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[2014] ZALCCT 4
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Solidarity v Department of Correctional Services and Others; In Re: Solidarity and Others v Department of Correctional Services and Others, Solidarity and Others v Department of Correctional Services and Others (C368/12, C986/12,) [2014] ZALCCT 4; [2014] 4 BLLR 404 (LC); (2014) 35 ILJ 1647 (LC) (6 February 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Reportable
Case
no: C 368/12
In
the matter between:
SOLIDARITY
.......................................................................................................
.......
Applicant
and
DEPARTMENT
OF CORRECTIONAL SERVICES
.............................
. ..
First Respondent
MINISTER
OF CORRECTIONAL SERVICES
.......
................... ..........
Second Respondent
NATIONAL
COMMISSIONER OF THE DEPARTMENT
OF
CORRECTIONALSERVICES
....... ...................
................... .......... ...
Third Respondent
MINISTER
OF LABOUR
.......................................
................... ...............
Fourth Respondent
IN
RE:
SOLIDARITY
.................................................
.....................................................
First
applicant
PJ
DAVIDS
.................................................
.....................................................
Second
applicant
CF
FEBRUARY
............................
.....................
...............................................
Third applicant
AJ
JONKERS
.................................................
.................................................
Fourth
applicant
LJ
FORTUIN
.................................................
.....................................................
Fifth
applicant
GM
BAARTMAN
.................................................
..............................................
Sixth applicant
and
DEPARTMENT
OF CORRECTIONAL SERVICES
..........
....................
First Respondent
MINISTER
OF CORRECTIONAL SERVICES
................................
Second
Respondent
NATIONAL
COMMISSIONER
OF
THE DEPARTMENT OF CORRECTIONAL
SERVICES
.................................................
................................................
Third
Respondent
MINISTER
OF LABOUR
.....................................
................
................
Fourth Respondent
AND
In
the matter
between:
.........................................................................................
Case
No C 986/12
SOLIDARITY
..........................................
.............................................................
First
applicant
DS
MERKEUR
.................................................................................................
Second
applicant
TS
ABRAHAMS
.......................
.........................................................................
Third
applicant
DR
JORDAAN
..................................................................................................
Fourth
applicant
JJ
KOTZE
............................................................................................................
Sixth
applicant
DMA
WEHR
...................................................................................................
Seventh
applicant
and
DEPARTMENT
OF CORRECTIONAL SERVICES
..................................
First
Respondent
MINISTER
OF CORRECTIONAL SERVICES
......................................
Second
Respondent
NATIONAL
COMMISSIONER
OF
THE DEPARTMENT OF CORRECTIONAL SERVICES
.................
Third
Respondent
MINISTER
OF
LABOUR
...........................................................................
Fourth
Respondent
Heard:
31
January 2014
Delivered:
6
February 2014
Summary:
High
Court rule 49(11) – enforcement of order pending appeal.
JUDGMENT
STEENKAMP
J
Introduction
[1]
This is an application in terms of High
Court rule 49(11) read with Labour Court rule 11(3) to implement a
court order pending appeal.
[2]
On 18 October 2013 Rabkin-Naicker J made
the following order::
“
The
first respondent [the Department of Correctional Services] is ordered
to take immediate steps to ensure that both national and
regional
demographics are taken into account in respect of members of
designated groups when setting equity targets at all occupational
levels of its workforce”.
[3]
The applicant, Solidarity, appealed against
portions of that judgment. The Department cross-appealed. Solidarity
sought an undertaking
from the Department that it would, in the
interim, give effect to the judgment, especially in the process of
interviews and appointments
to positions affecting the individual
applicants and the filling of 195 new positions advertised in the
press. The Department refused.
On 17 January 2014 the State Attorney
responded to correspondence from Solidarity’s attorneys and
said that:
“
No
instruction has been issued regarding use of National [
sic
]
or regional racial demographics targets in its appointments.
As you know, the judgment of her Ladyship Ms Justice Rabkin-Naicker
has been appealed and cross-appealed by both parties, our client
is
under no obligation to comply with it in law as its legal
implications has been suspended” [
sic
].
[4]
On 23 January 2014 Solidarity launched this
application, to be heard as one of urgency, asking the Court to
implement the judgment
pending the appeal and cross-appeal.
Background facts
[5]
This application, and the judgment of
Rabkin-Naicker J, arises from the employment policies of the
Department of Correctional Services.
The Department’s view is
that its Employment Equity Plan, issued in terms of the Employment
Equity Act
[1]
,
prescribes that national demographic figures be used for the
recruitment, appointment and promotion of employees. Therefore, it
uses national numerical targets of 79,3 % Africans, 8,8 % Coloureds,
9,3 % Whites and 2,5% Indians for appointments at various
levels.
[2]
[6]
In her judgment, Rabkin-Naicker J ruled
that the clear meaning of s 42 of the EEA is that both regional and
national demographics
must be taken into account. That asserts the
right of those who comprise black persons in terms of the EEA –
including those
classified as “coloured” during the
apartheid era – to benefit from the restitutionary measures
created by the
EEA and derived from the right to substantive equality
under the Constitution.
[7]
Leave to appeal and to cross-appeal was
granted on 29 November 2013. Solidarity delivered its notice of
appeal on 10 December 2013
and the Department delivered its notice of
cross-appeal on 12 December.
[8]
Solidarity was concerned that the continued
application of national demographic statistics in the personnel
placement decisions
of the Department pending the appeal process
would result in it making placements on considerations found not to
have been legitimate
by this Court. The effect of this, the deponent
to the founding affidavit pointed out, would be to outlive the appeal
process.
[9]
Solidarity’s attorneys wrote to the
Department, the State Attorney, the Acting National Commissioner and
the Western Cape
Regional Commissioner on 22 October and 4 November
2013 – i.e. before either party had applied for leave to appeal
–
to seek assurances that the Department would abide the court
order. There was no response to the first letter. On 6 November 2013
the State Attorney replied:
“
The
appointment of suitably qualified persons that will finally be made
will be in accordance with the Constitution, the law and
with due
regard to the judgment of her Ladyship Madam Justice Rabkin-Naicker”.
[10]
Solidarity took some comfort from this
undertaking. On 4 December 2013 – leave to appeal having been
granted – its attorneys
wrote to the State Attorney and sought
its confirmation that the undertaking would remain in place pending
appeal, especially having
regard to the judgment of the Supreme Court
of Appeal in
Solidarity obo Barnard v
South African Police Services
[3]
handed down on 28 November 2013. That judgment clarified aspects of
the application and interpretation of the Employment Equity
Act.
[11]
The State Attorney did not respond.
Solidarity’s attorneys wrote to them again on 7 January 2014.
They referred to “recent
media reports” from which it
appeared that the Department intended to use national demographic
targets in all appointments
and not to abide by the judgment pending
appeal. They pointed out that it appeared that no coloured applicants
would be included
in the learnership enrolment program for 2014. They
asked for a response by 10 January 2014. It was not forthcoming. The
State
Attorney only responded on 17 January 2014 and made it clear
that it would not comply with the order pending appeal, as its
operation
was suspended. Solidarity then launched this application.
Rule 49(11): the legal principles
[12]
It is trite that the effect of a judgment
is suspended pending appeal. But rule 49(11) of the High Court rules
makes provision for
the court to direct otherwise. A similar
procedure has been adopted by this Court, for example in
Booysen
v The Minister of Safety & Security and Others.
[4]
[13]
High Court rule
[5]
49(11) reads as follows:
“
Where
an appeal has been noted or an application for leave to appeal
against or to rescind, correct, review or vary an order of
a court
has been made, the operation and execution of the order in question
shall be suspended, pending the decision of such appeal
or
application, unless the court which gave such order, on the
application of a party, otherwise directs.”
[14]
The rules of the Labour Court have no
similar provision. Rule 11(3) provides, though, that:
“
If a situation for which these rules do
not provide arises in proceedings or contemplated proceedings, the
court may adopt the procedure
that it deems appropriate in the
circumstances.”
[15]
Thus, in
National
Police Services Union v National Commissioner of the National Police
Services & others,
[6]
the court held that it is not precluded from achieving the same
result as that contemplated by rule 49(11) of the Uniform Rules.
[16]
In exercising the discretion whether to
implement the order pending the appeal, the court must normally have
regard to the factors
discussed in
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd:
[7]
16.1
the potentiality of irreparable harm or
prejudice being sustained by the appellant on appeal if leave to
execute were to be granted;
16.2
the potentiality of irreparable harm or
prejudice being sustained by the respondent on appeal if leave to
execute were to be refused;
16.3
the prospects of success on appeal,
including more particularly a question as to whether the appeal is
frivolous or vexatious or
has been noted not with the
bona
fide
intention of seeking to reverse
the judgement but for some indirect purpose, e.g. to gain time or
harass the other party; and
16.4
where is the potentiality of irreparable
harm and prejudice to both appellant and respondent, the balance of
hardship or convenience,
as the case may be.
[17]
I shall consider each of these factors. But
before I do so, I need to consider two issues that I raised with
counsel in argument:
that is, whether it would not have been more
appropriate for Rabkin-Naicker J, who heard the matter initially and
is
au fait
with the facts and evidence, to hear this application; and secondly,
the question of urgency.
[18]
The first question is easily disposed of.
It is, as Mr
Moerane
said, a question of convenience and not of law. Both counsel were
satisfied that there is nothing in law barring me from hearing
this
application. Neither could I find anything in the rules. This
application is separate from the application for leave to appeal,
that would ordinarily be decided by the presiding judge.
[8]
I remain of the view that it would have been preferable for the judge
who presided over the hearing and who decided on the applications
for
leave to appeal and to cross-appeal, to hear this application,
steeped as she is in the background and facts of the case and
the
considerations she took into account when granting leave to appeal
and to cross-appeal; yet there is nothing barring me from
hearing
this application and I considered it to be in the interests of the
justice to hear the matter, senior counsel having been
flown to Cape
Town at considerable cost to both parties to argue the matter on
Friday 31 January 2014.
Urgency
[19]
Mr
Moerane
argued that the application was not urgent and should either be
dismissed or struck from the roll. In response Mr
Brassey
referred to
Airy and Another v
Cross-Border Road Transport Agency and Others.
[9]
In
Airy,
the
Court expressed the view that a rule 49(11) application is not
hit by High Court rule 6(12) (analogous to Labour Court
rule 8). It
is an interlocutory application (dealt with in Labour Court rule 11)
and thus one which may be brought on notice and
set down at a time
assigned by the registrar or as directed by a judge. In terms of
Labour Court rule 11(4), when dealing with
interlocutory
applications, “the court may act in a manner that it considers
expedient in the circumstances to achieve the
objects of the Act”.
One of those objects is the effective resolution of labour
disputes.
[10]
[20]
But in any event, it cannot be said that
any urgency in this case was self-created. Solidarity initially got
comfort from the undertaking
by the State Attorney to give effect to
the judgment of Rabkin-Naicker J. When it sought an assurance from
the State Attorney that
the undertaking stood pending appeal, it was
not forthcoming. The State Attorney waited for more than a month
before responding
to Solidarity’s attorneys. And when it did,
refusing such an undertaking, Solidarity launched this application
within four
days.
[21]
The urgency of the matter is also brought
about by the imminent implementation of learnership enrolments for
2014 of some 194 applicants
and the appointment of 195 other
employees. From the Department’s initial response and
statements to the press, it was apparent
that no coloured applicants
would be considered. It was only at the hearing of this matter on
Friday 31 January that Mr
Moerane
handed up some documents, unaccompanied by any affidavits, suggesting
that the Department would deviate from its stated policy
to take only
national demographics into account and would in fact consider 50% of
the learnerships for coloured applicants.
The balance of
convenience
[22]
The balance of convenience in this case
lies with the applicants. As Pillay J said on the facts of the case
in
N v Government of the Republic of
South Africa
[11]
,
“it is simply no skin off the respondents’ noses to
comply with the order pending the appeal”.
[23]
This much is clear from the documents
belatedly offered up by the Department’s counsel at the hearing
of this matter. Those
documents were elaborated upon, at the Court’s
request, in a supplementary answering affidavit delivered on Monday 3
February
2014. In terms of a request for exemption assented to by the
National Commissioner – and contrary to the State Attorney’s
“instructions” embodied in its letter of 17 January 2014
– it appears that the Department has indeed approved
a
deviation from its Employment Equity Plan for, at least, the
distribution of the learnership enrolment group for 2014 in the
Western Cape. Those candidates must report for training this month,
February 2014. It initially seemed that no coloured people
would be
eligible for learnerships; in terms of the “deviation”,
the proposed distribution list comprises a “race
distribution”
of “Africans 40 %, Coloureds 50 % and Whites 10 %”.
[12]
[24]
Surprisingly, the regional commissioner of
the Western Cape states in his answering affidavit filed on 3
February 2014 that he had
already approved a memorandum on 2 December
2013 that proposed the following:
24.1
9,3% of the 194 posts for the Learnership
programme be reserved for whites;
24.2
2,5 % of the posts be reserved for Indians;
and
24.3
The remainder of the 194 posts be
distributed equally between Africans and Coloureds, i.e. 50 % each.
[25]
The national commissioner – the third
respondent – approved the deviation referring to a “race
distribution”
of “Coloureds 50 %” on 23 January
2014, a week before this application was heard. Quite apart from the
fact that the
EEA does not allow quotas or “reserved
allocations”, it is quite inexplicable why the regional
commissioner and the
Department only placed these facts before the
Court after the Court had requested a supplementary affidavit from
them at the hearing
on Friday 31 January 2014. In their initial
answering affidavit, filed on 30 January 2014 – almost two
months after the regional
commissioner had made his recommendation
and a week after the national commissioner had approved it –
they simply reiterate
that they refuse to give the undertakings that
Solidarity asked for. Even more surprisingly, the respondents now say
that appointments
in respect of the other 195 posts that were
advertised in the press will be made “with due regard to the
judgment of the
court
a quo
that is currently under appeal at the instance of both parties.”
[26]
Should the court order be implemented
pending appeal, service delivery will not be adversely affected. That
much is now implicitly
conceded by the respondents in the belated
averments made in the supplementary answering affidavit filed at the
Court’s request.
In the light of that, it is surprising that
the respondents resisted this application. On the other hand, should
permanent appointments
be made with regard to national demographics
only, coloured employees and applicants for appointment will be
irreparably compromised.
That pertains not only to the learnership
enrolments, but to all other appointments and promotions.
The relevance of
the parties’ merits on appeal
[27]
As the court pointed out in
South
Cape
[13]
,
I must take into account the prospects
of success on appeal, including more particularly the question as to
whether the appeal is
frivolous or vexatious or has been noted not
with the
bona fide
intention of seeking to reverse the judgement but for some indirect
purpose, e.g. to gain time or harass the other party.
[28]
It is apparent that this Court need not
consider the prospects of success on appeal (or cross-appeal) in any
detail, but only whether
it is
bona
fide.
And Rabkin-Naicker J has already
ruled that there is a reasonable prospect that another court may come
to a different conclusion.
Given the recent judgment of the Supreme
Court of Appeal in
Barnard
,
the applicant’s prospects of success on appeal must be good;
the respondents’ prospects on cross-appeal maybe less
so.
[29]
In
Ncube v
Department of Home Affairs and Others
[14]
Pickering J quoted with approval the
following dictum of McEwan J in
Sorec
Properties Hillbrow (Pty) Ltd v Van Rooyen:
[15]
“
The
Court, in proceedings of this nature, is not called upon to enquire
into the whole case or to attempt to evaluate the prospects
of
success on appeal. Only of the Court is satisfied that the appeal has
minimal prospects of success or is hopeless, then the
Court will take
that fact into account and may draw the inference from it that the
appeal was noted
mala fide
,
or for the purposes of delay.”
[30]
This is not such a case. The balance of
convenience, coupled with the prospects of success, favours the
granting of the order sought
in terms of High Court rule 49(11).
The relief sought
[31]
Solidarity initially sought two orders
pending finalisation of the appeal:
31.1
That the order of Rabkin-Naicker J of 18
October 2013 be implemented and enforced; and
31.2
that the respondents be interdicted and
restrained from permanently appointing any person other than the
third ((TS Abrahams) and
sixth (DMA Wehr) applicants to the positions
of SCO: Unit Manager: Breede |River Management Area and Chief
Artisan: Production
Workshop: Drakenstein Management Area
respectively.
[32]
At the hearing, Mr
Brassey
abandoned the interdictory relief
sought in subparagraph 2.
[33]
The Department raised the objection that,
should the interim relief sought in subparagraph 1 be granted, it
could be hamstrung because
the appeal process “could take
years”. Firstly, that seems unlikely, now that the Labour
Appeal Court – and not
the Supreme Court of Appeal – is
again the final court of appeal in labour matters.
[16]
[34]
Secondly, the Department’s fears may
be assuaged by the relief that I intend to provide, which will
include an order to the
effect that either party may approach the
court to re-enrol the matter for variation or consideration afresh
pending the final
decision on appeal. Such an application may also be
prompted by the outcome of the Constitutional Court’s judgment
in the
pending further appeal from the SCA in
Barnard.
[17]
Conclusion
[35]
I am persuaded that the balance of
convenience favours Solidarity. There can be no prejudice, much less
irreparable harm, to the
Department, were it to take both national
and regional demographics into account in any appointments pending
appeal. Indeed, it
has belatedly undertaken to do so in any event.
Costs
[36]
That leaves the question of costs. As
Pickering J stated in
Ncube
[18]
,
the general principle in applications
of this nature is that, in the event of the application succeeding,
the costs should be made
costs in the appeal. Despite Mr
Brassey
’s
plea that the respondents should be ordered to pay the costs in this
application, I am not persuaded that I should deviate
from that
principle. Even though the respondents’ opposition is somewhat
surprising, given the concessions in their supplementary
affidavit
that run counter to their previous unwillingness to abide by the
judgment
a quo
,
this is an interlocutory skirmish in a broader debate that raises
significant issues of public policy and Constitutional principle.
In
law and fairness, I do not think it is a case where this Court should
deviate from the general principle outlined above.
Order
[37]
In the result I make the following order:
37.1
Pending the finalisation of the appeal and
cross-appeal under case number CA 23/13, the respondents are ordered
to implement and
enforce the order granted by this Court (per
Rabkin-Naicker J) on 18 October 2013.
37.2
The parties may approach the court at any
stage to re-enrol this application and may, on good cause, apply to
vary or rescind the
order.
37.3
The costs of this application are to be
costs in the appeal.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
........................................
M
S M Brassey SC (with him MJ Engelbrecht)
.............................................................
Instructed
by Serfontein Viljoen & Swart, Pretoria.
RESPONDENTS:
.................................
M
Moerane SC (with him B Lecoge)
............................................................
Instructed
by the State Attorney, Pretoria.
[1]
Act 55 of 1998 (the EEA).
[2]
These racial categorisations
stemming from
the repealed apartheid-era Population Registration Act are used by
the Department to ensure compliance with its
interpretation of the
Employment Equity Act; it is inevitable to refer to the same
categorisation
in this ruling.
[3]
[2013] ZASCA 177.
[4]
Case no C 60/2008 and C 307/2009 (unreported, 2 May 2012).
[5]
GNR.48 of 12 January 1965: Rules
Regulating the Conduct of the Proceedings of the Several Provincial
and Local Divisions
of the High Court of South Africa (“the
Uniform Rules”).
[6]
(1999) 20
ILJ
2408 (LC) para [14].
[7]
1977 (3) SA 534
(A) at 545 E-G.
[8]
Rule 30.
[9]
2001 (1) SA 737
(T) at para [16].
[10]
LRA s 1(d)(iv).
[11]
2006 (6) SA 568
(D) at 572.
[12]
Despite the fact that these numbers make no provision for Indians,
an accompanying memorandum to “all area commissioners”
states that : “The following Management areas must include
applicant [sic] of Indians [sic] race in their totals as follows:
Pollsmoor 2, Voorberg 3, Brandvlei 2, Breede River 2.
[13]
Supra
.
[14]
2010 (6) SA 166
(ECG) at 171.
[15]
1981 (3) SA 650
(W) at 657H-658B.
[16]
By virtue of s 168(3) of the Constitution, as amended by the
Constitution Seventeenth Amendment Act, 2012, that came into
operation
on 23 August 2013.
[17]
Supra.
[18]
Supra
at 172.