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[2011] ZALCJHB 221
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Transport Education Training Authority v Segomoco (J 982/11) [2011] ZALCJHB 221 (8 June 2011)
LABOUR COURT OF SOUTH
AFRICA
(HELD AT BRAAMFONTEIN)
Case: J982/11
In the matter
between:
TRANSPORT EDUCATION
TRAINING AUTHORITY
.....................................
Applicant
and
SIBABANTU GLADYS
SEGOMOCO
..........................................................
Respondent
JUDGMENT
LAGRANGE, J:
Background
This is an urgent
ex
parte
application. The respondent in the matter, a former
employee of the applicant, allegedly has had in her possession
certain personnel
files belonging to the applicant since early
2011. She was dismissed by the applicant on 9 March 2011, by which
stage return
of the documents had already been requested from her,
but she had denied having them in her possession.
About 9 March 2011, the
respondent sent a letter of complaint to the Minister of Higher
Education and Training in which she
made various allegations about
a variety of corrupt practices at the applicant. Among those
complaints, were allegations relating
to the same personnel whose
files were missing. In the applicant's belief this served as
confirmation that the respondent did
have the files in question. On
22 March 2011 the respondent referred an unfair dismissal dispute
to the CCMA. I was advised
from the bar by the applicant’s
representative, Mr Goldberg, that this claim has been set down for
arbitration in the
near future, but this does not appear on the
papers.
The applicant cites
various provisions of the respondent’s contract of employment
and the applicant's policies which make
it clear that the
respondent has no right to retain any documents or information
belonging to the applicant and should have
returned them. There is
no reason to doubt the applicant’s rights in this regard. The
real issue that must be decided
is urgency.
This particular urgent
application was heard on the same day by Van Niekerk J who had
dismissed another application in this
court, which was also brought
on an urgent
ex parte
basis. That application was for an
Anton Piller order, under case number JS 424/2011. That application
was removed from the
roll for lack of urgency.
From the court file it
would have seemed that a statement of case had been filed by the
applicant because the statement of case
was lodged in the court
file, but Mr Goldberg confirmed this morning that it had not been
served on the respondent. In the
statement of claim, the applicant
seeks the following relief, in summary:
A declaration that the
respondent has breached the provisions of her employment contract.
An interdict
restraining her from disclosing information relating to the
applicants staff, in which the applicant has a propriety
interest.
An order directing the
respondent to return information, documents and files of the
applicant in her possession.
This application
essentially seeks the same relief, but on an interim basis pending
the outcome of the action to be instituted
by the statement of
claim. Because the application has not been served on the
respondent, the respondent's first opportunity
to oppose the matter
will be after the court grants an interim order compelling her not
to disclose the information to third
parties and to return the
information in her possession.
Urgency
The basis on which the
applicant brings this application as an urgent matter is threefold.
Firstly, the applicant fears that
the information and documentation
the respondent has in her possession may be “hidden,
destroyed or in some manner spirited
away” by the time the
relevant case comes to trial or reaches the discovery stage. The
applicant takes the respondent’s
failure to comply with its
previous demands to return the items in question as an indication
that this fear is well founded.
I note that this fear should have
manifested itself by March already. The applicant goes on to say
that it has a genuine fear
that the respondent will not hesitate to
destroy the files and documents once she becomes aware of its
intention to obtain
the same by means of its pending action.
Secondly, the applicant
submits that the matter is urgent because it has exhausted all
reasonable avenues to try and obtain
the items in question. Once
again this was already the case some months ago.
The applicant further
claims that it was only after the letter to the Minister and
enquiries from the newspaper, City Press
that it became “more
certain” that the respondent had the items in her possession.
By way of elaboration it should
be mentioned that on 31 May 2011
the applicant received an enquiry from a journalist at City Press
who was preparing a story
on allegations of irregular conduct made
against three senior officials of the applicant, including its CEO.
The City Press enquiry
does not appear to refer to any allegations which were not already
mentioned in the letter to the Minister.
Accordingly, there is
nothing material in the way of information about what the
respondent might have in her possession which
the City Press
enquiry reveals, and the state of the applicant’s knowledge
of this was to all intents and purposes no
different from what it
was when the complaint was lodged with the Minister.
It would seem that the
real reason that this matter has been brought before court on an
urgent basis at this time, relates to
the applicant’s concern
that respondent will provide information to the media, which may
result in the publication of
articles placing the applicant in a
bad light. If the prospect of such publication was not present, it
would be much more difficult
to discern the applicant's reasons for
instituting these proceedings on an urgent basis at this point in
time. The reason I
say this is that if the applicant’s main
objective is to obtain return of the items from the respondent,
then there is
no reason why proceedings should not have been
instituted as early as March this year to achieve this. Regarding
the applicant’s
fear that the respondent may destroy the
files in question, I am not persuaded that there is sufficient
evidence to support
the reasonableness of such an apprehension,
even if the applicant is saying that the mere fact she became aware
of its vindicatory
proceedings would be sufficient to trigger such
action.
If the respondent
indeed is attempting to further publicise her complaints against
the applicant by feeding information to the
media, it seems to me
that there would be every reason for her to preserve the same, in
order to defend any defamation claim
or proceedings to prevent
publication, brought jointly against her and the media institution
in question. Secondly, the respondent
has been aware since February
this year that the applicant believes she has the material in the
position and has demanded its
return. If she was afraid that the
applicant may take steps to obtain material it is equally possible
she would have destroyed
it at that stage. Assuming she has not yet
done so, as the applicant believes, it stands to reason that this
is because she
requires the information to support her claims in
the media and to the Minister. In this regard it must be mentioned
that in
closing her letter to the Minister she states: "Evidence
is available when required and I can be reached at the address
given above, or by telephone..." To make good on this promise
to the Minister, it would hardly be in her interests to destroy
the
very information she says she has.
In the light of the
above, I am not persuaded that there have been any recent
developments which now justify the applicant bringing
this
application on an
ex parte
urgent basis. I have also had
sight of the contents of the file in the Anton Piller application
and it appears that on the
question of urgency the same factors
were relied upon by the applicant to justify the curtailment of the
normal procedural
rules of this court. Mr Goldberg argued that even
though there was nothing on the face of it to distinguish the
urgency of
this application from the previous one, I should have
regard to the fact that the Anton Piller application entailed a
request
for more exceptional relief, whereas the relief sought in
this application is of a more run-of-the-mill character. It is
possible
to envisage situations in which urgency in respect of one
type of relief might be justified but not for another form of
relief.
In this instance
however, I am not convinced that there is any distinction which
markedly distinguishes the urgency of this
application from the
urgency in the Anton Piller application. Both applications were
brought as interim measures, with a view
to instituting action to
recover the information in the respondent’s possession. Had
the Anton Piller application been
successful, it would have had the
effect of the Sheriff removing the information from the respondent.
By contrast, the relief
sought in this application would result in
the information being returned to the applicant. In either event,
the information
would no longer be in the respondent's possession.
In both cases, it would seem that it was the threat of publication
of some
part of the information which spurred the applicant to
action.
In passing, it would
seem to me that if the real concern is the prospect of adverse
articles in the press, then the appropriate
relief the applicant
ought to be seeking, is an undertaking from the media institution
in question not to publish information
of the applicant provided to
it by the respondent, failing which an application to prevent such
publication could be launched
in the High Court in which the
respondent would be joined. I say this because, even though the
applicant is bringing an action
based on the respondent's
employment contract, the principal harm which the applicant now
seeks to prevent on an urgent basis
is the wider publication of
such material and accordingly it is an action or application
relating to its rights to prevent
such publication, and not simply
its rights to have the physical information returned to it, which
is the real thrust of the
relief it seeks. This much is made clear
by a copy of a purported e-mail, submitted this morning by Mr
Goldberg without a covering
affidavit. The e-mail was apparently
sent to the City Press on third June 2011 requesting the newspaper
to hold over publication
of the story for "a few days in order
to allow our clients the opportunity to comment further" on
the respondent’s
allegations.
Be that as it may, I am
not persuaded that the applicant has demonstrated sufficient
urgency in this matter, for the reasons
stated above and
accordingly the matter is removed from the roll.
R
LAGRANGE, J
JUDGE
OF THE LABOUR COURT
Date
of hearing: 7 June 2011
Date of judgment: 8
June 2011
For
the applicant: Mr Goldberg