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[2015] ZALCJHB 127
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Rathogo v Department of Telecommunications And Postal Services and Others (J 721/15) [2015] ZALCJHB 127 (17 April 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO: J 721/15
DATE:
17 APRIL 2015
Not
Reportable
In
the matter between:
MARY-ANN
RATHOGO
.........................................................................................................
Applicant
And
DEPARTMENT
OF TELECOMMUNICATIONS
AND
POSTAL
SERVICES
..........................................................................................
First
Respondent
ADVOCATE
MOOKI
..............................................................................................
Second
Respondent
ADVOCATE
SM
SHABA
..........................................................................................
Third
Respondent
Heard:
10 April 2015
Delivered:
17 April 2015
Summary:
(An applicant may not rely on self-created urgency when seeking
urgent relief).
JUDGMENT
LALLIE
J
Introduction
[1]
The applicant launched this urgent application for an order in the
following terms:
“
2
interdicting and restraining the Respondents from proceeding with the
disciplinary proceedings set down to be heard on 10 April
2015
pending the First Respondent complying with prayer 3 below;
3
ordering the First Respondent to provide the applicant with all
relevant documents required to prepare for the hearing of the
disciplinary proceedings within 7 days of this order being granted;
4
ordering the recusal of the Second Respondent from the disciplinary
proceedings;
5
directing the First and Second Respondents to pay the costs of this
application on attorney and own client scale;”
[2]
The applicant is employed by the first respondent as a personal
assistant to the Deputy Director General: Administration. In
November
2014 the first respondent informed the applicant of its intention to
subject her to a disciplinary enquiry as a result
of serious
allegations of misconduct which were levelled against her. The
disciplinary enquiry was scheduled for 9 and 10 April
2015. On 23
January 2015, the applicant and the first respondent held a
preparatory conference which was presided over by the third
respondent, in his capacity as the chairperson of the disciplinary
enquiry. They reached an agreement on the conduct of the disciplinary
enquiry. In terms of the agreement the first respondent was required
to furnish the applicant with its bundle of documents on or
before 30
January 2015. The applicant submitted that only a portion of the
documents were delivered at the offices of her attorneys
on the
agreed date. The applicant exercised her right in terms of the
agreement and requested further documents on 9 February 2015.
The
first respondent was required to have replied to the applicant’s
request on or before 11 February 2015. Both parties
were to request
further particulars from each other by 16 February 2015 and the
requests, in the event of them being made would
have been applied to
by 20 February 2015. The applicant was required to file with the
third respondent her motivated preliminary
points, if any, by 27
February 2015, a step she submitted she was unable to take owing to
the first respondent’s failure
to reply to her request for
further documents. The first respondent was to respond to the
preliminary points, had they been filed,
on or before 6 March 2015.
The applicant submitted that it abandoned the timetable which the
parties had agreed on and considered
it no longer binding as a result
of the first respondent’s failure to comply with it.
[3]
On 9 April 2015 the date on which the disciplinary enquiry should
have proceeded, the applicant, through her counsel, advised
the third
respondent that the disciplinary enquiry was not ripe for hearing as
the first respondent had failed to provide the applicant
with
documents she had requested in breach of the agreement. The
agreement, including the dates on which the disciplinary enquiry
should have proceeded had, in the applicant’s view, fallen
away. He sought a postponement of the disciplinary enquiry. The
third
respondent refused to postpone the disciplinary enquiry on the
grounds that the applicant had been finished with all the
documents
in support of the first respondent’s case as early as 20
February 2015. He made a ruling that the disciplinary
enquiry should
proceed on 10 April 2015 in terms of the agreement as the
disciplinary enquiry was not contingent on the only outstanding
document, the SIU report. In response to the ruling the applicant’s
counsel informed the third respondent that the applicant
would not
attend the disciplinary enquiry but would exhaust other alternative
remedies which turned out to be the present urgent
application.
[4]
The first respondent opposed this application mainly on the grounds
of lack of urgency and exceptional circumstances which merit
this
court’s interference in incomplete disciplinary
proceedings. In addition, it submitted that the applicant failed
to
make the necessary averments for the granting of an interdict. The
first respondent submitted that on 20 February 2015 it provided
the
applicant with all the documents that she needed. Its response for
not furnishing the applicant with the SIU report was that
it was not
going to rely on it. It directed her to acquire it from the SIU. It
is common cause that by 20 February 2015 the applicant
was aware that
the first respondent had breached the agreement by missing the
deadline for furnishing her with the necessary documents.
She should
have, by 27 February 2015, filed an objection with the third
respondent who would have dealt with the matter immediately.
She did
not do so. She conceded that the matter did not move forward
meaningfully between 20 February 2015 and 30 March 2015 when
a letter
was forwarded on her behalf to the first respondent seeking extracts
of the SIU report which is alleged to implicate her
in some form of
wrong doing.
[5]
On the applicant’s own version an agreement was reached to deal
with any party’s failure to comply with it. Had
the applicant
complied with the agreement she would have brought the first
respondent’s failure to provide her with documents
to the
attention of the third respondent by 27 February 2015. The only
reason she proffered for not complying with the agreement
was that
the first applicant flouted it. The applicant was not at liberty to
take a unilateral decision that the agreement was
no longer binding
after she had failed to assert her right before the third respondent.
Any decision by the third respondent on
the first respondent’s
failure to comply with the agreement would have been taken shortly
after 27 February 2015 long before
the 9 April 2015 the date on which
the disciplinary enquiry was scheduled for hearing. The applicant
gave no valid reason for the
delay in taking steps to compel the
first respondent to discover the portions of the SIU support which
implicated her. The only
reason the applicant approached this court
on an urgent basis is that she created her own urgency on which she
may not rely.
[6]
The applicant conceded that she did not raise the issue of the
recusal of the second respondent with the third respondent. She
therefore raised it for the first time in this application. She
offered no explanation for not raising it on 9 April 2015 when
she
applied for the postponement of the disciplinary enquiry before the
third respondent. She sought to rely on
Booysen
v the Minister of Safety and Security and Others
[1]
where it was held that this court has jurisdiction to interdict
disciplinary action in exceptional cases. She however failed to
prove
exceptional circumstances which required this court to deal with the
issue of the second respondent’s recusal. She
also did not
justify this court’s intervention on an urgent basis.
[7]
I could find no reason for costs not to follow the result.
[8]
In the premises the following order is made:
8.1
The application is struck from the roll for lack of urgency.
8.2
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 Mokutu
Instructed
by: Matlala Von Me tzinger
For
the First Respondent: Advocate Mooki
Instructed
by: State Attorney
[1]
[2011]
1 BLLR 83
(LAC)