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[2016] ZALCJHB 39
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Seatlholo and Others v Chemical, Energy, Paper, Printing, Wood and Allied Workers' Union and Others (J131/16) [2016] ZALCJHB 39 (9 February 2016)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: j 131/16
In the
matter between:
SAMUEL CHIEF SEATLHOLO
First Applicant
THULASIZWE SIBANDE
Second Applicant
SCOTCH MPONENG DIBETSO
Third Applicant
JOHANNES DUBE
Fourth Applicant
LAWRENCE NZELE
Fifth Applicant
and
CHEMICAL, ENERGY, PAPER,
PRINTING, WOOD AND ALLIED WORKERS’ UNION
First Respondent
SIMON MOFOKENG
Second Respondent
THAMSANQA MHLONGO
Third Respondent
Heard
:
4 February 2016
Delivered
:
9 February 2016
Summary:
(Urgent interim relief – suspension of
official and office bearers – nullifying NEC meeting and
decisions –
locus
standi
/jurisdiction over disputes
involving employee office bearers – requirements of urgency not
met – evaluation of evidence
in context of applications for
interim relief)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is an interim application pending the
outcome of a final application to declare that a National Executive
Committee (‘NEC’)
meeting of the union, CEPPWAWU, held on
14 January 2016 was
ultra vires
the union’s constitution and in consequence that any decisions
taken at that meeting should also be declared null and void.
[2]
The resolutions of that meeting which the
applicants seek to set aside concerned a purported resolution to
suspend the applicants
pending disciplinary proceedings being
instituted against them, and resolutions purporting to adopt a slew
of audited financial
statements, from 2010 to 2013.
[3]
The
matter has a long history, but the more immediate background to the
calling of the impugned meeting lies in a judgement handed
down by
Van Niekerk J on 4 January 2016
[1]
in another urgent application brought by the applicants who sought to
interdict the NEC meeting called for 5 January 2016. For
the sake of
contextualising this application, Judge Van Niekerk’s summary
of the most recent litigation between the parties
in that judgement
is sufficient:
“
[2]
The roots of the present application lie in internecine squabbling
between two factions within the first respondent. It is not
the first
proceeding to be generated by that conflict – this court (and
the High Court) have been called upon to make rulings
in respect of
disputes between the two factions and also in respect of litigation
initiated by the registrar of labour relations
to have the first
respondent placed under administration (see the proceedings conducted
under case number J815/15).
[3]
The order granted in the latter case on 9 October 2015 assumes some
significance in the present proceedings. In terms of the
order, the
first respondent was placed on terms to provide the registrar,
amongst other things, with audited financial statements
for 2010 –
2013 within 90 days, and also to make available to the national
treasurer (the second applicant in the present
proceedings) all books
and accounting records as required for him to discharge his
obligations in terms of the union’s constitution.
At the time
when the present application was heard, the 90-day period had not yet
expired. This is not insignificant. To the extent
that the
applicants’ case is premised on a failure by the respondents to
comply with the order granted on 9 October 2015,
the period for
compliance has not yet elapsed. It is therefore not for this court to
make any factual findings in relation to the
extent of any compliance
(if any) with the order – that is a matter that may well be the
subject of future proceedings either
at the initiative of the
registrar or to declare the respondents in contempt of the order. A
further point that should be emphasised
at the outset is that this
court’s powers in matters such as the present are limited by s
158 (1) (e), which permits intervention
by the court if and only if
the issue in dispute concerns any alleged non-compliance with a trade
union’s constitution.
[4]
The present dispute relates to a notice issued by the respondents on
4 November 2015 in which they gave notice of a special
meeting of the
first respondent’s internal audit committee (Fincom) and a
special meeting of the NEC. It is not in dispute
that the Fincom
meeting was postponed indefinitely pending the receipt of the first
respondent’s 2013 financial statements,
and that the NEC
meeting was rescheduled to take place on 5 January 2016. As I have
indicated, the applicants seek an interdict
in respect of the latter
meeting. The agenda for the meeting primarily concerns the
consideration of the first respondent’s
audited financial
statements for the financial years 2010 to 2013”
[4]
Van
Niekerk J dismissed the application before him,
inter
alia
,
because even if the meeting might have been set aside on account of a
failure by the General Secretary to provide documentation
to the
applicants prior to the meeting, on the facts, the documentation in
question had been made available.
[2]
The court also found that the applicants had an adequate alternative
remedy which they could have pursued by raising their complaint
at
the meeting before approaching the court for relief
[3]
.
Events
of 5 and 14 January 2016
[5]
Following the dismissal of the application,
the scheduled NEC meeting on 5 January 2013 was convened, but after
lengthy debate much
of which concerned the status of various regional
delegates in the meeting and whether the meeting was quorate, the
meeting ended
without any resolutions being adopted. The day after
that meeting, the General Secretary of the union, the second
respondent (‘Mofokeng’),
issued a notice to all Regional
Executive Committees (‘RECs’) in terms of 44 (5) (a) and
(b) of the union’s Constitution
convening a special NEC meeting
on 14 January 2016. The provisions mentioned state that:
“
44
(5) If in terms of subsection (4), a meeting cannot be commenced
within 2 hours after the time fixed for it to begin-
(a)
the General Secretary in consultation with
the President must fix a new time and date for the meeting, which
must be no less than
7 days, and no more than 14 days, after the
original date for the meeting; and
(b)
the General Secretary must give written
notice in writing to each REC of the new date for the meeting.”
[6]
Further, clause 44 (5) of the Constitution
provides that a meeting called in terms of that provision may proceed
until the agenda
is completed regardless of the number of persons
present.
[7]
The applicants contend that the general
secretary could not rely on the provisions of clause 44 (5) to
convene the special NEC meeting,
essentially because the first
meeting of 5 January 2016 was quorate. In consequence, they contended
that the subsequent meeting
convened on 14 January 2016 was “ultra
vires and void from the outset”. Apart from their attack on the
legal status
of the second meeting, the applicants also contend that
no resolution adopting any of the financial statements was properly
passed
because although a motion to adopt them was proposed and
seconded, the motion was never put to a vote by show of hands as
required
by clause 59 (3) (b) of the Constitution. In relation to the
alleged decision of the NEC to suspend the applicants, the applicants
argue that no such resolution was adopted by the meeting.
[8]
The applicants claim that the first time
they became aware of their suspension was when they received letters
dated 25 January 2016
calling upon them to make representations why
they should not be suspended. In the case of the first applicant, the
Deputy General
Secretary (‘Seatlholo’), he was called
upon to make representations why he should not be suspended “…
pending the holding of a disciplinary hearing relating to your
abusive, criminal and violent conduct during
and
after
the NEC held on 14 January 2016”
(emphasis added). In the case of the remaining applicants being the
National Treasurer (‘Sibande’),
the chairperson of the
North West region (‘Dibetso’), the chairperson of Wits
region (‘Dube’), the chairperson
of the Western Cape
region (‘Nzele’) and the chairperson of the Eastern Cape
region (‘Xaba’), they each
received two letters. One
letter temporarily suspended their union membership with immediate
effect and the other called upon them
to make representations why
they should not be suspended pending a disciplinary hearing into
their conduct, which was described
in identical terms to that
appearing in the letter to Seatlholo.
[9]
The applicant’s attorneys of record
immediately wrote to the respondents’ “legal team”,
being the respondents’
attorneys of record in previous
litigation between the parties, demanding amongst other things the
withdrawal of the notices and
disputing the existence of the
resolutions in question. There was no response to this letter dated
26 January 2016. In the absence
of a response, on 28 January 2016 the
applicant’s attorneys advised that the applicants intended
launching these urgent proceedings
and simultaneously requested as a
matter of urgency a transcript and the full minutes of the meeting of
14 January 2016 containing
the alleged resolutions. The next day, the
respondents’ attorneys advised that the proceedings on 14
January 2016 were lawful,
that the suspensions would not be
temporarily uplifted and that the minutes of the meeting, which were
currently being finalised,
would be circulated to NEC delegates once
completed. The applicants launched these proceedings three days later
on 1 February 2016.
When the respondents filed the answering
affidavit of Mofokeng late on 3 February, a copy of the draft minutes
of the meeting of
14 January was attached. Mofokeng acknowledged that
the minutes had not yet been finalised or adopted but confirmed that
they correctly
reflected the events of that day. According to the
draft minutes, the resolution suspending the applican’s was
moved, seconded
and approved by 25 delegates shortly after the
financial statements had been adopted and following disruptive and
abusive behaviour
by delegates opposed to the adoption of the
statements. The draft minute records, somewhat melodramatically,
that:
“
It
was at that moment that Cde Vusi raised a hand and was pointed by the
President. Cde Vusi moved a resolution, in addition for
the following
delegates who were disruptive and abusive and bringing the name of
the union into disrepute that their membership
to be immediately
suspended and for some to be expelled from the union and section 42
(2) (o) of the Constitution be invoked. Those
he moved that their
membership be suspended are: Cdes Sohopu; Lemmy Mokoena; Charles
Mataludi; Joe Dube; Dixon; Jackson Makhubela;
Scotch Dibetso, and
Thualasizwe Sibande; and that in internal disciplinary action be
taken against Cdes Chief Samuel Seatlholo
and Petrus Petje as
employees of the union.”
[10]
By way of a riposte to Mofokeng’s
draft minutes, the applicants in reply attached lengthy purported
transcripts of an alleged
recording made of the meetings on 5 and 14
January. The transcript does not bear a certificate of verification,
and its origin
is obscure. In his replying affidavit, Seatlholo
explains it thus:
“
Not
having received the minutes as requested for the meetings of five and
14 January 2016, our legal representatives received a
transcribed
copy of those meetings, during the course of the afternoon of 3
February 2016.”
[11]
Who transcribed the minute and the
identity of the benefactor or benefactors who provided the
applicant’s legal representatives
with these documents at the
eleventh hour was not disclosed, though this is hinted at, later in
Seatlholo’s replying affidavit.
What the purported transcript
of the second meeting reflects is the proceedings of a fractious and
at times disorderly gathering.
The transcript ends with the
union’s President, who was chairing the meeting, apparently
declaring the meeting closed
sometime after a much interrupted
session dealing with the financial statements. There is no hint of
any discussion on any other
substantive issue after the chaotic
proceedings in which the financial statements were tabled. There is
certainly no trace of anything
in the transcript that might support
the respondents’ version that a proposal to suspend any
individuals was proposed, seconded
or voted upon. Plainly, there is a
serious dispute of fact about whether or not the NEC did take a
resolution to suspend the applicants
or not.
[12]
Before dealing with urgency and substantive
issues, the respondents’ objection to Seatlholo’s
locus
standi
in these proceedings must be
addressed.
Locus
standi
of first applicant
[13]
Seatlholo is an employee of the union and
holds the elected office of Deputy General Secretary. He is not a
member of the union
as such, but claims to have brought the
application in his official capacity as Deputy General Secretary and
as an ex-officio member
of the NEC. In reinforcement of his claim to
be entitled to initiate an application of this sort he refers to
various sections
of the union’s Constitution. However, whatever
general interest he might conceivably have in upholding the proper
governance
of the union in terms of its constitution, the relief he
seeks relates to his own suspension in which he has a direct personal
interest, which clearly is not relief sought in a representative
capacity.
[14]
The respondents claimed that he does not
have the necessary legal standing to bring such an application under
section 158 (1) (e)
of the Labour Relations Act 66 of 1995 (‘the
LRA’) because he is not a member of the union. Section 158 (1)
(b) states:
“
158(1)
The Labour Court may -
…
(e)
determine a dispute between a registered trade union or registered
employers' organisation and
any one of the members or applicants
for membership
thereof, about any alleged
non-compliance with
-
(i)
the constitution
of that trade union or employers' organisation (as the case may
be);...”
(emphasis
added)
[15]
In
the course of argument,
Mr
Kennedy
,
the respondent’s counsel (assisted by
Mr
Viljoen
)
agreed that, properly speaking, the respondents’ objection to
this court’s jurisdiction to hear Seatlholo’s
complaint
that his suspension was in breach of the union constitution is a
jurisdictional issue. A plain reading of the terms of
section 158 (1)
(e) is that, the labour court is only empowered to deal with disputes
over compliance with a union’s Constitution
which arise between
a member or members of the union and the union itself. An employee of
the union cannot rely on this provision
to assert rights as an
employee, but must rely on remedies in contract, or remedies for
unfair dismissal or unfair labour practices.
By contrast, in the
absence of section 158(1) (e) members of a union would have no remedy
in this court to enforce the contract
of membership between them and
their union which is embodied in the union’s Constitution and
would have to approach the high
courts to do so as members of a
voluntary association.
[4]
[16]
I am satisfied that the first applicant
cannot seek to set aside his suspension as an employee,
albeit
that he is also an elected office bearer, by relying on section 158
(1) (e) of the LRA, and consequently, I have no jurisdiction
to
entertain that claim. I am aware that this may seem somewhat
anomalous, but the section is quite clear in confining the remedy
to
disputes between the union and members as parties. Further, as
mentioned, the first applicant is not without remedies as an
employee, whereas by contrast members of a union would be confined to
common law remedies in the absence of this provision. The
court
cannot extend the jurisdiction the legislature has afforded it in
terms of the provision.
Urgency
[17]
The
key issues to consider when determining if an application for interim
relief is sufficiently urgent to warrant it being heard
without
following the time periods for filing pleadings in terms of the court
rules, is whether the applicant acted timeously (neither
prematurely
nor too late) in seeking to assert their right to the relief sought
and that there is a real risk that if the relief
is not granted on an
interim basis any permanent relief they may obtain in due course will
be of little value. The applicant must
also justify the extent to
which they seek to attenuate the ordinary time limits within which
the respondent is afforded a reasonable
opportunity to oppose the
application.
[5]
[18]
Mr Rautenbach,
counsel
for the applicants, who was assisted by
Mr
Williamson
, correctly observed that the
question of urgency needed to be considered separately in relation to
each kind of relief sought.
Thus, the evaluation of urgency in
relation to the setting aside the suspension of the applicants stands
on a different footing
from the setting aside of the resolutions
purportedly adopting the financial statements based on the alleged
invalidity of the
NEC meeting of 14 January 2016.
[19]
The challenge to the validity of the
meeting held on 14 January 2016, rests on the contention that the
meeting of 5 January was
in fact quorate and accordingly the general
secretary could not invoke clause 44(5) of the union’s
constitution to convene
the second meeting. However, the notice of
the second meeting was issued on 6 January 2016. The applicants do
not suggest they
were not aware of this. They attended the second
meeting and do not claim that they objected to the meeting taking
place on the
basis that it could not be convened in terms of clause
44 (5). If any reliance were to be placed on the purported transcript
of
the meeting, not only did they not object but the first applicant
made it clear that there was no objection being raised to the
convening of the meeting as such. The first time the objection is
raised is when the application is launched, just over two weeks
after
the meeting took place. No explanation is provided why the challenge
was not at least raised shortly after the meeting. In
the
circumstances, I do not think that the applicant’s delay in
launching proceedings based on the invalidity of the second
meeting
on 14 January is justified. Moreover, when they did launch their
application on 1 February, they gave the respondents barely
48 hours
to respond. No justification was provided why the matter had to be
heard on 4 February. In the circumstances, the applicants
have failed
to lay a basis for the degree of urgency with which they had sought
to obtain this relief.
[20]
In relation to setting aside the
resolutions suspending the applicants, if it is accepted that they
only learnt of their suspension
on or about 25 January, then they
acted expeditiously when they queried the purported decision through
their attorneys and in launching
these proceedings when no minutes of
the meeting had been circulated within the period stipulated by the
Constitution and despite
their request for the same. This raises the
question whether it ought to be inferred from the papers that they
only heard of their
suspensions on or about 25 January given the
mutually exclusive versions of the parties about whether or not a
resolution to suspend
the applicants was taken at the meeting?
[21]
The
approach to the evaluation of disputes of fact in applications for
interim relief has been stated in the following terms in
deciding if
an applicant has met the first threshold for success
[6]
in obtaining interim relief:
“
The
use of the phrase '
prima
facie
established though
open to some doubt' indicates I think that more is required than
merely to look at the allegations of the applicant,
but something
short of a weighing up of the probabilities of conflicting versions
is required. The proper manner of approach I
consider is to take the
facts as set out by the applicant, together with any facts set out by
the respondent which the applicant
cannot dispute, and to consider
whether, having regard to the inherent probabilities, the applicant
could on those facts obtain
final relief at a trial. The facts set up
in contradiction by the respondent should then be considered. If
serious doubt is thrown
on the case of the applicant he could not
succeed in obtaining temporary relief, for his right,
prima
facie
established, may only
be open to 'some doubt'. But if there is mere contradiction, or
unconvincing explanation, the matter should
be left to trial and the
right be protected in the meanwhile, subject of course to the
respective prejudice in the grant or refusal
of interim relief.”
[7]
[22]
In this instance, the applicants denied
that a resolution was taken to suspend them at the meeting on 14
January. Mofokeng responded
by producing a draft of the minutes
containing the passage referred to above, which he asserts “…
accurately reflect
the events that took place at the meeting.”
The applicants dispute the veracity of the minutes and referred to
the uncertified
transcript, which does not reflect any discussion of
disciplinary action during the chaotic meeting. However, in his
replying affidavit,
Seatlholo curiously expressly disavows any
attempt to assert the authenticity of the transcripts in these
proceedings in paragraph
12.3 of his affidavit, viz:
“
We
shall deal with the question of authenticity and admissibility of the
transcriptions at the appropriate time when part B becomes
germane.”
[23]
Later, in paragraph 13.2 of the affidavit
he sheds a glimmer of light on the origin of the transcripts, but
without revealing the
details of their provenance:
“
Precisely
so as to avoid the type of dispute now presenting itself, delegates
at the impugned meeting of 14 January 2016 insisted
that an audio
recording of the meeting be conducted. Had it not been that
several
delegates, of their own volition, made such audio recordings
of the impugned meeting, a court would in due course not be able to
determine what transpired there at without subjecting numerous
witnesses to extensive cross examination. Now that
an
audio recording has come to light
, this
determination should be able to be made with greater ease.”
It seems
patently obvious that Seatlholo is aware of the source or sources of
the transcripts but declines to take the court into
his confidence in
this regard. Further, no explanation is provided why the person or
persons recording the meetings did not identify
themselves and at
least confirm the origin of the transcripts. The purported
transcripts of the two meetings consist of 53 densely
typed pages of
single space text. It is obvious they must have taken considerable
time and money to produce. There is no explanation
from the
applicants or their attorneys as to how the transcripts came into
their possession. Given that Seatlholo says he was aware
of delegates
making their own recordings of the meetings, I find it extremely hard
to believe that he would have been unaware of
the fact that such
potential records of the meetings might exist at the time this
application was launched on 1 February 2016.
Yet, it is only in his
replying affidavit that he admits to knowledge of the recordings
being made. He gives no explanation why,
in the light of that
knowledge, the applicants did not take steps to obtain those
recordings before launching these proceedings.
Instead of waiting for
a transcript of those recordings to be made available, the applicants
launched the proceedings without giving
any intimation that efforts
were being made to obtain copies of those recordings. Instead, the
court is implicitly asked to stretch
its credulity to the limit and
accept that the transcript fortuitously landed unexpectedly in the
lap of their attorneys of record
just in time for them to settle the
replying affidavit.
Applicant’s
counsel argued that the veracity of the transcripts should be
accepted on the basis of Seatlholo’s indirect
endorsement of
the transcripts where he refers to them elsewhere in his affidavit as
evidence of what transpired in the second
meeting. However, as
previously observed, nowhere does he commit himself unequivocally to
the accuracy of what the transcripts
supposedly recorded. In this
regard, the following summary by the learned author CB Prest is
pertinent:
“
The
importance of urgency in applications for interdicts is reflected in
the fact that in certain circumstances and on certain conditions
the
court condoning non-compliance with certain rules relating to the law
of evidence. For instance, and has already been pointed
out, but must
be stressed again, as a general rule evidence is not permitted in
affidavits, may be necessary to file an affidavits
of persons other
than the applicant, who can depose to the facts. This is very often
do not. In interlocutory matters generally,
and in applications for
interdicts specifically, where it urgency appears to justify doing so
court has allowed a deponent to state
that ‘he is informed and
verily believes, certain facts on which he relies for relief. In such
cases is required to set out
in full facts upon which he bases his
grounds of the and how he obtained the information. The failure of
the applicant to do so
constitutes an irregularity which in
accordance with the general rule against new matter in reply is not
cured by filing a replying
affidavit setting out the required
information. He can, however, be granted to amplify the supporting
affidavit and thus put the
matter in order. If the deponent to an
affidavit sets out statements made by other persons without
indicating when the leaves them
or not, such statements are
inadmissible and will, on application be struck out. An affidavit on
which an application [is] founded
is not fatally defective if,
disregarding the statements of information and belief, there remains
sufficient material on which
the applicant can move for the order
which he seeks.”
[8]
[24]
In these circumstances, as the applicants
have not been candid about the origin of the transcripts and do not
make any direct claim
about their accuracy, I am disinclined to
attach weight to them, even though they might well have cast serious
doubt on parts of
the minutes provided by Mofokeng, if properly
confirmed. That leaves the court with the draft minutes of the
meeting provided by
Mofokeng and the evidence that the applicants
acted quickly in taking steps to challenge their suspensions when
they received letters
notifying them thereof on or about 25 February.
I believe that
Mr Rautenbach
is correct in arguing, leaving aside the transcripts, that on the
inherent probabilities, if a decision had been taken at the meeting
of 14 January 2016 to suspend them, the applicants would not have
waited until they received the letters notifying them thereof
two
weeks later, before doing anything about it. It is also noteworthy
that the letters of suspension also refer to their alleged
conduct
after
the
meeting. Further, the motion to suspend the applicants and others was
supposedly taken and passed without any debate or opposition
being
raised by the applicants before it was voted on, which seems
inherently implausible given the implications of the resolution
and
the fact that they were present when it was taken. I am satisfied
that the applicants most probably only heard of their suspension
when
the letters were issued and did act promptly when they were advised
thereof.
[25]
However, that does not detract from the
fact that when the application was launched, the respondents had
barely two days to respond
and without any reasons being advanced why
irreparable harm would be suffered if the matter was not heard on 4
February 2014. Apart
from placing the respondents under unwarranted
time constraints, the timing of the hearing placed unnecessary
pressure on the urgent
court roll for that week. In the
circumstances, I am not satisfied that the applicants have justified
the degree of urgency which
they relied on to stipulate the time for
filing the respondents’ answering affidavit and to enrol the
application for a hearing.
[26]
I must stress that the finding relates
solely to urgency and is by no means an endorsement of the conduct of
the respondents, nor
should it be understood or portrayed as an
implied approval of the purported adoption of the audited financial
statements at the
meeting of 14 January which contained serious
qualifications and concerns about the union’s viability as a
going concern.
Costs
[27]
These proceedings were initiated with undue
haste and unjustifiably abbreviated timetables, which put the
respondents to unnecessary
expense. Common sense ought to have
dictated a less frenetic timetable, especially when it must have been
known that efforts were
underway to obtain the recording or
recordings of the impugned meetings which Seatlholo knew had been
made. In the circumstances,
the applicants’ recklessness in
unduly accelerating the urgency of the matter warrants an adverse
cost order.
Order
[28]
In light of the aforegoing,
28.1
the court has no jurisdiction to set aside
the first applicant’s suspension under s 158(1)(e) of the LRA;
28.2
the application is dismissed for want of
urgency, and
28.3
the applicants are jointly and severally
liable for the respondents’ costs including the costs of two
counsel, the one paying
the other to be absolved.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
G
Rautenbach, SC assisted by A Williamson instructed by Vasco De
Oliveira Attorneys
RESPONDENTS:
P Kennedy
SC assisted by H M Viljoen instructed by Webber Wentzel Attorneys
[
1]
Seathlolo & others v Cepppwawu & others (J2595/15)
Unreported dated 04/01/16.
[2]
At para [5]
[3]
At para [10]
[4]
See
The
Law of Partnership and Voluntary Associations in South Africa
,
3 ed, B Bamford, (Juta), 1982 at 132-134.
[5]
See
L
una
Meubel Vervaardigers (Edms) Bpk v Makin And Another (T/A Makin's
Furniture Manufacturers)
1977
(4) SA 135
(W)
at
137E-GS
:
“
Practitioners
should carefully analyse the facts of each case to determine, for
the purposes of setting the case down for hearing,
whether a greater
or lesser degree of relaxation of the Rules and of the ordinary
practice of the Court is required. The degree
of relaxation should
not be greater than the exigency of the case demands. It must be
commensurate therewith. Mere lip service
to the requirements of Rule
6 (12)
(b)
will not do and an applicant must make out a case
in the founding affidavit to justify the particular extent of the
departure
from the norm, which is involved in the time and day for
which the matter be set down.”
[6]
The well-known requirements for interim relief were recently
restated by the Constitutional Court in
[zRPz]
National
Treasury and others v Opposition To Urban Tolling Alliance and
others
2012
(6) SA 223
(CC)
at
235:
prima
facie right even if it is open to some doubt;
(b)
a
reasonable apprehension of irreparable and imminent harm to the
right if an interdict is not granted;
(c)
the balance of
convenience must favour the grant of the interdict; and
(d)
the applicant must have no other remedy.”
[7]
[zRPz]
Webster
v Mitchell
1948
(1) SA 1186
(W)
at
1189
[8]
C B Prest,
The
Law & Practice of Interdicts
,
2007, Juta, at 258-9.