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[2007] ZALCCT 15
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South African Municipal Workers Union and Another v Nelson Mandela Metropolitan Municipality and Others (C359/2007) [2007] ZALCCT 15 (7 August 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
Case
Number C359/2007
In
the matter between:
THE
SOUTH AFRICAN MUNICIPAL
WORKERS’S
UNION
FIRST APPLICANT
DAVIS
TOYIS
SECOND APPLIANT
and
THE
NELSON MANDELA METROPOLITAN
MUNICIPALITY
FIRST RESPONDENT
GRAHAM
RICHARDS
(ADV)
SECOND RESPONDENT
NONDUMISO
MAPHAZI
(MS)
THIRD RESPONDENT
MIKE
XEGO
(MR)
FOURTH RESPONDENT
JUDGEMENT
BASSON,
J
(1)
This is an application for urgent relief in terms of which the
Applicants are seeking an order to overturn the Second Applicant’s
suspension on full pay from the First Respondent’s employment.
An order is also sought to interdict the Respondents from
giving
effect to the Second Applicant’s suspension. It was briefly the
case for the Applicants that the suspension of the
Second Applicant
was unconstitutional, unlawful and unfair.
(2)
The Second Applicant is the Assistant Manager: Housing Delivery in
the Housing and Land Business Unit of the Nelson Mandela
Metropolitan
Municipality (the First Respondent – hereinafter referred to as
the “Municipality”). He is also
the provincial
chairperson of the First Applicant (the South African Municipal
Workers’ Union – hereinafter referred
to as “SAMWU”);
an elected shopsteward and a member of the South African Communist
Party (hereinafter referred to as
the “SACP”).
(3)
Although
the relief sought is couched in the form of a Rule
Nisi
,
it is sought to be made operable with immediate effect and on
confirmation is sought to be made final.
[1]
It is trite that in order to succeed with an application for final
relief the following three requirements must be present: -
(i)
A clear right on the part of the applicant;
(ii)
An injury actually committed or reasonably apprehended;
(iii)
The absence of any other satisfactory remedy available to the
applicant.
URGENCY
(4)
An
applicant who approaches this Court on an urgent basis must make out
a case for urgent relief on the papers in sufficient
particularity.
[2]
Only once an
applicant has persuaded the Court that sufficient grounds exist which
necessitate a relaxation of the Rules and ordinary
practice, will the
Court proceed to consider the matter as one of urgency. The extent to
which the Court will allow parties to
dispense with the Rules
relating to time periods will depend on the degree of urgency in the
matter.
[3]
(5)
It was argued on behalf of the Respondents that the Second
Applicant’s allegations in respect of urgency are scant,
general
and wholly lacking in particularity. It was further contended
that the whole case of the Applicants rest on a far-fetched
conspiracy
theory that is based on newspaper editorial comment. I
will return to this issue when I deal with the application to strike
out certain paragraphs and annexures from the Second Applicant’s
founding affidavit.
SUPENSION
OF THE SECOND APPLICANT
(6)
The Second Applicant was first informed of the intention to suspend
him on 6 June 2007. This letter sets out in fair detail
the nature of
the acts of misconduct that are currently being investigated by the
Municipality. It appears that the Second Applicant
was suspended
pending investigations into acts of misconduct pertaining to,
inter
alia
, the fact that he had made certain remarks to members of the
public during a SACP meeting which, according to the Respondents,
undermined and/or brought into disrepute the Municipality; the
Executive Mayoral Committee and the Municipal Manager of the
Municipality
and that he had acted in a manner unbecoming of an
Assistant Manager: Housing and Land of the Municipality. More in
particular,
the Second Applicant is being investigated for exhorting
and/or inciting members of the public to act in an unlawful manner
with
regard to,
inter alia
, the disconnection of water
services by the Municipality to members of the public. A further
reason stated for the suspension is
the fact that on 4 June 2007 the
Second Applicant issued a written instruction to staff members in the
housing delivery silo, all
of whom are his subordinates, not to
cooperate with the external audit investigation underway in that
silo. It was contended by
the Respondent that this action by the
Second Applicant constituted a major obstacle to the work of the
external auditors aimed
at identifying the serious managerial
problems that exist in the Land and Housing Business Unit.
Furthermore, it was contented
that this action by the Second
Applicant amounts to gross insubordination as the Municipal Manager
had given a direct instruction
to the staff in that department to
co-operate with the investigation. The suspension letter further
afforded the Second Applicant
an opportunity until 12 June 2007 to
make written representations as to why he should not be suspended
pending the finalization
of the investigation into the various acts
of misconduct detailed in the letter and any disciplinary enquiry
which may follow the
investigation. A meeting was held with SAMWU and
the Second Applicant on 19 June 2007 during which the union made
representations
as to why the Second Applicant should not be
suspended from his employment.
(7)
On 26 June 2007 a letter was sent to both the Second Applicant and
the offices of SAMWU confirming the suspension of the Second
Applicant. In this letter reference is also made to the
aforementioned meeting of 19 June 2007. The Second Applicant contends
that he only received the letter on 2 July 2007 as he was out of town
attending a National Executive Committee meeting of SAMWU.
The matter
was then taken up with the national structures of SAMWU in Cape Town
and only on 11 July 2007 was the Applicants’
attorneys
instructed to institute the present application. The present
application was finally served on 19 July 2007 which is
more than
three weeks after the final letter of suspension was forewarded to
both SAMWU and the Second Applicant.
(8)
On behalf of the Respondents it was pointed out that it is
inconceivable that SAMWU had to wait until 11 July 2007 for a
decision
to launch the present urgent application particularly in
light of the fact that the Applicants had known since early June of
the
impending suspension. One of the reasons put foreward by the
Second Applicant for the delay in bringing the application only on
19
July 2007 was because the Applicants were waiting to see whether the
suspension of a certain Mr. Mapu would be extended “
in order
to assess whether the content of such notification could impact on
the present application in the sense of disclosing how
the Second
Respondent attempts to justify him disregarding the terms of a
collective agreement.”
I will return to the position of
Mapu in paragraph (12) hereunder. On behalf of the Respondents it was
contended that this is a
complete nonsensical attempt to justify the
delay in view of the fact that the extension of Mapu’s
suspension had no impact
on the Second Applicant’s suspension.
(9)
An
applicant seeking an indulgence from this Court must set out the
facts which he or she avers render the matter
urgent
and also the reasons why it is claimed that he or she could not be
afforded substantial redress at a hearing in due course.
[4]
It
is trite that an applicant cannot create its own urgency by delaying
bringing an application. This much is clear from the long
line of
cases in which this principle has been endorsed over and over again.
See,
inter
alia,
Director
of Public Prosecutions (Western Cape) v Midi Television (Pty) Ltd t/a
E TV
2006 (3) SA 92
(C) at paragraph 47;
National
Police Services Union & Others v National Negotiating Forum &
Others
(1999) 20
ILJ
1081 (LC)
[5]
and
Schweizer
Reneke Vleis Mkpy (Edms) Bpk v Die Minister van Landbou en Andere
1971
(1) PH F11 (T).
[6]
(10)
Although I
am not persuaded by the explanation of the delay, I have nonetheless
considered whether or not there may exist special
circumstances which
might warrant relief on an urgent basis.
[7]
I could not find any such circumstances.
[8]
Consequently I am of the view that the matter is not urgent: SAMWU
and the Second Applicant had known as early as 6 June 2007 of
the
impending suspension. They had an opportunity to make representations
to the Municipality on 19 June 2007. When the decision
to suspend was
finally made on 26 June 2007 the decision was conveyed to both SAMWU
and the Second Applicant. The reasons why the
Applicants had to wait
until 19 July 2007 before bringing the application are not
persuasive. Furthermore, the Second Applicant
has an alternative
remedy at his disposal.
[9]
Consequently I am of the view that the Applicant has created its own
urgency by the substantial delay and that the application
falls to be
struck of the role on this basis alone.
MERITS
(11)
Although not strictly necessary to consider the merits in light of
the aforegoing conclusion that the matter is not urgent,
suffice to
point out that even if I am wrong on the issue of urgency, I am of
the view that the Applicants have, in any event,
not established a
clear right for the relief sought. The entire case of the Second
Applicant rests on the allegation that his suspension
is unlawful in
that the decision to suspend him was motivated by political
considerations namely to remove members from the South
African
Communist party from strategic and influential positions. In this
regard the Second Applicant contended that the suspension
was
motivated by a high level political decision “
by certain
individuals within the ANC to remove members of the South African
Communist Party (SACP) from strategic and influential
positions
within the First Respondent’s staff establishment and to
replace them with persons who are “loyal to the
ANC
”.
In support of his contention the Second Applicant refers to three
other employees who have also, according to him, been
suspended for
political reasons. One of these employees is Mapu: the Manager:
Housing Delivery in the Housing and Land Business
Unit. It later
transpired that one of these individuals was, in any event, never
suspended and was in fact on sick leave.
(12)
In respect of Mapu it is necessary to make a few remarks. Mapu was
suspended on 19 April 2007. According to the Second Applicant
Mapu’s
suspension was also politically motivated. Mapu also approached
the Labour Court on an urgent basis to have
his suspension set aside.
The Court held that the matter was not urgent and struck the matter
from the roll. Apart from the fact
that Mapu is also being
investigated for certain remarks made during a SACP meeting which
allegedly undermines the Municipality
and its management team, the
bulk of the reasons listed for the suspension of Mapu relate to
various acts of misconduct and/or
serious dereliction of his duties
in respect of,
inter alia
, tender payments and procedures. It
is also common cause that external auditors are assisting with the
investigation.
(13)
At the outset it should be pointed out that the Respondent strongly
disputed the allegation that political motive had played
any role in
the decision to suspend. More in particular the Respondent pointed
out that it employs over 6000 employees and the
fact that three
people may be on suspension and facing disciplinary action and who
are also from the same political party is no
more than coincidental.
It was further pointed out that the municipality in any event does
not keep record of its employees’
party political affiliation.
The deponent of the answering affidavit Mr. Graham Richards, who is
the Municipal Manager of the Municipality,
states that he took the
decision to suspend both Mapu and the Second Applicant and that he
took the decision without any political
interference. As already
point out, Mapu was suspended on 19 April 2007 pending investigations
mainly into various acts of misconduct
relating to his position as
the Senior Manager in the Housing silo.
(14)
It is clear
from the papers that a considerable dispute of fact exist in respect
of the fundamental allegation made by the Second
Applicant namely
that his suspension was politically motivated. What is, however,
undisputed is the fact that the Second Applicant
partook in a march
against the housing delivery policies and implementation thereof by
the Municipality and that the Applicant
had also associated himself
with a vicious and personal attach upon the Third Respondent and the
management of the Municipality.
The Second Applicant also urged
audience members that if their services were disconnected for
non-payment that they ought to reconnect
such services themselves.
The fact that the Second Applicant had participated in these
proceedings as a SACP member certainly does
not diminish his
responsibility towards his employer to always act in good faith and
in the best interests of this employer. The
Second Applicant cannot
avoid the consequences of his actions upon the Municipality: By
advising the public to act illegally constitutes,
in my view, a
fundamental breach of his duty to act in good faith towards his
employer. I am accordingly of the view that the Respondents
have
demonstrated a sound and fair operational reason for the Second
Applicant’s suspension and I can accordingly find no
basis upon
which to conclude that any of the rights of the Second Applicant have
been infringed upon.
[10]
The
fact that the Second Applicant has issued a letter to subordinates
urging them not to co-operate with an investigation also
constitutes
misconduct which entitles an employer to investigate the matter and
to consider an appropriate cause of action.
(15)
As far as
an alternative remedy is concerned, it is clear that the Second
Applicant has an alternative remedy available to him in
the form of a
referral of a dispute concerning his suspension as an alleged unfair
labour practice to the relevant bargaining council.
[11]
The Second Applicant does not offer any explanation for such failure.
There is also ample authority for the argument that this
is the
correct procedure to follow.
[12]
APPLICATION
TO STRIKE OUT
(16)
This Court
has held that the provisions of the High Court Rules apply in respect
of striking out applications in this Court.
[13]
In terms of the Rules allegations that are scandalous or vexatious or
irrelevant may be struck out. Rule 6(15) defines these terms
as
follows:
Scandalous
matter
– allegations which may or may not be relevant but which are to
worded as to be abusive and defamatory.
Vexatious
matter
– allegations which may or may not be relevant but are so
worded as to convey an intention to harass or annoy.
Irrelevant
matter
– allegations which do not apply to the matter in hand and do
not contribute one way or the other to a decision of such matter.”
Mapu
application
(17)
The Applicants annexed to the founding affidavit the entire urgent
application launched in the Labour Court in Johannesburg
in respect
of Mapu’s suspension. I have already pointed out that the
application was struck off the roll. The Respondents
filed an
application to strike out the entire Mapu application on the basis
that it is irrelevant and is an attempt to introduce
inadmissible
similar fact evidence purely in an attempt to prejudice the
Respondents. The Mapu application runs into approximately
341
pages. It was argued that this Court has been unduly burdened by
these papers and that a special cost order be made in
respect of
striking out annexure A to the Applicant’s founding affidavit.
(18)
I have perused the Mapu-application and I am of the view that it is
irrelevant for purposes of the present application and
I can find no
reason why it was necessary to burden these proceedings with such a
voluminous application. As a result of this the
Respondent had to
deal with a voluminous application in a very short time period and
had to prepare its papers in merely 4 working
days and thereafter to
present themselves in Court to oppose the present application and
that whilst the Applicants have waited
over 3 weeks before launching
this application. I am accordingly of the view that the entire Mapu-
application as contained in
Annexure A to the founding affidavit
should be struck out.
Press
and conference report
(19)
The Respondent also argued that the following annexures be struck
out: Annexure B1 which is a press clipping reporting on the
suspension of Mapu and the Second Applicant; Annexure B2 and B3 are
press statements issued by SAMWU (the First Applicant) also
reporting
on the suspension of,
inter alia
, the Second Respondent and a
march that was to take place. Annexures MM1, MM3 and MM4 are press
reports and MM2 is a regional conference
organizational report of the
ANC. In respect of these annexures it was argued that it contained
inadmissible hearsay and opinion
evidence.
(20)
In this
regard the Court was referred to the decision in
Mgobhozi
v Naidoo NO &
Others
(2006) 27 ILJ 786 (LAC) where it was held that the same rules of
evidence apply in respect of this Court. Where a party relies
on
hearsay evidence, a basis for the reception of such evidence must be
laid otherwise it is to be excluded.
[14]
Hearsay statements in affidavits can be struck out irrespective of
whether or not there is prejudice.
[15]
(21)
It is clear
from the founding affidavit that the Second Applicant relies on the
truth of the contents of the clippings, press reports
and conference
reports in support of its case that he was the victim of a political
conspiracy. If that is so, the facts contained
therein must be proved
by direct evidence which would require an affidavit by the author of
the documents or someone else who can
testify to the truth of such
facts contained in the document.
[16]
In the event, I am of the view that these annexures should be struck
out.
Allegations
contained in the founding affidavit
(22)
The
Respondent also referred the Court to four paragraphs in the founding
affidavit and argued in respect of these paragraphs that
they are
argumentative, scandalous and vexations in that it is without factual
foundation and tendered purely for purposes of attempting
to
prejudice the Respondents. I do not intend repeating all those
paragraphs here, suffice to point out that all of these paragraphs
refer to an alleged concerted plan by “
high
ranking ANC politicians who also have private business interests, to
remove persons from office who are regarded as constituting
an
obstacle in the way of them advancing their personal business
interest through contracts with the FIRST RESPONDENT
municipality
.”
[17]
Reference is also made to newspaper articles that confirm this
plan.
[18]
The allegation is
also made that the Municipality is abusing its political power in a
blatant manner to such an extent that the
“
very
foundation of our Constitutional Democracy is under sever
threat
”.
[19]
(23)
I am of the view that these paragraphs are scandalous and vexatious
and worded in a manner as to be abusive, defamatory and
with the
intention to harass and or annoy the Respondents. It is clearly
suggested that the Municipality is being influenced by
a conspiracy
to get rid of SACP members and that this drive is influenced by
individuals who have business dealings with the Municipality.
These
allegations are substantiated with reference to newspaper articles
and conference reports all of which constitute hearsay
evidence. A
factor which aggravates the leveling of these allegations is the fact
that the Second Applicant is and remains an employee
of the
Municipality.
(24)
I have taken note of the decision In
Vaatz v Law Society of
Namibia
1991 (3) SA 563
(NM) where the Court held that it is not
sufficient that a matter is scandalous, vexatious or irrelevant, it
must also be prejudicial
to the other party. In this regard the court
held that:
“
The phrase
‘prejudice to the applicant’s case’ clearly does
not mean that, if the offending allegations remain,
the innocent
party’s chances of success will be reduced. It is substantially
less than that. How much less depends on all
the circumstances; for
instance, in motion proceedings it is necessary to answer the other
party’s allegations and a party
does not do so at his own risk.
If a party is required to deal with scandalous or irrelevant matter
the main issue could be side-tracked
but if such matter is left
unanswered the innocent party may well be defamed. The retention of
such matter would therefore be prejudicial
to the innocent
party.”
[20]
(25)
I am of the view that the fact that the allegations in respect of
a conspiracy are based on hearsay evidence; the fact that they
are
made by an employee currently in the employ of the Municipality; and
the fact that the Respondents already had taken great
pains at
dispelling the allegations of an alleged “
purge
”
of SACP members from the employ of the Municipality in its answering
affidavit in the Mapu-application, that the Municipality
has been
prejudiced. In the event I am of the view that these paragraphs
should also be struck.
(26)
COSTS
(27) In respect of the
costs of the main application, I am of the view that the general rule
namely that costs follow the event
should apply. In respect of
the striking out application I am of the view that a special cost
order is warranted.
(28) In the event the
following order is made:
1.
The application is struck off the role with costs.
2.
The Respondents’ application to strike out succeeds with costs
on an attorney
client scale.
________________________
BASSON,
J
DATE
OF HEARING
: 3 AUGUST 2007
DATE
OF JUDGEMENT
: 7 AUGUST 2007
FOR
THE APPLICANT:
Minnaar
Niehous Attroneys
FOR
THE FIRST TO THIRD RESPONDENTS:
TMG
Euijen
Instructed
by Gray Moodliar Attorneys
[1]
The
Labour Court will not issue declaratory relief on an interim basis
where the effect of the declarator will be final in effect.
See
NUMSA
& Others v Alfred Teves Technologies (Pty) Ltd
[2002] 10 BLLR 995 (LC).
[2]
See in this regard Rule 8 of the Rules of the Labour Court which
expressly states that a party that applies for urgent relief
must
file an application that complies with the requirements of Rule
7(1); 7(2); 7(3) and if applicable 7(7) of the Rules.
Rule
7(2) expressly requires that the affidavit in support of the
application must contain the reasons for urgency and why urgent
relief is necessary and the reasons why the requirements of the
rules were not complied with, if that is the case.
See
also
Moyo
& Others v Administrator of the Transvaal & Another
(1988) 9
ILJ
372 (W) at 387I: “
An
applicant who seeks relief by way of notice of motion should put all
the facts, in as much detail as possible, before the Court.
The mere
fact that an application is urgent and urgent relief is sought does
not relieve an application of this duty
.”
See also
Luna
Meubels Vervaardigers v Makin & Another
1977 (4) SA 135
(W) at 137F - G
[3]
See the well-known and often quoted decision in
Luna
Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's
Furniture Manufacturers)
1977 (4) SA 135
(W) where the Court set out the principles in great
detail: “
Practitioners
should carefully analyse the facts of each case to determine, for
the purposes of setting the case down for hearing,
whether a greater
or lesser degree of relaxation of the Rules and of the ordinary
practice of the Court is required. The degree
of relaxation should
not be greater than the exigency of the case demands. It must be
commensurate therewith. Mere lip service
to the requirements of Rule
6 (12) (b) will not do and an applicant must make out a case in the
founding affidavit to justify
the particular extent of the departure
from the norm, which is involved in the time and day for which the
matter be set down
.”
[4]
See
Eniram
(Pty) Ltd v New Woodholme Hotel (Pty) Ltd
1967 (2) SA 491
(E) at 493A – G.
[5]
The Court held as follows: “
The
latitude extended to parties to dispense with the rules of this
court in circumstances of urgency is an integral part of a
balance
that the rules attempt to strike between time-limits that afford
parties a considered opportunity to place their respective
cases
before the court and a recognition that in some instances, the
application of the prescribed time-limits or any time-limits
at all,
might occasion injustice. For that reason, rule 8 permits a
departure from the provisions of rule 7, which would otherwise
govern an application such as this. But this exception to the norm
should not be 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 in this court. For these reasons,
I find that
the union has failed to satisfy the requirements relating to
urgency
.”
(At 1092 paragraph [39].)
[6]
“
Volgens
die gegewens voor die Hof wil dit vir my voorkom dat die applikant
alreeds vir meer as ‘n maand weet van die toedrag
van sake
waarteen daar nou beswaar gemaak word. Die aangeleentheid het slegs
dringend geword omdat die applikant getalm het en
omdat die tweede
respondent, soos die applikant lankal geweet het of moes geweet
het…. Al hierdie omstandighede in ag
genome is ek nie tevrede
dat die applikant voldoende gronde aangevoer het waarom die Hof op
hierdie stadium as ‘n saak
van dringendheid moet ingryp nie.
Ek is dus, in die omstandighede, nie bereid om af te sien van die
gewone voorskrifte van reël
6
.”
(At F11 – 12.)
[7]
See
Koka
v Director-General, Provincial Administratoin, North-West
Government
(1997) 18 ILJ 1018 (LC). In this case Landman, J held that the
employee had an alternative remedy available namely
to refer the
matter to the Public Service Bargaining Council. No referral had
been done and the Court was of the view that the
labour Court was
not empowered to conciliate the dispute nor to arbitrate the dispute
which was arbitrable without the consent
of the parties and without
the court itself exercising discretion on the grounds of expedience.
The Court however, was of the
view that the Court will only exercise
this discretion in exceptional cases and cases of proven urgency.
The Court concluded
as follows on 1030: “
The
respondent, in this case, did not consent to arbitration. It is
possible, I would put it no higher than this, that in the
case of
exceptional circumstances and proven urgency this court may be
prevailed upon to interdict the action of an employer
resulting in
the suspension of an employee pending the determination of an
alleged unfair labour practice by the CCMA or the
appropriate
bargaining council. This case is definitely not a case where this
court should intervene to provide relief. The applicant
has not
attempted to invoke the conciliation or arbitration jurisdiction of
the Public Service Bargaining Council. He has also
been paid half of
this emolument at the present moment. For all that I know, the
Public Service Bargaining Council may be able
to deal with the
applicant’s case within days…. It follows that the
applicant as not made out a case for relief,
and in the premises,
the application is dismissed with costs
.”
See also Veary
v
Provincial Commissioner of Police & Others
(2002) 23
ILJ
2330 (LC) at 2333 and
Zwakala
v Port St John’s Municipality & Others
(2000) 21 II 1881 (LC).
[8]
The
fact that an employee’s name could be damaged by the
suspension has not been held to be an adequate ground for setting
aside a suspension on an urgent basis. See
Zwakala
v Port St Johns Municipality & Others
[2000] 1 BLLR 117
(LC).
[9]
See
Zwakala
v Port St Johns Municipality & Others
[2000] 1 BLLR 117 (LC).
[10]
In
a similar matter
Koka
v Director General: Provincial Administration, North West Government
(1997) 18
ILJ
1018
(LC) the Applicant also alleged that his suspension was politically
motivated and also alleged that the suspension constituted
a breach
of his constitutional right to a fair labour practice and a
contravention of item 2(1)(c) of schedule 7 to the LRA 1995.
[11]
Koka
supra;
See also
Veary
v Provincial Commissioner of Police & Others
(2002) 23
ILJ
2330 (LC) at 2334: “
There
is therefore an alternative remedy to challenge the fairness of the
suspension and the transfer. Accordingly, the applicant
may not
claim through the back door a status quo order which is not
authorized by the LRA. (See Ngwenya v Premier of KwaSulu-Natal
(2001) 22 ILJ 1667 (LC);
[2001] BLLR 924
(LC); Koka; UWC Academic
Staff Asspociation Union & Others; Hultzer & Others; and
Fordham v OK Bazaars (1998) 19 ILJ
1156 (LC).”
[12]
See
in this regard, inter alia,
Kola
v Director General: Provincial Administration, North West Government
(1997) 18 ILJ 1018 (LC) at 1030C;
NUMSA
v Hendor Mining Supplies (a Division of Marschalk Beleggings (Pty)
Ltd
(2003) 24 ILJ 2171 (LC) at 2178 para 29.
[13]
See
Vita
Foam SA (Pty) Ltd v CCMA & Others
[1999] 12 BLLR 1375
(LC) at para [5].
[14]
See
Southern
Sun Hotels (Pty ) Ltd v SACCAWU & Another
(2000) 21
ILJ
1312 (LAC at 1319 – 1320;
Chemical
Workers Union & Others v Ebony SA
(200) 21
ILJ
2640 (LC); In
Mgobhozi
v Naadoo NO & Others
(2006) 27
ILJ
786 (LAC) the Labour Appeal Court clearly accepted that in
determining whether hearsay was admissible, the court had to take
into account the provisions of
section 3(1)(c)
of the
Law of
Evidence Amendment Act 45 of 1988
and the factors enumerated
therein.
[15]
Cultura
2000 v Government of the Republic of Namibia
1993
(2)SA 12 (Nm) at 27H.
[16]
Ibid
at 30.
[17]
Paragraph
10.2.3 of the founding affidavit.
[18]
In paragraph 10.2.1 of the founding affidavit the following is
stated: “
Those
of us who are involved in active politics of course knew about the
political decision to remove members of the SACP from
the First
Respondent’s staff establishment, for some time, without this
knowledge having been part of the general public
domain. However, as
with all other political developments in the country, these
political decisions and strategies to though
phases of obscurity, to
subjects of investigative reporting and concomitant denials by the
perpetrators and then eventually it
inevitably becomes part of
general public knowledge that there are indeed such strategies and
decisions. I have noted that the
press has in fact commenced giving
some recognition to the existence of this political purge within the
FIRST RESPONDENTS’
structures. In this regard I attach as
Annexure B-1 a copy of a report….”
[19]
Paragraph
15 of the founding affidavit. See also paragraph 54 in which it is
alleged that the Respondents are infringing on his
constitutional
rights.
[20]
At
566 – 567.