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[2016] ZALCCT 17
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PSA obo French v HOD: Department of Social Development North West Province and Another (C890/2014) [2016] ZALCCT 17 (22 April 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
Number: C890/2014
In the
matter between:
PSA OBO FRENCH
Applicant
and
HOD: DEPARTMENT OF SOCIAL
DEVELOPMENT NORTH WEST PROVINCE
First
Respondent
MEC:DEPARTMENT OF SOCIAL
DEVELOPMENT; NORTH WEST PROVINCE
Second
Respondent
Date
heard: 3 December 2015
Delivered:
22 April 2016
JUDGMENT
RABKIN-NAICKER
J
[1] The
applicant seeks the following relief:
“
a)
That the decision of the First Respondent, taken on 1 August 2013
(received 30 May 2014) to terminate the services of the Applicant’s
member, DD French be reviewed and set aside; in the alternative
b)
That the decision dated 03 December 2014 (received on 16 January
2015) of the Second Respondent not to reinstate the Applicant’s
member be reviewed and set aside;
c)
That it be ordered that the termination of the Applicant’s
member’s service was unlawful;
d)
That the Respondents be ordered to reinstate the Applicant’s
member retrospectively from the date of termination of employment;
e)That
the Respondents be ordered to pay the costs of this application in
the event that this application is opposed…”
[2] The
initial notice of motion did not refer to the date of the decision
not to reinstate French because such decision had not
yet been made.
The said decision was referred to in the answering affidavit.
However, leave was granted for the amendment of the
notice of motion
and supplementary papers to be filed in terms of a draft order by
agreement, on the 26 August 2015.
[3] In
summary, and for background purposes I note that the answering
affidavit records the following:
3.1
Following animosity
between French and one of her colleagues which led to criminal
charges being laid by the officers against each other on 6 June 2012
, French was continuously absent from work from 8 June 2012
due, she
claimed, to work related stress and anxiety.
3.2
She initially applied for
and had been granted sick leave until the end of July 2012
and had by
this time totally exhausted her leave entitlement of 30 days sick
leave in a three year cycle.
3.3
By 15 May 2014, and
despite the lapse of 10 months French failed to either present
herself to work to resume her duties and at least to explain her
conduct or to submit medical certificates or to obtain approval
of a
further extension of incapacity or sick leave despite numerous
requests from her supervisor. No sick leave had been approved
after 5
July 2012. The respondents cogently submit that the requirements for
17(3)(1)(a) of the PSA were met and that the
Labour Court does
entertain jurisdiction to review the decision in terms of section
17(2) of the PSA
[1]
.
[4]
The founding affidavits do not refer to any legal grounds for review.
The deponent to the first founding affidavit, an official
of the PSA,
avers that the jurisdictional requirements had not been met for the
invocation of the ‘decision’ under
section 17(3)(i)(a)
and that the honourable court “will however be requested to
find that the dismissal of our member was
unlawful for various
reasons”. Incongruently, it is also averred in clause 6.4 of
the original founding affidavit that French’s
services were
“terminated by operation of law”.
57]
In its supplementary affidavit, the applicant repeats that the
requirements for the deeming provisions of
section 17 of the PSA were
not met and that the Second Respondent ‘should have noted same’
when it took the decision
not to reinstate her. The respondents it is
averred, were acutely aware of French’s whereabouts during
August 2013 and section
17 should not have been followed. Further, it
is submitted that the respondents misused the specific section of the
PSA, 1994 and
had every opportunity to charge French for misconduct.
[6]
Simply put, nothing is pleaded in the founding papers to establish
that there are any grounds in law to review what the applicant
refers
to as the ‘decisions’ it seeks this court to overturn.
This is despite the fact that the applicant is represented
by an
attorney and counsel in this matter. In motion proceedings, the
affidavits constitute not only the evidence, but also the
pleadings
[2]
.
The founding papers are deficient on both scores. Over and above that
no legal grounds are pleaded for review, except the bald
allegation
that the “the dismissal of our member was unlawful”, the
applicant has not sought to get a proper record
from the respondent
and instead attached some 40 annexures to its original founding
affidavit. A party cannot be expected
to trawl through lengthy
annexures to the opponent's affidavit and to speculate on the
possible relevance of facts therein contained
[3]
.
[9] For
the above reasons, it is not necessary for me to consider the matter
further. The applicant has simply failed to make a
case for the
relief it seeks in its founding papers, despite being granted the
opportunity to supplement same, and the application
must be
dismissed. There is no reason that costs should not follow the result
in this matter. Accordingly, I make the following
order:
Order
1.
The application is dismissed with costs.
_____________
H. Rabkin-Naicker
Judge of the Labour
Court of South Africa
Appearances:
Applicant:
P Venter instructed
by Adrie Hechter Attorney
Respondents:
MG Hitge
instructed by the State Attorney
[1]
Referring
to inter alia the matter of Phenithi v Minister of Education and
Others
(2006) 9 BLLR 821(SCA)
and Grootboom v National Prosecuting
Authority and Another
[2014] 1 BLLR 1
(CC) at pargaraphs 14 to 16.
[2]
TRANSNET
LTD v RUBENSTEIN
2006 (1) SA 591
(SCA) at paragraph 28
[3]
MINISTER OF
LAND AFFAIRS AND AGRICULTURE AND OTHERS v D & F WEVELL TRUST AND
OTHERS
2008 (2) SA 184
(SCA) at paragraph 43.