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[2009] ZALCJHB 84
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Democratic Nursing Organization of South Africa and Another v Director General Department of Health and Others (J2386/08) [2009] ZALCJHB 84 (5 January 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NO: J2386/08
In
the matter between:
DEMOCRATIC
NURSING
ORGANIZATION
OF SOUTH AFRICA
1
ST
APPLICANT
HEALTH
AND OTHER SERVICE
PERSONNEL
TRADE UNION
OF
SOUTH
AFRICA
2
ND
APPLICANT
and
THE
DIRECTOR GENERAL
DEPARTMENT
OF
HEALTH
1
ST
RESPONDENT
THE
MEC FOR HEALTH
NORTH
WEST
PROVINCE
2
ND
RESPONDENT
THE
MEC FOR HEALTH
NORTHERN
CAPE PROVINCE
3
RD
RESPONDENT
JUDGMENT
molahlehi
J
Introduction
[1]
This is an urgent application in terms of
which the applicants seek an order placing the respondents in
contempt for their non-compliance
with the Order of Court, granted by
the Honourable Judge Ngalwana on the 15 November 2008. The applicants
further pray that the
respondents be ordered to pay a fine in an
amount deemed appropriate by this Court, or be committed to prison.
[2]
The relevant parts of the Court order
referred to above reads as follows:
“
1.
Pending the finalisation of the dispute currently pending at the
PHWSBC (sic) and which was referred on 15 October 2008, the
following
order is made:
1.1 This Court dispensed
with the requirements and time periods provided for in Rule 8 of the
Labour Court Rules and this application
is heard in an urgent basis;
1.2 The Respondents are
interdicted and restrained from deducting any amounts from the
remuneration of the Applicants' members in
respect of alleged
overpayments arising from an allegedly erroneous implementation of
the Occupational Specific
Dispensation for Nurses ("OSD")
agreement;
1.3 The Respondents are
ordered further to repay any amounts deducted from the remuneration
of the Applicants' members in respect
of alleged OSD over payments.”
[3]
The issue that led the applicants to
approach the Court to obtain the above order arose from the dispute
regarding the implementation
of the Occupational Specific
Dispensation (OSD) for nurses recorded in resolution 3 of 2000, of
the PHSDSBC. The purpose of the
OSD agreement was to give effect to
the determination of the directive issued by the Minister for the
Public Service and Administration
issued in terms of section 3(3) of
the Public Service Act 103
of 1994 read
with the Public Service Regulations of 2001.
[4]
In terms of paragraph 6 of the OSD
agreement any dispute about interpretation or application of the
agreement should be dealt with
according the dispute procedure of the
PHSDSBC. Schedule 2 of the Dispute Procedures, gives the PHSDSBC the
power and authority
to deal with interpretation and application of
any collective bargaining agreement concluded by the parties to the
PHSDSBC.
[5]
It is common cause that the OSD was
implemented on 1 July 2007, and soon thereafter a dispute arose
between the parties regarding
its implementation. The dispute arose
due to an alleged error on the part of the respondents in the
translation in that certain
categories of nurses were over paid. The
respondents demanded that those nurses who were overpaid should
either repay in lump sum
or by monthly instalments. It would appear
that attempts to resolve the issue having failed the respondents
proceeded to deduct
the overpayment from the affected nurses’
bonuses.
[6]
Arising from the above, the applicants
referred the dispute to the PHSDSBC concerning the application and
interpretation of the
OSD and also sought an urgent interdict
restraining the respondents from continuing with the deductions and
repaying those nurses
from whose salaries deductions had already been
effected. I have already referred to and quoted in full the order
which the Court
made arising from the said urgent application by the
applicants.
[7]
Subsequent to the Court order, the state
attorney addressed a letter to the applicant in which it would appear
the respondent intended
to challenge the order. The letter reads as
follows:
"1.…
2. Kindly take notice
that the respondents intent to apply for the reconsideration of the
matter.
3.
This letter does not serve as a notice.
4. A proper notice
will be served on you. " (Sic)
[8]
The first applicant contacted the second
respondent on the 24
th
November 2008, because of the number of telephone queries it had
received from its members indicating that they had not received
any
payment in terms of the Court order. It became apparent during the
telephone conversation that the second respondent was not
aware of
the Court order. The applicant then addressed a letter to the second
respondent and attached thereto the Court order.
[9]
The first applicant further contended that
despite forwarding the Court order to the second respondent it
received no indication
of the intention on the part of the respondent
to implement the Court order. It was for this reason that the first
applicant enquired
from the State Attorney via an email as to what
the intention of the first respondent was in relation to implementing
the Court
order. The State Attorney responded by indicating that the
applicant’s enquiry had been forwarded to the first respondent
for instructions.
[10]
It was on the basis of the above that the
applicants felt the need to approach the Court on an urgent basis to
seek the relief set
out in the notice of motion. In its founding
affidavit the applicant set out the grounds for urgency as follows:
“
13
Due to the fact that the Respondents were represented at the
proceedings on the 15th of November 2008 and their attorney
of record
was present when the Order was granted, …
.
14.
On the 17th of November 2008, the Respondents' representative
indicated that they are not satisfied
with the said Court Order, and
they intended to apply for "reconsideration", and that a
proper notice would be served.
15.
We thus awaited proper notice from the Respondents' representative
with regards to the process they
intended to follow, but none was
forthcoming.”
[11]
It is further stated in the founding
affidavit and as concerning urgency that:
“
20.
The next payment date will be the 15th of December 2008, and thus the
members of the Applicant will be severely prejudiced
if the necessary
relief is not granted, as further deductions will probably be made,
and their financial detriment will increase
radically.”
[12]
It would also seem that from the
applicant’s perspective the urgency arose because of failure by
the first respondent to respond
to its letter dated 5
th
December 2008, the contents of which read as follow:
“
In
the light of the above, as well as the fact that the next payment-run
is scheduled for the 15 December 2008, we herewith urgently
and
before 10h00 on even date
request
you to inform our office
in
writing
of your client’s
intention to comply with the order or not.”
[13]
It is common cause that the dispute
referred to in the Court order was scheduled for conciliation by the
PHSDSBC on 5
th
December 2008. At the conciliation the respondents raised a point in
limine concerning the jurisdiction of the PHSDSBC to entertain
the
dispute. The commissioner ruled after considering the point in limine
that the PHSDSBC did not have jurisdiction to entertain
the disputes
because the applicant had failed to comply with rules of the PHSDSBC.
Analysis
[14]
In contempt proceedings the applicant must
show that both the Court order and the contempt application have been
served on the individual
who is responsible for the implementation of
the Court order. This is important because the consequences of the
contempt proceedings
are that an individual’s liberty maybe
restricted. It is for this reason that I find this application to be
fatally defective
in that the applicants have failed to show that the
application was served on individuals responsible for the
implementation of
the Court order in their personal capacity for the
purposes of the contempt proceedings.
[15]
The application further stands to fail on
the ground that the applicant has failed demonstrate the existence of
urgency. In
Hultzer v Standard Bank of
South Africa (Pty) Ltd
[1999] 8 BLLR 809
(LC), at para [13],
the
Court held that financial hardship or loss of income is not regarded
as a ground for urgency. The Court arrived at this conclusion
following the earlier decision in
University
of the
Western
Cape Academic Staff & others v University of the Western Cape
(1999) 20 ILJ 1300 (LC) at para [17]
where the Court in that case held that:
“
17
With regard to the notion of irreparable harm it needs to be
mentioned that loss of income as a result of dismissal is
the
inevitable consequence and as such provides no good ground for the
granting of urgent interim relief. Special circumstances
must be
advanced to persuade a court to oblige … In considering the
issue of irreparable harm the court will also consider
the adequacy
or not of any alternative remedy that may be available.”
[16]
The Court in
Malatji
v University of the North
[2003] ZALC 32
(LC)
and following the decision in
National
Sorghjum Bierbrouery (Edms ) Bpk (Rantoria Divisie) v John NO &
Ander (1990) 11 ILJ 971 (T),
held that
in general, financial hardship and loss of income are not considered
to be grounds for urgent relief. In order to succeed
when reliance is
based on financial hardship,
exceptional
circumstances must be shown before urgent interim relief can be
granted.
[17]
The grounds of urgency as formulated by the
applicant in the
Malatji’s
case
are instructive, regard also being had to the reason for the
dismissal of the application. In that case the applicant’s
case
rested upon the financial need of the applicant related to the
termination of medical aid cover because the respondent had
stopped
paying her salary. At the time of the termination of her salary the
applicant required constant medical treatment. The
applicant is
quoted in that case as having said:
“
In
view of the fact that the Respondent unilaterally stopped my salary,
I depleted all the reserves that I had together with those
of my
husband. I am now unable to meet all these requirements in view of
the period in which the Respondent had stopped my salary.”
[18]
In my view the fact that the
respondents were present in Court when the order was made and the
indication by the respondents that
they intended to apply to have the
order “
reconsidered”
can not constitute a ground for urgency. During argument counsel for
the applicant argued that the matter was urgent because if
the
respondents were allowed to continue with the deductions, the
affected nurses would be faced with financial hardships in that
they
would not be able to cope with their financial obligations including
the ability to pay for their transport. This will according
to the
applicant affect service delivery.
[19]
It is clear from the above discussion that
as a general principle financial hardship or loss of income cannot be
regarded as grounds
for an urgent relief. For the applicant to
succeed when relying on financial hardship or loss of income he or
she must show the
existence of exceptional circumstances justifying
the granting of an order on the urgent basis and on the ground of
financial hardship.
In the present instance the applicants have not
shown that there are special circumstances for granting the relief
sought. In any
case the issue of financial hardship was pleaded in
the application which was before Judge Ngalwana for which an interim
order
was granted. In the present instance the urgency as pleaded by
the applicants is based on the fact that the respondents were aware
of the Court order and that they were still “
reconsidering”
the order made by Judge Ngalwana.
[20]
The applicants’ counsel argued that
it was imperative that the order prayed for be granted otherwise the
applicants would
be forced to refer the same dispute (or in fact may
have already referred) to the PHSDSBC and thereafter be compelled to
approach
this Court again on an urgent basis. The applicants would
bring that application despite having acknowledged in their papers in
the first application before Judge Ngalwana that they had an
alterative remedy in the form of declaring a dispute of
interpretation
and application of the OSD agreement which falls under
the jurisdiction of the PHSDSBC. In my view, granting the relief on
an urgent
basis by the Court, in the absence of special
circumstances, amount in a sense to undermining the role of the
PHSDSBC as provided
for in terms of section 24 of the Labour
Relations Act.66 of 1995(the Act). Section 24 of the Act provides a
procedure that must
be followed to attempt to resolve a dispute
concerning interpretation and application of a collective agreement.
The parties are
in terms of this section required to firstly attempt
to resolve the dispute through conciliation and, if the dispute
remains unresolved,
to resolve it through arbitration. In fact in
terms of section 157(5) of the Labour Relations Act 56 of 1995 (the
LRA), this Court
does not have jurisdiction to entertain disputes
related to the interpretation and application of a collective
agreement as they
are to be resolved through arbitration. Section
157(5) of the LRA provides:
“
5.
Except as provided for in section 158(2), the Labour Court does not
have jurisdiction to adjudicate an unresolved
dispute if this Act
requires the dispute to be resolved through arbitration.”
[21]
It would seem to me that what Judge
Ngalwana in the first application sought to avoid, by granting an
interim relief pending the
resolution of the dispute by PHSDSBC, was
to ensure that the role given to bargaining councils and the CCMA in
terms section 24
of the Act was not undermined. I need to mention in
passing, that it would seem to me that had the Court in the first
application
considered the provisions of section 157(5) of the LRA,
the applicants would not have succeeded in their application because
the
jurisdiction of the Court was ousted by the fact that the dispute
was arbitrated in terms of section 24(5) of the LRA.
[22]
The approach that the Court should not
readily grant an interim relief whilst a dispute is still pending
before a dispute resolution
body was followed in
Nchabeleng
v University of Venda & Others (2003) 24 ILJ 585(LC),at
paras [7] and [12].
[23]
The other ground upon which this
application stands to be dismissed is based on the fact that the
terms of the Court order have
fallen away. This was an interim order
pending the finalization of the dispute which was currently before
the PHSDSBC at that time.
I do not agree with counsel for the
applicants that the word “
finalization”
in the Court Order envisaged finalization of the disputes on its
merits. The dispute which the Court had in mind when it made the
order is the one which the commissioner of the PHSDSBC dismissed for
lack of jurisdiction. In this regard I agree with counsel
for the
respondents that the effect of the ruling is that the PHSDSBC did not
have jurisdiction had the effect of finalizing the
paragraphs 1.1,
1.2 and 1.3 of the order and thus resulting in the Court order
falling away. The fact that the dispute remains
unresolved on its
merits does not in my view detract from the fact that the dispute
which was before the Court when the order was
made is no longer
before the PHSDSBC, it having been dismissed for lack of
jurisdiction, as indicated earlier. This conclusion
stands
notwithstanding the fact that the applicants may indeed be entitled
to refer the matter again to the PHSDSBC.
[24]
The dismissal of a matter for lack
jurisdiction by a bargaining council or the CCMA, means that that
matter is disposed off and
it can no longer be scheduled for a
hearing. This means that if an applicant, as is the case in the
present instance, wishes to
proceed with the dispute he or she would
have to start the matter
de novo.
[25]
In the light of the above discussion, my
view is that the applicants’ application stands to be
dismissed. As concerning the
issue of costs it is my view that the
conduct of applicants in bringing this application was unreasonable
and the application itself
was ill conceived. It is for this reason
that in my view the dictates both law and fairness requires that the
costs should follow
the results.
[26]
In the premises I make the following order:
(i)
The application is dismissed.
(ii)
The applicants are to pay the costs of the
respondents the one paying other to be absolved.
_______________
Molahlehi
J
Date
of Hearing :
10
th
December 2008
Date
of Judgment :
5
th
January 2009
Appearances
For
the Applicants : Adv C.H.
Van Bergen
Instructed
by :
Greyvenstein & Grundlingh
Attorneys
For
the Respondents: Adv Afzal Mosam
Instructed
by :
The State Attorney (Pretoria)