About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2014
>>
[2014] ZALCJHB 47
|
|
IMATU v City of Matlosana Local Municipality and Another (J28/14) [2014] ZALCJHB 47 (26 February 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
IN
JOHANNESBURG
JUDGMENT
REPORTABLE
CASE
NO: J82/14
In the
matter between:
IMATU First
Applicant
ABRAHAM
GERARDUS
STRYDOM Second
Applicant
and
THE
CITY OF MATLOSANA LOCAL
MUNICIPALITY First
Respondent
E H
LOUW
(N.O.) Second
Respondent
Heard:
06 February 2014
Delivered:
26 February 2014
Summary:
(Urgent application for interim relief – in limine issues
should be canvassed with chairperson of disciplinary
enquiry even if
he lacks the power to make final determinations on those issues as he
can still postpone proceedings).
JUDGMENT
LAGRANGE,
J
Introduction
[1]
This
is an urgent application for interim relief. The applicants brought
the application to prevent a disciplinary enquiry chaired
by the
second respondent from proceeding against the second applicant,
appointed as a Director: Corporate Services, on 22 January
2014,
pending the outcome of an application for declaratory relief
invalidating a resolution of the first respondent dated 11 December
2013 initiating disciplinary proceedings against the second applicant
and nullifying all steps taken pursuant to that resolution.
Further,
the applicant sought a stay of all the disciplinary proceedings
pending the outcome of disputes referred to the South
African Local
Government Bargaining Council concerning alleged disclosures in terms
of the Protected Disclosure Act number 26 of
2000 (' the PDA’).
[2]
The
application was served on the local authority on 16 January 2014 for
hearing on 21 January 2014. On the date of that hearing
the first
respondent objected to the non joinder of the second respondent, who
had been appointed to chair the disciplinary enquiry.
The Honourable
Justice Cele, J postponed the matter to the following day in order to
permit the joinder of the second respondent,
preserving costs of the
postponement. The following day the second respondent, who did not
oppose the application, was joined and
the applicants then sought a
postponement in order to file replying papers. The first respondent
objected to the need for such
a postponement on the basis the matter
could be disposed of as a matter of urgency without the filing of
replying papers, but Cele
J held that the matter was sufficiently
urgent in relation to the protected disclosure dispute to permit the
filing of papers in
reply.
[3]
The
matter was then postponed till 6 February 2014, for hearing and the
applicant was ordered to pay the wasted costs of the proceedings
on
21 January 2014. By 6 February 2014, the disciplinary proceedings had
been postponed to 17 February 2014. When I reserved judgement
in the
matter because on the basis that the first respondent was interdicted
from the reconvening the disciplinary enquiry pending
my judgement.
[4]
On
5 February 2014, the day before the application for urgent interim
relief was to be heard, the applicant appears to have served
an
amended notice of motion on the respondents seeking a final order of
declaratory relief on the matters for which they previously
sought
interim relief and in the alternative stating the disciplinary
enquiry pending the outcome of the disputes referred to the
bargaining council.
The
application for interim relief
[5]
When
the disciplinary proceeding was initially postponed until 22 January
2014, the second applicant's union representative made
it clear that
it intended to raise preliminary issues relating to the validity of
the disciplinary proceedings. In consequence
of this application,
those issues have not yet been canvassed before the second respondent
chairing the enquiry. In consequence,
the first respondent argues
that the application is premature. It would perhaps be better to
refer to this argument as an argument
based on the existence of an
alternative remedy available to the applicants which they have yet to
try. I say this because talk
of an application being premature in the
context of an urgent application is often dealt with on that basis,
even though in substance
it is about the availability of an
alternative remedy
[6]
The
crux of the matter in my view is whether or not the applicants should
first have canvassed their objections with the chairperson
of the
enquiry including the suggestion that he should recuse himself. I
accept the applicant’s argument that some of the
issues raised
such as the lawfulness of the disciplinary proceedings or the
question whether or not the proceedings might constitute
an
occupational detriment under the PDA and should be postponed for such
a claim to be determined, are not ones that the chairperson
of the
enquiry would have the power to determine himself. However, if
the chairman believes that such issues could seriously
impugn the
integrity of the proceedings, nothing prevents him from deciding to
postpone the enquiry pending the resolution of those
disputes.
Despite it being agreed that the adjourned hearing would reconvene to
consider
in
limine
objections
raised by the applicants, this has not occurred yet. In
Booysen
v
The Minister of Safety and Security & others
[2011]
1 BLLR 83
(LAC)
,
the LAC made it clear that :
“
...
[T]he Labour Court has jurisdiction to interdict any unfair conduct
including disciplinary action. However, such an intervention
should
be exercised in exceptional cases. It is not appropriate to set out
the test. It should be left to the discretion of the
Labour Court to
exercise such powers having regard to the facts of each case. Among
the factors to be considered would in my view
be whether failure to
intervene would lead to grave injustice or whether justice might be
attained by other means.”
[1]
[7]
In
this instance the hazard facing the second applicant, which he sought
to prevent as a matter of urgency, was the risk of the
disciplinary
proceedings continuing under circumstances where those proceedings
may be unlawful, or presided over by a chairperson
who might have
some interest in the issues to be determined that could taint his
impartiality, and the like. However, all of this
could have been
canvassed with the chairperson at the next sitting of the enquiry and
he might well have decided on one more grounds
raised by the
applicant’s that he ought to postpone the enquiry or recuse
himself. That could have been dealt with on 22
January 2014.
[8]
Had
the chairperson’s action on that occasion halted the
proceedings, pending the resolution of one or more of the
in
limine
objections,the
applicant’s would have achieved substantially the same relief
they sought by way of an interim interdict, without
incurring the
same costs. If he refused to discontinue the proceedings and insisted
on them resuming then the applicant’s
might well have
considered at that point launching these proceedings at least insofar
as they raise issues going to the very lawfulness
of the enquiry.
[9]
The
absence of the chairperson’s power to make a ruling on some of
the issues, does not mean proceedings might not have been
postponed,
and the applicants should have explored that remedy before rushing to
court.
The
amended application for final relief
[10]
In my
view this application was brought on wholly insufficient notice, and
accordingly must be dismissed for lack of urgency.
Order
[11]
In
the circumstances,
11.1
the
application for interim relief is dismissed;
11.2
the
amended application for final relief is dismissed for lack of urgency
11.3
The
applicants must pay the first respondent’s costs.
_______________________
R
LAGRANGE, J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
W
Scholtz of Scholtz Attorneys
FIRST
RESPONDENT: Adv
G L Van der Westhuizen instructed by Savage, Jooste &
Adams.
[1]
At
99, par [54].