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[2017] ZALMPPHC 24
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South African Democratic Teachers Union v Member of the Executive Council, Department of Education Limpopo Province and Another (4915/2017) [2017] ZALMPPHC 24 (3 August 2017)
REPUBLIC OF
SOUTH AFRICA
IN THE HIGH
COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 4915 / 2017
In
the matter between:
THE
SOUTH AFRICAN DEMOCRATIC TEACHERS
UNION
APPLICANT
and
THE
MEMBER OF THE EXECUTIVE
COUNCIL
1
ST
RESPONDENT
DEPARTMENT
OF EDUCATION LIMPOPO PROVINCE
THE
HEAD OF DEPARTMENT OF EDUCATION LIMPOPO
PROVINCE
2
ND
RESPONDENT
JUDGMENT
SIKHWARI
AJ
INTRODUCTION
[
1]
This matter came by way of an urgent application on the 13 July 2017
before my brother, Muller J. The matter was postponed
sine
die
by agreement between the parties. The respondents were ordered to
file an answering affidavit, if any, on the 20 July 2017 and
the
applicant to file the replying affidavit on 25 July 2017.
[2]
It was further agreed that the disputed deductions on the salaries of
members of the applicant which were due to be effected
on the 15 July
2015 will now be done on the 15 August 2017.
[3]
Subsequent to the above background, the matter was then enrolled for
hearing on the urgent court roll of the 01 August 2017.
The
respondent raised two points in
limine
which had to be
determined first before venturing on merits; to which this court’s
lack of jurisdiction and lack or urgency.
LACK
OF JURISDICTION
[4]
On the first point in
limine
for this court’s lack of jurisdiction, the respondents
submitted that the case of the applicants’ complaint is that
the salary deductions contemplated by respondents fly in the face of
Section 34 of
Basic Conditions of Employment Act 75 of 1997
, as
amended (“the BCEA”).
Section 77(1)
of the said Act
states further that “
the
Labour Court has exclusive jurisdiction in respect of all matters in
this Act
“.
Section 77
(3) of the said Act confers concurrent
jurisdiction for the civil courts in respect of matters concerning
contract of employment.
In essence, it echo
Sections 157(1)
and
157
(2) of the
Labour Relations Act 66 of 1995
, as amended (“the
LRA”).
[5]
Respondents further relied on the Constitutional Court judgment of
Gcaba
v Minister for safety and Security & Others
2010 (1) SA 328
(CC),
particularly paragraph [70] thereof which states that
“
Section
157
(1) confirms that the Labour Court has exclusive jurisdiction
over any matter that the LRA prescribes should be determined by it.
That includes, amongst other things, reviews of the decisions of the
CCMA under
Section 145.
Section 157
(1) should therefore, be given
expansive content to protect the special status of the Labour Court,
and
Section 157
(2) should not be read to permit the High Court to
have jurisdiction over these matters as well””.
Reliance was also
made on paragraph [56] of
Gcaba
judgment.
[6]
The applicant’s submissions on jurisdiction were mainly based
on the provisions of
Section 157
of the LRA which provides as
follows:
157.
Jurisdiction of Labour Court
(1)
Subject
to the Constitutional and
Section 173
, and except where this Act
provides otherwise the Labour Court has exclusive jurisdiction in
respect of all matters that elsewhere
in terms of this Act or in
terms of any other Law are to be determined by the Labour Court.
(2)
The
Labour Court has concurrent jurisdiction with the Supreme Court-
(a)
in
respect of any alleged Violation or threatened violation by the state
in its capacity as employer of any fundaments right entrenched
in
chapter 3 of the Constitutional; and
(b)
in
respect of any dispute over the Constitutionality of any executive or
administrative act or conduct, or any threatened executive
or
administrative act or conduct, the state in its capacity as employer.
(3)
Any
reference to the court in the Arbitration Act, 1965 (Act no. 42 of
1965), must be interpreted as referring to the Labour Court
when an
arbitration is conducted under that Act in respect of any dispute
that may be referred to arbitration in terms of this
Act.
(4)
(a)
the Labour Court may refuse to determine any dispute, other than an
appeal or review before the court, if the court is not satisfied
that
an attempt has been made to resolve the dispute through conciliation.
(b)
A
certificate issued by a commissioner or a council stating that a
dispute remains unresolved is sufficient proof that an attempt
has
been made to resolve that dispute through conciliation.
(5)
Except
as provided in section 158 (2), the Labour Court does not have
jurisdiction to adjudicate an unresolved dispute if this Act
requires
the dispute to be resolved through arbitration.
[7]
Applicant submitted further that the high court has concurrent
jurisdiction with the Labour Court in matters of the nature of
the
dispute which is before court in
casu
.
Applicant referred this court to the unreported judgment of the
Labour Court of
Makume
Simon Mosiuwa v Hakinen Transport CC, Case number J33 / 10
,
where it was held that the Labour Court does not have jurisdiction
concerning the enforcement of employee’s rights as contained
in
the BCEA, other than those which consist of monetary claims. The case
before this court is not for a monetary claim. It is an
urgent
interdict application.
[8]
Applicant has also relied on paragraph [71] of
Gcaba
judgement
(supra)
where it states that
“
Section
157 (2) confirms that the Labour Court has concurrent jurisdiction
with the High Court in relation to alleged or threatened
violation of
fundamental rights entrenched in Chapter 2 of the Constitution and
arising from employment and Labour relations, any
dispute over the
Constitutionality of any executive or administrative act or conduct
by the state in the capacity as employer and
the application of any
Law for the administration of which the minister is responsible. The
purpose of this provision is to extend
the jurisdiction of the Labour
Court to disputes concerning the alleged violation of any right
entrenched in the Bill of Rights
which arise from employment and
Labour relations, rather than to restrict or extend the jurisdiction
of the High Court. In doing
so, Section 157 (2) has brought
employment and Labour relations disputes that arise from the
violation of any right in the Bill
of Rights within the reach of the
Labour Court….”
[9]
In my view, the legislature did not intend to oust the jurisdiction
of the High Court in all other matters except those stated
in Section
157 (1) of the LRA. The Constitutional Court has not done so in
Gcaba
(supra)
and
Chirwa
v Transnet
decisions. The matter before this court could be classified as a
matter within the “”exclusive jurisdiction””
of the Labour Court. It is not a traditional labour dispute which
must firstly go through the labour forums like the CCMA, Bargaining
Councils,
etc.
It
is not a dispute about the legality and / or protection of the strike
or lock-out or any industrial action.
[10]
I am not persuaded that the nature of the dispute herein is such that
the jurisdiction of high court has been ousted. Respondents
were not
able to show the court as to what facts or circumstances have made
this interdict application to fall within the ambit
of a matter in
which the Labour Court must enjoy “exclusive jurisdiction”
other than to rely of Section 77 of the BCEA,
and section 67 (3) of
the LRA which deals with strike.
[11]
As stated earlier, the matter before this court is an urgent
interdict; it is not a monetary claim. Therefore, reliance of
the
BCEA falls away. Applicant’s version is that its members were
not on strike but were obstructed from going to work by
striking
members of PSA and NEHAWU unions. Respondents dispute this version
and state that applicant’s members were on strike.
Respondents
have no direct evidence to support their strike version except to try
to draw a conclusion from the fact that one Advocate
Seakamela was at
work although he / she is a leader or shop steward of the applicant.
The presence of Adv Seakamela is not conclusive
proof that the
applicant’s members were on strike. That is not the only
inference to be drawn from the said facts. Therefore,
reliance on
Section 67 (3) of LRA is not sustainable.
[12]
In my view, the respondents have failed to show that this court has
no jurisdiction to hear the application. The point in
limine
in this regard should fall with costs.
URGENCY
[13]
The second point in
limine
raised by the respondents is lack of urgency. The respondents relied
on the fact that the applicant will not suffer irreparable
harm if
the matter is not heard on urgency as the applicant will be able to
repay the deducted amounts from the salaries of the
members of the
applicant should it later be found that the applicant’s members
were not on strike. The applicant is invoking
the “
no
work no pay”
policy
.
[14]
The applicant relies on paragraph 44 of the founding affidavit which
stated that “
I
submit that the urgency in this matter is manifest particularly in
the light of prejudice which the affected employees will suffer
and
the damage which will be caused to their reputations should they
default on their financial commitments and the irreversible
consequences which arise owing to the glaring illegality and
unlawfulness of the conduct of the respondents.”
[15]
Urgent applications are regulated in terms of Rule 6(12) of the
uniform rules of this court. Rule 6(12)(b) states that “
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 mater urgent
and the reason why the applicant claims that applicant could
not be
afforded substantial redress at a hearing in due course”.
[16]
In
Cekeshe and Others v Premier Eastern Cape and Others
1998 (4)
SA 935
(TKD) at page 948 A-F
, Van Zyl, J stated that:
“
It is correct that an
applicant who wishes to rely on the procedure provided for in Rule 6
(12) (b) must set out sufficient facts
in the founding affidavit to
enable the court to decide whether urgent relief should be granted.
Specific averments of urgency
must be made and facts upon which such
averments are based must be set out in the affidavit where it is not
otherwise apparent
that the matter is urgent. However, as stated by
Kirk-Cohen J (as he then was) in Sikwe v SA Mutual Fire and General
Insurance
CO Ltd
1977 (3) SA 438
(W) at 44 OH, it does not follow
that an application is necessarily defective if the form referred to
in Rule 12 is not strictly
adhere to, but that it is:
“…
..
the substance of the affidavit, and not its form, which will weigh
with a court; if any affidavits sets out facts upon which
a court can
decide that an applicant is entitled to relief in terms of the
subrule, the court will entertain the application. If
the only
reasonable inference from the facts set out in the affidavit is that
the matter is one of urgency, then an applicant will
have complied
with the requirements of the subrule, even though he does not make a
specific averment that it is urgent”.
“
The same reasoning in my
view applies to the requirement contained in Rule 6 (12) (b) that an
applicant must set out reasons why
he could not be afforded
substantial redress at the hearing in due course i.e within the
normal time limits as prescribed
by Rule 6. In their founding
affidavit the applicants state that they have been advised that they
would not receive payment of
their salaries as from August 1997. It
is alleged that the applicants would financially be prejudiced should
they not continue
to receive their salaries. It is averred that if
they are not paid the applicants would be unable to honour their
financial commitments
and that this is the position notwithstanding
the fact that they have continued to report for duty.
“”
I am of the
opinion that, on the facts alleged in the applicants’ founding
affidavit in conjunction with the nature of the
relief claimed, the
matter is one of urgency. By not receiving their salaries the
applicants would be suffering financial prejudice”.
[17]
In the case before this court, I share the same views expressed above
by Van Zyl, J. in my view, the applicant’s founding
affidavit
explained the irreversible financial prejudice which applicant’s
members will suffer if this matter is not heard
on urgency. Failure
to meet monthly financial commitments will attract interests or
tarnish one’s credit worthiness which
may not be cured by
redress in due course or later re-payment of deducted money from
salaries.
[18]
Financial loss does constitute a valid ground for urgency. In the
case of
20
th
Century Fox Film Corp v
Black Films
1982 (3) SA 582
(WLD)
at page
586E-F
,
Goldstone J stated that:
”
It was then
submitted that the matter was not urgent because, as yet, the
applicants are not in competition with the respondent.
That, however,
ignores the stated intention of the applicants to exploit the
copyright in video cassettes in South Africa.
“
The respondent’s
counsel submitted that there was no urgency in the absence of some
serious threat to life or liberty and
that the only urgency here was
of a commercial nature. It was because of this factor that the
applicants’ attorneys in fact
decided to set the matter down on
a Tuesday when the Chamber Court was in any event in session during
the Court recess to dispose
of unopposed applications.
“
In
opinion the urgency of commercial interests may justify the
invocation of Uniform Rule 6 (12) no less than any other interests.
Each case must depend upon its own circumstances…”
[19]
Furthermore, the fact that the respondents have been unable to pay
salaries of members of the applicant which led to contempt
of court
proceedings under case number J2909 / 2016 of the Labour Court is
indicative of the severity of the prejudice which the
applicants
members may have to suffer before getting their refund of deducted
money, should it be necessary in future (see annexure”MJM7”,
paginated page 128, Labour Court’s rule
nisi
for case
number J 2909/16).
CONCLUSION
[20]
I am not persuaded that the matter is not urgent. The applicant will
not have substantial redress in due course if this application
is not
heard on urgency. In the circumstance, the point in
limine
for
lack of urgency must fail. Costs will follow the vent.
ORDER
[21]
Accordingly, I make the following order:
1.
That
the point in
limine
for this court’s lack of jurisdiction is dismissed.
2.
That
the point in
limine
for lack of urgency is dismissed.
3.
That
the first and second respondents are ordered to pay the costs for the
two points in
limine
,
jointly and severally with the one paying the other to be absolved.
4.
That
the matter is postponed to the 8 August 2017 at 11h30 in the morning
for arguments on merits.
___________
MS
SIKHWARI, AJ
Acting
Judge of the High Court,
Limpopo
Division, Polokwane
REPRESENTATIONS:
1.
Counsel
for the Applicant
: Adv M Mannya
2.
Counsel
for the Respondents
: Adv KE
Masoga
3.
Date
of hearing
: 01 August
2017
4.
Date
handed down
: 04 August 2017