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 138
|

|

Enslin v Gerhard Potgieter Cleaning Services (Pty) Ltd t/a Mr Clean (J801/17) [2017] ZALCJHB 138 (28 April 2017)

IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 801/17
In
the matter between:
JOHANNES ADAM
ENSLIN
Applicant
and
GERHARD
POTGIETER CLEANING
SERVICES
(PTY) LTD T/A
MR CLEAN
Respondent
Heard:
10 April 2017
Delivered:
28 April 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The
applicant approached this Court by way of urgent proceedings to seek
an order declaring that the disciplinary proceedings instituted

against him were invalid and unenforceable as they were pursuant to a
protected disclosure he had made as contemplated in the provisions
of
the Protection of Disclosure Act.
[1]
The order sought is
interim
,
pending the outcome of an unfair labour practice dispute referred to
the CCMA in relation to the disciplinary action taken against
him.
Background:
[2]
The respondent, Gerhard Potgieter [Maintenance] Cleaning Services
(Pty) Limited, trading as ‘Mr. Clean’, is a private

enterprise founded and established by the late Mr. Gerhard Potgieter.
It renders cleaning services to different corporate entities
with
Shoprite Checkers being one of its main clients. It employs about
6000 employees who service 402 shops of the Checkers/Shoprite
Group
and further provide trolley services.
[3]
The applicant commenced his employment with the respondent during
2004 as a Workshop Manager. He averred that upon the death
of
Potgieter during July 2012, Mr Leon Nicolaas Uys (Uys) became the
majority shareholder and Managing Director of the respondent.

Although it is disputed, the applicant further averred that during
2013, he was elevated to the position of Deputy Managing Director
of
the respondent.
[4]
The applicant also averred that during 2013 he became aware of Uys’
sudden accumulation of wealth, which did not correlate
with his known
income derived from the respondent and Uys’ estate. This had
left the applicant suspicious that Uys might
have been involved in
some irregularities.
[5]
During 2016, the applicant became aware of an exchange of hard
foreign currency between Uys and one Mr Shafik Salie in the amount
of
approximately twenty US Dollars ($20 000). Upon confronting Uys,
the latter informed him that the money came from the respondent’s

African operations and was to be sold to associates, where-after the
rand value of amounts received would be paid into the respondent’s

business.
[6]
The applicant had reason to believe that a transaction of that nature
might be unlawful, and in contravention of foreign exchange
and
customs laws and regulations and laws of the Republic. The applicant
then took it upon himself to investigate similar transactions

undertaken in the name of the respondent.
[7]
During 2014, the applicant and Uys founded and registered a company
known as ‘CleanCorp’ after Potgieter’s
death. The
applicant is the sole director of the said company. CleanCorp was
established to take over the business of the respondent
in an event
that the latter could not meet its contractual obligations. The
rationale behind its establishment was that at the
time, the
respondent was indebted to ABSA and SARS, and there was a possibility
that the bank could call up the loan, which could
have resulted in
the respondent being declared insolvent.
[8]
The applicant contends that during October 2016, Mr Sean Luyt (Luyt)
who was then employed by the respondent, approached him
and provided
him with several documents that demonstrated that Uys had acquired a
number of properties, either in his name or through
a family trust.
The applicant alleged that the documents also demonstrated irregular
transactions in which Uys was syphoning money
from the respondent and
from foreign countries by various means.
[9]
Based on the evidence at their disposal, the applicant and Luyt then
consulted a legal practitioner, Raain Louw Attorneys during
November
2016, to establish whether that information amounted to any conduct
that was unlawful or irregular. The attorneys’
advice was that
the applicant and Luyt had a legal obligation to disclose the
purported suspicious transactions to SARS.
[10]
On the strength of the legal advice, on or about 4 November 2016, the
applicant held a meeting with Uys to discuss the purported
irregular
transaction within the respondent. Uys allegedly admitted some of the
information as being factual and denied others.
The applicant
nevertheless proceeded to investigate the matter further and went
back to Louw, who undertook to assist him and Luyt
in any in
discharging their legal obligations.
[11]
During December 2016, the applicant had a discussion with a Mr Kobus
Zwennis, the representative of Shoprite Checkers in control
of the
contract, who was also his friend.  The applicant alleges that
the sole purpose of the discussion between him and Zwennis
was to
ensure that the contractual obligations between the respondent and
Shoprite Checkers were not interrupted. He further contended
that the
discussions centred around the allegations against Uys, and an
eventuality where there could be consequences as a result
of the
disclosure. The intention of this meeting according to the applicant
was for him to be placed in a position where he could
ensure that the
respondent’s obligations to Shoprite Checkers were continued
through CleanCorp, which was already established
as a backup, in the
event that the respondent went under.
[12]
During 9 January 2017, the applicant, Luyt and Uys together with Mr
Wian Ferreira held a meeting. In that meeting, certain
allegations of
misconduct were levelled against Luyt. Luyt was informed of the
intention of the respondent to suspend him pending
the finalisation
of an investigation pursuant to the allegations. Uys further informed
the applicant that he had already discussed
the allegations against
the respondent with Zwennis in December 2016 and those allegations
were to be investigated by a team already
appointed.
[13]
Following his suspension, Luyt in the face of the allegations of
theft, fraud and other impropriety, elected to resign on 9
January
2017.  On 12 January 2017, the applicant and Luyt met with
attorneys Raain Louw. In that meeting, two representatives
of the
South African Revenue Services were also present. It was in that
meeting that the applicant had disclosed the allegations
of possible
money laundering through the import of foreign currency from other
African countries, the purchase of private properties
by Uys through
the CleanCorp, and money being held in other entities related to the
respondent in the Republic and in foreign countries
that was not
declared to SARS.
[14]
On or about 9 February 2017, the applicant contends that he was
contacted by the South African Revenue Services representatives
who
had requested him to reduce his allegations and/ or disclosure in
writing in a form of an affidavit.
[15]
On 10 February 2017, the applicant and Uys met at the City Lodge in
Pretoria to discuss the applicant’s disclosure. Uys
had
disputed any wrongdoing and requested him to participate in an
investigation against allegations of misconduct levelled against
him
by certain employees of the respondent and Luyt.
[16]
On or about 16 February 2017, the applicant deposed to an affidavit
affirming to the allegations of impropriety against the
respondent,
and in particular, Uys, which he had provided to the SARS
[17]
On 13 March 2017, charges of misconduct were preferred against him.
The charges in annexure “A” of the notice of
disciplinary
enquiry were formulated as follows:
“
Annexure
A
1.
Gross misconduct in that during the period of September 2016 to
October 2016 you unlawfully made electronic
copies and/ or took
photographs of and/ or hard copies and/ or reproduced photographs of
personal documentations belonging to Mr
Leon Uys with the intention
of utilizing the personal information to bring Mr Leon Uys and/ or
the company into disrepute and/
or disgracing the company with
Shoprite/Checkers.
2.
Gross misconduct in that during the period of December 2016 you
failed to act in good faith towards the
company and acted to the
detriment of the company and in direct conflict of interest with the
company in that you approached and
had a meeting with Mr Zwennis and
requested Mr Zwennis to cancel contracts with the company and
allocate the contracts to yourself
and/ or an entity owned by
yourself alternatively in which you have interest.
3.
Gross misconduct in that on or about July 2016 you failed to act in
good faith towards the company and
acted to the detriment of the
company in that you failed to take remedial action against Mr S Luyt
when it came to your attention
that Mr S Luyt fraudulently
misrepresented to one of the clients of the company being
Shoprite/Checkers that their trolley losses
were less than it
factually was by moving trolleys already audited in Middelburg region
to the Alberton region for specific trolley
to be re-counted in the
Alberton region.”
[18]
Regarding the above charges, the applicant’s contention was
that;
a)
they related directly to the disclosures made by him and Luyt to Louw
the attorney, the SARS and Zwennis of
Shoprite Checkers;
b)
they related to confidential information of Uys that was copied and
used by Luyt, and not upon his instructions
or assistance.
c)
the information he had obtained from the respondent, CleanCorp and
other entities to which monies of the respondent
had been distributed
or belonged to was not confidential as he was allowed to have access
to and question it in his capacity as
Deputy Managing Director, and
the information was not disclosed in a mala fide fashion or to
benefit himself;
d)
the allegations against him directly related to the disclosures he
had made to SARS under the PDA, and any
disciplinary steps was
therefore unlawful
[19]
In an answering affidavit deposed to by Uys, the respondent’s
answer to the applicant’s allegations was that;
a)
Uys currently holds 96% shares in the company, whilst the other 4% is
held by a Dries Bothma. The respondent
generates an income of about
R23,2 million a month from Shoprite/Checkers alone. The applicant
holds the position of Operations
Manager for Botswana and all the
provinces except for Kwa-Zulu Natal and Western Cape. Uys denied that
the applicant was appointed
as Deputy Managing Director. He conceded
that he fulfilled the functions of Uys’ second in charge.
b)
The applicant was not a shareholder and had no idea of what Uys’
income was, but had attempted to create
an impression that there was
something suspicious about Uys’ wealth.
c)
The applicant had no legitimate basis for removing documents from
Uys’ office and had merely done so
unlawfully with the
assistance of Luyt as confirmed by the latter, for the sole purpose
of attempting to hijack the business of
the respondent, and was now
after the fact, attempting to align himself with the PDA, based on
information that was at best speculative.
d)
It was the applicant that had approached Luyt to join him in a new
company, Clean Corp Holdings (Pty) Ltd that
was established in
January 2014, to find information to discredit Uys and the
respondent, and to convince Zwennis to give them
the
Shoprite/Checkers’ contracts.
e)
Uys denied that he was involved in money laundering or there was any
wrong doing in handling of foreign cash
in that what was handed to
him by Salie was an amount of $10 000.00 that was brought into the
country from Botswana, which had
nothing to do with the operations of
respondent, and which in any event the respondent did not have to
declare in terms of the
Customs and Excise Regulations. He further
averred that the allegations of wrongdoing are at best sketchy and
the fact that Louw
had not deposed to any confirmatory affidavit
about the alleged disclosures can only imply that he avoided possible
defamation
claims.
f)
The respondent despite the applicant having approached the SARS had
no knowledge of any investigations
flowing from the alleged
disclosure, and the respondent as at February 2017 had a clean report
and had received a clean bill of
health from SARS.
g)
At a meeting between Uys and the applicant on 4 November 2016, the
latter had attempted to blackmail Uys into
giving him shares and
profit-sharing in the respondent, and had refused to divulge any
information intended to be disclosed to
SARS’ officials that to
date remained unidentified.
h)
The information disclosed to SARS according to Uys remained
speculative and could not be construed as a disclosure
as envisaged
in the PDA, and the applicant could not rely on that affidavit to
avoid the continuation of the disciplinary enquiry.
i)
The charges preferred against the applicant emanated from information
received by Ferreira, of the respondent’s
Human Resources from
Mrs de Wet, its administration manager in the Benoni on or about 14
February 2017, to the effect that the
applicant and Luyt had
committed of acts of misconduct over time since mid- 2016. De Wet’s
confirmatory affidavit in respect
of these allegations was attached
to the founding affidavit.
j)
Investigations thereafter followed, and Luyt had also submitted an
affidavit, in which he had confirmed
having had several meetings with
the applicant to discuss a variety of issues, which in the
respondent’s view laid the basis
for the charges against the
applicant. Similar affidavits were also obtained from Edwin Vertue
who is the Operations Manager in
Gauteng.
k)
Based on the allegations made against the applicant, he was then
suspended with full benefits on 21 February
2017 and issued with a
notice on 13 March 2017 to attend a disciplinary enquiry scheduled
for 16 March 2017;
l)
On 13 March 2017, the applicant sent through a medical certificate
which declared him medically unfit
from 3 March 2017 until 10 March
2017. Another medical certificate followed on 15 March 2017 which
declared him unfit until 31
March 2017
m)
A new notice to attend the disciplinary enquiry was issued on 28
March 2017 in terms of which the enquiry was scheduled
for 1 April
2017. On 29 March 2017, the applicant’s attorneys of record
sent an e-mail to the respondent informing it that
the pending
disciplinary action was as a result of a protected disclosure and was
thus unlawful and unfair. The respondent was
then advised of the
intention to bring this application and requested that the
disciplinary proceedings be postponed.
n)
Following various telephonic communications between the attorneys of
record, it was accepted that the medical
certificate declaring the
applicant medically unfit until 10 March 2017 should have read 10
April 2017 and the disciplinary proceedings
were postponed to 11
April 2017.
o)
The respondent was advised on 4 April 2017 that the applicant would
be proceeding with this application. This
was followed a referral of
the dispute to the CCMA on 5 April 2017, and a copy of this
application.
p)
The respondent holds the view that there is no basis for the granting
of the order sought, as the applicant,
in the event of an
unfavourable outcome from the disciplinary enquiry, can approach the
CCMA.
Evaluation:
[20]
The
applicant seeks interim relief, and the
requirements
for such relief are well-known
[2]
.
Thus, applicant must establish the existence of a
prima
facie
right; the apprehension of irreparable harm; the absence of an
alternative remedy; and the balance of convenience. Principal amongst

considerations in urgent applications, whether an interim or final
order is sought is whether grounds for the matter to be heard
on an
urgent basis have been established.
Urgency:
[21]
The
respondent’s primary contention was that the application before
the court was not urgent. The principles surrounding urgent

applications in this court are trite. Rule 8 of the Rules of this
Court
[3]
requires a party
seeking urgent relief to set out reasons for urgency, why urgent
relief
is
necessary, and
why
the requirements of the rules of court have not been complied
with
[4]
.
Thus,
an
applicant is required to place such facts before the court as would
be sufficient to enable it to exercise a judicial discretion
in
regard to whether sufficient and satisfactory grounds have been shown
to exist to justify giving the particular matter preference
[5]
.
[22]
In this case, the applicant averred that the application was urgent
based on the following grounds;
a)
The disciplinary enquiry was set to continue on 10 April 2017;
b)
There was no purpose in waiting until after the date to have the
application heard considering the nature of
the relief required;
c)
He was only able to consult counsel during the week of 21 March 2017
and an attorney during the week of 28
March 2017 due to his illness.
d)
The urgent relief was required to enable him to pursue the remedies
he had under the LRA and the PDA with respect
to the protected
disclosure he had made and the fact that the respondent was
committing an unfair labour practice in this regard
e)
If urgent relief was not granted, it would mean that Uys would be
allowed to continue with his orchestrated
attempt and object to get
him dismissed, and once dismissed, this would cause him grave
injustice and would have dire consequences
for him and his
dependants.
[23]
The
respondent as already indicated vehemently denied that there was any
urgency in the application, and that any urgency that might
exist is
self-created. I agree with the submissions made on behalf of the
respondent that the urgency in this matter is self-created.
My
conclusions in this regard are fortified by the trite principle that
the latitude extended to parties to dispense with the rules
of the
court in circumstances where they seek urgent relief is not be
available to parties who are dilatory to the point where
their very
inactivity is the cause of the harm on which they rely on to seek
relief
[6]
.
[24]
The applicant in this case was dilatory, and there is nothing to
gainsay the contention that it is his very inactivity from
when the
disciplinary steps against him commenced that is the very cause of
harm on which he seeks to obtain relief. In this regard,
it is
observed that;
a)
The applicant was suspended with full benefits on 21 February 2017.
He was content to be on suspension, and
had not taken any steps to
challenged that suspension.
b)
On 3 March 2017, the applicant sent through a copy of his medical
certificate which declared him medically
unfit until 10 March 2017.
It is not known what he had done between 27 February 2017 and 3 March
2017.
c)
Upon receipt of a notice to attend a disciplinary enquiry on 13
March 2017, in terms of which the enquiry
was scheduled for 16 March
2017, the applicant sent through another copy of his medical
certificate on 15 March 2017, which declared
him unfit until 31 March
2017. This was a day prior to the enquiry. The timing of the
submission of the copy could not have been
coincidental, and I am
inclined to agree with the respondent’s contentions that the
applicant was clearly trying to avoid
the enquiry.
d)
The applicant allegedly consulted with counsel during ‘the week
of 21 March 2017 and an attorney during
the week of 21 March 2017’.
Again, there is vagueness in respect of specifics, and it is strange
that the applicant would
want to consult with counsel first prior to
consulting with his attorneys. Even then, no action was taken after
those alleged consultations.
e)
On 28 March 2017, a new notice to attend the disciplinary enquiry was
issued to the applicant in terms of which
the enquiry was scheduled
for 1 April 2017. In response to this notice, the applicant’s
attorneys of record for the first
time on 29 March 2017 made
allegations of a protected disclosure and indicated their intention
to approach the court on an urgent
basis. This was notwithstanding
the applicant’s initial contention that as far back as November
2016 he had intended to make
a protected disclosure after discussing
the allegations with Zwennis and Uys.
f)
His attorneys had further on 28 March 2017 requested that the
disciplinary enquiry scheduled for 1 April
2017 be postponed pending
the proceedings before this court. Despite the notice, still the
applicant failed to launch the application.
g)
On 30 March 2017, the applicant’s attorneys of record
telephonically contacted the respondent and made
a further request
for a postponement of the disciplinary enquiry on the grounds that
the attorney was not available on the specified
date. This was
followed by yet another copy of the applicant’s medical
certificate, declaring him unfit until 10 April 2017.
h)
Prima facie
, it appears that the applicant was bent on
avoiding the disciplinary enquiry. Even if he had reason to believe
that the disciplinary
proceedings were unwarranted, and despite
threatening legal action, he had not done so, until the respondent
had insisted that
the enquiry would proceed on 11 April 2017.
i)
On 4 April 2017, the applicant’s attorneys of record advised
that they would be proceedings with
an urgent application. An unfair
labour practice dispute was referred to the CCMA on 5 April 2017.
This was according to the respondent,
followed by the applicant’s
urgent application as served on it some three hours after receipt of
the referral. The application
was filed with the Court on 6 April
2017, some 38 days since the suspension.
[25]
In
AMCU
and Others v Northam Platinum Ltd and Another
[7]
this Court held that;
“
A
final consideration when it comes to urgency is the expedition when
taking action. 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.”
[26]
In the light of the time-line as summarised above, there can be no
doubt that the situation sought to be remedied with this
urgent
application arose on 27 February 2017 when the applicant was
suspended. Until the first notification to attend the disciplinary

enquiry was issued on 13 March 2017, he took no action. The applicant
waited until 6 April 2017 to approach the CCMA and to launch
the
application in view of the respondent’s insistence that the
disciplinary enquiry was to proceed on 11 April 2017. The
applicant
does not proffer any reasonable explanation as to the reason that he
had not approached the court earlier after he was
suspended or
notified of the intended disciplinary proceedings. His only
explanation was that he was sick and had been booked off.
[27]
It is not even clearly discernible from the copies of medical
certificates issued on 3 March 2017 and 15 March 2017 as to what

could have rendered the applicant so incapacitated as to be unable to
take any steps in regard to the respondent’s alleged
unfair
conduct towards him. In my view, the requests to postpone the
disciplinary proceedings on either medical grounds or on the
fact
that his attorney was not available was merely an attempt at avoiding
the inevitable.
[28]
The referral of the dispute to the CCMA on 5 April 2017 in view of
the suspension having taken place on 27 February 2017 was
in any
event belated and an after-thought. This was in view of the
realisation that such a referral was required for the purposes
of the
interim order to be sought. The subsequent launching of this
application on the same date as the referral to the CCMA was
clearly
an attempt to demonstrate that the matter was expeditiously attended
to when this was not the case. This was indeed a classic
case of
self-created urgency.
[29]
In the light of the above, the Court is not satisfied that the
reasons that make the matter urgent have been set out succinctly
in
the papers. There is nothing in the applicant’s reasons for
urgency that indicates that he will not obtain a substantial
relief
at a later stage.
[30]
Other than
the above factors, the applicant was well aware that he had an
alternative remedy in the form of a referral to the CCMA,
and the
courts are loath to accord a matter urgency where a party has
alternative remedies. This is even more apposite in this
case where
the relief sought is in a form of a declaratory order. In
MEC
for Education: North West Provincial Government v Errol Randal
Gradwell
[8]
,
it
was held that a declaratory order is usually inappropriate where the
applicant has access to alternative remedies, such
as those available
under the unfair labour practice jurisdiction. These remedies are
clearly available to the applicant.
[31]
In the light of all factors considered above, the matter ought to be
struck off the roll. Thus, no purpose would be served
in determining
whether other requirements for the relief sought have been met. It is
further trite that this court takes into account
the requirements of
law and fairness in determining whether a cost order should be made.
In this case, having considered those
requirements, I am satisfied
that the applicant ought to be burdened with the costs of this
application.
[32]
Accordingly, the following order is made:
Order:
i.
The applicant’s application is struck off the roll for lack of
urgency.
ii.
The applicant is ordered to pay the costs of this application
__________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Ms. S Lancaster
of Lancaster Kungoane Attorneys
For
the Respondent:
Adv. A van der Merwe
Instructed
by:

Tertius Bootha Attorneys
[1]
Act 26 of 2000
[2]
LF
Boshoff Investments (Pty) Ltd v Cape Town Municipality
1969 (2) SA
256
(C) at 267 A-F.
[3]
Rule 8 provides 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”.
[4]
See
Maqubela v SA Graduates Development Association and Others [2014] 35
ILJ 2479 (LC) at para 32, where it was held that;
“
Whether
a matter is urgent involves two considerations. The first is whether
the reasons that make the matter urgent have been
set out and
secondly whether the applicant seeking relief will not obtain
substantial relief at a later stage. In all instances
where urgency
is alleged, the applicant must satisfy the court that indeed the
application is urgent. Thus, it is required of
the applicant
adequately to set out in his or her affidavit the reasons for
urgency and to give cogent reasons why urgent relief
is necessary…”
[5]
Mimmo’s Franchising CC v Spiro, Harry David
(JA58/00)
[2002] ZALAC 7
(29 March 2002) at paragraph 29. See also Jiba v
Minister: Department of Justice and Constitutional Development and
Others 2010)
31 ILJ 112 at para 18 where it was held that;
“
Rule
8 of the rules of this court requires a party seeking urgent relief
to set out the reasons for urgency, and the degree to
which the
ordinary applicable rules should be relaxed is dependent on the
degree of urgency. It is equally trite that an applicant
is not
entitled to rely on urgency that is self-created when seeking
deviation from the rules”.
[6]
National Police Service Union and others v National Negotiating
Forum and others (1999) 20 ILJ 1081 (LC) para [39]
[7]
(2016) 37 ILJ 2840 (LC) at para 26
[8]
(2012)
33 ILJ 2033 (LAC)
at
para 46