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[2014] ZALCPE 1
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Tantsi v Member of the Executive Council of Health - Eastern Cape Province and Others (P02/14) [2014] ZALCPE 1 (31 January 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
IN
PORT ELIZABETH
JUDGMENT
Case
No: P 02/14
DATE:
31 JANUARY 2014
REPORTABLE
In
the matter between:
ZOLEKA
PEARL PAMELA
TANTSI
...........................................................
APPLICANT
And
MEMBER
OF THE EXECUTIVE COUNCIL OF
HEALTH-
EASTERN CAPE PROVINCE
...............................
FIRST
RESPONDENT
FRANK
WESLEY PRETORIUS
.........................................
SECOND
RESPONDENT
ANDREW
CONROY
...................................................................
THIRD
RESPONDENT
HEARED:
30 JANUARY 2014
DELIVERED:
31 JANUARY 2014
Summary:
In urgent applications the applicant is required to provide reasons
for urgency, in the absence of which the application may not
be
granted.
JUDGMENT
LALLIE, J
Introduction
[1]
The applicant approached this Court on the basis of urgency for an
order reviewing and setting aside the first respondent’s
decision appointing the second respondent as the legal representative
of the Department of Health of the Eastern Cape Province
(the
Department) in her disciplinary hearing. She also seeks an order for
the stay of her disciplinary hearing pending the appointment
of the
Department’s representative who is not a legal practitioner, in
her disciplinary enquiry. The application is opposed
by the first
respondent.
Factual
background
[2]
The applicant was appointed by the Department as the General Manager:
Integrated Human Resources on 11 January 2012. On 28 October
2013 she
received a notice of a disciplinary enquiry in which she was charged
with 30 counts of misconduct. When the disciplinary
enquiry sat on 12
November 2013, the applicant objected to the appointment of the
second and third respondents as chairperson and
initiator
respectively. She based her objection on the following clause of the
SMS Handbook:
Paragraph
7.2.1
“
The
employer must appoint a person, from within or from outside the
public service, as chairperson of the disciplinary hearing.”
Paragraph
7.2.2
“
In
a disciplinary hearing, neither the employer nor the member (meaning
the employee) may be represented by the legal practitioner,
unless
the member is a legal practitioner. For the purposes of this
agreement, a legal practitioner is defined as a person who
is
admitted to practise as an advocate or an attorney in South Africa.”
[3]
In response to the objection the second respondent made an
application for legal representation. The applicant did not oppose
it
and expressed the view that she was faced with a fait accompli as the
Department had already been granted legal representation
by the first
respondent. In a letter dated 13 November 2013 addressed a letter to
the second respondent’s law firm in which
she expressed her
intention to have the first respondent’s decision reviewed. On
18 November 2013 the third respondent issued
his ruling on the
application and granted legal representation to both the Department
and the applicant. On 12 December 2013 the
date to which the
disciplinary enquiry was postponed, the applicant’s attorney
requested documents from the Department and
sought a postponement of
the disciplinary enquiry to the week of 6 to 10 January 2014 to
afford the Counsel they had briefed the
previous day an opportunity
to prepare. The postponement was granted. On 10 January 2014 the
founding papers were served and this
application was filed on 13
January 2014.
[4]
Opposing this application the first respondent raised the following
points in limine: disciplinary proceedings do not constitute
administrative action, lack of urgency, waiver and failure to review
the chairperson’s decision on legal representation.
[5]
Rule 8 (2) of the Labour Court Rules (Rules) requires an applicant in
an urgent application to give reasons for urgency, the
necessity of
urgent relief and explanation for the non-compliance with the
requirements of the Rules. The first hurdle the applicant
needs to
clear is urgency.
[6]
The reason given by the applicant for urgency in her founding
affidavit is that the disciplinary enquiry was scheduled for 28,
29
January and 3 February 2014. She further submitted that the
composition of the disciplinary enquiry was in breach of the Handbook
which breach rendered the disciplinary enquiry useless. In her
replying affidavit she submitted that urgency is not one of the
requirements for a final interdict aimed to stop a continuing wrong.
[7]
The necessity to prove urgency in urgent application cannot be
overlooked. In Mimmo’s Franchising CC and Others v Spiro
and
Others
1
the Labour Appeal Court made it clear that the provisions of Rule 8
which require the applicant to prove urgency, apply to all
urgent
applications, irrespective of whether the relief claimed is of an
interim of final relief. In Radinaledi Josiah Mosiane
v Tlokwe City
Council
2
the matter was struck from the roll because the grounds of urgency
raised and the type of dispute before court was found not
to be
sufficient to allow the applicant to jump the queue. The following
dictum in National Police Service Union and others v National
Negotiating Forum and others
3
is apposite “the latitude extended to parties to dispense
with the rules of this court in circumstances of urgency is an
integral part of a balance that the rules attempt to strike between
time-limits that afford parties a considered opportunity to
place
their respective cases before the court and a recognition that in
some instances, the application of the prescribed time-limits,
or any
time-limits at all, might occasion injustice. For the reason that,
rule 8 permits a departure from the provisions of rule
7, which would
otherwise govern an application such as this. But this exception to
the norm should not be available to parties
who are dilatory to the
point where their very inactivity is the cause of the harm on which
they rely on to seek relief in this
court”.
[8]
The applicant’s reason for urgency when this application was
filed on 13 January 2014 that her disciplinary enquiry was
scheduled
for 28, 29 and 3 February 2014 is unacceptable. The applicant became
aware of the second respondent’s appointment
as the
Department’s legal representative at her disciplinary enquiry
as early as the 28 October 2013 when she received her
notice to
attend the disciplinary enquiry. On 13 November 2013, she expressed
her intention to have the first respondent’s
decision
appointing the second respondent reviewed. She was legally
represented at her disciplinary enquiry on 12 December 2013
when an
application for postponement was made on her behalf to afford her
legal team an opportunity to prepare. Even in the event
of her first
consultation with her legal team being held on 13 December 2013
bringing an urgent application a month later constituted
inordinate
delay and obliterated urgency. In addition, the urgency the applicant
sought to rely on is self-created.
[9]
The applicant’s submission that the composition of the
disciplinary enquiry was in breach of the Handbook and therefore
useless cannot found urgency. It is an issue she should have raised
at the disciplinary enquiry as she correctly did, however,
her
dissatisfaction with the manner in which it was dealt with does not
constitute grounds for urgency. She could have raised it
at
arbitration in the event of the matter proceeding to arbitration and
later at this Court, after the completion of the arbitration
process
when reviewing the arbitrator’s decision not to handle the
issue reasonably, if her gripe persisted.
[10]
The applicant’s argument that urgency is not one of the
requirements for a final interdict aimed at stopping a continuing
wrong is misplaced. The main application before me is a review
application as the applicant seeks an order reviewing and setting
aside the first respondent’s decision. On the applicant’s
own version a review application falls outside the realm
of cases
where urgency is not a requirement. The application for an interdict
restraining the Department from proceeding with the
disciplinary
enquiry is predicated on review application.
[11]
This application was brought during court recess for no reason at all
as the applicant could proffer no reason for urgency.
I could find no
reason for costs not to follow the result.
[12]
In the premises the following order is made:
12.1
The application is struck from the roll for lack of urgency.
12.2
The applicant is ordered to pay the first respondent’s costs.
LALLIE,
J
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Advocate Nduzulwana
Instructed
by: Ntwendala Attorneys
For
the First Respondent: Advocate Rorke, SC.
Instructed
by: Wesley Pretorius and Association
1
Unreported
under case number J1889/00 at para [29]
2
(2009)
30 ILJ 2766(LC)
3
(1999)
20 ILJ 1081 (LC) para [39]