About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 246
|
|
Majola v MEC for Roads & Transport: Gauteng Provincial Government and Others (J1529/15) [2015] ZALCJHB 246 (7 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case
no: J1529/15
BONGA
BLADWIN MAJOLA
Applicant
and
MEC FOR ROADS &
TRANSPORT: GAUTENG PROVINCIAL GOVERNMENT
First Respondent
HOD FOR ROADS &
TRANSPORT: GAUTENG PROVINCIAL GOVERNMENT, MR RONALD SWARTZ
Second Respondent
GRAHAM MOSHOANA,
N.O.
Third Respondent
Heard:
6 August 2015
Delivered:
7 August 2015
Summary:
Self-created urgency –
application struck from the roll with costs.
JUDGMENT
MYBURGH,
AJ
[1]
In
this urgent application, the applicant seeks an interim order that
the respondents be interdicted from proceeding with any disciplinary
action or inquiry against him, pending the finalisation of the
“occupational determent dispute”
[1]
referred by him to the bargaining council,
[2]
including the adjudication of the dispute by this court.
[2]
The matter comes about in the following
circumstances.
a.
The applicant is employed by the Gauteng
Provincial Department of Roads and Transport (the department) as
chief director: registration
and operating licensing. He reports to
the second respondent (Mr Swartz), who is the head of the
department. The department
falls under the control of the first
respondent (the MEC).
b.
On 24 July 2014 and 10 October 2014,
respectively, the applicant made two separate disclosures. In the
first disclosure, the applicant
informed the Premier of the Province
of Gauteng (the Premier) of certain tender improprieties. In the
second disclosure, the applicant
informed the MEC of his belief that
Mr Swartz and certain other officials had colluded in the
appointment of a firm of attorneys
to act on behalf of the department
in an arbitration involving so-called contract workers.
c.
On 28 October 2014, an urgent application
brought by the applicant to interdict a disciplinary inquiry
scheduled for 30 October
2014 was heard in this court by Molahlehi J.
The applicant’s cause of action was the same as his cause of
action in this
matter – the contention was that being subjected
to disciplinary action (in the form of a disciplinary inquiry) was an
occupational
detriment arising from his disclosure to the Premier.
d.
On 4 November 2014, Molahlehi J handed down
judgment in which he dismissed the application with costs. This on
account of it having
been found that there was no causal connection
between the disciplinary charges (involving a contravention of the
National Strategic
Intelligence Act) and the disclosure made to the
Premier. (The applicant sought to appeal the judgment, but his appeal
has lapsed
due to his failure to deliver the record within time.)
e.
Turning now to the immediate run up to this
matter, on 4 June 2015, the applicant was given notification of his
precautionary suspension.
The notice sets out the “allegations”
against the applicant and advised of his suspension “pending
the finalization
of the disciplinary hearing”. The allegations
were described as follows in the notification: (i) “misleading
senior
counsel … on the opinion dated 21 November 2013 on the
issue of contract workers”; (ii) “you failed or neglected
to implement the settlement agreement that was signed on 1 October
2014 arising from the dispute that was referred to the bargaining
council, despite repeated instructions to do so” (this dispute
related to the termination of contract workers); (iii) “gross
insubordination” arising from this; and (iv) incurring wasteful
and fruitless expenditure in “conduct[ing] interviews
at the OR
Tambo International Airport Holiday Inn Garden Court … .”
f.
The applicant’s suspension appears to
have taken effect on 8 June 2015.
g.
On 10 June 2015, and arising from his
suspension, the applicant referred an occupational detriment dispute
to the bargaining council.
In his referral, he described the outcome
sought by him as the “suspension of proceedings with all (sic)
disciplinary actions
or enquiry against me pending the outcome of
this dispute, and if the conciliation does not resolve the dispute,
pending adjudication
by the Labour Court”. (On 22 June 2015,
the bargaining council issued a certificate of non-resolution in the
suspension dispute.)
h.
On 17 June 2015, the applicant filed an
urgent application in this court, in which he sought,
inter
alia
, an order that his suspension be
set aside pending the finalisation of the dispute referred to the
bargaining council (“the
first application”).
i.
The first application was heard by Coetzee
AJ on 23 June 2015, who granted an order postponing the matter
sine
die
and setting a timetable for the
filing of an answering and replying affidavit. The affidavits have
been filed (the replying affidavit
on 30 June 2015), and the matter
is now awaiting set down.
j.
On 24 July 2015, the applicant was issued
with a notice to attend a disciplinary inquiry scheduled for 3 August
2015. The charges
against the applicant are exactly the same as those
set out in his notice of suspension issued on 4 June 2015.
k.
On 27 July 2015, arising from having been
called to attend a disciplinary inquiry, the applicant referred a
second occupational
detriment dispute to the bargaining council.
l.
On 30 July 2015, the applicant launched the
present application, in which he seeks the relief described in para 1
above (“the
second application”). The applicant’s
cause of action in the second application is the same as his cause of
action
(or at least a substantial part of it) in the first
application. According to him, the disciplinary action (just like his
suspension)
is an occupational detriment arising from the two
disclosures referred to in para 2(b) above.
m.
On 31 July 2015, being the date upon which
the second application was set down, Van Niekerk J
postponed it to 6 August
2015, and set a timetable for the
delivery of an answering and replying affidavit.
n.
It was in these circumstances that the
matter came before me on 6 August 2015.
o.
The disciplinary inquiry has been
rescheduled for later this month.
[3]
Given the chronology of events set out
above, it is not surprising that the department took the point at the
hearing before me that,
insofar as the second application is urgent,
such urgency has been self-created, with the result that the matter
should be struck
from the roll.
[4]
Having considered the submissions of the
parties on this issue, I am of the view that the department’s
point certainly has
merit. This for the following main reasons.
a.
As far back as 4 June 2015, the applicant
was aware that he was going to be arraigned before a disciplinary
inquiry, and of the
charges that he was going to face (which came to
pass on 24 July 2015).
b.
On 10 June 2015, in his referral to the
bargaining council arising from his suspension, the applicant
expressly recorded that he
sought by way of outcome that “all
disciplinary action or enquiry” should be suspended pending the
outcome of the referral.
The applicant thus considered any
disciplinary action (in the form of a disciplinary inquiry) at the
time as constituting an occupational
detriment and was opposed
thereto. (Yet he waited some 1 ½ months before bringing
the second application.)
c.
In his first application brought as far
back at 17 June 2015, which was launched off the back of this
bargaining council referral,
the applicant limited the relief that he
sought to his suspension – and inexplicably did not extend it
to cover any disciplinary
action or inquiry (as per his referral).
d.
Instead of doing so, the applicant waited
until he was charged on 24 July 2015 before challenging the
conducting of a disciplinary
inquiry in his second application
(launched on 30 July 2015). In so doing, the applicant created
his own urgency, which, on
first principle, is impermissible.
e.
This
much is clear from the following finding by the Constitutional Court:
“The applicants' conduct seems to be a classic
example of the
creation of one's own urgency, which under normal circumstances would
justify a finding that no urgency has been
shown.”
[3]
There is nothing abnormal about the circumstances of this matter; the
principle thus applies.
[5]
There
is another related problem with the second application. It is that
substantially the same application (between the same parties
involving the same cause of action) is already before court –
this in the form of the first application. Whether or not a
plea of
lis
pendens
[4]
would be upheld in such circumstances need not be decided at this
stage (and was not raised or argued). For present purposes, the
importance of the existence of the two parallel and substantially
similar applications, is that it demonstrates that the urgency
surrounding the second one is self-created.
[6]
In their heads of argument, both parties
submit that a punitive costs order should be granted. To my mind,
costs in the ordinary
course will suffice.
[7]
In the result, the following order is made:
1.
The application is struck from the roll for
lack of urgency;
2.
The applicant shall pay the first and
second respondents’ costs.
________________________________
Myburgh, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the applicant: M Ramushu of Ramushu Mashile
Twala Inc
On
behalf of the first and second respondents: V Soni SC (instructed by
Norton Rose Fulbright Inc)
[1]
In
terms of section 186(2)(d) of the LRA, the following constitutes an
“unfair labour practice”: “an occupational
detriment, other than dismissal, in contravention of the Protected
Disclosures Act, 2000 [‘the PDA’] … on
account of
the employee having made a protected disclosure defined in that
Act.” Section 1 of the PDA defines an “occupational
detriment” as including being subject to “disciplinary
action” or being “suspended”.
[2]
The
General Public Service Sectoral Bargaining Council (GPSSBC).
[3]
Ex
parte Minister of Social Development and others
[2006] ZACC 3
;
2006 (4) SA 309
(CC) at para 17.
[4]
The
requirements for the establishment of a plea of
lis
pendens
are that the litigation is between the same parties; that the cause
of action is the same; and that the same relief is sought
in both.
In the present matter, the first two requirements are satisfied, but
the relief is marginally different, in that the
first application
seeks to stay the applicant’s suspension, whereas the second
application seeks to stay his disciplinary
inquiry. However, in
Caesarstone
v Sdot-Yam Ltd v World of Marble and Granite 2000 CC and others
2013 (6) SA 499
(SCA) at paras 21-22, the SCA found that the
requirement that the relief claimed had to be the same could be
relaxed where
the circumstances supported doing so. This is probably
such a case.