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[2011] ZALCD 50
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Dlamini v Member of Executive Council for Education, Province of KwaZulu-Natal and Another (D546/11) [2011] ZALCD 50 (30 June 2011)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT DURBAN
Not
reportable
Case
No: D546.11
In
the matter between:
NICHOLOUS
BONOKWAKHE DLAMINI
Applicant
and
MEMBER
OF EXECUTIVE COUNCIL FOR
EDUCATION,
PROVINCE OF KWAZULU-NATAL
First
Respondent
THE
MANAGER, EXAMINATIONS AND ASSESSMENTS
DIRECTORATE,
DEPARTMENT OF EDUCATION,
PROVINCE
OF KWAZULU-NATAL
Second
Respondent
Date
of Hearing: 29 June 2011
Date
of Judgment: 30 June 2011
JUDGMENT
PATHER
A.J
Introduction
[1]
This matter is brought as an urgent application in terms of which the
applicant seeks an order to be appointed as a chief marker
for the
Introduction to Criminology matriculation examination during the 2011
marking session.
Brief
background facts
[2]
The applicant, who is currently awaiting the outcome of disciplinary
proceedings brought against him in his capacity as educator,
was
advised on 26 May 2011 of the termination of his services as a chief
marker for the Introduction to Criminology, the reason
being his
suspension as educator.
[3]
As a chief marker, the applicant was paid between R20 000,00 and
R45
000, 00 per marking session, depending on the number of examination
scripts and subjects for which he would be responsible.
[4]
While on suspension as an educator, the applicant receives his full
salary.
[5]
Despite subsequent representations to the second respondent, on 3
June 2011, the applicant was informed that the termination
of his
services as a chief marker would stand.
[6]
The marking session for the June 2011 examination will commence on 1
July 2011.
Evaluation
[7]
Mr Nhlangulela for the applicant argued among other aspects, that as
the next marking session is due to commence on 1 July 2011,
the
application for urgent relief was necessary. In opposing the
application, Ms Seedat on behalf of the respondents, argued
that the
application failed to comply with the rules of the Labour Court, more
particularly rule 8 (2) (a) and (b). There
was no explanation
for the non-compliance with the rules as provided in rule 8 (2) (b)
despite the applicant being aware as at
3 June 2011, that his
services as chief marker had been terminated.
[8]
Referring to among others, the case of
Jonker
v Wireless Payment Services
CC
[1]
where
Molahlehi J remarked as follows:
“
It
is trite that before an urgent application can be granted, the
applicant must satisfy the following requirements; a clear right
(or
a prima facie right in the case of interim relief); a well-grounded
apprehension of irreparable harm if the relief is not granted
on an
urgent basis, that the balance of convenience favours the granting of
the relief on an urgent basis; and that the applicant
has no other
alternative relief.”
Ms
Seedat argued that:
·
The applicant had failed to establish a
clear right; he seeks a final interdict. The applicant is on a
data base and a process
is and was being followed;
·
It could only be inferred that the
applicant’s submission regarding his apprehension of
irreparable harm relates to financial
hardship, as paragraph 27 of
the founding affidavit does not give any basis for such an
apprehension, whereas paragraph 12 of the
founding affidavit refers
to the salary he earned as a chief marker. In this regard, she
argued that it is trite that financial
hardship is not regarded as a
ground for urgency; that in any event, the income earned from being a
chief marker was an added benefit
over and above his monthly salary
earned as an educator; and
·
The applicant indeed has an alternate
remedy in that he submits in paragraph 25 of the founding affidavit
that the respondents’
conduct amounts to an unfair labour
practice; the Education Labour Relations Council is therefore the
forum to which this dispute
must be referred.
[9]
In response, Mr Nhlangulela argued that the applicant was not
responsible for the delay; that he had to address a letter on
27 May
2011 to the second respondent seeking a response to his
representations; that as at that date, there had been no official
communication, and that the applicant had followed all internal
procedures
[10]
In my view, the applicant has failed to satisfy the requirements for
urgent relief. On his own version, he was aware
of the finality
of the respondents’ decision on 3 June 2011, but only signed
the papers some three weeks later. I agree
with Ms Seedat’s
submission: given the intervening period, there is no explanation for
the non-compliance with rule 8 (2)
(a) & (b), let alone a
satisfactory one. Apart from his statement contained in
paragraph 28 of the founding affidavit,
the applicant has failed to
explain why the application was not brought on proper notice and in
compliance with the rules. In
any event, the termination of the
applicant’s services as chief marker is linked to the
continuing disciplinary proceedings;
it is common cause that this
process is being finalised. The applicant accordingly has the
right to refer the dispute relating
to an alleged unfair labour
practice to the Education Labour Relations Council. In the
circumstances that:
10.1
the applicant has not complied with rule 8 (2) (a) and (b);
10.2
there being no basis for an apprehension of irreparable harm; and
10.3
disputes relating to unfair labour practices must be referred to the
Education Labour Relations Council,
I
am not satisfied that the applicant has established a clear right to
urgent relief. However, in view of the continuing relationship
between the parties, and the fact that further processes are
envisaged, it would not be in the interests of justice to award costs
against the applicant.
[11]
In the premises, the following order is made:
1.
The application is dismissed.
2.
There is no order as to
costs.
______________________
Pather,
A.J.
Appearances
For
the Applicant
:
Mr.M.A.Nhlangulela
Instructed
by
:
Buthelezi Attorneys
For
the Respondent
:
Ms F
Seedat
Instructed
by
: State
Attorney
[1]
(2010)
31 ILJ 381 (LC) at para 12. ,