About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 54
|
|
Majola v Member of the Executive Council for Roads and Transport: Gauteng Provincial Government and Others (JR122/2017) [2017] ZALCJHB 54 (21 February 2017)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
CASE NO: JR122/2017
In
the matter between:
BONGA BALDWIN
MAJOLA
Applicant
And
MEMBER OF THE
EXECUTIVE COUNCIL FOR ROADS
AND TRANSPORT;
GAUTENG PROVICNIAL
GOVERNMENT
HEAD OF TRANSPORT
FOR ROADS AND
TRANSPORT: GAUTENG
PROVINCIAL
GOVERNMENT
First Respondent
Second Respondent
Heard:
02
February 2017
Delivered:
21 February 2017
JUDGMENT
TLHOTLHALEMAJE, J
Introduction:
[1]
The Applicant (in Part A) of his Notice of Motion seeks an order
interdicting the Respondents from transferring him from his
position
as Chief Director: Registration and Operating Licensing within the
Transport Branch to a position of Chief Director without
portfolio,
pending the determination of an application (Part B) to review and
set aside the decision of the second Respondent (Swartz)
taken on 30
August 2016, to transfer him. The application in respect of Part B
was still to be launched by the Applicant. The Respondents
opposed
the application.
Background:
[2]
The Applicant is employed at post level 14 and is a member of the
Senior Management Services (SMS). He started his employment
on 01
April 2008 as Chief Director and reported to the Deputy
Director-General (Transport Branch). His responsibilities included
overseeing the regulation and control of public transport, management
of Registration and Monitoring’ Operating Licensing,
and also
of the Provincial Regulatory Entity Directorates. Central to his
position is the management and overseeing of road based
public
transport by registering public transport operators; monitoring
public transport operators, ensuring compliance; issuing
operating
licenses and management of the Gauteng Provincial Regulatory Entity.
[3]
The Applicant alleges that his right to fair labour practices has
been violated, and that he has been targeted since 2010 whenever
he
exposed certain irregular conduct within the department, by either
being transferred to another post, or being suspended. On
4 June
2015, he was summarily suspended for 15 months based on allegations
surrounding misconduct related to fruitless and wasteful
expenditure.
This was after he had opened a criminal case of fraud pertaining to
the salary payments of certain officials without
the requisite
documentation or verification of their salary claims. The charges
against him were dismissed on 15 August 2016 following
a disciplinary
hearing, resulting in his suspension being uplifted.
[4]
Upon his return on 29 August 2016, he had made a protected disclosure
in terms of the Protected Disclosure Act
[1]
to the First Respondent (MEC) in respect of irregular expenditure
caused by Swartz in contravention of the Public Finance Management
Act and Treasury Regulations.
[5]
The Applicant further averred that on 30 August 2016, he met Swartz
who had expressed his displeasure at his return on 16 August
2016
immediately after he was cleared of the charges against him. Swartz
had informed him that his suspension ought not to have
been uplifted
as he should have waited for instructions before reporting for duty
in view of the Department’s intention to
approach this Court to
review and set aside the outcome of the disciplinary hearing. The
Applicant was then informed
inter alia
that he was going to be
transferred from his post to that of Chief Director without
portfolio, and was to be temporarily assigned
new functions that were
to be explained to him at a later stage. He was also furnished with a
letter in this regard which read
as follows;
‘
Dear
Mr Majola
OUTCOME
OF YOUR DISCIPLINARY HEARING
1.
We
write the letter to you to inform you that the Gauteng Department of
Roads and Transport (The Department) is considering the
findings of
Mr Moshoana including but not limited to whether it can take such
findings on review.
2.
We
have taken notice of the fact that you have, notwithstanding the fact
that you have not received any communication or instruction
from us
to return to work, nevertheless reported for work. We assume that you
have done so as a result of the findings of Mr Moshoana
and
specifically his comment that your suspension ought to lapse. We are
of the view that Mr Moshoana did not have the power to
uplift your
suspension, but nevertheless take note of the fact that he has
purported to do so.
3.
In
the light of his ruling (the validity of which we reserve the right
to challenge in a proper forum) and the fact that you have
tendered
your services, we now need to deal with the requirements of your
position of Chief Director: Registration and Operating
Licencing. In
this regard we specifically refer to the requirement, of which you
are well aware, that any person occupying that
position must subject
himself of herself to a security vetting exercise (for the
appropriate security clearance) as stipulated
by the national
Strategic Alliance Act 39 of 1994 (the security vetting exercise).
4.
You
will recall that during 2014 the Department had instructed you on
numerous occasions to subject yourself to the security vetting
exercise. In the circumstances, you will readily appreciate that it
is not possible for the Department to allow you to perform
duties as
Chief Director: Registration and Operating Licencing until such time
that the security vetting exercise has been successfully
finalised.
To do so would mean that the Department is acting unlawfully.
5.
In
the circumstances, we have, in the meantime and pending the
finalisation of the security vetting exercise, considered alternative
positions and/or functions for you to occupy on a temporary basis, in
a less demanding security clearance. We have obviously looked
for the
next most senior position that can be occupied by you having regard
to your seniority. Furthermore, we confirm that the
temporary move to
an alternative position will not result in you losing your current
earnings or benefits. It is as we emphasise
temporary in nature
pending the successful finalisation of the security vetting exercise.
We confirm that you will temporarily
occupy the position of Chief
Director without portfolio, with functions to be outlined in a
separate communication.
However,
should you prefer another position that also does not require a
security clearance we are willing to consider that request.
6.
Insofar
as the security vetting exercise is concerned you are hereby
instructed to take such reasonable steps as may be necessary
to
comply with your obligations in that regard, including but not
limited to completing such applications and submitting such
documents, and to avail yourself for any engagement that may be
required and as may be necessary to enable the State Security Agency
to fulfil its mandate in this regard.
7.
Should
you require any assistance from us to enable you to comply with your
duty to undergo the security vetting exercise you are
to notify me
immediately in writing so that we can finalise this exercise without
further delay with a view to, depending on its
outcome, allow you to
return to your position.
8.
Given
the prolonged history of the security vetting saga we wish to put
this matter behind us as soon as possible. We accordingly
request
that you provide us, by Friday 2 September 206 with a clear plan on
how you intend to ensure that you comply with your
duties in that
regard and to confirm that you will make sure that it is completed by
the end of September 2016 or as soon as possible
thereafter.
9.
We
look forward to hearing from you urgently and confirm that you will
in the meantime occupy the position of Chief Director without
portfolio.
Your faithfully
Ronald Swartz
HEAD OF DEPARTMENT’
[6]
The Applicant had responded by e-mail on the same day in which he had
inter alia
, stated that;
a)
in
June 2015, he was suspended indefinitely and had referred a dispute
to the Bargaining Council. As the dispute pertained to a
protected
disclosure, he had launched an application before this court (Under
case number JS831/2015) and was still waiting for
a trial date;
b)
He
was cleared of all allegations against him by Mr Moshoana on 15
August 2016 after being on suspension for 15 months;
c)
His
removal from his position was without regard to his rights, and there
was no position of Chief Director without portfolio in
the
Department;
d)
Swartz
did not have legal authority to transfer him or change his conditions
of employment, and even if he had such authority, he
could not act
arbitrarily;
e)
He
urged Swartz to immediately reverse his unlawful decision to transfer
him to the non-existent position, and to do so by 2 September
2016,
failing which he would have no option but to approach this Court on
an urgent basis to review and set aside that decision.
[7]
On 2 September 2016, Swartz responded to the Applicant’s
e-mail, and
inter alia
, stated that;
a)
It
was worrisome that as soon as he had returned to work, he had
threatened to go to court;
b)
That
he had explained the reason why he could not continue to occupy his
position in the light of the fact that he had not secured
the
requisite security clearance and had attempted to assist him to
fulfil that requirement;
c)
That
he had not indicated the steps he intended to take to fulfil the
requirement, and had instead threatened legal action, which
approach
was unreasonable and unacceptable;
d)
Swartz
was not permitted to allow him, until he was granted top security
clearance to continue in his position;
e)
The
decision to move him was not permanent and was not a transfer;
f)
The
invitation to discuss any alternatives still stood.
The
submissions and evaluation:
[8]
The application is founded on the provisions of section 77 (3) of the
Basic Conditions of Employment Act
[2]
.
The Applicant contends that the Respondents have effected a
unilateral variation of his contract of employment and conditions
of
service; prevented him from performing his responsibilities and
functions; and have acted unlawfully in transferring him from
his
post to the one without portfolio.
[9]
It is trite that for an applicant to be successful in an application
for an interim interdict he must establish (i) a
prima facie
right, even though open to some doubt; (ii) a well-grounded
apprehension of irreparable harm if the interim relief is not
granted;
iii) absence of an alternative remedy; (iv) a balance of
convenience in favour of granting the interim relief. Other than
these
requirements, the key question in such cases is whether the
application deserves the urgent attention of this court.
[10]
The Respondents opposed this application based on various grounds.
These are that;
a)
the
matter was not urgent; alternatively
b)
that
the urgency was self-created;
c)
that
since the main issue pertained to a challenge of a transfer, the
Court lacked jurisdiction to determine the matter;
d)
that
an interdict could not be granted in respect of a decision that was
taken five months ago, and which had since been implemented;
e)
that
the effect of granting the interdict would be to require the
Respondents to do what is unlawful;
f)
that
the Applicant has not complied with the provisions of section 35 of
the Public Service Act
[3]
, and
was accordingly precluded from approaching the Court for relief;
g)
the
reassignment was neither unfair nor unlawful
The issue of
security vetting:
[11]
The issue of the Applicant’s security vetting is according to
the Respondents, central to his removal from his position,
whilst the
Applicant holds the view that he was being merely targeted and
victimised for exposing irregularities. In my view, if
at the end, it
is concluded that the reinstatement of the Applicant in his position
would be unlawful in the light of the requirements
imposed upon him
by the State Security Agency and other legislative provisions to be
dealt with shortly, this should be the end
of the matter,
irrespective of any findings on urgency.
[12]
The Respondents’ main reasoning behind the moving of the
Applicant from his position was that he had to have the required
security vetting, which he had allegedly avoided over the past 4 to 5
years. It was argued on behalf of the Applicant that the
issue of
security vetting was a red herring, as the real reason was to
retaliate against the Applicant after he had raised concerns
surrounding malfeasance in the Department.
[13]
In summary, the Applicant contended that since 2010 when he first
declined to recommend payments of various invoices of a specific
service provider in the amount of some R29m, he has been subjected to
various retaliatory measures by the Respondents whenever
he raised
concerns in the Department, necessitating that he approach various
courts for protection. The latest retaliatory measure
followed upon
the protected disclosure he had made on 29 August 2016 about
irregular expenditure caused by Swartz in contravention
of PFMA and
Treasury Regulations. This had led to his removal from his post,
prompting him to launch this application.
[14]
In terms of the provisions of the National Strategic Intelligence
Act
[4]
, the State Security
Agency (SSA) has a mandate to perform counter intelligence and
security screening investigations and vetting
of employees. The
provisions of the Public Service Regulations, 2001 further require of
certain officials to subject themselves
to a security clearance where
the duties attached to their posts require such a clearance. The same
requirements are contained
in the SMS Handbook, which also lists the
failure to comply with, or contravention of an Act, regulation or
legal obligation, and
refusal to obey security regulations as forms
of misconduct
[5]
.
[15]
I did not understand the Applicant’s case to be that his
position did not require of him to submit himself to a security
vetting exercise. That exercise is a requirement for persons in his
position, and also in line with clause 1.2.3 of his contract
of
employment and the legislative provisions mentioned above. He
nevertheless contends that he has complied with those requirements.
The Respondents however hold a different view.
[16]
It is my view that there is no merit in the Applicant’s
contention that the raising of this requirement as a justification
for his removal from his position is mere red herring. My conclusions
in this regard are based on the following observations;
16.1
The issue of the Applicant’s need for security vetting dates as
far back as 2012 when he became aware
of it. On 24 May 2013, the
Gauteng arm of the SSA wrote a letter to the MEC, indicating that
some officials within the department,
including the Applicant might
be implicated in the perpetuation of conflict in the taxi industry,
and that there was a need for
them to be subjected to security
vetting to determine the extent of their involvement in the on-going
conflict and to re-test their
suitability for the critical positions
they occupied in the department. In my view, the fact that the
Applicant was not furnished
with a copy of this correspondence from
SSA, does not imply that the SSA did not raise those concerns
necessitating his security
clearance. Even if there might not be
merit in the allegations raised by SSA, the fact remains that the
Applicant was indeed required
to subject himself to security vetting
in terms of the provisions as already alluded to;
16.2 It
took the Respondents until 04 October 2013 to act when Swartz wrote a
letter to the Applicant requesting
him to complete the necessary Z204
forms in compliance with these vetting procedures. He was asked to
return the forms to the department’s
Security Management before
31 October 2013. It is common cause that the Applicant failed to act
in accordance with the request;
16.3 On
25 June 2014, Izzy Machaba of the Department’s Security
Management informed the MEC in writing that
the Z204 forms were
initially given to all SMS members following upon a workshop held in
2012, and that the Applicant had missed
the deadline as he had still
not submitted the forms. It was reiterated that similar forms given
to him on 4 October 2013; 29 April
2014 and 8 May 2014, and were
followed up by e-mails on 05 and 24 April 2014, reminding him of the
need to finalise the vetting
exercise. Again, the Applicant failed to
respond to these requests;
16.4 On
6 August 2014, Swartz wrote another letter to the Applicant reminding
him of several attempts since February
2012 that he had to comply
with the requirements of security vetting. Swartz instructed him to
within five days, explain why a
formal disciplinary could not be
instituted against him in the light of his negligent and
insubordinate conduct. Again, no response
was forthcoming from the
Applicant;
16.5
Swartz again on 13 August 2014 in an e-mail, advised the Applicant
that previous communication was ignored,
and he had until 15 August
2014 to provide reasons as per the previous written request. The
Applicant responded in an e-mail on
the same date, requesting an
extension to furnish a written response by 21 August 2014. He gave
reasons pertaining to his busy
schedule since 8 August 2014 as to why
he could not immediately respond to the request. On 9 September 2014,
the Applicant was
issued with a notice of precautionary suspension
for his refusal, omission or neglect and/or failure to attend a
compulsory security
vetting, and for refusing, omitting or disobeying
a direct lawful instruction from Swartz;
16.6
The Applicant’s contention that he had complied with the
requirements on 9 September 2014 by submitting
his application for
security clearance with the necessary documentation to the SSA’s
provincial offices in Centurion cannot
in my view lead to a
conclusion that he had been vetted. I did not understand his case to
be that subsequent to the submission
of the application, he was
cleared by the SSA, and the mere submission and receipt of the
application cannot equate to a clearance.
There is nothing in his
pleadings to suggest that he had made any follow up with SSA to
establish whether despite the receipt of
his application any progress
had been made on his application, nor did I understand it to be his
case that it was the responsibility
of the Respondents to ensure that
the exercise was completed. On the contrary, it appears that the
Applicant was content to fold
his arms since September 2014 when he
last submitted his application;
16.7 At
the time that the Applicant was placed on precautionary suspension on
09 September 2014, and subsequent
to settlement agreement made an
order of court under case number J2261/14, in terms of which his
suspension was uplifted with effect
from 18 September 2014, he had
still not obtained his clearance. As I understand the court order,
which came about as a consequence
of an agreement between the
parties, ‘the unlawful suspension of the Applicant’ was
lifted with immediate effect. This
cannot by any means be deemed to
have been a pronouncement on the issue of security vetting;
16.8
There is further no merit in the Applicant’s contentions that
the issue of security vetting could not
have prompted his removal
from his position on the basis that it has never been a situation in
the Department that officials were
transferred or moved from their
position on account of security clearance not having been finalised,
or that he has been reliably
informed by his colleagues that
currently, there were officials within the department and other
departments in the Gauteng Province,
who were still in the process of
finalising their security clearance, and/or none of them had ever
been transferred or prevented
from performing their responsibilities
and functions. This is so in that on the Respondents’ version
and further in the light
of the material placed before the court, the
Applicant has been requested since 2012 to sort out his security
vetting, and as at
the hearing of this application, he had not
secured clearance.
16.9 It
was only on 23 January 2017 as averred in his replying affidavit,
that he had submitted all outstanding
documents for the purposes of
security vetting. This was some few days prior to launching this
application, and it can only be
an acknowledgement that indeed he
still needed to be cleared.
16.10 The
circumstances of the other officials within the department who are
also not cleared are issues not before the court
despite the
Respondents’ acknowledgement that indeed this might be the
case. Be that as it may, the fact that other officials
have not been
cleared cannot in my view absolve the Applicant from his own
obligation to ensure that his own security vetting was
finalised;
16.11
There is merit in the Respondents’ contentions that the
Applicant has clearly ignored requests since 2012 that
he should
subject himself to a security vetting exercise. Ultimately, the
provisions of the Applicant’s own contract of employment,
and
those of the National Strategic Intelligence Act, the SMS Handbook,
and the Public Service Regulations, 2001 require of him
to have
secured his security clearance. As matters stand, he has not complied
with these requirements, and as correctly pointed
out on behalf of
the Respondents
[6]
,
to
place him back in his position in contravention of these legislative
provisions in the light of his position would be unlawful.
Thus, any
form of relief, whether interim or otherwise pertaining to
reinstatement in these circumstances would not be competent.
Urgency:
[17]
Rule 8 of the Rules for the Conduct of Proceedings in the Labour
Court provide that;
(1)
“A party that applies for urgent relief must file an
application that complies
with the requirements of rules 7(1), 7(2),
7(3) and, if applicable, 7(7).
(2)
The affidavit in support of the application must also contain-
a)
the
reasons for urgency and why urgent relief is necessary;
b)
the
reasons why the requirements of the rules were not complied with, if
that is the case; and
c)
if
a party brings an application in a shorter period than that provided
for in terms of section 68(2) of the Act, the party must
provide
reasons why a shorter period of notice should be permitted”.
[18]
An Applicant that approaches the court on an urgent basis essentially
seeks an indulgence and to be afforded preference, in
order to
prevent the prejudice and harm that may materialise or persist, if
the conduct complained of continues. Central to a determination
of
whether a matter is urgent is whether the Applicant has in his
founding affidavit, set forth explicitly, the circumstances which
renders the matter urgent, and the reason why he or she claims that
substantial relief cannot be attained at a hearing in due course.
A
failure to do meet these basic requirements in the founding affidavit
would prove fatal.
[19]
Urgency is further dictated upon by the exigency and circumstances of
the particular case, and it is trite that a matter cannot
be regarded
as urgent simply on the say-so of the Applicant. In equal measure, a
kneejerk approach in truncating the time periods
will not be
tolerated
[7]
,
nor will the courts countenance a belated approach for relief. Thus,
it is expected that in order for any arguments on urgency
to be
sustained, the Applicant must have acted with due haste, when
knowledge of the Respondent's prejudicial behaviour or actions
is
gained.
[20]
An Applicant that is well aware of the harm, and takes no steps over
a protracted period of time, and then launches an urgent
application,
is likely to have its application struck from the urgent roll. Thus,
to the extent that an Applicant wishes its matter
to be accorded
urgency, in the same token it is expected of it to have acted with
the same urgency that the matter deserves, failing
which the
invariable conclusion to be reached is that any urgency claimed is
self-created, as the prejudice or harm being allegedly
suffered is
not of such a serious nature to deserve the court’s urgent
attention.
Acting
in due haste however may not necessarily lead to a conclusion that a
matter is urgent, bearing in mind other requirements
of urgency to be
looked at.
[21]
In this case, it is acknowledged that the Respondents had been more
than lackadaisical since 2012 in enforcing compliance with
the
security vetting exercise amongst its senior officials, and in
particular, the Applicant. The fact of the matter however is
that
they had to act in enforcing compliance, because that is what the
provisions already alluded to require of them to do.
[18]
Other than the insurmountable hurdles dealt with in respect of the
issue of security clearance, I am also not satisfied that
this
application deserves the urgent attention of the court for the
following reasons;
18.1
Since the Applicant was issued with a letter informing him of his
removal from his position on 30 August
2016, it took him until 26
January 2016 before he could approach this court on an urgent basis.
This is a period of about five
months since the source of his
complaint arose;
18.2
The Applicant averred that the application was urgent on the basis
that having received the letter of 30
August 2016, he had been
engaging the Respondents at length, and had also referred a dispute
to the SALGBC in terms of the provisions
of section 64 (4) of the
LRA. He had further contended that he did not simply rush to court at
the first opportunity, but had taken
all reasonable steps to avoid
bringing the application by exhausting internal avenues first; and
had repeatedly requested Swartz
to reverse his unlawful decision to
transfer him and vary his contract of employment. The MEC, despite
undertakings to resolve
the dispute had failed to do so. The
Applicant claimed his right to an annual salary increase and
performance bonus was violated
as a consequence of his removal from
his position, and that if he did not have a performance agreement, he
would not receive the
benefits in accordance with his contract of
employment.
18.3
As already indicated, an Applicant that takes time to approach the
court for urgent relief cannot expect
the court to readily grant such
relief. On the Applicant’s own version, and as per his
correspondence with Swartz, as at
30 August 2016 after the receipt of
the letter that informed him of his removal, he regarded the matter
as urgent in the light
of his threats to approach this court on an
urgent if the decision was not set aside
[8]
.
Swartz’s response 02 September 2016 was clearly that his
decision would not be reversed.
18.4 On
09 September 2016 despite the matter being purportedly urgent, the
Applicant in an e-mail to Swartz essentially
raised his concerns
surrounding the lawfulness of the decision, and further alleged that
the only basis for the decision was retaliatory
and an abuse of
power. He gave Swartz until 14 September 2016 to reverse his
decision.
18.5
Nothing happened until 16 September 2016 when the Applicant again
informed Swartz that he would be approaching
this court on an urgent
basis as it was apparent to him that he was not willing to reverse
his decision. On 23 September 2016,
and notwithstanding his
acknowledgement that Swartz would not reverse his decision, the
Applicant sent an e-mail to the MEC advising
him that his dispute
with Swartz remained unresolved. The MEC’s response on 26
September 2016 was
inter alia
that the steps the Applicant
chose to take the matter forward were entirely his decision. In
essence, the Applicant was told by
the Executive Authority in polite
terms that he was at liberty to take the matter further, and outside
of the department if he
so wished.
18.6 In
his response on 30 September 2016, again the Applicant indicated his
intention to approach the Court,
and further pointed out that his
dispute pertained to a breach of contract and conditions of service,
and thus could not be determined
through the internal grievance
process. Further correspondence was exchanged between the parties,
and on 24 November 2016, again
the Applicant informed the MEC that
since his dispute could not be resolved, he would approach the court.
18.7 On
or about 2 December 2016, he had then referred a dispute to the
SALGBC pertaining to an alleged unilateral
variation of his contract
of employment, and a certificate of non-resolution was issued on 14
December 2012. Other than the exchange
of correspondence, on the
Applicant’s own version he had also met with Swartz on 04 and
07 November 2016 and the same ultimatum
was given.
18.8
The Applicant further attributed the delay to the fact that he could
only consult with his attorneys of record
on 18 January 2017, hence
the application was launched on 24 January 2017.
18.9
Based on the principles already alluded to in regards to urgency, and
further in consideration of the same
principles as set out in
National
Union of Metalworkers of South Africa & others v Bumatech Calcium
Aluminates
[9]
as referred to on behalf of the Respondents, it is concluded that the
Applicant’s application does not come close to meeting
the
requirements of urgency.
18.10 The Applicant
took a period of no less than five months after the occurrence of the
alleged harm or prejudice. He was
prepared to endure same as he
vacillated between either approaching the court timeously or on his
version, attempting to resolve
the dispute internally. As at 30
August 2016 he already formed the opinion that his matter was urgent.
It was also apparent to
him as at 02 September 2016 that Swartz would
not reverse his decision. It is therefore inexplicable that despite
holding the view
that the matter was urgent, he would persist in
attempting to resolve the matter internally, and send repeated
correspondence with
basically the same complaints to the Respondents,
when it was clear that the impugned decision would not be reversed.
The
Respondents had reached a point where they had basically
dared the Applicant to act on his threats as is evident from the
MEC’s
correspondence of 26 September 2016. Yet the Applicant
failed to do so.
18.11 The
Applicant’s contention that he had to exhaust internal remedies
prior to approaching the Court is disingenuous
in view of his
correspondence of 30 September 2016, wherein he had indicated his
intention to approach the Court, as his dispute
pertained to a breach
of contract and conditions of service and could not be determined
through the internal grievance process.
Further correspondence on 24
November 2016 to the MEC was clearly an acknowledgement that the
dispute could not be resolved internally.
18.12 To further
have referred the dispute to the SALGBC in circumstances where it is
known that the dispute could further
be protracted due to the time
frames of setting down conciliation proceedings at that forum cannot
by any stretch of imagination
be an acknowledgement that a matter is
urgent. The Applicant’s contention that he was hopeful that the
matter could be resolved
at conciliation is indeed far-fetched in the
light of the clear stance by the Respondents on the matter as far as
2 September 2016.
Even at that belated stage, and to the extent that
the issue of alternative remedy might be used as a defence, nothing
prevented
him from approaching the Court despite having referred the
dispute to the SALGBC, particularly in view of his knowledge that the
bargaining council would not be able to arbitrate his dispute.
Furthermore, nothing turns on the Applicant’s excuse that
he
could only approach the court on the date that he did on the basis
that he could only consult with his representatives after
the festive
season. This cannot by all accounts amount to a reasonable
explanation.
18.13 The Applicant
remains employed,
albeit
he had been removed from his
position, and not much turns on his contentions surrounding an annual
increase or performance bonus.
To conclude then, the Applicant has
failed to demonstrate that this application deserves the urgent
attention of the Court. As
correctly pointed out on behalf of the
Respondents, and by virtue of the delay between the alleged source of
the complaint and
the timing of the launching of this application,
the urgency in this matter is clearly self-created. In the light of
this inordinate
delay, and as again correctly pointed out on behalf
of the Respondents, there is nothing to interdict in view of the
long-standing
decision. The Applicant has by choice, endured the
consequences of the impugned decision for a period of five months,
and cannot
seek the intervention of this court at this belated hour.
18.14
It is further trite that the courts are loath to grant urgent relief
in circumstances where an Applicant has alternative
remedies
available to him. The SALGBC might not have jurisdiction to arbitrate
disputes pertaining to alleged unilateral changes
to terms and
conditions of employment. A certificate of outcome was issued in
respect of that dispute, and the Applicant as per
Part B of his
Notice of Motion intends to approach the Court to obtain the relief
that he seeks. He therefore has
substantial
redress in due course.
[19]
In the light of the above conclusions, it would not be necessary to
deal with the other preliminary points raised on behalf
of the
Respondents. Since the application is deemed not to be urgent, it
should accordingly be struck off the roll. Further having
had regard
to the requirements of law and fairness, and having taken the
circumstances of this case into account, I am not convinced
that a
cost order against the Applicant is warranted. Accordingly, the
following order is made;
Order:
1.
The
Applicant’s application is struck off from the roll on account
of lack of urgency.
2.
There
is no order as to costs.
___________________
Edwin Tlhotlhalemaje
Judge of the Labour
Court, South Africa
APPEARANCES:
For the
Applicant:
Adv. B. Ford
Instructed
by:
Ndumiso Voyi INC
For the
Respondents:
Adv. V Soni SC with Adv. V. September
Instructed
by:
Norton Rose Fulbright. South Africa INC
[1]
[1]
Act
26 of 2000
[2]
Act
75 of 1997
[3]
Act
103 of 1994
[4]
Act
No 39 of 1994 (as amended by Act 67 of 2002)
[5]
See Annexure A to the SMS Handbook
[6]
In
reference to Armaments Corporation of South Africa (SOC) Ltd v CCMA
and Others
[2016] 5 BLLR 461
(LC) at paragraphs 40-43
[7]
Gallagher
v Norman's Transport Lines (Pty) Ltd
1992 (3) SA 500
at
502E-503 D.
[8]
Page
67 of the Applicant’s bundle,
Paragraph
11 of his e-mail of 30 August 2016 to Swartz
[9]
(2016) 37 ILJ 2862 (LC) at paragraphs 22 to 26, and in particular,
at para 26 where Snyman AJ held that;
“
Urgency
must not be self-created by an Applicant, as a consequence of the
Applicant not having brought the application at the
first available
opportunity. In other words, the more immediate the reaction by the
litigant to remedy the situation by way of
instituting litigation,
the better it is for establishing urgency. But the longer it takes
from the date of the event giving
rise to the proceedings, the more
urgency is diminished. In short, the Applicant must come to
Court immediately, or risk
failing on urgency. In Valerie Collins
t/a Waterkloof Farm v Bernickow NO and Another the Court held:
‘…
if the Applicants seeks
this Court to come to its assistance it must come to the Court at
the very first opportunity, it cannot
stand back and do nothing and
some days later seek the Court’s assistance as a matter of
urgency.’” (Authorities
and citations omitted)