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[2024] ZALCJHB 85
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Department of Health Gauteng Province and Another v Tenteni and Others (J01/2024) [2024] ZALCJHB 85 (27 February 2024)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J 01/2024
In the matter between:
DEPARTMENT OF HEALTH,
GAUTENG PROVINCE
First
Applicant
MEC FOR HEALTH,
GAUTENG PROVINCE
Second Applicant
and
ELROY
TENTENI
First Respondent
SAKHILE
ZWANE
Second Respondent
TSHEPHISO
MASOANE
Third
Respondent
MPHO
MAHLANGU
Fourth
Respondent
NEHAWU obo SECOND TO
FOURTH
RESPONDENTS
Fifth
Respondent
Heard:
20 February 2024
Delivered:
27 February 2024
This
judgment was handed down electronically by consent of the parties’
representatives by circulation to them by email. The
date for
hand-down is deemed to be 27 February 2024.
JUDGMENT
PRINSLOO, J
Introduction
[1]
The Applicants approached this Court on an
urgent basis for the following relief:
‘
a.
The decision made by the first respondent on 4 March 2022 to
pronounce on the sanction of final written warning and two
months
suspension without pay against the second – fourth respondents
in the disciplinary hearing is declared irrational,
unjustified and
unreasonable and is hereby reviewed and set aside;
b. The decision by
the first respondent to pronounce on the sanction of final written
warning and two months suspension without
pay against the second –
fourth respondents is replaced with the appropriate sanction of
dismissal.’
[2]
The Fifth Respondent (NEHAWU or the
Respondent) filed an opposing affidavit wherein the urgency of this
application was disputed.
When the matter was argued, the only aspect
argued was the issue of urgency.
Material facts
[3]
In deciding the issue of urgency, it is
prudent to set out the chronological sequence of events relevant to
this application.
[4]
The Second, Third and Fourth Respondents
(the employees) are employees of the First Applicant (the
Department). They are employed
to render services as a driver and in
the laundry department respectively, at the Chris Hani Baragwanath
Academic Hospital (CHBAH).
[5]
The employees were charged with different
charges of misconduct relating to the theft of eight boxes of the
Applicant’s personal
protective equipment (PPE) on 8 December
2020. A disciplinary hearing was held on 28 February 2022 and at the
disciplinary hearing,
the employees pleaded guilty and asked for
mercy and lenience. The First Respondent (chairperson) presided over
the disciplinary
hearings and on 4 March 2022 he issued a report,
pronouncing on the sanction and he found that the most appropriate
sanction would
be a final written warning and two months’
suspension without pay.
[6]
Upon receipt of the chairperson’s
decision on the appropriate sanction, the Deputy Director: Labour
Relations prepared a submission
to the Director: Human Resources, who
approved the submission and submitted it to the Chief Executive
Officer (CEO). The submission
motivated for the review and setting
aside of the sanction imposed by the chairperson as the employees
were engaged in theft and
selling the Applicant’s PPE for their
own personal gain. The motivation was
inter
alia
that the sanction was irrational,
unjustifiable, unreasonable, failed to appreciate the gravity of the
misconduct and that the nature
of the misconduct is such that it
justifies dismissal. The submission was approved by the CEO on 14
March 2022.
[7]
On 23 January 2024, the Applicants filed an
urgent application for the review and setting aside of the
chairperson’s decision
of 4 March 2022, which was enrolled for
hearing on 20 February 2024.
Applicable legal
principles: Urgency
[8]
Rule
8 of the Rules for the Conduct of Proceedings in the Labour Court
[1]
provides for urgent applications. An applicant that approaches the
court on an urgent basis essentially seeks an indulgence and
to be
afforded preference, in order to prevent the prejudice and harm that
may materialise or persist, if the conduct complained
of continues.
Central to a determination of whether a matter is urgent is whether
the applicant has, in the founding affidavit,
set forth explicitly,
the circumstances which render the matter urgent, and the reason why
substantial relief cannot be attained
at a hearing in due course.
Thus,
it is required of an applicant to set out adequately in his or her
founding affidavit the reasons for urgency and to give
cogent reasons
why urgent relief is necessary.
[2]
[9]
What
would an applicant who seeks to make out a case of urgency then have
to show? In
Mojaki
v Ngaka Modiri Molema District Municipality and others
[3]
,
the court referred with approval to the following dictum from
East
Rock Trading 7 (Pty) Ltd & another v Eagle Valley Granite (Pty)
Ltd & others
[4]
:
‘…
An
applicant has to set forth explicitly the circumstances which he
avers render the matter urgent. More importantly, the applicant
must state the reasons why he claims that he cannot be afforded
substantial redress at a hearing in due course. The question of
whether a matter is sufficiently urgent to be enrolled and heard as
an urgent application is underpinned by the issue of absence
of
substantial redress in an application in due course. The rules allow
the court to come to the assistance of a litigant because
if the
latter were to wait for the normal course laid down by the rules it
will not obtain substantial redress.’
[10]
In
all instances where urgency is alleged, the applicant must satisfy
the court that indeed the application is urgent.
In
Vermaak
v Taung Local Municipality
[5]
,
this
Court has held that:
‘
The
consideration of the first requirement being why is the relief
necessary today and not tomorrow, requires a court to be placed
in a
position where the court must appreciate that if it does not issue a
relief as a matter of urgency, something is likely to
happen. By way
of an example if the court were not to issue an injunction, some
unlawful act is likely to happen at a particular
stage and at a
particular date.’
[11]
The principles around urgency have been
developed and considered by the courts and on numerous occasions, the
courts have made it
clear that self-created urgency is not to be
entertained by an urgent Court.
[12]
In
considering Rule 8, the Court in
Jiba
v Minister: Department of Justice & Constitutional Development &
others
[6]
,
held
that:
‘
Rule
8 of the rules of this court requires a party seeking urgent relief
to set out the reasons for urgency, and why urgent
relief is
necessary. It is trite law that there are degrees of urgency, and the
degree to which the ordinarily applicable rules
should be relaxed is
dependent on the degree of urgency. It is equally trite that an
applicant is not entitled to rely on urgency
that is self created
when seeking a deviation from the rules.’
[13]
In
National
Union of Metalworkers of SA and others v Bumatech Calcium
Aluminates
[7]
,
the
Court held that:
‘
Urgency
must not be self-created by an applicant, as a consequence of the
applicant not having brought the application at the first
available
opportunity. In other words, the more immediate the reaction by the
litigant to remedy the situation by way of instituting
litigation,
the better it is for establishing urgency. But the longer it takes
from the date of the event giving rise to the
proceedings, the
more urgency is diminished. In short, the applicant must come to
court immediately, or risk failing on urgency.
In
Collins
t/a Waterkloof Farm v Bernickow NO & another
the
court held that:
“
if
the applicants seeks this court to come to its assistance it must
come to the court at the very first opportunity, it cannot
stand back
and do nothing and some days later seek the court's assistance as a
matter of urgency”.’
[14]
In
National
Police
Services Union and others v National Negotiating Forum and others
[8]
,
this Court held the view that the latitude extended to parties to
dispense with the rules of the court in circumstances of urgency
is
not available to parties who are dilatory to the point where their
very inactivity is the cause of the harm on which they rely
to seek
relief.
[15]
In
Soobedar
and another v Minister of International Relations and Cooperation and
another
[9]
,
the
Court restated the principles applicable to urgent applications and
held that:
‘
[19]
The principles applicable to urgency are trite as can be
gleaned from various decisions of this and other courts.
An applicant
that approaches the court on an urgent basis essentially seeks an
indulgence, and to be afforded preference in order
to prevent
prejudice and harm that may materialise or persist, if the conduct
complained of continues. Central to a determination
of whether a
matter is urgent is whether the applicant has in the founding
affidavit set forth explicitly the circumstances which
render the
matter urgent, and the reason why substantial relief cannot be
attained at a hearing in due course.
[20]
It is trite that urgent relief will not be granted
in circumstances where it is apparent that the urgency
claimed is
self-created. Self-created urgency is apparent in circumstances where
an applicant failed to bring the application at
the first available
opportunity. Thus, it is expected of litigants to react immediately
to remedy or prevent harm and/or prejudice,
rather than standing back
and doing nothing until it is too late.’
[16]
In
Sihlali
and others v City of Tshwane Metropolitan Municipality and
another
[10]
(Shihlali),
the
Court dealt with an
urgent
application to interdict and restrain the City from taking further
steps in recruiting, interviewing and appointing candidates
to the
advertised posts, pending the final determination of another dispute
between the parties. The court refused to entertain
the application
and held that:
‘
There
is what is termed self-created urgency. The situation herein is a
classic case of such. By the time the advertisements arose,
the
applicants had a gripe already, which gripe they expressed in no
uncertain terms to the mayor on 8 November 2016. The applicants
should have, if there was any urgency, approached this court then.
Why they did not do so, is not explained. Instead what
is
apparent is that they sat back, took their time until they obtained a
legal opinion after almost three months.’
Analysis
[17]
Emanating from the provisions of Rule 8 and
the principles set out in the authorities referred to, it is evident
that urgency is
not there for taking, and an applicant seeking urgent
relief must adequately and in detail, set out in the founding
affidavit,
the reasons why the matter before the court should be
treated with urgency.
[18]
In
casu,
the
Applicants approached this Court in terms of the provisions of
section 158(1)(h) of the Labour Relations Act
[11]
(LRA) to review the decision of the chairperson of the disciplinary
hearing. There is no issue that this Court has jurisdiction
to review
the outcome of an internal disciplinary hearing where the employer
does not have any other recourse, should the outcome
be reviewable on
any grounds permissible in law. There is also no issue that an
application in terms of section 158(1)(h) could
be brought on an
urgent basis, provided that a case for urgency is made out and that
urgent relief is warranted.
[19]
The question
in
casu
is whether the Applicants have
made out a case for urgency.
[20]
For any argument on urgency to be
sustained, the applicant must have acted with due haste, when
knowledge of the respondent's prejudicial
behaviour or actions is
gained, as i
t is trite that an applicant is
not entitled to rely on urgency that is self-created.
[21]
The
Applicants submitted that the matter is urgent because an application
in terms of section 158(1)(h) is the only remedy available
to the
Applicants, this Court is the only forum to be approached for relief
and the Applicants have a duty in terms of the Constitution
[12]
to ensure access to health care services and to uphold the rule of
law. If the matter is not dealt with as a matter of urgency,
“
the
executive authority would have failed to live up to the duty imposed
upon the applicants by section 196(1)(f) and (2) of the
Constitution”
and
“
instances
which may impact upon or have a threat to the rule of law must be
considered by our courts as urgent”.
[22]
The Applicants submitted that “
the
decisions of the presiding officer subjected [sic] to this review
application has the potential to set a precedent that can
erode the
rule of law in CHBAH and all other similar health institutions in the
country, the scheme and efficiency in this national
institution
(CHBAH) cannot be left to these circumstances. Therefore, for the
benefits of maintaining an atmosphere conducive to
the realization of
the ideals envisaged by the Constitution and entrusted in the State,
this review application is inherently urgent.”
According
to the Applicants, “
the delay in
initiating this process, cannot change the fact that the matter is
indeed urgent to wait for any longer period”.
[23]
Let this be clear: the mere fact that the
only available remedy is a review in terms of section 158(1)(h) of
the LRA or the fact
that this Court has exclusive jurisdiction to
deal with the matter does not render the application automatically
urgent. Furthermore,
the fact that the Applicants have a
Constitutional duty does not automatically entitle them to jump the
queue. This Court has to
consider the reasons for urgency and decide
if a case for urgency has been made out – it is not urgent
merely because the
Applicants’ failure to comply with their
Constitutional duty may have an impact on the rule of law.
[24]
It is evident that on the Applicants’
own version, senior managers were aware in March 2022 that the
Department was of the
view that as the charges against the employees
related to theft and gross dishonesty, the sanction imposed was
irrational, unjustifiable,
unreasonable and open to review because
the employees ought to have been dismissed. Already on 14 March 2022
a submission to review
the sanction imposed by the chairperson in
terms of section 158(1)(h) of the LRA was approved.
[25]
The question that leaps out is why was the
application for review only filed in January 2024, notwithstanding
the fact that its
institution was approved in March 2022 and
notwithstanding the Applicants’ constitutional duty to uphold
the rule of law.
[26]
The Applicants explained the delay as
follows: during the period March 2022 – August 2023, there were
“
the unexpected simultaneous
resignations of two senior officers who were responsible for the
facilitation of internal processes
of matters such as this one in the
in-house legal service sub-directorate. This was followed by
processes of trying to fill up
the relevant vacancies, which
processes are first subject peremptory legislative and treasury
prescripts. After all peremptory
processes that the applicants were
required to follow in terms of the legislative and treasury
requirements, the matter was then
ultimately referred to the acting
director: Mr A Tuswa. On 12 September 2023, Mr Tuswa referred the
matter to the State Attorney’s
office with an instruction to
brief counsel.”
[27]
Counsel was briefed on 3 October 2023 and a
consultation took place on 6 October 2023, whereafter further
documents were requested.
Mr Motimele, counsel so briefed, submitted
during argument in Court that the application was not filed or
enrolled during November
and December 2023 to afford the Respondents
an opportunity to enjoy their annual leave and the festive season.
[28]
The explanation tendered is shocking and
unbelievable. Firstly, it is impossible for two senior officers to
resign ‘simultaneously’,
which means at the same time,
during a period covering 17 months. Secondly, no detail is provided
as to who the senior officers
were and why all proceedings came to a
complete standstill upon their resignation on an unknown date.
Government departments do
not come to a standstill upon the
resignation of two individuals, as processes are in place and should
continue, even in the absence
of certain individuals.
[29]
Thirdly, it is not explained why, if the
CEO approved the filing of a review application on 14 March 2022, no
steps were taken to
execute the approval. The explanation that the
resignation of the two senior officers was followed by a process to
fill the vacancies,
does not hold water. It is standard practice in
government to appoint another official to act in a critical vacancy,
wherefore
someone had to carry the responsibilities of the two
unknown senior officials, whilst the recruitment process was ongoing.
Furthermore,
Mr Tuswa, who was acting in the position of director,
referred the matter to the State Attorney, which is indicative
thereof that
there was an acting person and that such a person was
able to refer matters to the State Attorney. The delay in dealing
with this
matter for the period between March 2022 and September 2023
is not adequately explained.
[30]
Lastly, it took almost another four months
to bring this application, after the State Attorney was instructed to
brief counsel.
[31]
The Applicants want this Court to take note
of their Constitutional duty to uphold the rule of law and of the
fact that the executive
authority would have failed to comply with
the said duty if this review application is not adjudicated urgently.
It is astonishing
that the Applicants, being acutely aware of their
constitutional duties and their right to approach this Court for
review in terms
of section 158(1)(h) of the LRA, failed to take steps
for almost two years and when they eventually approach this Court,
they demand
an urgent hearing or else ‘they would have failed
their constitutional duty’. The reality is that the Applicants
already
failed their Constitutional duty – not because this
Court is not inclined to deal with the review application on an
urgent
basis, but because they failed to take the steps necessary
since March 2022.
[32]
Applying the
principles relating to urgency to the facts of this matter, I
cannot but find that this application cannot be
entertained on an
urgent basis as any urgency that may exist, is self-created.
[33]
The facts placed
before me show that there has been an inordinate delay and a laxity
on the part of the Applicants in the bringing
of this application,
which is destructive of any consideration of urgency.
[34]
The Applicants, on
their own version, became aware in March 2022 that it was necessary
to approach this Court in terms of section
158(1)(h) of the LRA.
March or April 2022 was the very first opportunity for the Applicants
to come to Court to seek its assistance,
but they failed to do so.
They also failed to provide an explanation as to why they did not
approach this Court at the earliest
and first opportunity to do so,
but instead, they sat back and did nothing since March 2022, very
well aware of their Constitutional
obligations, the prejudice they
now allege they suffer and the public interest they purport to
protect. All the aforementioned
existed since March 2022, yet it did
not spark any urgent action. The applicable authorities referred to
supra
confirmed that an applicant cannot sit back and do nothing and later
seek the court's assistance as a matter of urgency.
[35]
The Applicants did
not approach this Court for urgent relief when it was necessary to do
so, notwithstanding the fact that they
were aware since March 2022
that they have to do so. Instead, they waited until January 2024 to
bring a review application in a
knee-jerk reaction to their own delay
and dilatoriness, they bring it as an urgent application.
[36]
The issue giving rise
to this urgent application was known to the Applicants and ongoing
since March 2022. This can hardly be regarded
as urgent, more so, as
this application could have and should have been brought as far back
as April 2022.
[37]
An applicant who is well aware of the harm
he or she alleges to suffer, who takes no steps over a protracted
period of time, and
then launches an urgent application, is likely to
have his or her application struck from the urgent roll. Thus, to the
extent
that an applicant wishes its matter to be accorded urgency, in
the same token it is expected of such an applicant to have acted
with
the same urgency that the matter deserves, failing which the
invariable conclusion to be reached is that any urgency claimed
is
self-created.
[38]
This application is a
prime example of self-created urgency. It took more than 22 months to
bring this application, and the Applicants
offered no plausible or
believable explanation as to why no urgent legal proceedings were
instituted immediately after the CEO
approved the institution of a
review application in March 2022. They did not explain why an
application was not brought at the
very first opportunity. The
Applicants’ conduct shows that they took a laid-back approach
to the litigation they now want
to pursue on an urgent basis.
[39]
In the normal course,
a party has 6 weeks or a reasonable period to institute review
proceedings. If a review application is filed
outside the aforesaid
periods, it is necessary to apply for condonation for the late filing
of a review application.
In
casu,
the
review application was not brought within 6 weeks or a reasonable
period but was filed one year and ten months after the decision,
which is the subject of the review application, was made. The
Applicants have not filed any application for condonation, on the
contrary, they seek urgent relief.
[40]
Another difficulty is that the Applicants
seek an order in terms of which this Court has to review and set
aside the chairperson’s
decision and to substitute it with ‘the
appropriate sanction of dismissal’.
[41]
In the event that the outcome of the
disciplinary hearing (the sanction imposed) is set aside on review,
the Applicant seeks that
this Court finally determine the matter and
substitute the sanction by dismissing the employees. The matter could
be finally determined
where there is a full record of the proceedings
before Court and where it would be in the interest of justice to do
so.
[42]
The
principles had been set out by the Labour Appeal Court in
Palluci
Home Depot (Pty) Ltd v Herskowitz
[13]
as
follows:
‘
Where
all the facts required to make a determination on the disputed issues
are before a reviewing court in an unfair dismissal
or unfair labour
practice dispute such that the court is “in as good a position”
as the administrative tribunal to
make the determination, I see no
reason why a reviewing court should not decide the matter itself.
Such an approach is consistent
with the powers of the Labour Court
under s 158 of the LRA, which are primarily directed at remedying a
wrong, and providing the
effective and speedy resolution of disputes.
The need for bringing a speedy finality to a labour dispute is thus
an important consideration
in the determination by a court of review
of whether to remit the matter to the CCMA for reconsideration, or
substitute its own
decision for that of the commissioner.’
[43]
In casu,
the
Applicants failed to provide this Court with the entire record and
this Court is in no position to make a decision on the merits
and to
decide and finally determine the matter on the record. The record has
not been made available, notwithstanding the fact
that the Applicants
had waited almost two years to file the review application and seek
the substitution of the sanction as relief
in the review application.
[44]
It is not sufficient for a party, when
approaching a court on an urgent basis, to adopt the approach that it
is of right entitled
to preferential treatment failing which it would
suffer prejudice in the event that its urgent application is not
granted. A party
needs to demonstrate that it had also in asserting
its rights, acted diligently and with the urgency that the matter it
seeks to
pursue requires. The Applicants failed dismally in this
regard.
[45]
This
is more so where the Applicants are a State Department and an
Executive Authority, who have access to legal representatives
and who
have a duty to uphold the Constitution. This was confirmed by the
Constitutional Court in
Member
of the Executive Council for Health, Eastern Cape v Kirkland
Investments (Pty) Ltd t/a Eye & Lazer Institute
[14]
:
‘…
there
is a higher duty on the state to respect the law, to fulfil
procedural requirements and to tread respectfully when dealing
with
rights. Government is not an indigent or bewildered litigant, adrift
on a sea of litigious uncertainty, to whom the courts
must extend a
procedure-circumventing lifeline. It is the Constitution’s
primary agent. It must do right, and it must do
it properly.’
[46]
In essence, the
Applicants waited too long to bring this application and by the time
they had approached this Court for relief,
it became a matter of
self-created urgency.
This Court
does not entertain matters of self-created urgency and f
or
this reason alone, the application falls to be struck from the roll.
[47]
In my view, this application is a serious
abuse of process.
Decisions to litigate in
this Court should be taken with due consideration of the law and the
prospects of success, more so where
it is a review application filed
on an urgent basis.
[48]
In
Sihlali,
the
Court held that:
[15]
‘…
It is
good practice for practitioners practicing in this court to keep
themselves abreast with the judgments of this court
particularly
those arising from the urgent court. There is a developing trend that
points to the fact that the urgent court is
being abused. Might I
state, an urgent court is meant for urgent matters. This court should
not be detained to use its scarce,
valuable time entertaining
self-created urgent matters. Practitioners should exercise
greater care when considering approaching
this court on urgency in
matters where substantial redress is obtainable in due course.’
[49]
The Applicants
brought
an urgent application at a time when any urgency that might have
existed, was self-created. They did not come to Court as
unrepresented laypersons, but they were legally represented by Mr
Motimele and the State Attorney, who failed to advise them against
bringing this urgent application.
[50]
In the premises, I make the following
order:
Order
1.
The application is struck off the roll for
lack of urgency;
2.
There is no order as to costs.
Connie Prinsloo
Judge of the Labour Court
of South Africa
Appearances:
For the
Applicant:
Advocate Motimele
Instructed
by:
The State Attorney
For the Fifth
Respondent: Mr
Phoko from NEHAWU
[1]
GN
1665 of 1996.
[2]
Transport
and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd
and
others
[2015]
ZALCJHB 107; (
2015)
36 ILJ 2148 (LC).
[3]
[2014]
ZALCJHB 433;
(2015)
36
ILJ
1331
(LC)
at
para
17
.
[4]
[2011]
ZAGPJHC 196;
[2012] JOL 28244
(GSJ) at para 6.
[5]
(JR315/13)
[2013] ZALCJHB 43 (12 March 2013) at para 12.
[6]
[2009]
ZALC 57
;
(2010)
31
ILJ
112
(LC)
at
para
18
.
[7]
[2016]
ZALCJHB 329; (2016) 37 ILJ 2862 (LC) at para 26.
[8]
(1999)
20 ILJ 1081 (LC)
.
[9]
(2021)
42 ILJ 1761 (LC) at paras 19 – 20.
[10]
(2017)
38 ILJ 1692 (LC) at para 21.
[11]
Act
66 of 1995, as amended.
[12]
Constitution
of the Republic of South Africa,1996.
[13]
(2015)
36 ILJ 1511 (LAC) para 58.
[14]
2014
(5) BCLR 547
(CC) at para 82.
[15]
Sihlali
supra
at
para 29.