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[2022] ZAECMKHC 5
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Makhanda against Mandates and Others v Rhodes University (124/2022) [2022] ZAECMKHC 5 (21 April 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO: 124/2022
In
the matter between:
MAKHANDA
AGAINST MANDATES
First Applicant
FRANCIS
WILLIAMSON
Second Applicant
EDWARD
DE LA REY
Third Applicant
DAVID
DRENNAN
Fourth
Applicant
JERRALEIGH
KRUGER
Fifth
Applicant
ALICK
BURGER
Sixth Applicant
ROBERT
VAN DER MERWE
Seventh
Applicant
EMILY
VAN DER
MERWE
Eighth
Applicant
KELLIE
STEINKE
Ninth
Applicant
And
RHODES
UNIVERSITY
Respondent
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
JUDGMENT
NONCEMBU
AJ
INTRODUCTION
[1]This is an
interlocutory application brought on an urgent basis by the second,
third, fourth and fifth applicants (the employee
applicants/applicants), seeking an order –
(a)
condoning the applicants’
non-compliance with the prescribed requirements pertaining to form,
process and time periods, and
permitting the matter to be heard as
one of urgency as envisaged in rule 6(12) of the Uniform Rules of
Court;
(b)
interdicting and restraining the respondent
from taking any steps to terminate their contracts of employment for
any reasons relating
to the respondent’s mandatory vaccine
policies, pending the finalization of an application for an interim
interdict pending
before this court under case number 124/2022; and
(c)
for costs of the application.
[2]The main application
is made up of two parts, part A being the aforementioned interim
interdictory relief pending the finalisation
of a review application
contemplated in part B thereof.
BACKROUND
[3]The applicants are
employees of the respondent, and together with the third, sixth to
the ninth applicants (some of whom are
students of the respondent),
are members of the first applicant. The first applicant lodged the
main application, part A of which
was originally set down for hearing
on 15 February 2022. By agreement between the parties, subject to
certain conditions to be
dealt with hereunder, the matter was
postponed to 1 March 2022. The second to the ninth applicants
were subsequently joined
in the matter by agreement between the
parties.
[4]The genesis to the
main application arises from a decision taken in October 2021 by the
Council of the respondent making vaccinations
mandatory and placing
unvaccinated staff on unpaid leave. The applicants decided to take
the decision on review, but considering
the period it would take to
obtain the final relief they were seeking, they decided to apply for
an interim interdict (part A of
the application). Their reasoning was
that if the court were to ultimately find that the mandatory
vaccinations were unlawful,
harm would have been done already.
THE UNDERTAKING
[5]With the intervention
of the Judge President, a case flow management meeting was held on 8
February 2022 to determine how the
matter was to be dealt with. The
parties agreed at the said meeting that part A of the application
would be heard on 1 March 2022,
subject to a condition that the
respondent would give an undertaking on the following terms:
“
7.
It is recorded that the Respondent undertakes that there will be no
interruption of payment of staff
salaries prior to the hearing and
judgment in the application for interim relief (Part A).
8.
It is recorded that the provisional registration for students
currently in operation at the Respondent
will continue, subject to
the required final registration, which involves curriculum approval
with the dean of any of the respective
faculties, and which approval
does and will require direct communication with the dean of the
relevant faculty.
9.
In the event that interim relief is granted, the cut-off date for
final registration of students will
be extended to a date 5 (five)
days after the date of the court order.”
[6]Accordingly the matter
was heard on 1 March 2022, and in an
ex tempore
judgment by
Lowe J, handed down on 2 March 2022, it was struck off the roll for
want of urgency.
[7]Subsequent to the
above ruling, the respondent was invited to supplement its answering
papers in order to prepare for the re-enrolment
of the matter on the
normal motion court roll. The respondent filed its supplemented
papers on 14 March 2022 and the applicants
thereupon
filed their supplementary replying papers. No set down has
been allocated to the matter to date
.
I
t
was however indicated at a subsequent case flow management meeting
that the earliest allocation date in the normal motion court
roll
could be in September 2022.
[8]On 10 March 2022 the
employee applicants received letters from the respondent’s
attorneys which apprised them that the
time period within which they
were required to provide proof of vaccination or apply for exemption
had expired and that, therefore
,
Human
Resource processes were to commence immediately.
[9] Having received no
joy when enquiring as to what was meant by ‘
Human
Resource processes
’, and what the applicable
timelines therefore were from the applicant’s attorneys, the
applicants decided to launch
the current application. They believed
that the contemplated processes could result in the termination of
their contracts of employment
due to incapacity. If this were to
materialise, they contended, it would mean that they would no longer
be
employees of the respondent and would
therefore have no
locus standi
in the interim interdict and
review applications (Part A and B of the main application). This is
therefore what prompted the urgent
interlocutory application
in
casu.
[10]
The applicants view the matter as extremely urgent in that
legal advice received from their attorneys indicates that dismissals
due to incapacity need take no longer than two (2) to three (3)
weeks.
[11]
Regarding the status of the undertaking, the applicants
contend that Lowe J’s decision of 2 March 2022 did not dispose
of
the matter as the matter was simply struck off the roll. They
therefore conclude that the interim relief has not been heard and
as
such the undertaking must survive the decision of 2 March 2022. The
respondent, on the other hand, contends that the application
for
interim relief was heard and judgment was given on 2 of March 2022.
Its view is that the undertaking was meant to facilitate
the hearing
of the matter on a date later than 15 of February 2022 (the initial
set-down), so as to afford the respondent sufficient
time to file its
answering papers; the undertaking therefore ceased to exist after
judgment was delivered on 2 March 2022.
[12]
The applicants maintain that the said undertaking is extant
and they therefore seek a ruling accordingly in these
proceedings.
THE
ISSUES
[13]
The main issues for determination by this court are:
(a)
whether the undertaking by the respondent survived the
judgment of 2 March 2022 by Lowe J;
(b)
whether the applicants have met the requirements for urgency
as contemplated in rule 6(12) of the Uniform Rules of Court;
(c)
whether the applicants have made out a case for the interim
relief
sought.
APPLICABLE
LEGAL PRINCIPLES
[14]
It is common cause between the parties that the applicants’
case stands or falls on the determination of whether or not
the
undertaking is still alive. If the court finds that it is not, then
the applicants’ case falls to be dismissed.
[15]
It follows therefore that the interpretation
attributed to the undertaking given by the respondent at the case
flow management meeting
of 8 February 2022 is central to the
determination of this matter.
[16]
The approach to the interpretation of documents was settled by the
Supreme Court of Appeal in
Natal
Joint Municipal Fund v Endumeni
Municipality
,
[1]
where it was held:
[2]
“
Interpretation
is the process of attributing meaning to the words used in a
document, albeit legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions and the like of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all the
factors. The process is objective, not subjective.
A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose
of the document. Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible
or businesslike for words
actually used. To do so in regard to a statute or statutory
instrument is to cross the divide between
interpretation and
legislation; in a contractual context it is to make a contract for
the parties other than the one they in fact
made. The inevitable
point of departure is the language of the provision itself, read in
context and having regard to the purpose
of the provision and the
background to the preparation and production of the document.”
[17]
In
Novartis
SA (Pty) Ltd v Maphil Trading (Pty) Ltd,
[3]
the SCA held:
“
This court has
consistently held, for many decades, that the interpretative process
is one of ascertaining the intention of the
parties – what they
meant to achieve. And in doing that the court must consider all the
circumstances surrounding the contract
to determine what their
intention was in concluding it…. A court must examine all the
facts – the context –
in order to determine what the
parties intended. And it must do that whether or not the words of the
contract are ambiguous or
lack clarity. Words without context mean
nothing.”
[18]
From the above authorities it is clear that when interpreting a
document, a court must consider the factual matrix which led
to the
said document being concluded, its purpose, the circumstances leading
up to its conclusion and the knowledge of those who
negotiated and
produced the document at the time of the negotiations. To do this the
parties will invariably have to adduce evidence
to establish the
context and purpose of the relevant provision. That evidence could
include the pre-contractual exchanges between
the parties leading up
to the conclusion of the document and evidence of the context in
which the contract was concluded.
[4]
[19]
In an effort to present evidence pertaining to the context in which
the undertaking was made, the respondent has referred this
court to a
copy of the transcribed record of proceedings of the case flow
management meeting which it annexed to its answering
affidavit.
[5]
[20]
From the transcript the following interaction between the Judge
President and counsel representing the parties in the matter
is
recorded:
[6]
“
Mr Louw:
Number 4 I deal with the contents thereof; the application (sic)
would prefer the matter to proceed on
the 15
th
as originally arranged. Although we are on record that the applicant
does not oppose the matter being heard on 01 March as suggested
by
the respondent’s attorneys, however, there are a few things
that the respondent can do to make that meaningful. And I
say that
because if they do not relax the mandate that has been put in place,
both as far as staff and students are concerned,
then the urgency of
the matter will be have become completely moot. And I say that
because as far as staff is concerned, they are
forced to be on and
making use of their annual leave at the moment, although when the
papers were filed the one deponent, the one
staff member had in fact
been refused even annual leave, that has since changed. But for the
rest of the staff their annual leave
does come to an end some time,
or another and they all have commitments, so one can understand their
family commitments, their
financial commitments, etcetera, etcetera…
As far as the students
are concerned, unless they are allowed to register, if the matter is
only heard on 1 March, even if the order
is granted, the interim
interdict, it will be too late because as you will see from one
affidavit of Dr Steinke and I’m talking
about a letter from
Rhodes saying that she has to register by no later than 15 February
without allowing students generally to
register, irrespective of
their status as to whether, or not they have this experimental
vaccine, or not, it will make the whole
question of the urgency
completely irrelevant…
Court:
… this is not a hearing so to speak, this is just a
conference. It
is facilitated by me in order to manage the future
conduct of this application. So the long and short of it is you would
love 15
February to be spent arguing the interim relief part of the
application and then we can talk about part B at a later stage, is
that what you are saying?"
[21]
At page 10 of the transcript the following recording is reflected:
[7]
“
Mr
Smuts:
Judge President, we
have set out our proposed timelines in our
letter.
Court:
Yes.
Mr Smuts:
Which are reflected in our earlier correspondence with
the
applicant’s attorney and my understanding was that Mr Louw
indicated that those timelines, if the matter were to be heard
then,
or that 1 March seemed to be a feasible proposition, he said under
specific circumstances. I do not understand that the timeline
proposed is the problem, it was the specific circumstances. …”
[22]
The extracts referred to above give one a better perspective of the
context in which the undertaking was given by the respondent.
It is
also clear from the above that the proposition for the change in
dates from 15 February to 1 March came from the respondent
who needed
more time to file its answering papers given the voluminous papers it
had received from the applicant, and that the
JP was requested to
manage the matter to ensure that the future conduct thereof
was properly and efficiently facilitated.
[23]
At page 11 counsel for the applicants states the following:
[8]
“
Mr Louw:
Judge President, the timeline is not the problem. The problem really
is what do we do with students that will not
be able to register,
what do we do with staff members who are not too long from now going
to have no income…”
[24]
Responding to the above, counsel for the respondent states as follows
at page 14:
[9]
“
Mr
Smuts: He says and he
is correct that at the moment no member of staff is not
being paid
and I have a mandate to advise that no member of staff’s salary
will be withheld before the hearing of the matter
and the decision on
part A. So there is no immediate prejudice in respect of the issue of
staff members at all.
…
And so may I say this
as well, there is a provisional registration process in operation and
students are registering in accordance
with that provisional process.
For registration to become final they need to attend upon the campus
and confirm the course content.
So that provisional process is in
operation, people are applying in limited numbers for exemption. …”
[25]
At page 16 counsel for the applicants states the following:
“
Mr
Louw:
Yes, Judge President, the way I understand my learned friend
that the
staff will not be prejudiced, their salaries will be paid until this
application is finalised. And secondly all students
can provisionally
register. And the outcome of this matter will be decided whether
their registration will be confirmed, or not.”
[26]
To the above
,
counsel for the respondent responded:
[10]
“
Mr
Smuts:
No Judge President, that is not what we said. They are seeking,
the applicants were seeking to have an urgent application for interim
relief heard on the 15
th
. We said no time
does not allow it, it is now urgent to be heard on the 15
th
,
because the staff are currently, there are no staff whose salaries
has been suspended and no staff, I gave the undertaking, will
have
salaries suspended, or reduced, or interfered with until the urgent
application is heard and disposed of. I am not waiting
for part B
which might be set down in September. I cannot give you that
guarantee.
But certainly in terms of the urgency the
hearing of the matter on the 15
th
rather than the 1
st
,
we give the undertaking that salaries will continue to be paid until
the urgent application is disposed of.”
[27]
The portion highlighted above, in my view crystallises the intention
and the context in which the undertaking was given. Firstly,
as
contended on behalf of the respondent, it had nothing to do with the
employment of the applicants, but everything to do with
payment of
their salaries. In the second instance, it was meant to secure a
later date of hearing than 15 February to afford the
respondent
sufficient opportunity to respond to the voluminous papers it had
been served with and for all the papers to be properly
exchanged
before the urgent application could be heard. Thirdly and most
importantly, it was meant to sustain until the urgent
application was
heard and disposed of.
[28]
The applicants contend that the undertaking was intended to ensure
the rights of the employee applicants to meaningfully participate
and
argue for the relief they seek in the interim interdict. They thus
contend that the aim and intention of all the parties (including
the
respondent) was to preserve the right claimed on behalf of the
applicants. This
,
however, is not
supported by the evidence presented. As demonstrated in the extracts
referred to above, both the language used
and the context in which
the undertaking was given present a different intention to what is
being contended by the applicants.
[29]
Further, the applicants contend that at the time of the undertaking
the issue of termination of the employment contracts had
not come to
the fore. They contend that had the respondent taken steps to
terminate the employment contracts of the applicants
at the time, an
undertaking in those specific terms - securing the rights of the
applicants to meaningfully participate and argue
for the relief they
seek in the interim interdict would have been secured.
[30]
I find this contention unsustainable at two levels. In the first
instance, it amounts to a concession that at the time of the
undertaking the issue of the employment contracts of the applicants
did not arise. In the second instance, it loses sight of the
fact
that had the urgent application been heard on the original date of
set down (15 February), the entire issue of the undertaking
would
never have arisen. It only came to be because the respondent
wanted a later date for the hearing of the matter. I therefore find
it quite fallacious of the applicants to contend that they could
secure any kind of undertaking under those circumstances.
[31]
The respondent made it quite clear that they were not willing to pay
salaries until September where staff was not providing
any service to
the University. To therefore attribute an interpretation to the
effect that the undertaking was meant to sustain
until the interim
interdict is heard in the normal roll, the earliest date of which is
in September, would lead to an unbusinesslike
and insensible
interpretation. The insensibility of the interpretation becomes
even more apparent if one considers the position
of the student
applicants. Such an interpretation would mean that student
registrations could be finalised in September- when the
academic year
is headed towards the end.
[32]
The respondent contends
,
in its
answering papers
,
that the urgent
application was heard and disposed of when judgment by Lowe J was
handed down on 2 March 2022. I agree with this
view. There are
various ways in which a court can dispose of an application. It
can either give judgment or an order in favour
of the applicant or
one of the parties, it can dismiss the application, or it can have
the matter struck off the roll. The urgent
application referred to
in
casu
was struck off the roll for want of urgency in the judgment
handed down on 2 March 2022. In my view, at that point the
undertaking
had served its purpose and therefore came to an end.
The view contended by the respondent - that the application (for
interim
interdictory relief) currently being enrolled in the normal
court roll by the applicants is in a different form - is therefore
supported.
[33]
As conceded by both parties in this matter, this then becomes
dispositive of the matter. The entire thrust of the employee
applicants’ urgent application loses its foundation and
therefore cannot stand. It therefore serves no purpose for this court
to deal with the other issues raised.
ORDER
[34]
In the circumstances, the following order is made.
(a) The application is
dismissed with costs, including costs of two counsel.
________________________
V P NONCEMBU
Acting Judge of the High
Court
APPEARANCES
DATE
OF HEARRING
: 12 April 2022
DATE
OF JUDGMENT
: 21 April 2022
Counsel
for the Applicants
:
S S Louw
Instructed
by
: Wheeldon Rushmere & Cole Inc
Per:
Matthew Fosi Chambers
119 High Street
Grahamstown
Counsel
for the Respondent
:
I J Smuts SC
(together with
M Somandi
)
Instructed
by
: Huxtable Attorneys
26
New Street
Grahamstown
[1]
2012(4)
SA 593 (SCA.
[2]
At
paragraph 18.
[3]
2016
(1) SA 518
(SCA) at paragraphs 27-28.
[4]
University
of Johannesburg v Auckland Park Theological Seminary and Another
[2021]
ZACC 13
; 2021(8) BCLR 807 (CC);
2021 (6) SA 1
(CC) (11 June 2021).
[5]
Marked
as Exhibit ‘D’.
[6]
Page
1, lines 7-25; page 2, lines 1-26, and page 3, line1.
[7]
Lines
5-14.
[8]
Lines
3-6.
[9]
Lines
1- 23.
[10]
Page
17, lines 4-17.