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[2017] ZALCJHB 379
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Mokoroane v Department of Justice Correctional Services (J2421/17) [2017] ZALCJHB 379 (17 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: J2421-17
In
the matter between:
BOBO
JOSEPH MOKOROANE
Applicant
and
DEPARTMNT
OF JUSTICE
CORRECTIONAL
SERVICES
Respondent
Heard:
17 October 2017
Delivered:
17 October 2017
EX TEMPORE
JUDGMENT
WHITCHER,
J:
[1]
On
17 October 2017 I dismissed this urgent application for the following
reasons.
[2]
The
applicant was suspended three months prior to him launching this
application on an urgent basis. He has failed in his papers
to
establish why in this circumstance he is entitled to approach this
court on an urgent basis.
[3]
The
applicant has alternative remedies, namely a referral of an unfair
labour practice to the relevant bargaining council.
[4]
He
is also entitled to make representation to the disciplinary
chairperson of the disciplinary on any aspect of the hearing or
charges he deems to be unfair.
[5]
The
fact that the applicant uses the word “unlawful” to
describe the conduct of the respondent does not mean that these
alternative remedies are irrelevant or that the applicant is entitled
to just approach this court anytime and not observe the rule
that
urgent applications must be brought urgently.
[6]
The
applicant has failed to establish that a right has been clearly
violated. He was given an opportunity to make representation
on the
suspension, but chose not to for dubious reasons.
[7]
Recently,
in the matter
Lesiba
v
Department of Justice
[1]
which
was also based on claims of
unlawful
disciplinary action and was also an attempt to interdict same and
claim declaratory relief on an urgent basis, Van Niekerk J held
as
follows:
[5]
This court has stated on
numerous occasions that it will intervene in incomplete internal
hearings in only the most exceptional
circumstances. In
Magoda
v DG Rural Development
and Land Reform
(J1876/17,
28 August 2017), Myburgh AJ recently said the following (footnotes
included in square brackets):
Eight
years ago, Francis J identified that a worrying trend was developing
in this court where the urgent roll is being clogged
up with
applications to interdict disciplinary enquiries from taking
place.
[2]
[
Mosiane
v Tlokwe City Council
[2009] 8 BLLR 772
(LC) at para 15.]
In
the years that followed, this court repeatedly echoed these
sentiments.
[3]
[See
Jiba
v Minister of Justice and Constitutional Development & others
[2005] ZALC 15
;
[2009] 10 BLLR 989
(LC) at para 17;
SA
Municipal Workers Union on behalf of Members v Kopanong Local
Municipality
(2014) 35
ILJ
1378 (LC) at para 33;
South
African Municipal Workers’ Union obo Dlamini and others v
Mogale City Local Municipality and another
[2014] 12 BLLR 1236
(LC) at para 45;
Zondo
& another v Uthukela District Municipality & another
(2015) 36
ILJ
502 (LC) at para 45;
Ravhura
v Zungu NO & others
(2015) 36
ILJ
1615 (LC) at para 15;
Association
of Mineworkers & Construction Union & others v Northam
Platinum Ltd & another
(2016) 37
ILJ
2840 (LC) at para 41.]
But
practitioners have not taken heed of this, with Van Niekerk J having
commented last year that “[t]he urgent roll in this
court has
become increasingly and regrettably populated by applications in
which intervention is sought, in one way or another,
in workplace
disciplinary hearings”.
[4]
[
Ngobeni
v Passenger Rail Agency of SA Corporate Real Estate Solutions &
others
(2016) 37
ILJ
1704 (LC) at para 14.]
This
case adds to what is a significant challenge to the capacity and
resources of this court.
[6]
It would appear that
despite these admonitions, parties continue to bring urgent
applications to secure interventions in incomplete
domestic
disciplinary hearings. The present application is no more than an
urgent appeal against the ruling by the chair of the
disciplinary
hearing dismissing his preliminary point. I have my doubts as to
whether this court has jurisdiction to grant the
order sought. Unlike
Magoda
,
the applicant in the present instance has not even sought to frame
the application as one in respect of which the court is empowered
to
hear in terms of the enabling provisions of s 157 and s 158 of the
LRA. It should be emphasised that the jurisdiction to address
substantive and procedural shortcomings in the exercise of
workplace discipline lies in the hands of an arbitrator.
[7]
There is simply no basis on which the application ought to be
entertained. To do so
would undermine the statutory purpose
underlying dispute resolution under the LRA. Workplace discipline
remains regulated by the
code of practice and preliminary points or
to be dealt with in the ordinary course of the exercise of workplace
discipline, as
they were in the present instance. If these rulings
become the subject of dispute, these are matters that ought to be
dealt with
if necessary during the course of an arbitration under the
auspices of the CCMA were bargaining council having jurisdiction.
This
court exercises a supervisory jurisdiction by way of its power
to review rulings and awards made by arbitrators. That system is
entirely undermined when parties seek this court’s
intervention, as a forum of first instance, effectively to
micro-manage
workplace disciplinary hearings.
[8]
For the above reasons, the application stands to be dismissed.
The applicant
must answer to the merits of the charges brought
against him. Had the application been opposed, I would have had no
hesitation
in granting an order for costs on a punitive scale. In
order to emphasise the seriousness of the admonitions to which
Myburgh AJ
referred and what appears to be an indifference to them,
perhaps the time has come for practitioners who file applications
such
as the present to be invited to make submissions as to why an
order should not be granted that they forfeit their fees.
[8]
Finally,
this court has in previous judgments held that collective agreements
are peremptory. Accordingly, a declaratory application
to this effect
is not necessary.
Order
[9]
In the
premises, the following order is made:
1.
The
application is dismissed with no order as to costs.
_________________________
B. Whitcher
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
In
person
For
the Respondent:
M
W Dlamini,
Instructed
by:
State Attorney, Johannesburg
[1]
(J2262/17) [2017] ZALCJHB 365 (4
October 2017)