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[2014] ZALCJHB 38
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Maqubela v South African Graduates Development Association and Others (J285/14) [2014] ZALCJHB 38; [2014] 6 BLLR 582 (LC); (2014) 35 ILJ 2479 (LC) (20 February 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: J285/14
THAMSANQA
MAQUBELA
Applicant
and
SOUTH AFRICAN
GRADUATES DEVELOPMENT
ASSOCIATION First
Respondent
KOOPEDI
BRIAN Second
Respondent
NKABINDE
VUKILE Third
Respondent
MONTSHIWHA
ELIZABETH Fourth
Respondent
Heard:
13 February 2014
Delivered:
20 February 2014
JUDGMENT
TLHOTLHALEMAJE, AJ
Introduction:
[1] The Applicant brought
this urgent application in terms of sections 77 (3), (4) and 77A of
the Basic Conditions of Employment
Act (The BCEA), read with sections
157 and 158 of the Labour Relations Act (The LRA), and further
with Rule 8 of the Rules
of this Court. He sought a
rule nisi
calling upon the Respondents to show cause why an order in the
following terms ought not be made;
1.1
The Resolution by the First Respondent’s Board on 6 February
2014 to suspend the Applicant
with immediate effect, is declared
invalid, unlawful, null and void and therefore set aside;
1.2
The Respondents are ordered to allow the Applicant to immediately
resume his duties as the
First Respondent’s Chief Executive
Officer.
Alternatively;
1.3
The Respondents are to allow the Applicant to resume his duties as
the First Respondent’s
Chief Executive Officer with immediate
effect pending the final adjudication of the unfair labour practice
dispute which the Applicant
referred to the Commission for
Conciliation Mediation and Arbitration in terms of the relevant
provisions of the
Labour Relations Act 66 of 1995
, read with the
relevant provisions of the
Protected Disclosures Act 26 of 2000
.
[2] In
the written heads of argument handed in on behalf of the Applicant,
it was submitted that the nature of the relief he sought
was in a
form of final relief, and that the interim relief was sought in the
alternative. These submissions were odd in view of
the Applicant’s
prayers as contained in the notice of motion, and also what he had
contended to be the nature of his case
and the relief he sought as
per his founding affidavit. It is trite that a party is bound by the
nature of the case it brought
before court. As Mogoeng J (as he then
was) held in
Betlane
v Shelly Court CC
[1]
,
one ought to stand or fall by one’s notice of motion and the
averments made in one’s founding affidavit. Inasmuch
as a case
cannot be made out in the replying affidavit for the first time, it
is axiomatic that a case cannot equally be made out
in a party’s
written heads of argument.
The parties:
[3] The Applicant is
currently employed by the First Respondent as its Chief Executive
Officer and by virtue of that position, he
is also an Executive
Director on its board. There is a dispute as to the date of his
employment. His contention was that he was
employed with effect from
1 November 2010, whilst the First Respondent’s contention was
that he was employed orally with
effect from 1 November 2011.
[4] The First Respondent
is a non-profit organisation which depends solely on donor funding,
and it was established in 1997. Its
objectives are to assist and
develop students and graduates to prepare for their entry into the
employment sector and to empower
them to actively participate in the
economy through high impact programs, viable partnerships and
research. The first Respondent’s
core operations aim to
facilitate the placement of unemployed graduates and students in the
workplace. It is registered as a Private
Employment Office in terms
of
Section 24
(3) (a) of the
Skills Development Act 97 of 1998
. The
Second Respondent (Koopedi) is the Chairperson of the First
Respondent’s board. The Third Respondent (Nkabinde) is its
Secretary, whilst the Fourth Respondent (Montshiwha) is its Board
Director. The Second to Fourth Respondents constitute members
of the
First Respondent’s Board.
The Applicant’s
submissions:
[5] The Applicant’s
case is that at the First Respondent’s board meeting held on
6 February 2014, a resolution
was adopted in his absence, in terms of
which it was decided to suspend him as its Chief Executive Officer
with immediate effect.
The Applicant submitted that the resolution
was invalid in that the issue of his suspension did not form part of
the agenda for
the Board Meeting which was to be held on 6 February
2014. Furthermore, the suspension was invalid and unlawful, bearing
in mind
that the resolution also effectively suspended him as a board
member. He further contended that the Board failed to adhere to the
audi alteram partem
principle, that the resolution to suspend
him was a breach of the
Companies Act 71 of 2008
, and the First
Respondent’s Articles of Incorporation and its applicable
Policies.
[6] The Applicant had
also submitted that at a Board meeting held on 7 November 2013, he
had made a protected disclosure as envisaged
in the Protected
Disclosures Act 27 of 2000 (The PDA). That disclosure concerned
certain financial improprieties within the administration
of the
First Respondent and he had implicated
inter alia
the Second
Respondent. On 3 February 2014, the Applicant had authorised the
First Respondent’s COO, Madika, to effect payment
of the
outstanding remuneration of four employees, including him. The
outstanding remuneration dated as far as 2010, and some of
the
employees, including him, had not received full remuneration in the
past years as a result of the First Respondent’s
financial
difficulties.
[7] The Applicant was
suspended on 6 February 2014 on the grounds that he had authorized
payment to himself from the First Respondent’s
account
unlawfully; that he had made the authorisation whilst being aware
that this was without authorisation of the First Respondent’s
Board; and for allowing his relationship with the First Respondent’s
Board to have deteriorated to the extent that it had
become
impossible to have meaningful meetings with him. Following his
suspension, he had on 10 February 2014, referred an alleged
unfair
labour practice dispute to the CCMA. He submitted that his suspension
was effected with ulterior motives, and that any intended
disciplinary proceedings constituted unfair conduct by the First
Respondent. The suspension also constituted an occupational detriment
in contravention of the PDA on account of him having made a protected
disclosure as defined in the PDA, and consequently, constituted
an
unfair labour practice.
The Respondents’
submissions:
[8] Koopedi, the
Chairperson of the First Respondent had in his answering affidavit,
averred that in his capacity, he had never
signed any employment
contract with the Applicant. The applicant was orally appointed as
the CEO of the First Respondent on 1 November
2011. There existed
therefore no written employment contract between the Applicant and
the First Respondent in this regard. Since
there was no matter that
arose out of the contract of employment, it was submitted that this
Court lacked jurisdiction under section
77 (3) of the Basic
Conditions of Employment.
[9] Koopedi disputed the
contention that the Applicant had authorisation to pay himself.
Payment to oneself without authorisation
was a serious transgression
which entitled the board to suspend the Applicant and investigate the
matter. Koopedi further submitted
that he did not understand the
connection between the alleged disclosure made in November 2013 and
the suspension which was triggered
by the allegations of serious
misconduct. He had denied that the Applicant had made any protected
disclosure in November 2013,
and contended that if there was any
basis to suspend the Applicant due to the alleged protected
disclosure, the suspension would
have taken place in November 2013.
[10] In further response
to the applicant’s allegations, Koopedi contended that the
Applicant took a decision to authorise
payment to himself on 3
February 2014, some three days before the scheduled board meeting. At
a time when the board members became
aware of the unlawful decision,
the agenda was already out. It was for that reason that the item of
the Applicant’s suspension
was not on the circulated draft
agenda. In Koopedi’s view, if there was a pressing need to
discuss an item that was not on
the agenda, it would have been under
the “General” item. The Applicant, according to Koopedi,
was suspended in his
capacity as the CEO, and there was no resolution
passed to suspend him as a board member. The provisions of the
Companies Act and
the Memorandum did not therefore find application
in this case as the Applicant was not removed from the board. Koopedi
further
averred that when he enquired privately from the Applicant
when they were outside of the board meeting as to what had happened,
the Applicant had responded to him in an insolent manner and was
disrespectful towards him. The Applicant’s conduct had
persisted when they went back into the board meeting. Koopedi
contended that the suspension was with full pay, was legitimate since
there were allegations of serious misconduct, and that there was no
ulterior motive behind the suspension.
Evaluation:
[11] It is trite that for
an applicant to be successful in an application for an interim
interdict he/she must establish the following:
(i) A prima facie right,
even though open to some doubt;
(ii) a well-grounded
apprehension of irreparable harm if the interim relief is not
granted;
(iii) absence of an
alternative remedy;
(iv) a balance of
convenience in favour of granting the interim relief.
[12]
In view of the discretionary nature of an interim interdict, these
requisites are not judged in isolation, but in interaction
with each
other
[2]
. Harms explained
this discretion in the following manner
[3]
:
“
A
court always has a wide discretion to refuse an interim interdict
even if the requisites have been established. This means that
the
court is entitled to have regard to a number of disparate and
incommensurable features in coming to a decision, and not that
the
court has a free and unfettered discretion. The discretion is a
judicial one, which must be exercised according to law and
upon
facts. On the other hand, a court has no discretion to grant an
interim interdict if the requirements have not been established.”
Prima facie right:
[13]
In respect of the merits, the Applicant bears the onus of showing
that he has a clear right to the relief he seeks. Thus, it
is
necessary to assess whether the Applicant has,
prima
facie,
established a right capable of
protection. The first factor for consideration is whether the
Applicant has made a protected disclosure
as he had alleged. Whether
the information allegedly disclosed
prima
facie
qualifies as a protected
disclosure and thus deserving protection is a matter for enquiry on
its own.
The Applicant had alleged that the
protected disclosure was made on 7 and 19 November 2013 at a Board
meeting. Koopedi had denied
that any such disclosure was made.
[14]
It is trite that where factual disputes arise in motion proceedings,
the matter should be resolved in accordance with the principles
laid
down in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints
[4]
.
Thus in proceedings such as in casu, where disputes of fact have
arisen on the affidavits, a final order, whether it be an interdict
or some other form of relief, may be granted if those facts averred
in the applicant's affidavits which have been admitted by the
respondent, together with the facts alleged by the respondent,
justify such an order.
[15] It is further trite
that in motion proceedings, the facts are set out in the affidavits
constitute pleadings and evidence.
To this end, a case is made in the
applicant’s founding affidavit, whilst the respondent’s
made out in its answering
affidavit. In this case, the Applicant
merely made an allegation that a protected disclosure was made
without reference to any
minutes to substantiate the allegation. If
indeed he was able to attach minutes of other board meetings to his
founding affidavit
in order substantiate his other allegations, I
fail to appreciate the reason he could not have done the same in
respect of the
alleged protected disclosure, which appears to be a
crucial factor to his case. At most, an explanation was necessary in
his founding
affidavit in regard to the reason those minutes could
not be attached. In the light of the denials by the Koopedi, and
further
in the light of the unsubstantiated allegation as can be
gleaned from the founding affidavit, there is no basis to conclude
that
any such disclosure was made.
[16] Furthermore, as
Koopedi had pointed out, there does not seem to be a correlation
between the alleged protected disclosure that
took place on 7 or 19
November 2013, the Applicant’s payment to himself on 3 February
2014, and his subsequent suspension
on 6 February 2014. To this end,
the Applicant has failed, or at most, has not put sufficient
information at the disposal of this
Court to enable it to determine
that he has shown a
prima facie
right to entitlement to the
protection afforded by the PDA.
[17] The Applicant
further challenged his suspension on the grounds that it was invalid,
unlawful, null and void. He had contended
that the invalidity emanate
from the fact that the item of his suspension did not form part of
the agenda for the Board Meeting
held on 6 February 2014.
Furthermore, he had submitted that by virtue of his position as CEO,
the suspension also translated into
his suspension as Executive
Director of the First Respondent’s Board. To this end, it was
argued that the resolution taken
to suspend him was contrary to
section 71
of the
Companies Act 71 of 2008
in that he was not given
notice of the meeting or the intended resolution, and secondly, he
was not afforded an opportunity to
make representations.
[18] Koopedi’s
response was that no resolution was taken to remove the Applicant
from the Board, and therefore, the provisions
of the
Companies Act
would
not find application. As far as the Applicant’s pleadings
are concerned, there is again, no substantiation that the First
Respondent’s Board had indeed taken a resolution to remove him
from that board. It appears that the Applicant assumed incorrectly,
that by virtue of his suspension, it also meant that he was removed
as a member of the board. To this end, the First Respondent’s
contention that the provisions of the
Companies Act have
no
application in this matter is sustainable.
[19] In regards to the
issue of his suspension not being an item on the agenda for the
meeting of 6 February 2014, it was common
cause that the agenda, was
long drawn up prior to that date. Secondly, there is no indication
that the suspension was discussed
at any time prior to the meeting,
and to this end, it could not have been placed as an item on the
agenda prior to then. Thirdly,
as it was correctly pointed out on
behalf of the Respondents, nothing prevented the board from
discussing the issue of the suspension
under the “General”
items. In fact, on the Applicant’s own version, no other matter
was discussed in earnest
prior to his suspension being announced. To
the extent that the application of the
Companies Act has
been found
to have no application in this matter, it follows that it was not
necessary for the Applicant to have received prior
notice in respect
of the board’s intention to suspend him.
[20] In regards to the
validity of the suspension, it was further common cause that at the
time that the decision to suspend the
Applicant was taken, the First
Respondent’s board consisted of four members instead of seven.
This had been the position
for some time, and any decision the board
had taken in the past, and also for the purposes of that suspension,
could not suddenly
have become invalid on account of the Board being
three members less. There is thus in the light of the above, no merit
in the
contention that the suspension was either invalid or unlawful
for the reasons alleged by the Applicant.
[21] The Applicant had
also lamented the fact that he was not afforded an opportunity make
representations before the suspension
in breach of his contract. He
complained that his contractual and constitutional rights were
seriously being infringed. He had
further contended that his
suspension and any intended disciplinary proceedings constituted
unfair conduct by the First Respondent,
and also an occupational
detriment.
[22]
The issue of the alleged protected disclosure has been dealt with. It
is trite that there is no implied right to fairness incorporated
into
the employment contract which can form the basis of such a right
[5]
. The Supreme Court of Appeal emphasised the principle in the
following terms
[6]
.
“ …
.
insofar as employees who are subject to and protected by the LRA are
concerned, their contracts are not subject to an implied
term that
they will not be unfairly dismissed or subjected to unfair labour
practices. Those are statutory rights for which statutory
remedies
have been provided together with statutory mechanisms for resolving
disputes in regard to those rights. The present is
yet another case
in which there is an attempt to circumvent those rights and to
obtain, by reference to, but not in reliance upon,
the provisions of
the LRA an advantage that it does not confer.”
[23]
The contract of employment upon which the Applicant had relied in
respect of any rights that may have been encroached upon
was placed
in dispute by Koopedi. To that end, it was submitted that the Court
lacked jurisdiction under
section 77(3)
of the BCEA. In the light of
these disputes of fact, the
Plascon-Evans
principle will again find application. In his founding affidavit, the
Applicant had averred that he was employed since 1 November
2010
subject to the terms and conditions as set out in his contract of
employment
[7]
. The existence of
that contract of employment was disputed by Koopedi who further only
confirmed the oral appointment of the Applicant
as of 1 November
2011. Koopedi had drawn attention to an obvious anomaly in that the
contract is purported to have been entered
into on 30 August 2011,
some two months before the commencement date. It was signed by the
Applicant in two places as having accepted
the terms and conditions
laid down in the contract on the date that it was signed. It must be
said that having had regard to the
copy of the contract relied upon
by the Applicant, the fact that it only bears the Applicant’s
signature, and further in
the light of Koopedi’s denials and
submissions in that regard, it is doubted that the contract relied
upon by the Applicant
exist. If it does exist, it is equally strange
that Koopedi or the board would not have been aware of it.
[24] Even if the
Applicant were to be given the benefit of the doubt, clause 16 of the
alleged contract upon which he relied in
respect of the right not to
be unfairly suspended is not of assistance as it merely refers to the
organisation’s Grievance
Procedure, Disciplinary Code and
procedure which form part of the employment contract. These documents
are however not made available
by the Applicant. The “Guidelines”
attached to the disputed contract of employment only makes reference
to the LRA,
and Code of Good Practice in Schedule 8 in regards to
procedures for termination of employment. Inasmuch as the right to
some form
of pre-suspension procedures have been acknowledged, in
this case, it cannot be said that such a right is based on the
contract
even if it had existed. The only conclusion to be
reached is that the Applicant’s right not to be unfairly
suspended
is covered fully under the provisions of section 186 (2) of
the LRA. Moreso, in view of the conclusions made in regards to the
existence of a contract of employment, I fail to appreciate how it
can be said that the provisions of section 77 (3) of the BCEA
find
application.
[25]
The applicant had also complained about his constitutional rights
having been infringed, and it is assumed that he was making
reference
to the constitutional right to fair labour practices (Section 23 (1)
of the Constitution Act 108 0f 1996), and by implication,
not to be
unfairly suspended. It is trite that direct reliance on the
fundamental rights as contained in the Constitution is impermissible
when the right in contention is regulated by legislation
[8]
.
In regards to the merits of the Applicant’s case, the relevant
legislation would be the LRA, and more particularly, its
section 186
(2) (b) pertaining to unfair labour practices. In
North
West Provincial Government v Gradwell
[9]
,
the Labour Appeal Court stressed the point in the following terms;
“
Disputes
concerning alleged unfair labour practices must be referred to the
CCMA or a bargaining council for conciliation and arbitration
in
accordance with the mandatory provisions of s 191(1) of the LRA.
The respondent in this case instead sought a
declaratory order from the Labour Court in terms of s 158(1)(a)(iv)
of the LRA to the
effect that the suspension was unfair, unlawful and
unconstitutional. A declaratory order will normally be regarded as
inappropriate
where the applicant has access to alternative remedies,
such as those available under the unfair labour practice
jurisdiction.
A final declaration of unlawfulness on the grounds of
unfairness will rarely be easy or prudent in motion proceedings. The
determination
of the unfairness of a suspension will usually be
better accomplished in arbitration proceedings, except perhaps in
extraordinary
or compellingly urgent circumstances. When the
suspension carries with it a reasonable apprehension of irreparable
harm, then,
more often than not, the appropriate remedy for an
applicant will be to seek an order granting urgent interim relief
pending the
outcome of the unfair labour practice proceedings.”
[26] As already
indicated, the Applicant has already exercised the right to refer an
unfair labour practice pertaining to his suspension
and also in
respect of the alleged protected disclosure made to the CCMA. The
Applicant has not shown any extraordinary or compellingly
urgent
circumstances that would necessitate the circumvention of the
provisions of section 191 (1) (a) and (b), and (5) of the
LRA.
Whether there is any basis for a conclusion to made that the
suspension carried with it a reasonable apprehension of irreparable
harm is discussed below.
A well-grounded
apprehension of irreparable harm?
[27]
In the written arguments submitted on behalf of the Applicant, under
the heading of “Harm”,
the same arguments pertaining to
his constitutional and contractual rights being infringed were
raised. If however regard is had
to his founding affidavit, he had
submitted that it was imperative that he attended the AGM.
Conclusions have been made in regard
to the AGM that was scheduled
for 27 February 2013 and it is not worth repeating what was said
earlier in this judgment. Secondly,
the Applicant had submitted that
all the hard work he had put into the First Respondent stood at risk
as a result of his suspension,
and that this may result in long term
damage to the First Respondent. It does not appear that the First
Respondent is concerned
with the Applicant’s absence as
Koopedi’s contention was that for the First Respondent, “it
was business as usual”.
In any event, the harm that the
Applicant is making reference to appears to be that he apprehends
might befall the First Respondent,
and not him. Further contentions
made in regard to the issue of irreparable harm were that he had a
right to work; that the suspension
affected his public image and his
reputation, and further that it had resulted in a loss of certain
benefits. He had also lamented
the fact that his self-esteem and
sense of self-worth have been affected.
[28] I have taken regard
of the authorities referred to in the Applicant’s of arguments
insofar as he had raised the above-mentioned
issues. It is
acknowledged that the consequences of a suspension are numerous, and
in some instances immeasurable. It is expected
that parties will
advance arguments in regards to the consequences of a suspension.
These may range from those that are indeed
genuine, to those that
might clearly be exaggerated, or self-serving, or in some instances,
imagined. Ultimately however,
as factors or requisites in such
motion proceedings are to be judged in interaction with each, the
issue of irreparable harm, no
matter how well argued, may never on
its own be determinative.
[29] In this case, the
Applicant was placed on suspension with pay. Some of the arguments he
had advanced do not in any manner lay
a basis for a conclusion to be
made that the suspension carried with it a reasonable apprehension of
irreparable harm. It cannot
be doubted that the suspension might
affect his self esteem or self-worth. However, where a dispute in
this regard is to be arbitrated,
as shall be the case, a finding that
the suspension was unfair together with the appropriate remedy, even
if it would be small
comfort, will go a long way in redeeming
diminished self-esteem and self worth. Similarly, the adjudication in
the normal course
of the dispute pertaining to the PDA, and assuming
that it would be in his favour, and an appropriate remedy, will also
go a long
way in redeeming diminished self-worth or self esteem. To
that end, there is no basis to conclude that any harm, as a
consequence
of the suspension, will be irreparable. Even if I may be
incorrect in this conclusion, irreparable harm on its own is not a
consideration
for the granting of relief sought in this case.
Other
considerations:
[30] In regard to the
Applicant’s contentions in respect of the balance of
convenience and the absence of an alternative remedies,
again,
reference was again made to his constitutional and contractual
rights, which it was alleged had been infringed. These issues
have
been dealt with somewhere in this judgment and it is not worth
repeating my conclusions in that regard.
Urgency:
[31] Notwithstanding the
fact that the Applicant has clearly failed to satisfy the requisites
for the relief he seeks as analysed
above, I will for the sake of
completeness, deal with the question of urgency. An applicant
instituting an urgent application must
justify the necessity to
circumvent the ordinary time periods set out in the rules of this
Court. This much can be gleaned from
Rule 8 of the Rules of this
Court which provides that:
“
(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 ...”
[32]
Whether a matter is urgent involves two considerations. The first is
whether the reasons that makes the matter urgent, have
been set out
and secondly whether the applicant seeking relief will not obtain
substantial relief at a later stage. In all instances
where urgency
is alleged, the applicant must satisfy the Court that indeed the
application is urgent. Thus, it is required of the
applicant to
adequately set out in his or her founding affidavit the reasons for
urgency, and to give cogent reasons why urgent
relief is necessary.
As Moshoana AJ aptly put it in
Vermaak
v Taung Local Municipality
[10]
;
“
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
In
further dealing with the question of urgency, the Court in
National
Union of Mineworkers v Black Mountain-A Division of Anglo Operations
Ltd
[11]
held;
“…
Only
once an applicant has persuaded the court that sufficient grounds
exist which necessitate a relaxation of the rules and ordinary
practice, will the court proceed to consider the matter as one of
urgency. The extent to which the court will allow parties to
dispense
with the rules relating to time periods will depend on the degree of
urgency in the matter.”
[33] In regards to
urgency, the Applicant’s contention was that following upon his
suspension he had immediately scheduled
to an appointment with his
attorneys of record and was able to consult with them on 7 February
2014. This application was launched
on 11 February 2014, some five
days after the suspension of the Applicant. The delay between 7
February 2014 when the Applicant
consulted with his attorneys of
record and 11 February 2014 is unexplained. The explanation for the
haste with which an application
is brought before the Court is but
one factor for consideration. Even if it could be said that the
Applicant and his attorneys
of record had acted in due haste, that
fact on its own does not necessarily make a matter urgent or entitle
the applicant to relief.
More than merely launching an application
with due haste is required.
[34] The Applicant had
further argued that the matter was urgent as the First Respondent’s
AGM was scheduled to take place
on 27 February 2014. This event
according to the Applicant required a lot of planning on his behalf,
which fell within the scope
of his responsibilities. Koopedi’s
response was that the holding of the AGM, which has since been
postponed, did not render
the matter urgent, and that the First
Respondent had already appointed an acting CEO, who will be able to
perform the tasks ordinarily
performed by the Applicant. The acting
CEO was the First Respondents’ COO, who was appointed in the
same meeting of 6 February
2014 in the presence of the Applicant.
[35] The difficulty with
the Applicants’ reasoning is that on Koopedi’s version,
the holding of the AGM does not need
the Applicant as any tasks in
that regard can be performed by the acting CEO. I did not understand
the Applicant’s case to
be that in his absence, the AGM,
assuming that it was still scheduled, could not go on because of his
importance. Koopedi’s
contention on the other hand was that it
was business as usual without the Applicant, and the acting COO was
capable of performing
the Applicant’s tasks. In these
circumstances, it is my view that the Applicant exaggerated his
importance to the First Respondent
and in relation to the AGM.
Furthermore, whether the AGM is to proceed or not cannot in any
manner, make the application urgent.
The Applicant has not persuaded
the Court that sufficient grounds exist which necessitates a
relaxation of the rules and ordinary
practice. In my view, as a
result of the Applicant’s sense of self-importance, he created
the urgency. Having referred a
dispute to the CCMA, he is in a
position to obtain substantial relief at a later stage as already
indicated. Obviously any substantial
relief would be dependent on the
merits of his case.
[36] In conclusion,
having considered this application and the circumstances under which
it was brought before the Court, it is
further my view that
considerations of law and fairness dictate that the application
should be dismissed with costs.
Order:
The
Applicant’s application is dismissed with costs.
Tlhotlhalemaje, AJ
Acting Judge of the
Labour Court of South Africa
Appearances:
For the
Applicants:
Mr. WP Schӧltz of Schöltz
Attorneys
For
the Respondent:
Mr. C Mogane of Mohlaba & Moshoana INC
[1]
2011
(3) BCLR 264
(CC) at para 29
[2]
See
Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and Another
1973 (3) SA 685 (A)
[3]
Civil
Procedure in the Supreme Court (page A-43)
[4]
(Pty)
Ltd 1984 (3) 623 (A) at 634 H-I
[5]
See
SA Maritime Safety Authority v McKenzie (2010) 31 ILJ 529 (SCA)
[6]
At
para 56
[7]
Annexure
“MF2” to the founding affidavit
[8]
See
SANDU v Minister of Defence and Others (2007) 28 ILJ 1909 at para 51
[9]
[2012]
8 BLLR 747
(LAC) at para 46
[10]
(JR315/13)
[2013] ZALCJHB 43 (12 March 2013) at para 12
[11]
(2007)
28 ILJ 2796 (LC) at para 12