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[2012] ZALCD 8
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Moodley v Minister of Police and Others, Ndlovu v Minister of Police and Others (D321/12; D322/12) [2012] ZALCD 8 (7 June 2012)
Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
case
no: D 321/12
In the matter between:
DEENADAYALAN
MOODLEY
…...............................................................................
Applicant
and
MINISTER
OF POLICE
….............................................................................
First
Respondent
ACTING
NATIONAL COMMISSIONER
OF
THE SOUTH AFRICAN POLICE
SERVICE
…..............................................................................................
Second
Respondent
PROVINCIAL
COMMISSIONER:
KWAZULU-NATAL
SOUTH AFRICAN
POLICE
SERVICE
…...................................................................................
Third
Respondent
DIVISIONAL
COMMISSIONER:
CRIME
INTELLIGENCE:
SOUTH
AFRICAN POLICE SERVICE
…..................................................
Fourth
Respondent
AND
the labour court of South Africa, DURBAN
judgment
case
no: D 322/12
In the matter between:
SITHEMBISO
OLIPHANT NDLOVU
…......................................................................
Applicant
and
MINISTER
OF POLICE
….............................................................................
First
Respondent
ACTING
NATIONAL COMMISSIONER
OF
THE SOUTH AFRICAN POLICE
SERVICE
…..............................................................................................
Second
Respondent
PROVINCIAL
COMMISSIONER:
KWAZULU-NATAL
SOUTH AFRICAN
POLICE
SERVICE
…...................................................................................
Third
Respondent
DIVISIONAL
COMMISSIONER:
CRIME
INTELLIGENCE:
SOUT
AFRICAN POLICE SERVICE
….....................................................
Fourth
Respondent
Heard
:
1 June 2012
Delivered
: 7
June 2012
Summary:
Application for urgent interim relief: applicants not
establishing urgency: Applications dismissed.
JUDGMENT
GUSH J
The applicants in these matters each filed an application seeking an
order reviewing and setting aside the decision of the second
and or
third and or fourth respondent to transfer the applicants, in the
case of:
Moodley: case number D 321/12 from his post of provincial head:
crime intelligence Kwazulu-Natal to that of cluster commander:
Pinetown; and
Ndlovu, Case no D 322/12 from his post of section head: crime
intelligence, Kwazulu-Natal to that of station commander Inanda.
The review applications are couched in the form of applications for
a rule
nisi
in which both applicants seek an order directing
the respondents to show cause on a date to be determined, why the
court should
not
order that “the
second and/or third and/or fourth respondent’s decision to
transfer the applicant[s] ... be and is
hereby reviewed and set
aside (whether allegedly pending the final determination of such
transfer, or on a permanent basis)”
(sic).
The notice of motion in addition calls upon the respondents to
“dispatch within 10 days of receipt of the notice of motion,
to the registrar, the complete record of the proceedings/decision
sought to be reviewed and corrected or set aside, together
with such
reasons as are required by law desirable to provide, to notify the
applicant that this has being done”. Further,
that if they
“intend opposing the final relief as set out above that they
are to file a notice of opposition and answering
affidavit within 10
days of delivery of the applicants supplementary affidavit;
alternatively, notice that the applicant stands
by his notice of
motion, failing which, the matter will be heard in the respondent's
absence on the date appointed by the registrar”
In addition to the rule
nisi,
the applicants sought as a
matter of urgency an interim order/interdict, pending the outcome of
the application, restraining
the respondents from permanently
appointing any other member/individual to their erstwhile posts,
directing the respondents to
reinstate the applicants to those
posts, interdicting and restraining the respondents from stopping
the applicants’ salaries
and directing the respondents to
accept the tender of the applicants’ services in their
erstwhile posts.
The interim relief sought by the applicants essentially foreshadows
the final relief they seek in their applications to review
the
respondent's decision to transfer them. The difference being that
the application for interim relief is brought as an urgent
application.
The applicants’ urgent applications were brought as before the
Honourable Judge Lallie on 18 April 2012 who granted the
following
order by consent in each matter:
‘
1 the
application is adjourned 1 June 2012 the purposes of arguing interim
relief sought in paragraph 3 of the notice of motion;
2 the respondents will file the
answering affidavit dealing with the question of interim relief by
the 26 April 2012;
3 the applicant will file his
replying affidavit, if any, by 11 May 2012;
4 costs reserved;
5 the parties record the
following undertakings as part of this order pending the outcome of
the hearing with regard to interim
relief:
5.1 the applicant tenders his
services to the post of provincial head (KZN): crime
intelligence/section head (KZN): crime intelligence;
[respectively]
5.2 the applicant[s] will not be
required to report for duty or turned any services in the post of
cluster commander: Pinetown/station
commander: Inanda;
5.3 the respondents will not
make any permanent appointment in the applicants’ post[s]:
provincial head (KZN): crime intelligence/
section head (KZN): crime
intelligence;
5.4 the respondents will not
cease the payment of the applicants’ salar[ies].’
It is pertinent to emphasise that the interim relief the applicants
seek is relief pending the final review of the respondents'
decision
to transfer the applicants. The applicants, in seeking to review of
the respondents’ decision to transfer them
sought this relief
in the form of a rule
nisi
and only the interim relief as a
matter of urgency. The application to review the respondents'
decision complies with rule 7A
of the rules of this Court with
regard to the filing of opposing papers and the time limits within
which to file them.
Accordingly, the matter before me is confined to the issue of the
urgent interim relief which the applicants seek pending the
review
of the respondents’ decision to transfer them ‘alternatively
the referral of an unfair labour practice (in
particular an unfair
demotion dispute to the Safety and Security Sectoral Bargaining
Council for resolution ...’
In the affidavits opposing the applicants’ applications for
urgent interim, the respondents pertinently raise the issue
of
urgency and in particular aver that the applicants have not complied
with Rule 8 of this Court’s rules in that the applicants
have
not in their founding affidavits established that the application
for interim relief is urgent.
Rule 8 provides that:
‘
(2)
The affidavit in support of the application must also contain-
the reasons for urgency and
why urgent relief is necessary;
the reasons why the
requirements of the rules were not complied with, if that is the
case; ...’
It is trite that an applicant must adequately set out his founding
affidavit the reasons for urgency. It is not sufficient for
applicants simply to refer in passing to the application being
urgent
but must explain in some detail
and why urgent relief is necessary. Applicants are required give
cogent reasons. Failure to do
so inevitably will result in the
application being struck off the roll for want of urgency. It is
accordingly necessary to consider
the grounds upon which the
applicants rely in averring that their applications are urgent. The
applicants offer differing reasons
why their applications are
urgent. I will accordingly deal with them separately.
In his replying affidavit, the applicant, Moodley, avers that the
respondents in the answering affidavit have “conveniently”
omitted the relevant portions of his founding affidavit dealing with
urgency.
Bearing this in mind it is relevant to consider exactly what
averments the applicant, Moodley, relies on and the reasons given
in
his founding affidavit in support of the application for interim
relief being dealt with as a matter of urgency. The sum total
of the
averments appear in the following paragraphs:
‘
in
paragraph 52 the applicant records "the respondents have
threatened to stop my salary due to the fact that I have allegedly
not reported to my transfer place"
In paragraph 54 the applicant
records "I require interim relief pending the outcome of this
application. There is no suitable
alternative remedy to address
interim relief pending the outcome of this application. The reason
is relevant to the proper
and continued operation of crime
intelligence in KwaZulu-Natal including the continued, coordinated
investigation of crime
presently being investigated, as well as my
personal reasons including the reputational damage done by the
unlawful transfer,
it is absolutely necessary that I continue my
post on an interim basis.”
And in paragraph 57 "I've
taken all reasonable steps to bring this application to the above
Honourable
Court as
soon as possible and respectfully submit that the matter is
urgent.
’
In Ndlovu’s application, he deals with urgency in the
following paragraphs of his founding affidavit thus:
‘
Paragraph
39: “[My transfer] is arbitrary and capricious... unlawful
... punitive ... and was affected without any consultation
or
regard to my needs, career development or interests of the state.
It should be addressed immediately in the interim”;
Paragraph 40: “it is
absolutely imperative that I be accorded interim relief pending the
outcome of this application and
in particular prohibiting the
respondents from permanently appointing someone to my post as
should they do that would render
the final principle relief i seek
on review academic.”; and
Paragraph 41: “I require
interim relief given that my rights have been clearly violated. I
have good prospects of succeeding
in the review and there's no
suitable alternative remedy in the circumstances to preserve or
restore the status quo other than
an order from this court pending
the outcome of the review.’
I am not satisfied that either of the applicants has adequately or
sufficiently dealt with the reasons for urgency, why urgent
relief
is necessary to prevent irreparable harm, and why the rules of this
Court could not have been complied with.
Inextricably bound up with the question of urgency are the
requirements for the granting of an urgent interdict and in
particular
the requirement that an applicant must show ‘an
irreparable injury actually has been committed or is reasonably
apprehended
".
There is no basis
established in the affidavits of the applicants to justify the
conclusion that they have suffered or will suffer
irreparable harm
if the transfer is not set aside pending the review of the decision.
If their review of the decision is upheld
their objection to the
transfer will have been vindicated. Likewise, bearing in mind the
applicants have not been suspended but
transferred, neither
applicant has established that he will suffer irreparable harm
should he take up the post to which he has
been transferred pending
the outcome of the review. Both applicants are long serving career
policeman, who on the face of it
are more than capable of satisfying
the requirements of the posts to which they have been transferred
even should such transfer
be short lived.
In the absence of having established in their founding affidavits
that they will suffer irreparable harm if their transfer is
not set
aside pending the review of the decision or if they are required to
take up the positions to which they have been transferred
to, the
threat of withholding their salaries falls away as the papers
establish that this threat was only made in the face of
a refusal by
the applicants to take up the posts which they had been transferred.
In addition, it is also necessary to take into account in
considering urgency whether the applicants have any other
satisfactory
remedy. In this regard in addition to the applicants
pending application for the review of the decision to transfer them,
the
applicants are entitled to, but have not as yet, referred a
dispute concerning an unfair Labour practice to the bargaining
Council.
Had they done so at the time the decision to transfer them
had been made it is conceivable that the dispute would have been
conciliated
and if not arbitrated ripe for arbitration.
Ms Nel, who appeared for the applicants, argued that if an order
interdicting and restraining the respondents from permanently
appointing any other member or individual to the applicants’
erstwhile posts, the applicants would be prejudiced should
they
succeed in their application to review the decision to transfer
them. Ms Nel suggested that should any appointments be made
the
applicants would be required to join the newly appointed incumbents.
Given that the application is to set aside the transfer,
there is no
requirement to join any person who may have been appointed in the
interim. Any appointments made by the respondents
in the face of the
application to review and set aside the decision to transfer the
applicants would be made at the respondents’
peril.
In addition, Ms Nel raised the concern that an arbitrator
arbitrating the unfair labour practice enjoys the discretion to
determine
any unfair Labour practice dispute on terms which the
arbitrator seems reasonable which may include compensation for the
unfair
labour practice. Ms Nel was at pains to emphasise that the
application to review the transfer was a separate dispute from any
dispute involving an unfair labour practice. In the circumstances,
the applicants’ applications to review and set aside
the
decision to transfer them, should such applications succeed, simply
seek the restoration of the status
quo ante
and the
applicants would revert to the posts they previously occupied. Any
unfair labour practice would be dealt separately.
In summary, the interim relief which the applicants seek as a matter
of urgency involves four specific orders:
Firstly interdicting and restraining the respondents from
permanently appointing any other member/individual to their
erstwhile
posts;
Reinstating the applicants to their erstwhile posts;
Interdicting the respondents from stopping their salaries; and
Directing the respondents to accept the tender of the applicants’
services in their erstwhile posts.
I am not, in light of the above, satisfied that the applicants have
established that they are, as a matter of
urgency,
entitled
to any of the orders for interim relief that they seek. The
applicants’ applications to review and set aside the
decision
by the respondents to transfer them is pending and there is no bar
to the applicants expediting the application to review
the decision
to transfer them. It is also clear from the papers that the
applicants are at least considering referring a dispute
concerning
an alleged unfair practice regarding the actions of the respondents
in effecting the transfers.
As regard to costs, given the continuing employment relationship and
the fact that the review application is still pending I
am of the
opinion that it is fair that the costs of this matter be dealt with
as costs in the cause.
I accordingly make the following order:
The applicants’ urgent applications for interim relief pending
the outcome of the application to review the respondents’
decision to transfer are struck off the roll for want of urgency. The
costs are costs in the cause.
_______________________
D H Gush
Judge
APPEARANCES
FOR THE APPLICANT: Adv C A Nel
Instructed by Carl van der Merwe Attorneys.
FOR THE FIRST SECOND and THIRD
RESPONDENTS: Adv W Mokhari SC (with him M Zulu)
Instructed by The State Attorney