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[2011] ZALCJHB 201
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Modutwane v Civil Aviation Authority (J 2656/09) [2011] ZALCJHB 201 (4 February 2011)
Not reportable
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
Case no.: J 2656/09
In
the matter between:
KENEILWE
EMILY MODUTWANE
....................................................................
Applicant
and
CIVIL
AVIATION AUTHORITY
......................................................................
Respondent
JUDGMENT
BHOOLA
J:
Introduction
[1] This is an opposed
application in which the applicant seeks an order,
inter alia
as follows:
“
1.
Directing the Respondent to furnish the Applicant with information
requested in terms of Respondent's internal procedures in
compliance
with the Promotion of Access to Information Act, 2 of 2002".
Background facts
[2] The applicant is a
medical practitioner employed by the respondent as Senior Medical
Adviser. She applied for a position of
Senior Manager : Aviation
Medicine in February 2009. She was shortlisted and interviewed with
two other candidates and as a result
of her non-appointment to the
position she sought disclosure of information related to the
interview, evaluation and appointment
procedure.
[3] The applicant
complied with the internal procedures applicable to her request for
information but her request was refused. She
lodged an appeal to the
Chairperson of the Board who upheld her appeal and confirmed that she
should be furnished with the requested
information. She alleges that
the Chief Executive Officer (“CEO”) of the respondent,
being its designated information
officer, has refused and / or failed
to furnish her with the requested information and in so doing
disregarded the ruling of the
Chairperson of the Board. In essence
she seeks an order from this court compelling the CEO to provide the
information.
Merits of the
application
[4] Whilst the initial
request was made in terms of the Promotion of Access to Information
Act (“the PAIA”), the applicant
now disavows reliance on
PAIA and contends that she is entitled to the information in terms of
a cause of action justiciable under
the Labour Relations Act 66 of
1995 (“the LRA”). In this regard she relies on section
158 (1) (a) (iii) of the LRA
to compel the respondent to comply with
a Request for Access to Records in terms of section 18 (1) of the
PAIA.
[5] The applicant asserts
that she is entitled to seek access to the information in terms of
the LRA and that this court was empowered
to grant access thereto in
terms of its powers under section 158(1)(a)(iii). She disputes that
she is seeking relief premised on
the PAIA. The respondent disputes
that this court has jurisdiction in respect of the cause of action
pleaded in the founding affidavit
or that the LRA establishes
jurisdiction in respect of the cause of action relied upon by the
applicant.
[6] Section 157 (1) of
the LRA provides that “
subject to the Constitution and
section 173,
and except where this Act provides otherwise, the
Labour Court has exclusive jurisdiction in respect of all matters
that elsewhere
in terms of this Act or in terms of any other law are
to be determined by the Labour Court
”. The Labour Court
would therefore have jurisdiction to determine a dispute emanating
from another statute, but the applicant
disavows reliance on the PAIA
and submits that it would be competent to grant relief arising from
the LRA. Moreover, in terms of
section 158 of the LRA the Labour
court may only exercise its statutory powers where it has
jurisdiction. Section 158(1)(a)(iii)
provides that the Labour Court
may :
make any appropriate
order, including –
(iii) an order
directing the performance of any particular act which order, when
implemented, will remedy a wrong and give effect
to the primary
objects of this Act.
[7] The applicant submits
that it is incorrect that her claim is, on a proper reading of the
pleadings, premised on the PAIA, for
the following reasons:
(a) the fact that she
requested information in accordance with internal processes that are
formulated in accordance with the PAIA
does not automatically imply
that the wrong she is seeking to have remedied is based on and
governed by the PAIA;
(b)it is incorrect to
submit that no cause of action has been made out as the wrong that is
sought to be remedied emanates from
the failure by the CEO as
information officer to comply with the directive issued by the
Chairperson of the Board which is the
ultimate appeal forum of the
respondent;
(c)it is incorrect for
the respondent to submit that the applicant was dealt with fairly
during the interview process whilst evading
compliance with the
request for information.
[8] The Constitutional
Court has reiterated in
Gcaba v Minister of Safety and Security
(2009) 12 BLLR 1145
(CC) that it is for a court to determine whether
it has jurisdiction in respect of the cause of action pleaded and not
whether
it has jurisdiction over some other claim that has not been
pleaded but could possibly arise from the same facts. The applicant
contends that her claim arises from the LRA and not the PAIA although
the allegations made in her founding affidavit attest to
the fact
that relief is being pursued under the PAIA albeit through the Labour
Court. In fact she persists in her reliance upon
section 18(1) of
PAIA.
[9] The Constitutional
Court in
CUSA v Tao Ying Metal Industries & others
(2009)
1 BLLR 1
(CC) established that in employment related litigation a
CCMA Commissioner must determine the true nature of the dispute
between
the parties. The respondent submitted that this principle is
equally applicable herein. The respondent submitted that it is clear
from the pleadings that the true nature of the dispute between the
parties arises from PAIA despite the applicant alleging otherwise.
The applicant was advised as such in correspondence between the
parties and despite this has persisted in bringing this application.
Accordingly the respondent submitted that this court would be
justified in granting punitive costs in its favour.
[10] It is trite that an
applicant must set out sufficient facts to disclose a cause of action
in the founding affidavit. No cause
of action emanating from the LRA
has been pleaded in the founding affidavit justifying relief in terms
of section 158(1)(a)(iii).
The facts pleaded are therefore
insufficient to justify relief under the LRA. The only possible
applicable provision of the LRA
would be section 16 but this is not
applicable to individual disputes and is in any event not replied
upon by the applicant. Thus
no cause of action has been made out in
the founding affidavit for relief in terms of section 158(1)(a)(iii),
and the application
can be dismissed on the basis.
[11] This court has no
jurisdiction in respect of the cause of action relied upon by the
applicant. Therefore, I make the following
order:
The application is
dismissed with costs.
_____________
Bhoola J
Judge of the Labour Court
of South Africa
Date of hearing : 26
November 2010
Date of judgment: 4
February 2011
Appearance:
For the Applicant : Mr G
P Ngoepe, Ngoepe Attorneys
For
the Respondent: Mr I I Mahomed, Eversheds
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