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[2011] ZALCJHB 225
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Morule v Road Traffic Management Corporation (J1351/11) [2011] ZALCJHB 225 (18 July 2011)
VAN NIEKERK J
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
Not Reportable
CASE NO: J1351/11
In the matter between:
MORULE, TIRELO CRESSY
............................................................................
Applicant
and
ROAD
TRAFFIC MANAGEMENT CORPORATION
.....................................
Respondent
Date of
hearing: 15 July 2011
Date of
Judgment: 18 July 2011
_____________________________________________________________
J U D G M E N T
_____________________________________________________________
VAN NIEKERK, J:
[1] This is an urgent application initially brought on Friday,
15 July 2011, in which the applicant
inter alia
, sought
to interdict the first and fourth respondents from proceeding with a
disciplinary inquiry scheduled to commence at 10:00
on the same
morning.
[2] The background to the application was canvassed by me in the
ruling I made in an urgent application heard on 14 July 2011,
under
case number J 304/11, an application that was dismissed on 15 July
2011.
[3] I dealt with the background facts at some length in that ruling
and do not intend to repeat them for present purposes, save
to say
that when the matter was called on 15 July, Mr Scholtz,
representative of the applicant, advised the Court that the applicant
had been handed a letter in terms of which she had been advised by
the first respondent of her dismissal from its employ.
[4] Mr Scholtz persisted in his contention that the dismissal was of
no force in effect, for the same reasons provided by the applicant
in
her application to interdict the inquiry. In these circumstances, the
application was postponed to today to enable the applicant
to file a
Supplementary Affidavit should she so wish, dealing with events of
the morning of the 15
th
.
[5] Consequent on the filing of the Supplementary Affidavit, this
morning the applicant now seeks an order to the effect or to
seek
what is in effect, a declaratory order to the effect that the
decision to dismiss her is of no force in effect and that she
remains
employed by the first respondent.
[6] The basis of the application is a contention that in a ruling
made in this matter by my brother Molahlehi on 10 March this
year.
When the Court held that the appointment by secondment of the Acting
CEO of the first respondent was invalid and that it
necessarily
followed that the disciplinary inquiry convened into allegations of
misconduct levelled against her, was unlawful.
[7] It is correct that in paragraph 9 of the Court’s order
issued on 10 March 2011, the Court held that the appointment
of
the fifth respondent in that application as Acting CEO was irregular
and invalid and that any decision taken by him in relation
to the
institution of the disciplinary proceedings against the applicant,
was unlawful and invalid.
[8] It is also correct that that ruling is the subject of a pending
application for leave to appeal. Be that as it may, it seems
to me
that in the present matter, the real issue is whether it is
appropriate for this Court in proceedings instituted on an urgent
basis and in which a declaratory order is sought as to the authority
upon which the disciplinary proceedings were initiated, to
grant the
order sought.
[9] In my view, this is not a matter that warrants determination
today on an urgent basis. Judge Molahlehi has filed his reasons
for
judgment and these were made available to the parties, I understand,
during the course of last week and the hearing of the
application for
leave to appeal, is therefore imminent.
[10] The relief sought in this application is entirely contingent on
the outcome of the application for leave to appeal and a final
decision in any subsequent appeal process is on the question of
authority. Judge Molahlehi has indicated to me his intent
on
entertaining the application for leave to appeal on an expedited
basis, and I am authorised to convey that to the applicant
in terms
of this ruling.
[11] It also remains open to the applicant should she so wish to have
any further appeal processes expedited in accordance with
the
procedures that are ordinarily applicable.
[12] I come to this view specifically having regard to the context of
this matter and the charges which were brought against the
applicant
in September last year. This is the fourth urgent application brought
by the applicant that relates to those charges
in the disciplinary
process initiated against her.
[13] In my view, the interest of justice is best served by having the
issue of authority dealt with definitively in terms of the
appeal
process that has already been invoked, rather than by way of urgent
motion proceedings.
[14] For these reasons, I intend to remove the matter from the roll
with no order as to costs. This leaves the applicant free to
pursue
the appeal and to defend the order made by Molahlehi J which will
finally determine the issue of authority, in particular,
the question
whether the disciplinary action against her was indeed authorised.
[15] As I have indicated, my ruling in this matter does not represent
a finding made in regard to the question of authority or
indeed in
respect of any other matter that is raised by these proceedings.
[16] The view I take is based solely on the fact that I do not
consider it in the interests of justice to make a declaratory order
which is, as I have a said, definitive of the question of authority.
[17] So for those reasons I make the following order,
1. The application is removed from the roll.
2. There is no order to costs.
__________________________
VAN NIEKERK J
3