Dihlabeng Local Municipality v South African Local Government Bargaining Council (SALGBC) (JR38/2024) [2025] ZALCJHB 555 (12 November 2025)

Key Facts

Issues

• The court concluded the application was not brought within a reasonable time. The applicant delayed challenging clause 18.1 for over seven years after its inclusion in the 2016 agreement and failed to justify the delay, which prejudiced respondents and undermined finality.
• The court addressed the procedural irregularity of the applicant attempting to amend the Notice of Motion in a replying affidavit without seeking leave. This unilateral amendment was rejected as a serious procedural defect, binding the applicant to their initial relief sought.
• The court analyzed whether clause 18.1 of the collective agreement is lawful under the LRA and MSA. It found the clause aligns with section 198B of the LRA and section 67(2) of the MSA, requiring permanent appointments for positions of a permanent nature and thus not inconsistent with applicable legislation.
• The court determined whether the application to declare clause 18.1 of the collective agreement unlawful is governed by the Promotion of Administrative Justice Act (PAJA) or the principle of legality. The analysis concluded that the application falls under the principle of legality, as the collective agreement was concluded under the Labour Relations Act (LRA), not PAJA.
• The court found the applicant failed to join the 265 temporary employees affected by the application. This non-joinder constitutes a fatal procedural defect, as the employees were not identified, cited, or given an opportunity to participate in the proceedings.

Holdings

• The application was not brought within a reasonable time. The applicant delayed challenging clause 18.1 of the collective agreement for over seven years after its implementation in the 2016 agreement and its subsequent extension. The Court rejected the applicant's reliance on the 2023 agreement as a basis for a timely application, as it merely continued the same obligations.
• The application was dismissed due to procedural defects, including an impermissible attempt to amend the Notice of Motion in a replying affidavit without seeking leave from the Court. The applicant unilaterally altered the relief sought after opposing affidavits were filed, which the Court deemed a serious procedural irregularity.
• The substantive law analysis confirmed that clause 18.1 of the collective agreement is lawful. It aligns with section 198B of the LRA and section 67(2) of the MSA, which mandate that temporary employees in permanent positions must be appointed permanently. The applicant failed to demonstrate any inconsistency between the clause and applicable legislation.
• The Court found the failure to join the 265 temporary employees as respondents to be a fatal defect. These employees, whose employment status would be directly affected by the declaratory relief, were neither identified nor given an opportunity to participate in the proceedings, violating principles of procedural fairness.

Remedies

Legal Principles

• The court applied the principle against disguised employment, stating that temporary appointments exceeding statutory duration (e.g., section 198B of the LRA) are deemed permanent. Clause 18.1 of the collective agreement aligns with this principle to ensure compliance with labor laws.
• The court relied on the common law principle that applications for judicial review must be brought within a reasonable time. This included evaluating the applicant's delay in challenging the 2016 and 2023 agreements, the prejudice caused to respondents, and the public interest in finality.
• The court exercised its discretion under section 162(1) of the LRA to order the applicant to pay costs for IMATU and SAMWU, citing procedural non-compliance and strategic litigation as justifications.
• The Constitutional Court's decision in Khumalo was referenced to balance the rule of law with the need for finality. The court held that while procedural obstacles should not prevent reviewing unlawful acts, unreasonable delay undermines the rule of law by destabilizing legal certainty.
• The court applied the principle of legality to determine the review of the collective agreement, concluding that the application was governed by this principle rather than PAJA. The court emphasized that the conclusion of a collective agreement by SALGA does not constitute administrative action under PAJA, as it is a contractual agreement under the LRA.

Precedent Name

• Association of Mineworkers and Construction Union and Others v Chamber of Mines of South Africa and Others
• Enoch Mgijima Local Municipality and Another v Dingani and Another
• SACCAWU obo Manzana and Others v Pick 'n Pay, Kimberley and Others
• POPCRU obo Timla v M.A Nozigqwaba and Others
• Weltevrede Kwekery (Pty) Ltd v CCMA and Others
• Khumalo and Another v Member of the Executive Council for Education: KwaZulu Natal

Cited Statute

• Local Government: Municipal Systems Act
• Labour Relations Act
• Promotion of Administrative Justice Act
• Local Government: Municipal Staff Regulations

Judge Name

Passage Text

• The applicant is not allowed to amend the initial relief sought by delivery of a replying affidavit. The applicant is bound to its initial Notice of Motion, as supported by the founding affidavit.
• The applicant waited until 11 January 2024 to bring this application, over seven years after clause 18.1 of the 2016 agreement was agreed upon, and over three and a half years after its extension in June 2020.
• Clause 18.1 simply gives effect to section 198B of the LRA and section 67(2) of the MSA. There is nothing unlawful regarding clause 18.1.