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[2012] ZALCJHB 102
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Solidarity and Others v South African National Blood Services (J 2450/12) [2012] ZALCJHB 102 (25 September 2012)
Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
case
no: J 2450/12
In the matter between:
SOLIDARITY
............................................................................................
First
Applicant
THEODORE
REYNEKE
.....................................................................
Second
Applicant
SANET
SCHONVELDT
.........................................................................
Third
Applicant
and
SOUTH AFRICAN NATIONAL BLOOD SERVICE
......................................
Respondent
Heard
:
20 September 2012
Delivered
:
25 September 2012
Summary: Application for urgent interdict preventing respondents
from filling posts. Applicant unable to show that application urgent.
Struck off roll for lack of urgency
JUDGMENT
GUSH J
The applicants in this matter filed a notice of motion seeking
relief in what is referred to as three parts:the first part of
the
notice of motion, Part A, is brought as a matter of urgency for
interim relief“pending the final end and determination
of the
relief sought in part B alternatively Part C”. (sic). The
notice of motion reads:
“
PART
A
That the rules of this
honourable court be dispensed with and that this matter be heard
in this post is one of urgency:
Pending the final end and
determination of the relief sought in part B alternatively part C
interdicting and restraining the
respondents from permanently
filling any of the positions vacated and in the space creation
strategy; and/or affecting the
promotion of any applicant to those
positions and/or taking any further steps aims at permanently
filling the positions,
including, but not limited to constituting
an interview panel, conducting interviews, selecting recommended
candidates for
appointment and/or recommending candidates for
employment in the position.
Authorising-
The applicant amplified his
papers in order to secure final relief;
The respondent to apply, on
notice to the applicants for the variation or placement of this
interdict in the event of good
cause being shown.
Costs in the event of
opposition.
Alternative relief.”
PART B
TAKE NOTICE FURTHER THAT
if
the applicants are unable to resolve this matter to their
satisfaction by means of processes contemplated by the employment
equity act 55 of 1996, they intend to make application on the date
and at a time to be determined by this honourable court ought
to be
arranged by with the registrar for an order-
interdicting the
respondents from excluding any applicant for a position on it
starts early on the basis of his or her
race;
costs of suit;
alternative relief;
PART C
TAKE FURTHER NOTICE THAT
,
the applicant intends filing an application for declaratory order
within 15 days of the date of hearing of this application, which
will
be brought on a semi-urgent basis and in which application the
applicant will seek the following relief:
Declaring the advertisements
(recruitment/interviewing processes) dated 24 August 2012, and or
any similar advertisement, which
excludes any person solely on the
basis of his or her race to be invalid and not in accordance to the
employment equity act and
the constitution.
That the respondents are
ordered to withdraw the advertisements as set out above and all
persons irrespective of their race to
apply.
Costs of suit;
Alternative relief;”
(sic)
Given the specific relief sought in parts B and C it is difficult to
fathom exactly what course of action the applicants intend
following
should they succeed in obtaining the order envisaged by part A viz
interim relief pending “the final end and
determination of the
relief sought in part B alternatively part C”.
The interim relief that the applicants seek is an order
“
interdicting and
restraining the respondent from permanently filling any of the
positions vacated under the space creation strategy;
and/or
effecting the promotion of any of the applicants to those positions
and/or taking further steps aimed at permanently filling
the
positions, including, but not limited to constituting an interview
panel, conducting interviews, selecting recommended candidates
for
appointment and/or recommending candidates for employment in the
position
” (sic)
First applicant is a registered trade union and the second and third
applicants are employees of the respondent and members of
the first
applicant. The first applicant in bringing this application purports
to actin its own interest; on behalf the second
and third
applicants; in the interests of its members generally "who, as
employees of the respondent, have suffered actual
or potential
prejudice the consequence of the employment practices currently
being pursued by the respondent"; and in the
public interest.
The background to this application is that on 23rd July 2012 the
respondent issued a “communication” to all staff
advising them that the respondent’s board had decided to
implement its "Employment Equity (EE) Space Creation
Project”.The
communication records that "EE Space
Creation is defined in the EE strategy and plan ... mak[ing] it
attractive and possible
for white employees aged 55 years or older
in executive, senior and middle management levels to leave the
organisation to create
opportunities for black managers to assume
their roles.”
The communication continues to state that "
the
purpose of implementing the Space Creation atExecutive Senior and
Middle Management levels is based on the need to make progress
of
these critical levels towards the achievement of our transformation
targets and goals and to acquire and retain that talented
these
critical levels in SANBS
”
On 20
th
August 2012 a further communication was issued by
the respondent listing those employees who had elected to take
retirement and
detailing the posts that they held. The communication
further notified all staff that a recruitment process in respect of
these
posts was to commence.
The applicants attached to their replying affidavits an affidavit by
a representative of the trade union HOSPERSA, Mr. Pierru
Marx, who
states therein that “we” received on 23 July 2012 the
document entitled "Employment Equity/Space Creation
Strategy”
and on 20 August 2012 received the further communication. Mr Marx
states categorically that during the roadshow
which took place on 21
August 2012 the respondent made it clear “that no whites would
be considered for any of these positions”.
It is clear from
this affidavit that HOSPERSA was aware of the respondent’s
intentions on 21 August 2012 before the advertisements
for the posts
were published.
On 24 August 2012 the respondent advertised, internally, the
positions detailed in the communication of 20 August 2012 which
advertisementsincluded the following note: "This is an
Affirmative Action vacancy and only AA candidates (African, Indian,
Coloured and Chinese) should apply”. The closing date for
these advertisements was 31 August 2012.
The applicants’ founding affidavit is deposed to by a Mr. Dirk
Groenewald on behalf of the first applicant. The second
and third
applicants merely filed confirmatory affidavits. Groenewald in his
affidavit does not suggest that any of the applicants
were unaware
of the contents of the two communications dated 23 July 2012 and 20
August 2012. Neither does Groenewald suggest
that the applicants had
not attended the roadshows or that they did not understand what the
respondent had according to Marx
apparently made clear at the
roadshow viz “that no whites would be considered for any of
these positions”.
Marx’s affidavit is in direct contrast with paragraph 15 of
Groenewald’s affidavit where he states “
the
communiqué was followed up by a roadshow in which some effort
was made to explain the contours of the strategy.The
[respondent]
was careful, however, to give no detail on the numerical goals and
targets it envisaged
”
Neither the second nor the third applicant applied for any of the
posts that were advertised nor is it alleged that they were
disturbed by what they had been told by the respondent at the
roadshow.
There can be no doubt that in the absence of any explanation by the
second and third applicants why they did not apply for any
of the
post when they were advertised, or at least register their concern
at the time the respondent made it clear that it intended
filling
theses posts with black candidates, the second and third applicants
clearly did not seriously consider themselves candidates
for the
positions advertised by the respondent pursuance of its space
creation strategy or for that matter application of the
strategy to
be discriminatory unfair and unlawful. Had they done their disquiet
would have manifested itself at the time the
announcements were made
and the advertisements published.
In such circumstances the application may well have been urgent.
Groenewald offers no explanation why the first applicant who
expressly acts in this matter “in its own interests, the
interests of the second and third applicants; and
its members
generally as employees of the respondent
...”(my emphasis),
(unlike HOSPERSA), were unaware of the fact, as is stated by Marx,
that the respondenthad made it clear
during the roadshow that no
whites would be considered for any of these positions and why they
waited until 13 September to file
this application. The second and
third applicants likewise offered no explanation.
It is common cause however that none of the applicants reacted to
either of the communications nor did they react to the respondents
clear message delivered at the roadshow that the their intention was
at all times to fill the vacated posts with black candidates.
Groenewald explains that, seemingly in an attempt to justify the
applicants’ failure to respond timeously to the application
of
the "Employment Equity/Space Creation Strategy” and to
justify urgency,only some six and seven days respectively
after the
closure of the applications for the vacant posts the second and
third applicants suddenly decided that the process
was
discriminatory unfair and unlawful and that they were eminently
qualified for positions that had been advertised.
With the dawning of this realisation, Groenewald explains, the
second and third applicants invoked the help of the first applicant.
The first applicant insisted in lodging grievances on behalf of the
second and third applicants anddemanded the withdrawal of
the
advertisements.
On or about 11 September 2012 the respondent dismissed the second
and third applicants’ grievances and in essence refused
to
withdraw the advertisements.
The applicants then proceeded to file this application.
The first and most important consideration is whether or not the
applicants’ application is urgent. It is not necessary
to
determine at this stage whether the applicants have established the
right they seek to have "vindicated” or whether
the
balance of convenience favours them. As far as an alternative remedy
is concerned the applicants papers certainly do not
establish the
absence of alternative remedy,
Apart from opposing the application on the grounds that it was not
urgent the respondent in its founding affidavit, almost
hysterically, raises a vast number of technical issues including for
example, disputing the first applicant's status as a registered
trade union.
In similar vein, and equally unnecessarily, the respondent sought,
in an ill-conceived application filed when the matter was
called, to
strike out certain affidavits and allegations in the applicants
applying affidavits including surprisingly the affidavit
of Marx.
The respondent would have been better advised to have concentrated
on the merits or demerits of the applicants’
application as
opposed to its unnecessary reliance on technical issues and spurious
“application to strike out”.
In so far as it is necessary the respondent’s application to
strike out is dismissed.
Mr Mooki who appeared for the respondents argued, correctly, that
the staff to whom the communications addressed could have been
under
no misapprehension as to the purpose of the space creation exercise
and implementation of the space creation strategy.
Even if in the
unlikely event that they had been in doubt after the issue of the
first communication in July,they were on the
strength of the
applicants own papers it was made abundantly clear at the roadshow
on the 21 August 2012 that the respondent's
intention was to fill
the vacant posts with black candidates.
Likewise, when the internal advertisements were published on 24
August 2012 the note at the foot of the advertisement served
only to
confirm what had been made clear at the roadshow.
The applicants offer no explanation for their inaction and lack of
response to the communications, announcements and explanation
of how
the application of the policy was being implemented, other than a
suggestion that they did not understand the communications;
and
therefore for the delay in bringing this application. Any urgency
that existed would, at best for the applicants, have existed
at the
time of the roadshow and the publication of the advertisements.
In the circumstances I am not satisfied that the applicants have
established that the application is urgent. In the circumstances
I
make the following order
the application is struck off the roll for want of urgency;
the applicants are ordered to pay the respondent's costs the one to
pay the others to be absolved
_______________________
D H Gush
Judge
APPEARANCES
APPLICANTS: MSM Brassey SC assisted by MJ Engelbrecht
Instructed by Serfontein Viljoen and Swart
RESPONDENT: O MOOKI
Instructed by Cowan Harper Attorneys