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[2018] ZALCJHB 422
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Koopman v PRASA Metrorail and Others (C1229/2018) [2018] ZALCJHB 422 (27 December 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG/CAPE TOWN
Not reportable
Case No: C1229/2018
In the matter between:
KAREL
KOOPMAN Applicant
and
PRASA
METRORAIL First
Respondent
L QANGULE (PRESIDING
OFFICER) Second
Respondent
VUSI SWARTBOOI
(INITIATOR) Third
Respondent
C NICHOLAS (ER
SPECIALIST) Fourth
Respondent
THISO (SAPS, WOODSTOCK POLICE
STATION) Fifth
Respondent
Heard: 18 and 20 December 2018
Delivered: 27 December 2018
JUDGMENT
TLHOTLHALEMAJE,
J
[1]
The applicant is employed by the first respondent (Prasa Metrorail),
and is currently undergoing a disciplinary enquiry that
commenced on
6 August 2018 into allegations of misconduct.
[2]
The ongoing disciplinary enquiry has been plagued by various
postponements occasioned by numerous preliminary points raised
by the
applicant; the applicant being sick on the date of the scheduled
enquiry; the unavailability of the chairperson; the withdrawal
of the
applicant’s representative; and the firing of his
representatives by the applicant. The enquiry having been a
stop/start
affair, was due to commence on 18 December 2018
after the employer had closed its case.
[3]
Before the commencement of the enquiry on 18 December 2018,
the applicant, who had by then filed this urgent
ex parte
application before the Court, arrived at the employer’s
premises, not to attend the enquiry but to ostensibly serve them
with
his urgent application. The applicant was then advised that rather
than rushing to Court, he should wait for the finalisation
of the
enquiry as scheduled. He nonetheless persisted with his application
at the Court.
[4]
The hearing was held
via
teleconferencing on 18 December 2018
in the absence of Prasa Metrorail. Out of concern with the manner of
service (notwithstanding
the fact that the application was brought
ex
parte
), and further in the light of the incomprehensible papers
before the Court, the matter was postponed to 20 December 2018
to enable the applicant to effect proper service and to amend his
papers.
[5]
It is not clear what the Applicant informed Prasa Metrorail as to
what had transpired over the teleconferencing. But from the
answering
papers, it appeared that after the matter was postponed, he went back
to the employer’s premises, and informed
its representatives
that the Court had
inter alia
said to him that he (applicant)
would be reinstated into his normal duties. This is obviously
untruthful, and I fail to appreciate
the reason the applicant would
have been told that he would be reinstated in his position, when it
is common cause that he still
remains an employee of Prasa Metrorail,
other than the fact that pending the ongoing disciplinary enquiry, he
was simply removed
from his normal duties. He still attends work
daily and continues to receive his salary.
[6]
The applicant initially approached this Court by way of
ex parte
during recess in 18 December 2018 to seek a variety of
orders. Obviously the nature of the application given the types
of
relief he seeks is an irregular step. In summary however, he appears
to complain about the conduct of the Chairperson of the
enquiry on
6 August 2018 and the ruling issued to continue with the
matter; the fact that the hearing took longer than
the thirty day
period; the alleged failure by Prasa Metrorail to notify witnesses;
his suspension which had continued for more
than thirty days; the
production of video recordings; that he be permitted to ‘search’
for video camera and footage
relied on; and that Prasa Metrorail be
restrained from making use of the video camera footage.
[7]
The tragic events that led to the removal of the applicant from his
normal duties and the disciplinary enquiry are essentially
as
follows;
7.1 The applicant is employed as a
Metro train guard and his duties include ensuring that passengers
embark and disembark safely
from trans and the stations, and further
to ensure that it is safe for a train to depart from the
platform.
7.2 On 2 June 2018, the
applicant was a guard on duty on the train. A female passenger, who
the applicant alleged was
inebriated disembarked from a train at
Woodstock station and squatted on the edge of the platform which is
an area demarcated as
a danger zone, in order to relieve herself. As
the passenger attempted to stand up upon relieving herself, she
leaned forward in
an attempt stand up and was hit by the train as it
moved out of the platform. She fell off onto the tracks and under the
wheels
of the train.
7.3 As the guard on duty, the
applicant would have been expected to sit in the last carriage of the
train, step out or at least
lean out of the carriage in order to
observe and view the entire platform area to ensure that it was safe
for the train to depart.
The video footage produced at the
disciplinary enquiry showed that the applicant had not done what was
required of him prior to
the fatal accident, and could accordingly
not apply the requisite safety and emergency procedures.
7.4 Internal processes were followed
leading to the applicant’s removal from his normal duties and
the subsequent disciplinary
enquiry, which as already indicated, has
been a start/stop affair.
[8]
The applicant’s application, which was brought during the
recess on an urgent and on an
ex parte
basis is clearly a
gross abuse of the Court’s process, particularly when regard is
had to the fact that he set it was down
on the date that the internal
disciplinary enquiry was due to continue. This application therefore
ought to be dismissed rather
than being struck off from the roll on
the following grounds;
8.1 The application was not served on
all the respondents cited.
8.2 There is no basis for this matter
to be treated as urgent as correctly pointed out on behalf of the
respondents, in view of
the fact that the disciplinary enquiry has
been on-going having commenced on 6 August 2018, and was due to
resume on the date that
the applicant approached the court on an
urgent basis.
8.3
The requirements of urgency in
this Court as contemplated in Rule 8 of its Rules are well known
[1]
.
No attempt was made to comply with the provisions of Rule 7 (3)
in bringing this application, and one struggles to comprehend
what
the applicant’s case is all about, as he had not set out that
case in chronological order or sufficient particularity.
8.4 No basis has been laid out in the
founding papers as to the reason the matter is urgent. The
applicant’s only concern
is that the enquiry is taking long to
be finalised and that as a consequence, he will lose his position or
licence to work on the
trains. At the same time however, it escapes
the applicant’s mind that he is partly to blame for the
protracted nature of
the enquiry, as he had at that enquiry, raised
pointless preliminary issues. Other than this self-serving reason
proffered for
the urgency, it further escapes the applicant’s
mind that a tragedy took place whilst he was on duty, that the
allegations
against him are serious in the extreme, and that there is
a need to complete the disciplinary enquiry to establish his
culpability
in this tragedy.
8.5 As also appears from the answering
papers, the applicant was provided with a copy of the video footage
relied on in the disciplinary
enquiry. All the preliminary points
that he kept raising were dealt with, and to the extent that he was
still aggrieved, all he
had to do was continue with the enquiry and
wait for the outcome.
8.6
This Court does not as a rule,
intervene in on-going internal disciplinary proceedings unless there
are exceptional circumstances
that require its intervention, such as
that a grave injustice would occur
[2]
.
In
Jiba v Minister:
Department of Justice and Constitutional Development and others
[3]
this Court pertinently held
that:
‘
Although
the court has jurisdiction to entertain an application to intervene
in uncompleted disciplinary proceedings, it ought not
to do so unless
the circumstances are truly exceptional. Urgent applications to
review and set aside preliminary rulings made during
the course of a
disciplinary enquiry or to challenge the validity of the institution
of the proceedings ought to be discouraged.
These are matters best
dealt with in arbitration proceedings consequent on any allegation of
unfair dismissal, and if necessary,
by this court in review
proceedings under s 145.’
8.7 From the founding papers, and
other than the issue of a loss of a licence, there is nothing truly
exceptional in this case that
requires the intervention of this
Court. Even if the Court looked for any, no basis was laid for any
claim to a clear right. Worst
still, it has been said in this court
that where there are alternative remedies available, the Court should
not come to an applicant’s
assistance. In this case, the
applicant indeed has immediate available remedies, which include
subjecting himself to the on-going
disciplinary enquiry as already
scheduled for 21 January 2019, and if unsatisfied, to lodge
an internal appeal, and if
still not satisfied, to approach the
relevant bargaining council or the CCMA.
[9]
In the light of the above, it is concluded that no case has been made
out for the urgency claimed, which in any event is self-created.
Furthermore, no basis has been laid for the relief, incompetent as it
is, for the court to grant. Given the gross nature of the
abuse of
this court’s processes and the unnecessary costs the first
respondent was compelled to incur in order to oppose
this clearly
frivolous and vexatious application, there is no reason based
on either the law or requirements of fairness,
that militates against
a cost order being granted. Accordingly, the following order is made;
Order:
1.
The applicants’ application is dismissed.
2.
The applicant is ordered to pay the first respondent’s costs,
inclusive of the costs occasioned by the employment of counsel.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants: In Person
For
the First, Third and Fourth Respondents: DC Joubert SC
Instructed
by: Werksmans Attorneys
[1]
8 Urgent
relief
(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]
See
Booysen v Minister of
Safety and Security and Others
[2011] 1 BLLR 83
(LAC), (2011) 32 ILJ 112 (LAC) at para 36;
Trustees
for the time being of the National Bioinformatics Network Trust v
Jacobson and others
[2009]
8 BLLR 833
(LC) [2009] at para 3;
Ngobeni
v Passenger Rail Agency of SA Corporate Real Estate Solutions and
others
(2016) 37 ILJ 1704
(LC)
[3]
[2005] ZALC 15
;
[2009] 10 BLLR 989
(LC), (2010) 31 ILJ 112 (LC) at para 17.