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[2015] ZALCJHB 276
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Zulu v Hotel, Liquor, Catering, Commercial & Allied Workers Union of South Africa (HOTELICCA) and Another (J1710/2015) [2015] ZALCJHB 276 (28 August 2015)
Of
interest to other judges
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: J 1710/2015
In
the matter between:
THEMBA ZULU
Applicant
And
HOTEL, LIQUOR,
CATERING, COMMECIAL & ALLIED WORKERS UNION OF SOUTH AFRICA
[“HOTELICCA”]
First Respondent
GETRUDE KHOZA
(NATIONAL PRESIDENT)
Second Respondent
Heard
:
28 August 2015
Delivered
:
28 August 2015
Summary:
(interdict-unlawfulness-lack of urgency-costs)
JUDGMENT
LAGRANGE
J
[1]
This is an urgent application seeking a
final declarator that the applicant’s suspension on 6 August
2015 is ultra vires the
first respondent’s Constitution and
that his suspension be set aside and he would be allowed to resume
his duties as general
secretary of the first respondent. The
respondents raised preliminary objections relating to urgency and
jurisdiction.
[2]
During the course of argument, the
respondents rightly conceded that this court does have jurisdiction
to deal with the lawfulness
of a suspension as opposed to simply the
unfairness thereof. Consequently the only other preliminary point to
be determined is
that of urgency.
[3]
The applicant was suspended by the first
respondent on 6 August 2015 as a precautionary measure to investigate
allegations of misconduct
which were set out in the letter of
suspension. The following day the applicant issued a letter to all
structures of the union,
NEC and BEC members as well as ordinary
members and NACTU affiliates and members. The letter calls on
intervention not by the union
but by NACTU CC members and affiliates
to save the union “from the destructive program” of a
certain Mr N Moloto, the
general secretary of NACTU, BCAWU and PAC.
It also states in one line that the so-called suspension “is
rejected” and
“does not hold water”. No direct
appeal was made to any structure of HOTELLICA to rescind or revoke
the actions of
the President in suspending the applicant.
[4]
There is no evidence in the founding papers
that the applicant took any steps to appeal against his suspension
internally to any
appropriate union structure, but he claims that he
learnt, at some unspecified time, that the issue of his suspension
would be
raised and dealt with during the NEC’s ordinary
meeting scheduled for 22
nd
to 23
rd
of August 2015. He states that: “I was then relieved of the NEC
would successfully deal with the issue of my suspension in
my
favour.”
[5]
He then says that he learnt to his shock
and surprise that the meeting had been postponed without a new date
been set which placed
him in limbo and meant that the issue of his
suspension would “not to be remedied by the NEC on 22
nd
to 23
rd
of August 2015.” No attempt was made to find out if and when an
NEC meeting would take place. Instead an ultimatum by way
of a letter
from the applicant’s attorney was written to the respondents on
18 August 2015 demanding that his unlawful suspension
been lifted by
no later than 10 H00 the following day. It is common cause that by
the following day the second respondent refused
to comply with the
demand. The next step taken by the applicant was to launch this
urgent application on Friday 21 August, calling
upon the respondents
to file any opposing papers by 14h00 on 24 August 2015 and setting
the matter down for Tuesday, 25 August
2015. No reasons of any
substance were advanced in the founding papers why the matter had to
be enrolled for that date and why
the respondents had to be placed
under such a short timetable for filing of answering the affidavits.
[6]
It is a trite principle in urgent
applications that a party must justify the degree to which it wishes
to abbreviate the rules of
court in bringing an urgent application.
In this instance, the time period in question is the abbreviation of
the 15 court days
that would normally be required to finalise
pleadings. If one considers what prompted the application being
brought on 21 August
rather than a week or so after the applicant was
originally suspended, the only explanation apparent from the papers
is that he
learnt that the NEC, which he believed was the appropriate
forum to deal with his issue would not be sitting. If the respondent
had refused to notify him of the next date on which the NEC would
sit, or if that date was unreasonably far away, that might have
justified him launching the application when he did. However, even if
he felt the absence of an imminent NEC meeting was sufficient
reason
to launch the application, that does not explain why the respondent’s
had to be given the short notice they were given,
nor does it explain
why the matter had to be set down on Tuesday this week.
[7]
The applicant argued that in so far as the
matter might have been set down earlier than necessary that is simply
an issue which
goes to the question of costs. I disagree. It is an
issue that goes to the very essence of justifying expedited
proceedings. I
do not for a moment suggest that the applicant would
not have been justified in seeking urgent redress if he was unable to
obtain
any substantial relief from the structure of the union which
he claims is the only one that can deal with issues of discipline and
suspension, within a reasonable time. The first time he ever raised
the importance of the NEC addressing his suspension was in
the
founding affidavit. In reply the respondents agreed that the
previously scheduled NEC had been postponed, but pointed out that
a
special NEC meeting was scheduled for 29 August 2015 at which the
very issue of his suspension and charges, amongst other things
would
be discussed. The notice of this meeting was issued on the day before
the applicant launched this application.
[8]
At the hearing of this matter, it was
suggested that what also made the matter urgent was that it was
untenable for the applicant
to remain unlawfully suspended when the
decision to suspend him was in effect a nullity because the President
did not have the
power to suspend him in the first place. It was also
argued that the NEC could not in fact remedy his unlawful suspension,
even
though in his own papers he clearly saw that body as the
appropriate one to address his complaint. Even assuming the NEC
cannot
change the fact that an allegedly unlawful decision was taken
at a particular time, there is no reason why it cannot simply
reinstate
the applicant so that he can perform his duties. Thereby
the applicant could obtain substantial redress.
[9]
Had the applicant simply demanded a hearing
before the NEC, which it seems is what he was waiting for, instead of
launching the
application, he would have learnt that an NEC intended
to deal with his suspension was already scheduled. Accordingly, he
could
then have demanded an opportunity to make representations at
that meeting as to why he should be immediately reinstated and why
no
further suspension should be imposed. He jumped the gun and launched
the application instead. Not only was his application premature
but
it also without justification sought to have the matter heard on
extremely short notice.
[10]
Whatever the merits of his claim that his
suspension was unlawful are, I am satisfied that the applicant failed
to meet the requirements
of urgency for the reasons above, and the
matter must be struck off the roll for lack of urgency.
[11]
On the question of costs, the respondents
are seeking punitive costs against the applicant. Given that there
may be merit in his
underlying claim and accepting that the
application might have been launched on advice at extremely short
notice, I am disinclined
to award the respondents their costs of
opposing the application on the first day. However, once the
applicant had received the
answering affidavit and realised that an
NEC meeting was scheduled to be held tomorrow, he should not have
persisted with this
application but should at least have asked for it
to be postponed pending the deliberations of that meeting. In those
circumstances
today’s proceedings were unnecessary and the
wasted costs associated with attendance and preparing for today’s
argument
should be paid by the applicant.
Order
[12]
The application is struck off the roll for
lack of urgency.
[13]
The applicant must pay the respondent’s
costs of today’s appearance including the costs of preparing
for today’s
hearing, which include the costs of counsel.
____________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Instructed
by:
Adv.
J S MPHAHLANE
Baloyi
Attorneys
RESPONDENTS:
Instructed
by:
Adv.
T. Colyn
Van
der Merwe Associates