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[2018] ZALCJHB 372
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Mongwaketse v Head of Department: Department of Education and Sport Development, North West Province and Another (J3271/18) [2018] ZALCJHB 372 (13 November 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J 3271/18
In the matter between:
W.S
MONGWAKETSE
Applicant
and
HEAD OF DEPARTMENT: DEPARTMENT OF
EDUCATION AND SPORT
DEVELOPMENT,
NORTH WEST PROVINCE
First Respondent
M.V DITHEJANE
N.
O
Second Respondent
Heard: 30 October 2018
Delivered: 13 November 2018
JUDGMENT
TLHOTLHALEMAJE, J
Introduction and
background:
[1] The applicant,
an educator in the employ of the Department of Education
and Sport Development (North West Province)
(The Department),
approached this Court on an urgent basis seeking certain interdictory
and declaratory relief in two parts in
the following terms;
In Part “A”
of the Notice of Motion, he seeks an order:
“…
2.
That, pending the final decision of Court in respect of Part B of the
application, the First and Second Respondents:
2.1.
Be and are interdicted and prohibited from implementing,
alternatively
enforcing the decision to transfer the Applicant
from Setumo Primary School in Stella, North West to Seichokelo
Primary School,
in Ganyesa, North West;
2.2.
Be and are interdicted and prohibited from transferring the Applicant
from Setumo Primary School to any other public school;
2.3.
Be and are interdicted and prohibited from appointing any other
person to post of principal of Setumo Primary School
2.4.
Be and are directed to allow the Applicant to perform all of the
duties and responsibilities attached to the post of the principal
of
Setumo Primary School.
3…
4…
5…”
[2] In part “B”,
he seeks an order:
“…
1.
Declaring the transfer of
the Applicant by the Respondents, from the Setumo Primary School to
the Seichokelo Primary School to be
unlawful,
further
or alternatively
to
constitute an unfair labour practice as contemplated in Section 23 of
the Constitution of the Republic of South Africa, 1996.
2.
Directing the Respondents
to reinstate the Applicant in the post of principal at Setumo Primary
School with immediate effect.
3.
…”
[3] The matter
initially came before Prinsloo J on 23 October 2018. The
parties had agreed to the postponement of the
hearing of Part A and
the granting of prayers 2.1 to 2.4 in Part A pending its final
determination. The first respondent is the
Head of Department
(Superintendent General) in the Department. The Second respondent is
employed as District Director by the Department.
[4] The applicant
commenced his employment with the Department in 1994 as an educator
at Ogodiseng Middle School and had progressed
to School Principal at
Seichokelo Primary School in 2007. The school is situated some 73km
from Vryburg where he resides.
[5] As a consequence
of travelling the distance daily for a period of ten years and the
associated costs, he had in January 2018,
successfully applied
for a transfer to the post of school principal of Setumo Primary
School (situated in the Stella area, North
West), which is about 45km
from Vryburg.
[6] The second
respondent in accordance with her delegated authority had approved
the transfer, and the applicant had commenced
his duties as principal
of Setumo Primary School on 24 May 2018, having been
introduced to the new school by the Department’s
Circuit
Manager and the School Governing Body (SGB) in May 2018.
[7] In mid-July 2018
the applicant was informed that the Department had advertised the
position of principal at Setumo Primary
School where he was
transferred to. Despite the applicant’s protestations and
lodging of a grievance, the post was indeed
advertised. In response
to his grievance, the second respondent advised the applicant that
the grievance was not upheld. He was
further advised that his
approved transfer as confirmed in a letter dated 9 February 2018 was
temporary.
[8] Following a
meeting held between the applicant, his attorney of record and the
second respondent held on 17 October 2018,
correspondence
was sent to the applicant informing him that his transfer had been
tentative and that it has since been rescinded.
He was also
instructed to return to Seichokelo Primary School.
[9] The respondents
initially opposed the application on the grounds that the Court
lacked jurisdiction on the basis that the issue
in dispute is one
that should have been referred to the relevant bargaining council for
conciliation. At the hearing of this matter
however, that preliminary
point was abandoned.
[10] The respondents
further argued that the application did not deserve the urgent
attention of this Court as the urgency claimed
was self-created. The
issue of whether a matter should be enrolled and heard as an urgent
application is governed by the provisions
of Rule 8 of
the
Rules of this Court
[1]
,
which require an applicant seeking urgent relief to 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
[2]
.
The import of these requirement is that the procedure set out
in Rule 8 is not there for taking.
[11] It is trite
that the question of whether a matter deserves the urgent attention
of this Court on its urgent roll is underpinned
by whether the
applicant cannot obtain substantial redress in an application in due
course. This question is distinguishable from
that of irreparable
harm that is required before interim relief can be granted. Thus,
even if it might be argued that redress may
be obtained in due
course, that redress, based on the facts, may not necessarily be
substantial enough.
[12] The
requirements for the granting of an interim interdict are well known.
These are: a right, though
prima facie
established, which is
open to some doubt; a well-grounded apprehension of irreparable harm
if the
interim
relief is not granted and the ultimate relief
is eventually granted; that the balance of convenience favours the
granting of an
interim
relief; and that the applicant has no
other satisfactory remedy
[3]
Evaluation:
Urgency:
[13] In this case,
the applicant approached the Court with this application on
19 October 2018, and had set it down for
23 October 2018.
Part of the reason that led to the matter being postponed before
Prinsloo J was that the respondents
had filed the answering affidavit
belatedly, and the applicant sought a right of reply.
[14] I did not
understand the respondent’s arguments in regards to urgency to
be related to the timing of the launching of
this application, and it
can be accepted that the applicant acted with the necessary haste in
approaching the Court. The respondents
however attack the basis of
urgency as proffered by the applicant.
[15] The applicant
had submitted that the application was urgent on the grounds that;
a) he was expected
forthwith to report to his old school, Seichokelo Primary School and
forbidden to continue with his duties
at Setumo;
b) Disciplinary
action would follow should he not comply with the transfer
instruction, which may place his employment with the
Department in
jeopardy;
c) His travelling
costs would unless interim relief was granted, once again soar, as
the difference in travelling from Vryburg to
Ganyesa as opposed to
travelling to Stella was about 58 km per month, which in turn
translated to additional expenditure of R2000.00
per month in respect
of fuel only.
d) He will be
severely prejudiced in his career prospects if the unlawful transfer
were allowed to stand, as his work performance
would suffer, which in
turn would disqualify him from receiving any further performance
bonuses or promotions in the foreseeable
future;
e) If
interim
relief were not granted on an urgent basis the Department would
attempt to unlawfully fill the post at Setumo, which would have
become vacant by virtue of his unlawful transfer to Seichokelo
Primary School, thus jeopardising his prospects of returning to
his
school at Setumo if successful in the main application.
[16] The respondents
contend that the applicant had not made out a case for urgency on the
basis that;
a) The grounds upon
which he relies upon for urgency are self-created, and he basically
pre-empts what may happen if interim relief
was not granted;
b) The applicant had
not exhausted all alternative remedies available to him prior to
approaching the Court, and further that the
Department had already
implemented the decision to transfer the applicant to Seichokelo
Primary School, as it was within its prerogative
to appoint or
promote an employee who it considered best or most suitable;
c) It would be
irregular under the circumstances for the applicant to expect the
Court to interdict or prohibit the Department from
appointing any
other person to the post of Setumo Primary School without a valid
reason;
d) The position at
Setumo Primary School remained vacant and there was no prejudice to
the applicant as he could still apply for
it;
e)
The
applicant’s transfer to Setumo was erroneously approved or
done, and the Department ought to be allowed an opportunity
to
rectify that error.
[17] The starting
point is that whether the matter is urgent needs to be viewed within
the context giving rise to the dispute. As
already indicated, the
applicant had applied and was granted the transfer. When the second
respondent approved the transfer, it
was done in writing
[4]
.
Significant with that correspondence is that the applicant was still
appointed post level 4, with the second respondent further
stating
that; “
The department would like to congratulate you on your
transfer and hope you will enjoy your new work environment.”
That appointment was further captured on the Department’s
persal
system at ‘Principal P3” salary rank.
Furthermore, the applicant had been formally introduced to the new
school by
the Acting Circuit Manager and the school’s SGB. This
was in May 2018.
[18] Upon learning
that the post had been advertised, the applicant had lodged a formal
grievance on 13 September 2018,
and a response in that
regard was only furnished on 3 October 2018, in which for
the first time he was advised that his
transfer had been temporary. A
further meeting with the second respondent to resolve the matter on
17 October 2018 could
not yield any results. Incidentally,
the second respondent’s view when the dispute first arose about
the advertisement of
the post (in June 2018) was that the transfer
was irregular, as the appointment letter issued to him had been
‘forged’,
making the appointment invalid.
[19] Even more
disconcerting in this case is the reliance by the respondents on its
Annexure ‘SMS2’ to the answering
affidavit (which is the
applicant’s formal application for a transfer),
for
the proposition that the transfer was temporary. The recommendation
by the Circuit Manager and other officials was to approve
the
transfer on humanitarian grounds. In the body of the document, it is
not indicated anywhere that the approval was conditional
or
temporary, and the applicant’s contention is that any further
reference to the appointment as being temporary, which is
not in the
body of the application, appears to have been an afterthought or
inserted long after his transfer. This, as correctly
pointed out by
the applicant’s counsel, raises serious concerns about the
legitimacy of the document relied upon by the respondents,
and does
need further investigation.
[20] In my view, the
urgency claimed in this case can hardly be construed as self-created.
The applicant had sought and was granted
a transfer, and had
commenced his duties at the new school. As matters stand, the
Department seeks to forge ahead and advertise
the post, which could
have serious implications for the relief that he is seeking. In my
view, there is cause to treat this matter
as urgent, and there is no
merit in the contention that the urgency claimed in this case was
self-created. On the contrary, the
respondents’ approval of the
transfer, the intention to advertise the position and the obvious
self-help in rescinding the
transfer, coupled with the respondents’
own concession that it had acted erroneously in effecting the
transfer, gave rise
to the urgency.
Prima facie
right:
[21] In considering
whether an applicant has established a
prima facie
right, it
has been held that the requirements in that regard are satisfied if
an applicant shows that there is evidence which,
if accepted, will
establish a cause of action, and further that the mere fact that such
evidence was contradicted will not disentitle
him to the relief, and
not even if the probabilities are against him
[5]
.
The SCA in
Simon
further proceeded to state that;
“
The
accepted test for a prima facie right in the context of an interim
interdict is to take the facts averred by the applicant,
together
with such facts set out by the respondent that are not or cannot be
disputed and to consider whether, having regard to
the inherent
probabilities, the applicant should on those facts obtain final
relief at the trial. The facts set up in contradiction
by the
respondent should then be considered and, if serious doubt is thrown
upon the case of the applicant, he cannot succeed.”
[6]
[22] The applicant’s
contention is that the purported rescission of the transfer and the
transfer back to Seichokelo is unlawful
and/or an infringement of his
right to fair labour practices as guaranteed under section 23 of the
Constitution, and further that
the Department now sought to
unilaterally and unlawfully vary the terms and conditions of his
employment with the transfer to his
old school.
[23] It was further
argued on his behalf that even if the transfer to Setumo Primary
School was as a result of an error on the part
of the Department or
the first respondent, the initial decision to transfer the applicant
could not merely be rescinded or reversed,
and that in such cases,
the Department ought to have approached the Court to rescind its
decision rather that resorting to self-help
[7]
.
[24]
The
applicant submitted that the
prima facie
right relied upon for the relief sought was grounded in his contract
of employment (having accepted the transfer and further as
it was
never communicated to him that the transfer was temporary); the
provisions of sections 2 and 14(3) of the Public Service
Act
[8]
,
the provisions of section 77 of the Basic Conditions of Employment
Act
[9]
(in claiming specific performance); and those of section 23 of the
Constitution of the Republic
[10]
.
[25] In response to
the applicant’s claim, the second respondent in her answering
affidavit conceded that the applicant had
indeed made an application
in December 2017 for a transfer to Setumo Primary School based
on his reasons that he could move
nearer to his place of residence.
It was however denied that the applicant was provided with a written
appointment or a written
appointment/transfer, and that all that was
done was to temporarily transfer him as envisaged in section 8 of the
Employment of
Educators Act
[11]
,
and provided with a letter of approval in that regard. It was denied
that there was a right to permanent transfer which could
be grounded
in the applicant’s contract of employment.
[26] However, as
already indicated, the official letter in terms of which the transfer
was approved did not indicate anywhere that
it was ‘temporary’
or ‘conditional’. Only in the application form was the
issue of the transfer being temporary
raised, and since this was a
matter to which the applicant was privy to, it cannot for the
purposes of this application, be concluded
even on a
prima facie
basis, that he was reasonably aware of. On the contrary, the
indications are that his transfer was approved by the second
respondent
and the SGB, which was furthermore effected on the
Department’s
persal
system.
[27] The question
whether the post was at a different level (PL5) is for now a separate
matter in that I did not understand the
respondents’ case to be
that the transfer meant automatic promotion on the basis that the
post was at a higher level. As
matters stand, the applicant was
laterally transferred, and had kept his post level, salary and rank.
Inasmuch as it is accepted
that promotions are matters within the
prerogative of the employer, there is no evidence to suggest that the
applicant was promoted
when assuming the post at the new school.
[28] The
respondents’ further contention was that the Department ought
to be afforded an opportunity to correct the error
in transferring
the applicant. To correct that error however, is unfortunately not as
easy as the respondents portray it to be.
If they seeks to correct
the error given the fact as already pointed out that the transfer was
effected, they cannot resort to
self-help to the detriment of the
applicant’s guaranteed right to fair labour practices. In the
premises, it follows that
until such time that the transfer is
properly rescinded, either through a court order or as a result of
the determination of Part
B of this application, the applicant’s
constitutional rights to fair labour practices remains protected.
[29] In a nutshell,
based on the facts averred by the applicant, together with the facts
set out by the respondents that are disputed,
the inherent
probabilities (without pronouncing on the rights of the parties at
this stage) favour that the applicant should on
those facts, obtain
final relief at the trial. The facts set up in contradiction by the
respondent do not cast serious doubt upon
the case of the applicant,
and to this end, I am satisfied that he had established a
prima
facie
right to the relief that he seeks.
Irreparable harm
and other considerations:
[30] In this regard,
it was submitted on behalf of the applicant that the respondents had
not shown why it was urgent that the purported
vacant post needed to
be filled, whilst he occupied that post at his old salary and without
an acting allowance. On the other hand,
it was argued that the risks
for the applicant were real in that there was no guarantee that the
post would not be filled pending
the contractual dispute between the
parties. To this end, it was submitted that the respondents had not
or would not suffer any
harm if the status quo was maintained.
[31] The applicant
approached the court in order to interdict the Department from
inter
alia
, implementing the decision to rescind his transfer and
compelling him to return to his old school pending the final
determination
of Part B. It is apparent that if the relief he seeks
is not granted, he faces disciplinary measures if he does not go back
to
his old school, and at the same time, the post he was transferred
to would be advertised and filled. It does not assist the respondents
to simply aver that the applicant is at liberty to apply for the
post. This is so in that as matters stand, he rightfully occupies
that post until it is officially deemed vacant once the initial
transfer is properly rescinded.
[32] Taking the
above considerations into account, I am on the whole, satisfied that
if the decision to rescind the transfer of
the applicant stands, and
the post the applicant currently occupies is advertised he will
suffer irreparable harm, particularly
since the conundrum he finds
himself in was created by the Department. It is not suggested that
the applicant is entitled as of
right to the post if there was indeed
a need to advertise it as it entailed a promotion. All that is being
said is that since he
currently occupies that position on his
understanding that the transfer was legitimate, permanent and not
entailing a promotion,
these are issues that cannot simply be wished
away with a decision to rescind the transfer without due process.
[33] I am further
satisfied that the balance of convenience favours the granting of the
interim
order, failing which the applicant will suffer
prejudice. On the other hand the respondents have not demonstrated
any prejudice.
When the Department approved the applicant’s
transfer, surely it must have had contingency measures in place to
appoint
his replacement at his old school. In my view,
if
ever there is any prejudice to be suffered by the Department, it is
purely of its own making.
[34] Insofar as
prayers 3 and 4 of the Notice of Motion are concerned, the Court
fails to appreciate their relevance at this stage
of the proceedings
and further in the light of the order to be granted below. This is
due to the reason that Part B of that Notice
is still to be
determined. In regards to the issue of costs, the applicant had
prayed that these be costs in Part B of the application,
and it shall
be so ordered.
Order:
[35] In the
premises, the following order is made;
1. Pending the final
determination of the application in Part B of the Applicant’s
Notice of Motion dated 18 October 2018,
the First and
Second Respondents are interdicted and prohibited from;
1.1 Implementing,
alternatively enforcing the decision to transfer the Applicant from
Setumo Primary School in Stella, North West
to Seichokelo Primary
School in Ganyesa, North West
.
1.2 Transferring the
Applicant from Setumo Primary School to any other public school.
1.3 Appointing any
other person to the post of principal of Setumo Primary School
1.4 From preventing
the Applicant to perform all of the duties and responsibilities
attached to the post of the principal of Setumo
Primary School.
2. The parties are
to approach the office of the Registrar of this Court for a set-down
date in respect of Part B of the Notice
of Motion.
3. The costs in
respect of Part A of this application will be costs in Part B of the
application.
E.
Tlhotlhalemaje
Judge of
the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
M.G
Hitge
Instructed
by: Kotze
Low and Swanepoel Attorneys
For
the Respondents:
T. Mpshe
Instructed
by: State
Attorney: Mahikeng
[1]
See
Jiba v Minister:
Department of Justice and Constitutional Development and Other
(2010) 31 ILJ 112 (LC) 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 why urgent relief
is
necessary. It is trite law that there are degrees of urgency, and
the degree to which the ordinarily 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.’
[2]
East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite
(Pty) Ltd and Others
[2012] JOL 28244
(GSJ) at para 6, where it
was held that;
‘….
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.’
[3]
See
Setlogelo v Setlogelo
1914 AD 221
at p. 227;
Eriksen
Motors (Welkom) Ltd v Protea Motors Warrenton and Another
1973
(3) SA 685 (A)
[4]
Annexure “WM1” to the Founding
Affidavit
[5]
Simon NO v Air Operations of Europe AB and Others
[1998] ZASCA 79
;
1999 (1) SA
217
(SCA), at C – D at 228
[6]
At F – H at 228
[7]
In placing reliance on
Tshivhandekano v
Minister of Mineral Resources and Others
[2018] 6 BLLR 628
(LC);
(2018) 39 ILJ 1847 (LC), where it was held that;
“[13]
The respondent had already acted upon the chairperson’s
recommendation and issued a final written warning, but
then
purported to revise its own decision. It is well established that in
such cases the State as employer has the right to review
its own
decision in certain circumstances. That does not equate to a right
to simply take the matter into its own hands and reverse
a decision
already taken”.(Citation omitted)
[8]
Act 103 of 1994
[9]
Act 75 of 1997
[10]
Reliance was placed on
Semela and
Others v MEC for Education, Eastern Cape, and Another
(2001)
22 ILJ 1688 (LC), (2001) 9 BLLR 1085 (LC)
[11]
Act 76 of 1998, as amended