EDGRAY DISTRIBUTORS (PTY) LTD t/a JUMBO CLOTHING v SOUTH AFRICAN COMMERCIAL CATERING AND ALLIED WORKERS UNION AND ANOTHER [2026] ZALAC 16

Date of Judgment & Seat of Court: 14 April 2026; Labour Appeal Court of South Africa, Gqeberha

Name of Judge(s): Djaje AJA, Collis AJA, Moshoana AJA

Summary of Factual Matrix: 

On 12 August 2020, the appellant dismissed approximately 68 employees for reasons related to operational requirements. 

The trade union referred a dispute alleging the dismissals were automatically unfair under section 187(1)(c) of the LRA, alternatively substantively unfair. The union amended its statement of case, alleging procedural irregularities (lack of transparency, failure to consult in good faith, non-disclosure of material information) as grounds supporting substantive unfairness. 

The appellant raised a point in limine seeking to strike out allegations of procedural irregularities, arguing these were impermissibly raised in a section 189A referral. The Labour Court dismissed the strike-out application. The appellant appealed.

Summary of Findings:

"[9] This Court fully agrees with the sentiments expressed by the Labour Court. This Court in Woolworths (Pty) Ltd v SACCAWU and others stated the following: '[22] The distinction between procedural and substantive fairness lies close together. It is well-known that procedural irregularities may result in substantive unfairness.'"

"[10] It is indeed correct that in a case of dismissal for operational requirements, issues of procedure and substance may be inextricably intertwined. There is nothing to prevent a pleader to allege any procedural irregularities – this is known as facta probantia (subsidiary facts, evidence to prove the primary material facts), to prove substantive unfairness as facta probanda (essential material facts to establish a cause of action or defence). When the statement of case is viewed holistically, the case alleged by the trade union is primarily that of automatically unfair dismissal alternatively a substantively unfair one."

"[13] It is rested law that an appeal lies against the order and not the reasons for the order. The order to be attacked on appeal is that of dismissing the strike out application. Indubitably, the order is interlocutory in nature and effect. Section 166(1) of the LRA specifically provides that an appeal lies against the final judgment and final order of the Labour Court. Accordingly, statutorily, no appeal should lie against an order that is not final in nature and effect."

"[25] Mr Kirchmann conceded that the striking out had nothing to do with the main claim of automatically unfair dismissal, yet the entire case was set back five years because of the striking out quest. This, as correctly submitted by Mr Euijen, was a delaying tactic, suggesting that the appellant is litigating in a frivolous and vexatious manner. Forging ahead with an appeal against an interlocutory order was another foray or delaying tactic demonstrating vexatiousness and frivolity."

Basis for Opinion: The Court held that: 

(i) procedural irregularities may properly be pleaded as facta probantia to prove substantive unfairness in operational requirements dismissals; 

(ii) the order appealed against was interlocutory and non-appealable under section 166(1) of the LRA; 

(iii) even assuming appealability, the appellant failed to establish the requirements for a strike-out under Rule 23(2), namely that the allegations were scandalous, vexatious, or irrelevant and that prejudice would result if not struck out; and (iv) the appeal constituted a frivolous and vexatious delaying tactic inimical to the effective resolution of labour disputes.

 Order:

"1. The appeal is dismissed with costs, which include the costs of employing two counsel. The costs of the senior counsel are to be taxed or settled at scale C and those of a junior counsel at scale B."