About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2024
>>
[2024] ZALCJHB 154
|
|
Babuseng v Department of Economic Development and Tourism and Others (J1609/21) [2024] ZALCJHB 154 (3 April 2024)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J1609/21
In
the matter between:
DARIUS
BABUSENG
Applicant
and
DEPARTMENT
OF ECONOMIC DEVELOPMENT
AND
TOURISM
First Respondent
HOD:
DEPARTMENT OF ECONOMIC DEVELOPMENT
AND
TOURISM: NORTHERN CAPE
Second Respondent
MEC:
DEPARTMENT OF ECONOMIC DEVELOPMENT
AND
TOURISM: NORTHEREN CAPE
Third
Respondent
HOD:
DEPARTMENT OF ECONOMIC DEVELOPMENT
Fourth
Respondent
Heard:
8 September 2022
Delivered:
8 September 2022
Reasons:
3 April 2024
REASONS
FOR ORDER
RAMOLEFE,
AJ
Introduction
[1]
On 8 March 2022, I issued an order the crux of which was to direct
the
first respondent to comply with the terms of the employment
contract concluded with the applicant. I made no order as to costs.
[2]
The respondents are back seeking reasons for the aforesaid order. I
give
them below.
Background
[3]
In order to
put my reasons in their proper context, I commence by referring to
the founding affidavit. The applicant alleges that
he has an
employment contract with the first respondent and that the first
respondent attempted to repudiate this contract by transferring
and
placing him, without consultation, in a different position
[1]
,
and subsequently alleging that the primary position into which the
applicant was contractually appointed no longer exists.
[4]
The applicant also complains that the first respondent attempted,
during
his movement from one post to the other, to freeze payment of
his salary. This matter appears to have been resolved, and not being
part of the main issue that served before me, I will not address it.
[5]
In a poorly
drafted answering affidavit deposed to by the second respondent, and
in answer to the allegation that the first respondent
sought to
effect a transfer of the applicant, the respondents embarked upon a
most unhelpful and long-winded explanation at the
centre of which are
allegations that the applicant “
signed
a contract of employment and was employed to render a service to the
Respondents
”;
the first and second applicants “
never
intended or transfer the Applicant”
and
that the applicant was “
placed
into a post like all other employees who were placed into a post
”
[2]
.
[6]
As to what
the latter allegation really means, or what the structure referred to
is, these are matters I was unable to unravel either
from the papers,
or the oral submissions. Not even in paragraph 42 of the answering
affidavit, where reference is made to an “
amended
structure
”,
is the court told what the new structure is. All that is pleaded is
that the “
post
of director strategic initiative which the applicant occupied prior
to his secondment does no longer exist in the amended structure
that is
why the position was affected
and had
to be placed in another position
”
[3]
.
[7]
The notion
that the position to which the applicant was contractually appointed
no longer exists was dispelled in a reply by the
applicant who says
that the Chief Director, a Ms Wyngaard, informed him that someone
else, a Mr Percy Mokubung, currently serves
in the position to which
the applicant was appointed
[4]
.
What do the respondents say to this, and where does this leave the
court?
[8]
The
respondents then sought to place reliance on an attendance register
in respect of which it is alleged that there was a “
consultation
process and
all
the officials of the department
were
consulted on
”
[5]
.
The name of the applicant does not appear on this list. Despite this,
the respondents pressed on and opposed the relief sought.
(Own
emphasis)
[9]
In the
midst of this conundrum, a letter was sent to the applicant’s
attorneys of record by the state attorney, acting on
behalf of the
respondents, heralding the news that the applicant was “
found
guilty of Murder by the Molopo Regional Court in North West
”
[6]
.
The relevance of this is not clear. Needless to say, the applicant
denies this allegation.
Conclusion
[10]
In the absence of a properly pleaded explanation for the applicant’s
transfer, and
setting forth the true facts relating to the
applicant’s contractual position, the court was in no position
to refuse the
order sought by the applicant. Despite the respondents’
limping case, they insist on being given reasons under circumstances
where they know full well why the order was made. This constitutes an
abuse of a particular right.
[11]
The issues raised in this application appear to be issues, rampant in
the civil service,
indicative of employment generally being treated
as if it were a large chess board where the constant shifting and
movement of
heads is a primary rule and purpose of the game. This is
cause for concern. Whatever might be the benefits of this for the
civil
service, attempting to have the courts validate this game by
provincial departments is not only irresponsible, but it demonstrates
a failure to appreciate that the limited resources of the Labour
Court ought not be used for what are plainly nefarious purposes.
[12]
It is for these reasons, as I say in any event made known to the
parties when they appeared
before me, that the application was
granted.
K. D. Ramolefe
Acting Judge of the
Labour Court of South Africa
APPEARANCES:
For the applicant:
F.
Sangoni, instructed by Phatshoane Henney Attorneys.
For the respondents:
U. Nibe, of State
Attorney: Kimberly.
[1]
See
supplementary founding affidavit (unpaginated); pages 3-4 at paras
7-12.
[2]
See
answering affidavit (unpaginated) at paras 8.1.1, 8.3 and 8.3.1.
[3]
See
answering affidavit (unpaginated) at para 42.
[4]
See
replying affidavit (unpaginated) at para 43.
[5]
See
answering affidavit (unpaginated) at para 8.3.4.
[6]
See
annexure “L” to the answering affidavit.