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[2017] ZALCJHB 430
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Union for Police security and Corrections Organisation obo Members and others v South African Custodial Management and Another (J2895/17) [2017] ZALCJHB 430 (24 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: J 2895/17
In
the matter between:
UNION
FOR POLICE, SECURITY AND
CORRECTIONS
ORGANISATION obo MEMBERS
First
Applicant
THE
INDIVIDUALS LISTED IN ANNEXURE ‘A1’
Second
To Fourteenth Applicant
INDIVIDUALS
LISTED IN ANNEXURE ‘A2’
Fifteenth
To Eighteenth Applicant
and
SOUTH AFRICAN
CUSTODIAL MANAGEMENT
First Respondent
KENSANI CORRECTIONS
MANAGEMENT
Second Respondent
Heard:
14
November 2017
Delivered:
24
November 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
In
this opposed urgent application, the applicants seek an order setting
aside the second to fourteenth applicants’ suspension
from the
first respondent; and setting aside the suspension of fifteenth to
eighteenth applicant’s suspension from the second
respondent.
In the alternative, the seek an interim order setting aside notices
of suspensions pending the finalisation of the
disciplinary
proceedings against them.
[2]
In
a further alternative, they seek an order essentially directing the
respondents during their suspension, to recognise the union’s
leadership as legitimate, and thus grant them access to its
facilities for the purposes of conducting legitimate union
activities,
to represent its members at disciplinary hearings, and to
allow them to consult with their members.
Background:
[3]
The
first applicant, the Union For Police, Security And Corrections
Organisation
(
UPSCO),
was until 6 August 2017, known as Kutama Sinthumule
Correctional Workers Organisation (KSCWO). Its members are
primarily
the respondents’ employees. The second to further applicants
comprise of the General Secretary, Chairperson, other
Executive
Committee members, and ordinary members of UPSCO.
[4]
The
South African Custodial Services (Pty) Ltd (SACS) has a public
private partnership with the National Department of Correctional
Services (DCS) to operate the Kutama Sinthumule Correctional Facility
in Louis Trichardt, Limpopo. The first respondent (SACM)
and second
respondent (Kensani) are both sub-contracted to SACS and are
responsible for the security and administration of rehabilitation
programmes at the prison. They also render maintenance services to
the prison.
[5]
SACM,
Kensani and other subcontractors jointly employs about 600 employees,
580 of which are UPSCO members. UPSCO has separate recognition
agreements with both SACM and Kensani. The second to further
applicants are employed mostly as prison guards.
The events leading to
the dispute and the urgent application:
[6]
The
events leading up to the dispute between the parties and the ultimate
suspension of the applicants dates back to September 2015,
when
the parties negotiated wages and other conditions of employment. The
Union had complained about salary disparities amongst
employees
employed by SACM and Kensani as compared to other employees under the
DCS.
[7]
Central
to the dispute was the demand that the pension benefits enjoyed by
the DCS’ employees should be replicated by SACM
and Kensani to
its employees. It is not necessary for the purposes of this judgment
to deal with the details surrounding the dispute,
safe to state that
since the employees are regarded as essential workers, they are not
permitted to embark on any industrial action
in pursuance of their
demands in respect of the pension benefits.
[8]
The
applicants did not file a replying affidavit despite their
acknowledgement in the founding affidavit that factual disputes were
anticipated. In the founding affidavit, they had also reserved their
rights to supplement their papers, but had omitted to do so.
The
general allegations against the applicants are that the Union has not
referred the disputes for arbitration, but has consistently
resorted
to orchestrating unlawful and unprotected industrial action, and made
threats to destabilise the operations of the prison
in order to
compel the respondents to concede to their demands, especially in
respect of the pension benefits. The consequences
of these
unprotected actions on the part of the employees were that the
respondents had to incur financial penalties imposed by
the DCS.
[9]
The
respondents further averred that over-time, the Union had in the
midst of attempts to resolve the dispute, added more demands.
Attempts at resolving these issues involved setting up task teams and
securing the involvement of the DCS. A protracted attempt
to resolve
the issues also involved the engagement of legal teams to map out an
agreement. That process nonetheless ended badly,
as according to the
respondents, the Union Officials involved in those negotiations had
made unlawful attempts at soliciting a
bribe from the respondents’
legal team, with a promise that the settlement would be concluded.
Other than these factors,
the Union according to the respondents, has
refused, despite generous overtures in an attempt to resolve the
various disputes,
to deal with management, and had in the process,
marginalised SACM’s nominated representatives.
[10]
The
Union has since referred a dispute to this Court on 1 September 2017
in respect of these on-going demands. That matter
is still pending.
Matters came to a head on 29 September 2017, when 15
employees interrupted a management meeting held
off site between
SACM, Kensani and officials from the DCS. The Union demanded that the
Group COO of Kensani, Ms Starke, must address
their issues
surrounding salaries in respect of clerks and managers, and the
outstanding issue of pension fund.
[11]
On
26 October 2017, a meeting was convened to discuss the
pension fund issue. The meeting was scheduled for 10h30 in the
Training area. The second to eighteenth applicants (Union leaders)
attended a meeting with prison management. The Union officials
were
not satisfied with the responses to their demands and they then asked
management to convey its position to all the employees
in a meeting.
[12]
The
meeting with staff where management was to state its position was
scheduled for 13h30 at the prison’s Waste Management
area.
Management had informed workers that it could not agree to pay 16%
contributions to the pension fund as it did not have a
mandate in
that regard, nor could it afford that increase. After management had
made attempts to contact other senior people who
could take decisions
on the matter, the director of SACM in Cape Town, Ms. Starke-Dow,
then made an undertaking to arrange a meeting
with other directors,
and indicated that this could only be done on 30 October 2017
at 16h00, where a decision on the
matter would be taken.
[13]
The
meeting of 26 October 2017 had continued into the
afternoon, as the Union officials and other employees were not
satisfied with having to wait until 30 October 2017.
According to the respondents, the employees then announced that they
would stay at the Waste Management Area together with management
until Monday, 30 October 2017.
[14]
It
is common cause that a prison riot broke out and had extended into
the early hours of the next day. According to the respondents,
the
riot was precipitated by the fact that after the afternoon meeting of
26 October 2017 came to an end, the employees
seized
control of the Central Control Room of the prison at about 16h00. The
second to eighteenth applicants had also occupied
the Control Room at
varying times. The Central Control Room is the nerve centre of the
prison. It houses monitor screens with live
video feeds from cameras
surveilling the entire prison. It also houses joysticks used to open
and close doors and access points
around the prison, the inmates’
cells, and access points into and outside of the prison premises. The
Room also houses the
switches and systems for the electrical fence
erected around the prison. The Room has strict access and only
authorised hand-picked
individuals are allowed in it. The inside of
the Room is also under camera surveillance, and according to the
respondents, various
employees not permitted to be inside were
recorded as having entered it and causing disruptions to the prison
operations.
[15]
As
a result of these events, staff had abandoned their duties, resulting
in prisoners not having access to their medication and
food, and
basically left unattended and unsupervised. At some point, the
employees even prevented the Green Prison Manager from
serving food
to the inmates by utilising the prison’s intercom system from
the Control Room, and instructing the individual
concerned to stop
serving food to inmates.
[16]
In
the course of the violent riot which broke out in the prison,
prisoners broke out of their cells, set fire to offices and the
gymnasium, looted kiosks and broke serveries. The respondents’
contention was that the breaking out of prison cells could
only have
been facilitated by employees who had taken control of the Control
Room and opened the prisoners’ cells. At about
1930, the
electric fence surrounding the prison was switched off. Several
inmates attempted to escape by scaling over the now switched
off
electric fence.
[17]
Seven
inmates managed to escape. According to the respondents, more
prisoners could have escaped but for the intervention of
Neighbourhood
Watch and members of the Public Order Policing Unit,
who had arrived at the time that the prisoners had gone on a rampage
and attempted
to escape. The employees who were in the Control Room
are accused by the respondents of having orchestrated the escape,
watched
on security monitors as the events unfolded, and even called
Starke to the control room to watch what was happening. Starke was
further told by the applicants that the mayhem could be stopped if
management agreed to meet the employees’ demands.
[18]
As
the prison riots continued into the night, prisoners set fires in
various parts of the prison and the employees refused to intervene,
let alone help douse out the fires. They instead watched as events
unfolded. The inmates continued to roam around prison premises
and
broke into the maintenance areas, looted and removed tools from it.
They also raided the food storage area. It was only at
about 01h30
that the respondents had finally regained control of the central room
and the prison, and after the intervention of
outside law enforcement
agencies. The employees, who had remained on the premises as at about
05h00 had to be removed by private
security personnel in view of the
next shift having to resume its duties. As at the hearing of this
application, five of the seven
inmates had been recaptured. The other
two remained at large.
The suspensions:
[19]
On
30 October 2017, management had called the applicants to a
pre-suspension meeting, to afford them an opportunity to
make
representations on why they should not be suspended on full pay. The
respondents aver that at that meeting, complaints of
misconduct made
against the applicants were outlined and they were asked to make
representations. The charges against the applicants
were;
a)
Orchestrating
an unlawful and unprotected strike which took place on 26 and
27 October 2017;
b)
Holding
senior managerial employees, including the managing directors of the
respondents in prison and preventing them from leaving
the prison at
their own free will;
c)
Failing
to keep their members under control for the duration of the unlawful
and unprotected strike which resulted in significant
damage to
property, violence and the escape of seven prisoners;
d)
Compromising
the safety and security of the prison, including prisoners and staff
members
e)
Taking
control of the prison Central Control Room thereby hampering the
normal operations of the prison;
f)
Preventing
the night shift from accessing the facility to conduct their duties
or rendering their services which led to damage to
company property,
escalated the situation and led to the subsequent escape of seven
dangerous prisoners.
[20]
It
is common cause that the applicants had refused to make
representations and requested more time. They were given one hour to
consider their representations. After three hours, they were called
upon to make their representations and they had again refused.
Five
hours had passed since the applicants were requested to make
representations, and when they further refused to do so, they
were
then issued with suspension notices, in terms of which they informed
of their suspension with full pay with immediate effect,
pending an
investigation into the complaints and a notice to attend a
disciplinary enquiry to be issued in due course.
[21]
The
respondents holds the view that the amount of time afforded to the
applicants to make representations was reasonable as it was
not
feasible to have them remain at work in the light of the events of 26
and 27 October 2017, and further that their
presence on the
premises posed a huge risk as it would also undermine on-going
investigations.
[22]
The
applicants’ attorneys of record sent correspondence to SACM on
31 October 2017 and complained that the suspensions
were
procedurally and substantively unfair on the grounds that the
applicants were not afforded sufficient time to make representations,
and further since some of the applicants were shop stewards who were
on leave at the time of the incident. The respondents’
attorneys responded on 1 November 2017, and informed the
applicants that they were again afforded an opportunity to make
representations to show cause why they should not remain suspended.
The applicants’ attorneys rejected the offer in a response
on
2 November 2017, reiterated that the suspensions were
unlawful, and complained about the conditions attached to the
suspensions. The attorneys further threatened to approach the court
on an urgent basis.
[23]
Notices
to attend the disciplinary hearing were issued to the applicants on
7 November 2017. Copies of the notices were
also sent to
the applicants’ attorneys, advising them that the applicants
will be granted the right to legal representation
in those
proceedings. Advocate Michael Van As was appointed as the external
chairperson for the hearing scheduled for 13 November 2017.
The applicants’ attorneys’ response was that they would
serve an urgent application on that day, and requested that
the
disciplinary proceedings be suspended pending the outcome of the
urgent application.
[24]
The
respondents’ attorneys’ response was that they would
await the service of the urgent application, which would be
opposed
with an appropriate cost order, and further that the disciplinary
hearing would proceed as scheduled. On 7 November 2017,
this urgent application was launched. On 8 November 2017,
the applicants’ attorneys sent further correspondence
to the
respondents’ attorneys, objecting to the venue and chairperson
of the hearings, and the failure to provide information
for the
purposes of the hearings. A response thereto was that transport would
be provided to the applicants to and from the venue
where the
enquiries would be held; that there was no merit to the objection of
the chairperson, and that they could raise the issue
with the
chairperson at the hearings.
The applicants’
submissions:
[25]
The
applicants’ contention is that the suspensions are unlawful,
unfair and constitute a grave injustice. They contend that
the
unlawfulness arises in that the Union’s members’ freedom
to associate, organise and bargain with the respondents
have been
limited, and that the allegations of misconduct leading up to the
suspensions were spurious.
[26]
In
regard to the events that led to their suspensions, they contend that
management had invited them to a meeting on 26 October 2017
without making provisions for the fact that employees would not be
stationed at their normal posts. They contend that 150 employees
attended the meeting at 13h30 at the invitation of management, waited
for the Managing Director of SACM, Bahula to address them,
and to get
the necessary mandate on the issues raised. They conceded having
joined Bahula and Starke in one of the boardrooms whilst
they tried
to contact shareholders. They believe that Bahula and Starke were
playing for time whilst attempting to get hold of
shareholders,
including the American shareholders.
[27]
The
applicants blame Bahula and Starke for simply agreeing to their
demands that they should contact and find the shareholders who
would
take a decision on the issues that led to the dispute, and had failed
to take consideration of the fact that employees were
not at their
workstations. In essence then, the applicants blame the respondents
for the fact that employees had deserted their
posts, and believe
that since the operational management and safety of the prison’s
occupants was exclusively the prerogative
of prison management and
the chief of security, employees had the right to assume that they
had been permitted to stay in the waste
management area, and that
management had made sufficient alternative arrangements for the
security of the prison.
[28]
The
applicants further confirmed that attempts to obtain a mandate from
shareholders were unsuccessful, and Starke had made an undertaking
and advised them that management would revert to the employees on
Monday of 30 October 2017. When Bahula and Starke informed
the Union leaders that they had to leave in order to catch their
flight, they were in turn informed that they had to address the
employees and tell them why they were leaving. The Union leaders
wanted an assurance that they would be met on 30 October 2017
as promised.
[29]
According
to the applicants, before Starke and Bahula could address the
employees, information came through that a prison riot had
broken
out. The applicants alleged that they had then suggested to Starke
and Bahula that the meeting should be abandoned and that
the Union
leaders should inform their members to return to work and try to
contain the riot, to which Starke and Bahula had agreed
to.
[30]
Employees
could however not be able to contain the situation immediately as
they did not have defensive weapons. Management took
an hour prior to
reaching the armoury as the person in charge of the area could not be
located. It was only at about 18h30 that
the employees, together with
the police, private security firms and the emergency services that
attempts commenced in earnest in
containing the riots.
[31]
The
applicants confirmed having been given an hour on 30 October 2017
to make representations as to why they should not
be suspended. They
contend that the one hour was not sufficient, especially since some
of the Executive Committee members were
not present at the time they
were informed of the intended suspensions. They had informed
management after an hour that they could
not make those
representations. Management had a few hours later reverted to them
and issued notices of suspension to 17 of them,
with the allegations
against them outlined therein.
[32]
In
regard to having met the requirements of the relief they seek, the
applicants’ contention was that they had a clear right/
prima
facie
right as the suspensions were unlawful, interfered with their right
to freely associate, organise and bargain with the respondents.
They
complained that the Union’s Executive Council, of which its
leadership comprised of 17 of the 20 members was now defunct.
[33]
The
applicants further complained that the Union’s entire
constituency was based at Kutama Prison, and the suspensions of
the
elected leadership meant that it was not allowed to contact members,
and to represent them in disciplinary proceedings. They
lamented the
fact that they were now obliged to vacate their positions and offices
in order to allow by-elections to take place.
This was nonetheless
not possible as there were no ordinary members with the necessary
skills and training to defend other ordinary
members during
disciplinary proceedings. The applicants are concerned that the
Union’s ability to organise and assist ordinary
members was
nullified, and it could no longer pursue the pension fund issue, nor
could it consult with members concerning the pending
litigation.
[34]
The
applicants denied having been on strike and contended that the
allegations of misconduct were fabricated as the union leadership
was
always cooperative and went out of its way to assist management. They
regarded the allegations against them that they held
management in
the prison against their will as laughable, as is the allegation that
they took control of the Control Room. The
applicants further
contended that their suspensions were unlawful as only the
Correctional Centre Director had authority to effect
them against
Union leaders, and further that the conditions of the suspensions
were unlawful as they prevented the Union leadership
from coming
within 1 km of the prison, thus limiting their constitutional right
to freedom of movement.
[35]
Where
the Court were to find no basis to conclude that the suspensions were
unlawful, the applicants contend that the suspensions
are in the
alternative unfair, as they were not afforded reasonable time to make
representations before they were effected. They
further contend that
they would suffer irreparable harm if relief was not granted, on the
grounds that the Union members would
not be assisted in respect of
disciplinary proceedings to be instituted against them, and the
Union’s credibility and support
from its constituency would
consequently suffer.
[36]
The
applicants appreciated that an unfair labour practice dispute could
have been referred to the CCMA in respect of their suspensions.
They
however contended that they had no other alternative remedy, as the
CCMA functions too slowly to allow it to be a proper alternative
remedy in the circumstances. A further argument in this regard was
that part of the relief sought related to the union’s
access to
its members, a dispute over which the CCMA lacked jurisdiction.
The respondents’
submissions:
[37]
SACM
opposes the application on variety of grounds including that;
i.
The
issues arising in the application do not warrant the urgent
intervention of the court;
ii.
There
are no exceptional circumstances or grave injustice warranting the
court’s intervention;
iii.
To
grant the relief the applicants seek would result in a grave
injustice;
iv.
The
contention that the allegations against the applicants are fabricated
is false, in that on 26 October 2017, and during
the early
hours of 27 October 2017, the applicants orchestrated an
unprotected wildcat strike which included a campaign
of violence,
mayhem and lawlessness at the maximum security prison which the
respondents operate. The prison facilities are designated
as an
essential service.
v.
The
applicants’ conduct complained of included holding the prison
and management hostage in order to unlawfully extract an
agreement in
respect of the on-going dispute about improved terms of employment;
causing dangerous convicted criminals including
serial rapists and
killers to set fire to parts of the facilities, and to escape from
prison into the town of Louis Trichardt;
vi.
The
applicant’s conduct put management, their fellow employees and
the general public at risk. The applicants could not ask
for the
courts’ assistance in circumstances where they had started the
incident, and watched as it unfolded. The disciplinary
enquiries were
already scheduled to commence on 13 November 2017;
vii.
The
employees’ continued presence in the prison posed a serious
risk to the respondents’ continued operations and to
the safety
of the staff and the public.
viii.
To
permit the applicants to return to work was untenable, as it will
come at enormous risks; would undermine the stability of the
operations of the prisons, undermine disciplinary proceedings, and
would result in them resuming their campaign of mayhem and
lawlessness at the prison.
ix.
The
fact that the employees may be trade union officials did not detract
from the fact they remain employees, and like all other
employees,
they are not immune from being suspended or subjected to disciplinary
action
x.
The
employees/union officials in any event are not legitimate recognised
office-holders of the Union, as they were elected as an
interim
committee in 2013
Evaluation:
[38]
It
needs to be said at the outset that the applicants in this case face
insurmountable hurdles, in that they have not established
the grounds
upon which the relief they seek, whether final or
interim
,
should be granted. Crucial however is that the starting point with
this application is whether it deserves the urgent attention
of this
Court.
[39]
In
explaining the provisions of Rule 8 of the Rules for the Conduct of
Proceedings in the Labour Court
[1]
,
the Labour Appeal Court in
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
[2]
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”.
[40]
Applicants
seeking urgent relief must adequately and in detail, set out in the
founding affidavit, the reasons for the urgency,
the circumstances
which render the matter urgent, and the reasons why substantial
redress cannot be obtained at a hearing in due
cause. In determining
urgency, a court will be guided by considerations of whether the
reasons that make the matter urgent have
been set out succinctly in
the papers and secondly, whether the applicant seeking a relief will
not obtain a substantial relief
at a later stage.
[41]
Thus,
the basis for allowing parties to dispense with the Rules of Court
relating to time periods is to prevent the occasioning
of an
injustice and involves the balancing of this consideration with that
of the rights of parties to a considered opportunity
to place their
cases before the court
[3]
. It
therefore follows that where the court is not satisfied that
sufficient reasons have been advanced for the matter to be treated
as
one of urgency, the application ought to be struck off from the roll
on that ground alone
[4]
.
[42]
The
applicants’ contention was that the matter was urgent as they
would not obtain substantial relief in the normal course,
as the
Union leaders and members of the union would have been denied their
right to freely associate and to engage in trade union
activities,
thus causing them irreparable harm.
[43]
The
starting point in determining whether this matter should be accorded
any urgent attention is that the applicants were suspended
with
effect from 30 October 2017. Notices to attend the
disciplinary hearings were issued on 7 November 2017,
with
such hearings scheduled to commence on 13 November 2017.
Only on 7 November 2017 did the applicants approach
this
court on an urgent basis, setting the matter down for
14 November 2017, a day after the disciplinary enquiries
had commenced.
[44]
Amongst
the factors to be considered by the court in determining whether an
application should be treated as urgent is whether the
applicants
acted with the necessary haste in approaching it. Thus, urgency must
not be self-created in the sense that the applicant
failed to bring
the application at the earliest available opportunity, and then
sought the urgent intervention of the Court
[5]
.
The applicants in this case failed to demonstrate that indeed they
had acted with the necessary haste in approaching the court
upon
being informed of their suspensions. Other than the correspondence
between the attorneys between 31 October 2017
and
7 November 2017, and an empty threat made on
2 November 2017 by the applicants’ attorneys to bring
this application, there is nothing of substance that indicates that
the applicants acted with the necessary haste until 7 November 2017.
Even then, there is no explanation in the founding papers as to the
reason the applicants took their time in approaching the court.
I
appreciate that the delay about 8 days since between the suspensions
being effected and the launching of this application is
not
egregious. However, if so, there is still a need for the applicants
to proffer a reasonable explanation as to the reason they
had
twiddled their thumbs during that period, and a further explanation
as to they chose to set the matter down a day after the
commencement
of the disciplinary proceedings. In the absence of such an
explanation, the only invariable conclusion to be reached
is that the
urgency claimed in this case is clearly self-engineered.
[45]
Given
the events that took place, which the respondents clearly blame on
the conduct of the applicants, it was indeed expected of
the
respondents to refuse to yield to the applicants’ demands that
the suspension be lifted. It was apparent as at 2 November 2017
that the respondents dared the applicants to approach the court on an
urgent basis at the time, and the latter had backed off until
The
objections surrounding the appointment of the chairperson of the
enquiry and the venue of the enquiry were matters to be dealt
with at
the enquiry itself, and it was apparent that the respondents were not
going to indulge the applicants any further in that
regard.
[46]
A
further crucial consideration is that the disciplinary hearings
scheduled for 13 November 2017 had commenced on that
date
as scheduled. As at the time this application was heard, the
proverbial horse had bolted, and clearly there is no urgency
in
granting the relief sought. There cannot be any grounds to believe
that the applicants will be prejudiced as they had alleged
if the
suspensions are not uplifted in that first, they are suspended with
full pay, and second, they will be afforded the right
to legal
representation in the disciplinary proceedings as scheduled and be
afforded an opportunity to state their cases, and be
vindicated if
they are not in the wrong. Thus, any unfairness complained of in
respect of the suspensions will be sufficiently
dealt with in those
hearings.
[47]
The
applicants’ further complaint that they will not be able to
consult with members of the Union for the purposes of the
disciplinary enquiries because of the conditions attached to their
suspension is equally without merit and cannot be a basis for
urgent
relief. These conditions as I understood from the submissions made on
behalf of the respondents, are not cast in stone.
There is a reason
behind the barring of the applicants from the respondents’
premises as the facts summarised elsewhere in
this judgment indicate.
To allow them back into the premises without restrictions when they
are facing serious allegations of misconduct
would definitely not be
in the interests of the respondents or its operations. Thus, all the
applicants need to do, especially
since they have been allowed legal
representation, is to make the necessary arrangements with the
respondents to relax the conditions
of suspension for a specific
purpose,
i.e
.,
to allow them access to the union members who need assistance, or who
need to be contacted as witnesses in the disciplinary proceedings.
In
a nutshell, the applicants will be allowed reasonable access to the
respondents’ premises and its members, as and when
the need
arises, especially in relation to the matters surrounding
disciplinary enquiries. There is therefore no basis for the
court to
intervene.
[48]
The
applicants’ contention that the conditions of their suspensions
are unreasonable on the basis that they have now been
barred from
exercising their rights as a Union can also not be a basis for
treating the matter as urgent. This is so in that the
Executive
Committee members of the Union on suspension are not immune from any
disciplinary process that the respondents seek to
initiate against
them, as they also remain employees of the respondents. A position in
the Union in whatever capacity cannot be
a free-pass especially in
circumstances where it is common cause that the allegations against
the applicants are extremely serious.
Thus the Union’s and its
leadership’s rights to exercise organisational rights cannot
trump over the respondents’
rights to initiate disciplinary
proceedings. Until such time that the Union officials are exonerated
from any wrong doing, they
cannot be allowed to exercise any
organisational rights.
[49]
It
is trite that an application cannot be treated as urgent in
circumstances where the applicants have access to an alternative
remedy
[6]
. The applicants’
contention that the wheels of labour dispute resolution at the
Commission for Conciliation Mediation and
Arbitration (CCMA) are slow
is indeed contrived and self-serving. In effect, what the applicants
are saying is that because of
their positions as Union leaders and
the circumstances surrounding their suspensions, they are entitled to
jump the proverbial
litigation queue and be accorded priority in this
Court. This contention is clearly misplaced as illustrated in
North
West Provincial Government v Gradwell
[7]
,
in the following terms;
“
Disputes
concerning alleged unfair labour practices must be referred to the
CCMA or a bargaining council for conciliation and arbitration
in
accordance with the mandatory provisions of s 191(1) of the LRA. The
respondent in this case instead sought a declaratory order
from the
Labour Court in terms of s 158(1)(a)(iv) of the LRA to the effect
that the suspension was unfair, unlawful and unconstitutional.
A
declaratory order will normally be regarded as inappropriate where
the applicant has access to alternative remedies, such as
those
available under the unfair labour practice jurisdiction. A final
declaration of unlawfulness on the grounds of unfairness
will rarely
be easy or prudent in motion proceedings. The determination of the
unfairness of a suspension will usually be better
accomplished in
arbitration proceedings, except perhaps in extraordinary or
compellingly urgent circumstances. When the suspension
carries with
it a reasonable apprehension of irreparable harm, then, more often
than not, the appropriate remedy for an applicant
will be to seek an
order granting urgent interim relief pending the outcome of the
unfair labour practice proceedings.”
[50]
In
this case, the applicant sought final relief, and in the event that
this was not granted, interim relief, pending the finalisation
of the
disciplinary proceedings. Final relief in this case cannot be granted
in view of the merits and the facts surrounding the
suspensions.
Thus, the applicants must answer to the serious allegations made
against them, and motion proceedings cannot be an
avenue for that
particular purpose.
Interim
relief on the other hand is equally inappropriate in this case in
view of the conclusions reached that the presence of the applicants
at the prison premises can only be counterproductive to the
respondents’ operations in view of the events of 26 and 27
October
2017, and the applicants’ role in those events.
[51]
The
applicants have not referred an unfair labour practice dispute to the
CCMA as at the hearing of this application to challenge
their
suspensions. The
interim
order they seek is for the lifting of the suspensions pending
finalisation of the disciplinary proceedings. As already indicated,
those proceedings have commenced, and thus no purpose would be served
by granting
interim
relief, especially for the purposes contended for by the applicants.
It follows from the above that there are no extraordinary
or
compelling circumstances demonstrated by the applicants as to why the
suspensions should be lifted in the
interim
[8]
.
Furthermore,
this application is not urgent, and thus ought to be struck off the
roll without the need to consider its merits.
Costs:
[52]
The
respondents sought an order of costs in the event that the applicants
were unsuccessful. This court would ordinarily consider
the
requirements of law and fairness in awarding costs. In this case, and
in the light of the events of 26 and 27 October 2017,
and
the subsequent suspensions, I am satisfied that this application was
clearly ill-conceived. There was no need to pursue it
immediately
after the notices of the disciplinary hearings were issued,
particularly in the light of the nature of the interim
order sought.
The fact that the parties have a recognition agreement and some form
of relationship is not a license to subject
the respondents to legal
costs that could have been avoided. Accordingly, the applicants, and
in particular, the Union should be
burdened with the costs of this
application.
Order:
[53]
In
the premises, the following order is made;
1.
The
Applicants’ application is struck off the roll on account of
lack of urgency.
2.
The
First Applicant is ordered to pay the costs of this application.
__________________
E. Tlhotlhalemaje
Judge
of the Labour Court of South Africa.
APPEARANCES:
On
behalf of the Applicants:
Adv. M
Sekhethela with Adv. IM Khosa
Instructed
by:
S. O. Ravele Attorneys
On
behalf of the 1- 2
nd
Respondents:
Adv. N A Cassim SC
Instructed
by:
Norton Rose Fulbright South Africa INC
[1]
Which reads;
(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”.
[2]
2010) 31 ILJ
112
at para 18
[3]
See
National
Police Services Union v National Commissioner of the National Police
Services and Others (1999) 20 ILJ 2408 (LC)
;
Commissioner
For the South African Revenue Services v Hawker Air Services (Pty)
Ltd and Another Case no: 379/2005
at para 9 and
Vermaak
v Taung Local Municipality (JR315/13) [2013] ZALCJHB 43 (12 March
2013)
[4]
See
Commissioner
For the South African Revenue Services v Hawker Air Services (Pty)
Ltd and Another
(supra) where it was held that:
“
Urgency
is a reason that may justify deviation from the times and forms the
rules prescribe. It relates to form, not substance,
and is not a
prerequisite to a claim for substantive relief. Where an application
is brought on the basis of urgency, the rules
of court permit a
court (or a judge in chambers) to dispense with the forms and
service usually required, and to dispose of it
‘as to it seems
meet’ (Rule 6(12) (a)). This in effect permits an urgent
applicant, subject to the court’s
control, to forge its own
rules (See Republikeinses Publikasies (Edms) Bpk v Afrikaanse Pers
Publikasies (Edms) Bpk 1972(1) SA
773 (A) 782A-783H) which must ‘as
far as practicable be in accordance with’ the rules). Where
the application lacks
the requisite element or degree of urgency,
the court can for that reason decline to exercise its powers under
Rule 6(12) (a).
The matter is then not properly on the court’s
roll, and it declines to hear it. The appropriate order is generally
to
strike the application from the roll. This enables the applicant
to set the matter down again, on proper notice and compliance”.
[5]
See Golding v HCI
Managerial Services (Pty) Ltd & others [
2015]
1 BLLR 91
(LC)
at
para 24, where it was held that;
‘
As
Prest points out, a matter which is inherently urgent may be
rendered not urgent and fall outside the provisions of the [High
Court] rules where an applicant delays in bringing the application
as one of urgency. A delay of nine days may not appear to
be
lengthy, given the deploringly slow pace at which the wheels of
justice often turn; but in circumstances where the applicant
knew
when the disciplinary hearing was due to commence and yet gave the
respondents less than one day before this application
was to be
heard to file answering papers, having taken nine days to draft his
own lengthy founding papers, I agree with Mr
Pretorius
that
the urgency is self-created.’
[6]
See
AMCU
v Northam Platinum Ltd (2016) 37 ILJ 2840 (LC)
at paras [21] – [22], where it was held that;
“
What
would an applicant who seeks to make out a case of urgency then have
to show? In
Mojaki
v Ngaka Modiri Molema District Municipality and Others
,
the Court referred with approval to the following dictum from the
judgment in
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd
and
Others:
“…
.
An applicant has to set forth explicitly the circumstances which he
avers render the matter urgent. More importantly, the applicant
must
state the reasons why he claims that he cannot be afforded
substantial redress at a hearing in due course. The question
of
whether a matter is sufficiently urgent to be enrolled and heard as
an urgent application is underpinned by the issue of absence
of
substantial redress in an application in due course. The rules allow
the court to come to the assistance of a litigant because
if the
latter were to wait for the normal course laid down by the rules it
will not obtain substantial redress.””
[7]
[2012] 8 BLLR
747
(LAC)
at para 46
[8]
See
Booysen
v Minister of Safety & Security (2011) 32 ILJ 112 (LAC)
para [54].