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[2011] ZALCJHB 83
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Phakedi v Dr Kenneth Kaunda District Municipality and Another (J1461/11) [2011] ZALCJHB 83; (2012) 33 ILJ 700 (LC) (22 September 2011)
OUPA
LUCAS PHAKEDI v DR KENNETH KAUDANDADISTRICT MUNICIPALITY &
S.K.SEBOLA N.O. (Acting Municipal Manager) Case No:
J1461/11.
Application to confirm rule nisi. Urgency still relevant and
pertinent on the return day……………………………….
Molahlehi
J
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD IN JOHANNESBURG
Reportable
Case No J1461-11
In the matter between:
OUPA LUCAS PHAKEDI
…................................................................................
Applicant
and
DR KENNNETH KAUNDA
DISTRICT
MUNICIPALITY
…..................................................................................
First
Respondent
S.K SEBOLA N.O (Acting
Municipal Manager)
….............................
Second
Respondent
Date of hearing: 8
September 2011
Date of judgment: 22
September 2011.
JUDGMENT
Molahlehi J
Introduction
This is an application
to confirm the interim order made by Van Niekerk J on 3 August 2011,
which reads as follows:
“
IT IS
ORDERED THAT:
1. The Rules of the above Honourable
Court relating to the forms and manner of service are hereby
dispensed with and this matter
is dealt with as one of urgency.
2. A rule
nisi
is hereby and is
herewith issued calling upon the Respondents to show cause on
08
September 2011 at 10h00
why the following order should not be
made:
2.1 Declaring that the notices of
termination of the Applicant’s employment, dated 28 April 2011
and 23 June 2011, are unlawful
and of no force and effect;
2.2 Declaring that the Applicant
remains employed by the 1
st
Respondent as the Secretary of
the Office of the Speaker on the terms and conditions contained in
the letter of appointment annexed
as annexure “B” to the
founding affidavit and the Respondents are ordered to comply with the
arbitration award by Adv,
R. G Lagrange, dated 22 February 2006,
under case number HQ070502;
2.3 Directing the Respondent to give
effect to the terms and conditions of the Applicant’s contract
of employment until such
time as the contract is not lawfully
terminated and the Respondents are ordered to reinstate the Applicant
retrospectively in the
positions which he occupied immediately prior
to the termination of these employment on the terms and conditions
provided for in
Clauses
of the Settlement Agreement and
Arbitration Award as referred to herein above;
2.4 Ordering the Respondents to comply
with the provisions of the settlement agreement and the arbitration
award referred to herein
above;
2.5 Ordering the 1
st
Respondent to pay the costs of the application.
3. Pending the return date, the
Respondents are interdicted and restrained from appointing any person
in the Applicant’s position,
to wit Secretary to the Office of
the Speaker.”
The application that
gave rise to the above order was unopposed. The matter is now, on
the return day, opposed by the first respondent
on a number of
grounds including urgency.
Background facts
The applicant was prior
to his dismissal employed by the first respondent as a secretary in
the office of the Speaker, Councillor
Koue (the Speaker), with
effect from 1 December 2009. The applicant was appointed on a fixed
term contract which was to last
pending the Speaker’s term of
office.
On 18 January 2011, the
applicant received a letter from the Municipal Manager informing him
that the terms of his contract of
employment were amended. The
essence of the amendment was that the contract of employment was
made permanent. The letter reads
as follows:
“
RE:
ALIGNMENT OF EMPLOYMENT CONTRACT WITH THE SETTLEMENT AGREEMENT IN
CASE NO. HQ 070502 AS CONCLUDED BETWEEN IMATU, SAMWU AND THE
SOUTH
AFRICAN LOCAL GOVERNMENT ASSOCIATION
The above-mentioned matter refers:
Clause 2.4 of the settlement agreement
referred above states:
‘
2.4 In
respect of current fixed term contracts concluded with non-Section 57
employees, these contracts will run for their fixed
terms, where,
after the employees concerned will remain employed on SALGBC grades
and salary scales, unless otherwise agreed in
a division of the
SALGBC, or unless extension is granted in terms of clause 7 hereof.”
The provisions of the
settlement agreement referred to above had been made, pursuant an
arbitration award by the panelist of the
South African local
Government Bargaining Council (the bargaining Council).
During May 2011, the
applicant received a letter dated 28 April 2011, in which he was
informed that his contract of employment
would come to an end on
31
st
May 2011.He received another letter from the first
respondent informing him that his contract of employment was
extended to 30
th
June 2011. The extension was apparently
due to the operational needs of the first respondent.
On 23
rd
of
June 2011, the applicant received another letter from the Municipal
Manager, reminding him that his contract of employment
would end on
30 June 2011. And thereafter the applicant received a letter on 28
th
June 2011, confirming the termination of her employment.
Submission and
contention by the parties
Mr
Scholtz, for the applicant, contended that the applicant’s
employment contract had been lawful, and properly amended
by the
Municipal Manager, and therefore its termination on the basis of the
alleged unlawful extension was unlawful. In this
respect, Mr Scholtz
relied on the provisions of section 55 and 66 of the Local
Government: Municipal Systems Act (the Systems
Act).
1
It was further argued on
behalf of the applicant that even the letter of appointment reflects
that the Municipal Manager had the
power to appoint the applicant
permanently, which is also in line with the provisions of the
Systems Act. It was further submitted
on behalf of the applicant
that even the unsigned copy of the contract which was submitted by
the first respondent supports the
proposition that the Municipal
Manager had the power to appoint the applicant.
As
concerning the legality of the decision to terminate the applicant's
employment contract, it was argued that the Court was
in a position
to intervene because the applicant as an employee was faced with
consequences of an invalid and unlawful decision.
In this respect,
reliance was placed on the cases of
Mafihla
v Goven Mbeki
2
and
Morule
v Minister of transport and Another
.
3
Given
the conclusion reached at the end of this judgment, I do not deem it
necessary to deal with the findings and the relevance
or otherwise
of these judgments.
Adv Rautenbach SC, for
the respondents, in his submission and heads of argument raised a
number of points in challenging the applicant’s
application.
The first point concerns the issue of urgency. He argued in this
regard that despite the ruling on urgency in the
interim order, the
issue still remains relevant and pertinent on the return day.
It was further argue on
behalf of the respondents that the applicant had failed to proof
that he had a clear right, compliant
with the requirements of a
final interdictory order. This argument is based on the contention
that the Municipal Manager did
not have the authority to change the
terms and conditions of the employment of the applicant as those had
been created by the
Municipal Council, in particular those dealing
with the appointment of political appointees.
As concerning the
settlement agreement, the respondents argued that its terms were not
applicable to the applicant as it applied
to the people who were in
the employment of the first respondent at the time it was concluded.
In this regard, the agreement
did not envisage its provisions
covering prospective employees such as the applicant. The agreement
was concluded during 2006,
whereas the applicant commenced
employment during 2009.
A
further point raised by the respondents is that the matter as raised
by the applicant has given rise to the issue of interpretation
and
application of a collective agreement which would fall under the
jurisdiction of the either the CCMA or the bargaining council
in
terms of section 24 of the Labour Relations Act.
4
Whilst
I do not intend dealing with this issue, it does seem to me that the
respondents do have a case in that regard which would
then mean the
applicant would have failed to establish a clear right.
The
other point raised on behalf of the respondents is that the
applicant was not entitled to the relieve he sought because he
had
other remedies such as those provided for in terms of section 77 of
the Basic Conditions of Employment act.
5
Analysis and
evaluation
It is trite that on the
return day of the rule
nisi
, the applicant would ordinarily
seek to have the interim order confirmed or made absolute. In
general, when the interim order
is not opposed, the court will
readily confirm such an order. However, if there is opposition to
the rule
nisi,
the matter will be argued and the court will
consider all the aspects raised by the parties including the issue
of urgency.
In the present instance,
the urgent application by the applicant was not opposed as stated
earlier; it would appear that the court
readily issued the interim
order on the basis of the papers as were presented by the applicant.
As stated above, the
matter was opposed on the return day. The first issue to consider
now is whether the issue of urgency is
relevant for consideration in
the present instance –it, previously being held that the
matter had to be treated as one
of urgency. There was no argument
between the parties about the fact that the Court on the return day
has to consider all aspects
of the interim order. There was however
an argument as to whether the Court was entitled to entertain the
issue of urgency which
had already been determined in the rule
nisi
.
The general principle of
our law, as I understand it, is that on the return day of a rule
nisi,
the court has the power and authority to consider all
aspects of the rule. In other words, the court considering the
matter on
the return day has an independent discretion to exercise
and is not bound by the finding of fact or law made by the court
that
granted the interim order.
The
issue of urgency was considered on the return day in the case of
Van
Wyk Von Ludwig and Hanekom Inc v Ferguson.
6
In
that case, the court in dealing with the issue of urgency, on the
return day, held that:
“
9. The
court which granted the provisional order also granted condonation
and permitted the applicant to
proceed with the application as a
matter of urgency on the basis of the allegations contained in
paragraph 10 of the founding affidavit
and which are set out above.
There is no reason for this Court to interfere with the discretion
exercised by that court in respect
of condonation and urgency.”
It is apparent from the
reading of the judgment in the above case that the court did
entertain the issue of urgency but, however,
declined to interfere
with the finding of urgency because the respondent failed to deal
with the substantive issues of urgency
but simply proffered a bare
denial of the existence of urgency. In this respect, the court found
that the respondent had skirted
the issue dealing with the important
issues related to urgency.
In
Fourie
v Uys
7
,
the
court held that the rule
nisi
would
be discharged if there were insufficient ground for granting the
interim order and this in my view, includes also insufficient
grounds for urgency.
In
SAFCOR
Forwarding (Johannesburg) (Pty) Ltd v National Transport
Commission
,
8
the
Court held that:
“
Nor am I
impressed by the argument that the Judge issuing the rule might be
called upon to give a ruling on a matter of law which
would be
binding on the Judge who finally heard the matter, unless clearly
wrong. Very often legal rulings are inextricably bound
up with the
facts placed before the Court. Obviously in such a case a ruling at
the rule
nisi
stage could not bind the Court finally hearing the matter on a more
broadly-based factual foundation
.
In some instances the ruling of law might transcend the particular
facts and be applicable both at the rule
nisi
and the final stages. (My underlining)
The
basis for the principle that on the return day, the court has the
discretion to consider all aspects of the interim order
as well as
urgency was well and correctly summarised in the case of
Polyoak
(Pty) Ltd v Chemical Workers Industrial Union and Others
.
9
In
that case, Brassey AJ summarised the position in the following
terms:
“
Many, but by
no means all of these shortcomings are excusable when an application
is brought as a matter of urgency. In the press
of circumstances, the
court may be quick to grant interim relief when it does so, when it
does no more than oblige the respondents
to refrain from doing what,
in any event, they should not do. By the time the return day arrives,
however, the dust is settled,
and then it becomes necessary for a
court to consider whether a case has been made out for the relief
sought. That an interim order
has been granted in no way prevents
this process, for, being interlocutory, it serves to dispose of none
of the issues that arise
in the case. The absence of opposition
moreover, cannot cure deficiencies in the papers. Being
uncontroverted, the allegations
in the founding affidavit can be
accepted unless they are baseless or fanciful and they must still
embody evidence on which the
court can act. Failure to oppose an
application, in no way, constitutes an act of submission to the
relief sought. On the contrary,
respondents in an application that
makes out no case have a right to assume that the court will arrive
at this conclusion without
the aid of argument from them. On the
return day, in short, the court must be satisfied that a proper case
has been made out for
each facet of relief sought.”
10
It is on the basis of
the above principle that I have decided to scrutinize the case of
the applicant with regard to urgency.
In this respect, I do not
agree with Mr Scholtz that the issue of urgency cannot be
entertained at this level, because it was
dealt with separately from
the other aspects of the interim order by Van Niekerk J.
In my view, for the
reasons set out below the applicant's claim stands to fail,
essentially on the basis of lack of urgency.
It is common cause that
the initial engagement of the applicant was based on a fixed term
contract linked to the term of office
of the Speaker. The contract
was extended by the Municipal Manager on 20
th
January
2011.
On 15
th
May
2011, the applicant received a letter dated 28
th
April
2011, informing him that his contract of employment would come to an
end on 21
st
May 2011. Thereafter, about a month later he
received a letter informing him that his contract of employment was
extended for
another month. On 28 June 2011, the applicant received
another letter reminding him that his contract of employment would
expire
on 31
st
June 2011. It is also stated in the
interim order (paragraph 2.1) that the applicant was notified of the
termination on 28 April
2011 and 23 June 2011.
The applicant waited
from 15 May 2011 to 28 July 2011 before approaching the court
regarding his complaint. This means that the
applicant waited for
about two months before approaching the court for a relief.
Adequacy of other
remedies
In order to succeed in
making an interim order final or definite the applicant has to show
the following: a clear right, an act
of interference and that there
is no other adequate relief.
It is
apparent from the reading of the papers that in seeking to protect
the alleged interference with his rights, the applicant
relies on
the alleged breach of the provisions of his employment contract by
the respondent. That being the case, it seems to
me that the
applicant essentially relies on the provisions of section 77 of the
Basic Conditions of Employment Act (BCEA).
11
There
is no evidence on the papers before me that the applicant would be
deprived of his rights if this matter was to be considered
in the
ordinary course and in terms of section 77 of the BCEA.
The
applicant has in my view failed to show that he has no other
adequate remedy, if this matter was to be heard in the ordinary
course or that if that was to happen he would suffer irreparable
harm. In other words the applicant has failed to show that it
would
be difficult and costly to place him in a position he was in prior
to termination of his contract of employment.
12
For the above reasons, I
am not disposed to granting in a final interdict and accordingly the
rule
nisi
stands to be discharged.
As concerning costs, I
am of the view that in the circumstances of this case it would not
be both law and fairness that costs
should follow the results.
In the premises, the
matter is struck of the roll with no order as to costs.
_______________
Molahlehi J
Judge of the Labour Court
of South Africa.
Appearances:
For the Applicant: Mr
Scholtz from Scholtz Attorneys
For the Respondent: Adv
Rautenbach SC
Instructed by: Cheadle
Thompson & Haysom
1
32
of 2000
. Section 55(1) of the Systems Act reads as follows: “
As head of administration municipal manager of a municipality is,
subject to the policy directions of the municipal council,
responsible and accountable for-
. . .
The management of the
municipality’s administration in accordance with this Act and
other legislation applicable to the
municipality.
. . .
. . .
The appointment of
staff other than those in section 56(a), subject to the Employment
Equity Act (Act No 55 of 1998).
. . .
The maintenance of
discipline of staff;
The promotion f sound
labour relations and compliance by the municipality with the
applicable labour legislation.
Section 66 (1) reads as
follows: A municipal manager, within a policy framework determine
the municipal council and subject to
any applicable legislation,
must-
. . .
. . .
Attach to those the
remuneration and other conditions of service as may be determined in
accordance with any applicable legislation.”
2
(2000)
ZANWHC 3
3
unreported
case number J304/11.
4
66
of 1995. Section 24 of the LRA reads as follows: (1) Every
collective agreement, excluding an agency shop agreement concluded
in terms of section 25 or a closed shop agreement concluded in terms
of section 26 or a settlement agreement contemplated in
either
section 142A or 158(1)(c), must provide for a procedure to resolve
any dispute about the interpretation or application
of the
collective agreement. The procedure must first require the parties
to attempt to resolve the dispute through conciliation
and, if the
dispute remains unresolved, to resolve it through arbitration.
(2) If there is a
dispute about the interpretation or application of a collective
agreement, any party to the dispute may refer
the dispute in writing
to the Commission if-
(a) the collective
agreement does not provide for a procedure as required by subsection
(1);
(b) the procedure
provided for in the collective agreement is not operative; or
(c) any party to the
collective agreement has frustrated the resolution of the dispute in
terms of the collective agreement.
5
75
of 1997.
6
[2001]
JOL 7967
(C) at para 9.
7
1957
(2) SA 125
(C) at 129 A-F
.
8
1982
(3) SA 654
(A) at 676 C-E.
9
(1999)
20 ILJ 392 (LC) at 394H–395B.
10
This
approach was followed by
Moshoana AJ in
Southernwind Shipyard (Pty) Ltd v
NUMSA and Others
[2009] 4 BLLR 390
(LC).
11
77
of 1997.
12
See
Bamford v Minister of Community Development and State Auxiliary
Services1981 (3) SA 1054 (C).
11