Fatima Maliwa Dlwati v King Sabata Dalindyebo FET College

The applicant instituted proceedings in the Labour Court seeking, inter alia, payment of money from the respondent employer. After the matter had been set down and opposed on the merits, it emerged that the applicant had died in or about July 2020. No executor had been substituted in her place, and no formal application for a stay or postponement was brought. On the day of hearing, the applicant’s counsel requested that the matter be regarded as automatically stayed pending the appointment of an executor, while the respondent sought dismissal of the application due to delay and the applicant’s death.

The application was postponed (rather than dismissed), with the Court indicating that proceedings could not continue until an executor was appointed and substituted, and that time limits could be set for the applicant’s attorneys to report on the stance of the executor.

The judgment clarifies South African labour and superior court procedure on the effect of a litigant’s death. It confirms that, unlike in the Magistrates’ Courts, proceedings in superior courts are not automatically stayed, but no further steps may be taken until an executor is appointed and substituted. The case is also significant for rejecting the reasoning in Basil Read and reinforcing fairness to deceased estates in labour litigation.