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[2009] ZALCJHB 70
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POPCRU obo Maseko v Minister of Correctional Services (J1227/09) [2009] ZALCJHB 70 (30 June 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NO: J1227/09
In
the matter between:
POPCRU
obo T. MASEKO
APPLICANT
and
THE
MINISTER OF CORRECTIONAL
SERVICES
RESPONDENT
JUDGMENT
NYATHELA
AJ
Introduction
[1]
This is an urgent application brought in
terms of Rule 8 of the Labour Court Rules. The applicant seeks to
review and set aside
the respondent’s decision to suspend him
pending investigations of allegations for misconduct.
[2]
The application is opposed by the
respondent.
The
parties
[3]
The applicant is POPCRU, a duly registered
trade union acting in terms of
section 200
of the
Labour Relations
Act 66 of 1995
on behalf of Thulani Maseko, its member.
[4]
The respondent is the Minister of
Correctional Services and is cited in his official capacity as the
Minister responsible for the
Department of Correctional Services.
The
facts
[5]
Maseko is employed by the respondent as a
Correctional Services Official. He is based at the Boksburg
Management Area. He is a Deputy
Chairperson of the Local Branch of
POPCRU.
[6]
On 01 June 2009, Maseko addressed POPCRU
members regarding a meeting which was called by the President of
POPCRU to be held on 02
June 2009 in Johannesburg. As a result of
this conduct, the respondent served Maseko with a letter of
suspension from duty.
[7]
The contents of the letter are as follows:
“
The
above-mentioned matter, as well as the incident which took place on
29 May as well as today, 1 June 2009, whereby you intimidated
members
and Managers by being disrespectful, insolent, unacceptable conduct
and gross insubordination during the morning gathering
at
Correctional Centre B, refers.
Seen in the light of the
afore-mentioned Management has decided to suspend you from your
duties with immediate effect as your presence
may jeopardize the
investigation. The suspension is in terms of paragraph 4.5 of the
Suspension policy.
During the period of
suspension you will be receiving all the privileges that you are
entitled to since you are regarded as on duty,
with the exception of
all other allowances, and it is expected of you to comply with the
following conditions:
·
You
must report personally once a week on Wednesday at or before 10:00 at
AC Corporate Services (Mr M Nel).
·
You
are not allowed to visit any Centre or any office of the institution
without the prior approval of the Area Coordinator Corporate
Services.
·
Your
normal danger allowances will be suspended during the whole period of
suspension.
·
In
case a need arises for you to leave your place of residence for
longer than 12 hours, prior written permission must be obtained
from
the office of AC Corporate Services.
Please note that the
conditions above are binding to you and failure to comply with will
lead to disciplinary steps taken against
you.
Thanks for your
co-operation in this regard.
For Area Commissioner
JB MASHEGO
AC CORPORATE SERVICES”
[8]
According to the applicant, Maseko was not
afforded a hearing prior to the decision to suspend him was taken,
respondent is victimising
him for exercising his role as a Trade
Union official and for relaying a message on union activities.
[9]
Applicant stated further that there is no
objectively justifiable reason to deny Maseko access to the workplace
based on the integrity
of the investigation to the alleged misconduct
or some factor that would place the investigation or the interests of
affected parties
in jeopardy.
[10]
Applicant stated that respondent has also
failed to inform and consult the union before the suspension of
Maseko and as a result
of the suspension, Maseko was removed from the
respondent’s premises and prevented from performing his
activities as a trade
union representative. Applicant was also
deprived of an opportunity to make alternative arrangements for the
continuation of its
activities.
[11]
On 17 June 2009, Applicant lodged an urgent
application with the court seeking that his suspension should be
reviewed and set aside.
He also requested that the respondent should
be ordered to allow him to return to work.
[12]
The application was served on the State
Attorney on 17 June 2009 at 08h30.
[13]
On 18 June 2009 both parties appeared
before court and agreed that the respondent will file an answering
affidavit by 16h00 on the
same date and the case was stood down until
19 June 2009 at 10h00.
[14]
Respondent has failed to file the answering
affidavit on the 18
th
June 2009 at 16h00 as agreed. On the 19
th
June respondent filed its answering affidavit with the court but did
not serve same on applicant.
[15]
On the 19
th
June 2009 both parties appeared before court but the case was
postponed to 22 June 2009. Respondent handed applicant’s
counsel
with its answering affidavit which was incomplete. The
application was heard on 22 June 2009 but however as at the date of
hearing,
respondent had not served its answering affidavit on
applicant save for the incomplete copy which respondent gave to
applicant’s
counsel on 19 June 2009.
Point
in limine
[16]
On 22 June 2009, applicant raised a point
in limine and argued that respondent failed to comply with the
agreement reached in court
that it will file its answering affidavit
on 18 June 2009 at 16h00. As at the time of hearing on 22 June 2009,
respondent had not
served its answering affidavit on the applicant’s
attorney of record. Applicant argued further that the respondent’s
should have applied for condonation for the late filing of the
answering affidavit.
[17]
In response, respondent argued that it
underestimated the time allocated for compiling the answering
affidavit hence its failure
to comply with the time frames.
Respondent also stated that it attempted to serve the answering
affidavit by midnight on the 18
th
June 2009 at the attorneys of record by pushing the document under
the door of the chambers.
[18]
Having considered the point in limine and
the response thereto, I am satisfied that respondent did not serve
the answering affidavit
to the applicant’s attorneys of record.
Respondent did not provide any reasonable explanation for its failure
to serve the
answering affidavit. The rules of court allow for
service even by fax and thus respondent’s failure to serve even
by fax
cannot be accepted. There is further no valid explanation as
to why respondent only served an incomplete answering affidavit on
applicant’s counsel on 19 June 2009. Furthermore since 19 June
2009, respondent still had ample opportunity to can serve
the
answering affidavit on applicant’s attorneys of record but did
not do so even as at the date of hearing on 22 June 2009.
In the
circumstances, respondent’s conduct is unacceptable and the
answering affidavit cannot be accepted.
[19]
I will proceed and deal with the matter on
an unopposed basis.
Analysis
[20]
As stated above, applicant filed this
application as an urgent application. This court should therefore
first determine whether
the application is urgent or not.
Urgency
[21]
Rule 8(2)
of the Rules of the Labour Court
provides that: “
The affidavit in
support of the application must also contain-
(a)
The reasons for urgency and why
urgent relief is necessary;
(b)
The reasons why the
requirements of the rules were not complied with, if
that is the case; and
(c)
....
[22]
In Chemical Workers Industrial Union &
others v Sasol Fibres (Pty) Ltd (a Division of the Sasol Group (1999)
20 ILJ 1222 (LC)
at page 1226-1227 para 14-15 – the court held
as follows: “
(14) It remains for
me to consider whether the requirements for an urgent interim
interdict have been met ...(15) In view of the
fact that the changes
sought to be interdicted presently are similar to those introduced in
June 1998 it therefore begs the question:
why were the June 1998
changes not interdicted? One assumes that if the present changes were
result in irreparable harm the June
1998 changes must have had the
same effect.
That being the case
it must therefore mean that the matter was not sufficiently desperate
then to obtain an interdict. It therefore
means that there is no
sufficient urgency to warrant an interdict now. If indeed the matter
is as pressing as is sought to be made
in the papers this application
should have been made in June 1998.
(own
underling)
[23]
The need for an applicant for urgent relief
to act without delay was also emphasised in University of Western
Cape Academic staff
Union & others v University of the Western
Cape (1999) 20 ILJ 1300 (LC)
.
On page 1303 -1304 para. 15, the court held that: “
...Without
attempting to be prescriptive I consider certain factors which, in my
view, should determine the fate of applications
for urgent interim
relief in dismissal cases. Urgency will play a crucial role in the
fate of such applications. Because labour
relations is a dynamic and
sometimes volatile field urgency remains a critical aspect. In my
view an applicant who launches an
application just before or at the
time of the dismissal (or notice thereof) is given a better chance of
establishing sufficient
urgency to persuade the court to come to his
aid”.
[24]
Applicant was suspended on 01 June 2009. He
approached the court on an urgent basis on 17 June 2009.
[25]
In the founding affidavit, applicant
submitted that the application is urgent on the following grounds:
22.1The suspension has a
detrimental impact on Maseko and prejudices his intergrity and
reputation as a union representative as
well as his job security.
22.2The suspension has a
detrimental impact on the union and prejudices its functioning in the
Department within the framework of
applicable labour legislation.
22.3 The suspension has a
detrimental impact on the relationship between the union and the
Department and prejudices the possibility
of continued sound labour
relations between the parties.
22.4 It is in the
interest of justice that the unfair suspension of shopstewards should
be brought to the attention of the court.
[26]
The question to be asked is why did
applicant only approach the court on 17 June 2009 and not immediately
after the suspension.
[27]
In my view, the reasons for urgency which
applicant has provided to this court have been in existence from the
date of suspension
being the 1
st
June 2009. It follows therefore that if the reasons advanced
justified urgency in this matter, applicant would have brought this
application immediately after the suspension rather than to wait for
seventeen days to pass. Applicant has furthermore not provided
any
explanation as to why this application was not brought immediately
after the suspension. In line with the decision in
Chemical
Workers Industrial Union v Sasol Fibres (Pty) Ltd
(supra),
the failure by applicant to bring the application at the time the
suspension was implemented in the circumstances of this
case show
that the matter is not urgent. This approach is in line with the
principle laid down in
University
of Western Cape Staff Union
case (supra)
.
[28]
Since the 1
st
June to 17 June 2009, there have been no new facts which developed
which are different from the facts which existed as at the 1
st
of June 2009. It therefore follows that since applicant did not
regard the matter as urgent on the 1
st
of June 2009, he cannot regard the matter as urgent at this stage as
the facts on which he relies on for urgency have been the
same
throughout. I therefore conclude that applicant has failed to show
that this matter is urgent.
[29]
Applicant referred to the case of Mokgotlhe
v Premier North West Province (2009) 30 ILJ 605 (LC) and South
African Post Office v
Van Vuuren NO & others
[2008] ZALC 33
;
(2008) 8 BLLR 798
(LC) in support of his application. In my view the two cases are
distinguishable from the present case on the following basis:
29.1 In Mokgothle’s
case the applicant had been suspended for an indefinite period which
is not the case in the present matter.
Furthermore, in Mokgothle’s
case the applicant did not only rely on the fact that a suspension
interferes with his right
to human dignity, self esteem etc but he
was able to also prove that the suspension would cause him financial
loss as it would
deprive him of an opportunity to meet performance
targets which were a condition for him to earn a performance bonus.
These facts
are not applicable in the present matter. I therefore
conclude that applicant’s reliance on the Mokgothle’s
case is
in the context of this matter inappropriate.
29. 2 The decision in
SAPO is distinguishable from the present case since the case was an
ordinary review of an arbitration award
and not an urgent
application. The issue of urgency has not been dealt with in the SAPO
case and thus reliance on that decision
is also inappropriate in the
context of this case.
[30]
Apart from not having proved urgency,
applicant has also not dealt with the issue of whether Mr Maseko has
an alternative remedy
or not. This is a further ground for denying
applicant the relief sought. In view of my finding on urgency and the
alternative
remedy, it would serve no purpose to deal with all other
requirements which an urgent application must comply with.
Order
[31]
In the light of the above analysis, I make
the following order:
(i)
The application is dismissed for lack of
urgency.
(ii)
There is no order as to costs.
_______________
Nyathela
AJ
Date
of Hearing :
22 June 2009
Date
of Judgment :
30 June 2009
Appearances
For
the Applicant :
Adv. J.L Basson
Instructed
by:
Grosskopf Attorneys
For
the Respondent: Adv. L.
Moloisane
Instructed
by:
State Attorney