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[2018] ZALCJHB 441
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Sinto v Mintek SOC LTD (J3320/18) [2018] ZALCJHB 441 (14 September 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: J 3320/18
In
the matter between:
MASIXOLE
T SINTO
Applicant
and
MINTEK
SOC
LTD
Respondent
Heard:
14 September
2018
Judgment:
14 September 2018
Edited:
8 February 2019
___________________________________________________________________
EX-TEMPORE
JUDGMENT
___________________________________________________________________
MAHOSI.
J
[1]
This is an urgent application in terms of
which the applicant seeks an order in the following terms:
‘
1.
Dispensing with the forms and service provided for
in the rules of this court and disposing this matter in such a manner
and in
accordance with the procedure as seems made in terms of rule 8
and permitting that this matter to be dealt with as an urgent
application.
2.
The respondent is ordered to make the applicant’s benefit to
attend a study
tour in Germany scheduled for the 16
th
to the 22
nd
of September 2018.
3.
The respondent’s decision to withdraw the applicant’s
benefit to
attend the study in Germany scheduled for the 16
th
of September 2018 is set aside.
4.
And the respondents are ordered to pay cost in this application
jointly and severally;
one paying the other to be absolved, granting
the applicant further and/or alternative relief.’
[2]
The relevant facts in this matter may be
summarised as follows:
2.1
The applicant is employed by the first respondent as a Manager:
Graduate Development and
Support.
2.2
On 11 of September 2018, the applicant was suspended with full
remuneration and benefits;
save for the benefits to travel on study
tour scheduled for 16 to 22 September 2018.
[3]
Dissatisfied with the respondent’s
decision, the applicant launched this application. What the applicant
seeks is a final
order directing the first respondent to reinstate
his benefit to attend the study tour in Germany scheduled for 16 to
22 September
2018 and that the first respondent’s decision to
withdraw the said benefit be set aside.
Urgency
[4]
I first deal with the issue of urgency.
Rule 8(2) of the Rules of this Court which governs urgent
applications provides as follows:
‘
(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.’
[5]
The
first and second respondents opposed this application for its lack of
urgency and merit. In
Jiba
v Minister of Justice and Constitutional Development and Others
[1]
,
this Court considered rule 8 and stated as follows:
‘
Rule
8 of the rules of this court require a party seeking urgent relief to
set out the reasons for urgency and why urgent relief
is necessary.
It is trite law that there are degrees of 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 a
deviation from the rules.’
[6]
In this matter the applicant submitted that
he was suspended on 11 September 2018 on which date he became aware
of the decision
to withdraw the benefit in question. He consulted his
attorneys on 12 of September 2018 and filed the papers on 13
September 2018.
[7]
As stated above, rule 8 of the rules of
this Court requires the applicant to set out an explanation why the
relief is sought on
an urgent basis and why the timeframes set out in
the rules should be abridged. The applicant is required to show why
the rules
of this Court relating to forms and service should be
dispensed with.
[8]
In this regard, I agree with the
respondent’s submission that the applicant has not made out a
case to justify an expedited
hearing and has not set out the reasons
why he claims that he cannot be afforded substantial redress at a
hearing in due course.
The applicant has, in my view, failed to make
out a case for urgency in this case.
Relief
[9]
Even if I were to accept that this
application is urgent, for this Court to grant the final interdict,
the applicant must establish
three requisites, all of which must be
present. These are: a clear right, injury actually committed or
reasonably apprehended and
the absence of an alternative legal
remedy.
[10]
In order to establish a clear right, the
applicant has to prove, on balance of probabilities, the right that
he seeks to protect.
As aforesaid, the applicant seeks an order to
have his benefit to participate in a study tour reinstated and to
have the first
respondent’s decision to withdraw such a benefit
set aside.
[11]
The applicant seeks the orders as stated
above on the basis that he has a clear right to attend the course.
His clear right to attend
the course seems to have been derived from
the fact that there was an approval for him to attend the course and
that he already
completed the course relating to same. He further
submitted that he meets all the requirements to attend the course and
that this
course is part of improving his skills in order to be
effective in executing his duties efficiently for the benefit of the
first
respondent.
[12]
In opposing this matter, the respondents
submitted that the applicant’s benefit only relates to his
enrolment onto the Master’s
programme. Further that the study
tour to Germany is not a compulsory part of the Master’s
programme. The first respondent
further submitted that the tour is
not a requirement for graduation and that it would not in any way
impact the applicant’s
date of completion of the Master’s
programme.
[13]
In this regard, the first respondent
submitted a confirmatory affidavit from Dr Timothy Harten, who is the
director of Short Course
and Consulting at Witwatersrand University,
who confirmed that no marks will be awarded or deducted for attending
or not attending
a tour. The first respondent further submitted that
it is greatly risky to allow the applicant, who has already
threatened his
managers with physical violence, to accompany the very
same managers to a foreign destination. In this regard, the applicant
chose
not to put his version in a replying affidavit.
[14]
The applicant does not dispute that the study tour is not compulsory,
that
no marks
will be allocated for attendance and further that non-attendance
would not have an impact on his date of
completion of the Master’s
programme. He further does not dispute that it would not be
risky for him to be
allowed to undertake the tour with his
managers whom he had already
threatened.
[15]
Therefore, his submission that should this Court not order the first
respondent to reinstate his benefit to attend the tour, he would
loose an opportunity to complete his studies timeously
and that he would not qualify
for senior management position
is actually baseless. The fact that he
was already approved to participate in the study tour
and that he has already
completed courses relating to same does not in itself give him a
clear right
to go on a study
tour. His benefit only relates to his enrolment onto the Master’s
programme, which will not be affected
by non-participation of the
study tour. It follows that the
applicant has failed to show that
he has a clear right to attend the
tour or at least to establish injury actually committed or reasonably
apprehended. He has further
failed to show that
he will suffer irreparable harm should he not attend the said tour.
Alternative
remedy
[16]
It is apparent that the applicant has an alternative remedy. His
claim relates to provision of a benefit
and defined in section
186(2)(a) of the LRA as an unfair labour practice. In
MEC
for Education, North West Provincial Government v Gladwell,
[2]
where
the Court per Murphy, AJA had the following to say:
‘
[46]
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 section 191(1) of the
LRA. The respondent in this
case instead sought a declaratory order
from the Labour Court in terms of section 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.
(Footnote omitted)’
[17]
In the current matter, the applicant submitted that he had no option
but to approach this Court
as the respondents refused to reverse
their decision after he had
instructed his attorneys
to address a correspondence to them. There
is no reason why the applicant cannot approach the
CCMA in terms
of section 191 of the LRA where the matter would
be resolved through conciliation or
ventilated in an arbitration.
[18]
In relation to his application to set the first respondent’s
decision to
withdraw
his benefit, the applicant has failed to state the ground on which
this
Court should
review and set aside that decision.
[19]
In the premise, I make the following order:
Order
1.
The applicant’s application is
dismissed with costs.
__________________
D. Mahosi
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant:
Advocate L Kalashe
Instructed
by:
Poyo Attorneys
For
the Respondent:
Advocate H Mutenga
[1]
(2010)
31 ILJ 112 (LC); [2009] 10 BLLR 989 (LC) at para 18.
[2]
(2012)
33
ILJ
2033 (LAC) at para 46.