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[2015] ZALCJHB 339
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SAMWU obo Members v Lephalalele Local Municipality and Another (JR1253/2015) [2015] ZALCJHB 339 (30 September 2015)
THE LABOUR COURT OF
SOUTH AFRICA,
JOHANNESBURG
Case no: JR1253/2015
DATE: 30 SEPTEMBER 2015
Not Reportable
SAMWU OBO
MEMBERS
.....................................................................................................
Applicant
And
LEPHALALELE LOCAL
MUNICIPALITY
............................................................
First
Respondent
E
TUKAKGOMO
.....................................................................................................
Second
Respondent
Heard: 30 June 2015
Delivered: 30 SEPTEMBER 2015
EX TEMPORE JUDGMENT
WHITCHER J
Introduction
[1] This matter came before me as an
urgent application in terms of which the Applicant sought to
interdict and restrain the First
Respondent from making an
appointment to the position of Municipal Manger and from issuing a
contract of employment to the recommended
candidate or any other
runner-up to the position. The Applicant further sought an order
directing the First Respondent to start
afresh with the shortlisting
of candidates for the position in question and to invite the
Applicant to participate in the selection
process as an observer.
[2] On the day of the hearing, I
dismissed the application with no order as to costs and provided
brief reasons for my order. What
follows is an edited and
supplemented version of my ex tempore judgment.
[3] In summary, the application was
premised on the allegations that the First Respondent, contrary to
its recruitment policy, failed
to invite the Applicant as an observer
to the shortlisting process and that the successful candidate is due
to commencement employment
on 1 July 2015. The Applicant’s
specific allegations were that:
[4] On 15 June 2015 the Applicant
received an invitation from the First Respondent to attend the
interviews for the position of
Municipal Manager. The interviews were
to be held on 19 June 2015.
[5] On 18 June 2015 the Applicant’s
attorneys sent a letter to the First Respondent. In the letter the
Applicant claimed that,
contrary to the First Respondent’s
recruitment policy, it had not been invited as an observer to the
shortlisting process
and demanded that the interviews be stopped. The
First Respondent did not respond to the letter.
[6] On 19 June 2015, representatives
from the Applicant attended the interview process and reiterated
their demand. The First Respondent
refused to stop the process.
[7] The Applicant’s
representative then left the interview process before it was
concluded.
[8] On 23 June 2015 their attorneys
received a call from someone in the First Respondent’s
corporate services and this person
identified the 1 July 2015 as the
possible date of commencement of employment for the successful
candidate.
[9] The Applicant referred the Court to
Clause 6.3.2 of the First Respondent’s Staff Provisioning
Policy (“Recruitment
Policy”) which is headed ‘Selection
Process’ and contains a provision which states that: “Labour
Unions
may attend the proceedings as observers only”.
[10] The Applicant also referred to
clause 10 which provides that the role of labour unions in the
process is to ensure transparency
and openness in the selection
processes.
Analysis
[11] As the matter concerns the
granting of urgent final relief, the Applicant must establish
urgency, the existence of a right
in law and fact accruing to the
Applicant; an injury actually committed or reasonably apprehended and
the absence of any other
satisfactory remedy. Inasmuch as the
present proceedings are motion proceedings (in which the Applicants
seek final relief), the
rule stated in Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H-635C is
applicable, i.e. the application is to be decided on the First
Respondent’s version together with the
admitted facts in the
Applicants’ founding affidavit and the facts stated in the
First Respondent’s answering affidavit
are to be accepted
unless the First Respondent’s versions are so far-fetched or
clearly untenable that the court would be
justified in rejecting such
version merely on the papers.
Urgency
[12] The Applicant based this claim on
an averment that the successful candidate would “possibly”
commence employment
on 1 July 2015 and this allegation was based on
the alleged statements of an unidentified person.
[13] The Applicant thus brought this
application on a vague unsubstantiated claim that the successful
candidate was due to commence
employment on 1 July 2015.
[14] The First Respondent further
pointed out that subsequent to the interviews on 19 June 2015, in
terms of the
section 54A
of the
Local Government: Municipal Systems
Act 32 of 2000
, a period of at least 42 days must pass before a
formal appointment may be made because various other procedures,
described therein,
must be followed.
[15] The relevant provisions of the Act
read as follows:
“(7)(a) The municipal council
must, within 14 days, inform the MEC for local government of the
appointment process and outcome,
as may be prescribed.
(b) The MEC for local government must,
within 14 days of the receipt of the information referred to in
paragraph (a), submit a copy
thereof the Minister.
(8) If a person is appointed as
municipal manager in contravention of this section, the MEC for local
government must, within 14
days of receiving the information provided
for in subsection (7), take appropriate steps to enforce compliance
by the municipal
council with this section, which may include an
application to a court for a declaratory order on the validity of the
appointment,
or any other legal action against the municipal council.
(9) Where an MEC for local government
fails to take appropriate steps referred to in subsection (8), the
Minister may take the steps
contemplated in that subsection.
[16] In light of these factors, I found
that the Applicant had failed to establish urgency.
Breach of a right in law and fact
[17] The Applicant also failed to
establish that the First Respondent had or intended to breach a right
in fact and law accruing
to the Applicant.
[18] Anna Elizabeth Maartens, the
acting Executive Manager: Corporate Services of the First Respondent
deposed to an affidavit in
which she alleges that she specifically
called and spoke to Mr PP Thulane, the local Chairperson of the
Applicant, on 11 May 2015
and informed him that the shortlisting
process would be held on 12 May 2015.
[19] She also invited IMATU, the other
trade union operating at the First Respondent. In this regard, the
First Respondent attached
to its opposing affidavit the attendance
register of the shortlisting process. According to the register,
IMATU attended the shortlisting
process.
[20] Based on the Plascon-Evans rule, I
found Ms Maarten’s version plausible because she identified the
specific union official
she spoke to and the date she spoke to him.
Moreover, her version that she invited the unions, including the
Applicant, is in a
sense supported by the fact that IMATU attended
the shortlisting process. It also seems to me that if the First
Respondent invited
the Applicant to the interviews, they had no
reason not to invite the Applicant to the shortlisting process.
[21] Turning to the clauses (described
earlier on) in the recruitment policy, it is clear that the purpose
of these clauses is to
provide some on-site oversight of the
recruitment process by organised labour. In my view, the purpose of
the clause was fulfilled
when IMATU attended the shortlisting
process.
Alternative remedy
[22] The First Respondent pointed out
that recruitment policy and
section 54A
of the
Local Government:
Municipal Systems Act 32 of 2000
contains numerous other safeguards
and monitoring processes to ensure a fair, transparent and lawful
appointment process. In this
regard, the Applicant has sufficient
alternative means in this particular situation to still protect the
interests of its members.
Order
[23] In the premises, the following
order is made:
1. The application is dismissed with no
order as to costs.
Whitcher J
Judge of the Labour Court of South
Africa
APPEARANCES:
On behalf of the Applicant: Adv P
Kirstein (instructed by Maenetja Attorneys)
On behalf of the First Respondent:
Adv B L Roode (instructed by Mohale Incorporated)