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[2014] ZALCPE 17
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Amsterdam v Minister of Correctional Services and Another (P58/14) [2014] ZALCPE 17 (27 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
No: P58/14
In
the matter between:
SEDRICK
SIMON
AMSTERDAM
.......................................................................................
Applicant
and
MINISTER
OF CORRECTIONAL
SERVICES
.......................................................
First
Respondent
REGIONAL
COMMISSIONER, DEPARTMENT OF
CORRECTIONAL
SERVICES, EASTERN
CAPE
..............................................
Second
Respondent
Heard:
14 May 2014
Delivered:
27 June 2014
Summary:
An applicant in an urgent application must furnish reasons for
urgency and state why urgent relief is necessary. Failure
to do
will lead to the application being struck from the roll for lack of
urgency.
JUDGMENT
Lallie,
J
Introduction
[1]
The applicant launched an urgent application for an order in the
following terms:
‘
1.1
that the respondents be and are hereby interdicted and/or restrained
from continuing with the recruitment process and any conduct
in
furtherance of the filling of the post of Deputy Director/;
Head Correctional Centre, East London Maximum (Ref CSA/2/2014)
as
advertised in the issue of City Press dated 16 March 2014,
pending the finalisation of this application;
1.2 the decision to transfer the
applicant from East London Maximum Correctional Centre to Mdantsane
Medium Correction Centre be
and is hereby declared wrongful and
unlawful and reviewed and set aside;
1.3 that the applicant be and is
hereby declared to be the Head of Correctional Centre, East London
Maximum pending the finalisation
of this application;
1.4 prayers in terms of
sub-paragraphs 1.1, 1.2 and 1.3 above shall operate as an interim
interdict or mandamus until the finalisation
of this application’.
Factual
background
[2]
The applicant was appointed to the position of Deputy Director:
Head Correctional Centre East London with effect from
3 May 2005.
A number of attempts were made to transfer him from the position as
early as 7 December 2006. He was successful
in resisting them.
[3]
The applicant attended a meeting on 1 March 2012 where the issue of
restructuring the Eastern Cape Centres of the Department
of
Correctional Services (the Department) was discussed. A system
of rotation of managers was amongst the points of discussion.
The purpose of the reshuffling was said to be to achieve a single
goal, which was the improvement of service delivery in Management
Areas and the Region. On 14 March 2012, the Department extended
an invitation to all managers who wished to relocate from
their
positions to express their wish in writing. The purpose of the
invitation was to afford managers in the Eastern Cape
Region an
opportunity of voluntary horizontal transfer. Where there were
no voluntary requests, recommendations whether to
rotate managers had
to be provided, based on the performance of each manager holding a
key position. Prime consideration
was given to persons who had
been in a post for a minimum of three years. The applicant did
not express a wish to be transferred
horizontally. He, however,
was consulted on 30 April 2012 regarding his horizontal transfer to
the post of Head Correctional
Centre: Mdantsane.
Representations were made on behalf of the applicant in a letter
dated 11 May 2012 in which the
applicant objected to his intended
transfer. The respondents did not respond to the
representations. In a letter dated
16 October 2013 the
respondents again expressed the intention to effect the transfer.
The transfer was said to have been
necessitated by the operational
reasons of the region and efforts to improve service delivery.
The applicant was required
to indicate whether he was accepting the
transfer by 21 October 2013.
[4]
A meeting in which the applicant expressed his concerns about the
transfer was held on 13 November 2013 between the applicant
and the
second respondent at the applicant’s request. The second
respondent asked the applicant to reduce his concerns
to writing.
The applicant submitted his written representations on 28 November
2013. They were mainly that the Mdantsane
official residence is
in a bad condition and too small to accommodate his furniture and
personal belongings. His family was
reluctant to move from East
London to Mdantsane, his transfer would therefore have a negative
effect on his marriage and family
ties. His daughter was
studying in East London and commuting daily would be very costly.
The insurance premiums of
his motor vehicles would be increased owing
to lack of safe garaging and the fact that Mdantsane is considered a
high risk area.
His transfer was pre-determined. He had
identified two managers who were keen to be transferred to
Mdantsane. The transfer
would have the effect of a demotion
owing to its burdensome financial implications and he was receiving
treatment for stress induced
by the proposed transfer from a
psychologist. The respondents responded by granting the
applicant permission to continue
using the East London official
residence and considered renovating and extending the Mdantsane
official residence.
[5]
On 29 November 2013, the applicant received a letter informing him
that his transfer had been approved. He lodged a grievance
against his transfer on 12 December 2013. On 23 December 2013,
the applicant’s psychologist wrote a letter to the respondents
appealing on his behalf. On 19 January 2014, the applicant was
informed that the matter had been finalized. The applicant
waited for the respondents to deal with his grievance. When he
did not hear from the respondents as he was on sick leave
from August
2013, he assumed that the respondents had abandoned their efforts to
transfer him as they had done in the past.
He launched this
application of 3 April 2014 after seeing ‘his’ position
being advertised in a newspaper on 27 March
2014.
[6]
The respondents raised two preliminary issues. The first is
that no grounds for review have been disclosed in the founding
affidavit and the interim interdict is therefore not competent.
The second is the applicant’s failure to make out a
case for
urgency. It will be appropriate to demine the issue of urgency first
as it is dispositive of this matter. The applicant
based the
urgency of his application on two grounds. Firstly, he
submitted that he has a valid contract of employment with
the
respondents in terms of which he was appointed to the impugned post.
He lodged a grievance which had not yet reached
its final level of
authority. In the event of the outcome of his grievance being
in his favour, he will be allowed to remain
in his post.
Secondly, the filling of his post is imminent as it has already been
advertised in the newspaper and the closing
date for submission of
applications being the 28 March 2014.
[7]
I will firstly deal with the applicant’s first ground of
urgency. Rule 8 (2) (a) requires an applicant for urgency
to
give reasons for urgency and state why urgent relief is necessary.
In
Caledon Street Restaurants CC v Monica de Aviera
[1998] JOL
1832
(SE)
an unreported decision of the South Eastern Cape Local
Division of the High Court of South Africa at page 54, the Court
expressed
the following view on the issue of urgency:
‘
The
objection of the respondent to the applicant’s bringing the
application on the basis of urgency was two fold in nature.
Firstly, it was contended that on the applicant’s own papers it
had been aware of the alleged conduct on the part of the
respondent
for a considerable period prior to its launching the present
proceedings on 21 October 1997. Its delay in bringing
the
proceedings had accordingly disqualified it from invoking an alleged
urgency. Secondly, on the premise (which was conceded)
that
there was some urgency present, the applicant had nevertheless not
been entitled to force the respondent into court within
the limit
time provided for in its notice of motion. Again, I consider it
unnecessary to canvass the validity of the first
leg of the
argument. The matter may be disposed of on the basis of the
second leg’
.
[8]
The applicant was made aware of his transfer upon receipt of his
letter of transfer on 29 November 2013. He elected to
lodge a
grievance on 12 December 2013. The department’s grievance
procedure provides as follows with regard to unresolved
grievances:
‘
If a
grievance is not resolved within the time frame (or as mutually
agreed) the grievance may promptly be forwarded to the higher
level
of authority by the aggrieved employee.
The grievance
must be forwarded to the higher level of authority by the employer in
any event’.
[9]
When the applicant did not hear from the respondents he did not
escalate his grievance to the higher level of authority.
Instead, his psychologist forwarded a letter to the first respondent
on 23 December 2013, appealing against the transfer on his
behalf.
On 19 January 2014, he was advised, in response to his psychologist’s
letter, that his transfer had been finalised.
The applicant
proffered no explanation for not filing the present application
shortly after being told that the matter had been
finalised. The
applicant’s explanation that he was waiting for the respondents
to escalate his grievance is untenable in
view of the provisions of
the grievance procedure which required him to escalate his
grievance promptly.
[10]
The applicant may not seek to rely on the respondents’ past
practice of putting on hold their attempts to transfer him
when he
challenged their conduct. The process of transferring him
continued unabated at the latest from the time of the consultation
of
13 November 2013. He had never been told in the past that a
decision to transfer him had been taken and that his transfer
had
been finalised. The delay caused by the applicant’s
unreasonable belief that his transfer had once more been put
on hold
base on past practice cannot be imputed on the respondents. It
is delay that the applicant is responsible for which
constituted
self-created urgency. The applicant’s first ground of urgency
does not hold water.
[11]
I now turn to the second ground of urgency, namely, the applicant
realized on 27 March 2013 that the filling of his post was
imminent.
The applicant was informed on 29 November 2013 of the decision to
transfer him. On 19 January 2014, he was
informed that his
transfer had been finalized. The confirmation provided the
applicant with the necessary clarity that he
had been transferred
from East London to Mdantsane. The East London post was no
longer his. He provided no valid reason
for waiting until the
post was advertised. The applicant cannot base the urgency of
his application on the advertisement
which was brought to his
attention on 27 March 2014 almost two months after the confirmation
of the finalisation of his tranfer.
The second ground has also
proved to be invalid.
[12]
The applicant served this application on the respondents on 2 April
2014 and required them to file their answering affidavit
the
following day. In view of the grounds of urgency the applicant
sought to rely on which proved to be invalid, the applicant
had no
reason to force the respondents to file their answering affidavit
just a day after the service of the application.
This
application therefore stands to be struck from the roll for lack of
urgency because the applicant created the urgency by delaying
in
bringing this application and the period within which the respondents
were required to file the answering affidavit was unreasonably
short
and not justified by the circumstances of this matter.
[13]
The respondents sought a costs order against the applicant.
Requirements of the law and fairness warrant a costs order
against
the applicant for forcing the respondent to appear in court at very
short notice for a matter whose urgency was not proved.
[14]
In the premises, the following order is made:
14.1
The application is struck from the roll with costs.
Lallie J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant: Advocate Nobatana
Instructed
by: Godongwana Ngonyama Pakade Attorneys
For
the Respondents: Advocate Kroon
Instructed
by: State Attorney