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[2015] ZALCPE 46
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Fani v Buffalo City Metropolitan Municipality and Others (P322/15) [2015] ZALCPE 46 (8 October 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
CASE
NO: P 322/15
In
the matter between
ANDILE
FANI
Applicant
and
BUFFALO
CITY METROPOLITAN
MUNICIPALITY First
Respondent
EXECUTIVE
MAYOR, Nomine Officio,
BUFFALO
CITY METROPOLITAN MUNICIPALITY Second
Respondent
SPEAKER,
Nomine Officio,
BUFFALO
CITY METROPOLITAN MUNICIPALITY
Third
Respondent
VINCENT
PILLAY, THE ACTING CITY MANAGER,
BUFFALO
CITY METROPOLITAN MUNICIPALITY
Fourth
Respondent
Heard:
6 October 2015
Delivered:
8 October 2015
Summary:
The
delay in bringing an urgent application and failure to give reasons
why urgent relief is necessary are individually sufficient
to render
an urgent application irregular.
JUDGMENT
Lallie
J
[1]
The applicant is the City Manager of the first respondent. He
launched this urgent application on 18 September 2015 for an order
in
the following terms:
“
1.
The applicant’s non-compliance with the rules of the above
Honourable Court relating
to forms and service of this application be
condoned;
2.
The applicant be granted leave to bring this application on short
notice to the
Respondents and is a matter of urgency;
3.
A Rule Nisi be issued calling upon the Respondents to show cause
before the Honourable
Court on the 30
th
October 2015 at
10H00 why an order in the following terms may not be made final that;
3.1. The
implementation of the purported resolution of the Council of the
First Respondent taken on
25
th
of August 2015 be suspended
pending the final determination of the application for Review
instituted before the above Honourable
Court under case no.
P182/2015.
3.2. The
purported suspension of the applicant by the Council of the First
Respondent on 8
th
of September 2015 from his position as
City Manager of the First Respondent be declared premature, unlawful,
unconstitutional and
set aside;
3.3. The
applicant be and is hereby granted an order to return to his
workplace and position as City
Manager of the First Respondent
pending the final determination of the Review application.
3.4. The
respondents be interdicted in any way from disturbing, preventing
and/or disallowing the
Applicant from doing his work as the City
Manager of the First Respondent;
3.5
The investigation authorised by the purported resolution of Council
on 25 August 2015 as
well as any act pursuant thereto including the
appointment of any external service provider to undertake such
investigations by
the respondents be declared unlawful, premature,
unconstitutional and set aside.
3.6
The appointment of the fourth Respondent by the Council of the first
Respondent be declared
unlawful, unconstitutional and set aside.
3.7
The First, Second and Third Respondents pay the costs of this
application on an attorney
and client scale.
3.8
Further or alternative relief.
4.
That paragraphs 3.1 to 3.6 operate as an interim interdict pending
the final
determination of this application.”
[2]
The application is opposed by the respondents who raised a number of
points
in limine
one of which is urgency. The applicant
submitted that
ex facie
the founding papers, it is clear that
the founding papers were prepared on 9 September 2015 but delivered
on the first respondent
on 15 September 2015 after 12h00, giving the
municipality one and a half days to file opposing papers. The
occurrences the applicant
is complaining about took place on 25
August 2015 and were brought to his attention the following day. It,
however, took the applicant
21 days to launch this application.
[3]
The applicant did not deal with the issue of urgency in his founding
affidavit where he was required to have stated his case.
It was
argued on behalf of the applicant that his application is inherently
urgent. Urgent applications are governed by Rule 8
of the Rules for
the Conduct of Proceedings in the Labour Court (“the Rules”)
which requires the founding affidavit
to contain reasons for urgency
and why urgent relief is necessary.
[4]
It was argued on behalf of the respondents that it is established law
that a litigant who seeks to dispense with the ordinary
procedure
provided for in the Rules on grounds of urgency should refer
explicitly to circumstances on which he bases his allegation
and why
he could not be afforded relief at a hearing in due course. In this
regard they relied,
inter
alia
on
Cape
Killarney Property Investments (Pty) Ltd v Mahamba
[1]
.
They further argued, based on
Eniram
(Pty) Ltd v New Woodholme Hotel (Pty) Ltd
[2]
,
that the applicant’s omission to set out in his founding
affidavit, circumstances which rendered this application urgent
and
reasons for claiming that he could not be afforded substantial
redress at the hearing in due course, rendered his application
irregular. They sought an order dismissing this application based on
the omission as well as the dilatoriness of the applicant
in filing
this application.
[5]
I have considered the applicant’s argument that this
application is inherently urgent. It is however not supported by
his
case that the Council resolution which forms the basis of this
application was taken on 25 August 2015 and communicated to
him the
following day. His obligation to give reasons for urgency cannot be
over-looked and his failure to fulfil it was not cured
by his
unsupported submission of inherent urgency. In
National
Union of Mineworkers v Black Mountain (a division of Anglo O
perations
Ltd)
[3]
it
was held that urgent relief is required to be made out with
sufficient particularity and that urgency in itself does not relieve
a party of that obligation. Even if the applicant’s case was
inherently urgent, a conclusion he laid no foundation for, he
was
still obliged to give reasons for alleging that this matter is
urgent. No reasons were proferred by the applicant for not launching
this application shortly after 26 August 2015. The delay in bringing
an urgent application and failure to give reasons why urgent
relief
is necessary are individually sufficient to render an urgent
application irregular. The combination of the applicant’s
dilatory conduct and his omission to give reasons why urgent relief
was necessary, rendered his application irregular.
[6]
The respondents sought costs for two Counsel. I could find no reason
both in law and fairness for costs not to follow the result.
The
applicant argued that the use of two Counsel was not justified.
Having considered the submissions on the issue of costs, I
have to
agree with the applicant that the complexity of this application did
not justify the use of two Counsel.
[7]
In the premises the following order is made:
7.1
The application is struck from the roll for lack of urgency.
7.2
The applicant pay the respondents’ costs such costs to be
limited to costs of one
Counsel.
Lallie
J
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Advocate Dyer
Instructed
by Nduli Attorneys
For
the third Respondent: Advocate Buchnun SC and
Advocate Nzuzo
Instructed
by Wikus Van Rensburg Attorneys
[1]
2000
(2) SA 67 (C) 77
[2]
1967
(2) SA 491 (E)
[3]
(2007)
28 ILJ 2796 (LC)