorney

JR662/18

Bamuza v Skweyiya NO and Others (JR662/18) [2021] ZALCJHB 160 (21 July 2021)

4.     The Third Respondent raised a point in limine to the effect that the Applicant has failed to comply with the provisions of section 2(1) of the State Liability Act 20 of 1957. Section 2(1) of the State Liability Act provides that;    In any action or other proceedings instituted against a Department, the Executive Authority of the Department concerned must be cited as the nominal Defendant or Respondent.

5.     It is the Third Respondents case that the failure of the Applicant to join the Minister of Labour is fatal. The Third Respondent in their Heads of Arguments also referred to the Constitutional matter of Nyathi v MEC for Department of Health, Gauteng and Another 2008 (5) SA 94 (CC) where it was held that;    A litigant such as the Applicant in this matter brings the relevant national or provincial Department before a Court by citing the Political Head for that Department as provided for in s2 of the Act.

6.     It is indeed correct that the Applicants did not cite the Minister of Labour in these proceedings. The submission of the Applicant is that in review proceedings of this nature it is customary to cite only the Department and not the Minister and such practice has developed in this Court.

cite party to review application

JR879/18

Kunene v Sithole NO and Others (JR879/18) [2021] ZALCJHB 196 (27 July 2021)

[14]        In South African Breweries (Pty) Ltd v Louw[(2018) 39 ILJ 189 (LAC)] the Labour Appeal Court (LAC) was required to, inter alia, determine a complaint by the appellant that the court a quo decided the case on factual issues not properly put before it on the pleadings, nor as refined in the pre-trial conference minute. The LAC held in respect of a pre-trial minute that[4]:

In short, a minute of this sort is an agreement from which one cannot unilaterally resile. .The chief objective of the pre-trial conference is to agree on limiting the issues that go to trial. Properly applied, a typical minute  cum  agreement will shrink the scope of the issues to be advanced by the litigants. This means, axiomatically, that a litigant cannot fall back on the broader terms of the pleadings to evade the narrowing effect of the terms of a minute. A minute, quite properly, may contradict the pleadings, by, for example, the giving an admission which replaces an earlier denial. When, such as in the typical retrenchment case, there are a potential plethora of facts, issues and sub-issues, by the time the pre-trial conference is convened, counsel for the respective litigants have to make choices about the ground upon which they want to contest the case. There is no room for any sleight of hand, or clever nuanced or contorted interpretations of the terms of the minute or of the pleadings to sneak back in what has been excluded by the terms of a minute. The trimmed down issues alone may be legitimately advanced. Necessarily, therefore, the strategic choices made in a pre-trial conference need to be carefully thought through, seriously made, and scrupulously adhered to. It is not open to a court to undo the laces of the strait-jacket into which the litigants have confined themselves.

[15]        It is trite that there are no pleadings in CCMA proceedings. However, a pre-arbitration minute is nothing else than the product of a pre-trial conference conducted at the CCMA and the same principles apply. It constitutes an agreement between the parties, it narrows the scope of the issues and it sets the terms of reference for the conduct of the proceedings.

Pre-trial minutes

JR 1106/16

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

[67]        The applicant contends, in argument, that she is entitled to raise the issue of the protected disclosure again, because the order of Coetzee AJ on 31 July 2015 is manifestly wrong. In support of this contention that the order was wrong, the applicant relies on the judgment of Association of Mineworkers and Construction Union and Others v Ngululu Bulk Carriers (Pty) Ltd (In Liquidation) and Others.[(2020) 41 ILJ 1837 (CC).] In terms of this judgment, it was indeed held that an automatic unfair dismissal dispute per se does not have to be referred to the CCMA, and that such a dispute would be contemplated by any unfair dismissal referral. This is obviously contrary to what Coetzee AJ had decided. The problem is that even if this is so, the applicant, no matter what the cause, seeks to do nothing else but undoing the order of Coetzee AJ without that order ever being set aside. That is not permissible. The principle in this regard is settled, and is articulated in Minister of Home Affairs and Others v Somali Association of South Africa and Another[2015 (3) SA 545 (SCA) para 34. See also Ndabeni v Municipal Manager: OR Tambo District Municipality 2021 JDR 0066 (SCA) at para 9; Whitehead v Trustees, Insolvent Estate of Dennis Charles Riekert 2020 JDR 2098 (SCA) at para 18.] as follows: In Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd para 17 it was put thus: “As Froneman J observed in Bezuidenhout v Patensie Sitrus Beherend Bpk 2001 (2) SA 224 (E) at 229B-C:”An order of a court of law stands until set aside by a court of competent jurisdiction. Until that is done the court order must be obeyed even if it may be wrong (Culverwell v Beira  1992 (4) SA 490 (W) at 494A-C). A person may even be barred from approaching the court until he or she has obeyed an order of court that has not been properly set aside (Hadkinson v Hadkinson  [1952] 2 All ER 567 (CA); Bylieveldt v Redpath  1982 (1) SA 702 (A) at 714).”[68]        As was in fact done by the litigants in Ngululu supra, the applicant should have appealed the order of Coetzee AJ. She elected not to do so. She further elected to acquiesce in the order, and recommence her case in the CCMA. Therefore that order, right or wrong, stands. It is not for this Court to simply ignore the order as if it does not exist and did not determine the issue, just because the applicant may now have a case that it is wrong.[ Clipsal Australia (Pty) Ltd and Others v GAP Distributors and Others 2010 (2) SA 289 (SCA) at para 22.] As said in Somali Association supra:[ibid 33] The cornerstone of democracy and the rule of law is the uncompromising duty and obligation upon all persons, more especially state departments, to obey and comply with court orders. There are processes in place for those who disagree with court orders. But they are not free to simply turn a blind eye to the order nor do they have any discretion to not obey it

[70]        The concept of peremption was dealt with in detail in National Union of Metalworkers of SA and Others v Fast Freeze[(1992) 13 ILJ 963 (LAC). It is also apposite to refer to the following dictum at 969I970A:  If a party to a judgment acquiesces therein, either expressly, or by some unequivocal act wholly inconsistent with an intention to contest it, his right of appeal is said to be perempted, ie he cannot thereafter change his mind and note an appeal. Peremption is an example of the well-known principle that one may not approbate and reprobate, or, to use colloquial expressions, blow hot or cold, or have one’s cake and eat it. Peremption also includes elements of the principles of waiver and estoppel.], and the Court summarized the following pertinent principles:[Id at 973F974C. See also Natal Witness v Govender and Others (2010) 31 ILJ 2339 (LAC) at para 24; National Union of Metalworkers of SA on behalf of Thilivali v Fry’s Metals (A Division of Zimco Group) and Others (2015) 36 ILJ 232 (LC) at para 41, and all the authorities cited in paras 42  45 of that judgment; Mdhluli v Commission for Conciliation, Mediation and Arbitration and Others (2018) 39 ILJ 1614 (LC) at paras 13  16.](a) Where a right to appeal exists, the party desiring to appeal loses the right to appeal where he has acquiesced in the judgment.(b) Such acquiescence may be express, or implied from the conduct of such party.(c) Acquiescence by conduct requires an overt act by such party, ie conduct which conveys outwardly to the other party his attitude towards the judgment.(d) The overt act must be consistent with an intention to abide by the judgment, and inconsistent with an intention to appeal against such judgment.(e) The test is objective. It is the outward manifestation of such party’s attitude in relation to the judgment that must be looked at, not his subjective state of mind or intention.(f) Where there is such overt conduct, a mental reservation or resolve not to acquiesce in the judgment will not avail the party who by his conduct evinces an intention to abide by the judgment.(g) The state of mind of the party mentally reserving his right to appeal must yield to his conduct which plainly contradicts such an intention.(h) The court must be satisfied that the conduct in question, when fairly construed, necessarily leads to the conclusion that the party intends abiding by the judgment.(i) If more than one inference may fairly be drawn from the conduct in question, this will not be sufficient to prove renunciation. The conduct must be unequivocal.(j) The onus of proving that a party has renounced his right to appeal rests on the party alleging such renunciation.(k) Voluntary payment, or acceptance of payment, as the case may be, in terms of a judgment, will usually be sufficient to satisfy a court that the party has acquiesced in the judgment.’

judgement which is regarded as wrong only be corrected on appeal

JR99/2021

Solomons v Phokela NO and Others (JR99/2021) [2021] ZALCJHB 192 (2 August 2021)

[12]        In my view, the usage of the phrase dismiss the matter in section 138 (5) (a) is truly unfortunate. The grammatical meaning of the word dismiss in law is to adjudicate (a cause of action) as insufficient to proceed further in Court because of some deficiency in law or fact. There can be no dispute that a dismissal in the context of the section happens without considering the merits and the demerits of a dispute over the alleged unfair dismissal. Cameron JA, as he then was in Commissioner for SARS v Hawker Air Services (Pty) Ltd[2006 (4) SA 292 (SCA).] quibbled with an order dismissing an application due to lack of urgency. He held that the appropriate order is ordinarily to strike the application from the roll to enable the applicant to set the matter down again on proper notice. This view was unquestionably accepted by the LAC in PT Operational Services (Pty) Ltd v Rawu obo Ngwetsane[[2013] 3 BLLR 225 (LAC).].

[13]        The LAC in PT Operational approved the view expressed by Jones J in Vena v Vena[2010 (2) SA 148 (ECP).] with regard to the consequences of a dismissal. Jones equated a dismissal of a matter with an order of absolution which instance allows a party to set the matter down again.[14]        Given the authorities traversed above, it may be necessary for the legislature to consider amending the section and be categorical and state that the commissioner may strike off the matter as opposed to dismissing the matter. Such legislative intervention will certainly resolve a situation where indigent employees would not have to content with applications be it rescission, if appropriate, or review seeking to put their foot back into the dispute resolution arena. Such a situation is not in keeping with section 1 of the LRA.[15]        The situation contemplated in the section is no different to the situation catered for in rule 15 of the Labour Court Rules. Dismissing a matter without entertaining the merits of the dispute is certainly not in keeping with section 34 of the Constitution of the Republic of South Africa, 1996.

[21]        To sum up, dismissal of a matter is an exercise of a statutory function and not a ruling within the contemplation of section 144 of the LRA. The bringing of a rescission application was not necessary since Solomons can still re-refer the matter for arbitration as the merits of the referred dispute of unfair dismissal have not been entertained. Put differently, the CCMA has not performed its statutory function contemplated in section 136 (1) read with section 191(5) (a) of the LRA. The dismissal of the matter was nothing but a striking off or withdrawal of the dispute.

meaning of “strike the matter from the role” vs “dismissing application”

JS850/20

Weller v ABSA Bank Limited (JS850/20) [2021] ZALCJHB 207 (2 August 2021)

[13]        On the other hand, the respondent contends that the applicant was required to file his statement of claim upon the expiry of the 30-day period from the date in which he referred his dispute to the CCMA for conciliation.[14]        In this regard, the argument was that there was no need for the applicant to wait for a certificate that was issued almost after a period of 6 months had lapsed from the date in which the applicant referred his dispute to the CCMA. For this argument, the respondent relied on the provisions of section 191(5) of the LRA.

NUM v Hernic Exploration (Pty) Ltd (2003) 24 ILJ 787 (LAC) as well as on NUMSA and Another v BMW SA (Pty) Ltd (2019) 40 ILJ 1818 (LC).

[22]        Hernics point was dismissed by the Labour Court. When Hernic cross-appealed the dismissal of its point, the Labour Appeal Court agreed with the Labour Court. In agreeing with the Labour Court, the Labour Appeal Court stated that:[45]      Section 191(11)(a) is clear in its provision that the referral of a dismissal dispute to the Labour Court for adjudication in terms of section 191(5)(b) must be made within 90 days after the council or the commissioner has certified that the dispute remains unresolved. In any event section 191 which deals with the referral of dismissal disputes to conciliation, arbitration and adjudication does not anywhere provide for such disputes to be referred to the Labour Court for adjudication within 90 days from the expiry of the 30-day period or any extended period.[46]      If the legal position is that, once the 30-day period or the extended period, if there has been an extension, has expired, the commissioner has no power to certify that the dispute remains unresolved, but a commissioner certifies after the expiry of that period, then the position would be that, until the certificate has been set aside by a Court of competent jurisdiction, it stands and must be treated as valid and all concerned can act upon it. (Fidelity Guards Holdings (Pty) Ltd v Epstein NO & Others (2000) 21 ILJ 2382 (LAC). The provisions of section 191(11)(a) would apply as soon as the commissioner has certified that the dispute remains unresolved.

SAMWU obo Manentza v Ngwathe Local Municipality and Others (2015) 36 ILJ 2581 (LAC) which advanced a contrary interpretation from Hernic.

[29]        The Labour Appeal Court disagreed with Manentza. The Court stated that:[28]     I am unable to agree with the interpretation of section 191(5) of the LRA which the appellant contends for. Although the presence of the conjunctive or in section 191(5) of the LRA calls for a disjunctive reading of the provision, I disagree that it gives an employee an election to speed up the process by referring the dispute to arbitration on the expiry of the 30-day period contemplated in the subsection, or wait for conciliation to take place and for a certificate to be issued. On a proper interpretation, section 191(5) of the LRA entitles an employee to refer an unresolved unfair dismissal or unfair labour practice dispute to the CCMA or a bargaining council, in terms of subsection (a) thereof, or for adjudication to the Labour Court, in terms of subsection (b) thereof, upon the occurrence of either of two events: the issue of a certificate of non-resolution of the dispute or the expiry of the 30-day period from either the CCMAs or the bargaining councils receipt of the referral. The effect of this interpretation is that the occurrence of either of these two events entitles an employee to request the bargaining council concerned or the CCMA to arbitrate the dispute in terms of section 191(5)(a) of the LRA or to refer the dispute to the Labour Court for adjudication in terms of section 191(5)(b) thereof.[29]      Section 191(5) of the LRA provides for the occurrence of either of the events: the issue of a certificate or expiry of 30 days from receipt of the referral as an objective fact which founds the employees right to proceed to arbitration or adjudication. The employees entitlement to refer the matter to arbitration or adjudication as contemplated in section 191(5)(a) and (b) of the LRA respectively, does not arise from any election on the employees part as contended for by the appellant, but rather from whichever of the two jurisdictional events occurs first in sequence of time. Thus, where conciliation takes place under the auspices of the CCMA or a bargaining council within the 30-day period contemplated in section 191(5) of the LRA, and a certificate of non-resolution is issued within that period, the employees right to refer the dispute to arbitration or adjudication will be triggered by the issue of the certificate as the jurisdictional event conferring this right. In this case, the subsequent expiry of the 30-day period will play no role in founding the employees right to refer the dispute to arbitration or adjudication.[30]      Similarly, where the 30-day period contemplated in the subsection lapses without the holding of a conciliation proceeding and the CCMA or a bargaining council certifying that the dispute remains unresolved, the lapse of the 30-day period will form the jurisdictional trigger entitling the employee to refer the dispute to arbitration. This right having accrued to the employee upon the lapse of the 30-day period contemplated in section 191(5) of the LRA will not be affected by the convening of any subsequent conciliation proceedings or the issue of a certificate of outcome consequent thereupon. As correctly pointed out by the municipality, in the latter scenario, the issue of the certificate would have no effect in law as it would be superfluous to the employees right to refer the unfair dismissal or unfair labour practice dispute to arbitration since this right would have already accrued to the employee on the lapse of the 30 days from the date that the CCMA or the bargaining council had received the referral. (Emphasis added)

[30]        In the light of the Labour Appeal Court judgment in Manentza, it is clear that for purposes of section 191(5) of the LRA, a certificate of non-resolution is not a sine qua non for referral of a dispute to the Labour Court for adjudication.[31]        If a certificate of non-resolution was a prerequisite for a referral to arbitration or adjudication, the legislature would not have made provision for two jurisdictional events in section 191(5) of the LRA.[32]        It is implicit from section 191(5) of the LRA that conciliation must take place prior to the lapse of 30 days from the date of receipt of the referral by the CCMA or the Bargaining Council.[2] It is also implicit from section 191(5) that the council or the commissioner must issue a certificate of non-resolution prior to the lapse of the 30-day period so as for the certificate to open the jurisdictional door for a referral to arbitration or adjudication of a dispute.[33]        For purposes of section 191(5) of the LRA, once the 30-day period or the extended period has expired, there is absolutely nothing for the council or the commissioner to certify. This must be so because of what I refer to as the certification validity period which is a period of 30 days from receipt of the referral for conciliation by the Bargaining Council or the CCMA.[34]        A certificate of non-resolution issued by the council or the commissioner outside the certification validity period serves no purpose in respect of the employees right to refer the dispute for adjudication to the Labour Court.[3][35]        This is so due to the fact that immediately after the expiry of the 30-day period or the extended period, contemplated in section 191(5) of the LRA, and without the council or the commissioner having issued a certificate of non-resolution, the employee acquires the right to refer a dispute for adjudication.

[36]        The Labour Appeal Court in Manentza put the point across in this manner:[42]     I repeat, that upon the 30-day period expiring prior to the issue of a certificate of outcome, the issue of a certificate is not required to found the employees right of referral of the dispute to arbitration or adjudication. As alluded to above, the issue of a certificate of non-resolution is not a prerequisite for a referral to arbitration or adjudication in these circumstances since the right of referral would have already accrued to the employee on expiry of the 30-day period contemplated in the subsection. To my mind, the issue of a certificate of outcome following such accrual, would be superfluous to the employees right of referral to arbitration, as would be the holding of conciliation proceedings, pursuant to which such certificate is issued, since section 191 of the LRA does not envisage that on the lapse of the 30-day period contemplated in subsection (5), a further attempt at conciliation should be made. Thus, the subsequent holding of conciliation proceedings will have no impact upon the employees right to refer his or her dispute to arbitration or adjudication on the lapse of the 30-day period contemplated in section 191(5) of the LRA.

[1]            There are two issues for determination in this application. The first issue is whether the applicant was required to apply for condonation in respect of his statement of claim. The applicant contends that he was not required to apply for condonation because he referred his dispute to the Labour Court for adjudication within a period of 90 days from the date in which he received a certificate of non-resolution from the Commission for Conciliation, Mediation and Arbitration (the CCMA).[2]            If the answer to the first issue is in the affirmative, the second issue for determination would be whether condonation should be granted to the applicant. Background[3]            For an appropriate appreciation of this matter, it is prudent that I traverse its relevant factual background just in brief.[4]            During October 2014, and in Nigeria, the applicant and the respondent concluded a written contract of employment in terms of which the applicant was employed as the Head of Financial Institutions Trade, Nigeria. The contract of employment was effective from 01 January 2015, and it was for an indefinite period.[5]            The applicants normal place of work was the respondents representative office in Lagos, Nigeria.[6]            There is a dispute about whether the applicant was employed to work for the respondent in Nigeria or was seconded to the respondents representative office in Nigeria. I am not called upon to determine that dispute.[7]            But what is not in dispute is the fact that on 11 February 2020, the respondent retrenched the applicant for operational reasons. The retrenchment[1] was conducted in terms of the Labour Relations Act 66 of 1995 (the LRA).[8]            Unhappy with his retrenchment, on 10 March 2020, the applicant declared an unfair dismissal dispute at the CCMA.[9]            Conciliation was set down for 02 April 2020. Conciliation did not take place on that day because South Africa went into lockdown from midnight 26 March to 30 April 2020 (Alert level 5).[10]        From 13 March up to August 2020, numerous enquiries were made by the applicants attorney to the CCMA regarding conciliation. As stated above, conciliation did not take place but on 03 September 2020, the CCMA issued the applicant with a certificate of non-resolution.[11]        The certificate stated that the dispute was referred to conciliation on 10 March 2020 and it remained unresolved as of 09 April 2020. The certificate was signed and dated 20 April 2020.[12]        On 18 November 2020, the applicant filed his statement of claim at the Labour Court. In view of the fact that the applicant filed his statement of claim on 18 November 2020 having received the certificate of non-resolution on 03 September 2020, the applicant contends that he filed his statement of claim within a period of 90 days as contemplated in section 191(11) of the LRA.[13]        On the other hand, the respondent contends that the applicant was required to file his statement of claim upon the expiry of the 30-day period from the date in which he referred his dispute to the CCMA for conciliation.[14]        In this regard, the argument was that there was no need for the applicant to wait for a certificate that was issued almost after a period of 6 months had lapsed from the date in which the applicant referred his dispute to the CCMA. For this argument, the respondent relied on the provisions of section 191(5) of the Resection 191(5)&(11) of the LRA[15]        Section 191 of the LRA deals with disputes about unfair dismissals and unfair labour practices. Section 191(5) of the LRA provides that:(5)      If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days or any further period as agreed between the parties have expired since the council or the Commission received the referral and the dispute remains unresolved(a)        the council or the Commission must arbitrate the dispute at the request of the employee if(i)         the employee has alleged that the reason for dismissal is related to the employees conduct or capacity, unless paragraph (b) (iii) applies;(ii)        the employee has alleged that the reason for dismissal is that the employer made continued employment intolerable or the employer provided the employee with substantially less favourable conditions or circumstances at work after a transfer in terms of section 197 or 197A, unless the employee alleges that the contract of employment was terminated for a reason contemplated in section 187;(iii)       the employee does not know the reason for dismissal; or(iv)       the dispute concerns an unfair labour practice; or(b)        the employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is(i)         automatically unfair;(ii)        based on the employers operational requirements;(iii)       the employees participation in a strike that does not comply with the provisions of Chapter IV; or(iv)       because the employee refused to join, was refused membership of or was expelled from a trade union party to a closed shop agreement.[16]        Section 191(11)(a) provides that:(11)      (a)      The referral, in terms of subsection (5) (b), of a dispute to the Labour Court for adjudication, must be made within 90 days after the council or (as the case may be) the commissioner has certified that the dispute remains unresolved.[17]        The applicant contends that section 191(11)(a) makes a certificate of non-resolution a prerequisite for a referral of a dispute to the Labour Court for adjudication.[18]        To support his argument, the applicant placed reliance on NUM v Hernic Exploration (Pty) Ltd (2003) 24 ILJ 787 (LAC) as well as on NUMSA and Another v BMW SA (Pty) Ltd (2019) 40 ILJ 1818 (LC).The Hernic judgment[19]        In Hernic, the Labour Appeal Court dealt with a matter whereby members of NUM were retrenched by Hernic. On about 16 December 1998, NUM referred a dispute to the CCMA for conciliation. Hernic did not attend the conciliation. The 30-day period within which the CCMA was required to conciliate the dispute lapsed on 15 January 1999. By the expiry of the 30 days, the certificate of outcome had not been issued by the commissioner. The commissioner issued the certificate of non-resolution on 18 February 1999. No agreement had been reached between the parties to extend the period of 30 days.[20]        At the Labour Court, Hernic took a point in limine to the effect that the CCMA was required by statute to attempt to conciliate a dismissal dispute within 30 days from the date in which the dispute was referred to it unless that period was extended by agreement between the parties.[21]        In this regard, Hernic contended that a commissioner is required to issue a certificate of non-resolution on or before the expiry of the 30-day period (or on or before the last day of the extended period where there has been an extension). Hernics point was that if the commissioner issues the certificate of non-resolution after the expiry of the 30-day period or the extended period, the 90-day period contemplated in section 191(11) starts to run from the expiry of the 30-day period and not from the date of the certification.[22]        Hernics point was dismissed by the Labour Court. When Hernic cross-appealed the dismissal of its point, the Labour Appeal Court agreed with the Labour Court. In agreeing with the Labour Court, the Labour Appeal Court stated that:[45]      Section 191(11)(a) is clear in its provision that the referral of a dismissal dispute to the Labour Court for adjudication in terms of section 191(5)(b) must be made within 90 days after the council or the commissioner has certified that the dispute remains unresolved. In any event section 191 which deals with the referral of dismissal disputes to conciliation, arbitration and adjudication does not anywhere provide for such disputes to be referred to the Labour Court for adjudication within 90 days from the expiry of the 30-day period or any extended period.[46]      If the legal position is that, once the 30-day period or the extended period, if there has been an extension, has expired, the commissioner has no power to certify that the dispute remains unresolved, but a commissioner certifies after the expiry of that period, then the position would be that, until the certificate has been set aside by a Court of competent jurisdiction, it stands and must be treated as valid and all concerned can act upon it. (Fidelity Guards Holdings (Pty) Ltd v Epstein NO & Others (2000) 21 ILJ 2382 (LAC). The provisions of section 191(11)(a) would apply as soon as the commissioner has certified that the dispute remains unresolved.[23]        In between the Hernic judgment and NUMSA v BMW, there was SAMWU obo Manentza v Ngwathe Local Municipality and Others (2015) 36 ILJ 2581 (LAC) which advanced a contrary interpretation from Hernic. The Manentza judgment[24]        On 10 February 2003, Manentza referred an unfair dismissal dispute to the Bargaining Council. The conciliation process was set down on 03 April 2004. However, it was extended for a period of 7 days. The agreement for an extension indicated that depending on the outcome of the municipality’s consultation with its principals, the Bargaining Council would be approached for issuing the certificate of outcome.[25]        After the expiry of 7 days, Manentza requested the Bargaining Council to issue a certificate of outcome. Instead of issuing a certificate of outcome, the Bargaining Council erroneously enrolled the matter for arbitration on 01 December 2003. A certificate of outcome was eventually issued on 15 April 2004.[26]        On 24 June 2004, Manentza referred the dispute to arbitration. The arbitration was set down for hearing on 29 July 2004. At the arbitration, the municipality raised 3 points in limine. The relevant point for the purposes of this judgment is the one that contended that the Bargaining Council lacked jurisdiction to arbitrate the dispute because the referral to arbitration was late as a result of the late issuing of the certificate of non-resolution.[27]        In the appeal, the jurisdictional question turned on the interpretation of section 191(5) of the LRA.[28]        Manentza argued that in terms of section 191(5) read in the context of the LRA as a whole, an employee is entitled to wait for a certificate to be issued before referring a dispute to arbitration because the 90 days only starts to run from the date on which the certificate of non-resolution is issued. Manentza went further and contended that an employee has a choice to speed up the process by referring the dispute to arbitration after the expiry of the 30-day period contemplated in section 191(5) of the LRA but is not obliged to do so.[29]        The Labour Appeal Court disagreed with Manentza. The Court stated that:[28]     I am unable to agree with the interpretation of section 191(5) of the LRA which the appellant contends for. Although the presence of the conjunctive or in section 191(5) of the LRA calls for a disjunctive reading of the provision, I disagree that it gives an employee an election to speed up the process by referring the dispute to arbitration on the expiry of the 30-day period contemplated in the subsection, or wait for conciliation to take place and for a certificate to be issued. On a proper interpretation, section 191(5) of the LRA entitles an employee to refer an unresolved unfair dismissal or unfair labour practice dispute to the CCMA or a bargaining council, in terms of subsection (a) thereof, or for adjudication to the Labour Court, in terms of subsection (b) thereof, upon the occurrence of either of two events: the issue of a certificate of non-resolution of the dispute or the expiry of the 30-day period from either the CCMAs or the bargaining councils receipt of the referral. The effect of this interpretation is that the occurrence of either of these two events entitles an employee to request the bargaining council concerned or the CCMA to arbitrate the dispute in terms of section 191(5)(a) of the LRA or to refer the dispute to the Labour Court for adjudication in terms of section 191(5)(b) thereof.[29]      Section 191(5) of the LRA provides for the occurrence of either of the events: the issue of a certificate or expiry of 30 days from receipt of the referral as an objective fact which founds the employees right to proceed to arbitration or adjudication. The employees entitlement to refer the matter to arbitration or adjudication as contemplated in section 191(5)(a) and (b) of the LRA respectively, does not arise from any election on the employees part as contended for by the appellant, but rather from whichever of the two jurisdictional events occurs first in sequence of time. Thus, where conciliation takes place under the auspices of the CCMA or a bargaining council within the 30-day period contemplated in section 191(5) of the LRA, and a certificate of non-resolution is issued within that period, the employees right to refer the dispute to arbitration or adjudication will be triggered by the issue of the certificate as the jurisdictional event conferring this right. In this case, the subsequent expiry of the 30-day period will play no role in founding the employees right to refer the dispute to arbitration or adjudication.[30]      Similarly, where the 30-day period contemplated in the subsection lapses without the holding of a conciliation proceeding and the CCMA or a bargaining council certifying that the dispute remains unresolved, the lapse of the 30-day period will form the jurisdictional trigger entitling the employee to refer the dispute to arbitration. This right having accrued to the employee upon the lapse of the 30-day period contemplated in section 191(5) of the LRA will not be affected by the convening of any subsequent conciliation proceedings or the issue of a certificate of outcome consequent thereupon. As correctly pointed out by the municipality, in the latter scenario, the issue of the certificate would have no effect in law as it would be superfluous to the employees right to refer the unfair dismissal or unfair labour practice dispute to arbitration since this right would have already accrued to the employee on the lapse of the 30 days from the date that the CCMA or the bargaining council had received the referral. (Emphasis added)[30]        In the light of the Labour Appeal Court judgment in Manentza, it is clear that for purposes of section 191(5) of the LRA, a certificate of non-resolution is not a sine qua non for referral of a dispute to the Labour Court for adjudication.[31]        If a certificate of non-resolution was a prerequisite for a referral to arbitration or adjudication, the legislature would not have made provision for two jurisdictional events in section 191(5) of the LRA.[32]        It is implicit from section 191(5) of the LRA that conciliation must take place prior to the lapse of 30 days from the date of receipt of the referral by the CCMA or the Bargaining Council.[2] It is also implicit from section 191(5) that the council or the commissioner must issue a certificate of non-resolution prior to the lapse of the 30-day period so as for the certificate to open the jurisdictional door for a referral to arbitration or adjudication of a dispute.[33]        For purposes of section 191(5) of the LRA, once the 30-day period or the extended period has expired, there is absolutely nothing for the council or the commissioner to certify. This must be so because of what I refer to as the certification validity period which is a period of 30 days from receipt of the referral for conciliation by the Bargaining Council or the CCMA.[34]        A certificate of non-resolution issued by the council or the commissioner outside the certification validity period serves no purpose in respect of the employees right to refer the dispute for adjudication to the Labour Court.[3][35]        This is so due to the fact that immediately after the expiry of the 30-day period or the extended period, contemplated in section 191(5) of the LRA, and without the council or the commissioner having issued a certificate of non-resolution, the employee acquires the right to refer a dispute for adjudication.[36]        The Labour Appeal Court in Manentza put the point across in this manner:[42]     I repeat, that upon the 30-day period expiring prior to the issue of a certificate of outcome, the issue of a certificate is not required to found the employees right of referral of the dispute to arbitration or adjudication. As alluded to above, the issue of a certificate of non-resolution is not a prerequisite for a referral to arbitration or adjudication in these circumstances since the right of referral would have already accrued to the employee on expiry of the 30-day period contemplated in the subsection. To my mind, the issue of a certificate of outcome following such accrual, would be superfluous to the employees right of referral to arbitration, as would be the holding of conciliation proceedings, pursuant to which such certificate is issued, since section 191 of the LRA does not envisage that on the lapse of the 30-day period contemplated in subsection (5), a further attempt at conciliation should be made. Thus, the subsequent holding of conciliation proceedings will have no impact upon the employees right to refer his or her dispute to arbitration or adjudication on the lapse of the 30-day period contemplated in section 191(5) of the LRA.[37]        On a proper interpretation of the Manentza judgment, it seems to me that the applicant was not entitled to elect to wait for a certificate of non-resolution before making a referral for adjudication to the Labour Court. A certificate of non-resolution was issued on 03 September 2020 in circumstances where the applicant referred his dispute to the CCMA on 10 March 2020.[38]        Therefore, upon the expiry of the 30-day period from receipt of his referral by the CCMA and without the applicant having been issued with a certificate of non-resolution, the lapse of the 30 days presented the applicant with a jurisdictional torch which immediately lights up the pathway for him to file his statement of claim at the Labour Court.[39]        To illustrate the point further, if the applicant is correct in his contention, that would mean the council, or the commissioner has unlimited amount of time within which to issue a certificate of non-resolution. That cannot be so because such event would render the 30-day period in section 191(5) nugatory. Furthermore, such latitude would be against the principle that labour disputes must be resolved expeditiously. The BMW judgment[40]        In BMW, the dispute was referred to the CCMA for conciliation on 15 February 2018. The conciliation process took place on 13 July 2018 and the commissioner issued a certificate of non-resolution. On 11 October 2018, NUMSA referred a dispute to the Labour Court for adjudication.[41]        BMW raised a special plea contending that the dispute was referred for adjudication out of time.[42]        In dismissing the special plea, the Court relied on Hernic and concluded that the remarks of the Labour Appeal Court in Manentza are obiter to the extent that the Manentza judgment made reference to any referral for adjudication.[43]        The Court in BMW stated that:[10]            The SAMWU judgment was one that dealt with a referral made to a bargaining council in terms of s 191(5)(a). The present case is distinguishable; it is a referral for adjudication made in terms of s 191 (5) (b). To the extent that the judgment makes references to any referral for adjudication under s 191(5)(b), these are obiter. Further, it seems to me, contrary to what the respondent submits, that the LAC did not refer to or explicitly overturn Hernic. The judgment makes no reference to s 191 (11), which specifically provides that a dispute be referred for adjudication (as opposed to arbitration) within 90 days of the date that the CCMA certifies that the dispute remains unresolved. There is no corresponding provision that applies to referrals to arbitration. This may well be anomalous, but the plain wording of s 191 (11) draws a clear distinction between the processes of arbitration and adjudication, and the time limits applicable to each.[13]             In summary: in the case of a dispute that is required to be referred for adjudication (as opposed to arbitration), s191(11) requires the dispute to be referred within 90 days of the issuing of a certificate of outcome, regardless of the date of which the 30-day period immediately following the date of referral of the dispute expired. The applicants referral to this Court was made within 90 days of the date of the certificate of outcome, and was thus timeously made. Condonation for a late referral is not required [44]        In my respectful view, section 191(11)(a) of the LRA is about subsection 5(b) and the Labour Appeal Court in Manentza gave a full interpretation of section 191(5). It does not appear anywhere in the Manentza judgment that the interpretation of section 191(5) advanced by the Labour Appeal Court is limited and applicable only to the arbitration proceedings. In my view, the interpretation of section 191(5) by the Labour Appeal Court in Manentza apply with equal force in respect of a referral for adjudication to the Labour Court. Secondly, it was stated in Osenton v Commercial Refrigeration Services (Pty) Ltd (2019) 40 ILJ 1843 (LC) that it could never have been the intention of the Legislature to regulate the same dispute differently in relation to time period for a referral. The Court in that case further held that when interpreting section 191(11)(a) of the LRA, one must have regard to the provisions of subsection 5(b) and that there is no illusion that the referral contemplated in section 191(11) is one in subsection 5(b). Where reference is made to certified, it must mean certified after conciliation or after the expiry of the 30 days and the dispute remaining unresolved. Any other interpretation would render the opening phrase of the section superfluous and meaningless.[Louw v Micor Shipping (1999) 12 BLLR 308 (LC), at para 7.]

procedure: when 90 days started running for referral to court: [48]        Relying on the Manentza and the Osenton judgments, I come to the conclusion that the 90-day period in section 191(11)(a) of the LRA does not start to run only after the certificate of non-resolution is issued. The 90-day period also start to run immediately upon the expiry of the 30-day period contemplated in section 191(5) of the LRA.

[11]   Nevertheless, in this matter, the declarator was pursued under the head of further and alternative relief. Firstly, the law in that regard was clarified as follows. In Geza v Minister of Home Affairs and Another[[2010] ZAECGHC 15 (22 February 2010) at para 12], the following was said: Whatever the ambit of a prayer for further or alternative relief, such relief may only be granted if it is consistent with the case made out by the applicant in her founding affidavit and is consistent with the primary relief claimed. In Johannesburg City Council v Bruma Thirty-Two (Pty) Ltd, Coetzee J described the prayer for alternative relief as being redundant and mere verbiage in modern practice adding that whatever a court can vividly be asked to order on papers as framed, can still be asked without its presence and that it does not enlarge in any way the terms of the express claim as pointed out by Tindall JA[Elefu v Lovedale Public Further Education and others [2016] ZAECBHC 10 (11 October 2016) and National Stadium South Africa (Pty) Ltd and others v First Rand Bank Ltd 2011 (2) SA 157 (SCA)]

pleadings: further and alternative relief

JR 267/20

Macaskill v State Information Technology Agency (Pty) Ltd (SITA) and Others (JR 267/20) [2021] ZALCJHB 220 (11 August 2021)

[12]   On the strength of the above authority, what will navigate a Court to an order is the case made out in the founding papers. Differently put, does the case made out in the founding affidavit justify a declaratory relief? I suppose that before the Court can scour the founding affidavit in search of admissible evidence for the justification, the question to be asked is when can a declaratory order be made? Corbett CJ in Shoba v OC Temporary Police Camp, Wagendrift Dam[1995 (4) SA 1 (A) at 14F-I.], laid the following principle with regard to declaratory reliefs: An existing or concrete dispute between persons is not a prerequisite for the exercise by the Court of its jurisdiction under this subsection, though the absence of such may, depending on the circumstances cause the Court to refuse to exercise its jurisdiction in a particular case  But because it is not the function of the Court to act as an advisor, it is a requirement of the exercise of jurisdiction under this subsection that there should be interested parties upon whom the declaratory order would be binding

[13]   In Proxi Smart Services (Pty) Ltd v The Law Society of SA and others[[2018] 3 All SA 567 (GP)], the High Court, correctly, in my view, held that a Court will not grant a declaratory order where the issue raised before it is hypothetical, abstract and academic, or where the legal position is clearly defined by statute. The Constitutional Court in Competition Commission of South Africa v Hosken Consolidated Investments Ltd and Another[(CCT296/17) [2019] ZACC 2 (01 February 2019)]confirmed that in considering whether or not to grant declaratory relief, two stage approach must be applied; viz (a) the court must be satisfied that the applicant for the relief has an interest in an existing, future or contingent right or obligation; and (b) the court may then exercise its discretion to either refuse or grant the order sought. The Constitutional Court went on to quote with approval Oakbay Investments (Pty) Ltd v Director of the Financial Intelligence Centre[[2017] 4 All SA 150 (GP)].

declaratory relief

JR192/18

FAIS Ombud v Commission for Conciliation, Mediation and Arbitration and Others (JR192/18) [2021] ZALCJHB 281; (2021) 42 ILJ 2603 (LC) (27 August 2021)

[72]   The Rule 11 application filed by the Respondent has to succeed to the extent that Ms Bams authority to institute proceedings has been successfully challenged. It follows that the Applicants review application and subsequent applications were instituted without proper authority. In my view, the appropriate order in these circumstances is to strike the applications from the roll.

authority to bring application, Rule 11

J144/21

National Union of Metalworkers of South Africa and Others v Aircycle Engineering C and Others (J144/21) [2021] ZALCJHB 273; (2021) 42 ILJ 2459 (LC) (8 September 2021)

[8]   In Bruckner v Department of Health and others[(2003) 24 ILJ 2289 (LC).] the Court dealt with the requirements for contempt and it was held that: It is trite that an applicant in a contempt of court application must prove beyond a reasonable doubt that the respondent is in contempt. An applicant must show:(a)    that the order was granted against the respondent;(b)    that the respondent was either served with the order or informed of the grant of the order against him and could have no reasonable ground for disbelieving the information; and(c)    that the respondent is in wilful default and mala fide disobedience of the order.[9]   In Anglo American Platinum Ltd and another v Association of Mineworkers and Construction Union and others[(2014) 35 ILJ 2832 (LC) at para 4.] the Court has held that: The principles applicable in an application such as the present are well-established. In Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA), the Supreme Court of Appeal observed that the civil process for a contempt committal is a ‘peculiar amalgam’ since it is a civil proceeding that invokes a criminal sanction or its threat. A litigant seeking to enforce a court order has an obvious and manifest interest in securing compliance with the terms of that order but contempt proceedings have at their heart the public interest in the enforcement of court orders (see para 8 of the judgment). The court summarized the position as follows at para 42:To sum up:(a)    The civil contempt procedure is a valuable and important mechanism for securing compliance with court orders, and survives constitutional scrutiny in the form of a motion court application adapted to constitutional requirements.(b)    The respondent in such proceedings is not an “accused person”, but is entitled to analogous protections as are appropriate to motion proceedings.(c)    In particular, the applicant must prove the requisites of contempt (the order; service or notice; non-compliance; and wilfulness and mala fides) beyond reasonable doubt.(d)    But once the applicant has proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to wilfulness and mala fides: Should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond reasonable doubt.(e)    A declarator and other appropriate remedies remain available to a civil applicant on proof on a balance of probabilities.'[10]   In Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v Compensation Solutions (Pty) Limited (Matjhabeng) [2017 (11) BCLR 1408 (CC). ] the Constitutional Court confirmed the requisites for contempt of court as follows: I now determine whether the following requisites of contempt of court were established in Matjhabeng: (a) the existence of the order; (b) the order must be duly served on, or brought to the notice of, the alleged contemnor; (c) there must be non-compliance with the order; and (d) the non-compliance must be wilful and mala fide. It needs to be stressed at the outset that, because the relief sought was committal, the criminal standard of proof _ beyond reasonable doubt _ was applicable.

contempt of court

J1579/17

SAMWU obo Dorfling v Gamagara Municipality and Another (J1579/17) [2021] ZALCJHB 293 (18 September 2021)

Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18; 2021 (9) BCLR 992 (CC)

[37]  As set out by the Supreme Court of Appeal in Fakie, and approved by this Court in Pheko II, it is trite that an applicant who alleges contempt of court must establish that (a) an order was granted against the alleged contemnor; (b) the alleged contemnor was served with the order or had knowledge of it; and (c) the alleged contemnor failed to comply with the order. Once these elements are established, wilfulness and mala fides are presumed, and the respondent bears an evidentiary burden to establish a reasonable doubt. Should the respondent fail to discharge this burden, contempt will have been established. (Citations omitted)

contempt of court

JR2803/19

Danga v Commission for Conciliation, Mediation and Arbitration and Others (JR2803/19) [2021] ZALCJHB 336 (5 October 2021)

[12]   The approach to be adopted and applicable considerations were described as follows in Trope v South African Reserve Bank[1992 (3) SA 208 T at 221A-E.] :An exception to a pleading on the ground that it is vague and embarrassing involves a two-fold consideration. The first is whether the pleading lacks particularity to the extent that it is vague. The second is whether the vagueness causes embarrassment of such a nature that the excipient is prejudiced (Quinlan v MacGregor 1960 (4) SA 383 (D) at 393E-H). As to whether there is prejudice, the ability of the excipient to produce an exception-proof plea is not the only, nor indeed the most important, test – see the remarks of Conradie J in Levitan v Newhaven Holiday Enterprises CC 1991 (2) SA 297 (C) at 298G-H. If that were the only test, the object of pleadings to enable parties to come to trial prepared to meet each other’s case and not be taken by surprise may well be defeated. Thus it may be possible to plead to particulars of claim which can be read in any one of a number of ways by simply denying the allegations made; likewise to a pleading which leaves one guessing as to its actual meaning. Yet there can be no doubt that such a pleading is excipiable as being vague and embarrassing – see Parow Lands (Pty) Ltd v Schneider 1952 (1) SA 150 (SWA) at 152F-G and the authorities there cited. It follows that averments in the pleading which are contradictory and which are not pleaded in the alternative are patently vague and embarrassing; one can but be left guessing as to the actual meaning (if any) conveyed by the pleading.

[13]   In Harmse v City of Cape Town[(2003) 24 ILJ 1130 (LC),] the Court held that a statement of claim serves a dual purpose; one being to bring a respondent before the Court to respond to the claims made of and against it and the second to inform the respondent of the material facts and the legal issues arising from those facts upon which applicant will rely to succeed in its claims.

[14]   Erasmus in Superior Court Practice[at B1-154 to B1-154A] stated as follows:(d) The ultimate test as to whether or not the exception should be upheld is whether the excipient is prejudiced. (e) The onus is on the excipient to show both vagueness amounting to embarrassment and embarrassment amounting to prejudice. (f) The excipient must make out his or her case for embarrassment by reference to the pleadings alone.

[15]   Pleadings must be lucid, logical and intelligible. A litigant must plead his cause of action or defence with at least such clarity and precision as is reasonably necessary to alert his opponent to the case he has to meet. A litigant who fails to do so may not thereafter advance a contention of law or fact if its determination may depend on evidence which his opponent has failed to place before the court because he was not sufficiently alerted to its relevance.[National Director of Public Prosecutions v Phillips and others 2002 (4) SA 60 W at 106E-H]

[16]   Ordinarily in exception cases, the Court in taking into account whether to uphold the exception ought to give consideration to the possibility of the parties being able to address the defects in the statement of case at the pre-trial conference.

exception to a pleading on the ground that it is vague and embarrassing

JS614/20

Motlhoioa v Council for Scientific Research and Industrial Research (JS614/20) [2021] ZALCJHB 340 (6 October 2021)

[65]   The proceedings were in any event enrolled for the hearing of the special pleas. It is trite that a special plea is proved by extrinsic sources of evidence. The submissions made by the Applicants representatives do not fall within the realm of such extrinsic evidence. A special plea raises issues that are not apparent ex facie the pleading to which they relate (the Applicants Statement of Claim in this instance). Therefore, as a general rule, a special plea must be established by the introduction of evidence. The need to introduce evidence is what distinguishes a special plea from an exception. It is also trite that where a defence is raised by way of a special plea, it may either be dealt with at the trial, as a point in limine (first step), or it may be set down to be heard prior to the trial.[Fundamental Principles of Civil Procedure, Fourth Edition, C Theophilopoulos et al, pp 326  327.][66]   In casu, the special pleas were enrolled for hearing prior to the trial. It is now apparent that the second special plea needs to be heard at trial as a point in limine requiring oral evidence in relation to whether or not an automatically unfair dismissal dispute was also conciliated at the CCMA along with an unfair discrimination dispute.

special plea, point in limie: difference

JS283/21

Tshitundu v Simba (Pty) Limited (JS283/21) [2021] ZALCJHB 339 (7 October 2021)

[16]   The High Court in Living Hands (Pty) Ltd and Another v Ditz and Others[2013 (2) is a 368 (GSJ)] summarised the basic principles governing exceptions:”(a) In considering an exception that a pleading does not sustain a cause of action, the court will accept, as true, the allegations pleaded by the plaintiff to assess whether they disclose a cause of action.(b) The object of an exception is not to embarrass one’s opponent or to take advantage of a technical flaw, but to dispose of the case or portion thereof in an expeditious manner, or to protect oneself against an embarrassment which is so serious as to merit the costs.(c) The purpose of an exception is to raise a substantive question of law which may have the effect of settling the dispute between the parties.(d) An excipient who alleges that a summons does not disclose a cause of action must establish that, upon any construction of the particulars of claim, no cause of action is disclosed.(e) An over technical approach should be avoided because it destroys the usefulness of the exception procedure, which is to weed out cases without legal merit.(f) Pleadings must be read as a whole, and an exception cannot be taken to a paragraph or a part of a pleading that is not self-contained.(g) Minor blemishes and unradical embarrassments caused by a pleading can and should be cured by further particulars.”

[18]   The Labour Court in Irving v Amic Trading (Pty) Ltd[JS 104/2014 ZALC JHB 418 at para 14] formulated the test in deciding exceptions based on vagueness and embarrassment as follows:”(a)   In each case the Court is obliged first of all to consider whether the pleading does lack particularity to an extent amounting to vagueness. Where the statement is vague it is either meaningless or capable of more than one meaning.(b)    If there is vagueness in this sense, the court is then obliged to undertake a quantitative analysis of such embarrassment as the excipient could show is caused to him or her by the vagueness complained of.(c)    In each case an ad hoc ruling must be made as to whether the embarrassment is so serious as to cause prejudice to the excipient if he or she is compelled to plead to the pleading in the form to which he or she objects. (A point may be of the utmost importance in one case, and the omission thereof may give rise to vagueness and embarrassment, but the same point may in another case be only a minor detail.)(d)    The ultimate test as to whether or not the exception should be upheld is whether the excipient is prejudiced “

[26]   There is merit in this complaint. Save for the heading ” Unfair discrimination S10 EEA” the applicant does not inform the respondent of the ground upon which he relies for the allegation of discrimination and why, if there is such a ground, it is unfair discrimination. The statement of case is defective in that it does not list the ground of discrimination, does not state the facts upon which the applicant relies for the allegation of discrimination and there are no allegations or facts why such discrimination constitutes unfair discrimination. The respondent is prejudiced thereby.

[31]   The applicant does not address the legal issues that may arise from the material facts pleaded. For instance, the applicant fails to set out the legal issues relating to section 10 of the EEA that he refers to in passing. He thus also does not plead a cause of action in respect of unfair discrimination or an automatically unfair dismissal. This prejudices the respondent who is unable to plead.

2.  The applicant is granted leave to amend his statement of claim within 15 days of this order failing which the statement if claim is struck out with no order as to costs.

exception

JS395/19

Landman v Deutsche Bank AG Johannesburg Branch (JS395/19) [2021] ZALCJHB 358 (14 October 2021)

[22]   In Moolman v Estate Moolman,[1927 CPD 27 at 29; See also Four Tower Investments (Pty) Ltd v Andres Motors 2005(3) SA 39 (NPD) at par 15.] the court held that:……. The practical rule adopted seems to be that amendments will always be allowed unless the application to amend is mala fide or unless such amendment would cause an injustice to the other side which cannot be compensated by costs or in other words unless the parties cannot be put back for the purposes of justice in the same position as they were when the pleading which it is sought to amend was filed.

[21]   As held in the matter of Cross v Ferreira,[1950 (3) SA 443 (CPD) at 447.] the primary object of allowing amendments is to obtain a proper ventilation of the dispute between the parties, to determine the real issues between them, so that justice may be done. This should be contrasted with the courts inclination to disallow the amendment if such is not made in good faith or done with the sole purpose of prejudicing the other party or in cases where obvious injustice to the other party would result if the amendment is allowed.[3]

[1]   The applicant, Mr Brett Eric Landman, is applying for an order in accordance with Rule 11 of this courts Rules (the Rules) to amend his statement of claim

amendments of pleadings

JS304/21

Tywakadi v Bidvest McCarthy Toyota Woodmead (JS304/21) [2021] ZALCJHB 381 (19 October 2021)

[11]   Fifty six years ago, Steyn CJ in Saloojee and another NNO v Minister of Community Development[1965 (2) SA 135 (A)], laid an imperishable rule that there is a limit beyond which a litigant cannot escape the results of his or her attorneys lack of diligence or insufficiency of the explanation tendered. At that time, Steyn CJ appropriately lamented that applications for condonations were increasing as a consequences of the ineptness of the attorneys. This lament remains true to this day. The Labour Court is inundated with applications for condonations where attorneys are to blame. In casu, if the version of Tywakadi is to be believed, she was let down by Makhanya. In November 2020, when she consulted him, the time period prescribed was still intact. As to why he sent Tywakadi on a wild goose chase is beyond this Courts comprehension. What was the relevance of a contract of employment when the trigger for referral  certificate of outcome  was in hand since October 2020, it remains hazy.

condonation: blame for delay due to attorney’s conduct

JR1893/20

Moraba and Others v Ngwenya NO and Others (JR1893/20) [2021] ZALCJHB 427 (5 November 2021)

[14]   The legal position with regard to the status of the pre-arbitration minutes was recently re-stated by Prinsloo J in Kunene v Sithole N.O and Others[4], as follows: -[12]  It is trite law that a court or tribunal and the parties are bound by a pre-trial agreement and the issues they agreed to in the pre-trial minute. The court or tribunal cannot and should not go beyond the issues it is required to determine, with reference only to the pleadings and the pre-trial minute.[13]   The court or a tribunal such as the CCMA does not provide its own terms of reference or conduct its own enquiry into the merits of the case, but instead accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings and a pre-trial minute. In the adversary system of litigation, it is the parties themselves who set the agenda for the trial and neither party can complain if the agenda is strictly adhered to.[15]   In South African Breweries (Pty) Ltd v Louw[5] the court said a party cannot unilaterally resile from the minute. Necessarily, the strategic choices made in a pre-arbitration conference need to be carefully thought through, seriously made and scrupulously adhered to. It is not open to the court to undo the laces of the strait-jacket into which the litigants have confirmed themselves.

Pre-trial minutes

JR606/2018

Mahlangu v Ngako NO and Others (JR606/2018) [2021] ZALCJHB 448 (6 December 2021)

[7]   It was further held in Zono that where the application for reinstatement of the application is refused, the status of the review application remains one of an application withdrawn by the applicant, meaning that there is no application before the Court, and any other interlocutory applications in relation to the review application are rendered moot. It is in line with this approach that it is deemed necessary to first deal with the application for revival.

[8]   In applications for condonation, it is required that good or sufficient cause be shown by the party seeking condonation for a delay. The Court in the exercise of its discretion will consider factors such as the length and a full explanation for the delay, and whether there are reasonable prospects of success on the merits of the main claim. It has further been held that an insignificant delay and good explanation for that delay may compensate for weak prospects of success, and further that good prospects could make up for a long delay. Other factors to be considered include the prejudice to the either of the parties to the dispute should condonation be granted or refused, the importance of the matter, the convenience of the Court and avoidance of unnecessary delays in the administration of justice. In the end, the interests of justice upon a consideration of these factors will ordinarily dictate whether condonation should be granted or refused [Department of Agriculture , Forestry & Fisheries v Baron & others 2019) 40 ILJ 2290 (LAC) at 2304 para 41; NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) at para 10].

[14]   Upon the applicant having served notices in compliance with Rule 7A(6) together with Rule 7A(8)(a) Notice on 12 July 2018, the third respondent had filed and served its answering affidavit on or about 18 January 2019. At that time, the applicant had as per what he deemed to be an agreement between the parties, by implication, not raised any objection to the late filing of the answering affidavit. Even though the applicant could not have relied on the same agreement insofar as the late filing of the review application is concerned, the third respondents late filing of the answering affidavit was however consented to through that agreement, as such consent is contemplated within the provisions of paragraph 11.4.2 of the Practice Manual[].

[Which provides;11.4.2    Where the respondent or the applicant has filed its opposing or replying affidavits outside the time period set out in the rules, there is no need to apply for condonation for the late filling of such affidavits unless the party upon whom the affidavits are served files and serves a Notice of Objection to the late filing of the affidavits. The Notice of Objection must be served and filed within 10 days of the receipt of the affidavits after which time the right to object shall lapse.]

Revival application in review case

JS316/18

NEHAWU obo Coetzee and Others v Kakamas Water Users Association (JS316/18) [2021] ZALCJHB 447 (8 December 2021)

[4]   Jacob and Goldrein[Pleading: Principles and Practice at 8-9.] aptly capture the position as follows: As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings.. For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The Court itself is as much bound by the pleadings of the parties as they are themselves. It is not part of the duty or function of the Court to enter upon any enquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings. Indeed, the Court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties. The Court does not provide its own terms of reference or conduct its own enquiry into the merits of the case but accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings. In the adversary system of litigation, therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to.

[5]   In Candy and others v Coca Cola[(2015) 36 ILJ 677 (LC)] the Court considered the purpose of a statement of claim and held that: In its simplest terms, the statement of case must at least inform the respondent party what the pertinent facts are on which the applicant will rely in the case, and further, what the cause of action is that the applicant will pursue as founded on these facts. That must be done in sufficient particularity so as to enable the respondent to provide a proper answer to these facts and the related cause of action. The statement of claim and the answering statement thereto are not just for the benefit of the parties. They also serve the court, in that the issues in dispute are properly determined and other possible alternative causes of action are eliminated from having to be considered by the court. A proper statement of claim and answering statement are imperative to the fundamental requirement of expeditious resolution of employment disputes in terms of the LRA. As the court said in Harmse v City of Cape Town: The statement of claim serves a dual purpose. The one purpose is to bring a respondent before the court to respond to the claims made of and against it and the second purpose of a statement of claim is to inform the respondent of the material facts and the legal issues arising from those facts upon which applicant will rely to succeed in its claims. The material facts and the legal issues must be sufficiently detailed to enable the respondent to respond, that is, that the respondent must be informed of the nature or essence of the dispute with sufficient factual and legal particularity so that it knows what it is that the applicant is relying upon to succeed in its claim.

[6]   In South African Breweries (Pty) Ltd v Louw[(2018) 39 ILJ 189 (LAC)](SA Breweries) the Labour Appeal Court (LAC) was required to, inter alia, determine a complaint by the appellant that the court a quo decided the case on factual issues not properly put before it on the pleadings, nor as refined in the pre-trial conference minute. The LAC held that: To state the obvious, litigation is complex. Among the duties of legal practitioners is to conduct cases in a manner that is coherent, free from ambiguity and free from prolixity. True enough, the holy grail of translating what is complex into simplicity is not always attainable, but the ground rules are irrefrangible: say what you mean, mean what say and never hide a part of the case by a resort to linguistic obscurities. The norm of a fair trial means each side being given unambiguous warning of the case they are to meet. Moreover, these requirements are not mere civilities as between adversaries; the court too, is dependent upon the fruits of clarity and certainty to know what question is to be decided and to be presented only with admissible evidence that is relevant to that question. Making up ones case as you go along is an anathema to orderly litigation and cannot be tolerated by a court. Counsels duty of diligence demands an approach to litigation which best assists a court to decide questions and no compromise is appropriate.

[7]   The LAC further held that[5]:The relationship between the pleadings and the pre-trial conference minute has been the subject of several judicial pronouncements[6]. In short, a minute of this sort is an agreement from which one cannot unilaterally resile. Also, a pleading binds the pleader, subject only to the allowing of an amendment, either by agreement with the adversary, or with the leave of the court. The case pleaded cannot be changed or expanded by the terms of a minute; if it does, it is necessary that that change go hand in hand with a necessary amendment. The chief objective of the pre-trial conference is to agree on limiting the issues that go to trial. Properly applied, a typical minute  cum  agreement will shrink the scope of the issues to be advanced by the litigants. This means, axiomatically, that a litigant cannot fall back on the broader terms of the pleadings to evade the narrowing effect of the terms of a minute. A minute, quite properly, may contradict the pleadings, by, for example, the giving an admission which replaces an earlier denial. When, such as in the typical retrenchment case, there are a potential plethora of facts, issues and sub-issues, by the time the pre-trial conference is convened, counsel for the respective litigants have to make choices about the ground upon which they want to contest the case. There is no room for any sleight of hand, or clever nuanced or contorted interpretations of the terms of the minute or of the pleadings to sneak back in what has been excluded by the terms of a minute. The trimmed down issues alone may be legitimately advanced. Necessarily, therefore, the strategic choices made in a pre-trial conference need to be carefully thought through, seriously made, and scrupulously adhered to. It is not open to a court to undo the laces of the strait-jacket into which the litigants have confined themselves.

[10]   An applicants pleaded case must be supported by evidence during the trial. As was held in Harmse v City of Cape Town[( 966/2002) ZALC 53 at para 8 and 9.]:The rules of this court do not require an elaborate exposition of all facts in their full and complex detail – that ordinarily is the role of evidence, whether oral or documentary. There is a clear distinction between the role played by evidence and that played by pleadings – the pleadings simply give the architecture, the detail and the texture of the factual dispute are provided at the trial. The pretrial conference provides an occasion for the detail or texture of the factual dispute to begin to take shape. In terms of rule 6(4)(b) the parties in the pretrial conference must attempt to reach consensus on facts that are common cause, facts that are in dispute, the issues that the court is required to decide and the precise relief claimed. Accordingly, the rules of this court anticipate that the relief claimed might not have been precisely pleaded in the statement of claim filed. The rules of this court further anticipate that the factual matters at issue will be dealt with more fully and precisely in the pretrial conference. The rules therefore anticipate that the parties at the pretrial conference will have dealt in much more detail not only with the factual matters but also the legal issues. The statement of claim and response thereto foreshadow this activity but are not a substitute for it. It is for this reason that the rule on pretrial conferences provides for reaching consensus on the issues that the court is required to decide.[11]   In summary: parties are bound by their pleaded case and the case pleaded cannot be changed or expanded by the terms of a pre-trial minute. If the pleaded case is changed or expanded, it is necessary for that change to go hand in hand with an amendment. The chief objective of the pre-trial conference is to agree on limiting the issues that go to trial. Pleadings give the architecture and the evidence at the trial provides the detail and texture.

[66]   I already alluded to the dicta of the LAC in SA Breweries where it was held that a pleading binds the pleader, subject only to the allowing of an amendment, either by agreement with the adversary, or with the leave of the court. The case pleaded cannot be changed or expanded by the terms of a pre-trial minute and if the pleaded case is so expanded, it is necessary for that change go hand in hand with a necessary amendment.

parties are bound by the pleadings and pre-trial minutes

JR1423/20

Bokaba v MEC Department of Health Northwest and Others (JR1423/20) [2021] ZALCJHB 443 (13 December 2021)

[9]   The respondents contend also that the applicant should be non-suited for the reason that he has failed to show or allege that he has the locus standi to institute these proceedings. Put otherwise, he has failed allege and prove in his papers that his legal rights or interests are at stake. To fortify this contention, the respondents relied on the decision of the Supreme Court of Appeal (SCA) in Four Wheel Drive Accessory Distributors CC v Rattan NO,[[2018] ZASCA 124; 2019 (3) SA 451 (SCA) at paras 7-8.] where the following was said:[7]     The logical starting point is locus standi  whether in the circumstances the plaintiff had an interest in the relief claimed, which entitled it to bring the action. Generally, the requirements for locus standi are these. The plaintiff must have an adequate interest in the subject matter of the litigation, usually described as a direct interest in the relief sought; the interest must not be too remote; the interest must be actual, not abstract or academic; and it must be a current interest and not a hypothetical one.[D E van Loggerenberg and E Bertelsmann Erasmus: Superior Court Practice 2 ed vol 1 (loose-leaf) at D1-186.] The duty to allege and prove locus standi rests on the party instituting the proceedings.[Mars Incorporated v Candy World (Pty) Ltd 1991 (1) SA 567 (A).][8]    The rule that only a person who has a direct interest in the relief sought can claim a remedy, is no more clearly expressed than in the judgment of Innes CJ in Dalrymple:[9]The general rule of our law is that no man can sue in respect of a wrongful act, unless it constitutes a breach of a duty owed to him by the wrongdoer, or unless it causes him some damage in law.

Locus standi

DA 12/20

Trellicor (Pty) Ltd t/a Trellidor v National Union of Metal Workers of SA (NUMSA) obo Mlondi Ngwalane and Others (DA 12/20) [2022] ZALAC 5 (10 February 2022)

Other issues which are not defined in the pleadings do not have to be decided unless they were fully canvassed without objection in the evidence.

[38]…Shill v Milner[1937 AD 101 at 105.]:The importance of pleadings should not be unduly magnified. The object of pleadings is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full inquiry. But within those limits the court has wide discretion. For pleadings are made for the court, not the court for the pleadings. Where a party has had every facility to place all the facts before the trial court, and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an appellate tribunal merely because the pleadings of the opponent have not been as explicit as it might have been. Robinson v Randfontein Estates GM Co Ltd (1925 AD 198). In another case, Wynberg Municipality v Dreyer (1920 AD 443), an attempt was made to confine the issue on appeal strictly to the pleadings, but it was pointed out by Innes CJ that the issue had been widened in the court below, by both parties. The position should have been regularised of course, said he, by an amendment of the pleadings; but the defendant cannot now claim to confine the issue within limits which he assisted to enlarge.

Pleadings

J1571/19

Mlangeni v Oak Trucking and Outsourcing and Another (J1571/19) [2022] ZALCJHB 17 (23 February 2022)

[8]        Regarding re-instatement of the Applicant, in the most recent authoritative judicial exposition on the law of contempt, the Constitutional Court in Matjhabeng Local Municipality v Eskom Holdings Ltd And Others[2018 (1) SA 1 (CC)] reiterated the basic test for contempt set out in Fakie NO v CCII Systems (Pty) Ltd [2006 (4) SA 326 (SCA)], viz: ‘It should be noted that developing the common law thus does not require the prosecution to lead evidence as to the accused’s state of mind or motive: Once the three requisites . . . have been proved, in the absence of evidence raising a reasonable doubt as to whether the accused acted wilfully and mala fide, all the requisites of the offence will have been established. What is changed is that the accused no longer bears a legal burden to disprove wilfulness and mala fides on a balance of probabilities, but to avoid conviction need only lead evidence that establishes a reasonable doubt.[6]

[9]        Regarding re-instatement, in the most recent authoritative judicial exposition on the law of contempt, the Constitutional Court in Matjhabeng Local Municipality v Eskom Holdings Ltd And Others[2018 (1) SA 1 (CC)] reiterated the basic test for contempt set out in Fakie NO v CCII Systems (Pty) Ltd [2006 (4) SA 326 (SCA)], viz: ‘It should be noted that developing the common law thus does not require the prosecution to lead evidence as to the accused’s state of mind or motive: Once the three requisites . . . have been proved, in the absence of evidence raising a reasonable doubt as to whether the accused acted wilfully and mala fide, all the requisites of the offence will have been established. What is changed is that the accused no longer bears a legal burden to disprove wilfulness and mala fides on a balance of probabilities, but to avoid conviction need only lead evidence that establishes a reasonable doubt.[Matjhabeng at 24, para [62]][10]      The Constitutional Court also noted the constitutional objective underlying contempt proceedings as being the preservation of the courts authority by ensuring that its orders are complied with: To ensure that courts’ authority is effective, s 165(5) [of the Constitution] makes orders of court binding on ‘all persons to whom and organs of state to which it applies’. The purpose of a finding of contempt is to protect the fount of justice by preventing unlawful disdain for judicial authority.  Discernibly, continual non-compliance with court orders imperils judicial authority.[at 19, para [48].]

[16]      In this regards the case of Sepoa v Imperial Cold Logistics[[2018] 39 ILJ 1146 (LC).] is cited with approval wherein the employer, after the original position no longer was available, attempted to have the employee placed in an alternative position and the Labour Court dismissed the contempt application effectively finding that it is not always required that there be exact compliance with an award or order.[17]      Even though in casu there is currently no attempt to place the Applicant in an alternative position there is the defence of an impossibility to do so for the facts mentioned above. Indeed, the Applicant did not disagree or refute claims that the First Respondent had indeed closed its doors to business in 2020 or, despite this, that the Second Respondent could adhere to the terms of the Settlement Agreement for re-instatement.

contempt proceedings

J 1199/20

Anglogold Ashanti Limited v Moloko (J 1199/20) [2022] ZALCJHB 64 (9 March 2022)

[1]…The Vexatious Proceedings Act[1] (VPA) is a piece of legislation aimed at imposition of restrictions on the institution of vexatious legal proceedings. By definition, vexatious means causing or tending to cause annoyance, frustration, or worry. In law it simply means denoting an action or the bringer of an action that is brought without sufficient grounds for winning, purely to cause annoyance to the defendant. Another default supposition to be made is that litigants in the Labour Court litigate with one frame of mind and that is to win. When Simeon Mighty Moloko (Moloko) instituted the five legal proceedings, he wanted pyrrhic subjugation.

[10]     Other than outlining the five legal proceedings instituted by Moloko, Ashanti in its founding papers raises issues that are not relevant to the present application. The legislation invoked by Ashanti concerns itself with legal proceedings. Referrals to the CCMA and complaints to chapter nine institutions do not constitute legal proceedings and thus completely irrelevant in this application. The Supreme Court of Appeal (SCA) in MEC for the Department of Co-operative Governance and Traditional Affairs v Maphanga[[2020] 1 All SA 52 (SCA).] authoritatively concluded that referrals to dispute resolution bodies does not amount to legal proceedings within the contemplation of the VPA. The ten referrals complained of in this application are thus irrelevant.

[15]    Inasmuch as the Constitutional Court has found in Beinash that the purpose of the VPA is to restrict the access to Courts contrary to section 34 of the Constitution, and such limitation is reasonable and justifiable, within the meaning of section 36 of the Constitution, it remains questionable, in my view, whether access to specialized Courts like the Labour Court was kept in mind when the restriction was found to be reasonable and justifiable. This owing to the fact that accessing the Labour Court is not just a simple access but an exercise of a right enshrined in section 23 (1) of the Constitution. In view of the above, I take a view that a stringent approach must be adopted by the Labour Court when seeking to limit the access to it in championing the provisions of the VPA. This approach is prominent when an awarding of costs in this Court is considered. The intention is not to scare litigants from approaching the Labour Court by awarding costs[10]. More often than not litigants approach this Court unassisted. Like any matter involving lay litigants, they are bound to find themselves in a trial and error zone, which may be mistaken as an abuse of process and give birth to applications of this nature. It is important to note that section 151 (1) of the LRA considers the Labour Court as a Court of equity as well. Equity considerations militates strongly against a light and unrestricted granting of applications of this nature.

[23]…The SCA in Maphanga remarked thus:[25]     Legal proceedings were vexatious and an abuse of the process of court if they were obviously unsustainable as a certainty and not merely on a preponderance of probability[[2020] 1 All SA 52 (SCA).]

[28]     Inasmuch as I endorse the views expressed by my late brother Steenkamp J at paragraph 34 of the judgment of Andile Maseko v CCMA and others[(Case JR 1282/10) dated 23 August 2016.], I venture to say that in interpreting the provisions of the VPA, regard must be had to the rights protected in the LRA and the EEA. A restrictive interpretation is required to not only trammel the justifiable limitations to section 34 but also to trammel the trampling of other corresponding rights in the Bill of Rights.[29]     In the final analysis, this Court is constrained to dismiss the present application because Ashanti failed to demonstrate persistence and litigating without reasonable cause on the part of Moloko. As demonstrated above, Moloko has not been persistent and without reasonable cause. The Court in Beinash described a vexatious litigant as one who manipulates the functioning of the Courts so as to achieve a purpose other than that for which the Courts are designed. Moloko does not fit this description. His quest is to win, the question whether he has a winnable case, it is a matter for a Court of law, and not to manipulate this Court. The recent decision of the High Court by the learned Acting Justice Nziweni in PWC Inc v Pienaar and others[(Case 1845/2021) dated 21 September 2021] is distinguishable.

vexatious litigant

JS550/17

Pedra v Wisium SA (Pty) Ltd (JS550/17) [2022] ZALCJHB 53 (15 March 2022)

[34]     It is trite that the incidence of onus is a matter of substantive law and based upon broad principles of experience and fairness.[The Law of South Africa (LAWSA) vol 3(1) at para. 310.] In Pillay v Krishna[1946 AD 946 at 951  952.] sets out the legal principles in relation to pleadings and the onus as follows: The first principle in regard to the burden of proof is thus stated in the Corpus Juris: Semper necessitas probandi incumbit illi qui agit ” (D. 22.3.21). If one person claims something from another in a Court of law, then he has to satisfy the Court that he is entitled to it. But there is a second principle which must always be read with it: “Agere etiam is videtur, qui exceptions utitur: nam reus in exceptione actor est” (D. 44.1.1). (Exceptio does not mean, of course, an exception in the sense in which the term is now used in our practice.) Where the person against whom the claim is made is not content with a mere denial of that claim, but sets up a special defence, then he is regarded quoad that defence, as being the claimant: for his defence to be upheld he must satisfy the Court that he is entitled to succeed on it.

Duty to begin

JS550/17

Pedra v Wisium SA (Pty) Ltd (JS550/17) [2022] ZALCJHB 53 (15 March 2022)

Respondent agreed to begin leading evidence

[39]     It is well established in our law that a pre-trial minute is no different to any other agreement concluded consequent to deliberations between the parties or those that they may have expressly or impliedly authorised to represent them. It follows therefore that a pre-trial minute constitutes a binding agreement between the parties. It is for that reason that the Courts ordinarily hold the parties to the contents of their pre-trial minute.[National Union of Metalworkers of SA v Driveline Technologies (Pty) Ltd and Another (2000) 21 ILJ 142 LAC at para. 93.] A party can only resile from a pre-trial minute on condition special circumstances exist to do so.[Zondo N and Others v St Martins School (Unreported case) case no: J3020/12 LC.][40]     The representative for the Respondent emphasised that the pre-trial minute was a binding agreement.[41]     In the present instance, the Applicant is seeking to resile from their agreement on the basis that the common cause facts and the issues in dispute, indicate that the duty to begin rests with the Applicant. It is further argued that it would be impractical if one had regard to the onus on the respective parties as referred to above, for the Respondent to begin.[][42]     When the parties entered into a pre-trial conference, they were at all relevant times legally represented. This was not disputed. In addition, the nature of the dispute was not in or an issue since it was the agreement that it was an automatically unfair dismissal based on age. It was on this basis that the pre-trial minutes were entered into and signed. It was only when the matter was set down for trial, and I was given to understand ripe for trial, despite being disputed that it was indeed so, that the issue of the nature of the dispute arose.[43]     Seeing that I have just confirmed that the nature of the dispute was and remains unchanged during relevant times, in that it remains an automatically unfair dismissal, and that all parties willingly entered into and signed the pre-trial minute, I see no special circumstances that has since arisen and that has been placed before me to decide that the parties may deviate from that which was agreed to at the pre-trial conference. Indeed, this Court has held on numerous occasions that where a litigant is a party to a pre-trial minute reflecting agreement on certain issues, our Courts will generally hold the parties to that agreement or to those issues.[Price NO v Allied – JBS Building Society  1980 (3) SA 874 (A) at 882D – E; and Filta-Matix (Pty) Ltd v Freudenberg & Others [1997] ZASCA 110; 1998 (1) SA 606 (SCA) at 613E – 614D.]  I therefore do not see why this Court in the circumstances of this case, should deviate from the legal principles mentioned herein.[44]      Indeed, in Filta-Matix (Pty) Ltd v Freudenberg[1998(1) SA 606 (SCA).], during argument after a trial appellant’s counsel sought to rely on claims “A” and “B” when, at a pre-trial conference, he had specifically said he would rely upon claim “BB”, counsel sought to “resile” from the agreement by stating in an affidavit that the limitation of the claim to claim “BB” had been the result of confusion caused by the nature of the questions asked. The Supreme Court of Appeal held that that excuse could not, “in the light of the facts recited, be accepted”[Ibid at 614B. See also: Price NO v Allied – JBS Building Society 1980(3) SA 874 (A) at 822D  H.]. The Court continued and said that to allow a party, without special circumstances, to resile from an agreement deliberately reached at a pre-trial conference would be to negate the object of Rule 37 which is to limit issues and to curtail the scope of the litigation[39] (my emphasis). Whilst the facts of the above-mentioned case differs from the present matter, there is no reason that exists why the principle should not apply in this case.

Binding pre-trial minute

J2055/14

Lebelo and Others v The City Of Johannesburg (J2055/14) [2022] ZALCJHB 92 (17 March 2022)

Without necessarily making a factual determination that there was indeed inaction, the question that arises is whether the archiving is automatic or it requires an action from the registrar. The COJ contends that it happens automatically; whilst Lebelo and others contend that, an action from the registrar is required.

[7]          In support of its contention, the COJ place heavy reliance on the judgment of this Court per Acting Justice Snyman of November and others v Bvuma Plant Hire (Pty) Ltd.[(2020) 41 ILJ 1177 (LC).]  The learned Acting Justice reached the following conclusions:[26]     Therefore, and where clause 16.1 of the Practice Manual finds application, the unfair dismissal claim is in effect automatically dismissed when the prescribed time period expires

[8]          This Court agrees with the learned Acting Justice that the first issue to determine is the application of the clause. How then does the clause apply? The language employed in the clause is clear. The power to archive lies with the registrar. The clause clearly states: the registrar will archive a file. This Court in the unreported judgment of Marweshe v Financial Sector Conduct Authority and others[Unreported decision. Case no: JS575/16. Delivered: 4 June 2020.], stated the following:[3]       I fail to understand the basis of this application. In terms of clause 16.1 of the Practice Manual, the power to archive a file lies with the Registrar of this Court. Nowhere in the papers before me, is it alleged by the applicant that the Registrar took a decision to archive the file. It seems that the applicant himself brought to the fore the circumstances that would enable the Registrar to archive a file. The situation here is like where a player who committed a clear foul presents himself or herself with a red card without waiting for the referee to call for a foul.  Clause 16.2 of the Practice Manual is clear. It applies to files that has been archived. The only person authorised by the Practice Manual to archive a file is the Registrar. This Court in MEC Department of Health Eastern Cape Province v PHSDSBC and others, had the following to say:[12]       Much as Samuels held that an application for retrieval is effectively an application for condonation, the application before me has not been archived yet, thus it does not require a retrieval application.(My own emphasis)Similarly, I take a view that this Courts jurisdiction has not been engaged. The jurisdictional fact to engage this Courts jurisdiction is a step formally taken by the Registrar.(Footnotes omitted)

[9]          With considerable regret, I part ways with the Acting Justice when he concludes that the expiry of the six months period effectively leads to an automatic dismissal of the claim. Accordingly, the conclusion this Court reaches is that clause 16.1 does not find application in this instance. I do state in passing that a party faced with the situation where the prescribed period in clause 16 expires, he or she may approach the registrar of this Court to exercise his or her powers. Should the registrar fail to do so, a party may bring an equivalent of a mandamus to compel the registrar to do so. Otherwise, a party may bring an application to dismiss based on the common law principle of delay in prosecuting a claim.

[15]…In this Court, there is no requirement for a dominus litis to apply for a trial date.

[17]       Turning to the law applicable to delay in prosecution of a claim, Lord Denning M.R. in Allen v Sir Alfred McAlpine and Sons[[1968] 1 All E.R 543] had the following to say: The principle on which we go is clear, when delay is prolonged and inexcusable and is such as to do grave injustice to one side or the other, or to both, the court may in its discretion dismiss the action straight away, leaving the Plaintiff to his remedy against his own solicitor who has brought him to this plight.[18]       It is clear that grave injustice is the only factor, which will propel a Court to exercise its discretionary powers to dismiss a claim. In Sanford v Haley[2004 (3) SA 296 (C).] Moosa J had the following to say: It has an inherent jurisdiction to control its own proceedings and as such has power to dismiss a summons or an action on account of the delay or want of prosecution. The Court will exercise such power sparingly and only in exceptional circumstances because the dismissal of an action seriously impacts on the constitutional and common-law right of the plaintiff to have the dispute adjudicated in a court of law by means of a fair trial. The Court will exercise such power in circumstances where there has been a clear abuse of the process of Court.

[19]       In casu, the COJ has not alleged any abuse of Court process. What this Court observes is a party who has been playing along. Since litis contestatio  September 2014  the Rules of this Court availed to the COJ options to ensure that a delay does not occur. Surprisingly, it took the COJ almost four years to launch an application to dismiss at the time when the matter is ripe for hearing. There are three requirements for an application to dismiss to be granted; namely; (a) there must be a delay in the prosecution of the case; (b) the delay must be inexcusable; and (c) there must be serious prejudice to the defendant. On the facts of this case, there is no indication that the COJ will suffer any serious prejudice in this matter. It is indeed, so that this litigation took long to conclude. It commenced in 2014 and eight years later, it has not been resolved. This is an antithesis for labour disputes. However, the veritable question is whether there is behaviour, which oversteps the threshold of legitimacy[11]. In my considered view, there is no such overstep of the legitimacy threshold. The COJ has not demonstrated serious prejudice.

practice note: application of clause 16, given the alleged inaction on the part of Lebelo and others for a prolonged period of six months

JR 269/2020

Mashigo v Safety and Security Sectoral Bargaining Council and Others (JR 269/2020) [2022] ZALCJHB 141 (1 June 2022)

[10]       In SA Breweries (Pty) Ltd v Louw,[(2018) 39 ILJ 189 (LAC)] the LAC was required to, inter alia, determine a complaint by the appellant that the Court a quo decided the case on factual issues not properly put before it on the pleadings, nor as refined in the pre-trial conference minute. On the issue of a pre-trial minute the LAC held that:[2]The relationship between the pleadings and the pre-trial conference minute has been the subject of several judicial pronouncements[3]. In short, a minute of this sort is an agreement from which one cannot unilaterally resile. Also, a pleading binds the pleader, subject only to the allowing of an amendment, either by agreement with the adversary, or with the leave of the court. The case pleaded cannot be changed or expanded by the terms of a minute; if it does, it is necessary that that change go hand in hand with a necessary amendment. The chief objective of the pre-trial conference is to agree on limiting the issues that go to trial. Properly applied, a typical minute  cum  agreement will shrink the scope of the issues to be advanced by the litigants. This means, axiomatically, that a litigant cannot fall back on the broader terms of the pleadings to evade the narrowing effect of the terms of a minute. A minute, quite properly, may contradict the pleadings, by, for example, the giving an admission which replaces an earlier denial. When, such as in the typical retrenchment case, there are a potential plethora of facts, issues and sub-issues, by the time the pre-trial conference is convened, counsel for the respective litigants have to make choices about the ground upon which they want to contest the case. There is no room for any sleight of hand, or clever nuanced or contorted interpretations of the terms of the minute or of the pleadings to sneak back in what has been excluded by the terms of a minute. The trimmed down issues alone may be legitimately advanced. Necessarily, therefore, the strategic choices made in a pre-trial conference need to be carefully thought through, seriously made, and scrupulously adhered to. It is not open to a court to undo the laces of the strait-jacket into which the litigants have confined themselves.

pre-trial conference minute

JR 801/17

Pudi v Tshwane University of Technology (JR 801/17) [2022] ZALCJHB 160 (3 June 2022)

[19]       Almost a century ago, the Court in Kaplan v Dunell Ebden and Co[1924 EDL 91 at p. 93.], laid the principle that a withdrawal of a matter at Court is akin to an order for absolution of instance. The Court stated that on withdrawal of the case by the applicant the case disappears from the Roll as though absolution from the instance had been given. Thus, the effect of a withdrawal of a matter has the same consequences as an order of absolution from the instance.[20]       The principle is that the position of a matter where the defendant was granted an absolution from the instance does not mean that the applicant is barred from bringing his/her claim, it just meant that the applicant could bring an application de novo on the merits without the defendant raising a plea of res judicata or lis finita. This principle was reiterated in the matter of Shibogde v Minister of Safety and Security and others[[2014] JOL 31294 (LC) at para 26.] where the Court stated as follows: Yet the fact that a matter is withdrawn is not necessarily a bar to reinstituting proceedings. It seems that the prevailing view is that a claim is not determined by the withdrawal of the claim, but the withdrawal is equivalent to a grant of absolution from the instance. It therefore remains open for the applicant to reinstitute proceedings as the merits of the claim have not been adjudged.

[21]       It is apparent from the above authorities that if a matter had been withdrawn, the applicant may re-institute its claim by way of fresh proceedings to be adjudicated on the merits for as long as the causa has not been extinguished due to a settlement. This principle seemed to be absolute and culminated in the matter of Ellies Electronics (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others and a related matter[[2019] JOL 42296 (LC).] (Ellies Electronics (LC)) where this Court found that in order for an applicant to succeed in bringing a matter on the merits of a claim that was withdrawn, the applicant has to institute proceedings anew and cannot merely reinstate the matter on the pleadings that were withdrawn. In this regard the Court stated as follows:[15] In my view reinstatement in the context of the instant matter means restoration of the review application to the position it occupied on the books of the Registrar, retaining its case number as if it was always pending before the court. In this regard it is worth noting that the present application is brought under the same case number as the review application as if the latter is still pending before the court.[16]   The applicant, thus, seeks to revive the review application as opposed to reinstituting the proceedings in the same way as the plaintiff would pursue the absolved defendant by reinstituting the proceedings consequent to an order of absolution from the instance.[17]   In my considered opinion it is not possible to reinstate withdrawn proceedings regard being had, inter alia, to the need for finality in legal disputes and expeditious resolution of labour disputes in particular…[18]   Reinstatement is, in my view, limited to matters removed from or struck off the court roll insofar as such matters are pending before the court and only have to be reinstated on the roll for purposes of being heard and finalised.[19]   In the instant matter the review application was withdrawn on 14 March 2017 while the present application was delivered more than seven months later on 03 November 2017. The reinstatement desired in casu is foreign to our law and equity[20]   In my judgment the option available to the applicant in the circumstances is reinstitution of review proceedings in the same way as the applicants in the Ncaphayi and SAMWU matters (supra) sought and were, in fact, allowed to refer withdrawn disputes to the CCMA afresh as opposed to reinstating them.[21]   Reinstatement is, thus, in law and equity not available to the applicant as a relief in the circumstances of the instant matter.

[22]       Subsequently, this Court in Robor Tube (Pty) Ltd v MEIBC and others[[2019] JOL 44113 (LC) at para 7 and 8.] (Robor Tube) was faced with a similar case and took a different approach from that taken in Ellies Electronics (LC). In discussing whether a matter that has been withdrawn should be re-instituted or reinstated, the Court stated the following:[7]    The prevailing authority is clearly to the effect that the withdrawal of a matter is not a bar to the reinstitution of proceedings. There are obvious process-related differences between the withdrawal of a referral to conciliation and the withdrawal of an application enrolled for hearing on this courts motion roll, but it seems to me that an applicant ought to be able to have the dispute heard and determined by way of a re-referral or re-enrolment, unless there is some imperative that militates against that, for example, a claim has been withdrawn in terms of a settlement agreement and thus extinguished.[8]     I fail to appreciate why the reinstatement of applications that have been withdrawn should be limited to those that have been removed or struck from the roll, or that any withdrawn application must necessarily recommence with the delivery of a fresh notice of motion and founding affidavit. To impose the latter requirement would simply further delay the determination of the review application. The imperative of expeditious dispute resolution dictates that the application be re-enrolled and argued.

[23]       The above approach was confirmed in the Labour Appeal Court (LAC) matter of Ellies Electronics (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[(JA74/2018) [2020] ZALAC 33 (24 June 2020) at para 12.]  (Ellies Electronics (LAC)) where the Court stated: The withdrawal of a matter at the instance of a party is a unilateral act which results in the matter being removed from the roll in the same manner as if absolution from the instance had been granted. The fact that a matter has been withdrawn does not in principle bar either the reinstitution of proceedings or the institution of fresh proceedings (in which case the absolved defendant may not raise the defence of res judicata if sued again on the same cause of action). In finding differently, the Labour Court erred. Faced with an application to have the matter reinstated, it was for a court to determine whether or not to grant such application having regard to the relevant facts and issues of prejudice, while recognising that employment disputes by their nature are urgent and require speedy resolution.[24]       Following the ratio in Ellies Electronics (LAC), this Court in Mashego v Commission for Conciliation, Mediation and Arbitration and others[[2021] JOL 51647 (LC) at para 37.] found that: The prevailing authority is that the withdrawal of a matter is not a bar to the reinstitution of the proceedings. For a deemed withdrawn application to be reinstated, the applicant has to file a substantive application, which is then for the court to consider and to decide whether or not to grant such an application.

Requirements for a reinstatement application

[27]       It is apparent from the above authority that the Court must determine a reinstatement application like a condonation application. It is trite that condonation is not there for the taking. In such applications, the applicant is seeking an indulgence from the Court to reinstate his matter that he has voluntarily withdrawn. Therefore, the discretion whether to reinstate or not must be exercised judiciously taking into account the length of the delay, the reason for the delay, prospects of success, prejudice and interest of justice.[Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) and Grootboom v NPA and another 2014 (2) SA 68 (CC).]

withdrawal of a matter at Court

JS 1238/21

Chulu-Mantsho v Business Connexion (PTY) Ltd and Others (JS 1238/21) [2022] ZALCJHB 165 (3 June 2022)

[26]         The definition of day in the Practice Manual and the Rules refers to Court days only, excluding Saturdays, Sundays, and Public Holidays. The definition, however, does not apply to the time periods in the LRA but only to matters already before the Labour Court. The absence of a definition of day in the LRA means that the ordinary meaning of day should prevail, and that is a calendar day.

[28]         Therefore and in accordance with section 4 of the Interpretation Act, the 90 day period as set out in section 191(11)(a) of the LRA shall be calculated as calendar days.

meaning of ‘days’

JA 67/21

Diplopoint (Pty) Ltd v Twala (JA 67/21) [2022] ZALAC 97; [2022] 9 BLLR 807 (LAC); (2022) 43 ILJ 1990 (LAC) (12 May 2022)

[21]      It is generally essential that the party against whom legal proceedings are instituted must be given notice of the process in accordance with the law, or applicable practice or rules. A judgment or order may be erroneously sought or erroneously granted in the absence of a party affected thereby, if, for example, the process concerned (such as a summons, or a statement of claim, as is in this case) had not been served on the party[2]. In such instances, it only has to be shown that the process concerned was not served on the affected party and that would be sufficient to oblige the court to grant the rescission. It was not necessary for the appellant to show any further good cause.

rescission

JS 221 -22

Terblanche v Fedelity Security Services (PTY) Ltd (JS 221 -22) [2022] ZALCJHB 186 (14 July 2022)

[7]             This Court in William Stanly Owen OBrien v Heaven Sent Gold South Africa (Pty) Limited[Unreported judgment under case no JS 501-2020 delivered on 14 October 2021 at para 8.] held inter alia that: Rule 11.3 of Labour Court gives the Court a discretion to adopt any procedure it deems appropriate to deal with an issue such as an exception which is not covered in its rules. The Court has recognised that parties may have recourse to the High Court rules which deals specifically with exceptions.

[8]             The High Court in Living Hands (Pty) Ltd and another v Ditz and others,[2013 (2) SA 368 (GSJ) at para 15.] summarised the basic principles governing exceptions as follows:(a)   In considering an exception that a pleading does not sustain a cause of action, the court will accept, as true, the allegations pleaded by the plaintiff to assess whether they disclose a cause of action.(b)    The object of an exception is not to embarrass ones opponent or take advantage of a technical flaw, but to dispose of the case or portion thereof in an expeditious manner, or to protect oneself against an embarrassment which is so serious as to merit the costs even of an exception.(c)    The purpose of an exception is to raise a substantive question of law which may have the effect of settling the dispute between the parties(d)    An excipient who alleges that a summons does not disclose a cause of action must establish that, upon any construction of the particulars of claim, no cause of action is disclosed.(e)    An over-technical approach should be avoided because it destroys the usefulness of the exception procedure, which is to weed out cases without legal merit.(f)     Pleadings must be read as a whole, and an exception cannot be taken to a paragraph or a part of a pleading that is not self-contained.(g)    Minor blemishes and unradical embarrassments caused by a pleading can and should be cured by further particulars.

[9]             The Labour Court in Irving v Amic Trading (Pty)Ltd,[Unreported judgment under case no: JS104/2014 delivered 31 August 2014 at para 14.] summarised the test in deciding exceptions based on vagueness and embarrassed as follows:(a)   In each case the Court is obliged first of all to consider whether the pleading does lack particularity to an extent amounting to vagueness. Where a statement is vague it is either meaningless or capable of more than one meaning.(b)    If there is vagueness in this sense, the Court is then obliged to undertake a quantitative analysis of such embarrassment as the excipient can show is caused to him or her by the vagueness complained of.(c)    In each case an ad hoc ruling must be made as to whether the embarrassment is so serious as to cause prejudice to the excipient if he or she is compelled to plead the pleading in the form to which he or she objects. A point may be of the utmost importance in one case, and the omission thereof may give rise to vagueness and embarrassment, but the same point may in another case be only a minor detail.(d)    The ultimate test as to whether or not the exception should be upheld is whether the excipient is prejudiced

[11]         The pre-trial proceedings resulting in pre-trial minutes are very important. The Court in Harmse v City of Cape Town[(2003) 24 ILJ 1130 (LC) at paras 8-10.] (Harmse) dealt with this aspect. Both Liquid Telecommunication and Harmse emphasise the importance of sorting out the factual disputes at the pre-trial meeting. The Court in Harmse further stated that: 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 cannot be met by making amendments or providing of particular at the pretrial conference stage.[9]

[15]         I do not find the statement of claim vague and embarrassing, nor do I find it capable of more than one meaning.

exception

J 2024/19

Maloisane v Judge President of the Labour Court and Others (J 2024/19) [2022] ZALCJHB 219 (11 August 2022)

[24]       Rule 7A (4) provides that if the person or body fails to comply with the direction or fails to apply for an extension of time to do so, any interested party may apply, on notice, for an order compelling compliance with the direction.[25]       According to the Applicant, the deeming provision should not be applied at all. Instead, so goes the argument, if there is non-compliance with the time period, i.e. if the CCMA or bargaining council fails to dispatch a record within the stipulated period, resort must be had to the provisions of rule 7A (4). The Applicant is basically saying that either of the parties must bring an application to compel the CCMA or bargaining council to dispatch the record.[26]       It is indeed correct to argue that either of the parties has a duty to bring an application to compel. However, an applicant in the review proceedings has a greater duty to bring such an application as he/she is dominus litis. Furthermore, an applicant in the review proceedings must ensure compliance with the stipulated time periods.[27]       Furthermore, filing of an application to compel a dispatch of the record will not in any way impact on the 60-day period stipulated in clause 11.2.2 of the Practice Manual. This is so because, in the event that such an application to compel is filed, the applicant in the review application is still required to observe compliance with the 60-day period.

[44]       Clause 11.2.7 further provides that the Registrar should be informed in writing that the application is ready for allocation of a date. This should be done within 12 months of the launch of the application. In the event that the time limit is not observed, the application will be archived and be regarded as lapsed unless good cause is shown by the applicant.[45]       It is apparent from the papers that the Registrar was never informed in writing that the application is ready for allocation of a date.

rule 7A(4): application to compel (CCMA to file arbitration record)

J 2024/19

Maloisane v Judge President of the Labour Court and Others (J 2024/19) [2022] ZALCJHB 219 (11 August 2022)

[55]       The court in Proxi Smart Services (Pty) Ltd v The Law Society of SA,[[2018] 3 ALL SA 567 (GP)] held that a court will not grant a declaratory order where the issue raised before it is hypothetical, abstract and academic, or where the legal position is clearly defined by statute.

[49]…I already expressed this Courts reservation on the issue of service by way of email, without any follow up to confirm that it was indeed received. Be that as it may, the legal representatives in casu elected to correspond and serve by way of email, albeit not expressly and in writing, their conduct condoned service by email.

Declarator order

JR 2776/16

General Industries Workers Union of South Africa and Another v Clover SA (PTY) Ltd and Others (JR 2776/16) [2022] ZALCJHB 229 (16 August 2022)

[34]       In casu, the legal representatives communicated and served documents by way of email and it was an acceptable means of communication between them. There are obvious and inherent risks in serving by email, inter alia that the wrong email address is used, that the email address is outdated and no longer used, that the intended recipient does not have access to his or her email for whatever reason or simply that receipt of a served document is denied. The Rules of this Court do not make provision for service by way of email and when parties elect to serve by email and where both parties are legally represented, they must ensure that the documents so served, are indeed received by the other side.

Rules: service of documents by email

J 1747 / 2018

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

[43]…In other words, it is not permitted to serve a statement of claim without a case number. This is evident from the following dictum in Windybrow Centre for the Arts v SA Commercial Catering and Allied Workers Union on Behalf of Gina and Others[(2007) 28 ILJ 1343 (LC) at para 10.] where the Court held: ‘Any party initiating any proceedings in the Labour Court is required by rule 3 of the rules to apply for a case number before serving documents on the other party. The procedure in general is that in the event of failure to settle at the conciliation stage, the launching of a statement of case begins with an application for a case number which is done through form 1 of the rules and subsequently to be followed by filing a statement of claim as set out in form 2 of the rules.’

[44]       It follows from the above that a referral to this Court in terms of Rule 6 only exists when a statement of claim complying with all the provisions of Rule 6(1) is validly served on the respondent party, and then filed in Court. There is no delivery of the statement of claim until such time as both the service and the filing of the statement of claim has occurred. And finally, a statement of claim cannot be served without first having obtained a case number from the Registrar. In Phoffu and Others v Quest Flexible Staffing Solutions[(2012) 33 ILJ 707 (LC) at para 17,] the Court held: ‘In this instance, the respondents had not complied with the requirements of rule 6(1)(a)(ii) of the Rules of the Labour Court, by failing to include a case number in their statement of claim. I appreciate that, at that stage, the applicants might have been prosecuting their case as lay persons without assistance. However, the failure to include the case number is not merely a formal ‘technical’ disqualification, but one which can seriously hamper the administration of cases by the registrar’s office. The practical significance of the requirement is no less important in the context of Labour Court proceedings than it is in the case of the CCMA, which McCall AJA referred to in. Kungwint’s case … ‘.

procedure and rules: case number

J 1747 / 2018

[45]       Service must always be effected in compliance with the requirements stipulated by law. The reason for this is obvious, in that it is this service that places the respondent party on notice that are proceedings against it, and then calls on such respondent party to engage. That being so, precision is the watch word. This was recognized in National Union of Metalworkers of South Africa v lntervalve (Pty) Ltd[(2015) 36 ILJ 363 (CC) at para 53.] where the Court said:’… The objectives of service are both substantial and formal. Formal service puts the recipient on notice that it is liable to the consequences of enmeshment in the ensuing legal process. This demands the directness of an arrow. One cannot receive notice of liability to legal process through oblique or informal acquaintance with it … ‘

[47]       What is common cause is that the applicant applied for and obtained a case number from the Registrar, signed the statement of claim, and then filed the same with the Court, on 18 May 2018. What must immediately and logically follow from these common cause facts is that there could not have been any valid service of the statement of claim on the respondent on 15 May 2018, for the simple reason that service was not permitted without a case number, and the statement of claim was not signed. Added to this, it is common cause that the purported service on 15 May 2018 was done by e-mail, which also makes the service invalid, as e-mail service is not permitted by Rule 4(1). The applicant never applied to allow an alternative form of service in terms of terms of Rule 4(3) at the time. Based on all these provisions in the Labour Court Rules, there simply was no service of the statement of claim on the respondent on 15 May 2018. The result of this is that when the statement of claim was filed with the Court on 18 May 2018, there was still no delivery of the statement of claim as contemplated and required by Rule 6(1)(f), so as to constitute a valid and complete referral of the dispute to this Court. This means that the true date of the referral was only on 5 June 2018, when a proper statement of claim with a case number was served on the respondent by hand.[See Phoffu (supra) at para 18; Windybrow (supra) at paras 20 – 21.]

Procedure and rules: service

JS658/17

AMCU obo Wayise and Others v Rand Uranium (Pty) Ltd (JS658/17) [2022] ZALCJHB 346 (8 December 2022)

[12]       The applicant has proceeded in this Court with an application in terms of rule 11. The Rules do not cater for an application to amend pleadings, in the way that rule 28 of the Uniform Rules of Court (URC 28) does. URC 28 permits a party to amend its pleadings.[13]       Rule 11 allows a party to bring an application on notice supported by affidavit that is incidental to, or pending, proceedings referred to in the Rules which are not specifically provided for in the Rules. Rule 11 further allows this Court to adopt any procedure that it deems appropriate in the circumstances if a situation arises in proceedings which the Rules do not provide. The procedure set out in URC 28 is the procedure to be applied by this Court in applications to amend pleadings. The applicant and the respondent have followed the procedure of URC 28 by filing a notice of amendment, filing a notice of objection, filing an application to amend consisting of a notice of motion and founding affidavit, and subsequent answering and replying affidavits (and heads of argument).

[17]       No case has been proffered by the applicant in its Notice of Motion and Founding Affidavit in relation to amending the pre-trial minute or resiling from the pre-trial minute. The applicant may be entitled to the relief sought in its Notice of Motion (addressed in more detail below) but is not entitled to the relief as sought in relation to the pre-trial minute as set out in its Replying Affidavit (in which its responds to aspects raised by the respondent in respect of amending the pre-trial minute), its Heads of Argument or during argument.

[18]       I have considered whether the applicant may, in respect of the relief being sought in respect of the pre-trial minute, rely on the reference to further and/or alternative relief as set out in paragraph 6 of its Notice of Motion in order to obtain the relief which it is now seeking in respect of the pre-trial minute through its Replying Affidavit, its Heads of Argument, and its submission during oral argument.[19]       I am of the view that such an approach would not legally sustainable. The reference to further and/or alternative relief, as set out in almost every notice of motion that is filed in an application, clearly refers to alternative relief that relates to, or is subsidiary or accessory to, the main relief as sought in the notice of motion.

[28]       It is trite that a pre-trial minute constitutes a binding agreement between the parties and that a party may only to resile from that agreement if:                the other party consents;                if there are special circumstances which entitle that party to do so; or                a basis has been established for doing so in the law of contract.

[43]        A statement of response is of course a pleading. A pre-trial minute is not.

[46]       At paragraph [24] of the Putco judgment, the learned judge states the following  For these reasons, the respondents application stands to be dismissed. This of course means the application to amend the pleading  i.e., the statement of response. In the preceding paragraphs of the judgment, the learned judge sets out his reasons. In summary, the reasons are as follows  (i) the respondents did not provide a satisfactory explanation as to how the admission was made; (ii) the respondents founding affidavit reveals very little effort on the part of the respondent to persuade this Court that there is justification to indulge them and grant the amendment; and (iii) confirmatory affidavits were missing which needed to confirm a number of aspects.

[69]       There is no evidence before this court for it to conclude that the applicants intended amendment is occasioned by mala fides. To the contrary, the purpose of the amendment is extensively explained in the applicants papers and appears to be made in good faith.[70]       It is further important to bear in mind that an amendment may be granted at any stage of the proceedings prior to a judgment being handed down. The need to amend or correct pleadings is part and parcel of the litigation process, hence the provision for this in the courts rules.[71]       In amendment applications, the applicant must persuade the court that the proposed amendment/s is worthy of consideration and introduces a triable issue.[72]       I am of the view that the issues introduced by the applicant are triable and relevant for the proper ventilation of the dispute between the parties. The amendment/s sought do not appear to be without foundation or made for the purposes of harassing the respondent.[73]       The court must weigh the reasons or explanation given by the party requesting the amendment against the objections raised by the opponent and where the proposed amendment will prejudice the opponent or would be excipiable, the amendment should be refused.[DH Horwarth v Fargoworx Investment (Pty) Ltd and Another [2018] ZAECGHC 144 at para 4.]

procedure: amendment of pleadings (pre-trial minute), rule 11

JA29/2021

National Union of Metalworkers of South Africa (NUMSA) and Others v AFGRI Animal Feeds (PTY) Ltd (JA29/2021) [2022] ZALAC 99; (2022) 43 ILJ 1998 (LAC); [2022] 10 BLLR 902 (LAC) (17 June 2022)

All of the authorities referred to suggest that the remedy of reinstatement is confined to reinstatement into the contract of employment in existence on the date of dismissal. In my view, if the duration of that contract was limited, and the expiry of the contract precedes the date on which a finding of unfair dismissal is made, reinstatement is not a competent remedy. Even less can an employee claim reinstatement into a contract that he or she asks the court to create, and nor can the employee claim that the court should recognise that the contract would have been prematurely terminated.

[26]       The LRA distinguishes between individual employee rights and collective bargaining rights. In MacDonalds Transport,[at para 35] in the context of arbitration proceedings, it was stated: Certainly, when a union demands organisational rights which accord to it a particular status as a collective bargaining agent vis  vis an employer, it asserts and must establish [that] it has a right to speak for workers by proving they are its members; sections 11 – 22 of the LRA regulate that right. But in dismissal proceedings (which, plainly, are not about collective bargaining) before the CCMA or a Bargaining Council forum, the union is not (usually) the party, but rather the worker is the party. It is the workers right to choose a representative, subject to restrictions on being represented by a legal practitioner, itself subject to a proper exercise of a discretion to allow such representation. When an individual applicant wants a particular union to represent him in a dismissal proceeding, the only relevant question is that workers right to choose that union.[13]

[32]       In GIWUSA v Maseko and others,[21] the Labour Court affirmed the approach to interpreting a constitution of a voluntary organisation as one of benevolence, rather than of nit-picking, which ought to be aimed at the promotion of convenience and the preservation of rights.[22] This is to be contrasted with the approach taken by the Constitutional Court in Lufil: The contractual purpose of a unions constitution and its impact on the right to freedom of association of its current members is founded in its constitution. A voluntary association, such as NUMSA, is bound by its own constitution. It has no powers beyond the four corners of that document. Having elected to define the eligibility for membership in its scope, it manifestly limited its eligibility for membership. When it comes to organisational rights, NUMSA is bound to the categories of membership set out in its scope.[23]

[37]       However, when an employee is represented in an individual dispute with their employer by such a union, such representation is aimed at providing effective access to justice and redress to the employee, where it is due, in accordance with both sections 23 and 38 of the Constitution and prevailing labour legislation. Unlike the exercise of organisational rights in an employers workplace, the employer has no interest, in an individual dispute between it and an employee, in holding the union to the terms of the unions constitution in order to limit the employees right to representation. This is so in that the unions scope of operation relates to the industries in which the union is entitled to organise and bargain collectively. That scope does not bar the representation of a union member by that union in an individual dispute with their employer. In the context of labour relations, and given the balance of power which exists between employer and employee in the workplace, to find differently would be manifestly unfair.

Representation: Union constitution outside scope of industry: it may represent its member

J 1449/22

CCI SA (Umhlanga) (Pty) Ltd and Others v Mobile Telephone Networks (Pty) Ltd and Others (J 1449/22) [2023] ZALCJHB 9; (2023) 44 ILJ 1055 (LC) (31 January 2023)

[30]     In my view the Applicants failed to show exceptional circumstances on the facts placed before this Court, for a number of reasons.

Application in terms of section 18(3) of the Superior Courts Act to enforce an order of the Labour Court in respect of a section 197 transfer pending appeal proceedings…[10]     The Applicants subsequently approached this Court on an urgent basis for an order directing that the orders granted in the judgment of 28 December 2022 be of full force and effect and be executable pending the applications for leave to appeal

JS 751/2020

Southern African Clothing and Textile Workers Union and Others v Faeroes Properties (Pty) Ltd (JS 751/2020) [2023] ZALCJHB 14 (7 February 2023)

[1]…This led to a preliminary point raised by the respondent to the effect that the statement of claim had been delivered outside of the prescribed 90-day time period. The matter was accordingly removed from the roll with a directive that the applicants attend to the filing of an application for condonation, which they did approximately two weeks later.

certificate of outcome issued by the CCMA had not been included in the schedule of documents.

JR1595/19

Ngunyule v MEIBC and Others (JR1595/19) [2023] ZALCJHB 17 (7 February 2023)

[10]    During the debate, with Mr Mosime, it became apparent to me that the real reason for the postponement sought was the absence of the counsel who held the brief before Mr Mosime, who happened to have been appointed as an acting justice of this Court. The reasons advanced in disguise were far from convincing and appeared to have been a recent manufacture. This Court must emphasise, absence of counsel is not a ground for postponement of a matter, more especially a labour dispute. This Court is enjoined by the Labour Relations Act (LRA)[1] to speedily resolve labour disputes. There seem to be a growing tendency for counsel to only accept a brief to seek a postponement. I have bad news for such a tendency. In my view, where counsel is informed during the brief that a matter is enrolled for argument in the motion Court, such counsel must accept a brief to either move or opposed such a motion. It is, in my considered view, inappropriate for counsel to only accept an instruction to move a postponement application. In reality, such a brief (postponement brief) does not exist. It is indeed so that counsel may form a view after accepting a brief to move or oppose a motion that the motion is not ripe for hearing. Under those circumstances, he or she may prepare an application to postpone an application that is not ripe for hearing. However, counsel must symbiotically prepare to move or oppose the motion, in the event, the Court is not in agreement.

application for postponement – counsel unavailable

J68/23

Mamodupi v Property Practitioners Regulatory Authority and Another (J68/23) [2023] ZALCJHB 19 (13 February 2023)

[14]    Before these questions are tackled head on, it is crucial to deal with the applicable legal principles of a breach of contract claim first, as brought by Mohlala in terms of section 77 (3) of the BCEA. This Court in SAMWU obo Morwe v Tswaing Local Municipality and three others (Tswaing LC)[(J1230/20) dated 17 November 2020 marked reportable.] took a view that where an employment contract is no longer extant, the jurisdictional powers under section 77 (3) of the BCEA may not be invoked[This view was approved by my sister Nkutha-Nkontwana J in NEHAWU v Unisa (2022) 43 ILJ 2351 (LC)]. That view did not receive an imprimatur from the Labour Appeal Court (LAC) in its reportable judgment of SAMWU obo Morwe v Tswaing Local Municipality and others (Tswaing)[ [2023] 2 BLLR 131 (LAC).]. That notwithstanding, properly considered, Mohlala challenges the premature termination of her fixed term employment contract.

[15]    Section 186 (1) (a) of the LRA provides that it is dismissal for an employer to terminate a contract of employment with or without notice. Inasmuch as Mohlala chooses to label her case as one of breach of a contract, in truth this is a case of unfair dismissal. Mohlala chose to say that her dismissal is unlawful and invalid. It is by now settled law that the LRA does not know of an unlawful and or an invalid dismissal. Accepting that Mohlala chose to label her case as a breach of contract, then she must be confined to the contractual remedies.

[16]    Where a repudiation of a contract happens, the aggrieved party, in this instance Mohlala, has an election to make. The available remedies depend on the election the aggrieved party makes. If a party elects to accept the repudiation and cancel the contract, that party may sue for damages. If the party does not accept the repudiation, he or she may insist on performance of the contractual terms in specific forma. Should the aggressor refuse to perform, the aggrieved party may approach a Court with competent jurisdiction and seek specific performance as a relief.

[20]…Once a party observes malperformance, that aggrieved party is immediately put to an election. Two options avail themselves; namely (a) reject the repudiation/malperformance and claim specific performance; or (b) accept the repudiation; cancel the contract and sue for damages. As I understand our law; no Court may rule that a contactant made a wrong election. It remains the sole prerogative of the contactant to make that election.

[14]…where an employment contract is no longer extant, the jurisdictional powers under section 77 (3) of the BCEA may not be invoked

JR 1648/10 ; J 492/20

South African Social Security Agency v Hartley and Others (JR 1648/10 ; J 492/20) [2023] ZALCJHB 50 (1 March 2023)

“[98]         In SA Post Office Ltd v Communication Workers Union on behalf of Permanent Part-Time Employees[30] (SAPO), the LAC held that:

‘The purpose of making a settlement agreement or an arbitration award an order of court is to enforce compliance with the agreement or the award. The agreement or the award must therefore be unambiguous and unequivocal and not open to any dispute. This does not mean that an award or agreement that provides for payment of salary or wages for a certain period is not clear and precise. The parties could know or easily ascertain by having regard to documentation like payslips or an independent accounting exercise what the amount is (although ideally the amount should be clearly set out to avoid unnecessary delays and expensive exercise to ascertain the exact amount due). What all this means is that before the Labour Court will grant an order sought in terms of s 158(1)(c) of the LRA it must be satisfied that, at the very least:

(i)       the agreement is one which meets the criteria set in s 158(1)(c) read with s 158(1A) of the LRA, and if it is an award, that it satisfies the criteria set in s 142A of the LRA;

(ii)   that the agreement or award is sufficiently clear to have enabled the defaulting party to know exactly what it is required to do in order to comply with the agreement or award; and

(ii)      there has not been compliance by the defaulting party with the terms of the agreement or the award.’”

“[99]         In SAPO,[31] the LAC further held that:

‘Once the Labour Court is satisfied with all of the above then it must, nevertheless, exercise its discretion whether to grant or refuse the order. In exercising the discretion, the court must take relevant facts and circumstances into account, such as are necessary to satisfy the demands of the law and fairness. Necessarily, each case must be decided on its own facts and circumstances. There is, otherwise, no closed list of factors to be taken into account. A relevant factor is the time it took the party seeking the relief to launch the application to make the settlement or award an order of court. The Labour Court may, for example, be more reluctant to make an award for reinstatement of employees an order of court where the employees unreasonably delayed in seeking the enforcement of the award, yet a delay of years in seeking to make an award for payment of a sum of money may not be grounds for refusing to make the award an order of court. Finally and most crucially it must be remembered that the purpose of making an agreement or award an order of the Labour Court is to compel its enforcement, or enable its execution and not for some other purpose.’”

“[101]     In casu, taking the relevant facts into account and considering the demands of law and fairness, this Court is not inclined to make the arbitration award an order of Court for a number of reasons.

[102]     Firstly, the LAC has confirmed that the purpose of making a settlement agreement or an arbitration award an order of court, is to enforce compliance with the agreement or the award. This Court would only exercise its discretion to make an arbitration award an order of Court if there was sufficient evidence of non-compliance. In casu, the Respondent submitted that the Applicant has filed a review application to review and set aside the arbitration award, but that the Applicant did not pursue the review application, as required by law and the provisions of the Practice Manual, and that the review application is deemed to have been withdrawn.”

[109]     The Respondent therefore failed to show that she had indeed complied or attempted to comply with the arbitration award. Put differently: the Respondent seeks compliance with the award but failed to demonstrate her own compliance with the award.

[113]     It follows that this application has to fail.

[97]         Section 158(1)(c) of the LRA provides that this Court may make any arbitration award or any settlement agreement an order of the Court

“Postponement in matters is granted either by agreement between the parties, which agreement must comply with the provisions of the Practice Manual, or when there are compelling considerations to do so. Where a large number of employees seek retrospective reinstatement, the matter must be expedited, rather than delayed.

[15]       In casu, the pleadings closed, heads of arguments were filed and this is not a case where witnesses will adduce any evidence or where the parties could be allowed to go beyond the borders of their pleaded case and the grounds for review set out in the papers before the Court. The fact that a counsel was only briefed on the Monday before the matter was set down for hearing, is no reason to postpone, more so where his instructing attorney is not on record before this Court. To make matters worse, the ‘application for postponement’ was made from the bar, without any supporting affidavit or proper application on paper and the other parties, as this Court, were taken by surprise when a postponement was requested.

[16]       In Department of Education, Limpopo Province v The Education Labour Relations Council and others,[case number JR 4113/16, delivered on 15 February 2023.] Moshoana J lamented the postponement of matters at the eleventh hour, a sentiment and concern which is widely shared in this Court. It was held that:

‘[9]       … This Court runs a very tight ship. The opposed motion roll is now facing north of year 2024 in terms of enrolment, an unacceptable situation, this Court remarks. As a result, once matters are enrolled such matters may be postponed only under exceptional circumstances. Section 1 of the LRA enjoins that there must be effective resolution of disputes. With such an imperative, this Court should not accommodate a conduct where a party leisurely remove a matter from the roll and unilaterally so. The Registrar makes an effort to inform the parties that they have two weeks after notification for a hearing to ensure that the file is in order because thereafter the file will be with the allocated judge and inaccessible.

[10]      Files do not come to a chamber of the allocated judge just to decorate the chamber with earth colours. They come to the chambers to enable the judge, in between preparation of judgments for already heard matters, to read the matter in preparation for the hearing. This application having been enrolled three times implies that three judges were subjected to the torture of reading the file for nothing. This cannot be countenanced and it is a serious waste of limited judicial resources and time. Allocating a matter for a hearing means that other deserving matters could not be enrolled given the limited judicial resources. Removing a matter on the eleventh hour implies that another deserving matter continue to fester in the Registrar’s office awaiting allocation. Such a matter would have been allocated had it been known that a party would on the eleventh hour forego an allocation for no reason at all.’

[17]       In Ngunyule v MEIBC and others,[[2023] JOL 57771 (LC) at paras 10 – 11.] a postponement was sought at the eleventh hour, in circumstances where the applicant and his legal representatives were ready to proceed. The Court, dealing with the reasons for postponement, held that:

‘[10]     … This Court must emphasise, absence of counsel is not a ground for postponement of a matter, more especially a labour dispute. This Court is enjoined by the Labour Relations Act (LRA)[5] to speedily resolve labour disputes. There seem to be a growing tendency for counsel to only accept a brief to seek a postponement. I have bad news for such a tendency. In my view, where counsel is informed during the brief that a matter is enrolled for argument in the motion Court, such counsel must accept a brief to either move or opposed such a motion. It is, in my considered view, inappropriate for counsel to only accept an instruction to move a postponement application. In reality, such a brief (postponement brief) does not exist. It is indeed so that counsel may form a view after accepting a brief to move or oppose a motion that the motion is not ripe for hearing. Under those circumstances, he or she may prepare an application to postpone an application that is not ripe for hearing. However, counsel must symbiotically prepare to move or oppose the motion, in the event, the Court is not in agreement.

[11]      It has long being held that a counsel who comes to Court with an instruction to seek a postponement must also come prepared in the event a postponement is refused[6]. In the Labour Court, more particularly in regard to a review application, postponement thereof is a rare occurrence unless strong and cogent reasons are provided why a ripe review application ought to be postponed. The practice manual in the Labour Court perspicuously label a review as an urgent application in nature. Accordingly, the message this judgment conveys is that practitioners in the Labour Court must sparingly to never accept a brief for postponement of a review application only. If the review is ripe for hearing, such an application shall be heard.’

[18]       The review application is indeed ripe for hearing and was heard as an opposed application.”

postponements

JR1447/22

Adimoolum v Nxumalo and Others (JR1447/22) [2023] ZALCJHB 84 (22 March 2023)

Assets found at the premises of the execution debtor are by law presumed to be the assets of the execution debtor and execution may be levied upon those assets. A claimant claiming ownership of attached assets must provide the Court with satisfactory evidence of ownership. Absent satisfactory evidence of ownership the attached assets shall remain attached and liable to be sold in execution.

The claimant failed to provide satisfactory evidence of ownership of the attached goods. The commercial agreements entered into between brothers to circumvent execution are a facade. They are insufficient instruments to rebut the necessary legal presumption.

“[10] In Syfrets Bank Ltd and Others v Sheriff of the Supreme Court Durban Central and Another: Schoerie N.O v Syfrets Bank Ltd and Other[1], the Court stated the following:

“[w]hen the sheriff attaches and sells the property in execution he does not act as agent of the judgment creditor or the judgment debtor but does so as an executive of the law…”

“[11] In South African Congo Oil Co (Pty) Ltd v Identiguard International (Pty) Ltd[2], the Court had the following to say:

“[20] The need to attach the debt is self-evident. An attachment in execution creates a pignus judiciale, the effect of which is that control of the property attached passes from the judgment debtor to the officer entrusted with the execution of the writ, the dominium of the debt remaining with the judgment debtor …”””

“[18] It must follow that not having purchased the attached assets Marumo would not have found documents supporting a purchase despite a diligent and frantic search. The above testimony is a further demonstration of the facade conveniently created by the brothers. There is no dispute that the assets so attached were found at the premises of Drewmach. Lord De Villiers CJ in Zandberg v Van Zyl[1910 AD 302.] had the following to say:

“The principle, however, underlying the decision in that case appears to me quite in accord with our, law, namely, that possession of a movable raises a presumption of ownership, and that, therefore, a claimant in an interpleader suit, claiming the ownership on the ground that he has bought such movable from a person whom he allowed to retain possession of it, must rebut that presumption by clear and satisfactory evidence. The fact that he has bought a thing which he does not require himself, but allows the seller to use, requires full explanation, and in the absence of such explanation a Court is justified in drawing its own reasonable inferences…””

Interpleader proceedings

J1952/2017

La Foy v Department of Justice and Constitutional Development and Others (J1952/2017) [2023] ZALCJHB 127 (2 May 2023)

[2]          It is by now rested law that interpretation of any law, practice or conduct must be done within the prism of the Constitution. In my view, consideration of an application for absolution from the instance, it being a rule of practice must be through the lens of the constitutional obligations. Inasmuch as the rule – absolution from the instance – still serves a useful procedural purpose, it is doubted that regard being had to the constitutional imperatives outlined above, it is one that must still be considered by Courts of law.

[8]          The rule of absolution from the instance owes its origin from the English law, where the civil courts required the plaintiff to show that there was a scintilla of evidence against the defendant to avoid his or her claim from being dismissed[1]. Grammatically, the word ‘absolution’ means an act of freeing from blame and releasing from consequences. The term ‘instance’ refers to a particular case. Thus, what the department seeks at this stage of the proceedings is to be freed from blame in relation to the unfair discrimination claim. In South African law, the decree of absolution from the instance equates an order granted to dismiss the plaintiff’s claim on the basis that no order can be made.

“[9]          The test for determining whether absolution from the instance should be granted at the close of the plaintiff’s case was developed and perfected in the case of Claude Neon Lights v Daniel[1974 (4) SA 403 (A).]. The Court held:

“When an absolution from the instance is sought at the close of the plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence could or might find for the plaintiff.” [3]”

“[19]       As I conclude, as indicated above, granting of an absolution from an instance is an act that ostensibly conflicts with the audi alteram partem rule[9] and the principle in section 34 of the Constitution. Managay Reddy, in relation to section 174 of the CPA, stated the following[10]:

“Equally compelling, however, is the argument that the section 174 process has no regard for a victim’s rights, and also the interest of the public in full and fair trial being held.””

absolution from the instance

J412/2021

South African Municipal Workers Union obo Khalamashe and Others v City of Ekurhuleni Metropolitan Municipality and Another (J412/2021) [2023] ZALCJHB 120 (3 May 2023)

“[14] The Court in VLG Accounting CC and another v Koloni Consulting Enterprise cc and others[[2021] JOL 51789 (ECLD, East London).] stated the following in regard to rule nisi :

“[18]     A rule nisi is an order calling upon respondents to show cause, if any, on a fixed date why the rule should not be made final. It may, or may not, have interim effect”.

[19]      A rule will almost always be granted in an ex parte application as in this matter.

[20]      Such interim order is temporary and provisional…

[22]      The postponement of a rule nisi does not, so it has been held, of itself end the rule but automatically has the effect of extending the rule according to Crundall Brothers (Pvt) Ltd v Lazarus NO and Another.

[23]      However, in my view as a rule nisi is an interim order, and in this matter given ex parte, it is conditional upon confirmation by the Court. It seems to me that a Court has no authority to mero motu extend the life of a lapsed order whether or not a rule.””

[20] On the return day of a rule nisi accordingly if a matter is postponed, or as in this case, removed from the roll with no extension of the rule and no date for the matter to be heard in the future, the rule nisi must automatically lapse discharging respondents from the duty of compliance.[National Director of Public Prosecutions v Walsh and Others 2009 (1) SACR 603 T [24] and [25]]

rule nisi

J 1031/15

Gunn v Hoogengyk and Another (J 1031/15) [2023] ZALCJHB 130 (6 May 2023)

Company failing to reinstate employee – That employee not tendering his services within a reasonable time not preventing his contempt application

Contempt proceedings are aimed at protecting the integrity of Court orders. Court orders prescribe after 30 years. Before 30 years, a Court is obliged to issue a contempt order if non-compliance with a valid Court order is proven. Numsa and another v Aircycle Engineering CC and others[1] not followed.  SA Timber (Pty) Ltd was ordered by Commissioner Naniso on 30 November 2011 to reinstate the applicant on the same terms and conditions that existed before his dismissal. On 21 July 2015, the Labour Court made the arbitration award issued by Naniso an order of this Court. This order was not complied with since its issuance. The directors of SA Timber are obliged to ensure compliance with the Court order. Failure to do so amounts to contempt of Court. Held: (1) The respondents are held to be in contempt of the Court order dated 29 July 2015. Held: (2) Both respondents are fined an amount of R100 000.00 each; payment thereof is suspended in whole on condition that the respondents comply with the Court order within 15 days of this Court order. Held: (3) The respondents to pay the costs.

[12]       It is important to note that in truth in a contempt application the complainant becomes the Court and not a party who brings the application. For the integrity of its orders, a Court, so jealously guards the probity of its orders, to a point that civil disobedience is not countenanced. One of the requirements of the civil offence of contempt is that there must be a deliberate and intentional violation of the Court’s dignity, repute or authority. A mere disregard of a Court order does not amount to contempt.[3]

[18]       Prinsloo J concluded that on the dicta of Kubeka and others v Ni-Da Transport (Pty) Ltd[5] there exists an obligation on an employee who was awarded reinstatement to tender his services within a reasonable time and for the employer to accept such tender. She further concluded that for the applicants to succeed with a contempt application they had to show that they indeed, within reasonable time, tendered their services to the respondents in compliance with the terms of the arbitration award and that the respondents refused to accept their tender of services.

[21]       In my view, where an employer takes steps to reverse a court order, once it exhausts all those steps, it must behave like a law-abiding citizen and call upon the employee in whose favour the order was made to resume employment. I do agree that based on the principles of contract, in order for an employee to be paid any remuneration, that employee must render service or tender to render the services. In contempt applications, as pointed out above, what is to be protected is the authority of the Court and not of Gunn in this instance. It was made clear that seeking a contempt is consistent with vindication of the rule of law.

Contempt – Reinstatement

JA18/2022

Mohube v Commission for Conciliation Mediation and Arbitration and Others (JA18/2022) [2023] ZALAC 9 (18 May 2023)

[11]…that he was not notified of the date of the arbitration and that he was not in wilful default and had a bona fide claim against PRASA and that his rescission application was brought in good faith.

[14]…”The CCMA’s transmission report shows that the set down notice was sent to the correct address. I obtained the Activity Report on the case off the CCMA system, and it shows that all notices from the beginning was sent to the correct email address. I requested Mr Sebola to send me a copy of the alleged email he was referring to. None was supplied. On the merits of the case, the Applicant states that it is not his signature on the document authorising additional monies to a Contractor. “

[43]         What the Solomons judgment [Unreported judgment JR99/2021 delivered on 4 August 2021 ]held was the dismissal of a dispute in terms of section 138(5)(a) had the effect of the matter being struck off the roll because the dispute referred to arbitration had not been resolved as is required by section 1(d)(iv)[10] of the LRA and offends section 34 of the Constitution[11]. In the circumstances and in terms of Solomons, an applicant whose matter is dismissed in terms of section 138(5) (a) need not apply for a rescission of the dismissal ruling but can apply to have the matter re-enrolled upon providing a satisfactory explanation for her/his failure to attend the arbitration hearing.

[47]         To interpret the word “dismissal” in section 138(5) (a) to mean “struck-off from the roll” is to give it a meaning that cannot ordinarily be ascribed to that word and to attribute to the word a value or a result that would serve a purpose other than what it is supposed to convey, this is not interpretation.

rescission: ccma

J709/23

Justice for All Workers of South Africa v Molefe NO and Another (J709/23) [2023] ZALCJHB 166 (30 May 2023)

[1]  With the advent of our constitutional democracy, no one is above the law. In terms of section 209 of the Labour Relations Act[1] (LRA), the LRA binds the State. A mandamus is a Court order that compels a public authority to perform a public or statutory duty. It is a common law remedy that has been in place as far back as 1864. This remedy owes its origin to the Kings of England. A writ of mandamus may be issued in favour of a person who establishes a legal right for himself or herself. It may be used against a person who has a legal duty to perform but has failed or has neglected to do so. Such a legal duty emanates by operation of law. The object of mandamus is to prevent disorder emanating from a failure of justice and is required to be granted in all cases where the law has established no specific remedy.[Union of India v S B Vohraxi Appeal (civil) 2887 of 2001.]

[2]  In modern days, mandamus is intertwined with accountability. Mandamus is a command. Section 195 (f) of the Constitution of the Republic of South Africa, 1996 decrees that a public administration must be accountable. In my view, being forced to perform statutory duties through a Court order has a huge taint of embarrassment. That being the case, a party seeking a mandamus must be certain that the statutory provision relied on indeed places a duty it seeks to enforce.

[12] However, it is my considered view that the decision to register or refuse to register a trade union amounts to an administrative action within the meaning of section 1 of PAJA. As a general rule, where a time to take an administrative decision is not prescribed, the decision maker is bound by the unreasonable delay rule. Thus, the decision must be taken within a reasonable time.

writ of mandamus

JR 1887/21

Mahape v City of Tshwane Metropolitan Municipality and Others (JR 1887/21) [2023] ZALCJHB 176 (5 June 2023)

challenge to the authority of the deponent to the answering affidavit

[12]  In regard to the first issue, this court has adopted the view that if a party’s attorney is authorised to bring an application or oppose an application on behalf of an applicant or respondent, as the case may be, there is no need for any other person to additionally authorise. Put another way, it is sufficient that the institution of the proceedings is authorised and that the attorney who is instructed acts with authority (see Eskom v Soweto City Council 1992 (2) SA 703 (W)). In the present instance, the deponent to the answering affidavit is the group head: group human capital management. He states that he is authorised to depose to the affidavit by virtue of that position and that he has personal knowledge of the facts. There is no challenge to the authority of the first respondent’s attorneys to oppose the application and in the absence of such a challenge, the court must necessarily accept that the deponent had the necessary authority to depose to the answering affidavit.

Application: authority to sign affidavit

JS 126/2019

Mnisi and Others v South African Broadcasting Corporation SOCS Limited and Others (JS 126/2019) [2023] ZALCJHB 178 (9 June 2023)

As the LAC remarked in Pilanesberg Platinum Mines (Pty) Ltd v Ramabulana (2019) 40 ILJ 2723 (LAC), the only relief open to a party claiming breach of contract is either specific performance or damages. Claim A is in essence a claim of breach of contract, in the form of an alleged failure to comply with the SABC disciplinary code. The statement of claim makes no mention of any acceptance of any repudiation of the employment contracts, or any election to seek performance of the contract or to cancel the contract and claim damages. The same applies to claims B and C. On the assumption that the remedy sought by the applicants is one of specific performance (this would appear to be the case by reference to paragraph 37.4 of the stated case and the claim for reinstatement), it is well-established that specific performance is a discretionary remedy. As Froneman J remarked in Steenkamp & others v Edcon Ltd and another (2016) 37 ILJ 564 (CC), while there is absolute prohibition against granting specific performance to wrongfully dismissed employees, ‘Whether specific performance is in fact to be granted depends on practical considerations and lies in the court’s discretion’.

[24]  In summary: the SABC did not breach the applicants’ employment contracts by adopting the procedure that it did prior to the termination of their employment, or by accessing the documents that it did in the course of investigating claims of fraud, nor was the termination invalid or void for lack of authority. Even if the SABC breached the employment contracts, all of the relevant facts and circumstances militate against an award of specific performance.

breach of contract claim: pleadings

C07/2023

Peter v Truworths Ltd (C07/2023) [2023] ZALCJHB 213 (14 July 2023)

6.       It is trite that a statement of claim serves a dual purpose. First, as the mechanism prescribed by the rules of this court to initiate action proceedings; and, second, to inform the party against whom the claim is made of the material facts and legal issues arising from those facts upon which the applicant will rely to support his claim.[Harmse v City of Cape Town (2003) 24 ILJ 1130 (LC).] Rule 6(1)(b)(ii) requires the statement of claim to contain “a clear and concise statement of the material facts, in chronological order, on which the party relies, which statement must be sufficiently particular to enable any opposing party to reply to the document.” Those material facts must also contain sufficient factual and legal particularity so that both the respondent and the court know what the applicant is relying upon to succeed in its claim.[2] The applicant’s statement of claim falls well short of this standard.

“7.       This court’s rules do not prescribe a specific exception procedure, though exceptions are nonetheless common practice. The test is accordingly well established.[3] In order to succeed, the excipient must persuade the court that on every interpretation that the pleading in question can reasonably bear, no cause of action is disclosed (First National Bank of Southern Africa Ltd v Perry NO & others 2001 (3) SA 960 (SCA)). In the context of the requirements imposed by Rule 6(1)(b)(ii), this court in Liquid Telecommunications (Pty) Ltd v Carmichael-Brown (2018) 39 ILJ 1779 (LC) held that:

Whether or not the respondent’s statement of claim is excipiable is to be determined by reference to Rule 6 of the Rules of this court, not Rule 18 of the Uniform Rules. Rule 6 requires no more than that a party referring a statement of claim record in a concise manner the relevant facts on which that party relies, and also in concise terms, the legal issues that arise. In the absence of any directive to the contrary, this is all that is required, and the standard against which any pleading is to be measured.[4]”

“13.   Regarding the relief to which the respondent is entitled, the general practice in our courts, once an exception is upheld, is for the respondent (in the exception) to be afforded an opportunity to amend. Here, the respondent seeks an order striking out the statement of claim in its entirety. A departure from the general practice is however only permissible in exceptional circumstances. In Rowe v Rowe [1997] ZASCA 54; 1997 (4) SA 160 (SCA), the SCA found that:

It does not appear from the judgment why the learned judge dismissed the claims instead of making the usual order setting aside the particulars of claim with leave to the appellant to amend if so advised. All I wish to add to the remarks in Group Five Building Ltd v Government of the Republic of South Africa [1993] ZASCA 4; 1993 (2) SA 593 (A) at 602C-604I is that it is doubtful whether this established practice brooks of any departure and that, in the rare cases in which a departure may perhaps be permissible, one expects to find the reasons in the court’s judgment.”

Exception pleadings

J 1395 / 2023

Mlaba v Honourable Dr Aaron Motsoaledi Minister Department of Home Affairs and Another (J 1395 / 2023) [2023] ZALCJHB 277 (12 October 2023)

[44] So therefore, the applicant is compelled to have pursued his claim that he was unfairly dealt with and punished by the Department because of his alleged misconduct, in recalling him to South Africa, by way of a referral to the CCMA / bargaining council. It was not competent to approach this Court directly. As such, and by virtue of his failure to follow what is the described dispute resolution processes under the LRA, the applicant simply has no right to relief sought in his notice of motion.

“[45] The Labour Court of course always remains entitled to grant a litigant interim relief, pending the final resolution of the dispute pursued in terms of the prescribed dispute resolution processes under the LRA.[31] But this entitlement of the Labour Court cannot come to the assistance of the applicant in casu, for two reasons. The first reason is obvious, being that the applicant has not asked for interim relief in his notice of motion, but has asked for final relief.[32] And secondly, there is no primary pending dispute resolution process pending in the prescribed forum, in respect of which the applicant can be granted interim relief. In this regard, the point is simple. In order to grant such interim relief, and as a jurisdictional fact, the dispute needed to have at least been referred to the CCMA or bargaining council in terms of section 191(1) of the LRA.[33] In De Beer v Minister of Safety and Security and Another[34] the Court held:

‘In terms of s 158(1)(a)(i) of the Act, the Labour Court is empowered, inter alia, to grant a litigant appropriate urgent interim relief. On the other hand, the Labour Court is not empowered, for example, to adjudicate a dispute about the fairness of a dismissal in circumstances where the dispute was not first referred to the CCMA, or the relevant council, as the case may be, for conciliation within the prescribed period. Section 191(1) of the Act requires that such a dispute be first referred to conciliation …’”

jurisdiction, Unfair Labour Practice, only interim relief pending CCMA conciliation

J 945/2023

South African Municipal Workers Union v Minister of Cooperative Governance and Traditional Affairs and Another (J 945/2023) [2023] ZALCJHB 323 (17 November 2023)

“The Rule 16A point

[17] The second preliminary point raised by the Minister is that the applicant has failed to comply with Rule 16A of the Uniform Rules. That Rule requires a party raising a constitutional issue to prepare a notice containing a clear and succinct description of the constitutional issue raised, and for the notice to be placed on a dedicated notice board in the relevant High Court. The purpose of the Rule is to bring the fact of any constitutional challenge to the attention of persons who may have an interest in nor be affected by that challenge.

[18] This Court has its own rules, and the Uniform Rules are not applicable, except to the extent that the Court may have recourse to them when its own rules do not regulate a particular situation that may arise. That is a matter for direction by the court.[8] In any event, on 15 September 2023, the applicant filed a document headed ‘Notice of Hearing: Constitutional Issue’, together with a brief description of the present matter and a request that the registrar place the notice on an appropriate notice board. The registrar correctly advised the union that such a notice is not required by the Rules of this Court and declined to place it on the notice board. There is thus no merit in the submission that the proceedings ought to be adjourned so that “the application be circulated far and wide”.”

[27] A constitutional challenge based on justifiability requires a two-stage inquiry. The first is whether the impugned provision limits any right in the Bill of Rights, and if it does, whether that limitation can be justified in terms of section 36(1).[11] Central to the present enquiry is the freedom to make political choices, expressed in section 19 to include the right to form a political party and to participate in the activities of a political party. Holding political office in a party is a form of participation in an activity of a political party. Neither of the respondents’ dispute that the impugned extension constitutes an infringement of a section 19 right. The issue for determination then is whether the impugned extension meets the threshold of justifiability. This requires, among other things, an assessment of the nature and extent of the limitation, the relation between the limitation and its statutory purpose, and whether less restrictive means are available to achieve the same purpose.

[41]…The limitation in the form of the impugned extension thus cannot be justified in terms of section 36 (1) of the Constitution, and section 71B is unconstitutional to the extent that it denies municipal employees, who are not municipal managers or managers accountable to them, from holding any political office in any political party.

‘Notice of Hearing: Constitutional Issue

CCT 204/22

Rand Refinery Limited v Sehunane N.O. and Others (CCT 204/22) [2023] ZACC 28; (2023) 44 ILJ 2434 (CC); 2023 (12) BCLR 1511 (CC); [2023] 12 BLLR 1235 (CC) (21 August 2023)

[22]…The procedure which Mr Maseko followed – simply attaching copies of affidavits made by others in High Court litigation – was not strictly correct.  The attached copies were hearsay evidence in the Labour Court.  If Mr Maseko wanted Mr Mulafhi’s evidence in the High Court to be adduced in the Labour Court, he should have obtained a new affidavit from Mr Mulafhi.  A copy of evidence given by a witness in earlier proceedings is not admissible in later proceedings merely because the witness gave the earlier evidence under oath.[8]

African Guarantee & Indemnity Co Ltd v Moni 1916 AD 524 at 532, Botha N.O. v Tunbridge N.O. 1933 EDL 95 at 103-4, Hattingh v Le Roux 1939 EDL 217 at 219, Fourie v Morley & Co 1947 (2) SA 218 (N) at 222 and Du Plessis N.O. v Oosthuizen; Du Plessis N.O. v Van Zyl 1995 (3) SA 604 (O) at 619I-J.  See also O’Shea NO v Van Zyl N.O. [2011] ZASCA 156; 2012 (1) SA 90 (SCA); [2012] 1 All SA 303 (SCA).

Inadmissible to attach papers in High Court proceeding in Labour Court proceeding

CCT 204/22

Rand Refinery Limited v Sehunane N.O. and Others (CCT 204/22) [2023] ZACC 28; (2023) 44 ILJ 2434 (CC); 2023 (12) BCLR 1511 (CC); [2023] 12 BLLR 1235 (CC) (21 August 2023)

[21]     I must add that, even if it were so that Rand Refinery’s opposing affidavit had, due to some or other oversight, not been filed with the Labour Court, the Judge was not entitled without more to set aside the arbitration award.  In his rule 11 application, Mr Maseko sought leave to file a supplementary affidavit and to amend the relief claimed in the notice of motion.  If the rule 11 application was, as the Judge thought, unopposed, the Judge could properly have granted the relief claimed in the rule 11 application.

[31]     For these reasons, the Labour Court’s judgment must be set aside and the case remitted to the Labour Court to determine the review application in accordance with the principles stated in this judgment and with reference to all admissible evidence.

Review order incorrectly made in Rule 11 application

J547/22

ECCAWUSA obo Moyo v Super Spar, Polofields and Another (J547/22) [2023] ZALCJHB 330 (1 December 2023)

where an order is not complied with contempt proceedings are competent. The requirement of service of the order or bringing the order to the attention of the contemnor implies knowledge and or awareness of the order. It remains a technical defence to state that an applicant has not pleaded as to how it brought the order to the attention of the contemnor. Of importance is having knowledge of the order since lack of knowledge of the order is a valid defence. In casu, it was common cause that the order allegedly offended had come to the knowledge of the contemnor. The contemnor then must and has failed to show that he did not wilfully, obstinately and contemptuously ignore the order. Thus, failing to rebut the presumption of wilfulness and mala fides. Contempt of Court proven. Costs – a party opposing contempt proceedings with full knowledge that an order has not been complied with acts unreasonably. Such conduct warrants a cost order. Held: (1) The second respondent is held in contempt and fined, which fine is suspended on condition he purges his ways by complying with the order. Held: (2) The respondents must to pay the costs of this application jointly and severally, the one paying absolving the other.

Institution of Legal Proceedings Against Certain Organs of State Act, 2002[1] (the Act).

JA129/23

Minister Of Justice And Correctional Services and Another v Nene (JA129/23) [2024] ZALAC 30 (13 June 2024)

[6]…That aside, legal proceedings for the recovery of a debt may not be instituted against an organ of state unless the creditor has given written notice of intention to institute the legal proceedings in question.[2] The notice must briefly describe the facts giving rise to the debt and the particulars of the debt within the knowledge of the creditor. It must be served on the organ of state within six months from the date on which the debt became due.[3] Failure to do so timeously typically necessitates an application for condonation.

[8]  It is common cause that Mr Nene was dismissed on 19 September 2014. His submission is that this was baseless, thereby justifying his claim for damages. In the language of the Act, this was the time that the debt became due, given that he had knowledge of the identity of the organ of state and of the facts giving rise to the debt.[6] He was accordingly obliged to serve notice of the intended legal proceedings on the Department within six months from this date.[7]

“[14]…Didcott J framed the position as follows in Mohlomi v Minister of Defence:[Mohlomi v Minister of Defence [1996] ZACC 20; 1997 (1) SA 124 (CC); 1996 (12) BCLR 1559 at paras 11-12.]

‘Rules that limit the time during which litigation may be launched are common in our legal system as well as many others. Inordinate delays in litigating damage the interests of justice. They protract the disputes over the rights and obligations sought to be enforced, prolonging the uncertainty of all concerned about their affairs. Nor in the end is it always possible to adjudicate satisfactorily on cases that have gone stale. By then witnesses may no longer be available to testify. The memories of ones whose testimony can still be obtained may have faded and become unreliable. Documentary evidence may have disappeared. Such rules prevent procrastination and those harmful consequences of it. They thus serve a purpose to which no exception in principle can cogently be taken.’

“

Res Judicata

J95/2020

NEHAWU obo Sader v Education Training And Development Practices Sector Education And Training Authority (J95/2020) [2024] ZALCJHB 48 (10 January 2024)

[16]  Res Judicata means that a matter that has been finally determined by a court of competent jurisdiction cannot be re- litigate by the same parties. If the respondent want to rely on this defence they must prove all the elements, – in that the parties were the same; it was the same relief; on the same cause.[3] For a defence of lis pendens the requirements are – there is pending litigation between the same parties; the cause of action is the same; the same relief is sought.[4]

statement of case requirements

JS227/2023

Makgeledise v DSV Solutions (Pty) Ltd (JS227/2023) [2024] ZALCJHB 20 (29 January 2024)

“9]             In Candy and others v Coca Cola Fortune (Pty) Ltd,[] the Court considered the purpose of a statement of claim and held that:

‘In its simplest terms, the statement of case must at least inform the respondent party what the pertinent facts are on which the applicant will rely in the case, and further, what the cause of action is that the applicant will pursue as founded on these facts. That must be done in sufficient particularity so as to enable the respondent to provide a proper answer to these facts and the related cause of action. The statement of claim and the answering statement thereto are not just for the benefit of the parties. They also serve the court, in that the issues in dispute are properly determined and other possible alternative causes of action are eliminated from having to be considered by the court. A proper statement of claim and answering statement are imperative to the fundamental requirement of expeditious resolution of employment disputes in terms of the LRA. As the court said in Harmse v City of Cape Town:

[6]      The statement of claim serves a dual purpose. The one purpose is to bring a respondent before the court to respond to the claims made of and against it and the second purpose of a statement of claim is to inform the respondent of the material facts and the legal issues arising from those facts upon which applicant will rely to succeed in its claims.

[7]      The material facts and the legal issues must be sufficiently detailed to enable the respondent to respond, that is, that the respondent must be informed of the nature or essence of the dispute with sufficient factual and legal particularity so that it knows what it is that the applicant is relying upon to succeed in its claim”.’ [Footnotes omitted]”

[10]         The test to be applied when an exception is taken to particulars of claim on the basis that they disclose no cause of action is whether the particulars disclose every fact which it would be necessary for the plaintiff to prove if traversed, in order to support the right to judgment. A pleading is excipiable only if no possible evidence led on the pleading can disclose a cause of action.[6] A distinction is drawn between facta probanda, primary factual allegations that must be made, and the facta probantia, or secondary factual allegations in support of the former. Generally, the latter are matters for particulars for trial or matters of evidence.

archiving of files

JS1027-19

Rabalela and Others v General Electric Transportation (JS1027-19) [2024] ZALCJHB 72 (29 January 2024)

Lebelo and 406 Others v City of Johannesburg (J2055/14) [2022] ZALCJHB 81 (22 March 2022).

prime considerations in the decision of whether to grant an amendment

JS 259/21

Kganyago v Tsogo Sun Casino Management Company and Another (JS 259/21) [2024] ZALCJHB 41 (30 January 2024)

[6]    One of the prime considerations in the decision of whether to grant an amendment is whether the amendment will cause the other party such prejudice as cannot be cured by an order for costs and, where appropriate, a postponement.[5]

“[7]    In the matter of Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en ‘n ander[6], the Court stated that an applicant for an amendment must, in his application for the amendment, show prima facie that he has something deserving of consideration – a triable issue.

[8]    A triable issue is (1) a dispute which, if it is proved on the basis of the evidence foreshadowed by the applicant in his application, will be viable or relevant, or (2) a dispute which will probably be proved by the evidence so foreshadowed.”

pleadings that are vague and embarrassing

JS 259/21

Kganyago v Tsogo Sun Casino Management Company and Another (JS 259/21) [2024] ZALCJHB 41 (30 January 2024)

“the following principles are trite:

24.1.    An exception on the grounds that a pleading is vague and embarrassing strikes at the formulation of the cause of action and not at its legal validity;[12]

24.2.    An exception to a pleading on the ground that it is vague and embarrassing entails a two-fold consideration. The first consideration is whether the pleading lacks particularity to the extent that it is vague. The second consideration is whether the vagueness causes prejudice.[13]”

[25]    With regards to prejudice, the Court is “obliged to undertake a quantitative analysis of such embarrassment as the excipient can show is caused to him, in his efforts to plead to the offending paragraph, by the vagueness complained of”.[14]

26]    What must also be borne in mind with regards to the lack of particularity in the pleading resulting in vagueness is that the object of pleadings is to set forth a clear and succinct summary of the grounds on which a claim is made. Where a pleading is vague, it is either ”meaningless or capable of more than one meaning”.[15]

“[31]    Insofar as a party relies on claiming that a pleading lacks averments which are necessary to sustain an action, the following principles need to be taken into consideration:

31.1.      The challenge on the basis that a pleading does not disclose a cause of action or defence is directed at its legal validity;[19]

31.2.     In McKenzie v Farms’ Co-operative Meat Industries Ltd[20] the following definition of “cause of action” was adopted by the Appellate Division:

‘… every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved’;

31.3.     A pleading is excipiable if no possible evidence led on the pleadings can disclose or make out a cause of action or a defence;[21]

31.4.     In deciding an exception, a Court must accept all allegations of fact made in the particulars of claim as true; may not have regard to any other extraneous facts or documents; and may uphold the exception to the pleading only when the excipient has satisfied the court that the cause of action or conclusion of law in the pleadings cannot be supported on every interpretation that can be on the facts. The purpose of an exception is to protect litigants against claims that are bad in law or against any embarrassment which is so serious as to merit the costs even of an exception. It is a useful procedural tool to weed out bad claims at an early stage, but an overly technical approach must be avoided”[22];

31.5.     The defendant must persuade the court that upon every interpretation which the particulars of claim can reasonably bear, no cause of action is disclosed.[23]”

“46]    As the rules of this Court do not require an Applicant to elaborate exposition of all fact in their full and complex detail, as Harmse (supra) concluded, I conclude that the Applicant has presented enough background in terms of her claim and that such amendment will not render the amended statement of claim excipiable by either being vague and embarrassing and/or lacking the necessary averments to sustain a cause of action.

[47]    The grounds for objection in terms of the dismissal claim therefore stand to fail.”

statement of claim serves a dual purpose

JS 259/21

Kganyago v Tsogo Sun Casino Management Company and Another (JS 259/21) [2024] ZALCJHB 41 (30 January 2024)

“[27]    In respect of Rule 6 of the Rules of this Court, in Harmse v City of Cape Town[16], Waglay J (as he then was) said the following:

‘[6]    The statement of claim serves a dual purpose. The one purpose is to bring a Respondent before the Court to respond to the claims made of and against it and the second purpose of a statement of claim is to inform the Respondent of the material facts and the legal issues arising from those facts upon which applicant will rely to succeed in its claims.

[7]    The material facts and the legal issues must be sufficiently detailed to enable the Respondent to respond, that is, that the Respondent must be informed of the nature or essence of the dispute with sufficient factual and legal particularity so that it knows what it is that the Applicant is relying upon to succeed in its claim.

[8]    The Rules of this Court do not require an elaborate exposition of all facts in their full and complex detail – that ordinarily is the role of evidence, whether oral or documentary. There is a clear distinction between the role played by evidence and that played by pleadings – the pleadings simply give the architecture, the detail and the texture of the factual dispute are provided at the trial. The pre-trial conference provides an occasion for the detail or texture of the factual dispute to begin to take shape. In terms of Rule 6(4)(b) the parties in the pre-trial conference must attempt to reach consensus on facts that are common cause, facts that are in dispute, the issues that the Court is required to decide and the precise relief claimed.’”

“28]    In Liquid Telecommunication (Pty) Ltd v Carmichael – Brown[17], Van Niekerk J quoted with approval the views expressed by Wadley, J (as he then was), as to the emphasis on complying with Rule 6 so as to inform the Court and the Respondent of the facts, not the evidence, upon which the Applicant wishes to rely. Both the Court and Respondent need to know what the Applicant’s case is about in respect of factual allegations and legal issues.

[29]    When the Respondent pleads to the Statement of Claim, it will also be expected of the Respondent to similarly state the facts and legal issues to enable the Applicant at the pre-trial conference to deal with same.”

Labour Court to sit as an arbitrator

JS 410/21

ICTU obo Erasmus and Others v Telkom SOC Limited (JS 410/21) [2024] ZALCJHB 24 (31 January 2024)

5]        This dispute was declared in accordance with section 191(5)(i) read with subsection (11) of the Labour Relations Act[1] (“the LRA”), which provides that an employee may refer a dispute to this Court if he or she alleges that the reason for dismissal is automatically unfair.[2] However, once a Court finds the true reason for the dismissal and that the matter belongs to a statutory body such as the CCMA, then this Court would refuse to pronounce on the fairness of the dismissal and ultimately dismiss the matter. [3]

“[6]        However, sometimes this Court may proceed with a matter if it is found that the reason for the dismissal is not what the employees alleged. This is on the basis that section 158(2) of the LRA gives this Court two-fold discretional options to resolve a dispute already before it once it becomes apparent that it has no jurisdiction; this section reads thus:

(2)  If at any stage after a dispute has been referred to the Labour Court, it becomes apparent that the dispute ought to have been referred to arbitration, the Court may—

(a) stay the proceedings and refer the dispute to arbitration or

(b) if it is expedient to do so, continue with the proceedings, in which case the Court may only make any order that a commissioner or arbitrator would have been entitled to make, provided that in relation to the question of costs, the provisions of section 162(2)(a) are applicable. [My emphasis]”

“[7]        The Labour Appeal Court (LAC) in Member of the Executive Council of the Western Cape Provincial Government Health Department v Coetzee and others (“Coetzee”)[4] explained the elliptical phrase “If at any stage after a dispute has been referred to the Labour Court, it becomes apparent that the dispute ought to have been referred to arbitration”. Thus, it is apparent from this ratio that if from the beginning, there was no need for the matter to be referred to this Court, then the Court should declare that it has no jurisdiction and consequently dismiss the matter on those bases, as the LAC succinctly held that:

“[75]    In the circumstances, the Labour Court…could not have properly exercised the discretion, which is clearly circumscribed in section 158(2) “”to continue with the proceedings with the court sitting as arbitrator””. The Court was requested at the outset to sit as an arbitrator. There was no “”continuation”” of the proceedings in the sense contemplated in that section, but a request at the outset that proceedings be conducted with the Court sitting as arbitrator.

[78]      The respondents deliberately abandoned the referral to arbitration …and chose, of their own accord, for the Labour Court to sit as an arbitrator instead. The LRA does not allow for that. This was clearly an instance of forum shopping, which is completely undesirable.”[5]

“

11]      This Court has considered that in paragraphs 59 to 71 of the Statement of Case, the Individual Applicants refer to provisions of the LRA and that of the Constitution of the Republic of SA, but none of them are applicable in this matter because it has been apparent from the beginning that they were dismissed for allegations of misconduct. Therefore, it is not appropriate for the Court to proceed with the matter as an arbitrator as that would be against the provisions of the LRA when considered together with what the LAC stated in Coetzee supra. Even though Mr Phala for the Individual Applicants, during the trial, had alluded to the issue of possible transfer of the matter to the CCMA, which Mr Maseremule opposed; this Court could not transfer this matter to the CCMA as it is restricted from doing so. Consequently, the claim is hereby dismissed due to lack of jurisdiction.

applications for leave to amend

JS34/21

Barloworld Equipment v Solidarity and Others (JS34/21) [2024] ZALCJHB 40 (5 February 2024)

“[2]   The test for determining whether to grant an amendment is whether the interests of justice permit the granting of such an amendment.[1] This is a broad test.

[3]   In deciding whether to grant or refuse an application for amendment courts lean in favour of granting them in order to ensure that justice is done between the parties by deciding the real issue between them. An application for amendment will always be allowed “unless it is mala fide or would cause prejudice to the other party which cannot be compensated for by an order for costs or by some other suitable order such as postponement”[2].”

“[4]   These principles are set out and were applied by this Court in SATAWU & another v SAA (Pty) Ltd[3]. That is one of the many examples where this Court has adopted and applied the Uniform Rules[4] in situations governed by Rule 11.

[5]   It is trite that the primary objective of allowing an amendment is to obtain a proper ventilation of the dispute between the parties and to determine the real issues between them, so that justice may be done.[5]

[6]   One of the prime considerations in the decision of whether to grant an amendment is whether the amendment will cause the other party such prejudice as cannot be cured by an order for costs and, where appropriate, a postponement.[6]

[7]   In the matter of Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Limited and Another[7], the Court stated that an applicant for an amendment must, in his application for the amendment, show prima facie that he has something deserving of consideration – a triable issue.

[8]    A triable issue is (1) a dispute which, if it is proved on the basis of the evidence foreshadowed by the applicant in his application, will be viable or relevant, or (2) a dispute which will probably be proved by the evidence so foreshadowed.”

Service of documents: requirements which must be met when pleadings are served by email: Judge President’s directive dated 5 January 2022 regarding the service of pleadings by email.

JR538/23

Mahlo v Commission For Conciliation, Mediations And Arbitration and Others (JR538/23) [2024] ZALCJHB 49 (8 February 2024)

 the person who effected service must file an affidavit of service which must state that, firstly, the address to which the email was sent was the correct email address of the addressee and confirm which document/s was/were attached to the email. Secondly, the service affidavit must state that the party to whom the email was addressed telephonically confirmed receipt of the email and attachment/s and further give the name of the person who confirmed receipt of the transmission, alternatively, an email from the party to whom it was addressed confirming receipt of the email must be attached to the affidavit.

reinstatement: back pay

JR1223/21

Malapane v NTT Motor Investments (Pty) Ltd (JR1223/21) [2024] ZALCJHB 112 (11 March 2024)

“3]  At the same time, the applicant too has clay feet. The applicant pleads with this court to order payment of backpay and further to order the employer to do the calculations on how much the applicant is entitled to. Essentially, the applicant pleads with this court to order the employer to pay her arrears salary and effectively assume the duties ordinarily assigned to persons in the finance and human resources divisions of the employer. That is not the duty of this court and an advisory memorandum to the applicant would have said that much. Having said that, I am in concert with the approach adopted by my brother Mr Justice Moshoana in the Department of Public Works v the General Public Service Sector Bargaining Council[JR 1483/18 (5 March 2021) at para 19.] when he held as follows in respect of the proper interpretation of the backpay following his scholarly interpretation of the decision of the apex court[3] on the issue of backpay:

“Of momentousness, a commissioner or a judge cannot order payment of back-pay, which is simply arrears wages. According to the first judgment an employee may only claim backpay once an employee is physically taken back by an employer…””

“[14]…The reinstatement of the employee and the payment of the said amount denote that the employer was implementing the arbitration award and paying back or remunerating the employee for the period the employee did not render service at the behest of the employer. As the apex court stated in Equity Aviation[6]:

“…Differently put, if employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal…”[15]  The date of the judgment of this court was 12 March 2021. The employer was therefore obliged in law to remunerate the employee from the date of the implementation date of the award being effective from 28 March 2018 to 30 April 2021. In Coca Cola Sabco (Pty) Ltd v Van Wyk[7], the Labour Appeal Court (the LAC) held as follows:

“Ordinarily, an employer that complies with an order of retrospective reinstatement and backpay would not only pay the backpay but also the remuneration that the employee was entitled to between the date of the order and the implementation date, if the employee tendered his services during that period.”

“

contempt of court application

J1329/2023

Shillaw v Icubed Sales (Pty) Ltd (J1329/2023) [2024] ZALCJHB 118 (12 March 2024)

“[9]  In Bruckner v Department of Health and others[2], the Court dealt with the requirements for contempt and it was held that:

‘It is trite that an applicant in a contempt of court application must prove beyond a reasonable doubt that the respondent is in contempt. An applicant must show:

(a)  that the order was granted against the respondent;

(b)  that the respondent was either served with the order or informed of the grant of the order against him and could have no reasonable ground for disbelieving the information; and

(c)  that the respondent is in wilful default and mala fide disobedience of the order.’”

“[10]  In Anglo American Platinum Ltd and another v Association of Mineworkers and Construction Union and others[3], the Court has held that:

‘The principles applicable in an application such as the present are well-established. In Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA), the Supreme Court of Appeal observed that the civil process for a contempt committal is a ‘peculiar amalgam’ since it is a civil proceeding that invokes a criminal sanction or its threat. A litigant seeking to enforce a court order has an obvious and manifest interest in securing compliance with the terms of that order but contempt proceedings have at their heart the public interest in the enforcement of court orders (see para 8 of the judgment). The court summarized the position as follows at para 42:

“To sum up:

(a)  The civil contempt procedure is a valuable and important mechanism for securing compliance with court orders, and survives constitutional scrutiny in the form of a motion court application adapted to constitutional requirements.

(b)  The respondent in such proceedings is not an “”accused person””, but is entitled to analogous protections as are appropriate to motion proceedings.

(c)  In particular, the applicant must prove the requisites of contempt (the order; service or notice; non-compliance; and wilfulness and mala fides) beyond reasonable doubt.

(d)  But once the applicant has proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to wilfulness and mala fides: Should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond reasonable doubt.

(e)  A declarator and other appropriate remedies remain available to a civil applicant on proof on a balance of probabilities.”’”

“[11]  In Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v Compensation Solutions (Pty) Limited[4] (Matjhabeng), the Constitutional Court confirmed the requisites for contempt of court as follows:

‘I now determine whether the following requisites of contempt of court were established in Matjhabeng: (a) the existence of the order; (b) the order must be duly served on, or brought to the notice of, the alleged contemnor; (c) there must be non-compliance with the order; and (d) the non-compliance must be wilful and mala fide. It needs to be stressed at the outset that, because the relief sought was committal, the criminal standard of proof − beyond reasonable doubt − was applicable.’”

[14]  To establish non-compliance requires more than a failure to comply with the order. In Matjhabeng,[6] the Constitutional Court affirmed that contempt of court does not consist of mere disobedience of a court order, but of “contumacious disrespect for judicial authority”. The requirement of wilfulness and mala fides means that contempt is committed not by a mere disregard of the court order, but by the demonstration of a deliberate and intentional violation of the court’s dignity, repute or authority.[7]

defence of exceptio non adimpleti contractus

J298/24

Aon South Africa (Pty) Ltd v Smith and Others (J298/24) [2024] ZALCJHB 200 (8 May 2024)

“13]  In Adviceworx, this Court found that to rely on exceptio, the respondent must specifically state that he was not required to perform his side of the bargain under the restraint agreement due to the applicant’s breach. The learned acting Judge referred to Telcordia Technologies Inc v Telkom SA Ltd,[3] where the Supreme Court of Appeal (SCA) stated that:

‘A defendant who wishes to raise the defence of exceptio non adimpleti contractus on the basis of an incomplete tender must particularise in the plea in what respects performance was defective and will ordinarily have to give evidence on this aspect first (although the overall onus to disprove the existence of the defects will remain on the plaintiff). The reason is obvious: a plaintiff cannot be expected to prove a negative where the complaints of the defendant are unknown…’”

“[17]  Regarding the merit of the exceptio defence, Smith relied on Megafreight. There, Van Niekerk J (as he then was), referring to Universal Storage Systems (Pty) Ltd v Crafford and others[5] (Universal Storage Systems), summarised the legal position as follows:

‘The court held that where in a covenant in restraint of trade certain consideration has been promised to the party restrained (the respondent), the obligation to abide by the restraint is reciprocal to the obligation of the party in whose favour the restraint operates (the applicant) to render the promised consideration, and the latter obligation has to be performed first. As long as something remains which has to be performed by the applicant, the respondent may raise the exceptio non adempleti contractus as a defence to any attempt by the applicant to enforce the restraint.’[6]”

[22]  The applicant has made an intentional decision not to perform its obligation in terms of the restraint undertaking. It has also not tendered payment of Smith’s bonus. The defence of exceptio must succeed and the application stands to be dismissed. This Court therefore need not consider whether Smith breached the restraint undertaking and whether it must be enforced or not.

declaratory order

J400/23

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

“

[7]  Prior to determining the essence of the application, it is important as a point of departure, to determine if this application satisfies the requirements for declaratory order. A declaratory order is best described as an order in which a Court is called upon to settle a dispute over the existence or otherwise of some legal right or even entitlement. In the case of NAPTOSA & others v Minister of Education, Western Cape & others[8] that a prayer of declaratory order is normally but need not necessarily be coupled with a prayer for substantive relief. As a matter of principle, the Court is not supposed to act as some form of legal advisor to the parties, therefore the Applicant like AUSA the Union in this case must prove an existing, future or contingent right or obligation that needs to be determined, further that there is another interested party on which the order would be binding and the issue is not abstract or merely intellectual.

 “

“[9]  As further confirmed in Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd[11], it is trite that the requirements as applicable in respect of a declaratory order are two-fold:

(a)  The Court must be satisfied that the Applicant has an interest in an existing, future or contingent right or obligation;

(b)  Once the Court is so satisfied, it must then be considered whether or not the order should be granted.”

“

[13]  Therefore in brief, when considering the grant of the declaratory order, the Court shall not grant such an order where the issue under determination is like hypothetical, abstract and academic, or where the position is clearly defined by statute[14].”

The test for contempt of court

JA95/2023

Association of Mineworkers and Construction Union and Others v Piet Wes Civils CC and Others (JA95/2023) [2024] ZALAC 50 (16 October 2024)

“[22]  The test for contempt of court as succinctly set out in Fakie NO v CCII Systems (Pty) Ltd[[2006] ZASCA 52; 2006 (4) SA 326 (SCA) at paras 9 – 10 and 12.] (Fakie) is whether the contemnor has established a reasonable doubt that her or his contempt was wilful and mala fide. In Fakie, the court said:

‘[9]      The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed ‘deliberately and mala fide’. A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him or herself entitled to act in the way claimed to constitute the contempt. In such a case, good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith).

[10]    These requirements – that the refusal to obey should be both wilful and mala fide, and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt – accord with the broader definition of the crime, of which non-compliance with civil orders is a manifestation. They show that the offence is committed not by mere disregard of a court order, but by the deliberate and intentional violation of the court’s dignity, repute or authority that this evinces. Honest belief that non-compliance is justified or proper is incompatible with that intent.

…

[12]    These observations bear directly on the main question of principle in the appeal, on which our approach to the facts it presents must depend. This is whether civil contempt can be established when reasonable doubt exists as to any of the requisites of the crime. The pre-constitutional approach to proof was that, once the enforcer established that the order had been granted, and served on or brought to the alleged contemnor’s notice, an inference was drawn that non-compliance was wilful and mala fide, unless the non-complier established the contrary. The alleged contemnor bore the full legal burden of showing on a balance of probabilities that failure to comply was not wilful and mala fide.’

“

[26]…This would mean that the appellants would have to show that the fifth respondent’s non-compliance with the Steenkamp J order was, beyond reasonable doubt, wilful and mala fide. This, they have failed to do as the fifth respondent has discharged the evidentiary burden of establishing reasonable doubt as to whether her non-compliance was wilful and mala fide.

rescission: not served

JS971/2020

Mothbi and Others v Brand Line Packaging (Pty) Ltd (JS971/2020) [2024] ZALCJHB 440 (6 November 2024)

“[13]  In Diplopoint (Pty) Ltd v Twala[(2022) 43 ILJ 1990 (LAC) at para 21] the Labour Appeal Court held that:

“It is generally essential that the party against whom legal proceedings are instituted must be given notice of the process in accordance with the law, or applicable practice or rules. A judgment or order may be ‘erroneously sought or erroneously granted’ in the absence of a party affected thereby, if, for example, the process concerned (such as a summons, or a statement of claim, as is in this case) had not been served on the party. In such instances, it only has to be shown that the process concerned was not served on the affected party and that would be sufficient to oblige the court to grant the rescission. It was not necessary for the appellant to show any further good cause.” (Own emphasis)”

14]  As is apparent, an application brought in terms of Rule 16A(1)(a)(i) does not require the applicant to show good cause for the rescission. The applicant need only prove that the order was erroneously granted in its absence. By contrast, when an application is brought under Rule 16A(1)(b) the applicant must show good cause. The concept of good cause requires a reasonable explanation for the default, and at least some prospects of success.[5]

15]  In Department of Correctional Services v Baloyi[(2016) 37 ILJ 2852 (LC) at para 13] Molahlehi J (as he then was) stated: “The order or judgment will also be erroneously granted if it is shown that there was an irregularity in the proceedings or that the court did not have the competency to grant the order or judgment. The authorities are in agreement that there is no need to show good cause where it has been shown that the default judgment was erroneously sought or granted. It has also been generally accepted that a judgment is erroneously granted if at the time of granting it, there existed facts which the court had not been aware of and that had it been aware, it would not have granted the judgment or the order.”

[17]… If the judge had been aware that the applicants’ representatives was delayed by loadshedding, and could arrive at any time, this would not have prevented him from making the order. Even if the judge was aware that the applicant’s representatives were close to the court, and that the notice of set down made no mention that the claim could be dismissed, this would not have prevented him from making the order which he did. Plainly, there is no error as contemplated in Rule 16A(1)(a)(i).

papers: legal authority included

JR101/2023

Mpe v Polokwane Local Municipality and Others (JR101/2023) [2024] ZALCJHB 426 (7 November 2024)

37]  The Applicant failed to set out the factual foundation of the review application, with relevant evidence or reference thereto, in the founding affidavit and as such, failed to make out a case for review. The Applicant referred to authorities in her founding affidavit, which is inappropriate as it is not facts that fall within her personal knowledge and such references better belong in heads of argument

service for evasive party: Whether requirement of personal service can be relaxed for contempt proceedings

J404/20

UCIMESHAWU obo Nhlengethwa v Parsons Transport Operations (Pty) Ltd and Another (J404/20) [2024] ZALCJHB 419 (8 November 2024)

“[19]  As appears from the rule, the person wishing to effect service must make application to the court for leave to effect substituted service. In order to succeed with such an application, the applicant must show that it is not possible to obtain service as is required (in this instance personal service); that the court has jurisdiction; that the applicant has a prima facie case; and that there is a reasonable likelihood that the alternative form of service suggested will come to the knowledge of the defendant / respondent.[4]

[20]  The court may order any manner of service as is likely to bring the proceedings to the notice of the party to be served. This may be in the form of, amongst others, a registered letter, or by way of email or other electronic means.[5]

[21]  The High Court has allowed substituted service in contempt proceedings where personal service is provided for, but could not be effected.[6] By way of example, rule 23 of the Eastern Cape Rules implicitly provides for substituted service in contempt of court proceedings, with such applications having been entertained in that Division.[7]  “

moot

DA 04/2023

National Commissioner Department of Correctional Services v Nxele and Another (DA 04/2023) [2025] ZALAC 9; [2025] 5 BLLR 472 (LAC) (17 February 2025)

“[25]…That decision remains the subject of a pending review at the instance of the appellant in the Labour Court. However, since Mr Nxele has returned to work, the appeal against the finding that his suspension was unlawful is moot insofar as it is an issue of purely academic interest and no purpose would be served in determining the merits of the contention that the defence of lis alibi pendens was available to the appellants, given that when the matter was determined by the Labour Court there existed pending litigation between the same parties or their privies, based on the same course of action, in respect to the same subject matter at the GPSSBC.

[26]  It is so that mootness is not an absolute bar to the justiciability of an issue and that a court enjoys a discretion whether or not to hear a matter. The test is one of the interests of justice, with a relevant consideration being whether the order that the court may make will have any practical effect either on the parties or on others. The Court may decide to resolve an issue that is moot if to do so would be in the public interest in the sense that it will either benefit the larger public or achieve legal certainty.[6] In this matter, no interests of justice, nor public interest will be served by deciding the merits of the issue raised.”

Confirmatory Affidavits

2025/002049

Miyambu and Others v Steve Tshwete Local Municipality and Another (2025/002049) [2025] ZALCJHB 40 (5 February 2025)

“

[10]  The first point raised by Mr Makhubele, appearing for the Municipality, is that the founding affidavit of the First Applicant was not supported by confirmatory affidavits by the other applicants.

[11]  The applicants attributed this failure to attach the confirmatory affidavits to the founding affidavit to a clerical error and filed the confirmatory affidavits of the applicants subsequently. Interestingly all the affidavits were deposed to on 8 January 2025. This gives credence to the explanation that it was an omission by the attorneys to attach the confirmatory affidavits to the founding affidavit. Besides, the Municipality could not have been in any way prejudiced by this lapse.

[12]  Mr Makhubele was also unhappy with the fact that the full names of the commissioner of oaths were not inscribed in the affidavit of the Third Applicant.[1]

[13]  Rule 4(2) of the regulations promulgated under s 10 of the Justices of Peace and Commissioners of Oaths Act[2] requires the commissioner of oaths to sign the declaration and print his full name and business address below his signature.

[14]  The rules of the regulations have been held to be not imperative but directory.[3] In S v Munn[4] Van den Heever delivering the judgment of the full court, stated:

‘Compliance with the regulations [of the Justices of Peace and Commissioners of Oaths Act] provides a guarantee of acceptance in evidence of affidavits attested in accordance therewith… Where an affidavit has not been so attested, it may still be valid provided there has been substantial compliance with the formalities in such a way as to give effect to the purpose of the legislator…’

[15]  In Van As N.O. and Others v Jacobs N.O. and Another[5] where the commissioner of oaths had neglected to place his full names, designation ex officio and address on the founding affidavit, the full bench of the North Gauteng High Court held that “courts regularly exercise a discretion to condone non-compliance if there is substantial compliance with the Regulation”.[6]

[16]  The confirmatory affidavits are in substantial compliance with the regulations and I would allow them into evidence. This preliminary point is, accordingly, dismissed.”

pleadings: issues to be raised at earliest opportunity

JS362/2022

Public Servants Association of South Africa obo Members v South African Revenue Services (JS362/2022) [2025] ZALCJHB 146 (2 April 2025)

[24]  The respondent, in its amended statement of response, merely records that ‘the contents of this paragraph is noted’. It is trite that an objection to the jurisdiction of a court ought to be raised by the party objecting at the earliest available opportunity. In this case, the respondent filed its statement of response on 8 June 2022. The objection to the jurisdiction was only raised four days before the hearing date. The respondent has an onus to prove that this court does not have jurisdiction to determine the applicant’s claim in terms of the specified provisions of the BCEA as pleaded by the applicant.

deemed to be archived – Rule 11 application and incomplete arbitration record

JR2106/19

Emfuleni Local Municipality v SAMWU obo Mdluli and Others (JR2106/19) [2025] ZALCJHB 172 (5 May 2025)

[4]  As a result of the delay in filing the arbitration records and prosecution of the review application, the First Respondents also filed a then-Rule 11 application[2] where they seek the review application to be deemed to have been withdrawn in terms of clauses 11.2.3 of the now-repealed Labour Court Practice Manual[3] and therefore dismissed.

“[43]  This Court is still being inundated by Rule 11 applications for the dismissal of review applications as a result of a lack of diligent prosecution thereof by litigants. Not only does this unnecessarily clog up the Court roll, but it leaves a dispute which was always intended to be expeditiously resolved hanging in the air.

“

“[44]  In Karan t/a Karan Beef Feedlot and Another v Randall,[8] it was held:

‘In summary: despite the fact that the rules of this court make no specific provision for an application to dismiss a claim on account of the delay in its prosecution, the court has a discretion to grant an order to dismiss a claim on account of an unreasonable delay in pursuing it. In the exercise of its discretion, the court ought to consider three factors:

(a)   the length of the delay;

(b)   the explanation for the delay; and

(c)  the effect of the delay on the other party and the prejudice that that party will suffer should the claim not be dismissed.’

“

[45]  This Court has a discretion to grant an order to dismiss a review application on account of an unreasonable delay in pursuing it, and in the exercise of its discretion, the Court ought to consider the factors set out supra. The test to be applied is similar to that of condonation.

[67]  It is therefore my firm view that, based on the fact that the Applicant was never favoured with a complete record of the arbitration proceedings, the period of 60 days could not be said to have commenced to run. The said period only began to run from the date on which a reconstruction process was completed. As a result of the above, the subsequent time periods within which the Applicant was expected to have acted will also be affected.

Appeal in terms of section 10 (8) of EEA

J409/2024

Harmony Gold Mining Company Limited v Commission for Conciliation, Mediation and Arbitration and Other (J409/2024) [2025] ZALCJHB 176 (5 May 2025)

Appeal in terms of section 10 (8) of EEA – appeal filed outside the prescribed period – condonation granted – an appeal in a strict sense – a reconsideration of the matter to determine whether employee succeeded in proving discrimination (racial harassment) and whether conduct complained of is rational; fair or justifiable – evidence  considered – appeal dismissed.

special plea: under business rescue.

JS553/24

Solidarity obo Keyter and Others v Domans NO and Others (JS553/24) [2025] ZALCJHB 221 (13 June 2025)

[4]  The Respondent asked for an order that the Court did not have jurisdiction to adjudicate this dispute until the business rescue proceedings are uplifted and the Applicant asked that this matter be postponed until the business rescue proceedings are uplifted.

[5]  One of the innovations introduced by the Companies Act[2] is the mechanism of business rescue proceedings in South Africa. In particular, chapter 6 of the Companies Act was inserted to “provide for the efficient rescue and recovery of financially distressed companies, in a manner that balances the rights and interests of all relevant stakeholders”.[3] In order to achieve this balance, a legal moratorium was provided for in section 133 of the Companies Act.

“6]  The relevant parts of this section read as follows:

‘133.   General moratorium on legal proceedings against company

(1)      During business rescue proceedings, no legal proceeding, including enforcement action, against the company, or in relation to any property belonging to the company, or lawfully in its possession, may be commenced or proceeded with in any forum, except –

(a)      with the written consent of the practitioner;

(b)      with the leave of the court and in accordance with any terms the court considers suitable;…

(3)     If any right to commence proceedings or otherwise assert a claim against a company is subject to a time limit, the measurement of that time must be suspended during the company’s business rescue proceedings.’”

[7]  In 2013 the Labour Court in Fabrizio Burda v Integcomm (Pty) Ltd[4] held that unfair dismissal proceedings may not be commenced or proceeded with, without the written consent of the business rescue practitioner or leave of the High Court that has jurisdiction.

[8]  In Cloete Murray and Another NNO v Firstrand Bank Ltd t/a Wesbank[5] the Court explained that the moratorium on legal proceedings against a company under business rescue is of fundamental importance because it provides a crucial breathing space for the company to restructure its affairs.

[9]  The Supreme Court of Appeal interpreted section 133 of the Companies Act in Chetty t/a Nationwide Electrical v Hart and another[6] in that the relevant section places a moratorium, not only on legal proceedings in court but also on arbitration proceedings. The court however further stated that the requirement in section 133 (1)(a) is not a jurisdictional condition, and the non-compliance did not render the proceedings void.

[12]  The Court does have jurisdiction to adjudicate this dispute however the proceedings are suspended until the uplifting of the business rescue proceedings.

exception

JS668/24

Solidarity obo Van Schalkwyk v University of South Africa (JS668/24) [2025] ZALCJHB 239 (19 June 2025)

[14]  For the purposes of an exception, no facts may be adduced by either party and an exception may thus only be taken when the defect objected to appears ex facie the pleading itself. It is trite that when an exception is taken, the Court must look at the pleading excepted to as it stands. The Court must assume the facts stated in the pleading to be true, unless they are palpably untrue or so improbable that they cannot be accepted. In order to succeed with the exception, the defendants must persuade the Court that the pleading is excipiable on every interpretation that can reasonably be attached to it.

[15]  The onus of showing that a pleading is excipiable rests on the excipient. In Odendaal v Van Oudtshoorn,[8] De Kock J went so far as to state that the tendency on the part of the courts is to try to uphold the validity of pleadings if at all possible. In a similar vein, Basson J in Nel and others NNO v McArthur and others[9] remarked that a charitable test is used on exception, especially in deciding whether a cause of action is established. The pleader is also entitled to a benevolent interpretation and the pleadings must be read as a whole, with no paragraph being read in isolation. Consequently, it has been held, an excipient who alleges that a pleading lacks the averments necessary to sustain an action or defence must show that the pleading excepted to, is (not may be) bad in law. It has thus been said that an excipient should make out “a very clear, strong case before he should be allowed to succeed”.

[16]  Exceptions should be dealt with sensibly. They provide a mechanism to weed out cases without legal merit. An over-technical approach destroys their utility. The response to an exception should be like a sword that cuts through the tissue of which the exception is compounded and exposes its vulnerability.[10]

[17]  A pleading is not vague and embarrassing simply because the other party cannot prepare for trial. Whether a pleading is vague, is a question of degree. An exception may be taken only when the vagueness and embarrassment strike at the root of the cause of action pleaded, that is, if the other party will be seriously prejudiced if the allegations remain and are not expunged. An exception that the pleading is vague and embarrassing strikes at the formulation of the cause of action and not its legal validity.

3.  The defendant’s legal practitioners (Advocates and Attorneys) are ordered not to charge any fee for their legal services rendered, in relation to the exception. If the defendant’s legal practitioners have already been paid for their legal services in relation to the exception, they are ordered to reimburse the defendant within 60 (sixty) calendar days of the granting of this order.

16.12.1

Rule 11 application due to a lapsed review application: Two main issues arise. First, whether the Labour Court has the power to entertain a Rule 11 application to dismiss a lapsed review application. Second, whether the Labour Court exercised its discretion improperly by making the arbitration award an order of court in terms of section 158(1)(c).

JA57/2024

City of Tshwane Metropolitan Municipality v South African Local Government Bargaining Council and Others (JA57/2024) [2025] ZALAC 46; [2025] 11 BLLR 1145 (LAC) (11 August 2025)

8]  The Labour Court held, on the strength of this Court’s dictum in Macsteel Trading Wadeville v Francois van der Merwe N.O and Others[5] (Macsteel), that it had residual power to entertain the Rule 11 application since there was no substantive application by the City of Tshwane to reinstate the lapsed review application. It dismissed the review application and made the arbitration award an order of court in terms of section 158 (1)(c) of the LRA.[6].

14]  The deemed withdrawn review application in terms of clause 11.2.3 is likewise a peculiar notion in the Practice Manual. While ‘deemed withdrawn’ is a legal fiction, it has a conclusive effect.[13] Consequently, the review application automatically lapses due to the failure to file the record of the impugned arbitration proceedings, as per clause 11.2.2.[14] That being the case, any notion that the Labour Court has discretionary power to refuse ‘to allow the deemed withdrawal and archiving of the review application’ as found in NUMSA obo Mavuso v Mini Mega (PTY) Ltd t/a Rustenberg Engine Centre[15], is untenable.

18]  In Aspen, the court rejected the dictum in Overberg and the dicta it followed to support its conclusion that a lapsed review application is ‘dead as a doornail’. It further observed that, to the extent to which this Court in MacSteel held that the correct approach would have been for Macsteel to launch a Rule 11 application to have the review application finally dismissed, even though the review application had already been archived, that meant that the Court accepted that the review application was ‘in limbo’, rather than ‘dead as a doornail’; otherwise there would be no need for a Rule 11 application.

“[22]  In addition, clause 16.3 provides, in line with promoting the statutory imperative for expeditious resolution of labour disputes, that a lapsed review application ‘shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed’.[22] Even though a lapsed review application lies in limbo, a respondent party can enforce the arbitration award or court order without invoking a Rule 11 dismissal application, as found in Overberg. That is also my understanding of the dictum in E Tradex.

“

[23]  There is, however, nothing in Macsteel and E Tradex that impedes the Labour Court from entertaining a Rule 11 application to dismiss a lapsed review application. A lapsed review application is not dead as a doornail; hence, it can be revived on good cause, as correctly found in Aspen. Therefore, a respondent party that seeks, inter alia, irrefutable finality for purposes of execution or due to inordinate delay can avail itself of the Rule 11 application.

28]  Here, likewise, the Labour Court should have found that the certified arbitration award was enforceable as if it were an order of the Labour Court and refused to grant an order in terms of section 158(1)(c). It follows that the Labour Court improperly exercised its discretion in making the arbitration award an order of the Labour Court.[27] That justifies interference by this Court.

Subsection 144(b) permits a variation

JA94/24

Khumalo and Another v Commission for Conciliation, Mediation and Arbitration and Others (JA94/24) [2025] ZALAC 54 (29 October 2025)

[20]  The general rule is that, once a court has duly pronounced a final judgment or order, it has itself no authority to set it aside or to correct, alter, or supplement it because it becomes functus officio.[12] Section 144[13] of the LRA does, however, make provision for the variation (or recission) of an award in exceptional instances.[14] Subsection 144(b) permits a variation but only “to the extent of that ambiguity, error or omission”. The courts have generally interpreted the provisions of section 144 narrowly.[15]

“[21]  A “patent” error or omission refers to a mistake that is clear, self-evident, and apparent on the face of the record without requiring elaborate argument, interpretation, or fresh evidence. The court’s corrective power exists solely to give effect to the court’s true intention where there is a patent error and may not be used to change the substance of the order.[16] The purpose of this section is to provide the parties with an expeditious procedural means to correct an obvious error.[17] The Constitutional Court in Minister for Correctional Services and Another v Van Vuuren and Another; In re Van Vuren v Minister for Correctional Services and Others explains:[18]

‘[8]       A court may clarify its order or judgment to give effect to its true intention which is to be ascertained from the language used without altering the sense and substance of the judgment if, on its proper interpretation, the meaning remains unclear. But once a court has pronounced a final judgment or order, it has, itself, no authority to correct, alter or supplement it. The rationale for this principle is delineated by Ngcobo J in Zondi v MEC, Traditional and Local Government Affairs that:

“In the first place a Judge who has given a final order is functus officio. Once a Judge has fully exercised his or her jurisdiction, his or her authority over the subject matter ceases. The other equally important consideration is the public interest in bringing litigation to finality. The parties must be assured that once an order of Court has been made, it is final and they can arrange their affairs in accordance with that order.”’[19]”

Section 195(1B)  request to halt arbitration proceedings

2025/104750

Bojanala Platinum District Municipality v Fourie and Others (2025/104750) [2025] ZALCJHB 306 (22 July 2025)

“[12]  The purpose of section 158(1B) is consistent with an earlier decision of this Court in Trustees for the time being of the National Bioinformatics Network Trust v Jacobson & others[2] (Jacobson), where Van Niekerk J (as he then was), provided two reasons why this Court should not readily intervene in uncompleted arbitration proceedings. He said:

‘The first is a policy-related reason – for this court routinely to intervene in uncompleted 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 their course without intervention by this court.’[3]”

“[13]  In urgent proceedings to intervene in uncompleted arbitration proceedings, the test is one of exceptional circumstances, as articulated by the Labour Appeal Court (LAC) in Booysen v The Minister of Safety and Security & others[[2011] 1 BLLR 83 (LAC); (2011) 32 ILJ 112 (LAC) at para 54.] (Booysen) and most recently in Moolman v Commission for Conciliation, Mediation and Arbitration and Others[ [2024] ZALAC 339.] (Moolman).

[14]  In Moolman, the LAC held that this court may intervene in uncompleted arbitration proceedings where, if allowed, the ruling would cause irreparable harm to the other party. The LAC held further that the Court would be justified in intervening where the damage caused by the ruling, if allowed to stand, could not be adequately remedied after the finalisation of the arbitration proceedings.[6] A review of a jurisdictional ruling or any ruling which, if upheld on review the consequence of which is to dispose of the matter in its entirety would justify the intervention of this Court.[7]”

Jurisdiction Unfair discrimination referral 90 days

JS657/22

Msimanga v Johannesburg Water SOC Ltd and Others (JS657/22) [2025] ZALCJHB 371 (22 August 2025)

[22]  The plaintiff asks this Court to find that the 90-day period within which an unfair discrimination dispute must be referred to this Court for adjudication ought also not to apply to disputes in which the unfair discrimination complained of is continuous.

[23]  In my view, this proposition cannot be sustained. The rationale for the six-month time period not applying to such disputes does not exist in respect of those disputes once a certificate of outcome has been issued. The 90-day period commences from the date of issue of the certificate, which date is fixed and will not change regardless of whether the discrimination complained of is ongoing.

“[13]  Part C of Chapter VII of the LRA deals with dispute resolution in the CCMA and section 136(1) therein provides that, if the LRA requires a dispute to be resolved through arbitration, the CCMA must appoint a commissioner to arbitrate that dispute if a certificate of outcome has been issued and any party to the dispute has requested that the dispute be resolved through arbitration within 90 days after the date of the issue of the certificate.

“

“[13]  Part C of Chapter VII of the LRA deals with dispute resolution in the CCMA and section 136(1) therein provides that, if the LRA requires a dispute to be resolved through arbitration, the CCMA must appoint a commissioner to arbitrate that dispute if a certificate of outcome has been issued and any party to the dispute has requested that the dispute be resolved through arbitration within 90 days after the date of the issue of the certificate.

“

“15]  The LAC in Aspen Pharmacare[[2024] 12 BLLR 1234 (LAC) at paras 7 – 9.] confirmed the principle in NEHAWU[7] that:

‘Reading section 10(6) and 10(7) of the [Employment] Equity Act together, it would appear that the [Employment] Equity Act must be read together with the applicable provisions of the [Labour Relations] Act. By reference to the words with the changes required by the context in section 10(7), the 90-day time period as provided for in section 136(1) of the Act, which itself appears in Part C of Chapter VII of the Act, becomes applicable to the dispute. In other words, although the present dispute involves adjudication after an unresolved conciliation and section 136(1) refers expressly to arbitration, the savings provision in section 10(7) of the [Employment] Equity Act then becomes operative; hence the 90-day requirement is of equal application in the new context to the adjudication as envisaged in section 10(6) of the [Employment] Equity Act.’”

[16]  In response to this point in limine, the plaintiff submits that condonation is not necessary. In argument, Mr Grové for the plaintiff did not dispute the assertion made by counsel for the defendant that, ordinarily, the 90-day period in section 136(1) of the LRA is applicable to disputes referred to this Court for adjudication in terms of section 10(6)(a) of the EEA. Rather, what he argued on behalf of the plaintiff was that, since the six month time period prescribed in terms of section 10(2) of the EEA for the referral of a dispute to the CCMA for conciliation has been found not to apply in cases where the unfair discrimination complained of is ongoing in nature, this principle should also apply to the 90-day period in which a dispute in respect of which a certificate has been issued must be referred for adjudication.

[23]  In my view, this proposition cannot be sustained. The rationale for the six-month time period not applying to such disputes does not exist in respect of those disputes once a certificate of outcome has been issued. The 90-day period commences from the date of issue of the certificate, which date is fixed and will not change regardless of whether the discrimination complained of is ongoing.

Pleadings: exception

JS721/20

Seoposengwe v Lindsay Saker Audi Centre Sandton (JS721/20) [2025] ZALCJHB 466 (1 September 2025)

[11]  In the matter of Trope v South African Reserve Bank and another and two other cases[2] the court held that when an exception is taken on the basis of the pleadings being vague and embarrassing, the enquiry into same is a two stepped enquiry, the first being whether the pleading lacks particularity to the extent that it is vague and second whether the vagueness causes embarrassment to the extent that the excipient is prejudiced.

“[12]  In the matter of Uys v Municipality of Heidelberg[3] the Court held that as long as the cause of action is stated and or identifiable from your statement of claim or summons, and there is not enough information for the excipient to plead, they may then ask for further particulars. However, if the cause of action is not identifiable from the particulars, then that is a defect that cannot be sustained.

“

“[13]  In the matter of Simmadari v ABSA Bank Ltd[4] the court in upholding an exception to the statement of claim held that the test is whether, even on a generous reading of the particulars, a cause of action can be made out. When it comes to a claim for an automatic unfair dismissal, the pleadings have to show at the very least the basic framework on which the applicant relies to prove their claim.

“

“[14]…As the Constitutional Court in Le Roux and Another v Johannes G Coetzee and Seuns and Another[5] stated:

‘In pleadings, conclusions of law must be supported by facts … This is because the material facts and the legal conclusions that are to be drawn from those facts, are determined by the plaintiff’s pleaded claim.’

“

procedure: Court does have jurisdiction to entertain an application for the dismissal of a deemed withdrawn or archived review application brought in terms of Rule 11

JR2025/2018

Hlongwane v Red Alert (Pty) Ltd and Others (JR2025/2018) [2025] ZALCJHB 398 (3 September 2025)

“[15]  The Labour Appeal Court held that this Court does have jurisdiction to entertain an application for the dismissal of a deemed withdrawn or archived review application brought in terms of Rule 11 of the previous Rules, stating the following at paragraphs [See Greater Taung Local Municipality v SA Local Government Bargaining Council and Others (2023) 44 ILJ 761 (LAC) (Greater Taung) at para 16.] and [24] of its judgment:

“[23] There is, however, nothing in Macsteel and E Tradex that impedes the Labour Court from entertaining a Rule 11 application to dismiss a lapsed review application. A lapsed review application is not dead as a doornail; hence, it can be revived on good cause, as correctly found in Aspen. Therefore, a respondent party that seeks, inter alia, irrefutable finality for purposes of execution or due to inordinate delay can avail itself of the Rule 11 application. To the extent that the Labour Court has jurisdiction to entertain an application for the reinstatement of the lapsed review application, that power extends, by implication, to the Rule 11 dismissal application.[2] However, caution must be exercised to prevent the proliferation of litigation and to avoid negating the paramount statutory mandate for a speedy and cost-effective resolution of labour disputes.

[24] In the present case, no reinstatement application served before the Labour Court. Before us, counsel for the City of Tshwane confirmed that there was no intention to seek reinstatement of the lapsed review application. The Labour Court cannot, therefore, be faulted for upholding the Rule 11 dismissal application. It was, in my view, not only expedient but also fair in the circumstances.[3]”

[11]…cannot be deemed withdrawn after the expiry of 60 days, while the extension process, either by consent or application before the Judge President, is still unfolding.

JR187/24

DYPUSA obo Mahlalela and Others v Commission for Conciliation Mediation Arbitration and Others (JR187/24) [2025] ZALCJHB 416 (8 September 2025)

“[11]  On this note, this Court finds the third respondent’s opposition meritless and inducing technicalities that go against the intentions of the rules that review applications are to be dealt with expeditiously. The applicant’s initiation of the extension process by sending a letter seeking consent from the third respondent certainly bears an interruptive effect on the running of the 60 days. The review application cannot be deemed withdrawn after the expiry of 60 days, while the extension process, either by consent or application before the Judge President, is still unfolding. In this matter, there is no need for the applicant to seek the reinstatement of the review application. With the record already filed at the time of determination of this application, it will not be in the interest of justice to refuse the extension that was requested prior to its filing. Extension for the filing of the record and the supplementary affidavit should accordingly be granted.

“

** Order

Contempt proceedings

irreparable harm, balance of convenience, access to alternative remedies

balance of convenience favours employer

JA58/10

MEC for Education, North West v Gradwell

declaratory order

that this provision was broad enough to include an award such as the one in issue.

JA36/02

The City of Tshwane Metropolitan Municipality v Campella (sic) NO and Others

Whether common law arbitration agreement may be made an order of the LC

Meaning of

At most, a compliance order could be regarded as a demand for payment.

C489/2010

National Bargaining Council of the Clothing Manufacturing Industry (Cape) v J n B Sportswear CC

Compliance order

declaraty relief not while other relief available

158(1)(a)(iv)

Prescription

Review does not interrupt running of prescription

JR698/02

Frans v PPC Cement and Others

Apply to make order of court

P01/12

Abdullah v Kouga Municipality and Another

Contempt of court Suspension interdicted Contract terminated Suspension cannot continue Not contempt

J1990/07

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

Interlocutory orders do not constitute a final order  thus not appealable  leave to appeal refused on warning of dismissal

Reinstatement to be distinguished from re-employment. Reinstatement requiring employee to be placed back into previous position.

(C 37/2013) [2014] ZALCCT 1

Myers v National Commissioner of the South African Police Service: Western Cape

Reinstatement

Variation of orders. Not granted in respect of an order not previously prayed for in application for review through applicants mistake or negligence.

(J1201-13) [2014] ZALCJHB 15

South African Municipal Workers Union and Another v South African Local Government Bargaining Council and Others

Variation of orders.

Pregnancy. Where employee had however been offered reinstatement before conciliation and had refused it, awarded only six months’ salary as compensation.

(JS932/2012) [2014] ZALCJHB 343

Heath v A & N Paneelkloppers

Compensation

JR483/14

Shongwe and Others v City of Johannesburg Metropolitan Municipality (JR483/14) [2016] ZALCJHB 67 (25 February 2016)

principle is to avoid conflicting decisions on the same issues and same parties, and to bring about finality

Nehawu obo Kgekwane v Department of Development Planning and Local Government (2015) 36 ILJ 1247 (LAC) at para [26].

Prinsloo NO and Others V Goldex 15 (Pty) Ltd and Another2014 (5) SA 297(SCA) at para [23]

res judicata: settlement agreement

practicality

JR 1736/18

Department of Home Affairs v General Public Service Sectoral Bargaining Council and Others (JR 1736/18) [2022] ZALCJHB 46 (4 March 2022)

[13]     The discretionary nature of the power to grant relief in terms of section 193 was reaffirmed in Xstrata South Africa (Pty) Ltd (Lydenburg Alloy Works) v NUM obo Masha and Others[(JA 4/15) [2016] ZALAC 25 (14 June 2016) at para 8] where the Court stated as follows: If the exceptions to the remedy of reinstatement do not apply, the Labour Court and arbitrators only have discretion with regard to the extent to which reinstatement should be made retrospective. An employer wishing to avoid reinstatement must satisfy the arbitrator that one of the exceptions to reinstatement applies, in this case to show that it would not be practicable. The employer should lead evidence concerning relief in anticipation of a finding that a dismissal might be ruled unfair.

Reinstatement

JA104/2020

Mthethwa v CCMA and Others (JA104/2020) [2022] ZALCJHB 99 (10 May 2022)

[26]      It is a trite principle that the arbitrator is obliged to probe any factor which is relevant and or adverse to reinstatement if the finding was that the dismissal was both procedurally and substantively unfair[5].[27]      Put differently, the LRA permits any of the three remedies set forth in section 193(1) to be afforded to an unfairly dismissed employee, such as the appellant. These remedies are legislatively designed to safeguard the employees security of tenure at the workplace.  See also, Equity Aviation Service (Pty) Ltd v CCMA & Others[6].

2.1 The arbitration award is set aside and replaced with an award that: the applicant is reinstated retrospectively to her position from the date of dismissal (26 July 2017) with all terms and conditions and benefits no less favourable than prior to her dismissal.

safeguard the employees security of tenure at the workplace

JR 467/2020

National Union of Metalworkers SA and Others v Metal and Engineering Industries Bargaining Council and Others (JR 467/2020) [2022] ZALCJHB 240 (19 August 2022)

[56]In Tshongweni v Ekurhuleni Metropolitan Municipality,[15]the applicant was employed on a fixed term contract. He approached the Labour Court for an order of reinstatement of his employment contract following his dismissal. However, the order he sought was not reinstatement in the ordinary sense but rather reinstatement into a new contract on the basis of a reasonable expectation that his contract would have been renewed for a further five-year period. At the time of his dismissal, the applicants fixed term contract had 9 months remaining. The Court held that:

[59]The nature of the contract of employment and its terms are relevant in considering an appropriate remedy. In ordering reinstatement, this Court cannot extend the contract of employment beyond the terms agreed to between the parties and even if a reasonable expectation for renewal was established, such expectation in casu could not exceed an expectation of renewal on any other basis than that of a one-month fixed term contract.

[56]In Tshongweni v Ekurhuleni Metropolitan Municipality,[[2010] 10 BLLR 1105 (LC) at para 22.]the applicant was employed on a fixed term contract. He approached the Labour Court for an order of reinstatement of his employment contract following his dismissal. However, the order he sought was not reinstatement in the ordinary sense but rather reinstatement into a new contract on the basis of a reasonable expectation that his contract would have been renewed for a further five-year period. At the time of his dismissal, the applicants fixed term contract had 9 months remaining. The Court held that:

[58]       In Cash Paymaster Services Northwest (Pty) Ltd v CCMA and others,[[2009] 5 BLLR 415 (LC).] the respondent employee was employed on a fixed-term contract and was dismissed by the applicant. At arbitration, the commissioner found that the sanction of dismissal was inappropriate and ordered the reinstatement of the employee. The Court noted that the contract of employment was set to expire a month after the award was issued and therefore the award had the effect of extending the employees contract. The Court held that the commissioner had committed a gross irregularity by ordering reinstatement which had the effect of extending the contract of employment beyond the terms agreed by the parties, accordingly the Court held that the commissioner had exercised powers it did not have.

[59]       The nature of the contract of employment and its terms are relevant in considering an appropriate remedy. In ordering reinstatement, this Court cannot extend the contract of employment beyond the terms agreed to between the parties and even if a reasonable expectation for renewal was established, such expectation in casu could not exceed an expectation of renewal on any other basis than that of a one-month fixed term contract.

Reinstatement

JR 467/2020

National Union of Metalworkers SA and Others v Metal and Engineering Industries Bargaining Council and Others (JR 467/2020) [2022] ZALCJHB 240 (19 August 2022)

[39]       The said section reflects that reinstatement or re-employment is the primary statutory remedy in unfair dismissal disputes. It is cast in peremptory terms unless one or more of the circumstances specified in paragraphs (a)-(d) of section 193(2) exists. If none of the exceptions to reinstatement or re-employment exists, the arbitrator has no discretion regarding reinstatement or re-employment, it must be ordered[A Myburgh and C Bosch, Reviews in the Labour Court, LexisNexis, 2016, pp 337  350.].

[40]       The converse is however also true. If a case falls under one or other of the situations listed in paragraphs (a)-(d) of section 193(2) it is not competent for the Labour Court or an arbitrator to order reinstatement or re-employment.

[41]       In South African Commercial, Catering and Allied Workers Union and others v Woolworths (Pty) Ltd[2019 (3) SA 362 (CC) at paras 48 and 49.] (SACCAWU), the Constitutional Court considered the provisions of section 193(2)(c) of the LRA and held that:[48]  At this stage, I deem it appropriate to focus particularly on the exception provided for in s 193(2)(c), namely instances wherein reinstatement is not reasonably practicable.[49]   The LRA does not define the term reasonably practicable. However, guidance can be sought from various authoritative court decisions. The Labour Appeal Court in Xstrata held: The object of [section] 193(2)(c) of the LRA is to exceptionally permit the employer relief when it is not practically feasible to reinstate; for instance, where the job no longer exists, or the employer is facing liquidation or relocation or the like. The term not reasonably practicable in [section] 193(2)(c) does not equate with the term practical, as the arbitrator assumed. It refers to the concept of feasibility. Something is not feasible if it is beyond possibility. The employer must show that the possibilities of its situation make reinstatement inappropriate. Reinstatement must be shown not to be reasonably possible in the sense that it may be potentially futile. It is thus evident that the term not reasonably practicable means more than mere inconvenience and requires evidence of a compelling operational burden.

Reinstatement: exception provided for in s 193(2)(c), namely instances wherein reinstatement is not reasonably practicable”

JR292/19

CCMA v De Jager and Others (JR292/19) [2023] ZALCJHB 87 (17 March 2023)

[23] In Proxi Smart Services (Pty) Ltd v The Law Society of SA and others[[2018] 3 All SA 567 (GP).], the High Court, correctly, in my view, held that a Court will not grant a declaratory order where the issue raised before it is hypothetical, abstract and academic, or where the legal position is clearly defined by statute. It is and was open for the CCMA to approach a competent Court for a declaratory relief. However, it cannot do so under the guise of an application for leave to appeal.

[29] I now turn to the peremption principle. By not opposing the granting of the order sought and by abiding with the order, the CCMA has perempted its right to appeal[16]. To abide by means to obey or to follow something. The CCMA chose to abide and cannot suddenly make a volte face. It cannot reprobate and approbate at the same time. It is a trite principle of law that an unsuccessful litigant who has acquiesced in a judgment cannot appeal against it[17]. The conduct of the CCMA is one inconsistent with any intention to appeal[18]. Its conduct and actions indubitably and necessarily showed no intention to appeal.

declaratory order

JR2740/13

Minister of Correctional Services v Mashiya and Others (JR2740/13) [2023] ZALCJHB 86 (22 March 2023)

“[55] Where it comes to the interpretation of Court orders, the applicable principles have been summarized by the Constitutional Court in Eke v Parsons[5] as follows:

‘The starting point is to determine the manifest purpose of the order. In interpreting a judgment or order, the court’s intention is to be ascertained primarily from the language of the judgment or order in accordance with the usual well-known rules relating to the interpretation of documents. As in the case of a document, the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention.’

The Constitutional Court in Department of Transport and Others v Tasima (Pty) Limited; Tasima (Pty) Limited and Others v Road Traffic Management Corporation and Others[6] added the following considerations:

‘… As in the case of any document, the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention. If on such a reading, the meaning of the judgment or order is clear and unambiguous, no extrinsic fact or evidence is admissible to contradict, vary or qualify, or supplement it.’

[56] In Mashaba v Citibank Na SA Branch and Others[7], the Court, having considered the above principles, held that:

‘… in addition to the aforesaid, there is in my view a further consideration. This consideration is that it must always be borne in mind that Court orders must grant effective relief, and the order as it stands must be capable of being construed so as to give effect to the purpose for which it was intended. This is evident from the following dictum in SOS Support Public Broadcasting Coalition and Others v South African Broadcasting Corporation (SOC) Limited and Others:

‘Court orders are intended to provide effective relief and must be capable of achieving their intended purpose. That must be the starting point in interpreting a court order …’

The Court added that:

‘… A determination of the legal context within which the words in an order are used is also required. …’”

** Plea

Interpreting court orders

LRA and EEA

facts gave rise to different causes of action

JS746/06

Ditsamai v Gauteng Shared Services Centre

Res judicata

Other case law cited

Dial Tech CC v Hudson and Another (2007) 28 ILJ 1237 (LC)

who had already obtained compensation for a constructive dismissal based on allegations of sexual harassment, was entitled later to claim compensation for sexual harassment as well.

JS746/06

Ditsamai v Gauteng Shared Services Centre

Res judicata

J1808/16

National Union of Metalworkers of SA and Others v Bumatech Calcium Aluminates (J1808/16) [2016] ZALCJHB 329; (2016) 37 ILJ 2862 (LC) (26 August 2016)

Osman v Hector 1933 CPD 503 at 508.

The plea of lis alibi pendens is dealt with in Halsbury’s Laws of England (2nd ed, vol 6, p 357, par 7) where it is said:- “To bring two actions in England in respect of the same matter is regarded as prima facie vexatious and the Court will generally as of course, put the plaintiff to his election.” As said by JESSEL, MR in McHenry v Lewis (22 Ch D 397 at p 400):- “In this country, where the two actions are by the same man in Courts governed by the same procedure, and where the judgments are followed by the same remedies, it is prima facie vexatious to bring two actions where one will do.” Or as BOWEN, JJ says at p 408: “The remedy and the procedure are the same and a double action on the part of the plaintiff would lead to manifest injustice.’

Dreyer v Tuckers Land and Development Corporation (Pty) Ltd 1981 (1) SA 1219 (T) at 1231

it was held that the principle of lis pendens applies where there exists litigation which is pending between the same parties, these other proceedings must be based on the same cause of action, and these other pending proceedings must be in respect of the same subject-matter. The Court also held that is was not required, for lis pendens to apply, that the form of relief claimed in both proceedings needs be identical.

SCA in Nestl (SA) (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA) at para 16.

lis alibi pendens

CELLUCITY (PTY) LTD

Held that a review application and a warrant of execution do not interrupt prescription whereas an application to make an award an order of court does

CA 3/14

JS154/18

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

Lewis v Oneanate (Pty) Ltd and Another [1992] ZASCA 174; 1992 (4) SA 811 (A)

Since these are proceedings on exception, it must be borne in mind that the appellant has the duty as excipient to persuade the Court that upon every interpretation which the particulars of claim, including annexure ‘D’, can reasonably bear, no cause of action is disclosed.[1]

[21] …The respondent cannot be sure whether the applicant is relying on a tacit term about the length of his employment, or whether such a term existed at the time the contract was concluded or later in the form of a tacit amendment of the original contract. In so far as the applicant speaks of an expectation about the life of the contract, he owes it to the respondent to clarify whether he is specifically claiming to have acquired a contractual right based on a reasonable expectation. All of these things are necessary for the respondent to be able to know the true nature of all the contractual claims that might be lurking in the opaque wording of paragraph 17.

exception

JR729/16

Association of Mineworkers and Construction Union and Another v Metal and Engineering Bargaining Council and Others (JR729/16) [2018] ZALCJHB 420; (2019) 40 ILJ 1262 (LC) (13 December 2018)

Retrenched but is it moot as Mr Mashologos employment record has been tainted by a finding of guilty for participating in an unprotected strike and that he was never paid for the days he was not at work? No, still issues to resolve.

South African Transport and Allied Workers Union v ADT Security (Pty) Ltd [2011] 9 BLLR 869 (LAC); (2011) 32 ILJ 2112 (LAC) at paras 4 – 5. National Employers Association of South Africa (NEASA) v Metal and Engineering Industries Bargaining Council (MEIBC) and Others [2015] ZALAC 11; (2015) 36 ILJ 2032 (LAC) at paras 6 – 7.

[4] The principles relating to mootness have been well established in National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (1) BCLR 39 (CC) in which the Constitutional Court said: 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. (At 54 footnote 18).

Independent Electoral Commission v Langeberg Municipality [2001] ZACC 23; 2001 (9) BCLR 883 (CC)

where there was no live controversy between the parties, and, in the absence of any suggestion that any order might have an impact on the parties, the disputes between the parties were moot especially since future cases inevitably presented different factual matrixes and hence no purpose would be served in resolving the dispute. See also Radio Pretoria v Chairman of the Independent Communication Authority of South Africa and Another [2004] ZACC 24; 2005 (3) BCLR 231 (CC).

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (1) BCLR 39 (CC)

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. (At 54 footnote 18).

question of mootness

JS 201/17

Moloney and Others v 3D Design Close Corporation t/a Muga Design (In Liquidation) and Others (JS 201/17) [2019] ZALCJHB 55 (15 March 2019)

[14]       The principles applicable to applications for absolution from the instance are trite. Absolution is not readily granted unless it can be demonstrated that the applicants case was so weak that no reasonable court could find for them.

Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) SA 88 (SCA) at 92E-93A:

[2] The test for absolution to be applied by a trial court at the end of a plaintiffs case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G-H in these terms:(W)hen absolution from the instance is sought at the close of plaintiffs case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T).)This implies that a plaintiff has to make out a prima facie case  in the sense that there is evidence relating to all the elements of the claim  to survive absolution because without such evidence no court could find for the plaintiff (Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37G-38A; Schmidt Bewysreg 4th ed at 91-2). As far as inferences from the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one (Schmidt at 93). The test has from time to time been formulated in different terms, especially it has been said that the court must consider whether there is evidence upon which a reasonable man might find for the plaintiff (Gascoyne (loc cit))  a test which had its origin in jury trials when the reasonable man was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue. The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another reasonable person or court. Having said this, absolution at the end of a plaintiffs case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a court should order it in the interests of justice.

See Carmichele v Minister of Safety and Security [2001] ZACC 22; 2001 4 SA 938 (CC) at para [79]

An order for absolution from the instance is an appropriate order to make at the end of the plaintiffs case where a court, applying its mind reasonably to the evidence, could not or might not find for the plaintiff. The underlying reason is that it is ordinarily in the interests of justice to bring the litigation to an end in such circumstances. A determination of what is in the interests of justice necessarily involves the exercise of a discretion.

[17]       In conclusion, it is trite that in reaching a conclusion whether absolution should be granted, it is not required of this Court to critically look at all the evidence, as would be required of a Court at the end of a trial in order to deliver judgment. The primary consideration is whether there is evidence on which a court could or might find for the applicants.

Corporate Veil

alibi lis pendis: [10]  The defence of alibi lis pendis requires a defendant to establish there is pending litigation between the same parties, based on the same cause of action and in respect of the same subject matter.[Association of Mineworkers & Construction Union & others v Ngululu Bulk Carriers (Pty) Ltd (in liquidation) & others (2020) 41 ILJ 1837 (CC); [2020] 10 BLLR 959 (CC) at para 26.]

JS147/21

Solidarity obo De Villiers v Council for Medical Schemes (JS147/21) [2024] ZALCJHB 433 (15 November 2024)

[12]  The issue before the reviewing court is whether the arbitrator arrived at a reasonable decision when he, amongst other issues, awarded De Villiers’ retrospective reinstatement. The issue before this court is whether the defendant unlawfully terminated De Villiers’ employment contract, which is a question the reviewing court has no jurisdiction to consider.

** Prescription

ABSOLUTION FROM THE INSTANCE

JS2341/05

Gaoshubelwe & Others v Pie Mans Pantry (Pty) Ltd

running of prescription was interrupted when the matter was referred to the CCMA

P170/05

PSA obo Khaya v CCMA & Others

Arbitration awards;  Prescription Act applies;  Award prescribes after three years

not properly raised

J1832/02

Technikon Pretoria v Nel NO and Others

first time in supplementary heads of argument

C1012/2011

Prescription

Court could not consider as not raised by party

Prescription Act 68 of 1969. Meant that the employer had an obligation not to unfairly dismiss the employees

JS2341/05

Gaoshubelwe & Others v Pie Mans Pantry (Pty) Ltd

“debt”

(JS443/12; JS437/12) [2013] ZALCJHB 193

South African Municipal Workers Union and Another v South African Local Government Bargaining Council and Others

Claimed payment of accrued remuneration and specific performance of their employment contracts in terms of s 77(3) and (4) of the Basic Conditions of Employment Act 75 of 1997. The claims articulated by the employees in these matters clearly constituted a debt for the purposes of the Prescription Act and were governed by a prescriptive period of three years.

(JR 1958/08) [2013] ZALCJHB 286

Circuit Breaker Industries Ltd v NUMSA obo Hadebe and Others

Lodging of review application not an acknowledgement of a debt. Award of reinstatement however not a debt for purposes of prescription.

Application to make the award of an arbitrator an order of court in terms of s 158(1)(c) of the LRA constituted a process. The running of prescription would be interrupted.

(J2438/12) [2014] ZALCJHB 191

Segakweng v Ogilvy (Johannesburg) (Pty) Ltd v CCMA and Others

creditor claimed payment of the debt for the purposes of s 15(1) read with s 15(6) of the Prescription Act.

Mpanzama v Fidelity Guards Holding (Pty) Ltd [2000] 12 BLLR 1459 (LC) at paras 8 to 11.

(JS243/05) [2014] ZALCJHB 319

FAWU v Piemans Pantry (Pty) Ltd

in terms of s 10(1) of the Act a debt was, in general, extinguished after a period of three years. In determining what constituted a debt for the purpose of prescription, the word had to be considered in a broad sense and included a claim. In terms of s 12(1) of the Act prescription began to run as soon as the debt was due. Prescription was interrupted when the dispute was referred to conciliation in terms of s 191(5) of the LRA in relation to a matter that needed to be adjudicated by the court, was incorrect because at that stage the dispute could not be finally determined.

(C 39/2013) [2013] ZALCCT 43

Cellucity (Pty) Ltd v Peters

Does not apply to review matters.

ADVANCE WAREHOUSING (PTY) LIMITED vs ANNAH PRUDENCE MASHIGO

four justices of the Constitutional Court, out of a quorum of eight justices, held in two judgments, inter alia, that the Prescription Act did not apply to awards made in terms of the LRA. The four other justices held in a third judgment that the Prescription Act was applicable, but prescription would have been interrupted by applications for the review of those awards and would have remained interrupted pending the finalisation of all proceedings between the parties.

JA9/16

DA1/2015

Hospersa obo Tshambi v Department of Health, KwaZulu-Natal (DA1/2015) [2016] ZALAC 10; [2016] 7 BLLR 649 (LAC); (2016) 37 (ILJ) 1839 (LAC) (24 March 2016)

Section 24 period not 3 years

In true labour disputes, the provisions of section 191(1) of the LRA are a more obvious general yardstick to test what is a reasonable time for a referral. The absence of a prescribed period does not automatically license a longer period than is the norm for other labour disputes to be referred. In labour disputes, expedition is the watchword, not because that is simply a good idea, but because the prejudice of delay in matters concerning employment often is not capable of remedial action.

Khanyile and Others v Air Chefs (Pty) Ltd (JS 805/04) [2015] ZALCJHB 238 (4 August 2015)

[37] It therefore follows from the above legal principles that a party cannot seek to advance a case not foreshadowed in its pleadings or in the pre-trial minutes, nor can a case be made out in written closing arguments. The pre-trial minute as signed by the parties, even in its supplementary form does not go far enough to evidence the existence of an agreement to widen the issues to include a dispute surrounding whether the applicants retrenchment was as a consequence of performance issues, misconduct or financial constraints. In the absence of an application to resile from the signed pre-trial minute, the applicants are therefore bound by those minutes, and no consideration shall be had to any submissions made or evidence tendered that falls outside the ambit of the statement of case or the pre-trial minute.

Peach and Hatton Heritage (Pty) Ltd v Neethling & others  [2001] 5 BLLR 528 (LAC)

Generally speaking the function of a pre-trial conference is to limit issues and not widen them. In so far as first respondent contends in paragraph 5 that he persists in his claim that there was no commercial rationale for his retrenchment, such claim did not form part of his statement of case…The assertion by the respondents’ legal representative that the respondents persist in their claim that there was no commercial rationale for his retrenchment in the pre-trial minutes, does not result in it being a triable issue. The pre-trial minute does not go far enough to evidence the existence of an agreement to widen the issues.  in considering that the reasons for the dismissal were not based on the appellant’s operational requirements, the Court a quo widened the dispute between the parties. It was not entitled to do so.

Zondo & others v St Martins School, J3020/12 at para [11]

Pre-trial

JA20/2015

Fawu obo Gaoshubelwe and Others v Pieman’s Pantry (Pty) Ltd (JA20/2015) [2016] ZALAC 46; [2016] 12 BLLR 1175 (LAC); (2017) 38 ILJ 132 (LAC) (8 September 2016)

[45]Accordingly, in my view, the Prescription Act does indeed apply to all litigations under the LRA, not least of all, litigations prosecuted in terms of section 191. includes a petition, a notice of motion, a rule nisi, a third party notice referred to in any rule of court, and any document whereby legal proceedings are commenced.

[51]The terms debt and cause of action are not synonyms. Harms JA in Drennan Maud & Ptrs v Pennington Town Board[35]held that a debt as contemplated section 15(1) of the Prescription Act. does not refer to the cause of action, but more generally to the claim.

why the certificate of non-resolution cannot interrupt prescription either. A referral does not do so because a referral does not commence legal proceedings. The function of a referral is to oblige the CCMA to intervene in a dispute.

[60]Accordingly, to sum up, a referral per se plays no role in interrupting prescription. The need for a statement of case to access the Labour Court is plain. In arbitrations, the need for a formal request can be obviated if an arbitration is actually commenced, and a fictional request is deemed to occur by the absence of an objection.

The final question that arises is what the approach of a court should be to the question of fairness. First, we must recognise that fairness in arbitration proceedings should not be equated with the process established in the Uniform Rules of Court for the conduct of proceedings before our courts. Secondly, there is no reason why an investigative procedure should not be pursued as long as it is pursued fairly. The international conventions make clear that the manner of proceeding in arbitration is to be determined by agreement between the parties and, in default of that, by the arbitrator. Thirdly, the process to be followed should be discerned in the first place from the terms of the arbitration agreement itself. Courts should be respectful of the intentions of the parties in relation to procedure. In so doing, they should bear in mind the purposes of private arbitration which include the fast and cost-effective resolution of disputes. If courts are too quick to find fault with the manner in which an arbitration has been conducted, and too willing to conclude that the faulty procedure is unfair or constitutes a gross irregularity within the meaning of section 33(1), the goals of private arbitration may well be defeated.[20]

Telcordia Technologies Inc v Telkom SA Ltd [2006] ZASCA 112; 2007 (3) SA 266 (SCA; 2007 (5) BCLR 503 (SCA).

Clear Channel Independent (Pty) Ltd v Savage NO and Another [2008] ZALC 166; [2009] 5 BLLR 439 (CC); (2009) 30 ILJ 1593 (LC) at para 36.

[19] In Telcordia Technologies Inc, the SCA further held that courts should not be too eager to interfere with private arbitration awards, and held that: By agreeing to arbitration parties to a dispute necessarily agree that the fairness of the hearing will be determined by the provisions of the Act and nothing else. Typically, they agree to waive the right of appeal, which in context means that they waive the right to have the merits of their dispute re-litigated or reconsidered. They may, obviously, agree otherwise by appointing an arbitral appeal panel, something that did not happen in this case.[11]And, Last, by agreeing to arbitration the parties limit interference by courts to the ground of procedural irregularities set out in s 33(1) of the Act. By necessary implication they waive the right to rely on any further ground of review, ‘common law or otherwise. If they wish to extend the grounds, they may do so by agreement but then they I have to agree on an appeal panel because they cannot by agreement impose jurisdiction on the court.[12]

The fact that the arbitrator may have either misinterpreted the agreement, failed to apply South African law correctly, or had regard to inadmissible evidence does not mean that he misconceived the nature of the inquiry or his duties in connection therewith. It only means that he erred in the performance of his duties. An arbitrator has the right to be wrong on the merits of the case, and it is a perversion of language and logic to label mistakes of this kind as a misconception of the nature of the inquiry  they may be misconceptions about meaning, law or the admissibility of evidence but that is a far cry from saying that they constitute a misconception of the nature of the inquiry. To adapt the quoted words of Hoexter JA: It cannot be said that the wrong interpretation of the Integrated Agreement prevented the arbitrator from fulfilling his agreed function or from considering the matter left to him for decision. On the contrary, in interpreting the Integrated Agreement the arbitrator was actually fulfilling the function assigned to him by the parties, and it follows that the wrong interpretation of the Integrated Agreement could not afford any ground for review by a court[18]And, Likewise, it is a fallacy to label a wrong interpretation of a contract, a wrong perception or application of South African law, or an incorrect reliance on inadmissible evidence by the arbitrator as a transgression of the limits of his power. The power given to the arbitrator was to interpret the agreement, rightly or wrongly; to determine the applicable law, rightly or wrongly; and to determine what evidence was admissible, rightly or wrongly. Errors of the kind mentioned have nothing to do with him exceeding his powers; they are errors committed within the scope of his mandate. To illustrate, an arbitrator in a normal local arbitration has to apply South African law but if he errs in his understanding or application of local law the parties have to live with it. If such an error amounted to a transgression of his powers it would mean that all errors of law are reviewable, which is absurd.[19]

NUM obo 35 Employees v Arbitrator John Grogan NO & Another [2010] 8 BLLR 799 (LAC); (2010) 31 ILJ 1618 (LAC) at para 33. See also Volkswagen SA (Pty) Ltd v Koorts NO & Others (2011) 6 BLLR 561 (LAC).[9] 66 of 1995.

I am inclined to agree with Counsel for the first respondent that, on the facts of this case, it would not matter whether one used the standard of review applicable to CCMA awards as stipulated in sec 145 of the LRA or one used the standard of review contained in sec 33 of the Arbitration Act as the result would be the same.  However, in so far as it may be necessary to decide the issue, I am of the view that the respondents Counsel is correct that, since this is a review of a private arbitration award, it can only be reviewed on the grounds set out in sec 33 of the Arbitration Act and not in terms of the grounds set out in sec 145 of the LRA as extended by the judgments of this Court in Carephone and Shoprite Checkers and by the judgment of the Constitutional Court in Sidumo.  In my view, while parties to a dispute are able to give an arbitrator powers which he otherwise does not have in resolving their dispute, they cannot do the same with regard to a court such as the Labour Court which has statutory power to review arbitration award issued by such arbitrator. Parties to a dispute such as the parties in this case cannot confer on the Labour Court powers to review a private arbitrators award on grounds which it otherwise has no power to rely upon to review such an award.  It would be different if there was a provision of the LRA which conferred upon the Labour Court the power to review such an award on any grounds upon which the parties to a dispute may agree.  That is not the case here.  Accordingly, I hold that the grounds of review applicable in this case are only those grounds set out in sec 33 of the Arbitration Act on which the appellant has relied in its papers.  In this regard the appellant relied upon gross irregularity.

Amalgamated Clothing and Textile Workers Union of South Africa v Veldspun (Pty) Ltd 1994 (1) SA 162 (A).

Before considering these grounds, it is as well to emphasise that the basis upon which a Court will set aside an arbitrators award is a very narrow one….It is only in those cases which fall within the provisions of s 33(1) of the Arbitration Act that a Court is empowered to intervene. If an arbitrator exceeds his powers by making a determination outside the terms of the submission, that would be a case falling under s 33(1)(b). As to misconduct, it is clear that the word does not extend to bona fide mistakes the arbitrator may make whether as to fact or law. It is only where a mistake is so gross or manifest that it would be evidence of misconduct or partiality that a Court might be moved to vacate an award: Dickenson and Brown v Fisher’s Executors 1915 AD 166 at 174-81. It was held in Donner v Ehrlich 1928 WLD 159 at 161 that even a gross mistake, unless it establishes mala fides or partiality, would be insufficient to warrant interference.[17]

Steenkamp and Others v Edcon Limited [2016] ZACC 1; (2016) 37 ILJ 564 (CC); 2016 (3) BCLR 311 (CC); [2016] 4 BLLR 335 (CC); 2016 (3) SA 251 (CC),

Zondo J having considered a competent remedy within the context of an invalid dismissal and the effect thereof held as follows: The common law which gives us the concept of the invalidity of a dismissal is rigid.  It says that if a dismissal is unlawful and invalid, the employee is treated as never having been dismissed irrespective of whether the only problem with the dismissal was some minor procedural non-compliance. The consequences thereof are that the employer must pay the employee full back-pay even if, substantively, the employer had a good and fair reason to dismiss the employee.[23]And, An invalid dismissal is a nullity. In the eyes of the law an employee whose dismissal is invalid has never been dismissed. If, in the eyes of the law, that employee has never been dismissed, that means the employee remains in his or her position in the employ of the employer. In this Court’s unanimous judgment in Equity Aviation, Nkabinde J articulated the meaning of the word reinstate in the context of an employee who has been dismissed. She said, quite correctly, it means to restore the employee to the position in which he or she was before he or she was dismissed. With that meaning in mind, the question that arises in the context of an employee whose dismissal has been found to be invalid and of no force and effect is: how do you restore an employee to the position from which he or she has never been moved? That a dismissal is invalid and of no force and effect means that it is not recognised as having happened. It is different from a dismissal that is found to be unfair because that dismissal is recognised in law as having occurred.[24]

Filing of Statement of Claim interrupts prescription of a “debt”

JR965/13

South African Police v Nkopane and Others (JR965/13) [2017] ZALCJHB 139 (4 April 2017)

(1)       Where a)            Any member of an arbitration tribunal has misconducted himself in relation to his duties as arbitrator or umpire; or b)            An arbitration tribunal has committed any gross irregularity in the conduct of the arbitration proceedings or has exceeded its powers; c)             An award has been improperly obtained, the court may, on the application of any party to the reference after due notice to the other party or parties, make an order setting the award aside.

[18] Thus, the wider test for review of section 145 of the Labour Relations Act[9] (LRA) is not applicable to private arbitrations.

[26] Regarding the issue of whether this Court has the requisite jurisdiction to determine the review application, it is trite that the competency of this Court to adjudicate matters derives from the provisions of section 157(3) of the LRA  of the LRA.

Any reference to the court in the Arbitration Act, 1965 (Act No. 42 of 1965), must be interpreted as referring to the Labour Court when an arbitration is conducted under that Act in respect of any dispute that may be referred to arbitration in terms of this Act.

Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews & Another [2009] ZACC 6; 2009 (4) SA 529 (CC); 2009 (6) BCLR 527 (CC).

Section 33 of the Arbitration Act

Labe v Legal Aid South Africa and Others (JS895/16) [2017] ZALCJHB 248 (20 June 2017)

Fawu obo Gaoshubelwe and Others v Pieman’s Pantry (Pty) Ltd [2016] 12 BLLR 1175 (LAC)

The Labour Appeal Court (per Sutherland JA) having considered previous pronouncements on the issue of prescription by the LAC alluded to the fact that those authorities, including Myathaza[33], did not propose that litigation under the LRA, prior to the rendering of an award, (or a judgment by the Labour Court) was subject to the Prescription Act.

41] The Labour Appeal Court held that the Prescription Act indeed applied to all litigations under the LRA, not least of all, litigations prosecuted in terms of section 191[34]. The Court added that a referral per se played no role in interrupting prescription since it did not commence legal proceedings, and that a referral was no more than a condition to be fulfilled to obtain access to a forum that can adjudicate a dispute[35].[42] The Court further held that for a process to be initiated for the purposes of interruption of prescription, the referring party must after the referral and exhaustion of conciliation in terms of section 191(5)(b) have referred the dispute to the Labour Court for adjudication, which involves, in accordance with Rule 6(1) of the Labour Court Rules, the filing of a statement of case, which, in terms of section 191(11) (a), must be done within 90 days of the certificate of non-resolution[36].

The fact that the certificate of outcome was issued in respect of this dispute does not assist the applicant as on the LAC authority relied upon, prescription started to run from when the alleged harassment or victimisation took place, and could only have been interrupted by initiation of adjudication through the filing of a statement of case. As at the time the statement of case was filed, the claim had accordingly long prescribed.

JS895/16

JA58/16

Van Tonder v Compass Group (Proprietary) Limited and Others (JA58/16) [2017] ZALAC 56; (2017) 38 ILJ 2329 (LAC); [2017] 10 BLLR 1024 (LAC) (1 June 2017)

Whether: The mere fact that a review is pending does not bar the first respondent from launching an application in terms of s 158 (1) (c) to make an arbitration award an order of court.  it would be prudent to state that the first respondent did not at any stage prior to the hearing of this matter, launch an application in terms of s 158 (1) (c) of the Labour Relations Act 66 of 1995….[32] In summary, on the basis of Jafta Js approach, the Act does not apply and accordingly the debt owed by respondent to the appellant in the amount of R 228 000.00 has not prescribed.

Myathaza v Johannesburg Metropolitan Bus Service (SOC) Ltd t/a Metrobus

s15 (1) of the Act which provides that the running of prescription shall, subject to the provisions of s 15 (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.  The learned judge of appeal then went on to say at paras 76-77:An application to make an arbitration award an order of court could, however, be construed as a process whereby the creditor claims payment of the debt.   It is the substance rather than the form of the application that matters.  By bringing such an application the creditor is in effect asking the court to order the debtor to pay the debt (represented by the award).The application to make an award a court order will interrupt prescription by its mere service on the debtor.  But, for it to actually and effectively interrupt prescription, the creditor will have to prosecute his claim under that process to final judgment.

[8] Applying these dicta to the present dispute, Steenkamp J found that the filing of an answering affidavit by the winning party in terms of the arbitration award which was not the subject of a review application against the arbitrators decision, did not amount to taking a legal step to recover the debt owing in terms of the award, sufficient to interrupt the running of prescription in terms of s 15 (1) of the Act.

Noted: [10] He observed that the LRA had been amended pursuant to a new provision, s145 (9), which provides that an application to set aside an arbitration award in terms of the section interrupts the running of prescription in terms of the Prescription Act in respect of that award. However, the commencement date for this amendment was such that it applied to arbitration awards issued after 1 January 2015 and therefore, could not come to aid of the appellant in the present dispute.

JS133/16

Monare v South African Tourism (JS133/16) [2019] ZALCJHB 205 (2 May 2019)

Onus of prove

Lancelot Stellenbosch Mountain Retreat (Pty) Ltd v Gore N.O. and Others (108/2014) [2015] ZASCA 37 (25 March 2015)

As I have pointed out above, the first question is whether it was established that the debt on which the liquidators locus standi was based, had prescribed. It is a determination that must precede the question whether or not the running of the prescription had been interrupted. Depending on the outcome of the enquiry on the first question, the determination of the latter question may or may not arise at all. This is so because when a debtor raises the defence of prescription he bears the full evidentiary burden to prove it. And that burden shifts to the creditor only if the debtor has established a prima facie case. In that event, a creditor bears the onus to allege and prove the interruption of prescription through either an express or tacit acknowledgement of liability by the debtor, in terms of s 14 of the Prescription Act.[5]

debt

[22]       In Makate v Vodacom (Pty) Ltd [2016] at paras 85-86, 93 and 187, the meaning that the Constitutional Court unanimously attributed to the word debt as contemplated in sections 10, 11 and 12 of the Prescription Act is the meaning ascribed to it in the Shorter Oxford English Dictionary, namely:1. Something owed or due:  something (as money, goods or service) which one person is under an obligation to pay or render to another.  2. A liability or obligation to pay or render something; the condition of being so obligated….The correlative of a debt in this sense is a right of action vested in the creditor in which the payment of money, or the delivery of goods, or the rendering of services is claimed.  And, when payment, delivery or the rendering of services extinguishes the debt, the right of action is likewise extinguished.  That is why s12(1) of the Prescription Act provides that prescription will commence to run once the debt is due.  If the debt is not due then prescription cannot run.  Debts become due when they are immediately claimable and recoverable.

Labour Court reinstatement order was 30 years.

[39]       In summary, and in line with the principles enunciated in Coca Cola Sabco (Pty) Limited v Van Wyk, which Zondo J in Hendor appears to have endorsed, the effect of a reinstatement order as upheld by the Labour Appeal Court was to revive the arbitration award and thus the contract of employment. Flowing from such an order, the rights and obligations of the parties would again be governed by the contract of employment. Thus, the applicant would have a contractual claim, which is a totally different cause of action against the respondent[20], which means a debt in respect of which the debtor is under an obligation to perform immediately[21]… Any debt could not have been due and claimable pending the review and appeal proceedings, as during that period, the fixed term contract as restored by the arbitration award was in suspension… Furthermore, in line with Truter & another v Deysel and Duet and Magnum Financial Services CC (In Liquidation) v Koster, the applicant prior to the Labour Appeal Court judgment and the restoration of the fixed term contract, could not have been said to have acquired a complete cause of action for the recovery of the debt, as not everything had happened which would have entitled him to institute action and to pursue his claim. In the absence of the restored fixed term contract, any rights to claim a debt had not come into existence, and therefore, there was nothing that was capable of expiring.

Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others [2016] ZACC 49; (2017) 38 ILJ 527 (CC); [2017] 3 BLLR 213 (CC); 2017 (4) BCLR 473 (CC); 2018 (1) SA 38 (CC) at para 67.

The manifest injustice of depriving the applicant of the arbitration award in his favour by first avoiding its implementation by way of instituting review proceedings and then crying prescription on the back of the time wasted by the review can be met by application of the principle that prescription should not run until court proceedings are finalised

11      Periods of prescription of debts. The periods of prescription of debts shall be the following:(a)    thirty years in respect of-(i)   any debt secured by mortgage bond;(ii) any judgment debt;(iii)          any debt in respect of any taxation imposed or levied by or under any law;(iv)          any debt owed to the State in respect of any share of the profits, royalties or any similar consideration payable in respect of the right to mine minerals or other substances;(b)          fifteen years in respect of any debt owed to the State and arising out of an advance or loan of money or a sale or lease of land by the State to the debtor, unless a longer period applies in respect of the debt in question in terms of paragraph (a);(c)           six years in respect of a debt arising from a bill of exchange or other negotiable instrument or from a notarial contract, unless a longer period applies in respect of the debt in question in terms of paragraph (a) or (b);(d)          save where an Act of Parliament provides otherwise, three years in respect of any other debt.[2] 14      Interruption of prescription by acknowledgement of liability.(1)          The running of prescription shall be interrupted by an express or tacit acknowledgement of liability by the debtor.(2)          If the running of prescription is interrupted as contemplated in subsection (1), prescription shall commence to run afresh from the day on which the interruption takes place or, if at the time of the interruption or at any time thereafter the parties postpone the due date of the debt, from the date upon which the debt again becomes due.    15. Judicial interruption of prescription.(1)        The running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.(2)            Unless the debtor acknowledges liability, the interruption of prescription in terms of subsection (1) shall lapse, and the running of prescription shall not be deemed to have been interrupted, if the creditor does not successfully prosecute his claim under the process in question to final judgment or if he does so prosecute his claim but abandons the judgment or the judgment is set aside.(3)            If the running of prescription is interrupted as contemplated in subsection (1) and the debtor acknowledges liability, and the creditor does not prosecute his claim to final judgment, prescription shall commence to run afresh from the day on which the debtor acknowledges liability or, if at the time when the debtor acknowledges liability or at any time thereafter the parties postpone the due date of the debt, from the day upon which the debt again becomes due.(4)            If the running of prescription is interrupted as contemplated in subsection (1) and the creditor successfully prosecutes his claim under the process in question to final judgment and the interruption does not lapse in terms of subsection (2), prescription shall commence to run afresh on the day on which the judgment of the court becomes executable.(5)            If any person is joined as a defendant on his own application, the process whereby the creditor claims payment of the debt shall be deemed to have been served on such person on the date of such joinder.(6)          For the purposes of this section, process includes a petition, a notice of motion, a rule nisi, a pleading in reconvention, a third party notice referred to in any rule of court, and any document whereby legal proceedings are commenced.

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)

Makate v Vodacom (Pty) Ltd 2016 (4) SA 121 (CC) paras 92-93.

Further, the referral, or the actual dispute before him, which related to whether the settlement agreement covered the employees in question, could not have prescribed as it is not a debt as contemplated in the Prescription Act, such a debt being confined only to services to be rendered, monies to be paid, or something to be delivered.

[42]      This Court, like the Labour Court, cannot, in effect, decide the issue of prescription of claims that were not before the arbitrator (or the Labour Court) and cannot, in fairness to the parties, anticipate and determine such an issue. In any event, the third respondent has not made out a proper case of prescription of those (anticipated) claims. Since those claims relate to the payment of salaries that fell and fall due on a monthly basis, and prescription only commences to run in respect of a debt from the time the debt is due[6], it was incumbent upon the third respondent to establish when each salary in respect of each affected employee became due and when the three-year period (supposedly the period applicable to such debts) had expired. Further, and in any event, it is by no means proved that prescription would have extinguished the entire claim of each of the affected employees whom the agreement may have covered.

Debt

J2885/17

J2885/17 thembekile gama masina vs MEC OF THE DEPARTMENT OFE-GOVERNMENT GAUTENG

[39]     Moreover, in the case of Food and Allied Workers Union obo Gaoshubelwe v Pieman’s Pantry (Pty) Limited[2018 (5) BCLR 527 (CC)] the Constitutional Court confirmed that the Prescription Act is applicable to litigation under the LRA. The Constitutional Court also confirmed that the meaning of debt is sufficiently broad so as to cover an obligation to do something.[16]  Likewise, in the context of unfair labour practice claims, the Labour Appeal Court held in Motsoaledi and others v Mabuza[[2019] 1 BLLR 21 (LAC)] that an unfair labour practice claim in terms of section 186(2)(a) of the LRA is a ‘debt’ capable of prescription in terms of the Prescription Act.  In this regard, the Labour Appeal Court stated that “a claim to remedy an unfair labour practice clearly gives rise to a debt as contemplated by the Prescription Act.  The Labour Appeal Court further confirmed that the prescription period applicable to unfair labour practice claims is three years.[18]

Principles and the act

J1394/22

Simone v Stone And Allied Industries (Proprietary) Limited (J1394/22) [2024] ZALCJHB 28 (2 February 2024)

“[26]  The primary purpose of prescription is inter alia to confirm certainty, finality etc.

[27]  In Food and Allied Workers Union on behalf of Gaoshubelwe v Pieman’s Pantry (Pty) Ltd[13], the Court said the following:

‘… our courts have, on occasion, pronounced on the importance of labour disputes to be conducted with expedition. For example, in National Research Foundation the Labour Court held:

“It is now trite that there exists a particular requirement of expedition where it comes to the prosecution of employment law disputes…”’

[28]  In determining prescription, then the starting point is section 16(1) of the Prescription Act[14], which reads in the following:

‘Subject to the provisions of subsection (2) (b), the provisions of this chapter shall, save in so far as they are inconsistent with the provisions of any Act of Parliament which prescribes a specified period within which a claim is to be made or an action is to be instituted in respect of a debt or imposes conditions on the institution of an action for the recovery of a debt, apply to any debt arising after the commencement of this Act.’

[29]  Section 10(1) reads in the following:

‘Subject to the provisions of this Chapter and of Chapter IV, a debt shall be extinguished by prescription after the lapse of the period which in terms of the relevant law applies in respect of the prescription of such debt.’

[30]  Section 11 concerns itself with relevant period of prescription of debts and in terms of section 11(d) it provides that the period of prescription is “save where an Act of Parliament provides otherwise, three years in respect of any other debt”.

[31]  Section 12 seems to be concerned with the running of prescription, in that it provides the following:

‘Subject to the provisions of subsections (2), (3), and (4), prescription shall commence to run as soon as the debt is due.’

[32]  Section 15 (1) with respect to judicial interruption provides that:

‘The running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.’

[33]  Section 15 of the Prescription Act provides that the running of prescription shall be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt, and “process” in terms of section 15(6) includes any document whereby legal proceedings are commenced. A debt need to be defined in order to reach acceptable conclusion, and so the Court in Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd[15], it held that a “debt” is :

‘… that which is owed or due; anything (as money, goods or service) which one person is under obligation to pay or render to another.’

[34]  Pursuant to determination of the debt, is the collateral question of when is it due, to that effect, the Court in Solidarity & others v Eskom Holdings Ltd[16], held that:

‘A debt is due in this sense, when the creditor acquires a complete cause of action for the recovery of the debt, that is when the entire set of facts which the creditor must prove in order to succeed with his or her claim against the debtor is in place or in other words when everything has happened which would entitle the creditor to institute action and to pursue his or her claim.’

[35]  As for the ease of reference, the Court in Truter and Another v Deysel[17], confirmed debt with similar precision as:

‘… A debt is due in this sense when the creditor acquires a complete cause of action for the recovery of the debt, that is, when the entire set of facts which the creditor must prove in order to succeed with his or her claim against the debtor is in place or, in other words, when everything has happened which would entitle the creditor to institute action and to pursue his or her claim.’

[36]  The definition of “debt” refers to complete cause of action for the recovery of debt, and therefore it is against the same background that the term cause of action be outlined, even if briefly so. As to what constitutes a “cause of action” for this purpose, The Supreme Court of Appeal herein referred to (SCA) in Santam Ltd v Ethwar[18], decided that:”… a cause of action is the entire set of facts which a plaintiff must prove to succeed”.

[37]  Whereas in Murray & Roberts Construction (Cape) (Pty) Ltd v Upington Municipality[19], it was clarified and adopted with confidence that the rationale behind section 15 is that where a creditor takes judicial steps to enforce the particular debt, prescription should be suspended pending finalization of such proceedings.

[38]  As the prescription provides for mandatory period within which the creditor shall claim his or her debt in order to avoid it, it equally implies that the creditor must accede to prescribed time-frames.”

does not run while review application  not concluded

JA18/2023

Hudaco Trading (Pty) Ltd t/a Ambro Steel and Others v Ramothwala (JA18/2023) [2024] ZALAC 24 (26 April 2024)

Prescription – Whether ostensibly defective review application interrupts running of prescription – First dismissed review application had interrupted prescription when launched – Application for leave to appeal further interrupted running of prescription – Award could not have become prescribed while review application was still being pursued – Arbitration award did not and could not have prescribed until review proceedings were concluded

[18]  In short, whether the period of prescription is three years or thirty, the arbitration award issued in favour of [Mr Ramothwala] has not prescribed. Despite the shortcomings identified by [Hudaco] in the prosecution of the application, the application for review was finalized by the LAC’s dismissal of [Hudaco]’s petition for leave to appeal on 8 November 2022. The provisions of the Practice Manual to which [Hudaco] appears to contend for prescription did not have the effect, as [Hudaco]’s attorney put it in the answering affidavit, of ‘visiting a nullity’ on the review application. The review application was filed late, with no application for condonation. As my colleague Moshoana J pointed out, that has the consequence, where no application for condonation is filed, that the court has no jurisdiction. That does [not] mean that the application is void ab initio, as [Hudaco] contends. It means no more [than] that unless and until any application for condonation is filed, the court has no jurisdiction. The same principle applies in respect of [Hudaco]’s breaches of the Practice Manual. It was [Hudaco] that pursued the review application to the stage of an application for leave to appeal and a petition to the LAC – the last word was spoken by the LAC on 8 November 2022.

[26]…In essence the point being contended for was that because the review application was launched outside the six weeks period and no condonation application was made, therefore it could not have interrupted prescription. I disagree with this proposition which, in my view, is meritless. Furthermore, it is the Labour Court that must determine whether or not, in the first instance, the application was made outside of the six weeks period despite either party’s contentions or even silence on the issue as it is a jurisdictional issue which the court may raise mero motu. Where the review application is made after six weeks, it would depend on whether a condonation application for the late filing of the review is made. If condonation is sought the court would have to determine whether or not good cause was shown for it to exercise its discretion and grant condonation.

[30]  I am in respectful agreement with Van Niekerk J in the Labour Court that whether the prescriptive period is three years or thirty, the arbitration award did not and could not have prescribed until the review proceedings were concluded. T

Extinctive prescription, initial application interrupted prescription?

CCT 184/2022

Rademeyer v Ferreira (CCT 184/2022) [2024] ZACC 24 (25 October 2024)

[96]…The judicial interruption that did in fact occur, was of the debt relating to specific performance and not in respect of damages.  That is the crucial point of distinction between the first judgment and this one.  In the premises, the prescription point raised in Mr Rademeyer’s special plea was good and Mr Ferreira’s claim for damages has prescribed.

Prescription – Interruption – Sale agreement – Same cause of action – Breach of contract – Specific performance – Right to claim damages – Specific performance lawsuit cannot be basis for judicial interruption of running of prescription regarding cancellation and damages claim – Judicial interruption that occurred was of debt relating to specific performance and not in respect of damages – Claim for damages has prescribed – Appeal upheld – Prescription Act 68 of 1969, s 15(1).

award

CA5/2023

South African Municipal Workers Union obo Koopman v City of Cape Town and Others (CA5/2023) [2025] ZALAC 7; [2025] 5 BLLR 495 (LAC); (2025) 46 ILJ 1132 (LAC) (22 January 2025)

[4]  The court a quo found that the award had prescribed. It reasoned that arbitration awards are debts for the purposes of the Prescription Act and that they prescribe after a period of three years. This was on the basis that the Constitutional Court had not conclusively dealt with the matter in Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others[3] (Myathaza), and Mogaila v Coca Cola Fortune (Pty) Limited[4] (Mogaila), in which that Court did not make a definitive finding on the issue. Instead, it took the view that this Court had correctly dealt with the issue in its decisions in NUM obo Majebe v Civil and General Contractors[5] (Majebe) and Motsoaledi and Others v Mabuza.[6] In these decisions, this Court conclusively determined that arbitration awards are debts prescribing in three years in line with section 11(d) of the Prescription Act.

[6]  The appellant’s main contention is that arbitration awards are not debts prescribing after three years for the purposes of the Prescription Act. Instead, once certified, their prescription period is 30 years, the same as Court judgments.

“15]  In Tshongweni v Ekurhuleni Metropolitan Municipality,[18] this Court explained the effect of the unfair dismissal regime introduced following the recommendations of the Wiehahn Commission of Enquiry into Labour Legislation. It said:

‘Reinstatement may be ordered from a date later than the date of dismissal (section 193(1)(a) of the LRA) and thus may be of limited retrospectivity. Re-employment implies termination of a previously existing employment relationship and the creation of a new employment relationship, possibly on different terms both as to period and the content of the obligations undertaken. In both instances, as in the case of the common law remedy of specific performance, the employee must make his services available if the remedy is to be maintained; there must be a willingness to resume employment. Aside from the requirements of the common law, that much follows in part, it would seem to me, as the corollary arising from the provision in section 193(2)(a) of the LRA that reinstatement or re-employment should be ordered unless the employee does not wish to be reinstated or re-employed.’[19] (Own emphasis)”

employment contract – reciprocal duties on employees and employers – reinstatement order is not self-executing – duty on employee to tender services following reinstatement – failure to tender services is fatal to execution of arbitration award or judgment ordering reinstatement – appeal dismissed.

** Reinstatement

Unfair Labour Practice claims

DA6/ 2021

Toyota SA Motors (Pty) Ltd v Commission For Conciliation, Mediation And Arbitration and Others (DA6/ 2021) [2023] ZALAC 5 (14 February 2023)

In the circumstances, arbitrator has no discretion to choose between the three remedies contemplated in section 193(1) of the LRA but is obliged to order payment of compensation in terms of section 193(1)(c) of the LRA.

[21]        Integral to the exercise of the arbitrator’s discretion in terms of section 193(1) of the LRA in deciding whether to reinstate, re-employ or compensate the employee, is the nature of the employment contract and whether it is extant when an employee’s dismissal is found to be unfair. The remedy of reinstatement is confined to the situation where, at the date of the finding that the dismissal is unfair, the original employment contract is still in existence. However, where the employee is employed on a fixed-term contract, the expiry of which precedes the unfair dismissal finding, as in this dispute, then reinstatement or re-employment are not legally permissible remedies.[7] In the circumstances, the arbitrator no longer has a discretion to choose between the three remedies contemplated in section 193(1) of the LRA but is obliged in law to order the employer to pay the employee compensation in terms of section 193(1)(c) of the LRA.

reinstatement not a competent remedy where expiry of employee’s fixed- term contract precedes unfair dismissal finding of arbitrator

J 327/2021

Molopa v Trans-Orange Conference Of Seventh Day Adventists and Others (01 March 2023) (J 327/2021) [2023] ZALCJHB 41 (1 March 2023)

“[23]     There is a material difference between reinstatement and re-employment. In Mashaba v Citibank NA SA Branch and others,[(2019) 40 ILJ 2762 (LC) at para 25.] the Court defined re-employment as follows:

‘Re-employment does not require the restoration of the status quo ante as if a dismissal has not happened. Re-employment is relief that in effect affords the employer greater flexibility where it comes to taking the employee back to work. Examples of where re-employment, as opposed to reinstatement, would be competent are:

25.1   Where there had been operational changes to the employee’s position in the interim, or a change in conditions of employment, which do not go so far as to render taking the employee back into employment impracticable, but which make a complete restoration of the status quo ante as required by reinstatement impossible, re-employment would be appropriate. In simple terms, the employee is returned to work in an alternative position. The court or the arbitrator however still retains the discretion to decide the retrospectivity of such an award of re-employment, so it does not follow that all re-employment awards necessarily mean that it must be new employment with no retrospectivity.

25.2   Also, re-employment, as opposed to reinstatement, can have conditions and/or terms attached to taking the employee back to work, not contemplated by the employee’s original employment and/or employment terms. For example, it may be ordered that an employee is re-employed on a different medical aid…

25.3   Re-employment would also occur where it is decided to regard the previous employment relationship as terminated and the replacement thereof with new employment which may or may not be on different terms…’ [Footnotes omitted].”

“[24]     In Tshongweni v Ekurhuleni Metropolitan Municipality,[(2012) 33 ILJ 2847 (LAC) at para 37.] the LAC defined re-employment as:

‘…Re-employment implies termination of a previously existing employment relationship and the creation of a new employment relationship, possibly on different terms both as to period and the content of the obligations undertaken.’”

“[25]     In Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[(2008) 29 ILJ 2507 (CC).] (Equity Aviation), the Constitutional Court specifically dealt with the meaning of ‘reinstatement’ and held that:[8]

‘The ordinary meaning of the word ‘reinstate’ is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions… It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers’ employment by restoring the employment contract. Differently put, if employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal. As the language of s 193(1)(a) indicates, the extent of retrospectivity is dependent upon the exercise of a discretion by the court or arbitrator. The only limitation in this regard is that the reinstatement cannot be fixed at a date earlier than the actual date of the dismissal. The court or arbitrator may thus decide the date from which the reinstatement will run, but may not order reinstatement from a date earlier than the date of dismissal.’ [Footnotes omitted]”

“as to re-employment

“

JR 124/2020

JB Marks Municipality v South African Local Government Bargaining Council and Others (JR 124/2020) [2023] ZALCJHB 342 (28 November 2023)

”  The legal approach and evaluation:

[9] The question of whether and if so how, an employee who was unable to enjoy the benefits of a favourable arbitration award of reinstatement may be entitled to any form of remuneration upon the implementation of that award has been the subject of numerous authorities. In addressing the issue, the legal position as set out by the LAC in Coca Cola [ [2015] ZALAC 15; [2015] 8 BLLR 774 (LAC); (2015) 36 ILJ 2013 (LAC).] is as follows; 

(i) Any amounts paid to an unfairly dismissed employee consequent to a retrospective reinstatement order is not compensation, and an order of back-pay by a commissioner can therefore only refer to the period between the date of dismissal and the date of the order and does not entitle an employee, without more, to remuneration between the date of the award and the actual date of implementation. This is so in that the Labour Relations Act does not cater for such relief[3].

(ii) When there is a delay in the implementation of the reinstatement award and the employer refuses to pay an employee money that may be due between the period of the award and the implementation thereof, the lis between them has not been judicially resolved. It is only after a contractual claim in the civil courts or under section 77 of the Basic Conditions of Employment Act has been instituted and pronounced upon that it can be said that the employer is a judgment debtor against whom a writ may be issued. The order of reinstatement is not a judgment dealing with the consequent damages for the breach of the contract[4].

(iii)   If the employee, after the reinstatement order and during the time that the employer exercises its review and appeal remedies to exhaustion, tenders his service, he does so in terms of the employment contract, and is therefore entitled to payment in terms of the contract of employment. The claim is therefore a contractual one, wherein the employee would have to set out sufficient facts to justify the right or entitlement to judicial redress. The employee would inter alia have to prove that the contract of employment is extant; that he tendered his service in terms thereof and that the employer refuses or is unwilling to pay him in terms of that contract. The employer on the other hand would have all the contractual defences at its disposal[5].

(iv)   An award of reinstatement therefore does not require the payment for the full period up to and including the date of compliance in that all that it does is to revive the contract of employment. Thus, should an employer refuse to pay an employee for the said period then the employee has a contractual claim – which is a totally different cause of action – against the employer[6].  “

[11] Flowing from the Court order, the rights, and obligations of the parties insofar as any other issue outside the scope of the arbitration award, are now since the reinstatement, governed by the restored contract of employment. This means that to the extent that the third respondent seeks payments arising from his inability to render his services immediately after the award was obtained, he would ordinarily have a contractual claim, which is a totally different cause of action against the Municipality. As stated in Coca Cola[8], since the third respondent’s claim is a contractual, he will be required to set out sufficient facts to justify the right or entitlement to the alleged remuneration. Effectively, such a claim is incapable of adjudication by this Court within the context of a review application which was before this Court under section 145 of the LRA.

[12] To this end, it follows that to the extent that the third respondent sought a declaratory order that he was entitled to remuneration between post the arbitration award and its implementation, this Court lacks jurisdiction to make such an order. The proper legal approach therefore would have been to invoke the provisions of section 77 of the Basic Conditions of Employment Act.

 section 193 (2) of the LRA the primary remedy in a case of unfair dismissal is a reinstatement

JA16/18

Mathebula v General Public Service Sectoral Bargaining Council and Others (JA16/18) [2024] ZALAC 4; [2024] 5 BLLR 476 (LAC); (2024) 45 ILJ 979 (LAC) (7 February 2024)

This Court upheld the appeal and ordered the employee to be reinstated. This Court ordered reinstatement on the basis that the employer presented no evidence as to why reinstatement was in the circumstance inappropriate.

Booi v Amathole District Municipality and Others [2022] 1 BLLR 1 (CC) at para 38.

“[38]   It is plain from this Court’s jurisprudence that where a dismissal has been found to be substantively unfair, “reinstatement is the primary remedy” and, therefore, “[a] court or arbitrator must order the employer to reinstate or re-employ the employee unless one or more of the circumstances specified in section 193(2)(a) (d) exist, in which case compensation may be ordered depending on the nature of the dismissal.”

“[40]   It is accordingly no surprise that the language, context and purpose of section 193(2)(b) dictate that the bar of intolerability is a high one. The term “intolerable” implies a level of unbearability and must surely require more than the suggestion that the relationship is difficult, fraught or even sour. This high threshold gives effect to the purpose of the reinstatement injunction in section 193(2), which is to protect substantively unfairly dismissed employees by restoring the employment contract and putting them in the position they would have been in but for the unfair dismissal. And my approach to section 193(2)(b) is fortified by the jurisprudence of the Labour Appeal Court and the Labour Court, both of which have taken the view that the conclusion of intolerability should not easily be reached and that the employer must provide weighty reasons, accompanied by tangible evidence, to show intolerability.”

[21]  In Amalgamated Pharmaceutical Ltd v Grobler NO and Others[9] the Court held that it was grossly unfair to punish an employee with unemployment without finding him or her to be guilty of the wrongful conduct. According to the Labour Court, the unfairness in that regard cannot be ameliorated by compensation. In Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others,[10] the Constitutional Court held that if the offence proffered against the employee did not justify dismissal, it was difficult to understand why it would at the same time provide a ground to prevent his reinstatement.

Fidelity Cash Management Services, v Commissioner for Conciliation, Mediation and Arbitration and Others, [2008] 3 BLLR 197 (LAC) at para 32.

“””(32)   It is an elementary principle of not only our labour law . . . but also of labour law in many other countries that the fairness or otherwise of the dismissal of an employee must be determined on the basis of the reasons for the dismissal which the employer gave at the time of the dismissal.”” [12]

[23]  The essence of the above is that if an employee who is entitled to reinstatement is alleged to have committed other offences subsequent to the charges proffered against him or her, the employer can address those (offences) after reinstating him or her.

[24]  The test for determining whether the remedy of reinstatement is appropriate is objective. It is not, as stated in Engine Petroleum Ltd v CCMA and others,[13] subjective.”

[30]  The question that remains for consideration is whether the order to reinstate the appellant should be retrospective to the date of the dismissal. As indicated earlier, there was a delay in the prosecution of the matter on the part of the appellant. Although I accepted that it was his attorney and not he that was to blame for the delay, it would be unfair to burden the respondent with compensation for that period.

whether the appellant ought to have been reinstated: section 193 (2) of the LRA

JA16/18

Mathebula v General Public Service Sectoral Bargaining Council and Others (JA16/18) [2024] ZALCJHB 38 (7 February 2024)

[15]  The decision whether to reinstate an employee whose dismissal was found to have been unfair involves an exercise of discretion by an arbitrator in terms of section 193 (1) and (2) of the LRA. The exercise of the discretion may be challenged on review, in which case the Labour Court is required to determine whether the arbitrator, in arriving at the decision as he or she did, took into account all the facts and the circumstances of the case. As stated in Kemp t/a Centralmed v Rawlins,[3] the Court also has to determine whether the decision refusing reinstatement is judicially correct. 

“[17]  In Booi v Amathole District Municipality and Others,[[2022] 1 BLLR 1 (CC) at para 38.] the Constitutional Court in dealing with the issue of reinstatement under section 193 of the LRA held that:

“”[38]   It is plain from this Court’s jurisprudence that where a dismissal has been found to be substantively unfair, “”reinstatement is the primary remedy”” and, therefore, “”[a] court or arbitrator must order the employer to reinstate or re-employ the employee unless one or more of the circumstances specified in section 193(2)(a) (d) exist, in which case compensation may be ordered depending on the nature of the dismissal.””

“

“[18]  The Constitutional Court further held that[6]:

“”[40]   It is accordingly no surprise that the language, context and purpose of section 193(2)(b) dictate that the bar of intolerability is a high one. The term “”intolerable”” implies a level of unbearability and must surely require more than the suggestion that the relationship is difficult, fraught or even sour. This high threshold gives effect to the purpose of the reinstatement injunction in section 193(2), which is to protect substantively unfairly dismissed employees by restoring the employment contract and putting them in the position they would have been in but for the unfair dismissal. And my approach to section 193(2)(b) is fortified by the jurisprudence of the Labour Appeal Court and the Labour Court, both of which have taken the view that the conclusion of intolerability should not easily be reached and that the employer must provide weighty reasons, accompanied by tangible evidence, to show intolerability.”””

“20]  The required high threshold in showing intolerability has to be understood in the context of the value which, as stated in Equity Aviation Services (Pty) Ltd v Commissioner of Conciliation, Mediation and Arbitration and Others[8] is to protect the security of employment as envisaged by the section 23 of the Constitution of the Republic of South Africa, 1996. 

“

21]  In Amalgamated Pharmaceutical Ltd v Grobler NO and Others[9] the Court held that it was grossly unfair to punish an employee with unemployment without finding him or her to be guilty of the wrongful conduct. According to the Labour Court, the unfairness in that regard cannot be ameliorated by compensation. In Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others,[10] the Constitutional Court held that if the offence proffered against the employee did not justify dismissal, it was difficult to understand why it would at the same time provide a ground to prevent his reinstatement.

CC – reinstatement of dismissed employee

CCT 170/24

Mavundla v Gotcha Security Services (Pty) Ltd (CCT 170/24) [2025] ZACC 11 (18 June 2025)

“claim for arrear remuneration — delay in factual reinstatement due to dispute about conditions imposed by employer — Labour Court order compelling unconditional reinstatement — employee entitled to claim arrear remuneration from original date of reinstatement

claim for arrear remuneration — delay in factual reinstatement due to dispute about conditions imposed by employer — Labour Court order compelling unconditional reinstatement — employee entitled to claim arrear remuneration from original date of reinstatement”

[5]            Mr Mavundla returned to work on 1 June 2021.  Gotcha Security complied with the order and Mr Mavundla assumed his duties.  Upon his return to work, however, he requested payment of his arrear salary for the period from 1 August 2019 to 31 May 2021.  Gotcha Security failed to pay the remuneration he claimed to be due to him.  Approximately two months after resuming his duties, Mr Mavundla was retrenched.  He brought an application to the Labour Court claiming payment of the remuneration allegedly due to him for the period from 1 August 2019 to 31 May 2021.

[7]…The Labour Court reasoned that, until an employee’s tender of service has been accepted by the employer, no contractual obligation exists between the parties.  On this basis, it held that there was no contractual obligation upon Gotcha Security to pay Mr Mavundla his salary for the period between 1 August 2019 and 31 May 2021.

[15]        According to Gotcha Security there are two issues that arise in this matter.  The first is whether the order of Moshoana J deprived Mr Mavundla of a right to demand back pay.  Secondly, whether the Labour Court raised the issue that Mr Mavundla abandoned his entitlement to arrear salary mero motu without affording the parties an opportunity to make submissions.

[26]        Mr Mavundla’s claim was for payment of remuneration benefits due to him in terms of his contract of employment which had been restored pursuant to the order issued by Moshoana J.  He sought payment of what was due to him from the period 1 August 2019 (the date of reinstatement provided by the arbitration award) to 31 May 2021 (the date immediately prior to his actual reinstatement).

[27]        The Labour Court relied upon Kubeka,[4] where the Labour Appeal Court asserted, following this Court’s judgment in Hendor,[5] that a reinstatement order does not restore the contract of employment.  The contract of employment is restored when the employer accepts the employee’s tender of services pursuant to the order.  However, despite this principle, the Labour Court went on to assert that the contract of employment was restored by Moshoana J’s order and not the arbitration award.

[30]        This Court was evenly split in Hendor on the characterisation of the debt due to an employee upon reinstatement for purposes of prescription.  It was however unanimous in finding that, upon restoration of the contract of employment by factual reinstatement, an employee is entitled to the benefits (including remuneration) which they would have been entitled to but for the dismissal, unless limited by the terms of the reinstatement order.[6]  Hendor is not authority for the proposition that a reinstated employee is only entitled to be paid as from the date of their factual reinstatement.

[32]…The fact that Moshoana J did not find Gotcha Security to be in contempt is irrelevant to its meaning.

[33]        It follows that the Labour Court’s judgment cannot stand, and that the appeal before this Court must be upheld.  Mr Mavundla had claimed payment of remuneration which was due to him from the period 1 August 2019 to 31 May 2021.  He is entitled to such an order.  He has already been paid the remuneration which was due to him from the date of his dismissal until 31 July 2019, as required by the original arbitration award.

prescription of claim for payment of remuneration for period between reinstatement award and court order (being the date of the reinstatement award, and 12 June 2014, being the date of the LAC order granting reinstatement)

JA91/22

Potgieter v Samancor Chrome Limited ta Tubatse Ferrochrome (JA91/22) [2025] ZALAC 15; [2025] 5 BLLR 483 (LAC) (10 March 2025)

[19]  It found that Mr Potgieter’s claim between June 2008, being the date of the reinstatement award, and 12 June 2014, being the date of the LAC order granting reinstatement, constituted a contractual claim to which prescription applied. Moreover, that Mr Potgieter was constrained to issue proceedings to enforce the reinstatement order prior to the conclusion of the appeal processes which the respondent had pursued.

[18]  The Labour Court held that monies owing consequent upon a reinstatement order constitute a debt within the contemplation of the Prescription Act and that the period applicable is in terms of section 11(d) of the Act, which stipulates that a debt prescribes after three years. On the authority of National Union of Metalworkers of SA on behalf of Fohlisa and Others v Hendor Mining Supplies (a division of Marschalk Beleggings (Pty) Ltd)[2] (Hendor), it held that a claim in arrears in salaries constitutes a contractual claim which becomes due once the employment contract has been restored subsequent to a reinstatement order. This is since, with reliance on Coca Cola Sabco (Pty) Ltd v van Wyk,[3] the reinstatement order does not include wages owing between the date of the order or award and the eventual restoration of the employment.

“[22]  In considering whether the period of prescription was interrupted, the Labour Court held that in terms of section 15 of the Prescription Act, the running of prescription shall be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt. The Labour Court rejected Mr Potgieter’s contention that his claim emanated from the judgment of Snyman AJ of 16 February 2021, which granted the appellant leave to institute the claim for arrears in salaries. It held that the said judgment was not in relation to the issue of prescription but rather that it interpreted the LAC order granted on 12 June 2014, which was subject to any contractual defences. Moreover, the order granting leave to initiate a claim could not be construed to eliminate the accrued right of a party to raise prescription as a defence.

[23]  Thus, the Labour Court held that Mr Potgieter did not serve any process within the meaning of section 15 of the Prescription Act claiming performance from the respondent, nor were any other legal proceedings initiated within the period of three years after the debt became due and enforceable. This includes the claim which was instituted in July 2018, which was initiated subsequent to the expiry of the three-year period. Effectively, the claim prescribed either in June or September 2017.”

“[27]  The issue is when the debt became due and payable. The Labour Court found that the debt became due and payable at the date of the reinstatement order or at the date on which Samancor’s application for leave to appeal was dismissed by the Constitutional Court.

[28]  Emanating from the authority in Hendor[5], a reinstatement order merely revives the employment contract between the parties and therefrom the reciprocal obligations to tender services, acceptance of the tender and payment of wages arises. This entails that for reinstatement to occur, the employee must tender services after the reinstatement order, and the employer must accept the employee back into her previous position. “

“In articulating this position, this Court in Kubeka  Others v Ni-Da

[29]  Transport (Pty) Ltd[6] held the following:

‘[23]  In Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (Equity Aviation Services) the Constitutional Court held:

‘The ordinary meaning of the word “reinstate” is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions. Reinstatement is the primary statutory remedy in unfair dismissal disputes. It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers’ employment by restoring the employment contract. Differently put, if employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal.’

[24]  These dicta do not clearly affirm that the effect of a reinstatement order is merely to direct the employer to accept a tender of the employees’ services and that no right to arrear wages arises until it elects to do so; though the ‘resuming’ of employment implies that the contract of employment was not extant during the period of litigation. However, the dicta can be interpreted equally to mean that the reinstatement order itself ‘puts the employee back into the same job or position he or she occupied before the dismissal on the same terms and conditions’. Likewise, the reinstatement order (not the employer’s acceptance of the tender of services) ‘is aimed at placing an employee in the position he or she would have been but for the unfair dismissal’.’

And –

‘[35]  The decision of the Constitutional Court in Hendor therefore leaves little doubt that a reinstatement order does not restore the contract of employment and reinstate the unfairly dismissed employees. Rather, it is a court order directing the employees to tender their services and the employer to accept that tender. If the employee fails to tender his or her services or the employer refuses to accept the tender, there is no restoration of the employment contract. If the employer fails to accept the tender of services in accordance with the terms of the order, the employee’s remedy is to bring contempt proceedings to compel the employer to accept the tender of services and thereby to implement the court order.

[36]  As the employees in Hendor in fact tendered their services and were reinstated, the Constitutional Court was not called upon to decide what the position would have been had the employees failed to take up reinstatement pursuant to the order. However, it follows plainly from the reasoning in both judgments that an employee granted retrospective reinstatement is not entitled to any of the contractual benefits of reinstatement, including backpay, without the contract being restored through actual reinstatement.

[37]  As pointed out earlier, this seems at first glance to put an unfairly dismissed employee at a disadvantage when compared to an employee seeking specific performance at common law. That is not entirely true. The protective scope of the unfair dismissal jurisdiction is of course much wider. Specific performance is available only for unlawful termination, whereas a lawful dismissal may be held to be unfair under the LRA. But still, at common law, employees seeking specific performance are not required to tender prospective services to obtain arrear wages for which they have tendered services.

[38]  A requirement that backpay is only due and payable on reinstatement is in keeping with the remedial scheme and purpose of s 193 of the LRA. As Mr Watt­Pringle SC, counsel for the respondents, correctly submitted, if an employee in receipt of a reinstatement order could on the strength of the order alone claim contractual payment for the retrospective part of the order without actually seeking reinstatement (tendering prospective services), it would convert a reinstatement remedy (which requires a tender of services) into a compensation award (which does not), in excess of the statutory limitation on compensation awards. Such an outcome would be inconsistent with the purpose of ss 193 and 194 of the LRA. An unfairly dismissed employee must elect his or her preferred remedy and, if granted reinstatement, must tender his or her services within a reasonable time of the order becoming enforceable. If reinstatement has become impracticable through the effluxion of time, for instance where the employee has found alternative employment, he or she should seek to amend his or her prayer for relief to one seeking compensation.’ [Own emphasis]”

” Prescription Act read as follows:

‘15       Judicial interruption of prescription

(1)       The running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.

(2)       Unless the debtor acknowledges liability, the interruption of prescription in terms of subsection (1) shall lapse, and the running of prescription shall not be deemed to have been interrupted, if the creditor does not successfully prosecute his claim under the process in question to final judgment or if he does so prosecute his claim but abandons the judgment or the judgment is set aside.”

“[37]…Therefore, it cannot be said that the aborted proceedings did not interrupt the running of prescription. They did.

[38]  I conclude, therefore, that the appeal stands to succeed, and that the following order be made:”

against a claim for arrear back pay owing to the applicant in terms of an arbitration award

JS144/2022

Keepile v Lekwa-Teeman Local Municipality (JS144/2022) [2025] ZALCJHB 143 (3 April 2025)

“2]  According to the respondent’s special plea, this court lacks jurisdiction to determine the applicant’s claim for arrear back pay because even though the arbitration award ordered her re-employment, “no agreement to re-employ the applicant was ever concluded by the parties and no employment relationship came into effect”.

“

“[10]  On 2 March 2022, the applicant instituted a contractual claim against the respondent in this court for the amount that the applicant would have earned from the date of the arbitration award (7 November 2014) until the date of resignation (4 December 2019) with interest.

[11]  On 29 August 2023, the respondent filed its statement of response raising a special plea of lack of jurisdiction because no agreement of re-employment was ever concluded and so no employment relationship came into effect.”

“[17]  The issues pertaining to whether or not there was a proper tender of services, whether or not this tender was accepted or rejected or whether or not the respondent complied with a portion of the award and in so doing, indicated that it would not be challenging the award are all matters for the trial court to determine in assessing whether the applicant has made out a case for payment of arrear back pay.

[18]  The court does have jurisdiction to determine the applicant’s claim, whether or not such claim has any merit is for the trial court to determine.”

The determination of the second respondent that the third respondent be reinstated in the position that became redundant has not been considered objectively

JR1563/22

Engineering Council of South Africa v Commission for Conciliation, Mediation and Arbitration and Others (JR1563/22) [2025] ZALCJHB 167 (10 April 2025)

“Although it is trite that reinstatement is the primary remedy for an unfair dismissal, the determination of whether the remedy of reinstatement is appropriate is objective.[3] The determination of the second respondent that the third respondent be reinstated in the position that became redundant has not been considered objectively. The second respondent further did not engage the parties with regard to any period of employment after the dismissal of the third respondent.[4] The Constitutional Court stated the following in the matter of Maroveke v Talane NO and Others:

‘[27]  However, the applicant’s claim for appropriate backpay stands on a different footing and there are reasonable prospects that this Court will materially alter the decision of the Labour Court. The compensation to the wronged party is intended to ‘offset’ the financial loss suffered as a result of a wrongful act. What must be determined is the extent of the loss, while considering the nature of the unfair dismissal. Underlying this is the intent to restore the applicant to the position he would have been in but for the wrongful act by the employer. That restoration must not assume a punitive character. This view is properly enunciated in Davids as follows:

“The compensation which must be made to the wronged party is a payment to offset the financial loss which has resulted from a wrongful act. The primary enquiry for a court is to determine the extent of that loss, taking into account the nature of the unfair dismissal and hence the scope of the wrongful act on the part of the employer. This court has been careful to ensure that the purpose of the compensation is to make good the employee’s loss and not to punish the employer.”

[28]  In restoring the applicant to his previous position, this Court ought to consider both the amount he would have earned but for his dismissal and what he earned while working at Goldfields. As far as this is concerned, the Labour Court did not set out the facts it considered about the earnings of the applicant. It merely issued an order in the following terms:

“The [applicant] is to be reinstated with effect from the date of the Arbitration Award, being 14 October 2014. The [applicant] is entitled to be reinstated from 14 August 2014. For the avoidance of doubt, the employer shall pay the employee backpay equivalent to two months’ wages (R11 294.69 x 2 = R22 589.38) on or before 30 April 2019.’

 “

25]  Without considering the availability of a position to be reinstated in and the failure of the second respondent to engage the parties with regard to the employment of the third respondent subsequent to her dismissal, it is determined that the remedy granted by the second respondent was not judicially exercised and cannot be considered as a remedy that a reasonable arbitrator would have granted in the circumstances.

JR2422/23

“Jindal Mining South Africa (Pty) Ltd v Association of Mineworkers and Construction Workers Union obo Zwane and Others (JR2422/23) [2025] ZALCJHB 229 (19 June 2025)

“

“[22]  In Mashaba v SA Football Association[3] this court held the following:

‘[13]  The right which the LRA provides by virtue of section 193(2) is the right of an employee to be reinstated if their dismissal is found to be substantively unfair and provided none of the subsections are applicable. As discussed above, an order of reinstatement pays no heed to other contractual arrangements that might have come into existence between the employer and a replacement. That is of no concern to the arbitrator or the court and the employer is left to its own devices to sort out the mess it finds itself in having employed someone and then being ordered to re-engage someone in the same position.’

“

“23]  In Xstrata South Africa (Pty) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers obo Masha and Others,[4] the Labour Appeal Court explained the meaning of the phrase “reasonably impracticable” as used in section 193(2)(c) of the LRA in the following terms:

‘[11]    The object of section 193(2)(c) of the LRA is to exceptionally permit the employer relief when it is not practically feasible to reinstate; for instance, where the employee’s job no longer exists, or the employer is facing liquidation, relocation or the like. The term “not reasonably practicable” in section 193(2)(c) does not equate with “practical”, as the arbitrator assumed. It refers to the concept of feasibility. Something is not feasible if it is beyond possibility. The employer must show that the possibilities of its situation make reinstatement inappropriate. Reinstatement must be shown not to be reasonably possible in the sense that it may be potentially futile.’”

[24]  There is insufficient evidence that the employees’ positions no longer exist or that it would be impossible to reinstate the employees.

16.12.1

Meaning of

JA94/24

Khumalo and Another v Commission for Conciliation, Mediation and Arbitration and Others (JA94/24) [2025] ZALAC 54 (29 October 2025)

“[15]  The meaning of “reinstatement” is settled law, as explained by Nkabinde J in Equity Aviation Services (Pty) Ltd v CCMA & others,[4] which is “to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions. Reinstatement is the primary statutory remedy in unfair dismissal disputes. It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers’ employment by restoring the employment contract. Differently put, if employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal”.

[16]  An order for reinstatement in terms of section 193(1)(a) thus contemplates the restoration of the status quo ante, as if the employee had never been dismissed. Reinstatement is often only ordered as of the date of the award, and an employer who reinstates an employee as of that date will be in compliance with the reinstatement order. From that date, the terms and conditions of the employee’s employment, as they existed at the time of dismissal, will again take effect.”

[18]  A distinction must therefore be drawn between the discretion to reinstate (in terms of section 193(1)(a))[7] and the discretion relating to the extent of its retrospectivity. The retrospective of the reinstatement is generally referred to as backpay and is, as pointed out, a separate issue for determination. The Constitutional Court in Equity Aviation explained that: “[i]f a Commissioner of the CCMA order the reinstatement of an employee that reinstatement will operate from the date of the award of the CCMA, unless the Commissioner decides to render the reinstatement retrospective to make it retrospective”.[8]

“backpay for the period between his reinstatement date as per an arbitration award and the date he resumed work .

“

JS442/21

SATAWU obo Sibeko v G4S Cash Solutions (JS442/21) [2025] ZALCJHB 365 (4 August 2025)

“[26]  The Respondent submission that the Applicant failed to tender his services cannot be sustained in that, there is no evidence of an abscondment process which the Respondent said should ensue once a staff member fails to report for duty.

“

“[28]  This Court accepts, without reservation, that the Applicant in fact tendered his services. The Court further accepts without reservation that the tender of service by the Applicant was not accepted by the Respondent.

[29]  It is not in dispute that the arbitrator ordered that the Applicant be retrospectively reinstated without any loss of income. It is therefore automatically clear that the Applicant should be paid backpay in this regard.

“

“30]  The issue of backpay has been clarified by the Constitutional Court in the case of Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration,[Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration [2008] ZACC 16; 2009 (1) SA 390 (CC) at para 36.] this is how Nkabinde J explained reinstatement in Equity Aviation:

“The ordinary meaning of the word ‘reinstate’ is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions. Reinstatement is the primary statutory remedy in unfair dismissal disputes. It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers’ employment by restoring the employment contract. Differently put, if employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal. As the language of section 193(1)(a) indicates, the extent of retrospectivity is dependent upon the exercise of a discretion by the court or arbitrator. The only limitation in this regard is that the reinstatement cannot be fixed at a date earlier than the actual date of the dismissal. The court or arbitrator may thus decide the date from which the reinstatement will run, but may not order reinstatement from a date earlier than the date of dismissal . . . The fact that the dismissed employee has been without income during the period since his or her dismissal must, among other things, be taken into account in the exercise of the discretion, given that the employee’s having been without income for that period was a direct result of the employer’s conduct in dismissing him or her unfairly.””

reinstatement was not reasonably practicable due to the appellant’s financial difficulties and loss of contracts.

JA28/23

BLK Monitoring and Inspectorate CC v Paul and Others (JA28/23) [2025] ZALAC 63 (26 November 2025)

[50]  The appellant is therefore correct in its contention that the court a quo’s reinstatement order and the 18 months’ back pay would unreasonably exacerbate its financial woes. Consequently, it is not reasonably practicable under the circumstances.

[42]  The court a quo found, based on the dictum of the Constitutional Court in SA Commercial Catering & Allied Workers Union v Woolworths (Pty) Ltd[(2019) 40 ILJ 87 (CC) at paras 43 – 47; see also Booi v Amathole District Municipality & Others (2022) 43 ILJ 91 (CC) (Booi) at paras 34 – 43.] (Woolworths), that the appellant had the onus to lead evidence to show that reinstatement of the respondents was not reasonably practicable, but failed. Hence, it ordered the reinstatement of the respondents with 18 months’ back pay.

** Remedies

compensation: [22]…unemployed for three months and is therefore only entitled to compensation equal to three month’s salary. This proposition is fallacious.

JA101/2022

Le Grange v Visser t-a Skukuza Medical Practice and Another (JA101/2022) [2024] ZALAC 61 (18 November 2024)

“[23]  The proposition is based on a misunderstanding of the difference between patrimonial damages and a solatium. In Johnson & Johnson (Pty) Ltd v CWIU[[1998] 12 BLLR 1209 (LAC) at para 41.], 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.’”

The respondent is ordered to pay the plaintiff compensation equal to six month’s salary.

award compensation in terms of section 193(1)(c) of the LRA is reviewable,

JR23/23

Odayar v Wilkes N.O and Others (JR23/23) [2024] ZALCJHB 350 (9 September 2024)

[39]  The decision to award compensation in terms of section 193(1)(c) of the LRA is reviewable, and what is relevant is whether a reasonable decision maker would have arrived at that decision.[26] However, the decision as to the amount of compensation, awarded in terms of section 194(1), constituting the exercise of a narrow discretion, requires that this Court ascertain whether a limited ground for interference exists before it can vary the quantum.

[40]  The assessment of what the employee should have received must, in turn, require the Court to examine factors such as the employee’s length of service with the employer, his or her prospects of finding alternative employment, the financial position of the employer, and so on.[28]

47]    As affirmed by this court previously, the fact that a significant period might have lapsed from the date of dismissal to the date of the judgment is not a bar to reinstatement. An employee whose dismissal is substantially unfair should not be disadvantaged by the delays of litigation where she or he has not unduly delayed in pursuing the litigation.

JR1479/21

Mafete v Commission for Conciliation, Mediation and Arbitration and Others (JR1479/21) [2024] ZALCJHB 418 (17 October 2024)

“Remedy

[63]  The Constitutional Court decision in SA Commercial Catering & Allied Workers Union & others v Woolworths[9] is instructive insofar as the appropriate remedy is concerned. Khampepe J writing for the majority set out the law with regard to reinstatement as follows:

“[43]   It is by now axiomatic that reinstatement is the primary remedy that the LRA affords employees whose dismissals are found to be substantively unfair. In Equity Aviation this court held that the ordinary meaning of the word “reinstate” is –

“to put the employee back into the same job or position [that] he/she occupied before the dismissal, on the same terms and conditions”.

[44]    Accordingly, an employee that is reinstated will consequently resume their employment on the same terms and conditions which prevailed at the time of the dismissal.

[45]    Reinstatement is thus aimed at placing the employee in the position that they would have been in or that they would have occupied, but for the unfair dismissal. Furthermore, reinstatement is intended to safeguard employment by restoring the employment contract.

[46]    Reinstatement must be ordered when a dismissal is found to be substantively unfair unless one of the exceptions set out in section 193(2) applies, namely that the affected employees do not wish to continue working for the employer; the employment relationship has deteriorated to such a degree that continued employment is rendered intolerable; it is no longer reasonably practicable for the employees to return to the position that they previously filled; or the dismissal is found to be procedurally unfair only.

[47]    As affirmed by this court previously, the fact that a significant period might have lapsed from the date of dismissal to the date of the judgment is not a bar to reinstatement. An employee whose dismissal is substantially unfair should not be disadvantaged by the delays of litigation where she or he has not unduly delayed in pursuing the litigation.

[49]    The LRA does not define the term “reasonably practicable”. However, guidance can be sought from various authoritative court decisions. The Labour Appeal Court in Xstrata held:

‘The object of [section] 193(2)(c) of the LRA is to exceptionally permit the employer relief when it is not practically feasible to reinstate; for instance, where the job no longer exists, or the employer is facing liquidation or relocation or the like. The term “not reasonably practicable” in [section] 193(2)(c) does not equate with the term “practical”, as the arbitrator assumed. It refers to the concept of feasibility. Something is not feasible if it is beyond possibility. The employer must show that the possibilities of its situation make reinstatement inappropriate. Reinstatement must be shown not to be reasonably possible in the sense that it may be potentially futile.’

It is thus evident that the term “not reasonably practicable” means more than mere inconvenience and requires evidence of a compelling operational burden.

[50]    An employer must lead evidence as to why reinstatement is not reasonably practicable and the onus is on that employer to demonstrate to the court that reinstatement is not reasonably practicable.” (Own Emphasis)”

retrospective reinstatement

CA10/2024

Golden Arrow Bus Services (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (CA10/2024) [2025] ZALAC 38 (19 June 2025)

[15]…The appellant contends that, given the seriousness of the accusations made by the respondent against senior management, it is difficult to see how any semblance of trust or the prospect of mutual future co-operation could survive. This was because the relationship was beyond ‘strained’, ‘fraught’ or ‘sour’ as in Booi v Amathole District Municipality and Others[(2022) 43 ILJ 91 (CC).] (Booi), but manifestly intolerable, and the Labour Court failed to engage with this in its judgment.

“[19]  In Booi[9], it was stated that:

‘The language, context and purpose of s 193(2)(b) dictate that the bar of intolerability is a high one. The term “intolerable” implies a level of unbearability, and must surely require more than the suggestion that the relationship is difficult, fraught or even sour.  This high threshold gives effect to the purpose of the reinstatement injunction in s 193(2), which is to protect substantively unfairly dismissed employees by restoring the employment contract and putting them in the position they would have been in but for the unfair dismissal.[10] And, my approach to s 193(2)(b) is fortified by the jurisprudence of the Labour Appeal Court and the Labour Court, both of which have taken the view that the conclusion of intolerability should not easily be reached, and that the employer must provide weighty reasons, accompanied by tangible evidence, to show intolerability.’[11]

“

“[20]  It was recognised in Booi that the evidentiary burden to establish intolerability is heightened where the dismissed employee has been exonerated of all charges in that, as a general proposition, to punish employees ‘with unemployment, even if this is accompanied with some compensation, without finding them guilty of any wrongdoing is grossly unfair’.[12] It noted that guidance should be sought from Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others[13], in which it was stated that:

‘If [the conduct] did not justify dismissal I find it difficult to understand why, at the same time, it could nevertheless provide a ground to prevent reinstatement.’[14]

[21]  This led the Court in Booi to make it clear that:

‘It should take more to meet the high threshold of intolerability than for the employer to simply reproduce, verbatim, the same evidence which has been rejected as insufficient to justify dismissal.’[15]”

[28]  It followed that on the undisputed facts before the commissioner, there existed ‘weighty reasons, accompanied by tangible evidence, to show intolerability’ of as required by the Court in Booi. The objective facts cumulatively considered met the high threshold of compelling evidence required, and the decision taken by the commissioner not to reinstate the respondent was not one that a reasonable decision-maker could not have made. The finding that the circumstances surrounding the dismissal were such that the continued employment of the respondent would be intolerable was one that fell within the bounds of reasonableness required. This was so given the respondent’s own conduct in the circumstances surrounding his dismissal and the reasonableness of the appellant’s operational reaction to his conduct.

not seeking reinstatement

JR 2425/22

Imperial Logistics South Africa Group (Pty) Ltd v Leso and Others (JR 2425/22) [2025] ZALCJHB 91 (5 March 2025)

“[47]  In circumstances where the employee does not seek an order for reinstatement, it is improper for the CCMA or court to order such remedy.[15] In Standard Bank of SA Ltd v Leslie and others[16] it was noted that the commissioner may not adopt a mechanical approach to ordering reinstatement as the primary remedy, but must consider the circumstances surrounding the dismissal to determine whether a continued employment relationship would either be intolerable or not reasonably practicable.

[48]  The commissioner failed to recognise that Mr Leso was solely seeking monetary compensation and that a continued employment relationship would be intolerable for both parties.”

16.12.1

Compensation

JR604/24

Govan Mbeki Local Municipality v MATUSA obo Nkosi and Others (JR604/24) [2025] ZALCJHB 315 (15 July 2025)

“71]  In considering compensation, Zondo JP (as he then was) in the matter of Kemp t/a Centralmed v Rawlins[(2009) 30 ILJ 2677 (LAC) (Kemp) at para 20.] outlined the applicable factors to be considered:

‘There are many factors that are relevant to the question whether the court should or should not order the employer to pay compensation. It would be both impractical as well as undesirable to attempt an exhaustive list of such factors. However, some of the relevant factors may be given. They are:

…

(b)   Whether the unfairness of the dismissal is on substantive or procedural grounds or both substantive and procedural grounds; obviously it counts more in favour of awarding compensation as against not awarding compensation at all that the dismissal is both substantively and procedurally unfair than is the case if it is only substantively unfair, or, even less, if it is only procedurally unfair.

(c)   Insofar as the dismissal is procedurally unfair, the nature and extent of the deviation from the procedural requirements; the less the employer’s deviation from what was procedurally required, the greater the chances are that the court or arbitrator may justifiably refuse to award compensation; obviously, the more serious the employer’s deviation from what was procedurally required, the stronger the case is for the awarding of compensation.

(d)  Insofar as the reason for dismissal is misconduct, whether or not the employee was guilty or innocent of the misconduct; if he was guilty, whether such misconduct was in the circumstances of the case not sufficient to constitute a fair reason for the dismissal.

(e)   The consequences to the parties if compensation is awarded and the consequences to the parties if compensation is not awarded.

(f)   The need for the courts, generally speaking, to provide a remedy where a wrong has been committed against a party to litigation but also the need to acknowledge that there are cases where no remedy should be provided despite a wrong having been committed even though these should not be frequent.

(g)   Insofar as the employee may have done something wrong which gave rise to his dismissal but which has been found not to have been sufficient to warrant dismissal, the impact of such conduct of the employee upon the employer or its operations or business.

(h)   Any conduct by either party that promotes or undermines any of the objects of the Act, for example, effective resolution of disputes.’”

Sanction was irrational – Findings of dishonesty and gross negligence warranted dismissal – Seniority role and breach of trust – Ignored severity of misconduct – Failed to consider whether reinstatement was appropriate – Acted unreasonably and ignored extensive evidence – Reinstatement unreasonable – Reviewed and set aside – Reduced compensation granted – Labour Relations Act 66 of 1995, ss 145 and 158(1)(h).

** Res judicata 

meaning

J326/21

University of South Africa v Commission for Conciliation, Mediation and Arbitration and Others (J326/21) [2025] ZALCJHB 25 (3 January 2025)

[62]         Res judicata is available where another court (or tribunal) of competent jurisdiction has already finally pronounced on the same issues between the parties. Fundamentally, the previous judgment must have been given by a competent court, the matter must have involved the same parties and must have been based on the same cause of action with respect to the subject matter or thing. [14]

** Rule Nisi

expiry

J928/2022; J1053/22; J1051/22; J1192/22

Tshabalala and Others v Maluti-a-Phofung Local Municipality and Others (J928/2022; J1053/22; J1051/22; J1192/22) [2025] ZALCJHB 181 (14 May 2025)

“[20]  A Rule Nisi does not have an indefinite and independent lifespan as it is interim and conditional upon confirmation by the Court. In MV Snow Delta Serva Ship Ltd v Discount Tonnage Ltd[3], it was held that the court has no authority to mero motu extend the life of a lapsed order, irrespective of whether or not the relief sought is depended on the existence of the rule nisi. It has also been held that upon the lapse of the Rule Nisi, the respondent party is discharged from the duty of compliance with the terms of that Rule[4], which is to come and show cause why the terms of the Rule should not be confirmed.

[21]  Effectively, once a return day passes without the Rule being extended to a future date by the Court, a mere removal of a matter on the return date or a postponement without more, invariably implies that the Rule Nisi automatically lapses, discharging respondents from the duty of compliance[5].

[22]  In the absence of a revival of the Rule, there are no further obligations on the respondents.”