Mthethwa v Department of Cultural Affairs and Sport and Another

Citation: [2026] ZALCCT 40

Presiding Judge: Barthus AJ

Court: Labour Court of South Africa, Cape Town

Nature of the Application

[1] The Applicant launched an urgent application seeking: (i) a declaration that the Respondents' failure to allocate meaningful duties constituted an ongoing unfair labour practice; (ii) an order directing assignment of substantive duties; (iii) alternatively, placement in a temporary position consistent with his qualifications; and (iv) an interdict restraining adverse treatment.

Factual Matrix

 [4]–[10] The Applicant was suspended in February 2025 after the Board of the CP Nel Museum became aware of significant financial loss while he was manager. He challenged his suspension at the Bargaining Council; the Arbitrator found the suspension without pay fair. The Applicant launched a review application but subsequently withdrew it. He requested clarity regarding his duties and was notified that his terms remained as communicated on 18 September 2025. An "assignment letter" was provided on 24 February 2026, after the application was launched.

Principles Applicable to Urgency

[12]–[14] Rule 8 of the Labour Court Rules governs urgent applications:

"[12] Rule 8 of the Rules for the Conduct of Proceedings in the Labour Court provides for urgent applications. An applicant who approaches the court on an urgent basis essentially seeks an indulgence and to be afforded preference, 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. [13] In National Union of Metalworkers of SA and others v Bumatech Calcium Aluminates [2016] ZALCJHB 329, the Court held that: 'Urgency must not be self-created by an applicant, as a consequence of the applicant having not brought the application at the first available opportunity. In other words, 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.'"

Conclusion and Order

[15]–[17]

"[15] The Applicant in the present matter did not make out a case for urgency, and the truncated time frames are not justifiable. The urgency is self-imposed. [16] While I did not delve into the merits of the application, I have considered the submissions and am of the view that the Applicant has not made out a case to sustain the relief sought. To consider the merits, the Applicant would have to traverse the urgency hurdle, which he has failed to do. The Applicant has not demonstrated that he has acted diligently and with the urgency that the matter he seeks to pursue requires. [17] This application, like the previous urgent application, is doomed to fail for a lack of urgency.

Order:

1. The application is struck off the roll for lack of urgency.

2. There is no order as to costs."