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[2018] ZAECMHC 77
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Ngqeleni v Member of the Executive Council for Department of Health, Eastern Cape and Another (5293/18) [2018] ZAECMHC 77 (22 November 2018)
REPUBLIC OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION MTHATHA
CASE NO. 5293/18
In
the matter between:
DR
SIMPHIWE MICHAELANGELO NGQELENI
Applicant
and
MEMBER OF THE EXECUTVE
COUNCIL FOR DEPARTMENT OF HEALTH,
EASTERN
CAPE
1
st
Respondent
HEAD OF DEPARTMENT,
DEPARTMENT,
EASTERN
CAPE
2
ND
Respondent
JUDGMENT
NOTSHE
AJ:
INTRODUCTION
[1]
The applicant, an employee of the respondents, instituted an urgent
application for an order in the form of a rule
nisi
and an
interim interdict pending the return date. I granted the respondents
time to file papers. By the time I heard the matter
all sets of
papers had been filed by both parties.
[2]
The applicant seeks mandatory and prohibitory interdicts restraining
the respondents from stopping payment of his salary and directing
them to continue to pay his salary until validly and lawfully
terminated.
[3]
The respondents opposed the application on the grounds that:
3.1
this Court does not have jurisdiction to adjudicate
upon this matter
because it is a matter that falls within the exclusive jurisdiction
of the Labour Court;
3.2
the matter is not sufficiently urgent to be enrolled
and heard as an
urgent application; and
3.3
the applicant has not made out a case for the relief
that he seeks
because he has been discharged from the employment of the
respondents.
[4]
After hearing argument the parties agreed that I should consider
the
final relief because all sets of papers had been filed. I duly did
and I granted the relief sought by the applicant but reserved
the
delivery of the judgment.
[5]
This is the judgment.
THE FACTS
[6]
The following admitted and undisputed facts of this matter answer
the
defences raised by the respondents.
[7]
The applicant is an adult male and a medical practitioner employed
by
the respondents. He was employed at Mthatha Regional Hospital,
Eastern Cape. He had been so employed since 4 January 2012.
[8]
04 November 2014 he fell ill and was subsequently admitted at St
Marks Hospital.
[9]
On 11 September 2018 his father brought him a letter from the
respondents
telling him that his application for “
[i]ll-health
[r]etirement
” had been approved. It gave him 31 August 2018
as his last date of employment.
[10]
He learnt from his father that the latter was made to sign some forms
on his behalf
but without his authority.
[11]
The respondents then stopped his salary.
ANALYSIS
[12]
I now deal with the defences raised by the respondents.
[13]
An
applicant is entitled to have his/ her application enrolled and heard
as an urgent application if the requirements of rule 6(12)
of the
Uniform Rules are satisfied. The requirements are to the effect that
an applicant for such should set forth explicitly the
circumstances
which are averred render the matter urgent and the reasons why he/
she claims that he/ she cannot not be afforded
substantial redress at
a hearing in due course. The decisions are legion.
[1]
[14]
In support of this the applicant avers that unlawful termination of
his salary, severely
prejudices him. He has fallen into arrears with
his creditors, and is on the verge of not only losing his basic
requirements such
as access to water and electricity but also could
get black-listed. Certain stop orders come of his bank account at the
beginning
of each month. These will lapse unless he salary is
reinstated forthwith.
[15]
I am satisfied that the facts averred by the applicant demonstrate
that he will not
be afforded substantial redress at a hearing in due
course. He will be ruined by the time the application is heard in due
course.
[16]
In so far
as the issue of jurisdiction is concerned the Constitutional Court
has stated that the exclusive jurisdiction of the Labour
Court is
limited to “…
matters
that elsewhere in terms of [the
Labour Relations Act, 1995
] or in
terms of any other law are to be determined by the Labour Court.
”
[2]
[17]
In this regard it said the following:
“
Section
157(1)
[of the LRA] therefore has the effect of depriving the High
Court of jurisdiction in matters that the Labour Court is required to
decide except where the
Labour Relations Act provides
otherwise.
Deciding which matters fall within the exclusive jurisdiction of the
Labour Court requires an examination of the
Labour Relations Act to
see
which
matters
fall
“to
be
determined”
by
the
Labour
Court.
It
is
quite clear that the overall scheme of the
Labour Relations Act does
not confer a general jurisdiction on the Labour Court to deal with
all disputes arising from employment.
”
[3]
[18]
In this case the issue raised by the applicant is whether the conduct
of the respondents
as an organ of state is lawful. That matter does
not fall with the exclusive jurisdiction of the Labour Court. The
jurisdiction
of this Court (the High Court) is therefore not ousted.
[19]
The respondents aver that the applicant is not entitled to his salary
pending the
outcome of the main application because he has been
discharged from his employment. They argue that he is no longer an
employee
of the department.
[20]
In my view a dismissed employee is entitled to his emoluments on an
interim basis
pending the finalisation of the issue of the validity
or otherwise of his/ her dismissal as long as the requirements for
the granting
of an interim interdict are satisfied.
[21]
It has been
said that the immediate objective of an interim interdict is to
obtain an order of court preserving or restoring the
status
quo
pending
the final determination of the rights of the parties. It does not
involve a final determination of the rights of the parties
and does
not affect their final determination. Its determination depends upon
weighing up of the balance of convenience between
the parties where
the right relied upon is prima facie established though open to some
doubt.
[4]
[22]
The
requirements for the granting of an interim interdict are
now settled
and are the following: (a) a
prima
facie
right;
(b) a well- grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief is eventually
granted;
(c) a balance of convenience in favour of the granting of the interim
relief; and (d) the absence of any other satisfactory
remedy.
[5]
[23]
In
Webster
v Mitchell
[6]
it was held that a
prima
facie
right
will have been established if:
“
[T]he right to
be set up by an applicant for a temporary interdict need not be shown
by a balance of probabilities. If it is “prima
facie
established though open to some doubt” that is enough.
…
The proper manner of
approach I consider is to take the facts as set out by the applicant,
together with any facts set out by the
respondent which the applicant
cannot dispute, and to consider whether, having regard to the
inherent probabilities, the applicant
could on those facts obtain
final relief at the trial. The facts set up in contradiction by the
respondent should then be considered.
If serious doubt is
thrown upon the case of the applicant he could not succeed in
obtaining temporary relief, for his right,
prima facie established,
may only be open to “some doubt”. But if there is mere
contradiction, or unconvincing explanation,
the matter should be left
to trial and the right be protected in the meanwhile, subject of
course to the respective prejudice in
the grant or refusal of interim
relief.
”
[7]
[24]
The test in regard to requisite of apprehension of irreparable harm
is at times confused
with the requirement in respect of an urgent
application. These are two distinct and separate requirements. In an
urgent application
what is required is proof that the applicant
cannot be able to wait for the periods afforded by the Uniform rules.
Whereas this
requisite in respect of an interim interdict refers to a
situation where applicant says that he/ she will suffer irreparable
harm
if the rights are not protected pending the finalisation of the
main dispute. The same facts can be used to justify either of them
or
both.
[25]
The
requisite of apprehension of irreparable harm is tested
objectively.
[8]
It depends on
the facts presented to the court. The Court must then decide on that
objective evidence whether there is any basis
for the entertainment
of a reasonable apprehension of irreparable injury by the applicant.
[26]
I must emphasize that the harm referred to here is unlawful harm. If
the apprehended
action is lawful this requisite will not have been
satisfied.
[27]
It must be emphasized further that what should be apprehended should
not be just
any harm but irreparable harm. Any other harm can wait
for the ultimate resolution of the dispute between the parties. Again
whether
the harm is irreparable will depend on the facts of each
case.
[28]
In so far as the requisite of the balance of convenience is concerned
the Court must
weigh the prejudice to the applicant if the
interlocutory interdict is refused against the prejudice to the
respondent if it is
granted.
In
an application for an interim relief “…
there
will invariably be at least two competing interests. And those
interests are inextricably linked to the harm a respondent
is likely
to suffer in the event of the order being granted and the harm likely
to be suffered by an applicant if the relief sought
is not
granted.
”
[9]
[29]
This invariably invites the consideration of the prospects of success
as well. An
applicant can demonstrate that there are strong prospects
of success and therefore it would be inconvenient for him/ her to
wait
for the finalisation of the main dispute.
[30]
In an employment/ labour matter a dismissed employee can be able
to show that
the balance of convenience favours the granting of an
interim relief in the form of continuation of the payment of salary.
This
can be done by demonstrating that if the salary is stopped he/
she will be ruined whereas he/she has accumulated so much pension
contributions that the employer can have recourse to such if the
termination of employment is confirmed as valid. On the other
hand
the employer can seek to persuade the court that the balance of
convenience does not favour the granting of the interim relief
because he will have no recourse if employee’s termination of
employment is confirmed.
[31]
Even under
the
Labour Relations Act, No. 66 of 1995
regimen a dismissed employee
will be entitled to interim wages pending the finalisation of the
dismissal dispute if the requirements
for the
granting of
an interim interdict are satisfied.
[10]
[32]
What should always be kept in mind is that a balance should be kept
between leaving
an applicant with a hollow victory and prejudging the
main matter. As always each case must be decided on its own facts.
[33]
The final requisite is that there must be an absence of another
adequate ordinary
remedy. The emphasis here is that the remedy is the
absence of another adequate ordinary remedy. If there is another
remedy present
but is not adequate the requisite will have been
satisfied.
[34]
There are
two exceptions to this requisite, namely the applications for
interdicts pending (i) vindicatory, and (ii) possessory
actions.
[11]
[35]
Once the
requisites for the granting of an interim interdict have been
satisfied a Court has no discretion but to grant it. In this
regard
there has been some confusion regarding the discretion of the
Court.
[12]
The Supreme Court
of Appeal
[13]
cleared this
confusion and said the following:
“
Much the same
happened in Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton
and Another
1973 (3) SA 685
(A). At 691C Holmes JA, who delivered the
judgment of the Court, stated that '(the) granting of an interim
interdict pending an
action is an extraordinary remedy within the
discretion of the Court'. He then (at 691D-E) set out the requisites
for an interim
interdict (on the authority of Setlogelo v Setlogelo
1914 AD 221
at 227) as follows:
'(a)
a right which, "though prima facie established, is open to some
doubt";
(b)
a well grounded apprehension of irreparable injury;
(c)
the absence of ordinary remedy'.
At 691E he reverted to
the Court's discretion. In exercising its discretion, he said, a
Court weighs, inter alia, the prejudice
to the applicant if the
interdict is withheld against the prejudice to the respondent if it
is granted (the balance of convenience).
He then continued (at 691F):
'The foregoing
considerations are not individually decisive, but are interrelated;
for example, the stronger the applicant's prospects
of success the
less his need to rely on prejudice to himself. Conversely, the more
the element of "some doubt", the greater
the need for the
other factors to favour him. The Court considers the affidavits as a
whole, and the interrelation of the foregoing
considerations,
according to the facts and probabilities. '
Despite the stress
placed on the discretionary nature of the Court's function, Holmes JA
proceeded to deal with the appeal by
giving effect to his own
view on the merits of the application for an interdict. His final
conclusion (at 696E-F) was that 'the
affidavits do not warrant the
remedy of an interim interdict' and that the Judge a quo 'was right
in discharging the rule nisi'.
See also Cassim and
Others v Meman Mosque Trustees
1917 AD 154.
It would seem to
follow from the above cases that the word 'discretion' was not used
in a strict sense. That this word is capable
of different meanings
appears from Media Workers Association of South Africa and Others v
Press Corporation of South Africa Ltd
('Perskor')
[1992] ZASCA 149
;
1992 (4) SA 791
(A)
at 796H-I and 800C-G. In the present context the statement that a
Court has a wide discretion seems to mean no more than that
the Court
is entitled to have regard to a number of disparate and
incommensurable features in coming to a decision. This is also
the
sense in which, I take it, Schreiner J used the word 'discretion' in
the following oft-quoted passage from Transvaal Property
&
Investment Co Ltd and Reinhold & Co v SA Townships Mining &
Finance Corp Ltd and The Administrator
1938 TPD 512
at 521: 'No doubt
the remedy by way of interdict has been said to be
unusual,
. . . it is also
described as discretionary. It
seems to me,
however, that, apart from cases of interim
interdicts, where considerations of prejudice and convenience are of
importance, the
question of discretion is bound up with the question
whether the rights of the party complaining can be protected "by
any
other ordinary remedy" (Setlogelo's case,
1914 AD 221
, at
227).'
The Courts have not
defined the considerations which may be taken into account in
exercising the so-called discretion, save for
mentioning the obvious
examples such as the strength or weakness of the applicant's right,
the balance of convenience, the nature
of the prejudice which may be
suffered by the applicant and the availability of other
remedies. Whilst this list is not exclusive,
it does indicate what
the relevant features are in an application of this sort. I find it
difficult to imagine that considerations
which are entirely
unrelated to these
features could be
accorded weight in granting or refusing an application for an interim
interdict.
Finally, in regard to
the so-called discretionary nature of an interdict: if a Court
hearing an application for an interim interdict
had a truly
discretionary power it would mean that, on identical facts, it could
in principle choose whether or not to grant the
interdict and that a
Court of appeal would not be entitled to interfere merely because it
disagreed with the lower court's choice
(Perskor case at 800D-F). I
doubt whether such a conclusion could be supported on the grounds of
principle or policy. As I have
shown, previous decisions of this
Court seem to refute it.
”
[14]
[36]
In this case the applicant has not only satisfied the requirements
for the granting
of an interim interdict but also satisfied the
requisites for the granting of a final interdict. As a result the
parties agreed
that I should consider the issue of a final relief.
[37]
The undisputed facts are that the respondents discharged him on the
basis of a document
signed by his father. It is a fact that he did
not authorise his father to do so. The applicant has therefore
established
a clear right to his employment contract. The
respondents infringed that right and there is no other satisfactory
remedy except
the final interdict. An action for damages will not be
a satisfactory remedy. The applicant will be ruined by then.
[38]
In the circumstances, although the matter had been brought on an
urgent basis for
the granting of the interim relief the parties are
satisfied that I can consider the final relief.
[39]
The applicant has satisfied the requisites for the granting of a
final interdict
and is therefore entitled to the final relief.
[40]
As a result I make the following order:
(a)
the decision of the respondents to terminate the applicant’s
employment with the Department of Health, Eastern Cape (“the
Department”), on account of ill-health be and is hereby
declared wrongful, unlawful, unconstitutional and void
ab initio;
(b)
the respondents are ordered to reinstate
the applicant to his
employment position on the same terms and conditions that existed
before the termination of his employment;
©
the respondents to pay the applicant,
forthwith, his remuneration and afford his
privileges and/ or
benefits attached to his employment with the Department;
(d)
the respondents be and are hereby ordered to pay the costs of this
application jointly and severally, the one paying,
others to be
absolved.
V S Notshe
Acting
Judge of the High Court
[1]
Mangala v Mangala
1967 (2) SA 415
(E); Eniram (Pty) Ltd v New
Woodholme Hotel (Pty) Ltd
1967 (2) SA 491
(E) at 493A–B; Sikwe
v SA Mutual Fire & General Insurance Co Ltd
1977 (3) SA 438
(W)
at 440H; Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s
Furniture Manufacturers)
1977 (4) SA 135
(W) at 137F; I L & B
Marcow Caterers (Pty) Ltd v Greatermans SA Ltd; Aroma Inn (Pty) Ltd
v Hypermarkets (Pty) Ltd
1981 (4) SA 108
(C) at 110H–111A;
Makhuvha v Lukoto Bus Service (Pty) Ltd
1987 (3) SA 376
(V) at
388I–389D; Salt v Smith
1991 (2) SA 186
(Nm); Cekeshe v
Premier, Eastern Cape
1998 (4) SA 935
(Tk) at 948F.
[2]
Fredericks and Others v MEC for Education and Training Eastern Cape
and Others [2002] 2 BLLR 119 (CC).
[3]
At para 38.
[4]
C B Prest: Interlocutory Interdicts (Juta) (1993) at 2 -5.
[5]
Setlogelo v Setlogelo
1914 AD 221
at 227;
[6]
1948 (1) SA 1186
(W) at 1189.
[7]
See also: Simon NO v Air Operations of Europe AB
[1998] ZASCA 79
;
1999 (1) SA 217
(SCA) at 228G– H.
[8]
Janit v Motor Industry Fund Administrators (Pty) Ltd
[1994] ZASCA 110
;
1995 (4) SA 293
(A) at 304H– I.
[9]
Per Mogoeng CJ in Tshwane City v Afriforum
2016 (6) SA 279
(CC) at
[62].
[10]
See:
Section 158(1)(a)
of the
Labour Relations Act, 1995
.
[11]
Fedsure Life Assurance Co Ltd v Worldwide African Investment
Holdings (Pty) Ltd and Others
2003 (3) SA 268
(W) at 278.
[12]
Erasmus: Superior Court Practice, RS 4, 2017, D6-23.
[13]
Knox D’Arcy Ltd v Jamieson
[1996] ZASCA 58
;
1996 (4) SA 348
(A) at 361H–362C.
[14]
At 361 – 362.