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[2019] ZALCJHB 149
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Gomba v Member of the Executive Council: Gauteng Department of Human Settlement (J1360/19) [2019] ZALCJHB 149; (2019) 40 ILJ 2355 (LC) (19 June 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J 1360/19
In the matter between:
DINEO
GOMBA
Applicant
and
MEMBER OF THE
EXECUTIVE COUNCIL:
GAUTENG DEPARTMENT OF
HUMAN SETTLEMENT
Respondent
Heard: 4
June 2019
Delivered:
19 June 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The applicant (Advocate Gomba), was employed as a Senior Legal
Advisor
and Deputy Information Officer of the Department of Human
Settlement: Gauteng Provincial Government (the Department). She
approached
this Court for urgent relief pursuant to the termination
of her services on 8 March 2019 on account of absconsion.
[2]
In her Notice of Motion, she seeks an order declaring the termination
of her services as wrongful and unfair. She further seeks an order
that she be re-employed into her former position with the exact
same
full remuneration and benefits retrospective to the 8
th
March 2018.
[3]
The
respondent (the MEC) opposed the application on various grounds,
including that the application does not deserve the urgent
attention
of this Court, and further that Gomba had not satisfied the
requirements for final relief in view of her dismissal by
operation
of the law, and in particular, the provisions of section 17(3)(a)(i)
of the Public Service Act (PSA).
[1]
Background
:
[4]
Gomba commenced her employment as a Senior Legal Advisor on
1 October 2008.
A fire occurred in the Lisbon Building in
the CBD of Johannesburg which housed the Department of Human
Settlement on 4 and 5 September 2018,
necessitating the
complete evacuation of the building and relocation of employees to
alternative buildings. As a result, the Department
created a WhatsApp
communication group for employees to inform them of logistics and
where they should report for duty. Legal officers
and members of the
legal section of the Department, including Gomba, were directed to
report for duty at another building at No.
11 Diagonal Street.
[5]
At the time that the fire occurred, Gomba was on leave since
August 2018
and was due to return to work on 16 September 2018.
The Department’s contention is that Gomba failed to report for
duty thereafter. With effect from 15 March 2019, Gomba was
not paid her monthly remuneration. Upon enquiries as to the
reason
she was not paid her salary, she was informed by Mr Shibambo of the
Labour Relations Unit that she was dismissed on account
of having
absconded, and that communication in that regard was sent to her via
her official Departmental email address.
[6]
Gomba contends that the Department was at all material times aware
that
she did not have access to her work-email, owing to her
work-laptop having been left at the Bank of Lisbon Building when she
went
on leave; and further that she was not telephonically contacted
prior to any registered letter being delivered to her residential
address, contrary to prior practice in respect of her previous
litigation with the Department.
[7]
The Department however contends that despite its communication
subsequent
to the fire
via
the WhatsApp group communication,
Gomba had since 16 September 2018, not returned to work,
and had only resurfaced when
her remuneration was not paid on
15 March 2019.
[8]
Central to Gomba’s complaint in approaching the Court on an
urgent
basis is that the Department failed to comply with the
requirements of section 17(3) of the PSA in implementing the
termination.
She contends that the Department never communicated to
her or the other employees on the said WhatsApp platform that they
were
required to report for duty after being excused from doing so
subsequent to the safety concerns at the Bank of Lisbon Building.
[9]
Gomba averred that on 1 April 2019, she launched an appeal
with
the MEC in respect of her dismissal. The Department on the other
hand denied that any written representations as contemplated by
the
provisions of section 17(3)(b) of the PSA were received by the MEC.
It referred to an email of Mr Mokoko, the Chief of Staff
in the MEC’s
office, who had denied Gomba’s allegation that his (Mokoko’s)
email mailbox was full on 1 April 2019,
which resulted in
her representations not being received.
Urgency:
[10]
The
principles applicable to urgent applications are trite. An applicant
in such applications in accordance with the provisions
of Rule
8 of the Rules of this Court must set out explicitly, the
circumstances which she avers makes the matter urgent, and must
also
state the reasons why she claims that she cannot be afforded
substantial redress at a hearing in due course.
[2]
Equally important is that urgency claimed must not be self-created
due to
inter
alia,
the applicant having been lax in approaching the court for relief.
[11]
As already pointed out, the MEC opposed the application on a variety
of grounds, including
that Gomba had not complied with the provisions
of paragraph 12.3 of the Practice Manual of this Court in bringing
the application.
It is my view that it is not necessary for the Court
to deal with these contentions since the matter was initially set
down for
31 May 2019 by Gomba, but was subsequently removed
from the roll to enable the MEC to file a replying affidavit. Thus
any prejudice caused as a consequence of setting the matter down on
that date can be mitigated with a costs order to the extent
that such
an order would be deemed appropriate.
[12]
The MEC further contended that Gomba had not set out on the facts why
this application
should be heard as one of urgency; and that on the
whole, she had not shown in her founding affidavit why the matter
should be
treated with urgency.
[13]
The MEC further contended that Gomba was notified on 15 February 2019
that she
had been absent from work. This was followed by a letter of
termination sent to her dated 08 March 2019. It is common
cause that the salary payment of Gomba’s was stopped on
15 March 2019, and that this application was only launched
on 27 May 2019, setting the matter down for 31 May 2019.
[14]
Gomba averred that the matter is urgent on the grounds that;
a)
Her contract of employment was wrongfully and unfairly terminated,
causing her to suffer severe psychological trauma
b)
She was on the brink of losing her residential property in which
she
lived with her minor daughter due to non-payment of her monthly bond;
c)
She recently discovered that she was pregnant and suffered from
some
other ailments including high blood pressure.
d)
She had no alternative remedies
e)
Her circumstances were exceptional.
[15]
I am in agreement with the MEC that Gomba has not set out the facts
requiring this application
to be treated as urgent. My conclusions in
this regard are as follows;
15.1
Having become aware of the non-payment of her salary on
15 March 2019, Gomba only approached
this Court on
27 May 2019, some 10 weeks since the cause of the
complaint. It is not necessary to dwell into the dispute
as to
whether she had received the correspondences of 15 February 2019
and 08 March 2019 or not.
15.2
It further took Gomba until 1 April 2019 to submit a notice
of appeal. Despite it being
apparent that her appeal was not being
attended to, on 13 May 2019, she had addressed a letter to
the Department, threatening
to approach this Court on an urgent basis
if her notice of appeal was not attended to within two days. Despite
not getting a response
within the two days, she only approach this
Court on 27 May 2019.
15.3
It is apparent from the above that Gomba did not act with the
necessary haste in approaching
the Court, and the invariable
conclusion to be reached is that the urgency claimed is self-created.
15.4
Even if
there is a semblance of attempts by Gomba to have her appeal attended
to, other factors she had raised in submitting that
the matter is
urgent does not assist her case. The first is that, insensitive and
uncaring as it may sound, financial hardship
is ordinarily not
regarded as a ground of urgency.
[3]
It is a natural consequences of a loss of a job, and it would be
untenable for the Court to treat financial hardship as a ground
of
urgency in each and every dismissal case in the light of the clear
scheme of labour dispute resolution as contained in the LRA.
All
litigants that have had their services terminated, irrespective of
status, financial means or financial hardship, are required
to await
their turn on the litigation queue. Gomba is not an exception, nor
has she shown exceptional circumstances as shall be
dealt with below.
15.5
It is
accepted that the above general principle may be departed from if
exceptional circumstances exist. Even then however, the
applicant
must demonstrate detrimental consequences that may not be
capable of being addressed in due course.
[4]
15.6
In this case, I am not satisfied that the factors pleaded by Gomba
raise exceptional circumstances
compelling the Court to treat the
matter as urgent. Her
averments in relation to
financial hardship amounts to generalised statements, with no effort
being made to make specific, factual
averments related to the nature
and extent of any immediate hardship that she says she will suffer.
As it was correctly pointed out on behalf of the MEC, Gomba’s
averments in regards to losing her house are not supported by
anything to demonstrate that there is a pending action in respect of
her property. In the end, Gomba failed to place any material
before
the Court to convince it that
the degree of
financial hardship alleged is so exceptional that it requires the
urgent intervention of this Court.
15.7
In any
event, the Court should be slow in according a matter urgency on the
basis of financial hardship in circumstances where the
applicant did
not act with the necessary haste in approaching it
[5]
.
15.8
Furthermore, the Court should be slow to grant urgent relief
particularly in view of a consideration
that any detrimental
consequences arising from Gomba’s dismissal would not be
capable of redress in due course. Again, it
was correctly pointed out
on behalf of the MEC, Gomba has not set out facts to establish why
she will not obtain substantial redress
at a hearing in due course.
[16]
Ordinarily, and in the light of the above conclusions, Gomba’s
application ought
to be struck off the roll. For the sake of
completeness however, it is trite that in such applications where an
applicant seeks
final relief, he or she must further establish a
clear right to the relief that is sought; a reasonable apprehension
of irreparable
harm; and the absence of alternative and adequate
remedies.
[17]
Gomba in
her pleadings does not indicate what clear right she seeks to
protect. In fact, no mention is made of that right, other
than to
mention that the termination of her contract of employment was
wrongful, unlawful and unfair due to abuse of power by the
MEC or the
Department. She however sought to rely on
Mmatli
and Others v Department of Infrastructure Development (Gauteng
Province)
[6]
for the
proposition that the Court may intervene on an urgent basis to
interdict an unfair dismissal. The facts of that case are
in any
event distinguishable in that the employees in that case were not
dismissed at the time of the hearing of their application,
whilst
Gomba in this case has since been dismissed. In any event, to the
extent that she questioned the procedure adopted in terminating
her
services, it is trite that
an
averment of a breach of procedure, irrespective of the egregious
nature of that breach, is not in itself a basis upon which an
application may heard as a matter of urgency.
[7]
[18]
In this
case, it was common cause that Gomba’s services were terminated
in accordance with the provisions of section 17(3)(a)(i)
of the PSA,
and by all accounts, Gomba does indeed have access to alternative
remedies. To this end, it has been held that a declaratory
order for
reinstatement or re-employment as sought in this case, would be
inappropriate in circumstances where an applicant has
access to
alternative remedies under the provisions of the LRA. Furthermore,
a
final declaration of unlawfulness on the grounds of unfairness (as
pleaded in this case), will rarely be easy or prudent in motion
proceedings.
[8]
[19]
Insofar a clear right was not pleaded nor established, there will be
no basis upon which
the Court can determine whether there is a
reasonable apprehension that irreparable harm would ensue, and
accordingly, this requirement
of final relief was equally not met.
[20]
The issue of alternative remedies has already been dealt with in
part. Gomba does indeed
have alternative and adequate remedies, and
it is not clear from her pleadings why these remedies are inadequate
for her. It was
pointed out on behalf of the MEC that two essential
remedies are available to Gomba, being the provisions of section
158(1)(h)
of the LRA, and Clauses 9.5 and 10 of the internal
Abscondment Policy.
[21]
In conclusion, Gomba has failed to establish the reason the Court
should hear this matter
on an urgent basis, and worst still, she has
failed to satisfy the requirements of the final relief that she
seeks, and her application
accordingly ought to be dismissed.
[22]
The MEC seeks a punitive costs order against her. It is common cause
that Gomba has since
been dismissed and had brought this application
on her own and represented herself in these proceedings. Inasmuch as
the application
was ill-conceived, it is my view that the
considerations of law and fairness militate against any costs order
against her.
[23]
Accordingly, the following order is made;
Order:
1.
The applicant’s 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 Applicant: In
Person
For
the Respondent: X
Mofokeng, instructed by H.M Chaane Attorneys
[1]
Act 103 of 1994 (as amended)
Section
17
Termination of employment
(1)
(a) Subject to paragraph (b), the power to
dismiss an employee shall vest in the relevant executive
authority
and shall be exercised in accordance with the Labour Relations Act.
(b)
The power to dismiss an employee on account of misconduct in terms
of
subsection
(2) (d) shall be exercised as provided for in section 16B (1).
(2)
An employee of a department, other than a member of the services, an
educator or a member of the Intelligence Services, may be dismissed
on account of-
(a)
incapacity due to ill health or injury;
(b)
operational requirements of the department as provided for in the
Labour
Relations Act;
(c)
incapacity due to poor work performance; or
(d)
misconduct.
(3)
(a) (i)
An employee, other than a member of the services or an
educator
or a member of the Intelligence Services, who absents himself or
herself from his or her official duties without permission
of his or
her head of department, office or institution for a period exceeding
one calendar month, shall be deemed to have been
dismissed from the
public service on account of misconduct with effect from the date
immediately succeeding his or her last day
of attendance at his or
her place of duty.
(ii)
If such an employee assumes other employment, he or she shall be
deemed to have been dismissed as aforesaid irrespective of whether
the said period has expired or not.
(b)
If an employee who is deemed to have been so dismissed, reports for
duty
at any time after the expiry of the period referred to in paragraph
(a), the relevant executive authority may, on good cause
shown and
notwithstanding anything to the contrary contained in any law,
approve the reinstatement of that employee in the public
service in
his or her former or any other post or position, and in such a case
the period of his or her absence from official
duty shall be deemed
to be absence on vacation leave without pay or leave on such other
conditions as the said authority may
determine.
[2]
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd and Others
[2012] JOL 28244
(GSJ) at para 6.
[3]
See
Jonker
v Wireless Payment Systems CC
(2010) 31 ILJ 381 (LC) at para 16, where it was held that;
‘
The
general rule that financial hardship and loss of income are not
considered to be grounds for urgent relief was upheld in
Malatji
v University of the North
[2003] ZALC 32
(LC) and
Nasionale
Sorghum Bierbrouery (Edms) Bpk (Rantoria Divisie) v John NO en
Andere
(1990) 11 ILJ 971 (T).’
[4]
Harley
v Bacarac Trading 39 (Pty) Ltd
(2009) 30 ILJ 2085 (LC) at para 8.
[5]
See
Ledimo
and Others v Minister of Safety and Security and Another
(2242/2003)
[2003] ZAFSHC 16
(28 August 2003) at para 33 – 34
where it was held that;
‘
Let
me assume in favour of the applicants that their financial hardship
was caused by the withholding of their salaries, as they
claimed,
that it was sufficient to establish urgency and that such urgency
justified the extra-ordinary urgent procedure they
have chosen
in
casu
. This is the first hurdle they
had to jump. But there was yet another important hurdle they also
had to jump. By conduct they
swiftly had to demonstrate the urgency
they were relying upon. In my view they have hopelessly failed to
display any sense of
urgency. They took their own time to launch
these proceedings. By failing to take appropriate steps timeously
against the respondents,
they have certainly allowed the passage of
time to effectively destroy whatever merits their averment of
urgency might have had.
By the time they woke up
and rushed to court to launch this application any measure of
urgency that there was originally in their
matter had gradually
dissipated and had virtually evaporated into thin air. I have
already commented adequately on the adverse
impact of their
procrastination. It is enough. Ms Van Zyl’s contention that
the applicants had, on their own papers, been
aware of the alleged
wrong for a considerable period prior to their launching these
proceedings on 30 June 2003 has indeed substance.
It is crystally
clear, and there is no allegation or suggestion to this effect, that
the respondents have committed no fresh
offensive acts or wrongs
which in any way may be regarded as having rekindled the urgency
this matter had long lost.’
[6]
(2015)
36 ILJ 464 (LC) at para 13
[7]
See
Solidarity
v South African Broadcasting Corporation
2016
(6) SA 73
(LC); (2016) 37 ILJ 2888 (LC);
[2017] 1 BLLR 60
(LC) at
para 67
[8]
Executive
Council for Education, North West Provincial Government v Gradwell
(2012)
33 ILJ 2033 (LAC) at para 46