THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: P106/23
In the matter between:
NATIONAL EDUCATION, HEALTH AND
ALLIED WORKERS UNION First Applicant
MEMBERS OF NEHAWU EMPLOYED BY THE
WALTER SISULU UNIVERSITY (Annexure “X”) Second to Further Applicants
and
WALTER SISULU UNIVERSITY First Respondent
PROFESSOR RUSHIELLA SONGCA N.O.
(FIRST RESPONDENT’S VICE-CHANCELLOR
& PRINCIPAL) Second Respondent
MINISTER OF HIGHER EDUCATION, SCIENCE
AND INNOVATION Third Respondent
Heard: 13 December 2023
Delivered: 29 January 2024 (This judgment was handed down electronically
by circulation to the parties’ legal representatives by email, publication on the
Labour Court website and release to SAFLII. The date and time for handing-
down is deemed to be 10h00 on 29 January 2024.)
REASONS FOR AND VARIATION OF ORDER
PHEHANE, J
Introduction
2
‘Time travels at different speeds for different people. I can tell you who time strolls
for, who it trots for, who it gallops for, and who it stops cold for.’
― William Shakespeare
[1] On 13 December 2023, I issued an order in the following terms:
‘1. The application is dismissed.
2. The applicant is to pay the costs of the first and second respondent, which
costs include the cost of employing two counsel.’
Varied order
[2] I n terms of Rule 16A(1)(a)(ii)1, paragraph 2 of the said order is varied to read:
‘The first applicant is to pay the costs of the first and second respondent, which
include the cost of employing two counsel.’
[3] The brief reasons for the said order (and variation) appear below.
[4] The case brought to this Court by the first and second to further applicants
(applicants) is convo luted. Several causes of action are pleaded, ranging from
breach of contract, unilateral change to the terms and conditions of employment, the
non-application of a collective agreement and contravention of section 33 read with
section 32 of the Higher Education Act
2 (HEA). The relief sought by the applicant s is
equally convoluted. It is framed as follows:
‘PART A:
…
1. The requirements of Rule 7 of the Rules for the Conduct of Proceedings in the
Labour Court (Rules) are dispensed with and this application is heard as one of
urgency in terms of Rule 8 of the above-mentioned Rules;
2. The Respondents are interdicted and restrained from relocating and/or
transferring the 2
nd to further applicants, as a result of the 1 st Respondent’s
Rationalisation and Consolidation process, pending:
1 GN 1665 of 1996 Rules for the conduct of proceedings in the Labour Court.
2 Act 101 of 1997.
3
2.1 A full and meaningful consultation process between the Applicants and the 1 st
Respondent; and
2.2 The finalisation and disclosure of the applicable Relocation Policy; and
2.3 Compliance with Sections 33, (sic) read with S ection 32 of the Higher
Education Act 101 of 1997; or
2.4 The finalisation of Part B of this application.
3. The Order in paragraph 2 above does not apply to members of the 1 st
Applicant (NEHAWU) who have voluntarily agreed to a change of their conditions of
employment by consenting to their relocation and/or transfer as a result of the
Rationalisation and Consolidation Process;
4. The A pplicants are granted leave to file a Supplementary Notice of M otion
(part B) and Affidavit, in relation to Part B of the application, within ten ( 10_ days of
the granting of this O rder, whereafter and Answering and R eplying affidavit in
respect thereof may be filed in accordance with the provisions of Rule 7.
5. The 1st Respondent is directed to pay the costs of Part A of this application if
opposed, alternatively, the costs of Part A of this application are to be costs in Part B
thereof.
6. Further and/or alternative relief.’
[5] Part B is framed as follows:
‘PART B
…
1. The 1 st Respondent’s decision to relocate and/or transfer the 2 nd to further
Applicants is reviewed and set aside.
2. Subject to compliance with Section 33, read with Section 32 of the Higher
Education Act 101 of 1997, the 1 st Respondent is ordered to engage in full and
meaningful consultation with the Applicants as to the Rationalisation and
Consolidation Process and the intended to Staff Relocation and Transfers, which
consultation should extend to suitable alternatives and must take place within ninety
(90) days from the date of the Order granted:
3. That any Respondent opposing this application be ordered to pay the cost
thereof;
4. That the further and/or alternative relief that this Honourable Court deems fit
and appropriate be granted to the Applicant.’
4
[6] The application is opposed by the first and second respondents
(respondents). The third respondent filed a notice to abide by the decision of this
Court.
[7] The application was initially heard on 1 December 2023, on which date, the
parties sought an order by the Court by agreement to postpone the hearing of the
matter to 13 December 2023. The order was granted by Lallie, J.
Background
[8] The matter has a long background. I summarise it below. Before I do so, a
brief history of the formation of the first respondent, Walter Sisulu University (WSU)
is necessary for context.
3
[9] The WSU was established on 1 July 2005 through a merger of the former
Border Technikon, Eastern Cape T echnikon and the University of Transkei. It was
established by a Government Notice published in terms of the provisions of HEA.
[10] The WSU was subsequently regulated by the S tatute of the Walter Sisulu
University published in G overnment Gazette No. 31358 of 26 August 2008. This
Statute was replaced by the Institutional Statute: Walter Sisulu University, published
in Government Notice 13 dated 17 January 2014 in Government Gazette No. 37235
in accordance with the provisions of section 33 (1) of the HEA.
[11] By 2020, the WSU had approximately 28 968 students spread across four
main campuses, being Mthata, Buffalo City, Komani an d Butterworth, and with 12
faculties holding 27 distinct fields of study and 56 academic departments.
[12] With the institutions that amalgamated, a duplication of faculties and
departments/programs arose at various learning sites which resulted in inefficiencies
in the education offering of the WSU.
3 See: paras 6 to 20 of the respondents’ heads of argument.
5
[13] During 2019, WSU embarked on a program known as “ Vision 2030” which
included a strategic plan for the future. This served as a catalyst for the
Rationalisation and Consolidation strategy (R&C Strategy), more of which is set out
below.
[14] The objective of the R&C strategy would result in staff being pooled together
on fewer sites which would create efficiency and stimulate an academic environment
with good practices and the duplication of, and unnecessary qualifications would be
eradicated. The long-term benefits of the R& C strategy include more highly qualified
and capacitated academic staff, a possibility of higher postgraduate enrolment and
high levels of research activity and output.
[15] The guiding principles of the R& C strategy were the consolidation of fields of
study, relocation to sites that already offer programs in the relevant fields of study to
minimise the cost of providing additional equipment/faculties , cognate disciplines or
fields of study to be kept together to ensure overall academic coherence and the
appropriate location of faculties in the broader environment.
[16] In January 2021, the Council of the WSU supported the finalisation of the
R&C strategy that would see the number of faculties reduced from 12 to 7. In
February and March 2021, the WSU Senate, Labour Formations, WSU Institutional
Student Representative Council and Convocation Executive were informed of the
WSU’s major projects for 2021. In April 2021, the new strategic plan incorporated in
Vision 2030 was approved by the WSU Council. A mong its key objectives was the
rationalisation of faculties and consolidation of campuses (R&C strategy).
[17] An extensive consultation process ensued for a period of more than two years
(which consultation process began in November 2021) in which the first respondent
(NEHAWU) was consulted. NEHAWU formed part of the stakeholders on the
Steering Committee where consultation occurred. Over and above the R&C Steering
Committee consultations, consultations with NEHAWU took place on 14 March 2022
at 10 October 2022. During these consultation meetings, wide- ranging issues
6
pertaining to the R&C strategy were canvassed. All submissions made by NEHAWU
were considered.
[18] Following the extensive consultation with stakeholders including NEHAWU on
26 May 2023, the WSU’s Council adopted the R&C Strategy. The faculties were
reduced from 12 to 7. The WSU proceeded to accept student intake for the year
2024 according to the adopted R&C strateg y. A communique was distributed to all
employees by the WSU Council Chairperson on 29 May 203, which read:
‘Dear University Community,
SUBJECT – APPROVAL OF RATIONALISATION AND CONSOLIDATION
STRATEGY BY THE COUNCIL
1. It brings me pleasure to announce that after three years of intense
engagements, at the Special Meeting of Counsel on 26 May 2023, the University
Council passed the following resolutions:
1.1 The Rationalisation and Consolidation Strategy Document (R & C Strategy) is
adopted as policy of the Walter Sisulu University. The R &C Strategy is premised on
these principles:
• pursuit of academic excellence
• rationalisation of faculties
• consolidation of programs
• permitting only necessary duplications
• ensuring no job losses.
1.2 The implications of the adopted R & C Strategy are that henceforth there shall
be seven (7) Faculties.
1.3 Council, however, has not endorsed the proposal for the closure of the
Engineering Faculty in Butterworth. Management has been mandated to present a
fresh proposal which would ensure the consolidation of the Main Engineering Faculty
in E ast London, and that certain Engineering P rogrammes are of fered at the
Butterworth campus. The revised proposal will be considered by the C ouncil at its
next meeting.
7
1.4 Management has been mandated to commence the process of
implementation of the R & C Strategy, with effect from 1 June 2023. This means
when the applications are opened for the 2024 academic year, it will be on the basis
of the R & C Strategy.
1.5 The positions for Executive Deans of the Seven New Faculties must be
advertised without delay.
1.6 Management has also been mandated to consult with Labour and the internal
stakeholders on a new organogram, which will be underpinned by the R & C
Strategy.
1.7 Management should advise the University Community on the plan for the
implementation of the R & C Strategy and continue the engagements with affected
employees.
2. The adoption of the R & C Strategy does not, of course, signal the end of
engagements with stakeholders. The decision of [the] Council brings clarity to the
goals of the University, to be pursued by Management. Council remains available
and open to resolve any areas of significant disagreement on areas of
implementation. We emphasise, however, that management retains the primary role
in the execution of the Strategy.
3. Council wishes to thank the University Community for the co- operation during
the process of developing the R & C Strategy. It is our sincere aspiration that the
adoption of the R & C Strategy will significantly enhance the academic standing of
WSU to enable it to contribute meaningfully to the developmental objectives of the
country and African continent…’
[19] This communique was followed by roadshows across the various campuses,
where the WSU engaged with all its employees on the implementation of the R&C
strategy. The implementation of the R&C strategy was set for 1 June 2023.
[20] On 16 August 2023, in a meeting with the WSU, NEHAWU proposed a task
team be established to facilitate the implementation of the R&S strategy. A follow -up
meeting was to take place in September 2023 but did not materialize.
[21] In September 2023, letters were communicated to employees regarding the
implementation of the R& C Strategy. One such letter is annexed as “AA37” , the
8
content of which, in essence, communicates to an affected employee that following a
commitment by the WSU to notify and consult all affected employees, the employee
is notified that the faculty in which she is employed is relocating to Butterworth with
effect from 1 January 2024. Information is provided regarding employees who are
required to relocate and those who shuttle service will be provided. Mention is made
of an R&C Relocation Policy, which at the time, was currently in consultation with
stakeholders. Further, the employee is advised that the WSU is open to receiving
representations regarding personal circumstances which make relocation impossible
and that such representations should reach the University by 11 October 2023 for
consideration. The employee is informed that if relocation is not practically possible,
alternative positions will be explored and if not found, retrenchment would possibly
follow in terms of the WSU Retrenchment Policy. The letter emphasises that the
relocation of affected employees must be finalised by the beginning of 2024. The
letter further recalled that unjustified refusal to relocate will constitute misconduct
and the employee may face disciplinary action ( WSU has moved from this position,
but maintains that where relocation is impractical, then retrenchment may follow).
[22] It bears mentioning that when this matter was heard, although it appears in
the pleadings that the WSU intended to have the R& C Relocation Policy approved
by its Council on 8 December 2023, this did not materialise. When this matter was
heard, the aforesaid policy had still not been approved by the WSU Council. The
approval of the policy is so sore thumb for NEHAWU – the union denies being
consulted on this policy and is adamant that no relocation should take place in the
absence of this policy.
[23] On receipt of these letters, NEHAWU avers that its members began
complaining about, it would seem, relocating. In the result, NEHAWU sent
correspondence to WSU on 4 October 2023 and follow -up correspondence on 12
October 2023, essentially, on NEHAWU’s version, objecting to the implementation of
the R& C Strategy and reiterating that it had proposed, during a meeting on 16
August 2023, that a Task Team be established to facilitate the implementation.
NEHAWU avers that its proposal fell on deaf ears and their correspondence went
unanswered. The WSU avers that during the meeting on 16 August 2023, NEHAWU
lamented on the R&C strategy, but it was informed that the ship had sailed insofar as
9
the formulation of the policy was concerned and the strategy was now
implementation phase.
[24] On 10 November 2023, the employees received “choice forms”4 to make
three elections by 17 November 2023, on firstly, whether they need three months’
accommodation or a lump sum of R70 000 paid, for, it would seem, accommodation,
secondly, whether they require furniture removal or a lump sum of R20 000 paid over
to them, and thirdly, whether they choose to relocate in December (2023) or January
(2024). Three of the second to further applicants (Lakshmi Jayakrishnan, S. Soha
and VJ Momnga) signed the choice form and received an amount of R 90 000.00
(the choice forms commence with confirmation that the employee is aware of the
R&S strategy, its benefi ts, the implications of the strategy and how it affects the
employee). NEHAWU does not dispute that three of the applicants signed the choice
form, save to state that it was not aware, when this application was launched, that
the three individual applic ants had acquiesced to the relocation. 5 NEHAWU states
that the completion and submission of the choice forms “ do not translate to an
amendment of these three employees’ conditions of service ”. In the first instance,
this reply is at odds with prayer 2 in Part A of the applicants’ notice of motion . In the
second instance, this reply puts to bed NEHAWU’s contention that the rel ocation
amounts to a change in the terms and conditions of their members ’ employment. I
deal with this cause of action below.
[25] A further issue to get out of the way at this juncture regarding the individual
applicants, is the statement by the WSU that four of the individual applicants
(namely, Singisa Mantambo, Peter Boateng, S. Soha and Vusimuzi Mandini) are not
members of NEHAWU. NEHAWU deals with this statement by stating that they were
its members when this application was launched. They do not, to the sat isfaction of
this Court, affirm that the four individuals are currently members of NEHAWU. 6 It
appears that NEHAWU is none the wiser as regards S. Soha, who signed the choice
form and had agreed to relocate without NEHAWU being aware and there is no
4 One such form appears at p 225.
5 See: answering affidavit, paras 5.8.3 and 5.8.4 on pp 138 to 139 and para 49 on p 154, and replying
affidavit at paras 4.9 on p 468, para 4.49 on p 478 read with paras 3.21 and 3.22 on pp 460 to 461.
6 See: answering affidavit at para 51.1 on p 154 and replying affidavit at para 4.50 on p 478.
10
clarity on whether or not she/he is a member of NEHAWU currently. I deal with the
applicants before this Court below.
[26] Returning to the chronological sequence of main events, on 13 November
2023, the employees were served with letters informing them that they must pack
their belongings in their offices and removals would take place between 18 and 22
December 2023.
7
[27] It would appear that the defined tone of the letters and the imminent
relocation, in my view, sparked the fuse to launch this urgent application.
[28] On a reading of the founding affidavit, the applicants paint a picture of zero
consultations taking place and they seek, in essence, relief stopping the relocation of
its members pending full and meaningful consultation and a disclosure of the R&C
Relocation Policy and compliance with sections 33 and 32 of the HEA or, pending
the relief sought in Part B of the notice of motion.
[29] As clarified by Mr. Jooste for the applicants during oral argument, NEHAWU
takes no issue with the adoption of the R&S Strategy, but with its implementation. He
submits that t he WSU failed to consult with NEHAWU and its members on the
implementation of the strategy, which includes a lack of consul tation on the R&C
Relocation Policy that would guide the implementation of the strategy.
Urgency
[30] The WSU no longer persists with its contention that the application is not
urgent, however, it leaves it up to this Court to determine urgency.
[31] I am not satisfied that the applicants have made out a case for urgency, as
they were aware as early as May 2023, and at least since 1 June 2023, that the R&C
strategy would be implemented. Roadshows in August/September 2023 sounded
alarm bells that implementation in the form of relocation of affected staff was in the
7 One such letter appears at p 80.
11
offing (the time of the road shows is not specified in the pleadings but was confirmed
by the parties during oral argument). NEHAWU did not approach this Court at that
point and did not approach this Court after letters were issued to its members in
September 2023 informing them that they would be relocated and any
representations against relocating should reach the WSU by 11 October 2023 (this
deadline was later extended to 27 October 2023) . In its letter to the WSU dated 12
October 2023, NEHAWU threatened to approach this Court on an urgent basis if its
demands, that the letters of September 2023 be retracted and a task team be set up
to facilitate the relocation, were not met. Yet, this Court was not approached as early
as October 2023.
[32] The choice forms that were issued in early November 2023 were a further
ticking time bomb for the applicants. It is only when the last letters were
communicated in November 2023 to get “a- packing” as removals would happen in
December 2023, that the applicants awoke from their slumber, now, wanting to stop
the relocation process pending relief they have not properly clarified.
[33] However, considering the importance of this matter, given that the objective of
the strategy is to relocate and consolidate the faculties of the WSU and the 2024
academic year being imminent, I exercise my discretion to hear this matter as
urgent.
Argument and analysis
[34] As stated above, when reading the content of the applicant ’s founding
affidavit, and taking into consideration the relief prayed for by the applicant that the
relocation of its members be interdicted pending “full ” and meaningful consultation
with it, it would appear that the applicant skirts over wh at was evidently extensive
consultation between the WSU and its stakeholders in respect of the R& C strategy,
including its implementation.
[35] The WSU painstakingly sets out in its answering affidavit the full extent of the
consultations with stakeholders . The WSU further avers that NEHAWU formed part
of the Steering Committee where discussions and consultations on the R &C strategy
12
occurred. Further, the WSU avers that NEHAWU put its full weight behind the R&C
strategy and took some credit for its successful formulation following the official
communication in May 2023 regarding the adoption of the strategy.
[36] On 16 August 2023, a meeting was held with NEHAWU in which meeting ,
according to WSU, NEHAWU attempted to reopen talks regarding the formulation of
the R&C strategy and it was informed that the proverbial ship had sailed and that the
implementation stage of the strategy had been reached. The WSU was not
amenable to NEHAWU’s proposal of establishing a task team to steer the
implementation process, as it already had structures in place for this purpose and did
not want a duplication of structures. The WSU readily accepts that a follow -up
meeting was to be held in September 2023 to further discuss the implementation of
the strategy with NEHAWU, but such meeting did not take place.
[37] With the full extent of the consultation on the strategy placed before the Court
by the WSU, NEHAWU confirms in its replying affidavit that its case before this Court
is the lack of consultation on the implementation of the strategy. NEHAWU
complains that there has not been “ formal and structured” consultat ions with it and
neither have there been one-on-one consultations with each of its mem bers
regarding the relocations.
[38] The tone of the letter by NEHAWU dated 12 October 2023 takes issue with
the concept of the R&C strategy and not only with its implementation and NEHAWU
proposes that the entire process (strategy and implementation) be referred to t he
Commission for Conciliation, Mediation and Arbitration (CCMA) for consul tation on
the R&C process between October and November 2023. NEHAWU states in the
letter that consultations have not happened or have not been concluded. It also
laments that the WSU is approaching its members directly. The same letter records
that a dispute on t he unilateral change to the terms and conditions of emp loyment
had been referred to the CCMA by NEHAWU on 6 October 2023, yet, the WSU is
disregarding the provisions of section 64(4) of the Labour Relations Act
8 (LRA).
8 Act 66 of 1995, as amended.
13
[39] Various speculations are put forward by NEHAWU on the harm that would be
suffered by its members should the interim interdict not be granted and they relocate,
ranging from separation of families, challenges regarding the sale of current homes
below market price and great financial loss, and challenges regarding the relocation
of children to new schools and the expenses of buying new school uniform . No
confirmatory affidavits are placed before this Court by NEHAWU to confirm these
statements and the loud fears of detrimental financial loss sounding through such
statements. The unsupported statements regarding families being torn apart and
children having to live without parents are exaggerated.
[40] I now deal with the applicants’ averments (as contained in their various
causes of action) in their attempt to persuade this Court that they have demonstrated
that they have a prima facie right to the relief sought in Part A of the notice of motion.
Breach of contract , offending the audi alteram partem principle, legality review ,
breach of section 33 of the HEA, unilateral change to the terms and conditions of
employment, breach of a collective agreement
[41] The applicants contend that relocating them without consultation amounts to a
breach of contract in circumstances where their contracts of employment specify the
location where they are to render their services. In this regard, NEHAWU relies on
the decision in Minister for Public Service and Administration and Another v Gayle
Cheryl Kaylor9 (Kaylor), to the effect that an employer is obliged to consult with an
employee before transfering such employee to a different location.
[42] The WSU contends that firstly, all but one of the applicants ’ contracts of
employment do not specify a location where the particular individual is to render
services; secondly, there is no basis in law that curtails an employer from requiring
its employee to relocate; thirdly, Kaylor is distinguishable.
[43] On the Plascon- Evans
10 principle, I find in favour of the WSU that extensive
consultation on the R&C strategy occurred with all its stakeholders, including
NEHAWU. I agree with Mr Redding’s submission for the respondents, that the facts
9 [2013] ZALAC 11; (2013) 34 ILJ 3111 (LAC).
10 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
14
in Kaylor are distinguishable. The affected individual applicants were consulted
about the implementation of the strategy in roadshows and correspondence and
were afforded an opportunity to make representations against relocating. The WSU
did not close the door on consulting with the affected employees. The last letters to
the affected employees about the date their personal effects would be moved did not
occur in a vacuum – they were well aware that the implication of the st rategy meant
relocation and they were provided with an opportunity to approach the WSU to
resolve any issues with relocation. The facts do not support the applicants’ case that
the WSU offended the audi alteram partem principle. Unlike Kaylor, no facts are
placed before this Court by the applicants that they made representations and they
were ignored.
[44] The applicants do not set out grounds of review other than using terms such
as legality review, the WSU acting ultra vires in contravening section 33 of the HEA
and offending the audi alteram partem principle. The applicants seek leave to
supplement their papers to give some clarity, it would seem, of the relief they seek in
Part B. Mr. Jooste submits that this Court is not t o concern itself with the relief
sought in Part B. The difficulty with this submission is that it places this Court in no
position to consider what the main case is that the applicants seek this Court to
adjudicate and whether it should issue an interim order effectively, halting the
relocation, pending the adjudication of the main case.
[45] In Economic Freedom Fighters v Gordhan and Others
11 (EFF), the
Constitutional Court restated that the nature of an interim interdict is relief granted
pending litigation. It is intended to protect the rights of an aggrieved party pending
litigation to establish the respective rights of the parties. The criteria for the grant of
interim interdictory relief as set out in Setlogelo v Setlogelo
12 were repeated, being a
prima facie right, a reasonable apprehension of irreparable harm, the balance of
convenience and no other satisfactory remedy. Further, the Constitutional Court in
EFF stated as follows at paragraph [42]:
‘In addition, before a court may grant an interim interdict, it must be satisfied that the
applicant for an interdict has good prospects of success in the main review. The
11 [2020] ZACC 10; 2020 (6) SA 325 (CC).
12 1914 AD 221.
15
claim for review must be based on strong grounds which are likely to succeed. This
requires the court adjudicating the interdict application to peek into the grounds of
review raised in the main review application and assess their strength. It is only if a
court is convinced that the review is likely to succeed that it may appropriately grant
the interdict.’
[46] What then, is the main case the applicants bring to this Court? In paragraph
3.5 of the founding affidavit, the applicants state:
‘3.5 In terms of Part B, NEHAWU seeks final relief in relation to the
implementation of the Rationalisation and Consolidation Process. More especially,
NEHAWU seeks to review and set aside the WSU’s decision to relocate and/or
transferring the affected members on inter alia the basis that:
3.5.1 The intended relocation and/or transfer offends the audi alteram partem rule;
and
3.5.2 The decision (including the implementation thereof ) is ultra vires, as the
jurisdictional requirements of section 33 read with section 32 of the Higher Education
Act have not been met.’
[47] At no stage during the extensive consul tation process rel ating to the R&C
strategy, nor in any correspondence by NEHAWU relating to the entire process,
does NEHAWU inform the WSU that the R&C strategy is an institutional statute. This
contention is raised in this application.
[48] Section 1 of the HEA defines an institutional statute as:
‘any statute made by the Council of a public higher education institution under
section 32.’
[49] Section 32 of the HEA states:
‘(1) The council of a public higher education institution may make –
(a) an institutional statute, subject to section 33, to give effect to any matter not
expressly prescribed by this Act; and
(b) institutional rules to give effect to the institutional statute.’
[50] Section 33(1) of the HEA provides:
16
‘Any institutional statute must be submitted to the Minister for approval, and if so
approved must be published by notice in the Gazette and comes into operation on
the date mentioned in such notice.’
[51] As is evident from a reading of the Institutional Statute: Walter Sisulu
University, gazetted on 17 January 2014, referred to above, an institutional statute is
a governing instrument. It is aching to subordinate legislation as it is gazetted in
terms of a statutory provision. It establishes structures such as the Council of the
institution and provides for functionaries such as the Chancellor to perform various
functions and the overall management of the institution. The Institutional Statute that
regulates the WSU empowers the structures that were created to establish and dis -
establish of faculties and also empowers its structures to ensure the efficient
governance of the University. In the communiqué by the chairperson of the Council
of the WSU, he records in paragraph 1.1 thereof that the R&C strategy is a policy of
the WSU.
[52] Therefore, by no stretch of the imagination does the strategy constitute an
institutional statute. Sections 32 and 33 of the HEA find no application.
[53] This then leaves the ground of review as offending audi alteram partem . I
have already found that this maxim has not been offended.
[54] There remains no other grounds of review. It follows that the applicants do not
succeed in the grant of an interim interdict.
[55] The applicants have not demonstrated a prima facie right to the relief they
seek. They are unable to demonstrate a prima facie right to consultation in relation to
the implementation of the strategy and in circumstances where consultation on
implementation has, in any event, occurred. The applicants have not established that
relocation of their place of work constitutes a breach of contract.
[56] The applicants have an alternative remedy at the CCMA in relation to their
dispute concerning a unilateral change to their terms and conditions of employment.
They also have an alternative remedy relating to their claim of a breach of the
17
provisions of the recognition agreement in the dispute resolution mechanism in
clause 15 of the recognition agreement, failing that, they have an alternative remedy
in section 24 of the LRA.13
[57] As stated above, the applicants have failed to demonstrate a reasonable
apprehension of harm. The harm apprehended is speculative.
[58] The balance of convenience favours of the WSU. If the interdict is not
granted, the applicants still have an opportunity to approach the WSU to make
representations as to why relocating would not be practicable and should the issue
not be resolved, the provisions of section 189 of the LRA would be followed. If the
interdict is granted and the relocations are halted (if for a moment, one considers this
to be in circumstances where the applicants have established a prima facie right),
the WSU would be placed in a position where stu dents arrive on campus in 2024
and there would be no employees available to attend to them . T his would be
untenable given that the strategy has been adopted to enhance efficiencies and the
faculties have been reduced.
[59] In view of the aforegoing, the applicants have not satisfied the three
requirements for the grant of an interim interdict.
Costs
[60] T he application launched by the applicants is woeful. The conduct of the
applicants in proceeding with this application and during the proceedings warrants
an order for the payment of costs. 14 The applicants paint a picture of no or
inadequate consultation in respect of the R &C s trategy in their founding affidavit ,
whereas the true facts are that extensive consultation on the strategy occurred and
consultation with the affected employees on the implementation of the strategy took
place. Despite assuring this Court that the applicants do not challenge the adoption
of the R & C strategy, prayer 2 of Part B of the notice of motion and paragraph 3.5.2
13 See: Ekurhuleni Metropolitan Municipality v South African Municipal Workers Union (2015) 36 ILJ
624 (LAC) at paras [23] and [24].
14 See: section 162 (2)(b) of the LRA.
18
of the founding affidavit quoted above take issue with the strategy and not only its
implementation.
[61] Various causes of action are thrown in the mix in the hope that “something will
stick”. Belatedly in their replying affidavit , the applicants attempt fit their grounds of
review in the purview of section 158(1)(h) of the LRA and raise a further cause of
action relating to specific performance as an alternative claim. It is trite that a litigant
is to set out his or her case in the founding affidavit.
[62] When confronted with the fact that three of the applicants befor e this Court
signed and submitted choice forms and that four are not NEHAWU members,
NEHAWU feigns ignorance. It is for this reason, that the order was varied that
NEHAWU pays the costs of the first and second respondents, as it would not be fair
to saddle the individual applicants with costs in circumstances where three of the
applicnts are not challenging the relocations and it is unclear whether NEHAWU
represents four of the applicants.
[63] For the above reasons, the aforesaid order was made.
M. T. M. Phehane
Judge of the Labour Court of South Africa