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 325
|
|
Kekana v Mogalakwena Local Municipality (J1814/15) [2015] ZALCJHB 325 (22 September 2015)
REPUBLIC
OF SOUTH AFRICA
Not
Reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: J 1814/15
In
the matter between:
SHELLA WILLIAM
KEKANA
Applicant
And
MOGALAKWENA LOCAL
MUNICIPALITY
Respondent
Heard
:
22 September 2015
Delivered
:
22
September 2015
Ex
Tempore
judgment
WHITCHER
J
[1]
The applicant applied on an urgent basis
for an order interdicting the respondent from making a permanent
appointment of a new Municipal
Manager pending the finalisation of a
review application filed by the applicant and which was heard on 18
September 2015 in connection
with the termination of his employment
by the respondent. Judgment in the review application is still
pending.
[2]
In my view, for this court to grant such a
drastic order, namely the stopping of the appointment process, and
for such an order
to have any meaningful effect, the applicant had to
show, amongst other things, that there is a competent prayer in the
review
application for the applicant’s reinstatement and that
the applicant has prospects of success in the review application.
[3]
The relief sought in the review application
is essentially for declaratory relief. It is not coupled with a
prayer for reinstatement.
The applicant’s counsel stated that a
prayer for reinstatement was made from the bar and/or in the
applicant’s heads
of argument in the review application. In my
view this act did not bring into existence a competent prayer for
reinstatement in
the review proceedings.
[4]
Accordingly, the grant of the declaratory
order will not restore the status quo ante and will not reinstate the
applicant.
[5]
Moreover, even if there was a competent
prayer for reinstatement and even if the reviewing court does find
unlawfulness on the conduct
of the respondent, this finding will not
by itself result in the applicant’s reinstatement without a
consideration of the
fairness or practicability of such an order.
There are no averments in the review application to the effect that a
reinstatement
order would not operate unfairly on the respondent.
[6]
Finally, even if a competent prayer for
reinstatement existed in the review application, there is no law that
prohibits the respondent
from proceedings with the appointment
process of another municipal manager. The only consequence for the
respondent is that it
is taking the risk that in the event of a
competent body reinstating the applicant, it may have to terminate
the services of the
new municipal manager. This also means that the
applicant has failed to establish irreparable harm.
[7]
There is also no averment or evidence
before me that the appointment process is unlawful.
[8]
Regarding the prospects of success on
review, this is highly questionable considering the issues raised by
the respondent in such
application, namely the impractical effect of
prayers for declaratory relief not coupled with prayers for
substantive relief, the
issue of jurisdiction (the applicant’s
complaint in the review application relates to his dismissal) and the
applicant’s
prosecution of his defence at a duly constituted
disciplinary hearing.
[9]
In the circumstances the applicant has
failed to establish a prima facie right that deserves protection on
an urgent basis and also
failed to establish irreparable harm.
[10]
The respondent asked for costs on an
attorney-client basis. I see no reason not to order same considering
the reasons why I have
dismissed this applicant and considering that
this is the second time that the applicant has brought the same
application. On 11
September 2015 this very same application was
dismissed for lack of urgency.
Order
[11]
The application is dismissed. The applicant
is ordered to pay the respondent’s costs on an attorney client
scale.
_______________________
B Whitcher
Judge of the Labour Court
of South Africa
APPEARANCES
APPLICANT:
Adv
M N Mangene instructed by Mapotene Mangena Inc
RESPONDENT: Adv
T Mokhatla instructed by Hogan Lovells (SA) Incorporated as Routledge
Modise Inc