NUMSA obo Seopela v Denel SOC Ltd & another [2026] ZALCJHB 381

Date of Judgment & Seat of Court: 14 October 2026, Labour Court, Johannesburg

Case No: 2026/214432

Name of Judge(s): Tlhotlhalemaje J

Summary of Factual Matrix:

The applicant, Denel's Group Executive: HR and Transformation, was suspended in August 2025 and charged in May 2026 with serious misconduct. Late in the disciplinary enquiry, after her recusal application failed, she and her representative walked out and NUMSA referred a request under section 188A(11) of the LRA to the CCMA, alleging that the discipline was retaliation for protected disclosures. The enquiry continued in her absence; on 14 September 2026 the CCMA enrolled the referral and appointed an arbitrator. On 15 September Ramji AJ declared that the internal hearing had terminated automatically on 14 September; Denel immediately applied for leave to appeal, and on 16 September the chairperson imposed dismissal, which Denel implemented.

In a second urgent application the applicant sought declarators that the CCMA's enrolment constituted a jurisdictional ruling terminating the enquiry by operation of law independently of Ramji AJ's order, that the dismissal was void and her employment continued, and an order under section 18(1) and (3) of the Superior Courts Act that Ramji AJ's order operate pending appeal. The issues were urgency, the legal effect of a section 188A(11) referral, declaratory relief and the section 18 relief.

Summary of Findings:

[21] ‘The Court appreciates the time-sensitive nature of the application. It is, however, correct that the central issue is whether it can be said that the Applicant will not have substantial redress in due course. It is further trite that whether a matter is urgent depends on the relief sought, seen in context with the facts of a case. This approach requires that urgency be determined on a case-by-case, context-specific basis, and in line with the Court’s discretion.’

[22] ‘In my view, this case, given the context in which declaratory relief is sought, raises important issues of law that affect employees’ rights to invoke section 188A(11) of the LRA, as this judgment will further address. Accordingly, the Court will exercise its discretion and accord the matter urgency.’

[33] ‘The Court accepts that Ramji AJ’s order declared the disciplinary enquiry automatically terminated with effect from 14 September 2026. That order is the subject of a pending leave to appeal. This Court also accepts that Modika is the existing authority on the matter, which it is bound to follow. However, I believe the Applicant’s interpretation of Modika deserves scrutiny.’

[34] ‘It is correct that it is not for the Commissioner to accept or reject a referral. The CCMA, and not the Commissioner, performs that administrative function. The Commissioner’s role is confined to the determination of disputes and attempts to resolve them at conciliation.’

[36] ‘It is worth reiterating that jurisdiction ordinarily means the power or competence of a body such as the CCMA to hear and determine disputes between the parties[10]. The CCMA, however, cannot decide upon its own jurisdiction, and can only make rulings for convenience. Whether it has jurisdiction can only be determined by this Court[11]. It follows that jurisdictional rulings are formal decisions by commissioners on whether the CCMA has the legal authority to determine disputes.’

[38] ‘It is trite that a referral of a dispute does not constitute pleadings. At most, litigants ordinarily set out the nature of their disputes perfunctorily when completing LRA forms. In rare circumstances do they set out their respective cases on affidavit.’

[39] ‘Against the above provisions of the LRA and the trite principle arising from Gcaba, the Court, or, in respect of referrals before the CCMA, the arbitrator, must determine jurisdiction, since these issues pertain to legal, not administrative, requirements or obligations. To suggest that anyone within the CCMA other than an arbitrator would qualify as a ‘decision-maker’ for the purposes of determining the primary jurisdictional factors such as whether a protected disclosure was made and in good, or whether the employee suffered an occupational detriment, cannot be correct.’

[40] ‘In my view, accepting a referral or setting it down, let alone appointing an arbitrator, has no jurisdictional significance beyond confirming that the CCMA accepted a statutorily compliant referral and, therefore, enrolled the matter and appointed an arbitrator as the LRA demands it. These factors cannot confer jurisdiction on the CCMA to do anything that it is not empowered to do. In essence, the factors determined by the CCMA at the entry point of section 188A (11) are what were referred to in Bombardier Transportation (Pty) Ltd v Mtiya and Others[13], as ‘true jurisdictional’ issues or objective administrative facts that existed before the appointed arbitrator could determine whether a protected disclosure was made in good faith and whether the Applicant suffered an occupational detriment.’

[41] ‘Denel is therefore correct in pointing out that the CCMA has not, in essence, determined whether the jurisdictional factors set out in Mamodupi and buttressed in Modika were satisfied, nor is there evidence that a ‘decision-maker’ (arbitrator) considered and decided the key jurisdictional requirements.’

[42] ‘Interpreting Modika as the Applicant seeks to do would imply that the mischief and abuse of section 188A(11) of the LRA that the Court warned against in Mamodupi would continue to permeate this process. This is because the strict, fundamental distinction between the CCMA's administrative functions as an institution, and the legal or quasi-judicial functions Commissioners perform during dispute resolution, will remain blurred.’

[43] ‘On the Applicant’s interpretation of Modika, this means that any employee facing serious allegations of misconduct before an internal disciplinary enquiry can abandon that process and approach the CCMA with a statutorily compliant referral to scupper the finalisation of that internal process, and that ought to end a jurisdictional determination. This is not what was envisaged in Modika, nor what the drafters of section 188A(11) of the LRA intended. In any event, and regardless of how Modika is interpreted, the LRA provides no specific provision, and section 188A provides none, for the automatic termination of the internal disciplinary process once a referral under those provisions is lodged, accepted, and the matter enrolled.’

[44] ‘In my view, given the abuse to which the provisions of section 188A(11) remain susceptible, the position in Tsibane v Estate Agency Affairs Board and Others[14], which the Applicant also referred to in her heads of argument, ought to be the default position. The essence of Tsibane is that an employee is entitled to approach the Court for an interdict to invoke the provisions of section 188A(11) where there is no agreement, rather than being granted a free pass to an inquiry by an arbitrator by merely abandoning the disciplinary process, lodging a referral and paying the required fee. In my view, the approach in Tsibane buttresses this Court’s supervisory oversight over the CCMA, a role long recognised in Pep Stores (Pty) Ltd v Laka NO and Others[15].’

[45] ‘Against the above conclusions, it follows that prayer 2.1 of the Applicant’s Notice of Motion, i.e., that the enrolment by the CCMA of the referral concomitant with the appointment of the arbitrator, constituted a jurisdictional ruling by the Commission, cannot be sustained to the extent that other jurisdictional factors alluded to in Mamodupi have not been determined by an arbitrator. All the CCMA did was to perform its administrative and statutory duties by accepting the referral, placing it on the roll and appointing an arbitrator, as it would with other ordinary referrals.’

[46] ‘The second part of that prayer, i.e., whether the decision to accept that referral, and that the internal disciplinary enquiry instituted by Denel terminated automatically by operation of law, is a question that was decided by Ramji AJ on 15 September 2026, and which is a matter of a subject of a leave to appeal. No legal basis or controversy necessitates granting any declaratory order in that regard, especially since, on the Applicant’s version, the disciplinary enquiry was automatically terminated by operation of law.’

[48] ‘Section 158(1)(a)(iv) of the LRA specifically empowers the Labour Court, within its discretion, to grant declaratory orders. In exercising its discretion, the Court will consider the circumstances of the case before it, in conjunction with other factors such as whether other remedies, other than a declaration of rights, are available[17]. Of further importance is that the Court will not grant declaratory relief where the issue raised is hypothetical, abstract, or academic, or where the legal position is clearly defined by statute[18]. Against these considerations, it is trite that declaratory relief should not be construed as a substitute for the purpose-built dispute resolution mechanism established under the LRA.’

[49] ‘In respect of paragraph 2.2 of the Notice of Motion, I am of the view that the basis on which the Applicant seeks a declaratory order, i.e., that the termination of the disciplinary enquiry did not depend, for its effect or operation, on Ramji AJ's order, is unsustainable.’

[50] ‘If the Applicant had consistently held the view that a mere referral of section 188A(11) of the LRA was the basis of a termination of the disciplinary enquiry, there would have been no need to approach this Court on an urgent basis to obtain what, in her view, was already an established legal right flowing from that referral. I find it extraordinary that a litigant would obtain a court order and yet somehow seek to disavow it. This is further in circumstances where the Applicant would, in the same breath, seek to rely on the same order for other consequential relief. Denel has since filed its leave to appeal against Ramji AJ’s order. I fail to see how the leave to appeal could be said not to have been lodged in good faith when Denel merely exercised its rights under section 34 of the Constitution.’

[54] ‘If the operation of the law being referred to relates to the Applicant’s own interpretation of Modika, this Court has already indicated that the interpretation cannot be correct. Even if the interpretation were correct, Denel is entitled to a section 18(1) procedure to the extent it is aggrieved by how the alleged operation of the statute was put into effect, and by the manner that justified abandoning the disciplinary hearing.’

[56] ‘Orders under Section 18(1) read with 18 (3) are indeed extraordinary, requiring three prerequisites to be met. To obtain relief under section 18 in this matter, the Applicant must demonstrate. First, she must demonstrate exceptional circumstances, in terms of section 18(2), to justify reversing the ordinary rule of suspension of the order pending an appeal. Second, she must adduce proof on a balance of probabilities, in terms of section 18(3), that she will suffer irreparable harm if the operation and execution of Ramji AJ’s order is not given interim effect. Third, she must demonstrate, in terms of section 18(3), that Denel will not suffer irreparable harm if the order is put into operation immediately. A consideration of Denel’s prospects of success in this case on appeal is also a relevant factor.’

[59] ‘Because the Court agrees that the facts of this case are extraordinary, given the history and background set out elsewhere in this judgment, these cannot form the basis for the exceptional circumstances the Applicant claimed. Conversely, any exceptional circumstances ought to favour Denel in having Ramji AJ’s order remain suspended pending the leave to appeal.’

[60] ‘The Applicant’s contention that Denel noted its appeal before written reasons were available and had reserved the right to supplement grounds which were yet to be formulated, is neither here nor there in light of the time frames set out in Rule 67 of the Rules of this Court nor can it be construed as mala fide. Whether the termination of the hearing is a consequence of the statute, and not of the order, is a matter for another day, should leave to appeal be granted.’

[61] ‘The alleged irreparable harm the Applicant claims, including reputational and professional harm; to her status as a senior executive of a state- owned company, to her professional standing, emotional distress, prejudice to her career progression or her prospects of securing comparable employment, does not, in my view, demonstrate any exceptional circumstances. These are the ordinary consequences that flow from any disciplinary process against any employee irrespective of seniority. The fact remains that the Applicant still has to answer to what, prima facie, appears to be serious allegations of misconduct against her. In circumstances where a disciplinary enquiry took place before an independent chairperson, which the Applicant abandoned after being on suspension for almost a full year, Denel would clearly suffer greater harm if the order were not suspended pending the leave to appeal.’

[62] ‘In the end, the Court is not satisfied that the Applicant has established the requirements for an order under section 18(3). On the other hand, the facts and circumstances of this case dictate that the order of Ramji AJ remain suspended pending Denel’s appeal.’

[64] ‘The Applicant’s contentions that she will suffer irreparable harm from the alleged violation of her rights arising from Denel’s sanction of a dismissal and the consequences that flow from that dismissal, or that she has no adequate alternative remedy, cannot be sustained.’

[65] ‘Denel is correct in pointing out that the Applicant's alleged harm was largely based on her dismissal and its financial consequences. It is my view that any harm suffered to date, especially financial harm resulting from the internal disciplinary enquiry process, is not irreparable given the alternative remedies available to her. In this regard, the jurisdictional requirements, as already noted, for her section 188A(11) referral still need to be determined. To the extent her claim of protection under the PDA is sustained upon the hearing of the merits of the referral, various remedies are available to the arbitrator to consider at arbitration, inclusive of the restoration of the employment relationship and its concomitant benefits. If her referral is unsuccessful and Denel maintains its position on the dismissal, the Applicant’s remedies lie in either an unfair dismissal or an automatic unfair dismissal dispute referral to the CCMA.’

[66] ‘Having had regard to the relief that the Applicant seeks against the background and facts of this case, in conjunction with the conclusions reached in this judgment on the requirements of the relief sought, it is my view that in line with the principles set out by the Constitutional Court in Sakeliga[25], this Court is constrained to grant any declaratory order flowing directly from the order of Ramji AJ. This applies to whatever consequences flow from that order, inclusive of what was required to be done or had to take place in terms of that order.’

[67] ‘Equally, the Applicant has not shown exceptional circumstances, nor irreparable harm arising from non-execution of a declarator that she herself says merely reflects an ex lege consequence. The court further, having had regard to the requirements of law and fairness, deems it appropriate in the light of the circumstances of this case that no order as to costs be made:’

Relief: The matter was heard as urgent, but the applications for declaratory relief and for an order under section 18(3) of the Superior Courts Act were dismissed. The Court ordered that the operation of Ramji AJ's order of 15 September 2026 remains suspended pending Denel's application for leave to appeal. No order as to costs was made.

Judgment on SAFLII