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[2008] ZAFSHC 117
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Goliath v Mangaung Local Municipality and Others (2786/2008) [2008] ZAFSHC 117 (11 September 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 2786/2008
In the case between:
H.A.GOLIATH
Applicant
and
MANGAUNG LOCAL
MUNICIPALITY
1
st
Respondent
M RALEBESE: SPEAKER
OF THE
2
nd
Respondent
MANGAUNG LOCAL
MANICIPALITY
T M MANYONI: CITY
MANAGER OF THE
3
rd
Respondent
MANGAUNG LOCAL
MUNICIPALITY
G MOTHUPI:
EXECUTIVE MAYOR OF THE
4
th
Respondent
MANGAUNG LOCAL
MUNICIPALITY
JUDGEMENT:
MOLEMELA, J
_____________________________________________________
HEARD ON:
04 SEPTEMBER 2008
_____________________________________________________
DELIVERED ON:
11 SEPTEMBER 2008
_____________________________________________________
[1]
The
applicant is employed by the 1
st
respondent as an Executive Director: Corporate Services. On the
afternoon of the 11
th
of June 2008 the applicant received a notice of a meeting of the
Council of the 1
st
respondent, which was to be held on the 12
th
June 2008. He also received an agenda that reflected that his
employment contract would be one of the matters to be discussed
at
that meeting. The applicant avers that based on the fact that the
1
st
respondent had, during March 2008, threatened to unilaterally shorten
the duration of the applicant’s fixed-term employment,
he
immediately suspected that the first respondent would, at that
meeting, summarily terminate his employment without first giving
him
an opportunity to be heard. On the morning of the 12
th
June 2008 he approached this Court on an urgent basis. Relying only
on viva voce evidence, he with leave of the court, sought an
order
prohibiting the respondents from terminating or invalidating his
employment contract without following a fair procedure.
My sister
Ebrahim J granted an interim order and simultaneously issued a rule
nisi
calling upon the respondent to show cause, if any, why the following
orders should not be made:
“
2.1 That
respondents be prohibited from terminating or invalidating
applicant’s employment agreement without following a fair
procedure in accordance with the
Labour Relations Act, No 66 of 1995
read with Schedule 8 thereof, alternatively the terms and conditions
of the employment agreement.
Th
at
respondents and the Council of the first respondent be prohibited
to table, consider, discuss, debate or to take any decision
or
resolution regarding the employment contract of the applicant.
That respondents be prohibited
from interfering with the normal execution of performance of the
applicant’s normal duties,
functions and competencies in
terms of his employment contract and terms of service.
That respondents be prohibited
from withholding or curtailing the payment of applicant’s
monthly remuneration and benefits
in terms of his employment
contract.
That respondents be ordered to
pay the costs of the application, jointly and severally, the one to
pay the other to be absolved;
alternatively that the costs of this
application be costs in the main cause.”
[2] It was further
ordered that “the orders as per clause 2.1, 2.2, 2.3 and 2.4
supra operate as interim interdicts with
immediate effect, pending
the final adjudication of an application for a declaratory order to
the effect that the applicant’s
employment contract if (sic)
valid and binding, to be instituted by the applicant within 30
(thirty) days after the finalisation
of this application”.
Leave was also granted to the applicant to file his founding
affidavit after the granting of the interim
order and for the
respondents to file opposing affidavits, if any. The applicant duly
filed a founding affidavit after which the
respondents filed a notice
indicating that their opposition would be on points of law only.
[3] The rule
nisi
was, by consent of both parties, extended several times and today
constitutes the agreed-upon return day. At the commencement of
the
proceedings both counsel were
ad
idem
that,
given the points of law raised by the respondents, I would
essentially only have to decide whether this court has jurisdiction
to grant the interim order sought by the applicant.
[4] It is common cause
that the nature of the interdict sought by the applicant is of an
interim nature. The applicant indicated
in his founding affidavit
that he would seek a declaratory order from the Labour Court. His
counsel confirmed that this was still
the applicant’s
intention. Surprisingly though, despite relying on cases in which the
courts granted interim relief pending
adjudication of matters in
which they lacked jurisdiction, he was not prepared to concede, in so
many words, that this court does
not have the jurisdiction to
adjudicate on the declaratory order regarding the validity of the
applicant’s employment contract.
At first glance, it would seem
that I do not have to decide on whether this court has the
jurisdiction to adjudicate on the declaratory
relief that the
applicants intends seeking, especially as he has indicated that he
will be launching his application at the Labour
Court and not at this
court. It will, later in my judgement, become evident why this
court’s jurisdiction in respect of the
declaratory relief is
integral to my decision as to whether this court has jurisdiction to
entertain the application in respect
of the interim relief sought.
[5] The respondent’s
counsel contends that the basis of the applicant’s discontent
relates to his continued employment
by the first respondent, to
certain actions taken by the first respondent relating to this
employment contract and an apparent
fear that the applicant’s
contract will be terminated and invalidated. He accordingly contends
that, in essence, the dispute
before the court is a labour-related
dispute for which remedies have been provided in terms of the
Labour
Relations Act 66 of 1995
. On those grounds, so the argument goes, the
High Court does not have jurisdiction to adjudicate on the interim
relief. As support
for this contention counsel referred me to the
Constitutional Court case of
CHIRWA
V TRANSNET LTD & OTHERS, 2008(4) SA 367 (CC).
[6] Counsel for the
applicant contends that the High Court has inherent jurisdiction to
grant interim relief and submits that I
have to confirm the rule
nisi
and also grant an order enjoining the applicant to launch his
application for a declaratory order within 30 days from the
confirmation
of the rule
nisi
.
His contention as I understand it is that an interdict directed at
the maintenance of the
status
quo
pending a final determination of the matter is an interim interdict
and the High Court always has an inherent jurisdiction to grant
such
relief irrespective of whether or not it has jurisdiction to
adjudicate on the main dispute. Thus, in a nutshell, the applicant’s
counsel contends that the order the applicant is seeking is a
status
quo
order and the High Court would, on account of its inherent
jurisdiction, therefore have jurisdiction to grant that order even if
it did not have jurisdiction in respect of the main dispute. As
authority for this view he relied on the following cases:
AIROADEXPRESS
(PTY) LTD v CHAIRMAN, LOCAL ROAD TRANSPORTATION BOARD, DURBAN, AND
OTHERS
[1986] ZASCA 6
;
1986
(2) SA 663
(A); MOBILE TELEPHONE NETWORKS HOLDINGS (PTY) LTD V
KNOETZE, (2006) 27 ILJ 968 (LAC)
;
LEGAL
AID BOARD v JORDAAN
2007
(3) SA 327
(SCA)
;
NATIONAL
GAMBLING BOARD v PREMIER, KWAZULU-NATAL, AND OTHERS
[2001] ZACC 8
;
2002
(2) SA 715
(CC).
[7]
As
stated in paragraph 4 (supra), there is no quarrel with the first
part of the applicant’s contention, i.e. that the relief
sought
by the applicant constitutes interim relief. The bone of contention
is as regards the jurisdiction of this court to grant
such an interim
relief if this court does not have the jurisdiction to entertain the
main dispute. It is for this reason that I
find that making a finding
on the jurisdiction of this court pertaining to the declaratory
relief that the applicant has in mind
is a
sine
qua non
for making a finding as to whether this court has the jurisdiction to
grant the interim relief. Thus, two questions have to be
answered:
(1) Does the High Court have jurisdiction to adjudicate on the
declarator envisaged by the applicant? (2) Does the High
Court have
inherent jurisdiction to grant interim relief as sought by the
applicant? My view is that none of the cases relied on
by the
applicant’s counsel support the applicant’s contention.
None of them are on all fours with the present matter.
I could find
no persuasive authority stating that
as
a general rule
the High Court has an inherent jurisdiction to grant interim relief
pending the final determination of a matter
in
which it does not ordinarily have jurisdiction
.
The case of
CHIRWA
v TRANSNET LTD
(
supra
)
provides the answer to both questions. Having considered both
Skweyiya J and Ngcobo J’s judgments in that matter I have
no
doubt that the answer to both questions is in the negative.
[8] In my view, the
effect of the
CHIRWA
v TRANSNET LTD
(supra)
is that the jurisdiction of the High Court has been ousted in
all
labour-related disputes for which a remedy is provided for in terms
of the
Labour Relations Act (LRA
). I am fortified in this view by the
ratio of this judgment, which in my view, is best expressed by
quoting verbatim from the judgment.
At paragraph 41 and 42 Skweyiya J
had the following to say:
“
[41]
It
is my view that the existence of a purpose-built employment framework
in the form of the LRA and associated legislation infers
that labour
processes 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.
Where an alternative cause of action can be sustained in matters
arising out of an employment relationship, in which the employee
alleges unfair dismissal,
it
is in the first instance through the mechanisms established by the
LRA that the employee should pursue her or his claims
.
”
[42] “…
Similarly,
an employee is protected from arbitrary and irrational decisions,
through substantive fairness requirements
and
a right not to be subjected to unfair labour practices
.
”
(My underlining
and emphasis).
[9]
Paragraphs
47 and 50, respectively, are even more
significant.
They provide as follows:
“
[47] The
purpose of the administrative justice provisions is to bring about
procedural fairness in dealings between the administration
and
members of the public. The purpose of labour law as embodied in the
LRA is to provide a comprehensive system of dispute resolution
mechanisms, forums and remedies that are tailored to deal with
all
aspects of employment. It was envisaged as a one-stop shop for
all
labour-related disputes. The LRA provides for matters such as
discrimination in the workplace
as
well as procedural fairness
;
with the view that
even
if a labour dispute implicates other rights
,
a litigant will be able to approach the LRA structures to resolve the
disputes.
”
“
[50] This
section heralds the LRA as the pre-eminent legislation in labour
matters that are dealt with by that Act.
Only
the Constitution itself or a statute that expressly amends the LRA
can take precedence in application to such labour matters.
When PAJA was promulgated, five years after the current LRA came
into force, section 210 remained untouched. The Legislature,
aware
of the implications of this provision in the LRA, enacted PAJA
without altering section 210. This is significant, in that
it would
appear that the Legislature intended that PAJA should not detract
from the pre-eminence of the LRA and its specialised
labour disputes
mechanisms.
” (My
underlining for emphasis).
[10] In my view, both the
declarator and the interim interdict sought by the applicant pertain
to labour-related issues that are
catered for in section 185 and 186
of the LRA and for which remedies are provide in terms of section 191
and 158(1)(a) of the LRA.
I align myself to the remarks of Ngobo J
that in considering what the real issue is, the court should have
regard to the essence
as opposed to the form in which the issue is
formulated. Counsel for the applicant sought to distinguish between
“unfairness”
and “illegality” of the
respondent’s action with regards to termination of the
employee’s contract. He
argued that usage of the word “illegal”
by the applicant with reference to the respondent’s conduct
showed that
the applicant was relying on his common-law contractual
rights and not those granted by the LRA. I am of the view that this
distinction
does not hold any water, firstly because of the fact that
even though Ngcobo J recognised that the source of the power in that
matter was a contract of employment and that the nature of the power
was contractual, he went on to hold that the conduct of the
employer
was more concerned with labour and employment relations and thus
classified the matter as a labour-related dispute. See
CHIRWA V
TRANSNET LTD (supra) at paragraph 142. Secondly, any employer’s
conduct of unfairly or unlawfully terminating an
employee’s
contract is regulated by section 186(1)(a) of the LRA irrespective of
whether the contract is a fixed-term employment
contract or one for
an indefinite period of time. Once it is regulated by the LRA and
remedies have been provided by the LRA, it
is a matter falling within
the
exclusive
jurisdiction
of the Labour Court. See CHIRWA V TRANSNET LTD (supra) at paragraphs
123 and 124, where the following was stated:
“
[123]
While section 157(2) remains on the statute book, it must be
construed in the light of the primary objectives of the LRA.
The
first is to establish a comprehensive framework of law governing the
labour and employment relations between employers and
employees in
all sectors. The other is the objective to establish the Labour Court
and Labour Appeal Court as superior courts,
with
exclusive jurisdiction to decide matters arising from the LRA.
In my view, the only way to reconcile the provisions of section
157(2) and harmonise them with those of section 157(1) and the
objects of the LRA, is to give it a narrow meaning. The application
of section 157(2) must be confined to those instances, if any,
where
a party relies directly on the provisions of the Bill of Rights
….”
(my underlining).
[124]
Where, as here, an employee alleges non-compliance with
provisions of the LRA, the employee
must
seek the remedy in the LRA….”
[11] On the strength of
what I have stated in paragraph 10 (supra), I therefore find that the
Labour Court has exclusive jurisdiction
to adjudicate the declaratory
relief that the applicant intends seeking. I may mention that I also
find it significant that the
applicant in his papers identified his
dispute as a labour-related matter. In his Notice of Motion, the
applicant
inter
alia
sought the following order: “That respondents be prohibited
from terminating or invalidating applicant’s employment
agreement
without
following a fair procedure in accordance with the Labour Relations
Act, No 66 of 1996 read with schedule 8 thereto
,
alternatively the terms and conditions of the employment contract”.
In paragraph 8(d) of his founding affidavit, he made
the following
averment: “…I am entitled to proper procedures being
taken
in
terms of the Labour Relations Act
prior
to the terminating or invalidating (sic) of my employment contract”.
(My underlining for emphasis). In my view, the
applicant does
recognise that his dispute is out and out, a labour-related one. It
is thus not surprising that the applicant has
indicated his intention
of launching his application for a declaratory order in the Labour
Court and not in the High Court. (See
the unreported judgment of this
division in the case of NEHAWU obo
A
ADELAJA ADEKOYA V CENTRAL UNIVERSITY OF TECHNOLOGY: FREE STATE &
OTHERS
under
Case No: A1671/08 at paragraphs 10 & 11).
[12] Having found that
this court does not have jurisdiction to adjudicate on the
declaratory order, I now turn to deal with the
question whether this
court has the jurisdiction to grant interim relief pending
adjudication of the main dispute. While I agree
that the nature of
the order sought is in effect a
status
quo
order, I am not persuaded that any of the cases referred to by the
applicant’s counsel supports the applicant. It must,
from the
outset, be borne in mind that the case of
LEGAL
AID BOARD v JORDAAN
,
supra
,
was decided prior to the ground-breaking decision of the
Constitutional Court in the matter of
CHIRWA
v TRANSNET
(
supra)
.
Significantly the court in the former case, while being under the
impression that the High Court had concurrent jurisdiction
on the
main case, stated as follows at p. 329 par. 6(D): “That being
so,
unless
there is a statutory provision ousting its jurisdiction
to give interim relief in a case such as this, there can be no
question as to the High Court’s jurisdiction to grant the
order
presently under consideration.” (My underlining for emphasis).
[13] Given the
interpretation given by Skweyiya J to section 157(1) of the LRA (see
paragraphs 59 and 63) and by Ngcobo J (see paragraphs
113 and 123)
there is just no room for accepting the case of LEGAL AID BOARD V
JORDAAN (supra) as good authority for the applicant’s
proposition. I also find that the case of
AIROADEXPRESS
(PTY) LTD v CHAIRMAN
(supra)
is distinguishable. In that matter the court’s inclination to
grant an interim interdict was purely to avoid an injustice
as the
applicant in that matter had no other remedy. At p676D the court
stated as follows:
“
An
inherent power of this kind is a salutary power which should be
jealously preserved and even extended where exceptional circumstances
are present and where, but for the exercise of such power, a litigant
would be remediless
,
as is the case here.
”
(My underlining and emphasis).
In
casu
,
the applicant is not remediless as he can invoke remedies as
contemplated in section 158(1)(a) of the LRA. This case therefore
clearly does not support the applicant.
[14] Counsel for the
applicant also referred me to the full bench decision in the case of
FERREIRA
V LEVINE NO & OTHERS VRYENHOEK & OTHERS V POWELL NO &
OTHERS
1995 (2) SA 813
(W) AT 825 – 826
.
It is significant that in that same case, Streicher J (as he then
was) had the following to say at p821G-H: “The De Fraetas
case
referred to… is no authority for the proposition that a
Supreme Court (High Court) has a general power to grant
pendente
relief when the court has no jurisdiction in respect of the
subject-matter of the dispute. The Airoadexpress case should also not
be interpreted to have decided that the Supreme Court (High Court)
had a general power to grant interim relief where it had no
jurisdiction in respect of the subject matter of the dispute….”(my
parenthesis).
[15] Counsel for the
applicant also referred me to the
Constitutional Court
case of
NATIONAL
GAMBLING BOARD V PREMIER KWAZULU-NATAL AND
OTHERS
(supra). In that case, the constitutional court issued certain
guidelines for purposes of determining whether a High Court has
the
jurisdiction to grant interim relief in a matter that falls within
the exclusive jurisdiction of the Constitutional Court in
terms of
s167(4)(a). It was held at p731C that whether a High Court will have
jurisdiction to entertain an application for an interim
relief
depends
upon the proper interpretation of the
relevant
provision granting such exclusive jurisdiction
and on the substance of the order. It is clear that the
Constitutional Court did not purport to give a clear-cut answer on
the
matter but laid out that guidance be sought from, inter alia, the
provision that grants exclusive jurisdiction. Applying the principle
in casu
takes us back to the interpretation of section 157(1) of the LRA.
[16] In Chirwa v
Transnet Ltd & Others, at paragraph 113,
Ngcobo J succinctly
defines this exclusive jurisdiction as follows: “The purpose of
section 157(1) was to give effect to the
declared object of the LRA
to establish tribunals “with exclusive jurisdiction to decide
matters from [it]”. To this
extent, it has given
exclusive
jurisdiction to the Labour
Court
and Labour Appeal Court to deal with matters arising from the LRA”
.
(My emphasis). Given this interpretation, there is no room for
accepting that the High Courts will still have jurisdiction to
grant
interim orders in respect of matters falling within the exclusive
jurisdiction of the Labour Court. For the same reasons
that I found
that this court does not have the jurisdiction to adjudicate on the
declaratory order, I am persuaded that equally
so, this court does
not have the jurisdiction to grant the interim order that the
applicant is seeking. I reiterate that the effect
of the
CHIRWA
v TRANSNET LTD & OTHERS
CASE
(supra) is that the jurisdiction of the High Court has been ousted in
all
labour-related disputes for which a remedy is provided in terms of
the LRA. In the words of Skweyiya J, the LRA “wasenvisaged
as a
one-stop shop for all labour-relateddisputes”. (See paragraph 9
supra
).
To my mind, the word“all” is inclusive of interim relief.
[17] I therefore make
the following order:
The rule
nisi
is discharged with costs.
_
__________________
M. B. MOLEMELA, J
On
behalf of the Applicants:
Adv.
Ploos van Amstel SC
Instructed by:
Stander
Venter Kleynhans BLOEMFONTEIN
On
behalf of the Respondent: Adv. S Grobler
Instructed
by:
Mabalane
Bosiu Attorney BLOEMFONTEIN