Beyond jurisdiction: When declaratory relief misses the mark

The Labour Court’s decision in Thembelethu Vico v Department of Forestry, Fisheries and Environment serves as a critical reminder of the limits of declaratory relief under South African labour law. The case revolved around Mr Vico’s attempt to obtain declaratory orders concerning the handling of his disciplinary inquiry, which had already culminated in his dismissal and was under review by the General Public Service Sectoral Bargaining Council.

The legal framework: Section 158(1)(a)(iv) of the LRA

Section 158(1)(a)(iv) of the Labour Relations Act 66 of 1995 empowers the Labour Court to make declaratory orders. However, this power is discretionary and must be exercised within the bounds of the Court’s jurisdiction as defined in section 157 of the LRA. Moreover, declaratory relief is not a substitute for the dispute resolution mechanisms provided under the LRA, such as arbitration or conciliation.

Why the application failed

Judge Lagrange dismissed Mr Vico’s application for several reasons, all rooted in the principle that declaratory relief must be both jurisdictionally appropriate and practically necessary.

• Procedural unfairness already before the Bargaining Council
  • Mr Vico’s complaints about delays and procedural irregularities in his disciplinary inquiry were already part of his unfair dismissal claim before the bargaining council.
  • The Labour Court found no exceptional circumstances that would justify its intervention.
  • As such, the application amounted to a duplication of proceedings, which the Court deemed inappropriate.
• No legal basis for declaring the termination of the chairperson’s mandate unfair
  • One of the applicant’s key prayers was for the Court to declare that the termination of the second chairperson’s mandate was unjust and unfair.
  • However, the applicant failed to identify any provision in the LRA that would empower the Labour Court to make such a determination.
  • The Court held that it had no jurisdiction to assess the fairness of terminating a disciplinary chairperson’s contract.
• Wasteful expenditure claim outside labour court’s purview
  • Mr Vico also sought a declaration that the costs incurred in the department’s recusal applications constituted fruitless and wasteful expenditure.
  • The Court ruled that such matters fall under the Public Finance Management Act 1 of 1999 and are to be determined by accounting officers or the Auditor-General, not the Labour Court.

Key takeaways

• For legal practitioners and employees:
  • Know the limits of declaratory relief: Section 158(1)(a)(iv) does not grant carte blanche to litigants. Relief must relate to disputes within the Labour Court’s jurisdiction and cannot be used to bypass established dispute resolution processes.
  • Avoid duplicative litigation: If a matter is already before a bargaining council or another competent forum, the Labour Court will likely decline to intervene unless exceptional circumstances exist.
  • Understand the role of other statutes: Claims involving financial misconduct or wasteful expenditure must be directed to the appropriate authorities under the PFMA.
• For employers:
  • Maintain procedural integrity: While employers may change disciplinary chairpersons, doing so without clear justification can invite scrutiny and legal challenges.
  • Document decisions carefully: Transparency in disciplinary processes helps mitigate the risk of litigation and supports the employer’s position in any subsequent proceedings.

Final thoughts

This case illustrates the importance of understanding not just the rights afforded by labour legislation, but also the procedural pathways through which those rights must be exercised. Declaratory relief is a powerful tool, but only when used within its proper legal context. For both employers and employees, the judgment reinforces the need for strategic, well-informed litigation that respects the boundaries of jurisdiction and the purpose of specialised forums.

For advice or more information, contact Riona Kalua, head of our Labour and Employment team.