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[2013] ZAECELLC 4
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Zono v Minister of Police and Others (EL 1092/2012, ECD 2492/2012) [2013] ZAECELLC 4 (2 May 2013)
27
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION)
HELD
AT EAST LONDON
CASE
NO: EL 1092/2012
ECD
2492/2012
Date
Heard: 02 October 2012
Date
delivered: 2 May 2013
In
the matter between:
NYANISILE
ZONO
...........................................................................................................
Applicant
and
MINISTER
OF POLICE
.................................................................
1
st
Respondent
THE
NATIONAL COMMSSIONER:
SOUTH
AFRICAN POLICE SERVICE
........................................
2
nd
Respondent
PROVINCIAL
HEAD: CRIME
INTELLIGENCE,
EASTERN CAPE
.............................................
3
rd
Respondent
Nature of matter:
Labour law - employment contract –
enforcement of the contract -
termination
of payment of salaries to the applicant – jurisdiction –
urgency etc
Order:
The termination of
applicant’s salary is declared invalid and set aside; 1
st
,
2
nd
and
3
rd
respondents are hereby ordered
forthwith to re-instate and pay applicant’s salary with
retrospective effect; & 1
st
,
2
nd
and
3
rd
respondents pay the costs of
this application.
JUDGEMENT
DUKADA
J:
[1]
This is an application in which the Applicant seeks the following
orders:-
(i)
That the applicant’s non-compliance with provisions of the Rule
6 (5) of the Rules of this Honourable Court be condoned
and that
leave be granted to the applicant to bring this applications as a
matter of urgency in terms of Rule 6 (12) of the Rules
of Court;
(ii)
That a Rule Nisi do hereby issue calling upon the respondents to show
cause, if any, on 23
rd
October 2012 at 10H00 or so soon
thereafter as the matter may be heard, why an order in the following
terms should not be made
final:-
That
the respondent’s action of terminating applicant’s
salary or remuneration be and is hereby
declared
unlawful, invalid and of no force and effect;
That
the respondents be and are hereby ordered to forthwith re-
instate applicant’s salary or remuneration
with retrospective effect.
That
the respondents’ intention or threat to terminate applicant’s
contract of employment with the
respondent be and
is hereby declared unlawful, invalid and of no
force and effect;
That
the respondents be and are hereby prohibited, restrained and/or
interdicted from terminating applicant’s
contract of
employment with the respondents;
That
the respondents’ notice of intended placement issued on 8
th
2009 marked as annexure “D” be and is
hereby declared unlawful, invalid and of
no force
and effect,
That
the action of placing or transferring the applicant to Mdantsane
Crime Intelligence Cluster as an intelligence
collector be
and is hereby declared unlawful;
That
the respondents be and are hereby prohibited, restrained and/or
interdicted from placing or transferring
the applicant to
Mdantsane Crime Intelligence Cluster as an
Intelligence Collector.
That
the provisions of paragraphs 2.2, 2.3 and 2.7 above shall operate as
an interim interdict or mandamus pending finalization
of this
application.
[2]
This application is strenuously opposed by the respondents.
[3]
A certificate of urgency was presented to Van Zyl J who, after
due consideration of the same, decided on the 10 September
2012
that “the matter does not appear to be sufficiently urgent
to be heard on a day other than motion court day. If
“
it is
enrolled it must be done with prior service and notice to the
respondents
.”
The
papers were served upon respondent’s attorneys on the 11
September 2012 and this application was then set down for hearing
in
the Motion Court on Tuesday 18 September 2012.
[4]
Smith J on 18 September 2012 granted the following order:-
“
(i)
That the application be and is hereby postponed to 2
nd
October
2012;
(ii)
That the applicant is hereby directed to file his replying affidavit,
if any and Heads of Argument on or before 25 September
2012;
(iii)
That the respondents are hereby directed to file their Heads of
Argument on or before 26 September 2012;
(iv)
That the costs occasioned by the postponement are reserved”.
[5]
Respondents delivered their answering affidavit and applicant also
delivered his replying affidavit.
[6]
The matter then came before me on the 2
nd
September 2012
and was fully argued.
FACTUAL
BACKGROUND
[7]
The facts are largely common cause. The applicant is residing at No.
3 St Marks, Road Southernwood, East London. He was employed
by the
South African Police Services on 8
th
April 1987.
He
spent two years as a crime prevention officer and nine years in the
finance department and ten years in the technical support
services
section. He joined the technical support services after having
completed the necessary trainings, workshops and courses
for that
unit.
He
opened a third branch of the technical support services unit and
became a commander thereof until July 2005 when he was elevated
to
the rank of a captain.
He
then became a section commander of the electronic surveillance and
technical support service based at no. 12 St Peters Road,
Southernwood, East London.
[8]
Applicant was later transferred and placed at Mdantsane Crime
Intelligence Collection Office, East London.
He
refused to go there. He objected to the afore-mentioned placement and
submitted representations in that regard.
[9]
During May 2012 applicant received a copy of a letter dated 15 May
2012 written by the Provincial Head of Crime Intelligence,
Eastern
Cape, paragraphs 2 and 3 of which read as follows:-
“
2.
Our records indicate that you never took up the post or tendered your
services at the Mdantsane Crime Intelligence Station. We
record that
you had no permission to report at any other work-place of crime
intelligence or the South African Police Service.
We do not regard
such a tender as a proper tender of service.
2.1.
We record our view that you have been absent from work without any
authority. Please be advised that a contract at common law
is of
reciprocal nature. You must tender your services in exchange for
which your employer will remunerate you.
2.2.
You failed to comply with your obligation to tender your service in
terms of your contract of employment and as such, the contract
is
deemed to be suspended.
2.3.
It is our view that you have been absent from work for an
unreasonably long period and as such have repudiated your contract
of
employment.
3.
You are hereby afforded the opportunity to submit written
representations with seven (7) days from receipt of this letter as
to
why should we not terminate your contract with the South African
Police Service.”
Applicant
replied to that letter per his of the 4 June 2012. In that letter
applicant disputed that he had not made representations,
saying he
had done so in response to a letter dated 8 April 2009. He also
denied that he has been absent from work as he has been
reporting for
duty in the office at 12 St Peters Road, Southernwood, East London
where he was left alone when the other members
were placed in the
Mdantsane office. He further stated that he is in that office “until
proper official process to place
him elsewhere is followed”. He
categorically denied to have been absent from work without proper
authority.
[10]
The Provincial Head of Crime Intelligence, Eastern Cape, replied per
a letter dated 22 June 2012, paragraphs 2 and 3 of which
read as
follows:-
“
2.
Accordingly
you are hereby informed that you should take up your post at the
Mdantsane Crime Intelligence Office with immediate
effect and not
later than the 29
th
June
2012. It is our view that your assumption of your duties at Mdantsane
Crime Intelligence is in the interests of the service.
3.
Please be advised that in the event that you fail and/or neglect to
take up your post as indicated above, the service reserves
the right
to suspend its obligation to remunerate you”
Applicant
in his reply dated 27 June 2012 states as follows in sub-paragraphs
1.1 and 1.2:-
“
I
wish to place on record that I duly made the required representation
to the relevant office of the National Commissioner (National
Placement Committee- which committee has since been disbanded) on
2009.05.15. Enclosed herewith please find a copy of the fax
transmission slip or communication journal as the proof that it was
received by the office of the National Commissioner.
1.2.
Thereafter it is clear from the aforegoing that a representation was
made and there is no determination on it, therefore I
cannot take the
post you wish me to take at Mdantsane Crime Intelligence Office until
such time that the relevant office has made
some consideration and
determination of the process of the representation made.”
[11]
On the 17 August 2012 applicant further received a copy of a letter
dated 18 July 2012 written by the Provincial Head of Criminal
Intelligence, Eastern Cape which reads as follows:-
“
NOTICE
OF INTENTION TO TERMINATE YOUR EMPOYMENT COTRACT: CAPTAINN.ZONO
PERSAL NO: 0526605-0
A.1
Your letter dated 27
th
June 2012 bears
reference.
2.
The contents of your letter are dully noted. Please be advised of our
view that you have not provided us with any compelling
reasons as to
why you are unable to take up the post of Mdantsane Crime
Intelligence.
3.
We record that your continued refusal to take up your post seriously
hampers the service delivery at Mdantsane Crime Intelligence.
We
further record that despite our office informing you of the
consequences of your continued absence from work you elected not
to
tender your services as instructed. Our records indicate that you
have been absent from work without authority for an unreasonably
long
period.
4.
Accordingly you are hereby informed that the South African Police
Service suspends, with immediate effect, its obligation to
remunerate.
5.
Please be further advised that in the event that you continue to
absent yourself without authority and fail to take up your post
as
instructed, the South African Police Service will terminate your
employment contract.”
Applicant
states in paragraph 4.8 of his founding affidavit that this letter is
the one that prompted these proceedings.
[12]
Respondents have raised points in
limine
in their answering
affidavits as follows:-
JURISDICTION
5.1.
That this Court lacks jurisdiction to entertain this application.
The issues in this dispute in the instant matter relate to employment
relationship and, accordingly, fall under the exclusive jurisdiction
of the Labour Court as envisaged in s 157 (1) of the Labour
Relations
Act 66 of 1995 (“the LRA”)
5.2.
Alternatively, it is not competent for this Honourable Court to
grant the Order sought by the applicant in prayers 2.3, 2.4, 2.5,
2.6
and 2.7 of the Notice of Motion. The relief sought by the applicant
in the afore-mentioned prayers relates exclusively to employment
issues which must be referred either to the Bargaining Council or the
Labour Court.”
(b)
URGENCY
“
6.1.
The respondents contend that the application is not urgent. In an
urgent application an applicant is required to set forth
explicitly
the circumstances which he avers renders the matter urgent and the
reasons why he claims that he could not be afforded
substantial
relief at a hearing in due course.
6.2.
The high-water mark of applicant’s averments in support of
urgency appears at paragraphs 12 to 20 of the founding affidavit.
Those averments are less than explicit as required by the Rule. They
simply concern an alleged financial prejudice to the applicant
and
his siblings.”
(c)
Respondents further raise non-compliance with Rule 12 (a) (i) of the
Court Notice 1 of 2012.
[13]
I will first deal with the respondents’ points in
limine
as set out above.
JURISDICTION
[14]
The question of jurisdiction that is raised by the respondents in
this matter is, in my view, not the real dispute but an issue
in a
dispute.
In
Johannesburg
City Parts v Mphahlani NO & Others,
1
the
Court explained the difference between a dispute and an issue in a
dispute as follows:-
“
Let
me make an example to illustrate the distinction between a dispute
and an issue in a dispute. One may have a situation where
an employee
is dismissed for operational requirements and that dismissal is
challenged as unfair because it is said that in terms
of a certain
collective agreement the employer was supposed to follow a certain
procedure before dismissing the employee but did
not follow such
procedure. In such a case, in determining whether the dismissal was
fair or unfair, the Labour Court would have
to determine whether the
relevant provisions of the collective agreement were applicable to
that particular dismissal. The employer
may argue that although the
collective agreement is binding on the parties, the particular clause
did not apply to a particular
dismissal. This means that the Labour
Court has to interpret and apply the collective agreement in order to
resolve the dispute
concerning the fairness or otherwise of the
dismissal and the issue of whether certain clauses of the collective
agreement are
applicable and or were complied with before the
employee was dismissed is an issue necessary to be decided in order
to resolve
the real dispute.
In
the above example it cannot be said, for example, that the Labour
Court has no jurisdiction to adjudicate the dispute concerning
the
dismissal for operational requirements and it must be referred to
arbitration just because prior to or in the course of resolving
the
dismissal dispute, the issue concerning the interpretation or
application of certain clauses of collective agreement must be
decided. It would be different, however, where the main dispute, as
opposed to an issue in a dispute is the interpretation or application
of a collective agreement. In the latter case the Labour Court would
ordinarily not have jurisdiction in respect of the dispute
and the
dispute would be required to be resolved through arbitration in terms
of the LRA.”
This
dictum was quoted with approval by Zondo JP (as he then was) in
Minister
of Safety and Security v Safety and Security Sectoral Bargaining
Council & Others.
2
[15]
This explanation, in my view, applies to the present case. The real
dispute is as contained in prayers 1 (ii) (a), (b), (c),
(d), (e),
(f) and (g) mentioned in paragraph 1 above.
[16]
The respondent has decided not to pay to applicant his salary for the
reason that he has failed to take up his post where he
has been
placed i.e at Mdantsane Crime Intelligence Collection Office, East
London. Respondent submits that applicant is not entitled
to receive
salary while not rendering services. Respondent states that applicant
was placed at Mdantsane Crime Intelligence Collection
Office in terms
of the Safety and Security Sectoral Bargaining Council Agreement No.
3/2006 dated 7 September 2006.
[17]
Applicant on other hand states that his placement at Mdantsane Crime
Intelligence Collection Office should have been in terms
of document
with the title “
Restructuring of the South African Police
Service:
Placement of employees
” by the National
Commissioner, South African Police Service on the 25
th
August 2008 issued to all Provincial. Commissioners, all Divisional
Commissioners at Head Office, all Heads at Head Office, all
Commanders at SAPS Colleges and Training Centres, all Section Heads
at Head Offices, all Deputy National Commissioners, the Chief
of
Staff at Ministry of Safety and Security, and the Secretary at
National Secretariat for Safety and Security. Applicant further
states that this transfer to Mdantsane Crime Intelligence Collection
Office should have been made in terms of agreement reached
by the
Safety and Security Sectorial Bargaining Chamber No. 5/1999 dated 8
October 1999 and that agreement was not complied with.
In
my view, if any applicable document or agreement mentioned above was
complied within placing the applicant at Mdantsane Crime
Intelligence
Collection Office, the disputed issue of the consequences which
applicant seeks to have rectified, would arise.
The
issue whether any of the above-mentioned document or agreement is
applicable to the said placement of the applicant or were
complied
with in placing the applicant as afore-mentioned is, in my view, an
issue in a dispute, not a real dispute as set out
above.
[18]
Mr Gqamana, Counsel for the respondent, in his argument did not
pursue the point that “
the issues in dispute in the instant
matter relate to empowerment relationship and, accordingly, fall
under the exclusive jurisdiction
of the Labour Court as envisaged in
s 157 (1) of the Labour Relations Act, 66 of 1995 (“the LRA”).”
This
objection challenged this entire application. He, instead, pursued
the issue of lack of jurisdiction by this Court in respect
of prayers
1 (ii), (c), (d), (e), (f) and (g) mentioned in paragraph 1 above.
THE
LAW
[19]
Section 157
(1) and (2) of the
Labour Relations Act 66 of 1995
provides as follows:-
“
(1)
Subject to the Constitution 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 High Court in
respect of any alleged or threatened violation of any fundamental
right entrenched in Chapter 2 of the Constitution of the Republic of
South Africa, 1996 and arising from –
(a)
employment and from labour relations;
(b)
any dispute over the constitutionality of any executive or
administrative
act or conduct, by the State in its capacity as
an employer;
(c)
the application of any law for the administration of
which the Minister
is
responsible.”
[20]
Discussing s157, Van der Westhuizen J, remarked as follows in
Gcaba
v Minister of Safety and Security
3
:-
“
Furthermore,
the LRA does not intend to destroy causes of action or remedies and
s57 should not be interpreted to do so. Where a
remedy lies in the
High Court, s 157 (2)cannot be read to mean that it no longer lies
there and should not be read to mean as much.
Where the judgment of
Ngcobo J in Chirwa speaks of a court for labour and employment
disputes, it refers to labour and employment
disputes, it refers to
labour- and employment-related disputes for which the LRA creates
specific remedies. It does not mean that
all other remedies which
might lie in other courts, like the High Court and Equality Court,
can no longer be adjudicated by those
courts. If only the Labour
Court could deal with disputes arising out of employment relations,
remedies would be wiped out, because
the Labour Court (being a
creature of statute with only selected remedies and powers) does not
have the power to deal with the
common-law or other statutory
remedies.”
[21]
JURISDICTION ON THE BASIS OF THE PLEADINGS.
Langa
CJ, concurring in his minority judgment in the outcome reached by the
majority, remarked as follows in
Chirwa
v Transnet Ltd and Others
4
:-
“
The
finding, however, rests on the case as pleaded by Ms Chirwa. She
formulated her case on the basis of PAJA, and a Court must
assess its
jurisdiction in the light of the pleadings. To hold otherwise would
mean that the correctness of an assertion determines
jurisdiction a
proposition that this Court has rejected. It would also have the
absurd practical result that whether or not the
High Court has
jurisdiction will depend on the answer to a question that the Court
could only consider if it had that jurisdiction
in the first place.
Such a result is obviously untenable.”
5
[22]
Van der Westhuizen J further remarked as follows in Gcaba’s
case in paragraph 75:-
“
In
the event of the court’s jurisdiction being challenged at the
outset (in limine), the applicant’s pleadings are the
determining factor. They contain the legal basis of the claim under
which the applicant has chosen to invoke the court’s
competence. While the pleadings-including, in motion proceedings, not
only the formal terminology of the notice of motion, but
also the
contents of the supporting affidavits-must be interpreted to
establish what the legal basis of the applicant’s claim
is, it
is not for the court to say that the facts asserted by the applicant
would also sustain another claim, cognisable in another
court. If,
however, the pleadings, properly interpreted, establish that the
applicant is asserting a claim under the LRA, one that
is to be
determined exclusively by the Labour Court, the High Court would lack
jurisdiction.”
[23]
Turning to the case at hand, the orders sought by the applicant in
paragraphs 1(ii), (a), and (b) mentioned above, concern
the
termination of payment of salaries to the applicant. Further
applicant, in paragraph 5.7 of his founding affidavit, sates:-
“
I
therefore submit confidently that the termination of my salary in
terms of paragraph 5 of annexure ‘N21’ is unlawful
and of
no force and effect as it does not enjoy the recognition of the law.”
[24]
The applicant’s case in respect of termination of payment of
salary as set out in his founding affidavit is that there
exists a
contract of employment between him and the respondents, from which
flow an obligation on the part of the respondents to
pay him his
salary.
Applicant
seems to me to seek to enforce the said contract of employment and he
attacks the respondents’ act of terminating
the payment of his
salary on the ground of unlawfulness.
[25]
Dealing with the question whether the dispute was within the terms of
s 191
of the
Labour Relations Act of 1995
, Nugent AJA (as he then
was) remarked as follows in
Fedlife
Assurance Ltd v Wolfaardt
6
:-
“
Whether
a particular dispute falls within the terms of
s 191
depends upon
what is in dispute, and the fact that an unlawful dismissal might
also be unfair (at least as a matter of ordinary
language) is
irrelevant to that enquiry. A dispute falls within the terms of the
section only if the ‘fairness’ of
the dismissal is the
subject of the employee’s complaint. Where it is not, and the
subject in dispute is the lawfulness of
the dismissal, then the fact
that it might also be, and probably is unfair, is quite coincidental
for that is not what the employee’s
complaint is about. The
dispute in the present case is not about the fairness of the
termination of the respondent’s contract
but about its
unlawfulness and for that reason alone it does not fall within the
terms of the section (even assuming that the termination
constituted
a ‘dismissal’ as defined in chap 8). In those
circumstances the respondent’s action is not a ‘matter’
to be adjudicated by the Labour Court as contemplated by
s157(1)
and
the special plea was correctly set aside.”
[26]
This Court, in my view, therefore, has a jurisdiction in respect of
orders sought in paragraphs 1(ii)(a) and (b) above.
[27]
I now proceed to deal with orders sought in paragraphs 1 (ii), (c),
(d), (e), (f) and (g) above.
[28]
Applicant in the afore-mentioned prayers seeks orders dealing with
the termination of his contract of employment, placement
or transfer
to Mdantsane Crime Intelligence Collection Office.
Paragraph
11 of respondents’ answering affidavit states. “
The
applicant was employed by the SAPS and based at the Crime
Intelligence Technical Support Services at East London. The SAPS and
the recognised Unions in the Sector entered into an agreement on 7
August 2006. A copy of such agreement is attached hereto marked
‘N21:
Effectively in terms of the afore-said agreement employees were
matched and placed in accordance with SAPS needs and
based on service
delivery”
.
Applicant
admitted in his replying affidavit the contents of this paragraph. In
fact in his replying affidavit applicant does not
deny that his
placement or transfer was to be implemented in terms of the agreement
concluded between SAPS and the recognised unions
in the Sector on 7
August 2006. The agreement is attached to respondent’s
answering affidavit and has heading reading: “
Agreement
Safety and Security Sectoral Bargaining Council Agreement No: 3/2006
dated 07-09-2006”
and is signed on behalf of South African
Police Service as employer, South African Police Union, and Police
and Prisons Civil Rights
Union, as employees at Pretoria on 7
th
September 2006.
Applicant
also mentions in paragraph 9.2 of his founding affidavit an agreement
that was concluded at a Safety and Security Sectoral
Bargaining
Chamber (SSSBC) No. 5/2009 between South African Police Service,
SAPU, PSA and POPCRU which regulates the transfer of
the employees.
He further states that he is a member of POPCRU and therefore he was
represented in concluding that agreement. That
agreement is annexed
to his founding affidavit and bears the title: “
Agreement
reached by the Safety and Security Sectoral Bargaining Chamber
(SSSBS) No 5/1999 dated 8 October 1999 and signed by the
representatives of South African Police Services (as employer), SAPU,
PSA and POPCRU.”
[29]
In my view the determination of the issue of termination of
applicant’s contract of employment, placement or transfer
will
involve,
inter alia
, deciding as to which agreement or
document should have been followed or was followed. The agreements in
question here being collective
agreements concluded between the
employer and employee unions, will in all likelihood have to be
interpreted and/or applied. The
Labour Relations Act provide
as for
bodies (including bargaining councils) in which proceedings are held
that are about all kinds of disputes such as dismissal
disputes,
proceedings about disputes concerning the interpretation or
application of collective agreements etc.
Van
der Westhuizen J comments as follows on such bodies or structures:-
“
As
found in Chirwa, the Labour Court and other LRA structures have been
created as a special mechanism to adjudicate labour disputes
such as
alleged dismissals grounded in the LRA and not, for example,
applications for administrative review. The High Court adjudicates
the alleged violations of Constitutional rights, administrative
review applications, and of course all other matters. This
corresponds
with a proper interpretation of
s157
(1) and (2).”
7
anc" HREF="#sdfootnote7sym">
7
[30]
The determination of the issue of the termination of applicant’s
contract of employment, placement or transfer appears,
in my view, to
be a quintessential labour related issue as analysed above. To hold
otherwise, in my view, would be to allow forum
shopping
8
.
Consequently I find that this Court has no jurisdiction in respect of
orders sought in paragraphs 1(ii), (c), (d), (e), (f), and
(g) above.
[31]
I now proceed to deal with the second ground of respondent’s
objection, viz, urgency.
[32]
Mr Gqamana has argued strenuously that this application lacks
urgency. He stated that a letter giving applicant notice to terminate
his contract of employment and calling upon him to make
representations is dated 15
th
May
2012. Applicant wrote to the respondent making representations per a
letter dated 4 June 2012. A further letter from 3
rd
respondent
dated 22 June 2012 also with heading “
NOTICE
OF INTENTION TO TERMINATE YOUR EMPLOYMENT CONTRACT CAPTAIN N. ZONO:
PERSAL NUMBER 0526605-0”
was
copied to applicant. This letter calls upon applicant to take up his
post at Mdantsane Crime Intelligence Office and also states
that the
“s
ervice
reserves the right to suspend its obligation to remunerate”
applicant.
Applicant responded to this letter per his letter dated 27 June 2012
insisting that his representations be considered.
Me
Gqamana further stated that applicant thereafter only launched this
application on the 11 September 2012.
Mr
Gqamana further contended that applicant has failed to set out
explicity in his affidavit the averments justifying for dispensing
with the provisions of Rule 6 (5)(a) and (b) of the Uniform Rules.
[33]
In reply Mr Zono argued that the objection as to urgency has been
rendered moot by the order granted by this Court on the 18
September
2012 regarding the filing of further affidavits. He submitted that
the respondents have not been prejudiced by the alleged
non-compliance with Rule 6 (5) (a) and (b) of the Uniform Rules.
He
further argued that the Rules are for the Court and not the Court for
the rules. He submitted that for that reason formalism
in the
application of the Rules is not encouraged by Courts.
[34]
I may point out at this stage that the applicant, however, states in
paragraph 4.8 of his founding affidavit that it is the
letter dated
18 July 2012, written by the 3
rd
respondent, which
prompted these proceedings. Applicant received a copy of that letter
on 17 August 2012. Paragraph 5 of that letter
reads:
“
Accordingly
you are hereby informed that the South African Police Service
suspends with immediate effect its obligations to remunerate
you.”
A
copy of that letter was received by the applicant on the 17 August
2012 and this application was launched on the 11 September
2012.
THE
LAW
[35]
Sub-rules (a) and (b) of Rule 12 of the Uniform Rules provide for
urgent applications. These sub-rules read as follows:-
“
(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 be as practicable be
in terms of
these rules) as to it seems meet.
(b)
In every affidavit or petition filed in support of any application
under paragraph (a) of this sub-rule, the application shall
set forth
explicitly the circumstances which he avers render the matter urgent
and the reasons why he claims that he could not
be afforded
substantial redress at a hearing in due course”.
[36]
Kroon J, discussing these sub-rules in
Caledon
Street Restaurants CC v D’ Aviera,
9
remarked
as follows:-
“
Therefore,
in the case of an urgent application which, it may be mentioned,
involves not only the abridgement of times prescribed
by the rules,
but also the departure from established filing and sitting times of
the court, an applicant is permitted to proceed
by way of notice of
motion without having full regard to the rules applicable to
adjudication in the ordinary course. The applicant
is allowed,
depending on the circumstances of the case, to make his own rules but
as far as practicable in accordance with the
existing rules.
10
[37]
It
is also correct that courts are enjoined by Rule 6 (12) to deal with
urgent application in accordance with procedures that follow
the
Rules as far as possible and that involves the exercise of a judicial
discretion by a Court
‘
concerning
which deviation it will tolerate in a specific case’
11
.”
The
degree or extent of relaxation of the rules and of the ordinary
practice of the Court will depend on the demands of the urgency
of
the case. It must be commensurate therewith. Those exigencies must
appear from the papers.
12
In
other words, the applicant must set out averments of urgency in the
affidavit and facts upon which such averments are based.
13
In
Sikwe
v SA Mutual Fire and General Insurance,
14
Kirk
– Cohen AJ (as he then was) remarked as follows:
“
In
my opinion, an applicant who wishes to rely on the procedure provided
for in Rule 6 (12) must set out sufficient facts in the
founding
affidavit to enable the Court to decided 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 matter
is urgent. It does not
follow that an application is necessarily defective if the form
referred to in the Rule is not strictly
addressed to. In my opinion,
it is the substance of the affidavit, and not its from, which will
weigh with a Court; if an affidavit
set out facts upon which a Court
can decide that an applicant is entitled to relief in terms of the
sub-rule 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 compiled
with requirements of the sub-rule, even thought he does not make a
specific averment that
it is urgent.”
This
remark was quoted with approval by Van Zyl J in Cekeshe and others,
supra, at 948 C-D.
I
fully agree with this view.
[38]
Turning to this matter, applicant states in his founding affidavit
that if the interim relief is not granted he will suffer
an
irreparable harm or prejudice. He states that his salary is his only
income and is the sole bread-winner at his home and has
a number of
dependants to take care of with his salary. They depend on him for
food, clothing, school fees medical expenses and
other requirements.
His dependants include five young children. He further sates that a
number of debit and stop orders for his
motor vehicle and
accommodation payments are met from his salary.
On
the other hand, respondents contend that the financial prejudice or
loss that the applicant seeks to rely upon as the basis and
justification for dispensing with the provisions of Rule 6 (5)(a) and
(b) of the Uniform Rules, has not been established. The basis
advanced for this contention is that the applicant has not been
rendering any services to the South African Police Service. They
submit that receipt of salary is reciprocal in nature and if an
employee is not rendering any services to the employee, such employee
is not entitled to receive salary.
Mr
Zono countered this argument by referring me to Regulation 20 (j) of
the Regulations for the South African Police Service made
under
section 24 (1) of the South African Police Service Act 1995 (Act
No-68 of 1995) (hereinafter referred to as SAPS discipline
regulations). Regulation 20 of these Regulations deals with
Misconduct and mentions specific acts or conducts as misconduct.
Regulation
20 (j) creates the following misconduct: “
(j)
absents himself or herself from work without reason or permission”.
Mr
Zono also referred to Regulation 5 which deals with the nature of
misconduct. Regulation 5 (1) reads:-
“
Employee
conduct that may warrant disciplinary action is listed in regulation
20.”
He
argued that a disciplinary hearing should have been first conducted
in respect of the alleged misconduct of the applicant and
only after
he is found having committed the alleged misconduct, a sanction could
be imposed on him as provided for in Regulation
14. Regulation 14
prescribes as to how a disciplinary hearing should be conducted. He
further contended that Regulation 15, which
contains sanctions which
can be imposed, does not contain a sanction to terminate an
employee’s salary.
[39]
One of the purposes of the SAPS discipline regulations is described
in Regulation 3 is to prevent arbitrary actions by supervisors
towards employees in the event of misconduct. Regulation 4 provides
that the SAPS discipline regulations are based on principles,
one of
which is mentioned in sub-regulation (d) (i) as “
the fair
treatment of employees by ensuring that they enjoy a fair hearing in
both the formal and informal proceedings.”
[40]
In my view, to summarily terminate applicant’s salary without a
prior finding and sanction of a disciplinary hearing,
flagrantly
flouts the purpose and principle of fairness espoused in the SAPS
discipline regulations.
I
tend to agree with the contentions by Mr Zono.
[41]
Mr Gqamana also submitted that financial hardship or loss of income
is not a basis of urgency and that applicant has to show
exceptional
circumstances before interim relief is granted. He referred me in
support of his argument to Democratic Nurses Organisation
of SA and
Another v Director-General, Department of Health and Others.
15
In
this case Molahleki J followed the judgment in
Malatji
v University of the North
[2003] ZALC 32
(LC)
which
within followed the decision in
Nasionale
Sorghum Bierbrouery (Edms) Bpk (Rantoria Divisie) v John No &
Andere (1990) 11 ILJ 971 (T)
.
It
may be mentioned that in the University of the Western Cape Academic
Staff Union & Others case, supra, the applicant had
been
dismissed and the gravamen of the Court’s decision was that:
“
with regard to the notion of irreparable harm it needs to
be mentioned that loss of income as a result of dismissal is the
inevitable
consequence and as such provides no ground for the
granting of urgent relief
.” In the Malatji case,
supra,
the applicant’s service had also been terminated and
furthermore she failed to furnish in her papers sufficient
information
regarding her financial circumstances. In the Democratic
Nursing Organisation of SA and Ano, supra, the applicant failed to
show
that there were special circumstances for granting the relief
sought.
[42]
In
casu
the applicant’s salary has been terminated
without first conducting a disciplinary enquiry in respect of the
alleged misconduct
in which a decision would have been made and a
penalty imposed, as prescribed by the SAPS disciplinary regulations.
Furthermore,
in my view, the applicant has shown financial hardship
that he and his dependants will suffer as a result of the termination
of
his salary. For as long as the issues highlighted above in
paragraph 18 above have not been resolved, the applicant’s
future
would remain uncertain and his financial hardship will in all
probabilities persist. It is clear to me that the applicant would
not
be afforded “
substantial redress at a hearing in due course”
as such disciplinary proceedings may take some time.
In
Cekeshe & Others case, supra, Van Zyl J, also dealing with the
aspect of non-payment of salaries as a ground for urgency,
remarked
as follows at 948 F-G:-
“
I
am of the opinion that, on the facts alleged in the applicant’s
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.”
In
the circumstances, in my view, the cases referred to by Mr Gqamana
are distinguishable from this case.
[43]
The respondents also raised an objection that the applicant has
failed to comply with Rule 12(a)(i) of the Rules of Practice
of this
Court in that he fixed, without the approval of a Judge, the date,
time and place of the hearing of this application.
In
reply the applicant states that the certificate of urgency was placed
before Van Zyl J and on the 10
th
September 2012 he gave
directions with regard to the hearing and further conduct of the
matter.
[44]
From the papers Van Zyl J issued a directive in terms of Practice
Rule 12(a) (i) of the Joint Rules of Practice on the 10 September
2012 as mentioned in paragraph 3 above.
[45]
The applicant’s papers were served on the respondent s’
attorneys on the 11 September 2012 and also issued on that
day
setting this application for hearing on the 18 September 2012 at
10H00. The 18
th
September 2012 was on a Tuesday which is
our Motion Court day. A notice to oppose was delivered on the 17
September 2012 and on the 18 September 2012 Smith J, by
agreement between the parties, postponed this application to 20
October
2012, putting the parties to terms as to filing of further
affidavits and Heads of Argument.
In
my view, this objection by the respondents has no merit at all and it
falls to be rejected.
[46]
The respondents also raised an objection to the effect that the
Notice of Motion is defective as it as it fixes a date for
filing
Notice to oppose which is 25 September 2012 while the date of hearing
is 18 September 2012. I fully agree with Mr Gqamana
that was not
correct.
Nevertheless
respondents’ counsel appeared for them on the date of hearing
and the matter was postponed by agreement to 2
October 2012. In my
view it appears that no prejudice was caused to the respondents by
the afore-mentioned error.
In
any event, as Coetzee J says in Luna Meubel Vervaardigers, supra, at
136 H “
urgency involves mainly the abridgement of times
prescribed by the Rules and, secondarily, the departure from
established filing
and sitting times of the Court.”
And
that is what Smith J did per his order dated 18 September 2012.
[47]
In the circumstances I am of the view that the applicant established
the ground of urgency in this matter though of a lesser
degree of
urgency, which I regard as semi-urgency and this application was
therefore correctly dealt with as such.
[48]
The applicant has in my view established a clear right to the payment
of his salaries as highlighted above. The respondents
have already
terminated payment of his salary and are persisting in such conduct
although applicant is still in employ. I am further
satisfied that in
the circumstances of this case the applicant has no other
satisfactory remedy.
[49]
Regarding costs I am of the view that applicant is substantially
successful in this application and consequently I find no
reason why
I should depart from the general rule that costs follow the event.
[50]
In the result, I make the following order:-
1.
That the termination of applicant’s salary is hereby declared
invalid and set aside;
2.
That 1
st
, 2
nd
and 3
rd
respondents
are hereby ordered forthwith to re-instate and pay applicant’s
salary with retrospective effect;
3.
That 1
st
, 2
nd
and 3
rd
respondents
pay the costs of this application.
___________
D.Z.DUKADA
JUDGE
OF THE HIGH COURT
For
the applicant : Attorney A.S.Zono of Attorneys
A.S.Zono
and Associates
For
the Respondents : Adv Gqamana
Instructed
by
State
Attorney
EAST
LONDON
1
[2010]
6 BCLR 585
(LAC)
2
[2010]
6 BLLR 594
(LAC)
3
2010
(1) SA238 (CC) in para 73 (page 262)
4
2008
(4) SA367 (CC) in para 169
5
See
also Makhanya v Univertsity of Zululand
2010 (1) SA 62
(SCA) in para
71 where Nugent JA remarked as follows:- “ When a claimant
says that the claim arises from the infringement
of the common-law
right to enforce a contract, then that is the claim, as a fact, and
the Court must deal with it accordingly.
When a claimant says that
the claim is to enforce a right that is created by the LRA, then
that is the claim that the Court has
before it, as a fact. When he
or she says that the claim is to enforce a right derived from the
Constitution, then, as a fact,
that is the claim. That the claim
might be a bad claim is beside the point”.
6
2002
(1) SA49 (SCA) in para 27
7
Gcaba
v Minister of Safety and Security,
supra
, at para 69
8
See
also Gcaba, supra, at para 41 where Skweyiya J stated that:-
“
The existence of purpose
built employment framework in the form of the LRA and associated
legislation infers that labour process
and forums should take
precedence over non-purpose-built processes and forums in situations
involving employment-related matters.
At the least, litigation in
terms of the LRA should be seen as the more appropriate route to
pursue. When alternative cause of
action can be sustained in matters
arising out of an employment relationship, in which the employee
alleges unfair dismissal
or an unfair labour practice by the
employer, it is in the first instance through the mechanism
established by the LRA that the
employee should pursue her or his
claims.”
9
[1998]
JOL 1832
(SE) at pages 6 and 7
10
See
also Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers
Publikasies (Edms) Bpk
1972 (1) SA 773
(A); Luna Meubel
Vervaardigers (Edms) Bpk v Makin and another (t/a Markins furniture
Manufacturers)
1977 (4) SA 135
(W); IL & B Marcow Caterers (Pty)
Ltd v Greatermans SA Ltd and Another; Aroma Inn Lines (Pty) Ltd v
Hypermarkets (Pty) Ltd
and Another
1981 (4) SA 108
(C); Gallagher v
Normans Transport Lines (Pty) Ltd
1992 (3) SA 500
(W) at 441A
11
Nelson
Mandela Metropolitan Municipality v Grevenou CC, supra, at page 95
A-B and Caledon Restaurants CC, supra, at 8
12
Luna
Meubel Vervaardigers, supra at 137 G-G.
13
Cekeshe
and others v Premier, Eastern Cape and Others
1998 (4) SA 935
(TKD)
at 948 B
14
1977
(3) SA 439
(WLD) at 440 H-441A
15
[2009]
30 ILJ 1845 (LC)