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[2019] ZALCJHB 132
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Mbuyisa and Others v Passenger Rail Agency of South Africa and Others (J1366/19) [2019] ZALCJHB 132 (11 June 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J1366/19
In the matter between:
CATHRINE MBUYISA &
115 OTHERS
Applicants
and
PASSENGER RAIL AGENCY
OF SOUTH AFRICA
First
Respondent
UNKNOWN CONTRACT
CLEANING COMPANIES
OPERATING AT PARK
STATION, JOHANNESBURG
Second Respondent
Heard: 6
June 2019
Delivered:
11 June 2019
JUDGMENT
TLHOTLHALEMAJE,
J
[1]
The applicants approached the Court on an urgent basis to seek
interim
relief declaring the ‘on-going lockout by the first and
second respondents to be unprotected and unlawful’. They
further
seek orders interdicting and ordering the respondents to end
the lockout, and to pay them their normal remuneration; and further
ordering the security guards at Park Station in Johannesburg to allow
them to enter the premises and perform their normal duties.
[2]
The applicants seek relief against the first respondent (PRASA) and
unnamed
contract cleaning companies cited as the second
respondent. Various preliminary points were raised in the answering
affidavit filed
and served by PRASA. The matter was initially
enrolled for a hearing on 4 June 2019 and was removed from
the roll to
enable the applicants to file a replying affidavit. The
applicants were self-represented in these proceedings and it appears
from
the papers that they were assisted by an entity called Casual
Workers Advice Office in drafting their founding affidavit. A
replying
affidavit was indeed filed and served, albeit it was not
signed by the deponent.
[3]
The urgent application is brought before the Court against the
following
background;
3.1
The individual applicants are according to PRASA, employed by various
service
providers to provide cleaning services at its train stations,
including at its Park Station in Johannesburg. These service
providers
are Bonnie and Clide Projects; FABS Projects; Khuthala
Africa Trading and Projects; Maboka Cleaning; Mushoma Security
Services
and Projects; Natty and Skizo Trading and Projects; and
Motasedi Trading Projects.
3.2
The individual applicants’ contention is that they are
part of a
larger group of employees who have been engaged to provide
services at PRASA, and had since 2017, engaged with it to be
insourced
and be directly employed by it instead of the contract
service providers. They further alleged that they do not belong to
any recognized
union.
3.3
It is common cause that as a result of this dispute, the applicants
on 2 May 2019,
began protests at Park Station. Attempts by
PRASA to resolve the applicants’ grievances were unsuccessful
and the protests
had continued into 3 May 2019. This
resulted in PRASA having to approach the High Court on an urgent
basis on 4 June 2019.
Further attempts by PRASA to get the
service providers to intervene were unsuccessful. An interdict was
then obtained on 6 May 2019
prohibiting the applicants from
gathering and protesting at Park Station. PRASA’s contention is
that the protests were marred
by violent conduct and threats by the
employees towards other employees, commuters and members of the
public.
3.4
According to PRASA, despite the interdict, the protests and pickets
had continued
at Park Station, necessitating the enlisting of the
members of SAPS, which led to the arrest of some of the
applicants. Upon
their release on 8 May 2019, they had returned to
Park Station on 9 May 2019 to continue with their protests and
pickets. The applicants
denied that they had returned with the
intention to continue with the protests, and contended that they
sought to resume their
duties when they were ‘locked out’.
They were however denied access by security personnel deployed by
PRASA. This had
led to the application before the Court.
[4]
PRASA’s case is that the application ought to be dismissed or
struck
off the roll on a variety of grounds, including that the
matter is not urgent, and I agree.
[5]
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.
[6]
It is further trite that the Court would refuse to accord a matter
urgency
where a party fails to approach it with the necessary haste.
It is thus incumbent upon the aggrieved party to
approach the court without delay for a remedial relief.
In
this case, it was common cause that the basis upon which the
applicants approached the Court for relief was when they were
prevented
from rendering their services on 9 May 2019. They
had only approached this Court on or about 4 June 2019, and
no attempt was made to explain the reason it took about four weeks
for them to approach the Court, other than to aver that after
obtaining advice, they had addressed a letter to PRASA on
22 May 2019, advising it that its actions amounted to an
unprocedural
lockout, and gave it until 24 May 2019 to end
it. Even then, nothing is said about what was done between 9 and
22 May 2019,
and 24 May and 04 June 2019,
when this application was launched.
[7]
A further
concern is the reason that the applicants proffered for the matter to
be treated as urgent. It is appreciated that a loss
of remuneration
as pointed out by the applicants has devastating effects on them and
their dependants. It has however been held
that the loss of salary
and benefits, with the concomitant financial hardship, are not
regarded as sufficient to
establish urgency
[3]
.
Other than the issue of financial hardship, no other basis was laid
as to the reason the matter ought to be accorded urgency.
[8]
Other than the fact that the applicants have not made out a
case
for the matter to be treated as urgent, in the founding
affidavit, they had alleged that they had no knowledge of who the
service
providers were, as PRASA had concealed their identities from
them. In the answering affidavit, PRASA had identified these service
providers were, attached copies of contracts of service with
these entities as annexures, which contracts further included
the
particulars of these entities.
[9]
When the matter was removed from the roll, one would have expected
that
in the light of the issues of a misjoinder and jurisdiction
having been raised, and the particulars of the service providers
having
been made available, the applicants would have made attempts
to properly cite and join the service providers as second
respondents.
This was however not to be so.
[10]
The
applicants submitted in these proceedings that PRASA, and not the
service providers was their employer. This however is belied
by their
own averments in the founding affidavit that their demand, that
led to the dispute, was for PRASA to insource them
and employ them
directly instead of through contract companies
[4]
.
They further acknowledged that it was through these service providers
that their employment at PRASA was procured. In the
light of
these factors, the applicants have not established the basis upon
which PRASA is joined in these proceedings, other than
for
convenience.
[11]
Aligned to the above is the issue of jurisdiction. It is trite that
this Court would
refuse to grant relief in circumstances where
an employer-employee relationship has not been established. In this
case, other than
the averments in the founding affidavit that points
to an employment relationship with the service providers, in the
answering
affidavit, the applicants sought to rely on what appears to
be bank statements to contend that PRASA was in fact the employer, as
it had paid their salaries. They further contended that they received
work instructions from PRASA management.
[12]
It is trite
that jurisdiction is determined on the basis of the pleadings, and
not on the substantive merits of the case
[5]
.
Furthermore, a case cannot be made out in the replying affidavit as
the applicants have sought to do in this case. To the extent
that the
issues surrounding alleged payments of salaries by PRASA and
instructions were raised in the replying affidavit, these
carried
little weight in demonstrating any employment relationship. Even if
these issues were to be considered, the bank statements
and receipt
of work instructions from PRASA’s management do not on their
own in any event demonstrate an employment relationship.
[13]
In the end, in the absence of the applicants having demonstrated any
employment relationship
between themselves and PRASA, the latter had
correctly pointed out that this Court lacks jurisdiction to determine
the dispute.
[14]
In the light of the above conclusions, it follows that the
applicants’ application
ought to be dismissed rather than being
merely struck off the roll. I have further had regard to the
requirements of law and fairness
in relation to the issue of costs,
and given the circumstances of this case, I am of the view that no
such an award of costs should
be made.
Order:
[15]
In the premises, the following order is made;
1. The applicants’
urgent application is dismissed.
2. There is no order
as to costs
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants: In
Person (Ms C Mbuyisa)
For
the First Respondent: Ms
T Godlo of Msikinya Attorneys & Associates
[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]
De Beer
v The Minister of Safety & Security Services/ Police and Another
(2013)
34 ILJ 3083 (LAC); See also
Ledimo
and Others v Minister of Safety and Security and Another
(2242/2003)
[2003] ZAFSHC 16
(28 August 2003) at paras 29 - 33
[4]
At
paragraph 11
[5]
Chirwa
v Transnet Ltd
[2008] 2 BLLR 97
(CC)