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[2018] ZALCJHB 405
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Litsoane and Others v Minister of Justice and Correctional Services and Others (J4115/18) [2018] ZALCJHB 405 (28 November 2018)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: J4115/18
In the matter between:
TLADI
MOSES LITSOANE
First
Applicant
ANNEXURE
“TML’’
Second to 29
th
Applicants
and
MINISTER OF JUSTICE
AND
CORRECTIONAL
SERVICES
First Respondent
NATIONAL COMMISSIONER
OF
THE DEPARTMENT OF
CORRECTIONAL
SERVICES
Second Respondent
Heard: 22 November
2018
Delivered:
28 November 2018
JUDGMENT
MAHOSI
J
Introduction
[1] This is an urgent
application in terms of which the applicants seek an order in the
following terms:
‘
1.
It be declared that the respondents are prohibited from dismissing
the applicants without following pre-dismissal procedure as
provided
by the
Labour Relations Act, 66 of 1995
.
2.
The respondents be interdicted from appointing anyone to the
Correctional Services Parole Board pending referral and outcome
of
their reasonable expectation of further contractual renewals in terms
of
section 186(1)(b)(i)
of the LRA to the Public Services Bargaining
Council.
3. The respondents be ordered to
reappoint the applicants on the same terms pending referral and
outcome of their dismissal to the
bargaining council.
4.
The respondents be ordered to pay the costs of the application on an
attorney and own client scale.’
[2] The respondents, in
the answering affidavit, opposed the application on the grounds that
the relief sought in the notice of
motion is not legally sustainable.
The respondents’ contention is that this application is not
urgent and further that it
lacks merit as the applicants are not
employees of the Department of Justice and Correctional Services and
as such were never dismissed.
The respondents also took issue with
the first applicant’s failure to attach confirmatory affidavits
of the second to twenty-ninth
applicants.
Background Facts
[3]
Prior
to outlining the applicants’ case in detail and considering the
issues that gave rise to the claim, it is necessary
to summarise the
facts that form the relevant background to the dispute between the
parties.
[4]
The applicants are appointed as members of Correctional Supervision
Parole Board (CSPB) in terms of section 74 of the Correctional
Services Act
[1]
. The first
respondent addressed a letter dated 26 February 2018 to the first
applicant in terms of which the following was communicated:
‘
Kindly be
advised that the Department of Correctional Services is hereby
extending your contract as chairperson of the Correctional
Supervision and Parole Board (CSPB), which is due to end on 31
st
of March 2018. The extension will be for a further period of three
(3) months from 1
st
of April 2018 to 30
th
June
2018. This will be the final extension of your current contract with
the Department.
Kindly further be
advised that the opportunities to serve on the CSPB will be
advertised soon, and you are advised to apply if interested.
Kindly
take note that suitable candidates shall be considered and
recommended (and) may be placed on new contract.’
[5]
At the beginning of March 2018, the first respondent published an
advertisement, calling for applications to serve as members
of the
CSPB. Upon becoming aware of the advertisement, on 19 March 2018, the
applicants addressed correspondence to the first respondent
demanding
that the process of interviewing interested candidates be halted.
They argued that, as the board members, they were still
in office and
further that they had a legitimate expectation that their positions
had become permanent. On the 13 April 2018 the
respondents addressed
a letter to the applicants in which it stated that a consultation
with them would be arranged for the purpose
of attending to their
concerns. That consultation did not materialise. It is common cause
that the applicants’ contracts
were subsequently renewed for a
further period of two months until 31 August 2018 and again until 30
November 2018. On 13 November,
the applicants filed this application.
As earlier intimated, the respondents opposed this application on the
basis that it lacks
urgency and merits.
Urgency
[6]
Rule
8 of the Rules of this Court provides that:
‘
(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.’
[7]
In
Jiba v
Minister of Justice and Constitutional Development and Others,
[2]
this
Court considered Rule 8 and stated as follows:
‘
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.
’
[3]
[8]
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 time frames set out in the Rules should be
abridged. The applicant is required to show cause why
the Rules of
this Court relating to forms and service should be dispensed with. In
the founding affidavit, the applicants set out
the reasons for
bringing this application on an urgent basis as follows:
‘
12.
The first respondent has published and advertised positions we occupy
without giving us notice of dismissal nor taking us through
pre-dismissal processes as provided in Schedule 8 of code of Good
practice of the LRA.
13.
The conduct of the respondents is unlawful and continues to be so, as
our contracts of employment will terminate on 30 November
2018.
14.
We have notified the respondents to seize from such conduct on a
number of occasions, however the respondents have ignored our
requests.
15.
As a result of the respondents’ unlawful conduct and blatant
refusal to communicate
with us, we have no other remedy left but to
approach the Honourable Court on an urgent basis.
16.
We submit that the urgency is not self-created as it is supported by
the facts above.’
[9]
From the above, it is apparent that the applicants’ reason for
bringing this application on an urgent basis is based on
the alleged
respondent’s unlawful conduct and the fact that their
contracts are due to be terminated on 30
November
2018. Based on their own submissions, the applicants became aware of
the first respondent’s advertisement for applications
from
interested parties to serve as members of the CSPB in March 2018. In
their letters of demand, they intimated the intention
to institute
court proceedings but they did not do so. This application was filed
on 13 November 2018 and there is no explanation
as to why
this
application was brought almost eight months after being aware of the
respondents’ intention to appoint new board members.
[10]
On 20 November 2018, the applicants filed a supplementary affidavit
in an attempt to explain why they failed to approach the
Court
earlier. The respondent filed an answering affidavit on 21 November
2018 oblivious of the supplementary affidavit and later
filed a
response to the supplementary affidavit. On the same day, the
applicants filed the replying affidavit. In its response
to the
supplementary affidavit, the respondent objected to the filing of the
supplementary affidavit and asked the Court to regard
such an
affidavit
pro non scripto.
The respondent based its objection
on the applicants’ failure to seek leave of Court to file such
an affidavit and the lack
of special circumstances giving rise to
something unexpected or new that emerged from the applicant’s
answering affidavit.
[11]
Rule 6(5)(e) of the Uniform Rules of Court requires that the filing
of further affidavits be permitted only with indulgence
of the Court
and the Court will only exercise its discretion if good reasons to do
so were furnished by the party seeking to introduce
a further
affidavit. In this application, this was not done by the applicant.
In the supplementary affidavit, the applicants informally
sought
leave from the Court to supplement the founding affidavit.
[12]
To an extent that the applicants failed to seek leave of this Court
to file the supplementary affidavit, it is apparent that
they
disregarded the Rules of the Court and chose a flawed manner to
litigate. The Court must show its displeasure by striking
out the
whole supplementary affidavit. However, I will consider the
supplementary affidavit for reasons that will become apparent
later.
[13]
In supplementing the founding affidavit, the applicants submitted
that the delay was caused by the fact that they waited for
the
respondents to give them notice regarding their future employment.
The waiting resulted from the fact that, in response to
their letter
of demand, the respondents had sent them a correspondence dated 13
April 2018 indicating that consultation was arranged
to address the
concerns raised in their letter. Subsequently, on 18 June 2018, the
applicants contracts were extended from 1 July
2018 to 31 August 2018
and were further extended from 1 September 2018 to 30 November 2018.
On 9 September 2018, the applicants
instructed their attorneys to
send a correspondence to the respondents demanding withdrawal of the
advertisement of board positions
and giving notice of intention to
bring this application. It was through this correspondence that the
applicant sought to give
a 30-day notice to the respondents in terms
of the Institution of Legal Proceedings Against Certain Organs of
State Act
[4]
.
[14]
The unlawfulness of the first respondents’ conduct and its
refusal to communicate with the applicants does not render
this
matter urgent. After the contracts were renewed, the applicants found
it unnecessary and/or neglected to bring this application.
The
applicants created urgency by waiting until a few days before the
expiry of their contracts to bring this application. This
is so
because the undelying cause for bringing this application is still
the subject matter of an ongoing dispute between the parties
as the
respondents neither withdrew the advertisement of the positions of
CSPB nor promised to do so.
[15]
Reliance on the respondents’ promise to attend to their
concerns is unreasonable as this undertaking was done on 13 April
2018. There is further no explanation why the applicants could not
approach the bargaining council during the period of extension.
The
applicants’ attempt to justify a further delay by making a
submission that they had to give the respondents a 30-day
notice is
not helpful. The respondents correctly submitted that the provisions
of the Institution of Legal Proceedings against
Certain Organs of
State Act are not applicable in this matter.
[15]
To an extent that the applicants failed to state why this application
could not be brought earlier, the applicants have not
shown why the
Rules of this Court relating to forms and service should be dispensed
with or why they cannot obtain substantial
redress by complying with
the prescribed timeframes or why this Court’s assistance is
immediately required. As such, the
applicants have, in my view,
failed to make out a case for urgency and it is for that reason alone
that their application stands
to fail.
Costs
[16]
In terms of
section 162
of the
Labour Relations Act
[5
]
LRA, the Court has a discretion in awarding costs. The Constitutional
Court has recently reiterated in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[6]
,
that
the rule of practice that costs follow the result does not apply in
labour matters and further that costs orders should be
made in
accordance with the requirements of law and fairness.
In
this matter, both parties prayed for punitive costs.
[17]
As earlier intimated, the applicants failed to furnish grounds
justifying the launching of this application on an urgent basis.
It
is apparent that this application would not have been necessary had
the applicants referred their dispute to the
bargaining
council
as
required by the LRA. As such, there is no reason why the respondents
should be out of pocket for opposing this application.
[18]
In the circumstances, I make the following order.
Order
1.
This
application
is dismissed with costs including costs of two counsel.
D. Mahosi
Judge
of the Labour Court
Appearances:
For the Applicants:
Advocate Khumalo,
Instructed
by: Shandukane
Attorneys
For the
Respondents: Advocate
Mphahlele SC and Advocate Phefadu
Instructed
by: State
Attorney – Cape Town
[1]
Act
111
of 1988.
[2]
(2010)
31 ILJ 112 (LC).
[3]
At
para 18.
[4]
Act 40 of 2002.
[5]
Act
66 of 1995 as amended.
[6]
(2018) 39 ILJ 523 (CC)