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[2013] ZALCJHB 43
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Vermaak v Taung Local Municipality (JR315/13) [2013] ZALCJHB 43 (12 March 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR315/13
In the matter between
VERMAAK, M
...........................................................................................................
Applicant
and
TAUNG LOCAL MUNICIPALITY
.........................................................................
Respondent
Heard: 12 March 2013
Delivered: 12 March 2013
_________________________________________________________
JUDGMENT
_________________________________________________________
MOSHOANA, AJ
This is an urgent application brought against various respondents.
In brief the facts of this matter are that the applicant Maartin
Phillip Vermaak was appointed as the chief financial officer of the
Greater Taung Local Municipality, effective 16 January 2012.
After a disciplinary hearing, which the applicant contends is
unlawful, the applicant was dismissed on 29 January 2013.
On 15 February 2013 the applicant launched this application.
On 25 February 2013 the applicant referred a dispute of alleged
unfair dismissal to the CCMA, which dispute is still pending
before
that forum.
In opposing the application, the respondents raised a number of
points
in limine
. The one argued before me, to which this
judgment relates, is one of lack of urgency. The contention of the
respondents are that
this application is not urgent and ought to be
struck off the roll on that basis alone.
It is important to mention at this stage that urgency is a matter
for discretion, which ought to be exercised judiciously. Rule
8 of
the rules of this court provides that in an application brought on
an urgent basis, a party seeking an urgent relief ought
to set out
the reasons why an urgent relief is necessary.
Mr Olua, appearing for the respondents, argued that such reasons why
the matter should be entertained on an urgent basis are
absent,
therefore this Court ought to refuse as it were, to exercise its
discretion for hearing the matter.
I agree with Mr Ellis for the applicant that when it comes to
urgency there are two considerations, firstly whether the reasons
that makes the matter urgent, have been set out and secondly whether
the applicant seeking a relief will not obtain a substantial
relief
at a later stage.
The applicant before me deals with urgency as contemplated in rule 8
of the rules of this court, in paragraph 18 of the founding
affidavit which reads:
‘
I
received a dismissal letter on 29 January 2013. I also referred an
unfair labour practice dispute relating to my unfair suspension,
to
the CCMA, which dispute was set down for con-arb proceedings in
Vryberg on 31 January 2013. My legal representatives had to
prepare
for the proceedings and could not attend to the present application
at an earlier stage. The first available date for consultation
with
my legal representatives in Pretoria was on Thursday 07 February
2013. Counsel was involved in a trial in the Johannesburg
High Court,
which was only finalised on Wednesday, 06 February 2013. I duly
handed them copies of all the relevant documentation
in my
possession, and instructed them to prepare the present application on
an urgent basis. The application was prepared over
the weekend of 08
February 2013, and I was presented with a draft application on
Monday, 11 February 2013. The application was
finally settled on
Tuesday, 12 February 2013. It is humbly submitted that I have taken
all reasonable steps in the preparation
of the application on an
urgent basis, and the delay in bringing the application is not
unreasonable under the circumstances. The
respondents are provided
sufficient time and opportunity to prepare for their response to the
application, and they cannot claim
any prejudice as a result of this
application being brought on an urgent basis. My post was already
advertised in the Rapport newspaper
on 03 February 2013, a copy of
the advertisement is annexed hereto as Annexure 'L'. I submit that I
would not be able to obtain
appropriate relief if this matter is only
heard in the normal course, since by the time the application would
be enrolled a new
appointment will most likely have been made.’
It is clear from the above quoted evidence that what the applicant
tells the Court is simply the reasons why he delayed in launching
the application on an urgent basis.
However, what a party is required to deal with is the reasons why an
urgent relief is necessary. When I raised this issue with
Mr Ellis,
he then referred me in particular to the date of 03 February 2013,
which is the date on which the post was advertised,
and contended as
already alleged in the founding papers, that if the position is
filled the applicant will be without a relief
of reinstatement as it
were.
The consideration of the first requirement being why is the relief
necessary today and not tomorrow, requires a Court to be placed
in a
position where the Court must appreciate that if it does not issue a
relief as a matter of urgency, something is likely
to happen. By way
of an example if the Court were not to issue an injunction, some
unlawful act is likely to happen at a particular
stage and at a
particular date.
With the matter before me all I have is that if the relief is not
granted as it were, today, since an application would not be
enrolled in the normal course much earlier, by the time the
applicant comes to court an appointment would have been made. In
the
course of the submissions I drew Mr Ellis' attention to some
authorities of this court and the LAC, that an employer who
is faced
with a claim for unfair dismissal, if the employer fills that
position, albeit still under contention, it does so at
its own risk.
In any event, reinstatement is a primary remedy in terms of section
193 of the LRA, the Act sets out certain circumstances under
which
reinstatement would not be an appropriate remedy. The reasoning of
this Court and the Labour Appeal Court has always been
that the fact
that the position has been filled is not one of those circumstances
that will exclude the remedy of reinstatement
being awarded by this
Court and/or the CCMA.
Therefore in my view, the applicant has not set out in its papers,
or given the Court reasons why it should be assisted as quickly
as
today and not the other day.
What I had contemplated as I was hearing the matter was a relief to
the effect that if this Court does not interdict the filling
of the
post, the applicant would be somehow subjected to some form of
illegality.
I then inquired from Mr Ellis whether an interdict is being sought
in the papers, to stop the respondent to fill the post. He
informed
me that that was the case.
In reply he mentioned that the relief is implied in paragraphs 4 and
5 of the notice of motion. Paragraphs 4 and 5 of the notice
of
motion reads as follows:
‘
4.
That the applicant shall remain employed by the second respondent as
its chief financial officer on the terms and conditions
of employment
contained in the written contract of employment, Annexure 'A' to the
founding papers.
5. That the second respondent be
ordered to continue to give effect to the terms of the applicant's
written contract of employment,
Annexure 'A' to the founding papers
until such time as the contract of employment is lawfully
terminated.’
I cannot agree that out of those paragraphs it is implied that the
applicant is specifically seeking an injunction to fill in
the post.
As I had indicated to Mr Ellis that what would ordinarily happen,
which may happen, is as he is currently arguing in court, the
employer continues to fill in the post, running the same risk that
was contemplated in the judgments that I had referred to earlier.
There is nothing that would have stopped the respondents to do so
unless if there was a specific prayer in the papers seeking
an
injunction for them not to do so.
Reference was made to the decision of this court in the
IMATU v
The Department of Health
1
where my brother Molahlehi J had dismissed an application that was
seeking an interim relief. At paragraph 23 of the judgment
he said
the following:
‘…
.
In the same way as the first application this matter turns on two
aspects of the requirements of urgency which are interrelated.
The
first issue is whether, the facts as presented mainly by the
applicants support the contention that the matter is urgent and
therefore justify jumping the queue. The second aspect which is also
an aspect of the urgency concerns the issue of whether there
are no
other satisfactory remedies available to the applicants in the event
that the respondents effect the transfer in contravention
of the
provisions of section 197 of the LRA.’
At paragraph 24
2
the learned judge went further to state:
‘
In my
view, this matter is not urgent firstly because the applicants have
been aware for the past three years what the intentions
and plans of
the respondents were regarding the transfer of the health services to
the first respondent. And secondly, because
on their own version they
were already aware of the plans of the fifth and sixth respondents
since the meeting of the South African
Local Government Bargaining
Council (the “SALGBC”) which was held on 24 January 2010.
At that meeting the applicants
raised their concerns about the stand
taken by the two respondents but did nothing since then until the
launch of their first application.’
Regarding the applicant's views of alleged unlawfulness, it is clear
from the papers that the applicant was at all times aware
of what
was happening, and to the point that he held a view that the
employer was busy with an unlawful action. The question
is why did
he not approach the court then to interdict the alleged and apparent
unlawful action?
Mr Ellis for the applicant contended, rightly so, that this Court is
loath to intervene in incomplete proceedings. However, the
LAC, in
the
Booysens
judgment made it very clear that unless a party
shows exceptional circumstances, this Court has no powers to
intervene. In one
of the recent judgments of this court it was
pointed out that unlawfulness or continuation thereof serves as
exceptional circumstances
for this Court to intervene.
In my view the applicant ought to have, if there was any
unlawfulness, taken steps. The fact that he did nothing until 15
February
2013 counts against him.
On 03 February 2013 he becomes aware of another angle that will
affect his relief in the long-run, that is the filling of the
post.
He does nothing until 07 February when he went to consult the legal
team. More so he does not seek to interdict the filling
of the post,
that part of the relief, in my mind, if it was specifically sought,
might have been perhaps urgent. I do not agree
that that kind of
relief ought to be implied from paragraphs 4 and 5.
The applicant finds himself in the same position as millions of
employees who are dismissed, whether fairly, unfairly or lawfully
or
unlawfully, on a daily basis. The question is what makes the
applicant special to have his case determined quickly. That is
the
reason why rule 8 requires a party to set out the reasons why the
relief is necessary. His relief is still there on another
day, like
millions of dismissed employees. The fact that the applicant chose
to peg his claim as one of unlawfulness as opposed
to unfairness is
of no moment.
In the premises I am not persuaded that the application is urgent.
That brings me to the question of costs. Mr Olua had pressed
on me
to make a costs order at a punitive scale. The reason behind that
being that the applicant was warned in advance. To my
mind this
application was ill-conceived. The applicant had already sought a
remedy in another forum, the CCMA, as to why he came
to this court,
albeit under the banner of unlawful dismissal, it baffles me.
I know that I am not to deal with the merits of the other points
raised, and I have read the heads filed by the applicant's counsel
with care. I do not believe that the applicant is to be considered
at any different level than any employee who had been dismissed.
The
Fedlife
judgment that has been relied on, its position
was properly clarified in the
McKenzie
judgment by the
Supreme Court of Appeal, that the only relief a party facing
dismissal has is the one in the LRA. Besides
Fedlife
dealt
with a fixed term contract whereas in this matter the applicant was
a permanent employee.
En passant
I must just mention that the alleged unlawfulness
by the applicant is doubted. In any event as I am considering the
matter on
the basis of whether there is urgency, it might be an
issue for another court at another time.
In the result I make the following order:
1. The application is struck off the roll.
2. The applicant is to pay the respondents' costs on attorney and own
client scale.
_________________
Moshoana, AJ
Acting Judge of the Labour Court
Appearances
For the Applicant: P Ellis SC
Instructed by: Nislen Steenkamp & Koen Inc
For the Respondent: A Olua
Instructed by: Phungo Attorneys Inc
1
2011
(4) BLLR 366
(LC)
2
id
para 24