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2013
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[2013] ZAFSHC 184
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Mogoera-Leepile and Others v Free State Gambling and Liquor Authority and Another (2023/2012) [2013] ZAFSHC 184 (24 October 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case number:
2023/2012
In the matter between:-
S.S. MOGOERA -
LEEPILE
...................................................
First
Applicant
K.P. MOKOENA
................................................................
Second
Applicant
M.P. KAMBULE
....................................................................
Third
Applicant
P.M. MOTSITSI
...................................................................
Fourth
Applicant
and
THE FREE STATE
GAMBLING AND
LIQUOR AUTHORITY
.......................................................
First
Respondent
MEC: FREE STATE
DEPARTMENT OF
ECONOMIC
DEVELOPMENT, TOURISM &
ENVIRONMENTAL
AFFAIRS
......................................
Second
Respondent
CORAM
:
SNELLENBURG, AJ
JUDGMENT:
SNELLENBURG, AJ
HEARD
: 13
JUNE 2013
DELIVERED:
24 OCTOBER 2013
[1] The applicants apply,
by way of motion procedure, for orders
(i) that the first
respondent, the Free State Gambling and Liquor Authority, be ordered
in specific performance of an agreement
concluded between it and the
National Education, Health and Allied Workers Union and the Public
Services Association on 13 September
2010, to place each of the four
individual applicants in the employment positions identified and
earmarked for them with the first
respondent;
(ii) that the applicants
be allowed to perform their services in terms of their individual
employment agreements with the first
respondent, and
(iii) that first
respondent be ordered to pay the cost of the application, save in the
event that second respondent opposes the
application in which event
the applicants seek an cost order jointly and severally, the one to
pay the other to be absolved.
[2] The Free State Liquor
Board, as constituted by the Free State Liquor Act 3 of 2007, was
de-established and its functions absorbed
in terms of the Free State
Gambling and Liquor Authority Act 6 of 2010 [the FSGLAA] which
commenced on the 11
th
of June 2010.
[3] In terms of the
FSGLAA the Liquor Board and Gambling Authority were amalgamated.
[4] Section 142(b) of the
FSGLAA, before amendment, provided that all employees of the Liquor
Authority and the Free State Gambling
and Racing Board must be
transferred to the First Respondent.
[5] Prior to amalgamation
and in compliance with
Section 197
of the
Labour Relations Act 66 of
1995
, the first respondent, the National Education Health and Allied
Workers Union [NEHAWU] and the Public Services Association [PSA]
entered into an agreement [the agreement].
[6] The agreement is a
so-called migration and placement agreement which was ostensibly
signed on behalf of the Free State Gambling
and Liquor Authority on
the 13
th
of September at Bloemfontein and on behalf of
NEHAWU on the same day. The copy of the agreement appended to the
papers was not
signed on behalf of the PSA nor does it appear to have
been ratified by the authorised structure.
[7] The respondents do
not deny the existence of the agreement. From the facts in the papers
that are either common cause or which
cannot be denied it appears
that the agreement did come into existence and that performance in
terms of the agreement did take
place, barring of course the dispute
in this matter. I therefor accept that the agreement did come into
existence for purposes
hereof.
[8] In the agreement,
migration and placement are referred to interchangeably to mean the
process of appointing, placing, or repositioning
employees from one
post or position in an existing organisational structure to another
position in a new structure within the Free
State Gambling and Liquor
Authority, all of which are governed by the principle that strategy
defines structure, function defines
roles and persons to fulfil the
role within the old structure into the new structure.
[9] Transfer is likewise
defined as a transfer of contracts of employment that arises because
of the merger into Free State Gambling
and Liquor Authority by
operation of law in terms of
Section 197
of the
Labour Relations Act
66 of 1995
, e.g. transfer to the Free State Gambling and Liquor
Authority.
[10] The purpose of the
agreement is set out in clause 4 thereof stating,
inter alia
,
that the agreement seeks to ensure the permanent placement of
employees as far as possible by means of migration and placement
to
posts provided for in terms of the new organisational structure that
arose out of the merger of the erstwhile Liquor Authority
and
Gambling into FSGLA. Future migrational placement of employees will
thereafter be determined and guided by the applicable conditions
of
employment or policies adopted from time to time by the FSGLA.
[11] Application of the
agreement is defined or set out in clause 5, assuming that the
agreement applies to all employees employed
by the Gambling and
Racing Board and Liquor Authority at commencement of the agreement,
who are or who may potentially be affected
by merger and the Free
State Gambling and Liquor Authority new organisational structure. The
agreement applies to placement of
employees within the Liquor
Authority and Gambling and Racing Board, it being understood and
accepted that transfers of staff e.g.
the transfer to the Free State
Gambling and Liquor Authority, will be dealt with in accordance with
the applicable legislation,
most notably,
Section 197
of the
Labour
Relations Act.
[12
] It is the respective
applicants’ case that they were all employed by Free State
Liquor Board and, as such, that the collective
agreement is
applicable to them.
[13] The applicants state
that in lieu of the fact that they were employed by the Free State
Liquor Board and were included in an
organogram which was appended to
the agreement, that as such that they are entitled to an order that
the first respondent comply
with the agreement and, as stated, place
them in employment positions identified and earmarked for them within
the first respondent.
They request that they be allowed to perform
the services in terms of the individual employment agreements with
the first respondent.
[14] The applicants
furthermore state that they were told to remain at the erstwhile
offices of the Liquor Authority, Bloemfontein,
but that all the
office automation and tools required for performance of their
functions were removed by the first respondent.
Although they have
continued to receive their salaries, they have not been able to
perform any functions.
[15] The applicants
referred a dispute in terms of the agreement on 5 March 2012 and in
their words they ‘received no joy’.
[16] The dispute was
thereafter referred to the General Public Services Sectoral
Bargaining Council. The Applicants state that this
dispute has not
been resolved and is still pending, but they contend that it pertains
only to benefits that have been withdrawn.
It is therefore their case
that the process is irrelevant for purposes of adjudication of the
present application.
[17] It is the
applicants’ case that the agreement was entered into and
concluded to their benefit and as such they are entitled
to the
orders for specific performance thereof.
[18] The respondents
state that the applicants were all employed by the Free State
Department of Economic Development, Tourism and
Environmental Affairs
[the Department]. The respondents state that all four the applicants
were seconded to the Free State Liquor
Authority in terms of Section
15(3)(a) & (b) of the Public Services Act Proclamation 103 of
1994. This is not denied by the
applicants.
[19] It is thus the
respondents’ case that the agreement does not apply to the
applicants as they are not employees of the
Gambling Racing Board and
Free State Liquor Authority. The respondents also state that the
applicants have not been placed in the
present organisational
structure and that there are no positions available in the structure
in any event. The respondents contend
that the second respondent is
entitled to absorb the applicant within the Department who employs
them. The second respondent deposed
to the fact that the applicants
have not lost their employment benefit within the relevant Department
and that they have at all
relevant times been paid by the Department.
The Department is entitled to instruct them to remain in the offices
where they are
until such time as proper arrangements are made for
the absorption within the Department. In the alternative the
Respondents aver
that specific performance is a discretionary remedy
and that in the circumstances of the matter the Court should elect
not to exercise
its discretion in favour of the applicants. The
respondents’ canvassed certain other defences as well which, in
light of
the findings below, need not be dealt with.
[20] The respondents have
appended the current organisational structure evidencing the fact
that the Applicants have indeed not
been absorbed into the first
respondent’s organisational structures.
[21] On evaluation the
facts of the matter I am not satisfied that the applicants have made
out a proper case for relief that they
pray for. This conclusion is
premised on the following findings:
21.1. It is common cause
that the applicants were indeed appointed by the Free State
Department of Economic Development, Tourism
and Environmental
Affairs. They were not employed, alternatively was an employment
contract never entered into and concluded between
them and the
erstwhile Free State Liquor Authority.
21.2. It is common cause
between the parties that the applicants were seconded by their
employer, the relevant Department, to the
Free State Liquor Authority
during 2008.
[22] To my mind, the fact
that the applicants were seconded to the Free State Liquor Authority
and would receive day to day instructions
from the Free State Liquor
Authority with regards to performance of duties does not
per se
bring about an employment agreement between the Free State Liquor
Authority and them. It therefore does not necessarily mean that
they
are ‘employed’ by the said entity. I am astute to the
fact that these are motion proceedings. I am not satisfied
on the
evidence presented that I can find that the applicants were employed
by the Free State Liquor Authority and that the collective
agreement
would indeed be applicable to the respective applicants.
[23] The finding in this
regard must, as far these are motion proceedings, not be seen as
being
res iudicata
of this issue. It will have the effect of
an order of absolution of the instance.
[24] The applicants
suffer no prejudice currently save that they wait to be utilised. On
their version they have referred a dispute
with regards to certain
benefits which they aver has been unilaterally taken away from them,
to the relevant Bargaining Council
and that matter is still pending.
[25] In light of my
findings above it is not proper, nor necessary to consider any other
issue, save the matter of costs.
[26] For the
aforementioned reasons I am inclined to dismiss the application,
subject to the qualification that the order will not
have the effect
of finally disposing of the dispute between the parties. It has the
effect of an order of absolution of the instance.
[27] The general rule
with regards to cost is that it follows the event.
[28] In this matter and
for the reasons that follow I am of the view that the interests of
justice will be best served if the normal
order with regards to cost
is departed from.
[29] When the applicants,
through Legal Wise, placed the first respondent on terms with regards
to the agreement on which they rely,
the second respondent relied on
the amendment of Section 142 of the FSGLAA, which amendment was
subsequently not even argued on
behalf of the respondents. The fact
is that none of the defences raised in the answering affidavit was
preferred in reaction to
the letter of demand.
[30] Counsel on behalf of
the Respondents conceded that the Court may take this aspect into
consideration in adjudicating what a
just cost order in this matter
would be if the application is dismissed.
[31] Conversely, the
applicants, after receipt and perusal of the answering affidavit, saw
fit to persist with the application.
I am alive to the fact that the
applicants have in fact not made out a case for the relief they seek.
But they were not favoured
with the true grounds on which the
respondents would oppose the application. I am also aware of the fact
that the applicants are
salaried persons who have lost some of their
benefits and that they are not being utilised notwithstanding
receiving a salary.
Their stance that they want to be utilised is
commendable. They may very well have elected to go about things in a
very different
manner had they been afforded a proper response to
their demand. They may also have elected to rather pursue other
remedies.
[32] I am also of the
view that the obligation to put forward the terms of the applicants’
employment in this matter rested
equally on the applicants and the
respondents who should without ado be able to produce and disclose
the same. It does not alter
the applicable principles in adjudication
of the matter, but it certainly contributed to the eventual fate of
the matter.
[33] In light of the
aforementioned I am of the opinion that the just and equitable award
of cost in this matter would be that each
party should pay his / its
own cost.
[34] In the premises the
following order is made:
1. The application is
dismissed;
2. Each party is to pay
his / its own cost of the application.
___________________
N. SNELLENBURG, AJ
On behalf of the 1st, 2nd
and
3rd applicants: Adv. S.
Grobler On instruction of: Qwelane Theron & Van
Niekerk BLOEMFONTEIN
On behalf of the 4th
applicant: Adv. S. Grobler On instruction of: Ponoane
Attorneys BLOEMFONTEIN
On behalf of the 1st &
2nd respondents: Adv.
D.T. Skosana
On instruction of:
State Attorney (IP Gough)
BLOEMFONTEIN
NS/sp