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[2022] ZAECBHC 2
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Lumkwana v Superintendent-General Department of Health Eastern Cape Province and Another (1/2022) [2022] ZAECBHC 2 (2 March 2022)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
Case No. 1/2022
In
the matter between:
TULANI
LUMKWANA
Applicant
and
SUPERINTENDENT-GENERAL
DEPARTMENT OF
HEALTH
EASTERN CAPE
PROVINCE
First Respondent
SUPERINTENDENT-GENERAL
DEPARTMENT OF
PUBLIC WORKS
EASTERN CAPE
PROVINCE
Second Respondent
JUDGMENT
HARTLE
J
[1]
The
applicant, a logistic support clerk presently in the employ of the
first respondent, issued out an application on an urgent
basis
against both respondents in which she seeks an order directing the
first respondent to comply with a prior order of this
court dated 7
January 2022 within five days and for a further order that the first
“respondent’s” (Sic) “be
directed (to) show
cause as to why his failure to implement and comply with the order
issued by Honourable Judge Mbenenge JP should
not be declared to be
in contempt of court…”
[2]
Despite
the obvious nature of the application, the applicant vehemently
disavowed that these are contempt proceedings.
[3]
Mr.
Mdunyelwa who appeared on behalf of the applicant insisted that it
was instead an application to compel. This notion is
instantly
negated by both the fact that the application was “issued”
against the same parties and under the same case
number as concerns
the prior order and treated as if it were an interlocutory
application or an adjunct to the original proceedings.
Further
there can be no doubt from the applicant’s founding affidavit
that the current proceedings arise from the alleged
non-compliance by
the respondents (it is not clear which of the respondents is supposed
to be at fault) with an incident of the
prior order and every
manifestation thereof is aimed at vindicating that situation.
[4]
The
notice of motion echoes that this is what the application is all
about, namely the contempt of a court order and the applicant’s
attorney, Mr. Tsipa, also presaged the exigency of the matter in the
certificate of urgency provided to the duty judge as a precursor
to
the application on the first respondent’s failure to comply
with the said order.
[5]
The
full order of 7 January 2022 is set out below:
“
1.
The Applicant’s non-compliance with Uniform Rules of this Court
regarding service and time frames is hereby condoned.
2.
The Applicant’s non-compliance with the provisions of section
35 of the General Law Amendment Act 62 of 1955
is hereby condoned;
3.
A rule Nisi do hereby issue calling upon Respondents to show cause,
if any, on Tuesday 18 January 2022 at 09h30 or
so soon thereafter as
the matter may be heard, why an order in the following terms should
not be granted;-
3.1
The
1
st
Respondent’s failure to pay the Applicant salary is hereby
declared to be unlawful and is set aside.
3.2
The
1
st
Respondent pay the Applicant’s salary for the months ending in
November and December 2021 within five (5) days from the date
of
service of this order on the respondents.
3.3
That
the Respondents is hereby interdicted from making any further
deductions from the Applicant’s salary without following
due
processes.
3.4
The
1
st
Respondent pay costs of this application.
4.
Paragraph
3.3 of this order shall operate as interim interdict pending the
finalization of this application.
5.
The
respondents deliver their answering affidavits, if any, by 14 January
2022, upon the delivery of the relevant notice to oppose
by Tuesday
11 January 2022.”
[6]
It
is immediately evident that paragraph 3.3 of the rule
nisi
was intended to operate as an interim interdict and is by all
accounts an ostensibly enforceable order of court. I was
informed
from the bar however that the original application is
opposed and that the rule
nisi
of 7 January 2022 was extended, by agreement, on 18 January to 1
March 2022 to allow the respondents to oppose the granting of
the
final relief sought including confirmation of the interim interdict
sought to be enforced.
[7]
The
applicant complains that since she transferred as an employee from
the second respondent’s to the first respondent’s
department with effect from 1 November 2021, she was not paid her
salary in January 2022. (It is not clear if she meant to
suggest that the November and December 2021 salaries were also not
paid because she justifies urgency on the basis of
inter
alia
her not being able to pay her medical aid subscriptions since
November 2021. Reading between the lines though her concern generally
arises from the fact that the smooth flow of the payment of her
regular salary has been impacted since her internal transfer from
one
department to the other.)
[8]
The
certificate of urgency is undated but my colleague, Mjali J, was
ostensibly approached on 3 February 2022 on the basis provided
for in
rule 12 (d) (ii) of the Joint Rules of Practice for the issue of a
directive. Self-evidently she did not regard the matter
as urgent
enough to warrant the enrolment of the proposed application on a day
other than one on which the motion court sits.
[1]
She, however, directed the applicant to:
“
Serve
papers on the respondent and set the matter down for hearing in the
Motion Court on Tuesday 8/2/20”
[2]
[9]
When
the matter appeared before me in motion court in East London on
Tuesday, 8 February 2022 all that was in the court file, apart
from
the papers filed in the prior application, was the said directive
which obviously made no sense in relation to the first application
as
the return date for that matter was still in the offing. Mr.
Mdunyelwa brought me up to speed about the subsequent, present,
application. Since the court file was lacking, I stood the matter
down until Thursday, 10 February 2022, for the papers of the
second
issued application to be supplemented. On the 10
th
Ms. Mqobi (who I am told is also on record in the main application)
appeared on behalf of the respondents. She indicated
that she
had been informed about the application by telephone and asked to
attend at court to inquire what was happening since
she understood
that the matter was only due to be called again on 1 March 2022.
[10]
The
papers in my file now contained the present application (with the
same case number as the prior application) date stamped 9
February
2022 by the registrar,
[3]
a
notice of motion calling upon the respondents to appear on “Friday,
8
th
February 2022” (sic), a prayer for a rule with no detail
indicated by when the respondents should show cause, a warning to
the
respondents to deliver notice to oppose on or before 16h00 on 7
February 2022 (“which date had ostensibly passed by the
time
the application was issued by the registrar”), no indication as
to when the respondent should, if they wished to do
so, file
answering affidavits, a founding affidavit deposed to only on 7
February 2022, and an undated certificate of urgency by
Mr. Tsipa.
[11]
It
appears further that service was effected on the office of the Chief
State Legal Advisor at 15h44 on 7 February 2022 (sixteen
minutes
before the time the respondents were called upon to deliver their
notice to oppose), this despite the fact that the details
and
reference number of the State Attorney are indicated in a footer to
the notice of motion as the already on record legal representatives
for the respondents.
[12]
As
an aside all of this suggests to me that the applicant was not trying
very hard to give effective notice of an application that
purports to
seek very significant relief against the respondents.
[13]
It
just so happened that I could not deal with the application on the
tuesday because of an absence of the papers although I suspect
that I
would probably have been prevailed upon to grant yet another further
interim order if the obstacle of the missing papers
had not presented
itself to the applicant. Further, because the roll was crowded
on Thursday, 10 February 2022, the matter
was rolled even further
until Friday, 11 February 2022. I should add that I indicated
to the parties while the matter was
standing by waiting to be called
that they should agree a timeframe to allow the respondents to put up
answering affidavits, but
Mr. Mdunyelwa remained resolute that his
client wished to press in for interim relief because of the claimed
urgency regardless
of the respondents being afforded an opportunity
to respond.
[14]
Given
the unique circumstances under which the respondents had been hustled
to court on very short notice (if it can count for notice
at all),
Ms. Mqobi placed on record at the outset when the matter was called
on Friday 11 February 2022 that the applicant, since
her internal
transfer from the Department of Public Works to Health, had indeed
not been paid her salary but added that this was
due to circumstances
beyond the first respondent’s control. I was informed
from the bar that the applicant owes monies
to the State because of
unpaid incapacity leave taken by her preceding the transfer, and that
this first needs to be resolved on
the payment system before she can
receive regular payments again or her transfer can be properly
captured on the payroll system.
Inter
alia
this will require her co-operation to sign off on certain
documentation and other protocols to be put in place which has not
happened.
[15]
I
gathered from my interaction with counsel over the two days while
they were waiting for the matter to be called that there is
a serious
sticking point, but this in my view even more so justified the
respondents being given time to put up a formal answer
and
explanation to the applicant’s simplistic allegation of the
failure of both respondents to have complied with the terms
of the
interim interdict, bare of the reasons therefor that to my mind would
obviously negate any suggestion of wilful
male
fides
on their part in having failed to give effect to the interim
interdict of 7 January 2022 by withholding payments to her.
[16]
Be
that as it may, and not surprisingly, certain antipathy on the part
of the applicant contributed to the obvious stalemate between
the
parties because of the fact that the respondents had missed their
deadline of 14 January 2022 to deliver their answering affidavits
in
the main application suggesting a lack of appreciation of the
applicant’s situation and respect for the interim order,
especially paragraph 5 thereof which in all probability had been
included in the order by Judge President Mbenenge consonant of
the
fact that case flow management is applicable even in respect of
urgent opposed applications.
[4]
[17]
Given
Mr. Mdunyelwa’s insistence that the issue of interim
relief be addressed regardless of what directives I might
issue
concerning the exchange of papers to elucidate why the applicant
hasn’t yet been paid, and the filing of heads of argument
etc.,
Ms. Mqobi (arguing from the bar) took issue with the manner of
service upon the respondents (indeed service ought indeed
to have
been effected in terms of rule 4 (1) A (Aa) yet the papers were
served on the offices of the Chief State Law Advisor)
[5]
;
the absence of any essential allegations in the applicant’s
papers to sustain a complaint of contempt of court (this was
conceded
as much by Mr. Mdunyelwa’s who insisted that this was rather an
application to compel)
[6]
and,
more importantly, the absence of any urgency in the matter.
[18]
It
is in respect of the latter submission that I am inclined to find in
favour of the respondents.
[19]
There
appears to be a misconception that a litigant who succeeds in getting
a directive from the duty judge in terms of par 12 (d)
(iii) of the
Joint Rules of Practice has somehow also managed to navigate
successfully through the narrow gate of entitlement to
have the
matter regarded as one of urgency. In this instance however the
duty judge did no more than suggest that it was
not a matter that
warranted her attention on a non-motion court day and that the
applicant could try her luck, as it were, by dealing
with the
application in accordance with practice rule 12 (
a
)
if so advised. But before a litigant can do so he/she must
still comply with the peremptory provisions of uniform rule 6
(12)
which provides as follows:
“
(12) (
a
)
In urgent applications the court or a judge may dispense with the
forms and service provided for in these rules and may dispose
of such
matter at such time and place and in such manner and in accordance
with such procedure (which shall as far as practicable
be in terms of
these rules) as it deems fit.
(
b
)
In every affidavit or petition filed in support of any application
under paragraph (a) of this subrule, the applicant must set
forth
explicitly the circumstances which is averred render the matter
urgent and the reasons why the applicant claims that applicant
could
not be afforded substantial redress at a hearing in due course.”
[20]
In
this instance the applicant, apart from repeating the same grounds of
urgency related in the prior/main application concerning
her state of
penury by the absence of her salary, failed to mention at all why she
could not be afforded substantial redress at
a hearing in due
course. Indeed, why could she not simply wait out the return
date of the main application in which the very
same complaint is
already under consideration? Alternatively, is the answer not
suggested in Bobotyana v Dyantyi?
[7]
In this respect, could she not have asked the registrar for the
hearing to be moved up on the unopposed roll as an “uncontested
opposed application” in terms of joint practice rule 15 (k) (i)
in the absence of the respondents having filed their answering
affidavits as directed in the order of 7 January 2022? Further
alternatively could she not have asked for an audience with a judge
to issue further case management directives? Whatever the case, the
applicant has simply failed to meet the requirement indicated
by
uniform rule 6 (12) (b) by suggesting why she would be comprised
redress wise by a hearing in due course of the
present
application.
[21]
Concerning
objective urgency, although the applicant disavows that the present
application amounts to contempt proceedings, it makes
little sense in
my view to ask for a second interim order for more or less the same
relief as claimed in the main application still
under consideration
pending the return date of the 7 January 2022 order. I mention
further that despite the reference to
a rule
nisi
,
it is apparent from the applicant’s notice of motion that no
interim relief is actually being requested beyond the declarator
prayed for that the respondents are supposedly in contempt of a court
order. So where is the urgency then, not in relation to the
main
application, but to the present one and how would the proposed order
vindicate the underlying complaint which is the applicant’s
dire financial situation? The question begs itself.
[22]
There
is the further misconception that a directive issued by a duty judge
in terms of joint rule of practice 12 somehow absolves
a litigant
from adapting Form 2 (a) to meet the claimed exigency of any
particular situation. In this instance it is obvious
that the
applicant could not even be bothered to indicate a return date in her
notice of motion. Mr. Mdunyelwa argued that
this was
deliberately left open for the court to fix a return date, but a
litigant must be properly informed by a notice of application
what
relief will be sought and when so that an election can be made to
oppose or not to oppose, or perhaps to come on the indicated
return
date at the designated time and to the indicated venue to show cause
why the relief claimed should not be granted.
Leave aside this
defect, the applicant acted extremely late on Mjali J’s
directive, purporting to serve the application on
7 February and
ostensibly issuing it only on 9 February 2022, defeating the purpose
of her directive which was to ensure that the
respondents received
timeous notice of the proposed application. Such casualness
self-evidently contradicts the notion that the
matter was urgent to
start off with.
[23]
I
have mentioned above the other shortcomings in the applicant’s
notice of motion or lack of attention to proper procedure.
[8]
[24]
It
is up to a litigant when seeking the condonation of the court in
proceedings launched on an urgent basis not only to establish
urgency
on a substantive basis, also but to ensure that the form of notice
used is adjusted with as little prejudice to the respondent
as is
possible, due regard being had to that litigant’s right to be
effectively heard and to give his/her own account of
the situation
bearing upon the relief being sought. Leaving aside the fact
that the application was “served”
sixteen minutes before
the cut off time by when the respondents had to indicate if they
wished to oppose the relief sought by the
applicant, nothing is said
in the notice of motion at all regarding the respondents’
election should they wish to oppose.
[25]
The
applicant’s representatives in this matter further stubbornly
refused to allow the respondents time to file an answer
or to agree
to time frames in this respect despite in effect seeking final relief
if regard is had to the manner in which the notice
of motion was
crafted. It seems that the applicant believed that she was home
dry by the mere fact of Mjali J’s directive
and that that was
that.
[26]
The
court in Caledon Street Restaurants CC v D’Aviera
[9]
made it clear what the procedure and principles are when a party
seeks to litigate on an urgent basis as follows:
“
In
the assessment of the validity of a respondent's objection to the
procedure adopted by the applicant the following principles
are
applicable. It is incumbent on the applicant to persuade the court
that the non-compliance with the rules and the extent thereof
were
justified on the grounds of urgency. The intent of the rules is that
a modification thereof by the applicant is permissible
only in the
respects and to the extent that is necessary in the circumstances.
The applicant will have to demonstrate sufficient
real loss or damage
were he to be compelled to rely solely or substantially on the normal
procedure. The court is enjoined by rule
6(12) to dispose of an
urgent matter by procedures "which shall as far as practicable
be in terms of these rules". That
obligation must of necessity
be discharged by way of the exercise of a judicial discretion as to
the attitude of the court concerning
which deviations it will
tolerate in a specific case. Practitioners must accordingly again be
reminded that the phrase " which
shall as far as practicable be
in terms of these rules" must not be treated as
pro
non scripto.
The
mere existence of some urgency cannot therefore necessarily justify
an applicant not using Form 2 (a) of the First Schedule
to the rules.
If a deviation is to be permitted, the extent thereof will depend on
the circumstances of the case. The principle
remains operative even
if what the applicant is seeking in the first instance, is merely a
rule nisi without interim relief. A
respondent is entitled to resist
even the grant of such relief. The applicant, or more accurately, his
legal advisors must carefully
analyse the facts of each case to
determine whether a greater or lesser degree of relaxation of the
rules and the ordinary practice
of the court is merited and must in
all respects responsibly strike a balance between the duty to obey
rule 6(5)(a) and the entitlement
to deviate therefrom, bearing in
mind that that entitlement and the extent thereof, are dependent
upon, and are thus limited by
the urgency which prevails. The degree
of relaxation of the rules should not be greater than the exigencies
of the case demand
(and it need hardly be added these exigencies must
appear from the papers). On the practical level it will follow that
there must
be a marked degree of urgency before it is justifiable not
to use Form 2(a). It may be that the time elements involved or other
circumstances justify dispensing with all prior notice to the
respondent. In such a case Form 2 will suffice. Subject to that
exception it appears that all requirements of urgency can be met by
using Form 2(a) with shortened time periods or by another adaptation
of the form, e.g. advanced nomination of a date for the hearing of
the matter, or omitting notice to the registrar accompanied
by
changed wording where necessary. Adjustment, not abandonment of Form
2(a) is the method.”
[10]
[27]
In
the circumstances of the present case the applicant merely repeated
the urgency occasioned by her penury as was indicated in
her prior
application and failed to bring home why it was so essential on an
urgent basis to seek what is in effect a mere declarator
concerning
the contempt of one or both of the respondents. Further there
appears to be no valid reason why the respondents
should have been
railroaded into court at extremely short notice and in complete
disregard of their entitlement to say why they
should not be declared
to be in contempt of court and, if a declarator that they are in
contempt is to be made, why they should
be censured under the
circumstances. For this reason, the deviation from the
customary form of a notice of motion cannot
be justified. The
applicant retains her right in the main application to deal with her
concerns on the return date and to
argue for a final order. She
has not convinced me that condonation should be granted in all the
circumstances.
[28]
Be
that as it may, I am not satisfied that the application deserves to
be dismissed outright by reason of Ms. Mqobi’s admission
from
the bar that her clients have not complied with the prior order or
conversely put, have persisted in making deductions against
the
applicant’s salary which for all intents and purposes appear to
have no legal basis. In the circumstances
it is
appropriate in my view to strike the matter from the roll for want of
urgency rather than dismissing it out of hand.
[29]
Ms.
Mqobi asked for costs
de
bonis propriis,
but I am not inclined to grant any costs in favour of the respondents
at all. Whilst the applicant’s failures here
relate to
form and procedure, the respondents appear to have done little to
allay the applicant’s representative’s
complaint that
they are not concerned for their admitted failure to have complied
with the interim order. On the other hand, the
applicant must
appreciate that an abuse of the urgency procedure on the basis which
I have outlined above will not lightly be tolerated.
[30]
I
propose therefore to make no costs order (the absence of one being
censure enough for the applicant) as neither party deserves
to be
rewarded in all the circumstances.
[31]
In
the premises I issue the following order:
1.
The
second urgent application is struck from the roll.
2.
There
is no order as to costs.
________________
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
8, 10 and 11 February 2022
DATE
OF JUDGMENT: 2 March
2022
*Judgment
delivered electronically at 09H30 on this date by email to the
parties.
APPEARANCES
:
For the
applicant: Mr. Mdunyelwa instructed by Y Tsipa Attorneys
c/o Bacela Bukula & Associates, East London (ref.
Mr. Tsipa).
For
the respondents: Ms. Mqobi instructed by the State Attorney, East
London (ref. Mr. Dlanjwa).
[1]
The Joint Rules
of practice provide as follows in respect of urgent matters:
“
12.
Urgent Applications
(
a
)
In all applications brought other than in the ordinary course in
terms of the Rules of Court, the legal practitioner who appears
for
the applicant must sign a certificate of urgency which is to be
filed of record before the papers are placed before the Judge
and in
which the reasons for urgency are fully set out.
(
b
)
The certificate of urgency shall set out the grounds for urgency
with sufficient particularity for the question of urgency to
be
determined solely therefrom without perusing the application papers.
(
c
)
In matters contemplated in Rule 12 (
a
) above, the registrar
shall issue the papers and shall place the matter on the roll of
cases as may be provided for in the notice
of motion commencing the
application.
(
d
)
In all urgent applications in which it is sought to enrol the matter
other than on a day normally reserved for the hearing of
motion
court matters:
(i)
The practitioner who appears for the applicant must sign a
certificate of urgency which is to be filed of record before the
application papers are placed before the Judge and in which the
reasons for urgency are fully set out. In this regard, sufficient
particularity is to be set out in the certificate for the question
of urgency to be determined solely therefrom and without perusing
the application papers.
(ii)
The certificate of urgency will be placed before the Judge who will
make a determination solely from that certificate as
to whether or
not the matter is sufficiently urgent to be heard at any time other
than the normal motion court hours.
(iii)
Should he/she determine that it is sufficiently urgent, he/she will
then give directions as to the time and place, when
and where the
application is to be heard. Should he/she decide that the matter is
not sufficiently urgent to be heard on a day
other than a normal
motion court day he/she shall record same on the file whereupon the
applicant may deal with the application
in accordance with Rule 12
(
a
) if so advised.”
[2]
The next motion court was to be held in East
London.
[3]
This post-dates the first enrolment of the matter
before me on Tuesday, 8 February 2022.
[4]
See Bobotyana and others v Dyantyi and others, ECDG case no 1198/20,
at paras [17] and [18].
[5]
This sub-rule provides as follows:
“
4.
Service.
—
(1) (
a
)
Service of any process of the court directed to the sheriff and
subject to the provisions of paragraph (aA) any document initiating
application proceedings shall be effected by the sheriff in one or
other of the following manners—
………
(
a
A)
Where the person to be served with any document initiating
application proceedings is already represented by an attorney of
record, such document may be served upon such attorney by the party
initiating such proceedings.” If the applicant intended
to
rely on this provision, service should have been effected on the
State Attorney who is on record for the respondents in the
main
application.
[6]
Given the view that I take in this
matter it is unnecessary to consider the merits of the matter. I
note however that it is not
foreign to seek an order to compel a
state functionary to take steps to comply with an order of court
sounding in money as a
precursor to contempt proceedings proper down
the line (See
Thozamile Eric Magidimisi v
The Premier of the Eastern Cape, Bhisho
[2006] ZAECHC 20
(25 April
2006), but this can hardly occur in a vacuum and there should be a
carefully pleaded context. If the applicant meant
to suggest however
that this was an application to compel the respondents
not
to make deductions against the employee’s salary contrary to
the provisions of
section 34
of the
Basic Conditions of Employment
Act, No 75 of 1997
, that too might present a tenable cause of
action. (See Public Servants
Association
of South Africa obo Ubogu v Head of the Department of Health,
Gauteng and Others
2018
(2) BCLR 184
(CC) which confirms the principle that arbitrary
deductions against a public servant’s salary are unlawful. See
also
T A Gqithekhaya &
Others v Amathole District Municipality (EL Case No. 601/2021) in
which the court issued an interim order
prohibiting arbitrary
deductions summarily effected or about to be effected against the
applicants’ salaries all of whom
were engaged in unlawful
industrial action; and Z Vumazonke v Municipal Manager (EL case no
595/2018) in which the respondents
purported arbitrarily to recover
overpayments against leave benefits due to an employee who had
resigned.) As indicated above,
however, the applicant’s case
made out in the papers is one of contempt of a court order, plain
and simple and counsel’s
attempt to masquerade it as something
else was nothing short of being extremely opportunistic.
[7]
Bobotyana
Supra
, at paras [14] and [15].
[8]
See paragraph [10] above.
[9]
[1998] JOL 1832 (SE).
[10]
It needs to be added that any
deviation from the standard form of notice of motion should in the
present day also take into account
the fact that it is no longer
open to a party to simply fix a date for the hearing of an opposed
application which, since the
advent of case flow management, is
subject to the preserve of a judge certifying the matter trial ready
and the registrar’s
involvement under the case management
protocols set forth in the practice directives. The Judge
President remarked as follows
in Bobotyana, (
Supra
):
“
There is a further dimension to
the shortcomings in the manner in which the application was launched
and pursued. Whilst, in the
past, an applicant could, for reasons of
urgency, deviate from the usual form for launching applications by,
for example, using
shortened time periods, advance nomination of a
date of hearing, omitting notice to the Registrar and adaptation of
the wording,
the advent of Judicial Caseflow Management has now put
in place another dispensation relevant to the setting down of
cases.”
It is salutary in my view to seek a directive even in
the case of a
rule 12
(a) enrolment, or to make allowance in the
notice of motion for the opposing party to appear in court or input
by written submissions
what course the matter should take regarding
the exchange of papers etc if the matter is to be opposed. In
this instance
applicant’s counsel insisted on arguing the
matter without allowing the respondents an opportunity to file
answering affidavits
and rejected the notion that the court was
entitled to impose timeframes for an opposed application regime.