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[2013] ZALCJHB 353
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Motitswe v City of Tshwane (J 88/2013) [2013] ZALCJHB 353; (2014) 35 ILJ 3458 (LC) (24 January 2013)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
Case no: J 88/2013
DATE: 24 JANUARY 2013
Of interest to other
Judges
In the matter between:
MOTITSWE BENJAMIN P
BENNITO
.................................................................................
Applicant
V
CITY OF
TSHWANE
............................................................................................................
Respondent
Heard: 24 January 2013
Delivered: 24 January 2013
Summary: (Urgent-opposed-Application to
uplift suspension - requirements for interim relief not met -
Counter-application-to declare
employment contract and appointment to
have lapsed - struck off for lack of urgency).
REASONS FOR JUDGMENT
LAGRANGE. J
Introduction
[1] The first application in this
matter was brought on an urgent basis to uplift the applicant's
suspension of service on 11 January
2013 by the respondent
municipality, on an interim basis, pending the determination of an
unfair labour practice dispute concerning
the alleged unfair
suspension, which was referred to the CCMA on 17 January 2013. This
application was launched at the same time.
[2] On the day of the hearing, the
respondent launched a counter application, unsupported by a founding
affidavit, asking the court
to declare that the applicant's
appointment as the Executive Head: Strategic Administrative Support
Services had lapsed because
no performance agreement had been
concluded within 90 days of the commencement of his duties on 1 July
2012. The respondent argued
that the conclusion of such an agreement
was a suspensive condition of the applicant’s employment
contract and if it was
not concluded the contract could not come into
effect, which would result in the lapsing of his appointment.
[3] After considering the matter and
hearing both parties representatives, I made an order dismissing the
applicant’s application
to uplift his suspension pending the
outcome of CCMA proceedings and struck off the counter application
for lack of urgency. My
brief reasons for the order of set out below.
The counter application
[4] The only reason this application
was brought was an attempt to thwart the main application to set
aside the applicant’s
suspension. It was brought on almost no
notice and it had previously done nothing at all to act on its
alleged entitlement to treat
the appointment as if it had lapsed even
though it could have done so since October 2012 on its own version.
In the circumstances,
whatever the substantial merits of this claim
might be, the respondent had woefully failed to demonstrate any good
reason why it
should be determined on an urgent basis: expedience
alone cannot justify urgency. Hence, the counter application was
struck of
the roll for lack of urgency.
The main application
[5] In Setlogelo v Setlogelo
1914 AD
221
at 227 the general requisites for obtaining urgent interim relief
were that the applicant must demonstrate (a) a clear right which,
'though prima facie established, is open to some doubt'; (b) a well
grounded apprehension of irreparable injury; (c) the absence
of an
ordinary remedy. In exercising its discretion the Court weighs, inter
alia, the prejudice to the applicant, if the interdict
is withheld,
against the prejudice to the respondent if it is granted, which is
referred to as the balance of convenience.
[6] The applicant maintained that he
was subject to the provisions of Regulation 6 of the Disciplinary
Regulations for Senior Managers
issued in terms of the Municipal
Systems Act, 32 of 2000. However the respondent maintained that he
was not a senior manager contemplated
by section 56 of the Systems
act because he was not directly accountable to the municipal manager,
which is a pre-requisite for
appointments in terms of that section.
At the very least, there was some serious doubt whether the applicant
could rely on the
disciplinary regulations.
[7] Secondly, it is not disputed that
when he was issued with a notice of the respondent’s intention
to suspend him he made
no attempt to make representations at the time
why he should not be suspended. Thus, despite not making use of
alternative processes
available to him to avoid his suspension, he
asked the court to intervene.
[8] From the e-mail correspondence
between the applicant and his line manager, Mr Matsena, it is
apparent that the applicant engaged
his superior in a combative
manner, which tends to suggest that the applicant’s presence at
work pending the enquiry might
have entailed a risk of a volatile
situation developing between them. The prejudice to the applicant of
not been allowed to work
pending the enquiry in the event that he
succeeded in having his suspension overturned at the bargaining
Council, in my mind was
outweighed by the potential prejudice of him
remaining at work, even if the employer successfully defended its
decision to suspend
him.
[9] In short, I am not satisfied that
the applicant had established a prima facie right to be suspended in
accordance with the regulations.
Moreover, he made no effort to make
representations to avoid his suspension, when he had the opportunity
to do so, thereby abandoning
an alternative remedy available to him.
He ought at least to have tried that alternative before approaching
this court. Lastly,
the balance of convenience favoured the
respondent party.
R LAGRANGE, J
Judge of the Labour Court of South
Africa
11 March 2013
APPEARANCES
FIRST RESPONDENT: K Tsatsawane
Instructed by Gildenhuys Malatji