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[2012] ZALCCT 8
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Hermanus v Overberg District Municipality (C 144/12) [2012] ZALCCT 8 (1 March 2012)
REPUBLIC OF SOUTH AFRICA
Not reportable / of interest
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
case
no: C 144/12
In the matter between:
G
W HERMANUS
….........................................................................
Applicant
and
OVERBERG
DISTRICT MUNICIPALITY
…..................................
Respondent
Heard
:
29 February 2012
Delivered
:
1 March 2012
Summary:
Urgent application to interdict disciplinary hearing
– rule 8 -- struck from roll for lack of urgency.
JUDGMENT
STEENKAMP J
Introduction
The applicant is employed by the respondent municipality. He has
been notified to attend a disciplinary hearing tomorrow, 1 March
2012. He seeks an urgent interim interdict, preventing that hearing
from proceeding, pending an application to enforce certain
provisions of his employment contract.
The contract
The parties entered into a contract of employment on 24 April 2008.
With regard to disciplinary procedures, it embodies everything
that
an internal disciplinary hearing is not meant to be. The informal
nature of an internal hearing, as envisaged by the Labour
Relations
Act, was emphasised by Van Niekerk J in
Avril Elizabeth Home for
the Mentally Handicapped v CCMA & others
1
.
This contract, on the other hand, provides for elaborate procedures
akin to a criminal trial; it purports to give the employee
the right
to co-determine the chairperson; and, perhaps most astonishingly,
not only is the employee entitled to legal representation,
but it
provides that the municipality (i.e. the ratepayers of the Overberg)
must foot the bill for the employee’s legal
representatives,
including a senior attorney and senior counsel. (It goes further to
ensure the same representation up to Constitutional
Court level!).
The applicant is facing charges of misconduct relating to sexual
harassment. I need not and should not decide the merits of those
allegations. Suffice to say that the applicant has asserted his
rights to make use of a senior attorney and senior counsel at
ratepayers’ expense, and plans to do so if and when the
disciplinary hearing eventually gets underway. The hearing has
had
to be postponed numerous times, mainly due to the applicant’s
alleged (but unidentified) medical condition.
The municipality now states that many aspects of the contract of
employment are unlawful,
ultra vires
and against public
policy. Hence it does not intend to provide the applicant with legal
representation at the hearing. The volte-face
concerning the
contract of employment – that the municipality entered into
with the applicant in 2008 – may have
more to do with a change
in political leadership than a sudden concern for ratepayers and
public policy. Be that as it may, that
is for another court to
decide. What I have to decide today is whether the hearing scheduled
for tomorrow should be interdicted.
Urgency
The applicant appeared unannounced in court yesterday (28 February
2012), accompanied by his attorney and senior counsel. At
the end of
the motion court roll, I enquired from Mr
Potgieter SC
,
representing the applicant, whether I could be of assistance, as he
did not have a matter on the roll. He informed me that they
wished
to have this application heard on an urgent basis, even though his
attorney had made no such arrangements with the registrar.
Despite
this, I agreed to hear the matter this morning, the applicant having
the leap year benefit of an extra day in February.
The application was filed on 27 February 2012. In terms of rule 8,
the applicant has to set out grounds for urgency.
The applicant complains that he is being targeted by the respondent.
As part of this campaign, he is accused of misconduct. That
remains
to be tested. What is common cause, though, is that he was informed
as far back as April 2010 – i.e. two years
and ten months ago
– of the allegations against him. He was represented by his
attorneys of record throughout. Various
postponements followed,
occasioned by his medical condition and objections to the proposed
chairperson, including a number of
senior part-time CCMA
commissioners.
In August 2010 the municipality’s attorneys wrote to the
applicant’s attorneys, setting out why they believed that
the
employment contract was invalid and
ultra vires
the relevant
statutory provisions. As far back as 19 August 2010 the applicant’s
attorneys, Bagraims, wrote to the municipality’s
attorneys and
stated:
“
We are
instructed to inform you, as we hereby do, that should you proceed
[with the disciplinary enquiry] in breach of the contractual
obligation of our client’s valid employment contract, that we
must enrol his application for an interdict against your client
at
the Labour Court. We await your client’s undertaking by close
of business on Friday, 20 August 2010.”
No such undertaking was given; yet, despite the earlier
sabre-rattling, the applicant’s attorneys did not enrol the
threatened
urgent application (until 18 months later, that is).
On 10 September 2010 Bagraims again wrote to the municipality’s
attorneys in these terms:
“
It is
clear from your client’s attitude in your aforementioned letter
[of 9 September 2010] that our client has no other option
but to
bring an application to the Labour Court for an interdict to stop it
from proceeding with the disciplinary hearing, pending
a declaratory
regarding the validity of the employment contract, which will include
an order for costs.”
Again, they did not do so.
In November 2010 the High Court overturned the appointment of an
administrator who was appointed to oversee the affairs of the
municipality. The disciplinary process stalled until the Council
appointed a person to investigate the allegations against the
applicant afresh.
On 9 December 2011 the municipality wrote to the applicant informing
him of two possible chairpersons to chair a reconvened disciplinary
hearing. On 20 December 2011 Bagraims wrote to the municipality,
stating:
“
Neem
kennis dat indien u nie voor of op 4 Januarie 2012 van u Raad se
onderneming voorsien [
sic
]
om ons kliënt se regskoste te dek ingevolge sy dienskontrak nie,
ons opdrag het om die Arbeidshof op ‘n dringende basis
te nader
en ‘n interdik te verkry teen u voorneme om voort te gaan met
die dissiplinêre verhoor. Ons kliënt se
regte in hierdie
verband word voorbehou.
Indien ons nie voor of op 4
Januarie 2012 van u in hierdie verband verneem nie, is ons opdrag om
die Arbeidshof te nader vir die
nodige bevel en interdik, en u en u
Raad verantwoordelik te hou vir alle regskoste aangegaan.”
The municipality responded on 23 December 2011. At the request of
the applicant’s attorneys, the municipality sent him
the CV’s
of the two proposed chairpersons. It reiterated that the
municipality would not bear his legal costs as it deemed
his
contract to be invalid.
A month later, on 10 January 2012, Bagraims wrote to the
municipality and stated:
“
In
light of your refusal to undertake to pay our client’s legal
costs, our client will now approach the Labour Court for a
declarator
and a prayer for costs.
[P]lease confirm that you will
not proceed with the hearing until the outcome of the Labour Court
ruling on our client’s proposed
declaratory [
sic
] about
the validity of his employment contract. Should we not receive your
written undertaking by close of business on Thursday,
12 January
2012, we will approach the Court on the basis of urgency, including a
prayer for costs an an attorney and own client
scale.”
On 12 January, no undertaking was forthcoming. Instead, the
municipality wrote to Bagraims, stating:
“
Please
ensure that any interdict papers are served on us timeously in order
that we may have sufficient time to prepare our response.”
Instead, the interdict papers were only served on the municipality
on Friday 24 February 2012
2
;
filed at Court on Monday 27 February; and the applicant’s
attorney and counsel arrived at court on Tuesday 28 February,
without the date having been arranged with the registrar or the
matter having been enrolled.
A revised “charge sheet” was sent to the applicant and
his attorneys on 13 January 2012. The disciplinary hearing
was
scheduled to proceed on 21 February, approximately six weeks later.
Again, the applicant was booked off sick for an unknown
illness and
the hearing was postponed to 1 March 2012. A new notification
containing the identical complaints was served on the
applicant by
hand on 10 February 2012.
Despite these various notices; the fact that the applicant knew, at
the very latest, by 11 January 2012 exactly what the allegations
against him were and that the municipality would not pay his legal
costs for representation at an internal disciplinary enquiry;
and
despite the fact that he has been represented by his attorneys of
record since at least April 2010 and they have been threatening
an
urgent application since August 2010, the application was eventually
brought on less than 48 hours’ notice.
Rule 8 states:
“
8. Urgent
relief.—(1) A party that applies for urgent relief
must file an application that complies
with the requirements of rules
7 (1), 7 (2), 7 (3) and, if applicable, 7 (7).
(2) The affidavit in
support of the application must also contain—
(a) the reasons for urgency and
why urgent relief is necessary;
(b) the reasons why the
requirements of the rules were not complied with, if that is the
case; and
(c) if a party brings an
application in a shorter period than that provided for in terms of
section 68 (2) of the Act, the
party must provide reasons why a
shorter period of notice should be permitted.
In his founding affidavit, he applicant simply states, rather coyly:
“
I have
been served with a notice of a disciplinary hearing set down on 1
March 2012.”
He does not play open cards by informing the court that he was
initially served with a “charge sheet” on 13 January
and
told that the hearing would commence on 21 February; that it was
postponed due to his illness; and that he was informed by
10
February that it had been rescheduled for 1 March.
The applicant goes on to say:
“
It is
vitally important for the protection of my rights that the present
proceedings be finalised before then. It is clear that
the respondent
is not prepared to acknowledge and honour its obligations in terms of
the employment contract in the absence of
appropriate relief. It is
accordingly clear that this matter is urgent and that I would not be
able to obtain substantial redress
at a hearing in due course. I have
endeavoured to bring this application as soon as circumstances
permitted. I have to fund this
application from my own limited
resources and there was an inevitable delay in raising the necessary
funds to be able to instruct
my legal representatives to launch these
proceedings.”
That is the sum total of the applicant’s reasons for urgency.
It falls woefully short of the requirements of rule 8. It
is by no
means “clear that this matter is urgent”. He also does
not explain how he has “endeavoured to bring
this application
as soon as circumstances permitted”, given that his attorneys
have been threatening an urgent interdict
for months. And his
allegation that he has “limited resources” fails to
mention – as the municipality does
in its answering papers –
that he is paid more than R1 million per year. His attorneys have
not, over the past two years,
hesitated to send off many lengthy
letters objecting to the disciplinary hearing and threatening an
urgent application; why there
should now, suddenly, be “an
inevitable delay in raising the necessary funds to be able to
instruct my legal representatives
to launch these proceedings”
is not explained at all.
As Van Niekerk J pointed out in
National Police Services Union &
others v National Negotiating Forum & others
3
:
“
The
latitude extended to parties to dispense with the rules of this court
in circumstances of urgency is an integral part of a balance
that the
rules attempt to strike between time-limits that afford parties a
considered opportunity to place their respective cases
before the
court and a recognition that in some instances, the application of
the prescribed time limits, or any time limits at
all, might occasion
injustice. For that reason, rule 8 permits a departure from the
provisions of rule 7, which would otherwise
govern an application
such as this. But this exception to the norm should not be available
to parties who are dilatory to the point
where their very inactivity
is cause of the harm on which they rely to seek relief in this court.
For these reasons, I find that
the union has failed to satisfy the
requirements relating to urgency."
The same considerations apply to this case.
Conclusion
The application should be struck from the roll for lack of urgency.
In these circumstances, I need not deal with the merits. Suffice it
to say that the applicant may have a
prima facie
right to
legal representation at the municipality’s cost at his
disciplinary hearing, though open to some doubt, arising
from his
contract of employment; however, this court will only grant urgent
relief interdicting disciplinary hearings in exceptional
circumstances.
4
These are not such circumstances. The complaints to which the
applicant has to answer comprise clear instances of sexual
harassment.
They are not factually and legally complex, and he has
been aware of them since April 2010. There is little reason why he
should
not, if they are without merit, be able to defend himself
adequately without legal representation like other employees do
every
day.
Even if the complaints were proven; and even if they were to be
considered serious enough to dismiss him, the applicant has an
adequate alternative remedy. Like any other employee, and as
envisaged by the dispute resolution system established by the LRA,
he can then refer an unfair dismissal dispute to the relevant
Bargaining Council. He would suffer no irreparable harm.
The balance of convenience also appears to favour the municipality.
It needs to get clarity on the applicant’s position
as
employee and it needs to finalise the process in order to justify to
its ratepayers why he should either be paid for work
done, or
otherwise.
I would, therefore, in any event have been inclined to dismiss the
application, based on the well-known requirements for interim
relief
set out in
Eriksen Motors (Welkom) Ltd v Protea Motors
5
and other authorities.
Costs
Mr
Conradie
, for the municipality, argued that the applicant
should pay its costs, and that he should be ordered to do so on a
punitive scale.
I do not agree. The parties still have a
relationship, albeit a fraught one. The applicant has unnecessarily
delayed the bringing
of this application, but it was not entirely
without merit, given the existing terms of his contract of
employment, unconscionable
as they may seem.
In law and fairness, each party should pay its own costs. I should
clarify, though, that this means that the applicant –
and not
the municipality on his behalf – is liable for his own costs
for these proceedings (including the appearance on
28 February
2012).
Ruling
The application is struck from the roll for lack of urgency. Each
party must pay its own costs.
_______________________
Anton Steenkamp
Judge
APPEARANCES
APPLICANT: Denzil Potgieter SC)
Instructed by Bagraims Inc.
RESPONDENT: Bradley Conradie attorney.
1
[2006]
9 BLLR 833 (LC).
2
An
incomplete set of affidavits was faxed to the municipality’s
attorneys on Thursday 23 February.
3
(1999)
20
ILJ
1081
(LC) para [39], cited with approval in
NUM
v Black Mountain
(2007) 28
ILJ
2796 (LC) para [13].
4
Booysen
v The Minister of Safety and Security & others
[2011]
1 BLLR 83
(LAC) para [54];
City of Cape
Town v SAMWU & others
(unreported
LAC judgment of 7 February
2012, CA 7/08
para [16].
5
1973
(3) SA 685
(A) 691 A-G.