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[2018] ZALCPE 12
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Munir v Member of the Executive Council for Health Eastern Cape and Others (P77/18) [2018] ZALCPE 12 (11 April 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case No: P77/18
In
the matter between:
HAMID
MUNIR
Applicant
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
HEALTH EASTERN CAPE
First
Respondent
T.A
MODONSELA CHIEF EXECUTIVE
OFFICER
LIVINGSTONE
TERTIARY HOSPITAL
Second Respondent
Heard:
29 March 2018
Delivered:
11 April 2018
Summary:
A matter cannot be heard on the basis of urgency when the applicant
has not given reasons for its urgency.
JUDGMENT
LALLIE,
J
[1]
In this urgent application the applicant seeks an order in the
following terms:
‘
Declaring the placing of the
applicant on special leave on 6 September 2017 unlawful and set aside
pending the finalisation of the
unfair labour practice dispute
relating to the special leave imposed on the applicant referred to
the Public Health and Social
Development Sectoral Bargaining Council,
the Council.’
The application is
unopposed.
[2]
The applicant is employed by the Department of Health in the Eastern
Cape Province (the Department) since 2004 as a Specialist
Cardio –
Thoracic Surgeon at Livingstone Tertiary Hospital. He received a
letter dated 8 August 2017 from the Health Professions
Council of
South Africa (HPCSA) in which he was,
inter alia
, placed in
supervised practice for two years and to cease working in private
practice until the completion of the two year period
of supervision.
On 24 August 2017 the applicant, through his attorneys addressed a
letter to the HPCSA requesting reasons for the
decision and expressed
his intention to challenge its decision. On 29 August 2017 the
Department addressed a letter to the applicant
in which it informed
him of its intention to place him on leave pending incapacity
proceedings on the basis that the decision of
the HPCSA made him
unable to meet his contractual obligations with his employer. He was
afforded an opportunity to make written
submissions by 1 September
2017. On 6 September 2017 the Department, after considering the
applicant’s submissions, granted
him special leave with
immediate effect for purposes of finalising the investigation and any
further process into the applicant’s
alleged incapacity. The
applicant was required to return all the equipment of the Department
and not to enter his employer’s
premises without prior
authorization.
[3]
The applicant submitted that in compliance with the HPCSA letter
dated 8 August 2017 he obtained letters from Doctor ID Oosthuizen
and
Rashoek R Sewsunker. He received a letter from the HPCSA dated
2017/09/05 which,
inter alia
, informed him that he was
entitled to practice his profession in the RSA. The certificate the
HPCSA attached to the letter is a
certificate of registration
certifying that the applicant is a medical practitioner in the
category of supervised practice specialist
cardiothoracic surgery
with effect from 9 June 2017.
[4]
The applicant submitted that the special leave imposed on him is both
unlawful and unfair as it is not in terms of the special
leave policy
and constitutes disguised suspension. He expressed the view that even
if the Department could construe the special
leave as suspension,
such suspension would be in conflict with provisions of paragraph
7.2.(a) and (c) of Resolution 1 of 2003
which provides that the
suspension of an employee who has committed a serious offence and the
employer believes that the employee’s
presence at the workplace
might jeopardise any investigation into the alleged misconduct, or
endanger the well-being or safety
of any person or state property,
such suspension may not exceed 60 days. The applicant has referred an
unfair labour practice dispute
relating to suspension/other
disciplinary action short of dismissal to the Public Health and
Social Development Sectoral Bargaining
Council (the PHSDSBC).
[5]
In the notice of motion the applicant sought to have this matter
heard as a matter of urgency. Rule 8(2) of the Labour Court
Rules
requires an applicant in an urgent application to give reasons for
urgency, why urgent relief is necessary and reasons why
the
requirements of the rules were not complied with. In his founding
affidavit, under the subheading of urgency, the applicant
submitted
that as he is seeking final interdict it is not necessary for him to
show urgency. He added that as the application is
brought on a
semi-urgent basis, he was required to show that there are extra
ordinary circumstances that required the matter be
heard as one of
urgency. The applicant’s submission that it is not necessary to
show urgency because he is seeking a final
interdict has no legal
basis. The requirements in Rule 8 do not distinguish between interim
and final interdicts. In addition,
the need to prove urgency is
correctly stated in the following words in
Jiba
v Minister of Justice and Constitutional Development
[1]
.
‘
[18]
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 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.’
[6]
I have considered the decision in
Heyneke
v Umhlatuze Municipality
[2]
the applicant sought to rely on
.
In that
matter the court did not deal with the issue of urgency and did not
make a finding that provision of Rule 8 can be dispensed
with in
extra ordinary circumstances. The applicant’s reliance on
semi-urgency equally lacks a legal basis. In
De
Beer v Minister of Safety and Security/Police
[3]
it was held that the Labour Relations Act
[4]
(the LRA) does not refer to semi–urgent interim relief. The
court further held that a matter is either urgent or it is not.
Section 158(1)(a)(ii) the applicant seeks to rely on is also silent
on semi–urgency. As the applicant seeks an order declaring
the
conduct of placing him on special leave unlawful and to have it set
aside pending the finalisation of the unfair labour practice
dispute
he has referred to the PHSDSBC, he is effectively seeking urgent
interim relief as envisaged in section 158 (1)(a)(i) of
the LRA which
is silent on semi-urgency.
[7]
The applicant was placed on special leave on 6 September 2017 having
received a letter from the HPCSA informing him that he
was entitled
to practice his profession in the country on 5 September 2017. He
launched this urgent application on 7 March 2018,
six months after
being placed on special leave, he gave no reasons for the delay in
bringing this application. Even the collective
agreement he sought to
rely on does not assist him as it does not address the entire delay
as it requires that employees not be
suspended for a period in excess
of 60 days. As the applicant has failed to give reasons for this
matter to be given priority over
other cases which were referred
before it and be heard as a matter of urgency, his application cannot
succeed.
[8] In the premises, the
following order is made:
Order
:
1.
The
application is struck from the roll for lack of urgency.
Z Lallie
Judge of the Labour Court
of South Africa
Appearances
For the Applicant:
Advocate Nduzulwana
Instructed by:
Zibi Inc
[1]
[2005] ZALC 15
;
[2009] 10 BLLR 989
(LC) para 18
[2]
(2010) 31 ILJ 2608
(LC)
[3]
[2013] 10 BLLR 953
(LAC) para 32
[4]
Act
66 of 1995
.