Molibeli v National Union of Miners (NUM) [2026] ZALCJHB 407

Date of Judgment & Seat of Court: 19 October 2026, Labour Court, Johannesburg

Case No: 2026/230525

Name of Judge(s): Tlhotlhalemaje J

Summary of Factual Matrix:

The applicant, a member of the first respondent union (NUM) since 1998 who was employed by Harmony Gold Mining Company Limited and seconded full-time to the union, served as Secretary of its Free State Regional Committee from November 2024. Charged with misuse of union funds, he obtained several postponements of the disciplinary enquiry on medical grounds, but on 21 April 2026 was informed that he had been found guilty and suspended from the position of Regional Secretary for ten years. The National Executive Committee dismissed his appeal on 7 August 2026 as having been lodged outside the seven-day period in the union's constitution, and communicated that outcome on 13 August 2026.

The applicant first approached the High Court, which on 1 September 2026 held that it lacked jurisdiction and ordered punitive costs against him. He then launched this application on 23 September 2026, on an urgent basis, for orders declaring his removal unconstitutional and invalid and declaring that the union had unlawfully failed to consider his appeal. The union opposed the application on the grounds that it was not urgent, lacked merit and was an abuse of process, and sought punitive costs. The issues were urgency and costs.

Summary of Findings:

[8] ‘The requirements for urgent relief are trite and flow from various authorities[1]. Under Rule 38 of the Rules of this Court, an applicant seeking urgent relief must set out the reasons for urgency; why urgent relief is necessary; and the reasons why the requirements of the rules were not complied with. When urgent relief is sought, the applicant must also explicitly set out why he claims he will not be afforded substantial redress in due course if the matter was brought before the Court by an ordinary, non-urgent procedure.’

[9] ‘The question of whether a matter is sufficiently urgent to be enrolled is underpinned by the issue of the absence of substantial redress in an application in due course. This requirement means urgent relief is not available on a first-come, first-served basis, as the procedural exception is reserved for genuine urgent matters where it is apparent that substantial injustice would occur if the matter is not heard immediately.’

[12] ‘NUM is correct in its contention that the Applicant failed to make out a case for urgency and that any urgency claimed is self-created. From 13 August 2026, he knew the outcome of the appeal and instead chose to approach the Gauteng High Court for relief. It is trite that a failed or fundamentally flawed legal strategy cannot manufacture urgency. Whether urgent relief should be granted depends on external circumstances or imminent harm, not on self-created procedural errors or poor choices in legal strategy.’

[13] ‘Although the applicant’s application before the Gauteng High Court failed on 1 September 2023, the applicant served this current application on NUM on 23 September 2026, some three weeks later. The Applicant said that, having reflected on the ruling, he instructed his attorneys on 20 September 2026 to institute the current application. If there were any urgency, the Applicant would have been compelled to act with the necessary haste to launch this application sooner.’

[14] ‘Even if the Court could excuse the lack of haste in approaching it, the application’s case nonetheless falters on the second leg of an inquiry into urgency. Under the rubric of ‘urgency’, at paragraph 56.18 of the founding affidavit, the Applicant averred that he would not obtain substantial redress in due course, and that by the time the matter is heard on a normal basis the term for the current regional office bearers would have come and gone. The founding affidavit does not make clear the basis of this contention.’

[16] ‘The difficulty with the Applicant’s basis for urgency is that he unfortunately assumes that a position in a union structure is a right or an entitlement. He was elected, not anointed, to the position of Regional Secretary effective from November 2024, while he remained officially employed by the Fifteenth Respondent (Harmony). Under clause 8.2 of the union’s constitution, he was seconded to serve the union in a full-time capacity for a three-year term of office, but remained employed by Harmony. In effect, his removal from the Regional Committee does not prejudice his continued employment with Harmony; it merely affects his position as a Regional Secretary. A mere contention that he will be deprived of a motor vehicle subsidy cannot form the basis of an allegation that he will not obtain substantial redress in due course if urgent relief is not granted.’

[17] ‘The issues surrounding any alleged unfairness in the process leading to his removal as Secretary of the Regional Committee, or any allegation of a violation of the union’s constitution, ought not to detain this Court on the urgent roll. These are issues that can be determined on a non-urgent basis, at another time where substantial redress can be obtained in due course. That is, to the extent that there is merit in his claim.’

[18] ‘In conclusion, where the requisite degree of urgency is absent, and an applicant fails to establish that substantial redress is not available in due course, the matter ought to end, and the application ought to be struck from the roll without considering the merits of the main claim.’

[19] ‘NUM sought an award of punitive costs on the basis that this application was an abuse of Court process. I agree and further add that the application was indeed ill-conceived. More specifically, the Applicant failed in the High Court on the same facts and circumstances as in this application. Worst still, the High Court had mulcted him with a punitive costs order. After the High Court ruling, he ought to have stepped back and properly reflected on the path he sought to pursue.’

[20] ‘This matter ought not have been on this Court’s overburdened urgent roll. The Applicant's right to approach this Court, contrary to the submissions made on his behalf, did not, however, imply that he should abuse that right. The Court holds that this application was clearly an abuse of court process, and that, on a consideration of the facts and circumstances of this case, combined with the requirements of law and fairness, the Applicant has no basis to be exempt from the costs.’

Relief: The application was struck from the roll for lack of urgency, the Court holding that the urgency was self-created and that substantial redress was available in due course. The applicant was ordered to pay the first respondent's costs, the application having been found to be an abuse of process.

Judgment on SAFLII