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2024
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[2024] ZALCJHB 151
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Shema v Ditsobotla Local Municipality and Another (J 1625/23) [2024] ZALCJHB 151 (2 April 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: J 1625/23
In
the matter between:
ISAAC
TSIETSI SHEMA
Applicant
And
DITSOBOTLA
LOCAL MUNICIPALITY
First Respondent
THE
ACCOUNTING OFFICER
(DITSOBOTLA
LOCAL MUNICIPALITY)
Second Respondent
Heard:
30 November 2023
This judgment was
handed down electronically by consent of the parties’ legal
representatives by circulation to them via email.
The date for
hand-down is deemed 2 April 2024.
JUDGMENT
NGWENYA,
AJ
Introduction.
[1]
The Applicant, has approached the Court seeking two categories of
urgent
relief. First is contractual relief in the form of specific
performance and the second is leave to execute an order granted by
this Court in different proceedings between the same parties.
[2]
There was a
challenge to the urgency of this application, however, I am satisfied
that the Applicant has made out a case for urgency.
Any complaint
about the delay in launching these proceedings, does not offset my
finding that the Applicant will not obtain substantial
redress at a
hearing in the ordinary course
[1]
.
The
Relevant Facts Giving Rise to this Application
[3]
The Applicant is employed by the First Respondent as the Legal
Manager.
It is not seriously in dispute that the Applicant commenced
employment during 1 June 2021. It is common cause that the Applicant
was dismissed during or about 24 April 2023, pursuant to a
disciplinary enquiry which was, it is pleaded “
purportedly”
held in accordance with the Disciplinary Procedure Collective
Agreement.
[4]
Following the Applicant’s dismissal, he referred an unfair
dismissal
dispute to the Bargaining Council. During conciliation
proceedings, the parties entered into a settlement agreement in terms
of
which the Applicant was reinstated retrospectively and it was
agreed that:
a. The
employer agrees to
reinstate
the employee with effect from 3
July 2023 on the same terms and conditions of employment as existed
prior to the dismissal. [Clause
1]
b. The
Applicant to report for duty on 3 July 200213, at 07:30 at the
Respondent’s premises. [Clause 3]
(sic)
[5]
On 13 July 2023, the First Respondent’s Acting Municipal
Manager,
issued a letter confirming the Applicant’s
reinstatement in terms of the settlement agreement and confirming the
payment
of outstanding salaries.
[6]
On 8 August 2023, the Applicant launched urgent proceedings in this
Court
seeking to claim outstanding remuneration to which he had
become entitled to as a result of his reinstatement. An order was
granted
to this effect by this Court on 18 September 2023.
[7]
On 11 August 2023, the Applicant launched an application to review
and
set aside the settlement agreement entered into between the
parties. The Applicant contends that the First Respondent has not
taken
any steps to prosecute the review proceedings. On 25 September
2023, the First Respondent delivered an application for leave to
appeal the order granted by this Court on 18 September 2023.
[8]
On 15 November 2023, the First Respondent’s Acting Municipal
Manager,
distributed a memorandum in terms of which Managers were
invited to participate in a management meeting scheduled for 17
November
2023. Shortly before the commencement of the meeting, the
Applicant pleads that he was called aside by the Acting Municipal
Manager
who informed him that he would not be permitted to
participate in the meeting and that he should not report for duty
until the
pending Court proceedings are finalised. A memorandum was
issued to the Applicant to this effect.
[9]
Following the meeting of 17 November 2023, the Applicant’s
attorneys
of record placed the First Respondent on terms by means of
a letter dated 19 November 2023 which tendered the Applicant’s
services.
[10]
On 21 November 2023, the First Respondent’s attorneys of record
responded stating
the following:
a. The
matter of the Applicant’s salary is the subject of an
application for leave to appeal.
b. The
matter of the Applicant’s reinstatement is subject to a review
application.
c. As a
result the Applicant knows and/or is reasonably expected to know that
he is not an employee of the First
Respondent and did not render any
services in return of any payment thereof since 14 June 2023.
[11]
This application was launched by the Applicant against this
background.
Analysis
[12]
This Court
has consistently recognised the power and jurisdiction, in terms of
section 77(3) of the Basic Conditions of Employment
Act, 75 of 1997
(“BCEA”), to make orders of specific performance
compelling an employer to honour contractual obligations.
[2]
[13]
It is important to point out, on the question of jurisdiction, that
the Applicant’s
case does not concern the termination of a
contract of employment nor a dismissal. The Applicant, seeks to
enforce a contract of
employment which was revived and reinstated by
agreement between the parties following the conclusion of the
settlement agreement.
[14]
The nature of the relief is relevant to the exercise of jurisdiction,
as this Court has
lamented litigants seeking to bypass the statutory
dispute resolution procedure, by approaching this Court in terms of
section
77(3) of the BCEA with claims that are clearly
justiciable in terms of the Labour Relations Act, 66 of 1995 (“LRA”).
[15]
The Labour
Appeal Court most recently in
The
Passenger Rail Agency of South Africa v Ngoye
[3]
,
held that:
[28] While there are
provisions in the legislation, notably section 77(3), that endow the
Labour Court with authority to adjudicate
contractual claims. In my
view, these provisions must be interpreted by having regard to the
objectives sought to be achieved by
the labour law dispensation as a
whole. I do not believe that the intention of the legislature in
enacting section 77(3) was to
give the Labour Court jurisdiction over
disputes that arise from dismissals and ULPs which should, in the
first instance, be categorised
as unfair dismissal disputes or unfair
labour practice disputes and dealt with by the CCMA. In dealing with
employment disputes,
our first point of reference should be the
constitutional right to fair labour practices, which is given effect
in the LRA.
[16]
In my assessment the Applicant’s claim is not such a case.
[17]
The First Respondent, has in essence determined that no employment
contract or employment
relationship exists by virtue of the review
application that has been launched and it appears the application for
leave to appeal
the order of the Labour Court of 18 September 2023.
There is no merit to this argument.
[18]
The First Respondent peculiarly pleads that “
[T]he
employment relationship between the applicant and the respondents was
terminated on or about 24 April 2023.”
I say that it is
peculiar because the parties settled the dismissal dispute by way of
a settlement agreement in June 2023 –
the Respondents cannot
seek to rely upon the initial decision to dismiss the Applicant in
April 2023.
[19]
It is trite
that even if conduct is invalid or unlawful, until it is rescinded or
reviewed and set aside it stands. In the present
matter the
settlement agreement concluded between the parties has not been set
aside.
[4]
[20]
In addition, it is not clear nor was it explained in the answering
affidavit or in argument
the basis upon which the First Respondent
contends that the employment relationship had ceased to exist,
bearing in mind (i) the
settlement agreement reinstating the
Applicant and (ii) the letter from the First Respondent’s
Municipal Manager confirming
the Applicant’s reinstatement.
[21]
In
Chubisi
v South African Broadcasting Corporation
[5]
this Court considered similar circumstances and held as follows:
[30] Reference in
this regard is made to the ‘Notification of non-recognition of
your purported contract of employment
with the SABC’, in
terms of which the applicant was notified that her appointment was
irregular and unlawful, and as
also duly established by the Public
Protector. In essence, she was informed that the SABC does not
‘recognise’ her
contract of employment, and therefore she
is not considered an employee.
Conspicuous with this notice of
non- recognition is that nowhere is the applicant informed that her
services are terminated,
or that she is dismissed.
[31]
The concept
of ‘non-recognition of a contract of employment’ is
unknown, unheard of, and foreign within the context
of the LRA, or
any other legislative provisions one can think of. In my view, it is
a meaningless if not a vague concept.
Even if the definition of
dismissal under section 186(1) of the LRA was extended as pointed out
by the LAC in Steenkamp, so
that the word “terminated”
in those provisions is given its ordinary meaning of “bringing to
an end”,
it is doubted that from the concept of
‘non-recognition of contracts’, one can readily infer
‘terminated’
or ‘dismissed’, for the purposes
of a claim under section 186(1) of the LRA. It is indeed easy for an
employer to decide
that it no recognises an employee’s contract
of employment. It will however be an even more onerous burden on an
employee
at the CCMA or Bargaining Council, to discharge the onus
under section 192(1) of the LRA, that he or she was dismissed, when
all
that she was told that a contract of employment was no longer
recognised.
[22]
Having found that the contract of employment and the employment
relationship remains extant,
I must now determine whether the
Applicant is entitled to specific performance.
[23]
After
referring to
Nationwide
Airlines
[6]
,
the LAC in
PRASA
[7]
considered the discretion to be exercised in granting specific
performance, particularly in the case of employment contracts, the
LAC stated:
'[51] The reason why
employment contracts were considered differently when it came to the
relief of specific performance is precisely
because an employment
contract is not a commercial or transactional contract, it is a
personal contract. In my view, when we are
dealing with employees on
the upper echelons of a business enterprise one must not lose sight
of the fact that these employees
on the level of management need to
involve themselves in helping with the running of the enterprise,
they need to conduct the business
in cooperation and consultation
with the owners or those who are authorised to control the affairs of
the enterprise. In this instance,
although there has been an unlawful
termination of the contract, I cannot exercise á discretion in
favour of granting specific
performance without being satisfied that
in their continued employment there will be no interaction between
the Respondents and
those who control the affairs of the Appellant to
determine the continued operation of the enterprise, or whether the
grant of
specific performance may lead to conflict within the
workplace. Added is the fact that the termination of the employment
contracts
demonstrates' that the Appellant is no longer in need of
the Respondents' services. These factors must be taken into account
in
determining specific performance for an unlawful termination but
may play no role where the dismissal is found to be unfair. Finally
seeking specific performance because of financial prejudice that
employees suffer as a result of losing their income is not grounds
for granting of this relief.
[24]
In exercising my discretion, in my view it is appropriate to grant
specific performance
in the present circumstances. The papers before
this Court do not demonstrate that specific performance would not be
appropriate.
It appears that the First Respondent intended to comply
with its obligations in terms of the Applicant’s contract of
employment,
following its revival by the settlement agreement.
However, at some stage a decision was taken to review and set aside
the settlement
agreement, which in the absence of mere reference to
some “
corruption”
, no factual basis laid for such
decision.
[25]
In my view, the Applicant has clearly made out a case for specific
performance.
[26]
I now turn
to the relief seeking to enforce the order granted by this Court in
September 2023. This Court in
Justice
for All Workers of South Africa v Registrar of Labour Relations and
Others
[8]
summarised the requirement for an application in terms of section
18(3) of the Superior Courts Act, as follows:
[12] The effect, in
short, is this: the Superior Courts Act limits the discretion of a
court to grant the relief of interim execution
and section 18(3)
introduced a higher threshold and more onerous requirements. An
applicant must prove three distinct requirements
on balance of
probabilities: 1. Exceptional circumstances (including the balance of
convenience and prospects of success); 2. That
it will suffer
irreparable harm if interim execution is not ordered; 3. That the
other party will not suffer irreparable harm if
an order of interim
execution is granted. [13] Section 18(3) places a heavy onus on an
applicant and if an applicant fails to prove
any one of the
requirements, the application must fail and be dismissed.
[27]
In my assessment, the Applicant has not made out a case for
exceptional circumstances.
While I am mindful that the Applicant is
entitled to the past remuneration as provided for in the previous
order of this Court,
I do not find that in these circumstances it may
be elevated to exceptional circumstances. Additionally, the
Applicant’s
concerns regarding the dilatory manner in which the
Respondent has prosecuted its review application and the application
for leave
to appeal are catered for by the provisions of the Practice
Manual of this Court. I am not satisfied, that at this stage, the
jurisdictional
requirements for the application for leave to execute
have been met.
Costs
[28]
Guided by section 162 of the LRA, I am of the view that having regard
to considerations
of law and fairness, the Applicant should not be
burdened with the costs of this application. The Respondents were
aware that the
settlement agreement is valid until such time as it
has been set aside, hence the approach to this Court in August 2023,
they were
not entitled to resort to self-help.
[29]
In the premise I make the following order:
Order:
[30]
The application is dealt with as an urgent application in terms of
Rule 8.
[31]
The Respondents’ refusal to allow the Applicant to render his
service as the First
Respondent’s Legal Manager is unlawful.
[32]
The First Respondent is in breach of the Applicant’s employment
contract and must
comply with its contractual obligations by
permitting the Applicant to render his services, in terms of his
contract of employment,
as the First Respondent’s Legal
Manager.
[33]
The First Respondent is order to pay the Applicant’s costs on a
party and party scale.
Z NGWENYA
Acting Judge of the
Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Mr
Scholtz (Scholtz Attorneys)
For
the Respondent:
Advocate
L Nyangiwe
Instructed
by:
Morathi
Mataka Attorneys
[1]
East
Rock Trading 7 (Pty) Ltd & Another v Eagle Valley Granite (Pty)
Ltd [2011] ZAGPJHC 196 also [2012]
[2]
Ngubeni
v National Youth Development Agency and another (2014) 35 ILJ 1356
(LC); Solidarity and others v South African Broadcasting
Corporation
2016 (6) SA 73 (LC).
[3]
The
Passenger Rail Agency of South Africa v Martha Ngoye and others;
Unreported Judgment; Labour Appeal Court, Johannesburg, Case
Number
JA 78/21, 26 March 2024
[4]
Sisa
Maradona Gobombo v Servest (Pty) Ltd T/A Servest Security JS
10523/13, 6 January 2016; Oudekraal Estates (Pty) Ltd v City
of Cape
Town
2004 (6) SA 222
(SCA)
[5]
(2021)
42 ILJ 395 (LC)
[6]
Nationwide
Airlines (Pty) Ltd v Roediger and another 2008 (1) SA 293 (W)
[7]
Fn
3
[8]
Unreported
Judgment, Labour Court Johannesburg, Case No J 930/23 (27 February
2024),