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[2017] ZALCPE 28
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Tukela v Minister of Public Works and Others (P578/17) [2017] ZALCPE 28 (19 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT PORT ELIZABETH
NOT
REPORTABLE
Case
Number P578/17
In
the matter between:
NOMZINGISI
TUKELA
APPLICANT
and
MINISTER
OF PUBLIC
WORKS
First Respondent
DIRECTOR
GENERAL: NATIONAL
DEPARTMENT
OF PUBLIC WORKS
Second Respondent
Heard:
19 December 2017
Delivered:
19 December 2017
JUDGMENT
POTGIETER,
AJ
[
1]
This is an urgent application for an order –
(i)
condoning the applicant’s
non-compliance with the time frames set by the rules directing that
the application is urgent;
(ii)
declaring that the First Respondent’s
decision to permanently transfer the Applicant from her place of work
in Mthatha to
the Second Respondent’s offices in Pretoria to be
unlawfull, void, unfair and of no force or effect.
(iii)
declaring the First Respondent’s
instruction pursuant to the purported decision to transfer the
Applicant permanently to Pretoria
unlawful, void, unfair and of no
force and effect;
(iv)
interdicting and restraining the
Respondents from taking any action, disciplinary or otherwise,
arising from her refusal to accept
transfer to Pretoria which will
prejudice the Applicant in her employment for so long as she tenders
service as Chief Director:
Regional Head of the Mthatha Regional
Office in terms of her contract of employment
(v)
interdicting and restraining the
Respondents from appointing anyone else to the position of Chief
Director: Regional Head for the
Mthatha Office unless and until the
applicant is lawfully removed from the post.
(vi)
Directing that the order sought in prayers
i, ii. iii, iv and v to be final in effect.
[2]
Alternatively hereto, the Applicant also sought an order that the
prayers ii to v operate as an interim order pending a return
date for
the Respondents to show cause why the orders should not be made final
[3]
The respondents opposed the applicant’s application on the
basis that the applicant did not show urgency; This Court does
not
have the required jurisdiction and the application for the relief
sought had no merit.
BACKGROUND
TO THIS DISPUTE
[4]
I do not intend referring to the background to this dispute in much
detail in light of my conclusion that the matter is not
urgent and
that it should accordingly be struck of the roll. Suffice to briefly
point out that the applicant’s special leave
she was placed on
was uplifted on 18 February 2016 subsequent to her horizontal
transfer (placement) from Mthatha to Head Office
with a choice of two
positions on 6 January 2016. The applicant failed to make a selection
[5]
Further correspondence ensued relating to the applicant’s
conduct and the decision to transfer the applicant and the procedure
followed with final confirmation of the transfer to the applicant’s
attorney on 15 August 2017.
[6]
The notice of a disciplinary hearing is dated 18 August 2017.
URGENCY
[7]
From the afore going it is clear that the administrative action the
applicant is complaining about was confirmed to the applicant’s
representative, (Mr. Vlok) on 15 August 2017 and notice of the
disciplinary enquiry was given in August 2017. What is,
however,
also clear is that the present urgent application was only
filed with this Court on 12 December 2017 which is approximately four
months after the administrative decision was confirmed and
disciplinary steps instituted.
[8]
It is trite that an applicant who approaches this Court on an urgent
basis must make out a case for urgent relief on the papers
in
sufficient particularity. This much is clear from Rule 8 of the Rules
of the Labour Court which expressly states that a party
that applies
for urgent relief must file an application that complies with the
requirements of Rule 7(1); 7(2); 7(3) and if applicable
7(7) of the
Rules. Rule 7(2) expressly requires that the affidavit in
support of the application
must
contain the following:
(a) the reasons for urgency and why
urgent relief is necessary; and
(b) the reasons why the requirements
of the rules were not complied with, if that is the case.
[9]
It is also trite that administrative action stands until reviewed and
set aside.
[10]
Urgency in itself does not relieve a party from this obligation and
an Applicant should, in as much detail as possible, place
such facts
that are necessary before the Court and which will enable this Court
to decide whether the forms and service provided
for in the rules
should be dispensed with.
[1]
Only once an applicant has persuaded the Court that sufficient
grounds exist which necessitate a relaxation of the Rules and
ordinary
practice, will the Court proceed to consider the matter as
one of urgency. The extent to which the Court will allow parties to
dispense with the Rules relating to time periods will depend on the
degree of urgency in the matter.
[2]
[11]
The applicant states that the matter is self-evidently urgent. This
contention is not supported by the facts. It is clear from
the
correspondence relied on by the applicant that there could not be any
doubt that the Respondents had made up their minds that
the applicant
will be transferred in the letter dated 15 August 2017. This
administrative action was not taken on review then or
now.
[12]
The threats complained of existed for approximately four months
before the applicant decided to bring this application
[13]
It is also not sufficient to rely on an argument based upon
implications and deductions which may be made from allegations
contained in the affidavit that the matter is urgent.
[3]
In fact, the founding affidavit does not properly address the
question of urgency at all: Apart from prayer 1 of the Notice of
Motion in terms of which condonation is sought for the Applicant’s
non-compliance with the relevant provisions of the Rules
of this
Court, no case has been made out on the papers as to why there should
be a departure from the normal rules. It does not
suffice to say the
matter is self-evidently urgent. More in particular the
Applicant does not even attempt to explain why
this application was
not brought to this Court shortly after the events in August 2017.
She in fact says on 18 August 2017 that
she will seek legal advice to
challenge the transfer in court. It is clear to my mind that she at
that stage contemplated if not
decided to take legal action to
challenge her transfer (and disciplinary action)
[14]
It is trite that an Applicant cannot create his or her own urgency by
delaying bringing an application.
[4]
This Court will not come to the assistance of an applicant who has
delayed approaching the Court.
[5]
See
National
Police Services Union & Others v National Negotiating Forum &
Others
(1999) 20
ILJ
1081 (LC) at 1092 paragraph [39] where Van Niekerk, AJ (as he then
was) stated the following:
“
The
latitude extended to parties to dispense with the rules of this court
in circumstances of urgency is an integral part of a balance
that the
rules attempt to strike between time-limits that afford parties a
considered opportunity to place their respective cases
before the
court and a recognition that in some instances, the application of
the prescribed time-limits or any time-limits at
all, might occasion
injustice. For that reason, rule 8 permits a departure from the
provisions of rule 7, which would otherwise
govern an application
such as this. But this exception to the norm should 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 to seek relief in this
court. For these reasons, I find
that the union has failed to satisfy
the requirements relating to urgency.”
[15]
I am in light of the afore going of the view that the Applicant has
created her own urgency by the substantial delay. I am
of the view
that the application falls to be struck of the role.
COSTS
[16]
In respect of costs it was argued by the Respondent that costs should
be awarded including the costs of senior counsel. The
applicant
argued that costs should follow the result
[17]
In the event the following order is made:
Order:
1.
The application is struck off the role with
costs (including the costs of senior counsel).
-----------------------------------
POTGIETER,
A J
Appearances
For
the Applicant: Advocate Grogan
Instructed
by Nosindwa Attoneys Inc.
For
the Respondent: Advocate Sassim SC
Instructed
by the State Attorney
[1]
See
Moyo & Others v
Administrator of the Transvaal & Another
(1988) 9
ILJ
372 (W) at 387I: “An applicant who seeks relief by way of
notice of motion should put all the facts, in as much detail
as
possible, before the Court. The mere fact that an application is
urgent and urgent relief is sought does not relieve an application
of this duty.”
[2]
See
the well-known and often quoted decision in
Luna
Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's
Furniture Manufacturers)
1977 (4) SA 135
(W) where the Court set out the principles as
follows: “Undoubtedly the most abused Rule in this Division is
Rule 6 (12)
which reads as follows:
"12
(a) In urgent applications
the court or
a judge may dispense with the forms and service
provided for in these rules and may dispose of such matter at such
time
and place and in such manner and in accordance with such
procedure (which shall as far as practicable be in terms of these
rules)
as to it seems meet.
(b)
In every affidavit or petition filed in support of the application
under para. (a)
of this sub-rule, the applicant shall set forth
explicitly the circumstances which he avers render the matter urgent
and the
reasons why he claims that he could not be afforded
substantial redress at a hearing in due course".
Far
too many attorneys and advocates treat the phrase "which shall
as far as practicable be in terms of these rules",
in sub-rule
(a) simply pro non scripto. That this phrase deserves emphasis is
apparent also from the judgment of RUMPFF, J.A.
(as he then
was), in Republikeinse Publikasies (Edms.) Bpk. v Afrikaanse Pers
Publikasies (Edms.) Bpk.,
1972 (1) SA 773
(AD) at p. 782B. Once an
application is believed to contain some element of urgency, they
seem to ignore (1) the general scheme
for presentation of
applications as provided for in Rule 6; (2) the fact that the Motion
Court sits on Tuesdays through
F to Fridays; (3) that, for
matters to be on this roll on any particular Tuesday, the papers
must be filed with the Registrar
by 12.00 noon on the preceding
Thursday; (4) that the time of day at which the Court commences its
daily sittings is 10.00 a.m.
and that, when it has adjourned for the
day, the next sitting commences on the next day at 10.00 a.m.
These
practitioners then feel at large to select any day of the week
and any time of the day (or night) to demand a hearing.
This is
quite intolerable and is calculated to reduce the good order which
is necessary for the dignified functioning of the
Courts to
shambles. Frequently one reminds counsel of certain basic matters,
which I shall detail presently, only to be met with
the answer that
they and their attorneys are simply following practices which
have arisen in the course of time. I am not
convinced that this is
so. I do not think that the majority of the members of the Bar or
Side Bar follow such practices as I
shall presently show with
reference to the motion roll presently before Court.
For
the sake of clarity I am going to set forth the important aspects of
"urgency". In doing so I shall not deal with
those ex
parte applications which fall under Rule 6 (4). Urgency involves
mainly the abridgement of times prescribed by the Rules
and,
secondarily, the departure from established filing and sitting times
of the Court. The following factors must be borne in
mind. They are
stated thus, in ascending order of urgency:
1.
The question is whether there must be a departure at all from the
times prescribed
in Rule 6 (5) (b). Usually this involves a
departure from the time of seven days which must elapse from the
date of service of
the papers until the stated day for hearing. Once
that is so, this requirement may be ignored and the application may
be set
down for hearing on the first available motion day but regard
must still be had to the necessity of filing the papers with the
Registrar by the preceding Thursday so that it can come onto the
following week's motion roll which will be prepared by
the
Motion Court Judge on duty for that week.
2.
Only if the matter is so urgent that the applicant cannot wait for
the next
motion day, from the point of view of his obligation to
file the papers by the preceding Thursday, can he consider placing
it
on the roll for the next Tuesday, without having filed his
papers by the previous Thursday.
3.
Only if the urgency be such that the applicant dare not wait even
for the next
Tuesday, may he set the matter down for hearing in the
next Court day at the normal time of 10.00 a.m. or for the same day
if
the Court has not yet adjourned.
4.
Once the Court has dealt with the causes for that day and has
adjourned, only
if the applicant cannot possibly wait for the
hearing until the next Court day at the normal time that the Court
sits, may he
set the matter down forthwith for hearing at any
reasonably convenient time, in consultation with the Registrar, even
if that
be at night or during a weekend.
Practitioners
should carefully analyse the facts of each case to determine, for
the purposes of setting the case down for hearing,
whether a greater
or lesser degree of relaxation of the Rules and of the ordinary
practice of the Court is required. The degree
of relaxation should
not be greater than the exigency of the case demands. It must be
commensurate therewith. Mere lip service
to the requirements of Rule
6 (12) (b) will not do and an applicant must make out a case in the
founding affidavit to justify
the particular extent of the departure
from the norm, which is involved in the time and day for which the
matter be set down.”
[3]
See
Eniram (Pty) Ltd v New
Woodholme Hotel (Pty) Ltd
1967 (2) SA 491
(E) at 493A – G: “Sub-rule (12) provides
that the Court may dispense with the ordinary notice generally
required
for applications by way of notice of motion in urgent
applications. The Rule requires the applicant seeking such
indulgence to
set forth explicitly the circumstances which he avers
render the matter urgent and also to forth explicitly the reasons
why he
claims that he could not be afforded substantial redress at a
hearing in due course. The practice in this Division, and in my
experience also in other Divisions, has been for a petitioner
seeking to rely on the provisions of this Rule to include a
reference
in his affidavit to the urgency of the matter and to ask
the Court explicitly to dispense with the requirement demanded of an
ordinary notice of motion.
It
has not been the practice to rely simply on arguments based on
implications and deductions which may be made from allegations
contained in the affidavits, and to my mind the Rule contemplates a
request to the Court to treat the matter as one of urgency
and to
condone the non-compliance with the normal procedure on notice
prescribed earlier in the Rule.
True, a mere request for the matter to be treated as one of urgency
is not in itself sufficient, but facts must also be laid
before the
Court to support the allegation that the matter is one of urgency…….
I am not persuaded on the papers
presently before the Court that I
should accede to this argument, more particularly when Mr Smalberger
has pertinently taken
the point of non-compliance with the Rule. I
regard it as desirable that an applicant seeking to dispense with
the ordinary procedure
should set out in his affidavit that he
regards the matter as one of urgency, and should refer explicitly to
the circumstances
on which he bases this allegation and the reasons
why he claims that he could not be afforded substantial relief at
the hearing
in due course.” (my emphasis.)
[4]
See
Schweizer Reneke Vleis
Mkpy (Edms) Pbk v Die Minister van Landbou en Andere
1971 (1) PH F11 (T) at F11 - 12: “Volgens die gegewens voor
die Hof wil dit vir my voorkom dat die applicant alreeds vir
meer as
‘n maand weet van die toedrag van sake waarteen daar nou
beswaar gemaak word. Die aangeleentheid het slegs dringend
geword
omdat die applikant getalm het en omdat die tweede respondent, soos
die applikant lankal geweet het of moes geweet het….
Al
hierdie omstandighede in ag genome is ek nie tevrede dat die
applikant voldoende gronde aangevoer het waarom die Hof op hierdie
stadium as ‘n saak van dringendheid moet ingryp nie. Ek is
dus, in die omstandighede, nie bereid om af te sien van die
gewone
voorskrifte van reël 6.”
[5]
See in this
regard
Director
of Public Prosecutions (Western Cape) v Midi Television (Pty) Ltd
t/a E TV
2006 (3) SA 92
(C) at paragraph 47.