About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2013
>>
[2013] ZALCJHB 34
|
|
SAMWU obo Nemo and Others v Mopani District Municipality (J3047/12) [2013] ZALCJHB 34 (9 April 2013)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: J3047/12
In
the matter between:
SAMWU
OBO NEMO AND 717 OTHERS
...........................................................
Applicant
and
MOPANI
DISTRICT MUNICIPALITY
...............................................................
Respondent
Heard: 23 November
2012
Delivered: 09 April
2013
Summary: Applicants
urgent application to interdict the respondent from short-listing,
interviewing, approvals to appoint and appointments.
Respondent
taking objection to authority of deponent to depose to the founding
affidavit. Requirements of authorisation by an artificial
entity.
Rule 7(1) of the High Court Rules approach should be used. Rule 11 of
the Labour Court is a “catch-all” –
it contemplates
interlocutory applications, incidental to proceedings already
instituted. The Court itself is given extensive powers
to act as sees
fit or to adopt appropriate procedures in situations for which the
Rules make no specific provisions.
______________________________________________________________________
JUDGMENT
KUMALO,
AJ
[1] On 20 November 2012
in an urgent application to interdict the respondents I granted in an
ex tempore judgment an order on an
urgent basis:
1.2. The respondent is
interdicted from short listing or conducting interviews pertaining to
the posts listed in Annexure B to the
application;
1.3. In the event that
interviews have already been conducted at the time of the hearing of
this application, the respondent is
interdicted from appointing the
interviewed candidates;
1.4. The respondent is
ordered to re-advertise the post listed in Annexure B specifically
those posts which have not been filled,
within 30 days of the
granting of this order, in line with the terms of the Respondent’s
Personnel Provisioning Policy;
1.5. The advertisement
should assure those persons who have already applied for positions
before 28 October 2011 that they need
not apply again as the
respondent has their details on its database and their applications
are still being considered. The advertisement
is intended to invite
new applications from persons who had not applied before 28 October
2011;
1.6 The respondent shall
pay the Applicants’ costs of the application.
[2] The applicant now
appeals against this order on the following grounds:
‘
1. The Court erred
in finding that the applicant had demonstrated that its application
was urgent and that the application should
not have been struck off
the roll.
2. The court erred in
finding that the deponent to the applicant’s founding affidavit
was duly authorized to act on behalf
of SAMWU.
3. The court erred in
finding that the Labour Court had jurisdiction to order the relief
sought by the applicant.
4. The court erred in
determining that the applicant had a clear right to the relief sought
and that it had satisfied the requirements
of an interdict.
5. The court erred in not
upholding the respondent’s contention that affected candidates
should have been joined to the proceedings.
In the absence of such
joinder the application was fatally defective.
6. The court erred in
ordering the respondent to pay the applicant’s costs.”
Applicant’s
urgent application
[3] On the 16 November
2012, the applicant launched an urgent application which was heard on
the 20 November 2012, seeking an order
to interdict the respondent in
the terms of the application, as set out in paragraph [1] above.
[4] The applicant is the
South African Municipal Workers Union (SAMWU), an established trade
union in terms of the
Labour Relations Act No 66 of 1995
, acting on
behalf of Nemo C, a
shopsteward
of SAMWU
and 717 other members in the employment of the respondent
municipality.
[5] In about October
2011, the respondent placed an advertisement in terms of its
recruitment policy in local and national newspapers
for vacant staff
positions numbering about 80 positions ranging from senior
management, middle management, COO (contractual), engineering
technicians (water service), energy coordinator (village
electrification), fire officers, secretaries, clerks, accountant
(revenue),
data capturer, protocol officer.
[6] The closing or
cut-off date by which qualifying applicant’s applications had
to be submitted was 28 October 2011.
[7] The main grievance of
the applicant is that more than a year after the closing date the
respondent had not yet completed the
short listing, the interviews,
the recommendations and appointments. As an example, the applicant
states that on or about 09 November
2012, it received an invitation
to attend a short listing meeting to take place on 12 November 2012
to short list candidates for
interviews for positions of (i) Risk
Based Audit; (ii) Manager: Internal Audit; (iii) A&D Monitoring
Reporting; (iv) Protocol
Officer; (vi) Body Guard. The applicant
contends that making appointments more than a year after the closing
date of 28 October
2011 is severely prejudicing the applicant’s
members, as well as the general public for the following reasons:
7.1. there are members of
the applicant who did not meet the job qualifications and
requirements for particular jobs on the closing
date and therefore
did not apply. Those members however had during the past year
obtained qualifications and experience relevant
to the jobs. Due to
the closing date having been fixed at 28 November 2011 but interviews
being conducted now, they are excluded
from participating in the
recruitment process;
7.2. the same applies to
members of the general public who did not qualify to apply for a
particular job but have now the required
job qualifications and
skills to apply for a particular position;
7.3. the advertisement
stated ‘should you not receive any response within one month
after the closing date, regard your application
as unsuccessful’.
A job applicant who qualified for a job but did not get any response
by the closing date would regard his/her
application as being
unsuccessful and look elsewhere for employment, an extra burden for
the job seeker; would not have an expectation
to be called by the
respondent; would go outside Limpopo province or South Africa to seek
employment; would even change or lose
his/her contact details and
respondent would not be able to reach him/her. Thus he or she would
have lost a good employment opportunity.
7.4. The above practice
is open to nepotism and favoritism as the respondent may have
deliberately closed applications on 28 October
2011 and do interviews
in November 2012 so as to reserve the positions for its friends or
relatives who were not able to take employment
with respondent in
2011 or early 2012 for various reasons. So the applicant submits.
7.5. Finally, the
applicant submits that this practice is contrary to
section
195(1)(a)(g)(h)(i)
and (2)(a) of the LRA and therefore falls to be
interdicted. Further it would only be fair if the positions are
re-advertised.
[8] In order to bring the
urgent application, Mr Nemo being a shopsteward had to contact the
Provincial Secretary of SAMWU to get
instructions but the latter was
away from 09 November 2012 until 12 November 2012. The Secretary gave
authorisation to launch the
application and Mr Mashabana travelled to
Pretoria for consultations on the 13 and 14 November 2012 to prepare
for this application.
And so the urgency was not self-created
according to the applicant.
[9] The applicant submits
that as a recognised trade union it has a clear right to attend the
short listing and interviews in order
to observe that the whole
recruitment process is just, fair and also in compliance with the
Respondent’s Recruitment Policy.
9.2. As an observer the
applicant has a right to blow the whistle when there is an
irregularity in the recruitment process.
9.3. The applicant’s
members are entitled to apply for the positions they are qualified to
be considered for appointment and
they qualify for those positions.
9.4. The applicant’s
members as well as members of the public have the right to fair
labour practice as entrenched in Section
23 of the Constitution.
9.5. The applicant,
acting on behalf of its members, has a right to approach this court
to seek an order which will compel re-advertisement
of the posts and
also to ask for an order to stop short listing, interviews and
appointment of candidates on posts which must be
re-advertised
because of lapse of time.
[10] The applicant
submits that should the application not be granted, the applicant’s
members and members of the public will
suffer irreparable harm for
the following reasons:
10.1. Members of the
applicant’s trade union who did not have the qualifications and
experience for posts that they would
have liked to apply for, now
possess the required qualifications and skill for particular posts
but are unable to apply and be
considered as the closing date was
more than a year ago but short listings are only taking place now.
10.2. The applicant’s
competent members will not be given an opportunity to compete with
candidates who submitted CVs more
than a year and have lost an
employment opportunity.
10.3. The same conduct
may happen in future and the applicant’s members would again
suffer.
10.4 Nepotism may
manifest itself and competent and qualifying candidates would be
excluded.
[11] If this application
is granted, the process shall start afresh and the applicant’s
members as well as the public at large
will be given a fair chance to
form part of a pool of candidates within which competent job
candidates will be selected. Furthermore,
potential nepotism would be
averted.
[12] The balance of
convenience favours the applicant more than the respondent in that:
12.1. If this application
is granted, the process shall start afresh and the applicant’s
members as well as the public at
large will be given a fair chance to
form part of a pool of candidates within which competent job
candidates will be selected.
Furthermore, potential nepotism would be
averted.
12.2. Should the
application not be granted, competent and skilled members who did not
apply more than a year ago will not have
a chance to compete with
other job applicants. The respondent on the other hand will proceed
with short listing and interview of
candidates on adverts which have
lapsed because of the passage of time.
[13] The applicant has no
other alternative remedy than to approach the Honourable Court
through this application.
13.1. The issues before
this court cannot be referred to the Bargaining Council as it has no
jurisdiction to provide the relief
sought in the notice of motion.
[14] The respondent has
filed an answering affidavit in which it makes the following
submissions
in limine:
14.1. that the
application is fatally flawed and stands to be dismissed in that on
the face of the Notice of Motion , Mopani District
Municipality is
reflected as the Respondent whilst in paragraph 2.2 of the Founding
Affidavit the applicant describes the respondent
as Giyani District
Municipality. Mopani District Municipality is a juristic person
established in terms of the Section 12 Notice
read with the
provisions of the
Local Government: Municipal Structures Act 117 of
1998
, as amended. The entity called Giyani District Municipality is
unknown to the deponent and therefore the application is defective;
14.2. that the persons
referred to in prayers 3.1 and 3.2 of the Notice of Motion, ie
persons already short listed and due to attend
interviews for posts
in annexure B of applicant’s Founding Affidavit and persons
already interviewed who have been successful
and are due to be
appointed by respondent have a direct interest on the outcome of the
application as an order is sought interdicting
the respondent from
effecting their appointments or interviewing them, as the case may
be. Further, such persons who have a direct
interest in the
applicant’s application, also have a Constitutional right to
fair labour practices which in this instance
require that they be
interviewed after having been short listed or be appointed after
having been recommended for appointment,
as the case may be, the
applicant has failed to join any of the said persons despite seeking
relief which has a direct negative
impact on their Constitutional
rights if granted.
14.2.1. It is remarkable
that the applicant having attended short-listings and interviews on
30 July 2012, 07 August 2012, 03 October
2012 for various positions
referred to in annexure B of its Founding Affidavit and being aware
of who the short-listed and the
recommended candidates for
appointments are, still did not join them to the proceedings. This
non-joinder of the persons who are
directly affected by the order of
this court renders the applicant’s application fatal and it
ought to be dismissed. So the
respondent contends.
14.2.2. Applicant has not
made out a case for urgency and/or the alleged urgency is
self-created and does not justify relaxation
of the Rules of the
Honourable Court in this instance. Applicant has been aware that
respondent is continuing to short-list and
interview candidates based
on the advertisement which is annexure B to it Notice of Motion.
14.2.3. Furthermore,
applicant attended the interviews and exercised observer status for
the various positions which are based on
the same advertisement on
the dates mentioned in paragraph 14.2.1 above.
14.2.4. Applicant has
therefore been aware on the dates mentioned above that the respondent
is continuing to short-list, interview
and recommend appointments of
candidates based on the advertisement which is annexure B to its
application even prior to 09 November
2012. Applicant never objected
to any of the aforesaid short-listings and/or interviews for the
reasons mentioned in its Notice
of Motion ie the respondent took too
long to short-list and interview and its members have since the
cut-off date qualified for
the positions.
Respondent’s
submissions
[15] The respondent’s
submissions in support of its grounds of appeal can be briefly
summarised as follows:
15.1. The respondent’s
advertisement for its staff vacancies attracted 31,188 applications
by the cut-off closing date of
28 October 2011. Due to the sheer
large number of applications that the Corporate Services Sector had
to sort those that qualified
to be shortlisted, interviewed,
recommended for appointment and appointed took a long time and was
interrupted by the festive season.
Hence the first appointment of an
Assistant Water Services Technician (Satellite Manager) was on 21
January 2012 to begin on 01
March 2012. The second appointment of the
Manager: Legal: Department: Director Corporate Services on a five
year contract to commence
on 01 March 2012. The third appointment of
Secretary: Executive Mayor’s Office was on 24 January 2012 to
commence on 01 February
2012. On 07 February 2012 Assistant Director:
Infrastructure Planning: Department: Director Engineering Services to
commence on
01 March 2012.
15.2. What is of
importance to note about these appointments was that the union
representatives of the applicant were notified of
the dates of the
interviews of the above mentioned candidates as well as their names
and attended on all the occasions as observers.
There were never any
complaints that the short listing, interviews and appointments were
late or that the whole process was slow.
15.3. On the 08 June
2012, the applicant was notified and invited to attend the short
listing proceedings and interviews scheduled
for 30 July 2012 for
positions of EPWP Coordinator; Traditional Affairs: Children and
Elderly Coordinator; Energy Coordinator.
Mr CS Nemo attended on
behalf of the applicant. There were five candidates to be interviewed
that day. On 08 June 2012, the applicant
was invited to attend the
interview for the Municipal Manager vacancy to be held on 15 June
2012.
15.4. The respondent has
short-listed, interviewed and recommended candidates for the
positions of EPWP Coordinator; Traditional
Affairs Coordinator as
well as six Call Centre Operators. The said interviews took place on
the 07 August 2012 and 03 October 2012,
respectively. Mr S Mashabana
represented the applicant in the interviews on 07 August 2012 while
Mr M Mafumo represented applicant
on 03 October 2012 interview.
Applicant is, therefore, fully aware that there are recommended
candidates whose appointments are
pending.
15.5. Furthermore,
applicant was invited for interviews for the positions of:
Organisational Development and Work Study Officer
to take place on 24
August 2012; Divisional Officer Fire Prevention: Training of Fire
Fighting Officers scheduled for the 29 August
2012. The applicant is
thus fully aware of the said interviews, recommendations are pending
in this regard.
15.6. On 09 October 2012,
the applicant was invited for the interviews for the position of
Leading Fire Fighter scheduled for 10
October 2012. The applicant is
also aware that respondent is proceeding to short-list the remaining
candidates for the remaining
vacant positions appearing on annexure B
and will conduct interviews soon.
15.8. The applicant’s
representatives attended the short-listing and interview meetings
referred to in the above paragraphs.
The applicant is, therefore,
being disingenuous and merely attempting to mislead the court in
alleging in paragraphs 5.3 and 5.4
of their founding affidavit that
no interviews were conducted for positions listed in annexure B and
advertised in October 2011.
[16] Furthermore, the
respondent council contends that the applicant’s members were
involved in illegal and unprotected strike
on 13 to 15 March 2012
which disrupted the operations of the respondent. The said strike
only stopped after the said members and
the applicant’s
Provincial Office were served with an ultimatum.
[17] During March 2012,
the applicant launched an urgent application in the Labour Court in
case number J786/12 to interdict interviews
from taking place which
respondent had scheduled in respect of the positions annexure B on
the ground that it had not been invited,
though in fact it had been.
The matter was settled on the basis that applicant should be issued
with another invitation to the
interviews in order to avoid delay.
However, this led to the postponement of the said interviews.
[18] During May 2012 the
applicant’s members embarked on an illegal and unprotected
strike which disrupted respondent’s
operations. Respondent
engaged its attorney of record to interdict the said illegal strike.
The attorneys required a lot of information
such as the names of
applicant’s members, their work stations, attendance registers
during the strike which information could
only be furnished by
employees in the Corporate Services Department. Since the said
Department had only a skeleton staff due to
the illegal and
unprotected strike, the Acting Director: Corporate Services utilised
all available employees including the ones
who deal with the
recruitment for positions in annexure B to assist to collate all the
information required by the attorneys as
well as managing the strike.
The Labour Court once again found against applicant and interdicted
the illegal and unprotected strike
with costs in case number
J1085/12. This, however, delayed the process of arranging and holding
meetings for the short-listing
and interviews for the positions in
annexure B.
[19] During June 2012,
applicant served respondent with a Notice of Motion in case number
J1516/12 to interdict the respondent from
conducting interviews for
the position of Municipal Manager. Respondent’s employees who
co-ordinate interviews for positions
in annexure B had to stop those
arrangements and focus on providing information and records to enable
respondent’s attorneys
to oppose applicant’s notice of
motion. Applicant lost the said application and was ordered to pay
respondent’s costs.
[20] Based on the
aforegoing,
the
respondent submits that contrary to the wrong impression which the
applicant is trying to create that the respondent deliberately
did
not interview and appoint candidates in annexure B since October
2011, it is evident that respondent has taken steps to finalise
the
said recruitment given the constraints and the disruptions as
outlined above which it had to cope with.
Legal framework
Test for leave to
appeal
[21] It is trite that the
test of whether to grant or refuse leave to appeal is whether there
are reasonable prospects that another
court may come to a different
conclusion. In
National
Union of Metal Workers of South Africa v Jumbo Products CC
,
1
per Corbett CJ, with
reference to
S
v Ackerman en ‘n Ander
2
and
Botes
and Another v Nedbank Ltd
3
formulated the criterion
to be applied in an application for leave to appeal as follows:
‘…
the enquiry is whether
there are reasonable prospects of success i.e. whether there is a
reasonable prospect that the Court of Appeal
may take a different
view and hold the trial Judge that another Court may come to a
different conclusion.’
[See also
North East
Coast Forests v SAAPWAPU and Others
(1997) 18 ILJ 729 (LC);
NEWU
v E LMK Manufacturing (Pty) Ltd and Others
[1997] 7 BLLR 901
(LC);
Ngcobo v Tente Casters (Pty) Ltd
(2002) 23 ILJ 1442
(LC)]
[22] In the case
in
casu,
the
respondent relies on six grounds of appeal. I will consider them in
the order in which they were raised.
Lack of urgency
[23] The basis for
allowing parties to dispense with the Rules of Court relating to time
periods is to prevent the occasioning of
an injustice, and involves
the balancing of this consideration with that of the rights of
parties to a considered opportunity to
place their cases before the
court.
4
[24] On 9 November 2012,
the respondent issued the
applicant with an invitation to attend a shortlisting meeting which
was to take place on 12 November 2012.
The founding affidavit for the
urgent application was deposed to on 16 November 2012, after
authorisation had been given by the
Provincial Secretary of the
Union.
[25] The time from when
the triggering event occurred and the launching of the application
did not display any dilatoriness on the
part of the applicant.
[26] Respondent argues
that since the last interview process of October 2012, the applicant
should have brought the urgent application
before another interview
process was scheduled. This argument ignores the central complaint of
the applicants, that only once the
delay in the interviews became
excessive, did it become necessary to bring the application.
[27] If the interdict was
not granted by way of urgent application, but instead of the normal
time period, by the time the application
would have been heard, the
appointments would have been made.
[28] The respondent was
afforded a considered opportunity to place their case before the
court, and the circumstances justified
the matter to be deemed
urgent. The respondent did not complain of or request a postponement
in order to fully deal with the matter,
the respondent was satisfied
with the answering affidavit that it filled at the time. Furthermore,
the matter before the
court was a crisp and simple one, and,
therefore,
the time periods provided
were sufficient. The applicants would not have been afforded
substantial relief at a hearing in due course,
if the matter had not
been heard as a matter of urgency.
Authorised to act
[29]
In
the matter of the ANC Umvoti Coucil Caucus and Others v Umvoti
Municipality
,
5
it was held:
‘
[24] …while the deponent
made the averment that he was satisfied that he was authorized to
make the affidavit, Fleming DJP
held that, because the application
was delivered under the name and signature of an attorney, there was
no need to rely on proof
that someone other than an attorney was also
authorized. He went on to hold that authority had to be challenged on
the level of
whether that attorney in fact held empowerment. He made
no findings concerning the averments in the affidavits relating to
authority.
His dealings with the manner in which to challenge
authority were therefore not obiter.
[25] In
Gane’s
case an
attorney had put up an affidavit, together with the notice of motion,
confirming his authority to represent the respondent.
The court
accepted that the proceedings had been authorized. Since the
appellants did not avail themselves of the procedure provided
in
rule
7
, no challenge to the authority of the attorney had been made, even
though a challenge was made to the authority of the deponent
to the
founding affidavit, who was not the attorney. This case therefore
also held that it is the authority of an attorney which
must be
challenged, and this must be done in terms of
rule 7(1).
[26] In the
Unlawful Occupiers
case Brand JA, after stating that the procedure of dealing with
authority on the affidavits should not be adopted, said:
“
All this culminated in the
following question: Is it conceivable that an application of this
magnitude could have been launched
on behalf of the Municipality with
the knowledge of but against the advice of own director of legal
services? The answer can, in
my view, be answered only in the
negative”’
In the context of the judgment Brand
JA was, in making these comments, demonstrating, as one of the
reasons for his earlier support
of the procedure of using
rule 7(1)
,
the futility of wasting time and costs in the application when the
rule 7(1)
procedure had been available. In other words, this is not a
finding on the papers which renders the dictum obiter, it is a
further
example of why he supports the approach of Flemming DJP
endorsed earlier. Brand JA could not have put it more plainly than to
say
that ‘a party who wishes to raise the issue of authority
should not adopt the procedure followed by the appellants in this
matter’. He clearly endorsed as correct the statement by
Fleming DJP that the rule- maker had made a policy decision that
rule
7(1)
must be used to challenge authority. This is therefore binding
authority for the procedure. I therefore consider that this court
is
bound by these decisions.
[27] Even if these dicta are obiter,
they have strong persuasive force, given that they emanate from or
are endorsed by the Supreme
Court of Appeal, as well as their clear
and unequivocal nature. With respect, the reasoning in these cases
also appears to me to
accord with sound legal principle. The deponent
to an affidavit is merely a witness, as was pointed out by Streicher
JA in Gane’s
case. It is the attorney of a litigant who, by
signing a notice of motion and issuing application papers, signifies
that that attorney
has been authorized to initiate the application on
behalf of the named litigant. Whether or not the litigation has been
properly
authorized by the artificial person named as the litigant
should not be dealt with by means of evidence led in the application.
If clarity is required, it should be obtained by means of
rule 7(1)
,
since this is a procedure which safeguards the interests of both
parties. It frees the applicant from having to produce proof
of what
may not be in issue, thus saving an inordinate waste of time and
expense in ‘the many resolutions, delegations and
substitutions
still attached to applications’.
16
It protects a
respondent in that, once the challenge is made in terms of
rule 7(1)
,
no further steps may be taken by the applicant unless the attorney
satisfies the court that he or she is so authorized. Of course,
if
the challenge is to the authority of the respondent’s attorney
in an application, these comments apply equally, but for
the opposite
reasons.
[28] I am therefore of the view that
the position has changed, since Watermeyer J set out the approach in
the Merino Ko-operasie
Bpk case. The position now is that, absent a
specific challenge by way of
rule 7(1)
, ‘the mere presence of
the notice of motion by an attorney and the fact that the proceedings
purport to be brought in the
name of the applicant’ is
sufficient. It is further my view that the application papers are not
the correct context in which
to determine whether an applicant which
is an artificial person has authorized the initiation of application
proceedings.
Rule 7(1)
must be used. This means that I disagree with
Mr Gajoo’s submission that
rule 7(1)
provides only one possible
procedure and that, if a respondent elects to challenge the matter of
authority on the application papers,
the applicant is required to
prove such authority on the papers.
[29] There was no challenge in terms
of
rule 7(1)
in the application which is the subject of this appeal.
The appropriate procedure was therefore not used by the appellants.
It
was accordingly not necessary for the applicant to prove the
authority to initiate the application, nor appropriate to attempt to
do so on the papers. It was also not necessary for the court a quo to
make a finding relating to authority on the affidavits delivered
in
the matter. Since there was no challenge in the required manner
required to the authority of the respondent’s authority
who
signed the notice of motion and initiated the application in the
accepted way, this court does not have to deal with the question
of
authority. I am therefore of the view that the appeal on this issue
must fail.’
[30]
Rule 11
of the
Labour Court is ‘in a sense a ‘catch all’
–
it contemplates
interlocutory applications; applications incidental to proceedings
already instituted and applications for direction
from the court. In
addition, the court itself is given extensive powers to act as it
sees fit or to adopt appropriate procedures
in situations for which
the rules make no specific provision.’
6
[31] The notice of motion
in this matter was signed by the applicant’s attorney and there
was no challenge in the required
manner to the authority of the
applicant’s attorney.
[32] Furthermore, the
attack on the authority of the deponent not being authorized in terms
of the applicant’s own constitution,
is merely a bald
allegation without substance. The deponent is the Provincial
Organiser and a Shopsteward for the respondent district
and he
attached a confirmatory affidavit.
Lack of jurisdiction
[33] In
Booysen
v Minister of Safety and Security and Others
,
7
it was held that:
‘
Section 157
of the LRA must be
interpreted as a whole to fully understand the intention of the
legislature. The majority in
Chirwa
held further that the concurrent jurisdiction provided for in
s
157(2)
of the Act is meant to extend the jurisdiction of the Labour
Court to employment matters that implicate constitutional matters.’
[34] The Labour Court has
jurisdiction to interdict any unfair conduct. In this matter,
I find that the conduct
of the respondent is unfair and,
accordingly,
this court has
jurisdiction to interdict the conduct.
[35] In the case of
DENOSA
on behalf of Van der Merwe v Department of Health and Social
Development
,
8
the applicant employee
had not been short-listed for a particular post, had lodged a
grievance and that that the respondent department
had given an
undertaking to grant the employee an opportunity to be interviewed
for the post. The department once again eliminated
the employee from
the short-list without conducting an interview. In an application for
an interdict to compel the department to
interview the employee for
the post, the court granted the interdict.
Satisfied the
requirement for an interdict
[36] The trade union and
their members demonstrated a clear right:
36.1 the union had the
right to attend the short-listings and interviews and observe if the
process was just and fair. This was
common cause between the parties.
36.2 the members had the
right to apply for the positions, and to ensure that the procedure
was just and fair.
[37] Section 23 of the
Constitution grants ‘everyone’ the right to fair labour
practices. The Labour Court has accepted
that the LRA’s
definition of ‘unfair labour practice’ is not necessarily
exhaustive; other forms may be recognised
under the broader
constitutional guarantee of fair labour practices.
9
[38] Unfair labour
practices are defined as follows in section 186(2) of the LRA:
‘
unfair labour practices means
any unfair act or omission that arises between an employer and an
employee involving-
Unfair conduct by the employer
relating to the
promotion,
demotion, probation (excluding
disputes about dismissals for a reason relating to probation) or
training of an employee or relating
to the provision of benefits to
the employee
.’
[39] The failure to allow
the applicant’s to apply for the positions would amount to an
unfair labour practice relating to
their promotion. It is not a
dispute of interest, but a dispute of right. Accordingly, the
applicants were entitled to the relief
I granted.
Non-joinder
[40] In the case of
Gordon
v Department of Health: KZN,
10
the SCA held that:
‘
[9] The court formulated the
approach as, first, to consider the third party would have
locus
standi
to claim relief
concerning the same subject matter, and then to examine whether a
situation could arise in which, because the third
party had not been
joined, any order the court might make would not be
res
judicata
against him,
entitling him to approach the courts again concerning the same
subject-matter and possibly obtain an order irreconcilable
with the
order made in the first instance. This has been found to mean that if
the order or ‘judgment sought cannot be sustained
and carried
into effect without necessarily prejudicing the interests’ of a
party or parties not joined in the proceedings,
then that party or
parties not joined in the proceedings then that party or parties have
a legal interest in the matter and must
be joined.’
[10] All the cases I have referred to
also illustrate the point that the order or judgment of the court is
relevant to the question
whether the party has a direct and
substantial interest in the subject-matter of any proceedings. It is
so that in the course of
its reasoning a court makes findings and
expresses views which do not form part of its judgment or order. An
example in point in
the employment arena concerns a potential finding
by a court that a successful appointee was not suitable for
appointment. The
‘unsuitable’ appointee has no legal
interest in the matter if the order will be directed at the employer
(the author
of the unsuitable appointment) to compensate the
‘suitable’ but unsuccessful applicant. Of course the
successful but
‘unsuitable’ appointee will always have an
interest in the order to confirm his/her suitability for the job but
this
is not a direct and substantial interest necessary to found a
basis for him or her to be joined in the proceedings. In a situation
where a number of applicants compete for a position, they provide
information to the prospective employer to influence the decision
in
their favour. That is as far as they can take it. Once the employer
selects from amongst them it is up to the employer to defend
its
decision if challenged. This is because the employer, as the
directing and controlling mind of the enterprise which is vested
with
the managerial prerogative to manage it, has a legal interest in the
confirmation of its decision as it faces a potential
order against
it. The successful appointee can only have a legal interest in the
proceedings where the decision to appoint him
is sought to be set
aside which lead to his removal from the post. He becomes a necessary
party to the proceedings because the
order cannot be carried into
effect without profoundly and substantially affecting his/her
interests.’
[41] In this matter, the
relief sought and granted does not affect the interviewed candidates
as they do not have a right to appointment
in law Furthermore, the
interviewed candidates would not have to be re-interviewed in terms
of the order granted.
[42] Finally, the
applicant was not aware of or could not have been aware of which
individuals have an interest, nor does the respondent
list the
individuals which it contends have a legal interest in the matter.
The respondent is, accordingly, the only party that
has a legal
interest in the matter, as defined by the relief granted.
[43] Accordingly, I make
the following order:
The application for
leave to appeal is dismissed.
The respondent is to pay
the applicant’s costs.
____________
Kumalo, AJ
Acting Judge of the
Labour Court
Appearances
:
For
the Applicant: Advocate Riaan Venter
Instructed
by: Maenetja Attorneys
For
the Respondent: Advocate W Hutchinson
Instructed
by: Lebea and Associates
1
[1996] ZASCA 87
;
1996
(4) SA 735
(A) at 742B.
2
1973
(1) SA 765
(A).
3
1983
(3) SA 27
(A) at 28D.
4
See
National Police Services Union v National Commissioner of the
National Police Services and Others
(1999) 20 ILJ 2408 (LC).
5
2010
(3) SA 31
(KZP).
6
See
Practice in the Labour Courts, Adolf A Landman, Andre van Niekerk
and mark Wesley, Revision Service 7, 2003, D-51.
7
(2011)
32 ILJ 112 (LAC) para 49.
8
(J1282/09)
[2010] ZALC 293
(30 August 2010)
.
9
See
Simelela and Others v MEC for Education, Province of the Eastern
Cape and Others
(2001) 22 ILJ 1688(LC) and
National Entitled
Workers Union v CCMA and Others
(2003) 24 ILJ 2335 (LC).
10
(2008)
29 ILJ 2535 (SCA) at paras 9-10.