The applicant was offered employment, but the letter of appointment never materialised. The applicant approached the Labour Court to obtain a declaratory order confirming his appointment. The Labour Court held that it was an unfair dismissal claim and he should have referred it to the relevant bargaining council for arbitration. The applicant’s claim for a declaratory order confirming his appointment was deemed inappropriate and was, therefore, dismissed.

Mamabolo v Department of Sport, Arts and Culture (Limpopo Province) and others [2023] 12 BLLR 1315 (LC)

Case summary

During December 2019, the first respondent (“the Department”) advertised the position of Chief Director: Sports and Recreation, and the applicant applied for it.

The applicant, along with other candidates, was interviewed for the position. After the interview, the applicant attended a competency assessment and received a call from the Member of the Executive Committee (“the MEC”) for the Department.

The applicant maintained that the MEC informed him that his application for the position had been successful and that his employment would commence on 1 March 2021. She allegedly also indicated that his appointment letter would be sent to him shortly. The applicant never received his letter of appointment and he did not commence employment on 1 March 2021.

The applicant claimed that between March and October 2021, he had called the Department several times to enquire about the finalisation of the process. He was informed that the process was on­going. While this confused him, he had assumed it meant that there was an administrative delay in finalising his formal letter of employment. On 10 October 2021, the applicant considered the delay to be inordinate and wrote a formal letter to the Department requesting a written outcome to the recruitment process.

On 22 October 2021, the Department responded and informed the applicant that his application had been unsuccessful. The applicant claimed that he was shocked by this response as it was contrary to what the MEC had told him. Then on 20 December 2021, the Department provided the applicant with the requested information which showed that he was the successful candidate and that this decision was sent to the MEC on 5 February 2021 to make the appointment.

The applicant maintained that when he was informed of his appointment, and he accepted it, a contract of employment was concluded. The applicant approached the Labour Court (“the LC”) to seek a declaratory order to the effect that he was appointed to the position of Chief Director: Sports and Recreation as of 1 March 2021, and that he was entitled to full back pay and benefits from that date.

The respondents argued that a declarator should not be granted as the applicant had alternative remedies in terms of the Labour Relations Act No. 66 of 1995 (“the LRA”). They argued that the applicant should have referred a dismissal dispute or an unfair labour practice (promotion) dispute seeing as he was a public service employee applying for a higher position.

As the applicant never commenced employment, the respondents argued that he was effectively dismissed. In these circumstances, the unfair dismissal provisions of the LRA apply and, as such, the LC does not have jurisdiction to adjudicate this dispute as the LRA offers an appropriate remedy.

The LC held that as the applicant believed that he was offered the position, the failure to take him into employment on 1 March 2021 amounted to a dismissal. The applicant should, therefore, have referred an unfair dismissal dispute in terms of the LRA to the applicable bargaining council.

The LC refused to grant the requested interdictory relief. 

Written by Labour Guide