Department Public Works and Roads Northwest Province v Yuze (2025/036061) [2025] ZALCJHB 209 (30 May 2025)

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IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Not
Reportable

Case
No: 2025-036061

 

In
the matter between:

 

DEPARTMENT
OF PUBLIC WORKS & ROADS

NORTHWEST
PROVINCE                                                  

Applicant

 

and

 

NOLUFEFE
PRIMROSE YUZE                                           

Respondent

 

Heard:         
20 March 2025      

Delivered:   
30 May 2025

This judgment was
handed down electronically by circulation to the parties’ legal
representatives by email and publication on the
Labour Court’s
website. The date and time for hand-down is deemed to be on 30 May
2025.

 

JUDGMENT

 

MAFA-CHALI,
AJ

 

Introduction

 

[1] 
In this opposed urgent application, the applicant seeks an
order staying the execution of the order granted in this Court by AJ
Kumalo on 19 February 2025 under case no 2024-097472,
pending the final determination of the applicant’s rescission
application.

 

[2] 
The applicant also prayed that an order be granted for the
applicant to file a rescission application in a period of twenty (20)

days from the date of the order for this application.

 

Background

 

[3] 
The Respondent, Primrose Yuze, was employed
by the applicant on a fixed-term contract which was to expire on 31
July 2024, and she
was based in the office of the Member of
Parliament (MEC) of the applicant (Department of Public Works and
Roads, North West Province).

 

[4] 
In or around April 2023, the applicant
issued a letter to the Respondent to confirm her absorption on a
permanent basis, but subsequently
withdrew the said letter in July
2023, indicating that the letter was erroneously issued.

 

[5] 
In February 2024, the respondent institutes
proceedings in this Court to challenge the withdrawal of the
absorption letter, which
application was opposed by the applicant. It
is apparent that the application is currently still pending and not
finalised.

 

[6] 
On 29 August 2024 after the expiry of the
fixed-term contract, the respondent launched an urgent application to
this Court to interdict
the applicant from terminating her services
and the applicant to continue paying the respondent her monthly
remuneration, pending
the finalisation of the application under case
no J297/20 which is challenging the withdrawal of the absorption
letter. This urgent
application was set down on 3 September 2024
before this Court. On 3 September 2024, the Court refused to grant
the order and stood
down the matter down to 6 September 2024, and
further directed the respondent to provide clarity on the manner of
service on the
applicant. The application was then heard and
finalised on 6 September 2024 in the absence of the applicant.

 

[7] 
The respondent subsequently obtained a
Court order on 19 February 2025 interdicting the applicant from
terminating the respondent’s
services and to continue to pay
the respondent her monthly remuneration, pending the finalisation of
the application under case
no J297/2024.

 

[8] 
The respondent’s attorneys issued a
letter to the applicant on 10 March 2025, asserting that the Court
order interdicting
the applicant from terminating the respondent’s
services and she will report for duty and also demanded to be
remunerated
arising from the unlawful termination of her services.
The applicant sent a letter of response to the applicant on 13 March
2025,
rejecting the demand and indicating the intention to challenge
the Court order, and further indicating that the respondent must
not
report for duty on 14 March 2025 pending the determination of this
urgent application.

 

[9] 
On 14 March 2025, the respondent’s
attorneys sent another letter to the applicant and indicated that the
applicant will report
for duty in terms of the Court order until such
time as the order is set aside or as directed by the competent court.
This then
led to this urgent application launched by the applicant
seeking an order to stay the execution of the Court order dated 19
February
2024 pending the institution of the rescission application
within twenty (20) days from the granting of the relief sought. This

urgent application is opposed by the respondent.

 

Submissions by the
applicant

 

[10] 
The applicant submitted that its attorneys
of record is the State Attorney and the respondent failed to make a
proper service of
the urgent application on 29 August 2024 upon the
State Attorney; as the application was served to the applicant’s
employees
by email and this was against the established rules of the
Court and practice directives governing service and notification of
proceedings. The applicant viewed the respondent’s conduct of
proceedings as improper, unethical and prejudicial to the applicant.

 

[11] 
It was further submitted by the applicant
that the respondent’s legal representatives failed to invite
the State Attorney
to the caselines platform despite the fact that
they were aware that the State Attorney was on record, which is a
clear non-compliance
with Rule 4.1 of the Practice Directive of 2024.

 

[12] 
On 5 September 2024, the applicant’s
official, Mr David Manamela advised the respondent’s attorneys
to direct all correspondences
pertaining to the matter to the State
Attorney in Mafikeng; and the respondent’s attorneys effected
service to State Attorney
by email not in compliance with rule
9(2)(b) of the Labour Court Rules. Service effected by email must be
accompanied by an affidavit
of a person who effected service
providing proof of the correct email address, and confirmation that
the email was sent and confirmation
of the name of the person who
telephonically acknowledged receipt of the email. The service by the
respondent remained defective
and irregular as it failed to confirm
that the urgent application was properly transmitted, and also
confirm with the State Attorney’s
acknowledgement of receipt of the
service by email.

 

[13] 
Regarding urgency, the applicant submitted
that Rule 8 of the Labour Court Rules allows an urgent application
where the applicant
is able to demonstrate urgency and substantial
prejudice. Rule 16A of the Labour Court Rules also permits a
rescission of an order
granted in the absence of a party if good
cause is shown. This application is urgent in that the respondent
reported for duty on
10 March 2025 despite the request by the
applicant not to report for duty pending the finalisation of the
disputes, but the respondent
refused to do so, alleging that she
cannot stop reporting for duty unless the applicant obtains a Court
order.

 

[14] 
The Court order came to the applicant’s
attention on 7 March 2025, although it was granted on 19 February
2025. The applicant
could not take immediate action before the
respondent reported for duty on 10 March 2025.

 

[15] 
On 10 March 2025 and 11 March 2025, the
applicant engaged in consultation and decided to obtain legal
services of private attorneys
on the matter, and they were appointed
on 12 March 2025. Consultations with attorneys and counsel were only
done on 12 March 2025,
and a decision was taken to make an urgent
application to the Court to stay the execution of the order pending
the finalisation
of the rescission application.

 

[16] 
The applicant has allowed the respondent to
render the services, and she is to be remunerated monthly, causing
severe financial
prejudice. If the execution proceeds, the applicant
will suffer irreparable harm as it will be forced to comply with the
order
that was granted procedurally and unfairly as the applicant was
denied an opportunity and right to participate in the proceedings
in
order to place its version before the Court, in violation of section
34 of the Constitution. The respondent will suffer no real
prejudice
if the execution is temporarily halted pending the rescission
hearing. The applicant will not get a substantial redress
in due
course if the matter is not heard on urgency.

 

[17] 
The applicant has established and met the
four (4) requirements for an interim order in that it has established
a prima facie
right in that the order for the respondent was granted against the
applicant in absentia, and the execution thereof shall have
adverse
consequences on the applicant’s rights.

 

[18] 
It was submitted that the applicant will
suffer irreparable harm if this order is not granted and it will be
forced to comply with
an order that was granted and it will be forced
to comply with an order that was granted procedurally and unfairly.
The respondent
is reporting for work each day, and the applicant
suffers financial harm which is irreparable. The respondent is
demanding payment
from the applicant, relying on the order, further
exacerbating the financial prejudice to the applicant.

 

[19] 
Failure to stay the execution will result
in undue expenditure of the applicant’s funds, and this will
cause substantial and
irreparable harm and prejudice. If the order is
executed before the rescission application is determined, the
applicant must reinstate
the respondent unlawfully as its employee,
causing financial loss and wasteful expenditure of the applicant’s
funds as well
as operational disruptions. It is a violation of due
process rights for the applicant not to be given an opportunity to
oppose
the initial order. The applicant shall suffer an irreparable
harm if this order is not granted. If the order is refused, the
applicant
will suffer great prejudice, whereas the respondent will
suffer no real prejudice if the execution is temporarily halted
pending
the rescission application.

 

[20] 
The balance of convenience favours that the
application be granted, as if the order is granted, both parties will
be able to deal
with the pending rescission application without any
prejudice to either party. Granting the order will afford an
opportunity for
the pending proceedings to be fully ventilated before
the Court.

 

[21] 
It was submitted that the applicant has no
other alternative remedy in law to get the respondent to stay the
execution of the order
pending the final determination of the
rescission application. As the respondent refused to report for duty
pending the final determination
of the rescission application, the
only way to protect against the execution of the order is to obtain
the urgent stay of the execution
until the rescission application is
finalised.

 

[22] 
It was submitted that there are reasonable
prospects of success in setting aside the judgment order as it was
procedurally and irregularly
obtained in non-compliance with the
practice directive, as the State Attorney was not invited to the
caselines. Lack of service
is non-compliance with Rule 9(2)(b) of the
Labour Court Rules, as the service by email did not come to the
attention of the State
Attorney, and it was not confirmed by a
service affidavit that receipt of the urgent application was
telephonically acknowledged
by the State Attorney. There is also
non-compliance with Rule 6.1 of the Directive 1 of 2024 in that at
the close of the urgent
court roll on Thursday, the application was
not served on the applicant, but it was alleged it was issued by the
Court the same
day on 29 August 2024, with no proof of such issuance
of the application provided, whereas the order was heard granted 19
February
2025, over 5 months since the application was issued.

 

Submissions by the
respondent

 

[23] 
The respondent raised submitted that the
applicant’s urgency must be struck off the roll as it was
self-created, as the applicant
was at all relevant times aware that
the matter was pending at Court.

 

[24] 
At no point between 7 March 2025 and the
day the order was served did the applicant’s attorneys
endeavour to engage the respondent;
and subsequent to 13 March 2025
when the applicant’s attorneys approached the respondent, the
applicant knew fully well that
there is a possibility that the
respondent would return to her employment at some point if an order
was granted in her favour.

 

[25] 
The applicant served this urgent
application on the respondent’s attorneys on 15 March 2025 at
18h00, and this was on Saturday,
which is not a working day, and the
matter was enrolled on 20 March 2025. In terms of Directive 6 of
2024, the urgent case roll
shall close at noon on Thursday for the
following Tuesday. The applicant has not set out sufficient grounds
for gross deviation
from the Court Rules and directives. The
respondent was not afforded sufficient time to prepare and oppose the
application as she
was afforded only one day, that is 17 March 2025,
to file the notice to oppose and answering affidavit on 18 March
2025, less than
one full Court day. An indulgence requested by the
respondent’s attorneys to oppose and file the answering
affidavit on or
before 20 March 2025 was refused by the applicant’s
attorneys.

 

[26] 
The respondent contended that the applicant
does not stand to suffer any harm at all should she continue with her
employment. She
will suffer irreparable harm if she does not report
for duty, in that she will no longer receive a salary. The applicant
is attempting
to delay the prospects of the respondent to receive her
salary, and she will have no income, and as such, she will not be
able
to afford her day-to-day expenses. If the applicant gets the
interim relief, the respondent will be without an income, and she is

the breadwinner at home with children to support.

 

[27] 
The balance of convenience does not favour
the applicant. If the interim interdict is granted, the respondent
and her children will
be prejudiced for reasons set out above. She
will suffer financial prejudice because of the delay of the Court in
delivering judgment
in the application.

 

[28] 
The applicant has not satisfied the
requirements for the interim relief. The applicant sought from the
respondent not to report
for work in order to familiarise itself with
the matter and to make an informed decision. The respondent did not
have a problem
with the indulgence provided that the respondent was
allowed to report for duty. There was no further communication from
the respondent,
but they then launched the urgent application. The
applicant could have engaged the respondent further on reaching a
settlement,
but did not do so.

 

[29] 
The respondent views herself as a permanent
employee of the applicant. Her contract linked to the term of the MEC
was terminated
without her knowledge by the applicant through the
letter of permanent contract emanating from the organisational
structuring.
The applicant unlawfully attempted to withdraw her
permanent appointment without following the Public Service Directive
Guidelines
for irregular appointments.

 

[30] 
The applicant elected not to oppose the
urgent application launched by the respondent with this Court pending
finalisation of the
declaratory order under case number J297/24. The
respondent could not be sure that the applicant was represented by
the State Attorney
in the declaratory application, and also in the
subsequent urgent interdict.

 

[31] 
The applicant was served with the urgent
application on 29 August 2024. Acting Justice Kumalo stood the
application down from 3
September 2025 to 6 September 2025 and
ordered the respondent’s attorneys to confirm receipt of the
urgent application by
the applicant and to file the service
affidavit. On 4 September 2025, the applicant was called to confirm
receipt of the application.
Mr David Manamela was reached, and he
indicated that he did not receive the email, and asked that it be
resent. On 5 September
2024, the urgent application was sent to Mr
David Manamela, who then later enquired what happened on 3 September
2024 and an email
response was sent to him.

 

[32] 
Mr David Manamela sent an email on 5
September 2024 that the respondent’s attorneys correspond with
the State Attorney, and
the same was done by the respondent’s
attorneys on 4 September 2024 by email. Mr Letsoalo of the State
Attorney was contacted
directly on his cell number 0834180067 on 4
September 2025 by the respondent’s attorneys to acknowledge
receipt of the urgent
application. Therefore, the applicant and the
State Attorney were aware of the urgent application, as Acting
Justice Kumalo wanted
to satisfy himself of the service of the urgent
application upon the applicant, and he granted the order after
satisfying himself
with the service affidavits as such on 6 September
2024. Both the applicant and the State Attorney were served on the
correct email
addresses.

 

[33] 
The applicant did not indicate that it
intends to oppose the urgent application, hence, the respondent did
not invite it on the
caselines. The applicant did not appear in court
on 6 September 2024, hence, the urgent application was granted on an
unopposed
basis. The application was never heard on 17 September
2024, but the order was delayed and only issued and granted by the
Court
on 19 February 2025, after the respondent’s attorneys
made several follow-up communications requesting the order with the

office of the Acting Judge President on 10 September 2024, 27
September 2024, 22 October 2022, 25 October 2024, 29 November 2024,
6
February 2025 and 13 February 2025. Judgment was ultimately received
on 27 February 2025, when the office of the Acting Judge
President
was already suggesting to rehear the matter before another judge.

 

[34] 
It was denied that the respondent would
suffer no real prejudice if the execution of the order is temporarily
halted pending the
rescission application. The respondent already
suffered prejudice as it has already been 5 months since the urgent
application
was heard on 6 September 2024 until the order was
delivered in February 2025. The respondent has been out of work since
July 2024
with no income and no financial ability to take care of her
family. It will be unreasonable for the applicant to expect the
respondent
not to report for duty in instances where the Court order
was granted and the respondent has not been receiving a salary since
July 2024.

 

Applicable
legal principles

Urgency

 

[35] 
Rule 8 of
the Labour Court Rules[1]
provides for urgent applications. An applicant that approaches the
Court on an urgent basis essentially seeks an indulgence and
to be
afforded preference, in order to prevent the prejudice and harm that
may materialise or persist if the conduct complained
of continues.
Central to a determination of whether a matter is urgent is whether
the applicant has, in the founding affidavit,
set forth explicitly
the circumstances which render the matter urgent and the reason why
substantial relief cannot be attained
at a hearing in due course.
Thus, it is required of an applicant to set out adequately in his or
her founding affidavit the reasons
for urgency and to give cogent
reasons why urgent relief is necessary.

 

[36] 
In Jiba
v Minister: Department of Justice & Constitutional Development &
others^[2],
the Court applied Rule 8 of the Labour Court Rules as follows:

‘Rule 8 of the
rules of this court requires a party seeking urgent relief to set out
the reasons for urgency, and why urgent relief
is necessary. It is
trite law that there are degrees of urgency, and the degree to which
the ordinarily applicable rules should
be relaxed is dependent on the
degree of urgency. It is equally trite that an applicant is not
entitled to rely on urgency that
is self created when seeking a
deviation from the rules.’

 

[37] 
It
was succinctly described by the Court in Maqubela
v SA Graduates Development Association & others^[3]
that:

‘Whether a matter
is urgent involves two considerations. The first is whether the
reasons that make the matter urgent have been set
out and secondly
whether the applicant seeking relief will not obtain substantial
relief at a later stage. In all instances where
urgency is alleged,
the applicant must satisfy the court that indeed the application is
urgent. Thus, it is required of the applicant
adequately to set out
in his or her founding affidavit the reasons for urgency, and to give
cogent reasons why urgent relief is
necessary…’

 

[38] 
The factors
the applicant must show are set out in Mojaki
v Ngaka Modiri Molema District Municipality & others[4],
in which the court referred with approval to the following dictum
from East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and Others[5]:

‘… An
applicant has to set forth explicitly the circumstances which he
avers render the matter urgent. More importantly, the applicant
must
state the reasons why he claims that he cannot be afforded
substantial redress at a hearing in due course. The question of

whether a matter is sufficiently urgent to be enrolled and heard as
an urgent application is underpinned by the issue of absence
of
substantial redress in an application in due course. The rules allow
the court to come to the assistance of a litigant because
if the
latter were to wait for the normal course laid down by the rules it
will not obtain substantial redress.’

 

[39] 
The applicant argued that the urgency of the application is based on
the fact that the respondent is reporting for duty
as a result of an
order that was improperly and unlawfully obtained by the respondent,
19 February 2025 as the urgent application
was not properly served on
the applicant in terms of Rule 9 (1)(b)(iv) and Rule 9(2)(b) of the
Labour Court Rules.

 

[40] 
In terms of Rule 9(1)(b)(iv), a document that must be served on any
party may be served in any one of the following ways:

‘if the party is
the State or any organ of state defined in terms of section 239 of
the Constitution, or any department of national
or provincial
government (collectively referred to as an “organ of State”),
by serving a copy both on a responsible employee in the office
of the state attorney situated in the area or province in which the
process is initiated,
and the responsible office of the organ of
State against which the claim is brought.”

 

[41] 
It is therefore mandatory to effect service on the State Attorney of
the urgent application in the province, as the applicant
is the
provincial department as stipulated in Rule 9 (1)(b)(iv). It was not
optional for the direct service by email on the applicant
itself, as
was done by the respondent on 29 August 2024. Subsequent service on
the State Attorney made on 5 September 2024 for
the urgent
application to be heard on 4 September 2024 was clearly a very short
notice for the applicant to oppose and file the
answering affidavit.
Failure to comply with such a mandatory provision renders the service
process defective. The respondent also
acknowledged that the
applicant’s representative, the State Attorney, was not invited
to the caselines. The reason provided
was that the respondent did not
know if the State Attorney was also representing the application in
this matter as well.

 

[42] 
In terms of Rule 9(2)(b), service is proved in court in any one of
the following ways:

‘(b)   if
service was effected by email, by an affidavit of the person who
effected service. The deponent must provide
proof of the correct
email address, confirm that the whole of the email was sent, and
confirm that a named person telephonically
acknowledged receipt of
the whole of the email;’

 

[43] 
The service affidavit by the respondent’s attorneys, dated 6
September 2024, is also defective in that it was made
by the person
who did not effect the service, no confirmation of the email
addresses used, and no telephonic acknowledgement of
receipt of the
email by the person who received the email. Mr David Manamela, of the
State Attorney, did not acknowledge receipt
of the email for service
of the urgent applications. There is also no service affidavit on the
State Attorney by the respondent,
and a telephonic acknowledgement of
receipt of the urgent application on the State Attorney. Compliance
in terms of this Rule is
further also mandatory, and non-compliance
makes it defective. Based on this, it can therefore not be concluded
that there was
a proper service of the urgent application by the
respondent to the applicant. I therefore find that the respondent has
failed
to effect proper service of the urgent application in terms of
the Rules of the Court.

 

[44] 
I fully
agree with the applicant that failure by the respondent to effect
proper service had deprived the applicant of the constitutional
right
in terms of section 34 of the Constitution[6]
to participate in the proceedings on 6 September 2024 when the order
was granted.

 

[45] 
The urgency of this matter has been shown clearly in the applicant’s
affidavit being necessitated by the respondent’s
reliance on
the Court order to report for duty on 10 March 2025. The respondent
has also been remunerated by the applicant pending
this urgent
application as she is rendering her services. The respondent is also
demanding payment of her remuneration for the
past months from the
respondent. I am satisfied that the applicant has been able to
established that it suffers and continues to
suffer financial
prejudice as a result of the Court.

 

[46] 
The urgency cannot be said to be self-created, as argued by the
respondent. If the applicant is not granted the urgent
application,
the applicant will be forced to comply with the order that was not
properly and lawfully obtained.

 

[47] 
The inability of obtaining substantial relief in due course is a
weighty factor in favour of granting the urgent relief,
because to
deny it effectively bars an applicant from accessing its primary
remedy, to stay the execution of the order pending
the determination
of the rescission application of the order granted on 19 February
2025.

 

[48] 
Urgency
must not be self-created by an applicant as a consequence of the
applicant not having brought the application at the first
available
opportunity, as the Court said in Association
of Mineworkers & Construction Union & others v
Northam
Platinum Ltd & another[7].

‘… the more
immediate the reaction by the litigant to remedy the situation by way
of instituting litigation, the better it is for establishing
urgency.
But the longer it takes from the date of the event giving rise to the
proceedings, the more urgency is diminished. In
short, the applicant
must come to court immediately, or risk failing on urgency…’

 

[49] 
In this case, it can be said that the applicant acted immediately
upon service of the order and after realising the insistence
of the
respondent to report for work in terms of the order, pending the
rescission application by the applicant.

 

[50] 
The Court must
also further consider the interests of the respondent party, and in
particular, the prejudice the respondent may
suffer if the matter is
urgently disposed of.

 

[51] 
In Association
of Mineworkers & Construction Union & others v Northam
Platinum Ltd and Another, supra,
the Court held again as follows:

‘But
it is not just about the applicant. Another consideration is possible
prejudice the respondent might suffer as a result of the
abridgement
of the prescribed time periods and an early hearing.’[8]

 

[52] 
Emanating from the provisions of Rule 8 of the Labour Curt Rules and
the principles set out in the authorities stated
above, it is evident
that urgency is not there for taking and an applicant seeking an
urgent relief must adequately and in details
set out in the founding
affidavit the reasons why the matter before the Court should be
treated with urgency.

 

[53] 
In casu, the question is whether the applicant has made out a
case for urgency. For any argument to be sustained, the applicant
must have
acted with due haste when knowledge of the respondents’
prejudicial behaviour or actions is gained, as it is trite that an

applicant is not entitled to rely on urgency that is self-created.

 

[54] 
I find that this application can be entertained on an urgent basis as
it has met the legal requirements of urgency, and
the urgency is not
self-created.

 

Analysis

 

[55] 
The
requirements for interim relief, as sought by the applicant in
casu,
have already been set out in Setlogelo
v Setlogelo^[9].
They are:

55.1  A prima
facie right;

55.2  A
well-grounded apprehension of irreparable harm if interim relief is
not granted and the ultimate relief is eventually
granted;

55.3  The balance of
convenience in favour of the granting of the interim relief; and

55.4  The absence of
any other adequate ordinary remedy.

 

Prima
facie right

 

[56] 
The
applicant for an interim interdict must show that it has a right,
although the right might be open to doubt, and a right which
is being
infringed on or which he or she apprehends will be infringed. The
right may arise out of contract, delict, or it may be
founded in the
common law or on some statute. The right set out by an applicant for
interim relief need not be shown on a balance
of probabilities. Where
the interim relief is sought pendente
lite, the
applicant is required to furnish proof which, if uncontested and
believed at the trial, would establish his or her right.[10]

 

[57] 
In National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others[11]
(OUTA), the
Constitutional Court held that:

‘Under the
Setlogelo test the prima facie right a claimant must establish
is not merely the right to approach a court in order to review an
administrative
decision. It is a right to which, if not protected by
an interdict, irreparable harm would ensue. An interdict is meant to
prevent
future conduct and not decisions already made. Quite apart
from the right to review and to set aside impugned decisions, the
applicants
should have demonstrated a prima facie right that is
threatened by an impending or imminent irreparable harm.’

 

[58] 
Therefore, it means that the applicant has a prima facie right
to approach the court to stay the execution of the Court order
granted in its substance pending the rescission application

determination. But following the dicta in OUTA, the mere right
to approach the court is not sufficient. The applicant has to show
that the prima facie right is threatened by an impending or
imminent irreparable harm, which I find the applicant in this case
has shown.

 

Irreparable
harm

 

[59] 
The applicant must show irreparable harm or damage and a
well-grounded apprehension of a prejudicial act on the part of the
respondent.

 

[60] 
I agree that the applicant will suffer
irreparable harm if this order is not granted, and it will be forced
to comply with an order
that was granted and procedurally and
unfairly so. The respondent is demanding payment from the applicant,
relying on the order,
further exacerbating financial prejudice on the
applicant. At the same time, the respondent has shown that she shall
be prejudiced
and suffer financially due to the loss of income if
this order is granted.

 

[61] 
The Court must also further consider the interests
of the respondent party, and in particular,
the prejudice the respondent may suffer if the matter is urgently
disposed of. I have however taken into account that should the

respondent succeed in the rescission application and the main
application, the respondent’s prejudice shall be mitigated
as
she shall be afforded a substantial redress to be granted back pay
for the period that she would have been absent from work
on the basis
of the successful court order.

 

[62] 
In
Emalahleni
Local Municipality v Phooko NO and Others[12],
it was
held that irreparable
harm will invariably result if there is a possibility that the
underlying causa
may ultimately be removed, i.e. where the underlying causa
is the subject matter of an ongoing dispute between the parties.

 

[63] 
In casu, the
parties are involved in an ongoing dispute regarding the withdrawal
of the permanent appointment letter by the applicant, and
the matter
is still pending in this court. Subsequently, there is also the order
granted by this Court on 19 February 2025 following
the urgent
application launched by the respondent to interdict the applicant
from terminating the services of the respondent. This
application
seeks to remove the underlying causa
to stay the execution of the order of 19 February 2025 pending the
determination of the rescission application.

 

Balance of convenience

 

[64] 
The Court has to consider the balance of
convenience, and in exercising its discretion, to weigh the prejudice
to the applicant
if the relief sought is withheld against the
prejudice to the respondent if the order
is granted. It is the balancing of respective harms and an assessment
of which of the parties will
be least seriously affected or
prejudiced by being compelled to endure what may prove to be a
temporary injustice until the just
answer can be found at the end of
the trial.

 

[65] 
I find that the balance of convenience
favours that the application be granted, as if the order is granted,
both parties will be
able to deal with the pending rescission
application. Granting the order will grant an opportunity that the
applicant be given
an opportunity to rescind the order, and if
successful, then the parties will be able to fully ventilate before
this court whether
the applicant must be interdicted from terminating
the respondent’s services and the applicant to continue paying
the respondent
her monthly remuneration, pending the finalisation of
the application under case no J297/2024.

 

[66] 
Indeed, once the Labour Court has decided the matter, the parties
will have certainty as to the way forward. If the Court
finds in
favour of the applicant, it will be the end of the matter.

 

[67] 
Therefore, in my view, the balance of convenience favours the
applicant.

 

Alternative
remedy

 

[68] 
The final requirement for the grant of an
interim interdict is the absence of another adequate
remedy.

 

[69] 
The applicant submitted that it has no
alternative remedy available but to approach this Court for relief,
as the respondent refused not to report for
duty pending the final determination of the rescission application,
and the only way
to protect against the execution of the order is to
obtain the urgent stay of the execution until the rescission
application is
finalised. The respondent, however, argued that the
applicant failed to engage the respondent’s attorneys but
rather rushed
to court on an urgent basis without discussing the
alternative remedy. It is my considered view that such failure of
further engagements
is not fatal to the applicant’s application
under the circumstances. On the contrary, it may have delayed the
launching of
the urgent application should the parties not be able to
agree after prolonged negotiations.

 

[70] 
I have taken cognisance that the applicant
sent the letter to the respondent’s attorneys, indicating that
it has received
the order granted on 19 February 2025 without its
knowledge and is in the process of familiarising itself with the
contents of
the court file in order to make an informed decision. The
respondent was also asked in a letter not to report for duty pending
the finalisation of the rescission application, but the request was
rejected.

 

[71] 
Under the circumstances, it is my considered view that the applicant
did not have any other remedy than to seek an interim
interdict,
staying the execution of the order pending the finalisation of the
rescission application.

 

Conclusion

 

[72] 
The dispute in an application for an interim interdict is therefore
not the same as that in the main application to which
the interim
interdict relates. In an application for an interim interdict the
dispute is whether, applying the relevant legal requirements,
the
status quo should be preserved or restored pending the
decision of the main dispute. At common law, a court’s
jurisdiction to entertain
an application for an interim interdict
depends on whether it has jurisdiction to preserve or restore the
status quo. It does not depend on whether it has the
jurisdiction to decide the main dispute.

 

[73] 
In National
Gambling Board v Premier of KwaZulu-Natal and Others,[13]
the
Constitutional Court considered interdict proceedings and held that:

‘An interim
interdict is by definition

“a court order
preserving or restoring the status quo pending the final
determination of the rights of the parties. It does not involve a
final determination of these rights and does
not affect their final
determination.”’

 

[74] 
The relief sought by the applicant is
interim in nature as it is to stay the execution of the order pending
the final determination
of the rescission application. There was no
proper service of the urgent application on the State Attorney, and
the State Attorney
was also not invited to the caselines. The State
Attorney was served with the urgent application, although belatedly
so. Subsequently,
the Court order was obtained improperly and
irregularly. Nothing in law would justify the respondent to incur
wasteful expenditure
for paying the respondent’s salary on the basis
of this Court order obtained on 19 February 2025, under the
circumstances it was
obtained.

 

[75] 
I am therefore satisfied that the applicant has met the requirements
as it has stated reasons for the urgency and why
the urgent relief is
sought, and given reasons why the requirements of the Rules of the
Court were not complied with. The urgency
of the matter suffices for
the deviation from the Court rules and directives.

 

[76] 
It is clear that there is a dispute about the applicant’s
withdrawal of the permanent appointment letter issued
to the
respondent, which must be left to the Court to determine if the
withdrawal was done following proper procedures in terms
of the
Public Service Commission Directives. I therefore find that the
applicant is entitled to the interim relief pendente lite.

 

Costs

 

[77] 
The applicant has sought a cost order against the respondent. The
respondent has also opposed the application and prayed
for costs.

 

[78] 
The rule of
practice, that costs follow the result,
does not apply in labour matters,
but the Court has a wide discretion in respect of costs in
consideration
of the
requirements of law and fairness.

 

[79] 
In my view, this is a case where the interest of justice will be best
served by making no order as to costs.

 

[80] 
In the premises, I make the following order:

 

Order

 

1.The
forms and service set forms in the Rules of this Court are dispensed
with in terms of Rule 8, and this application is heard
as a matter of
urgency.

2.An
order is made to stay the execution of the order granted on 19
February 2025 under case no 2024-097472 pending the final
determination
of the applicant’s rescission application.

3.The
applicant is directed to file the rescission application within a
period of twenty (20) days from the date of this order.

4.There
is no order as to costs.

 

G. Mafa-Chali

Acting Judge of the
Labour Court of South Africa

 

Appearances:

For the
Applicant:             
Advocate V Mukwevho

Instructed
by:                   

Kganare & Khumalo Incorporated Attorneys

 

For the
Respondent:         Leigh-Ann
Govender, Vermeulen Attorneys

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