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[2019] ZALCJHB 220
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Motaung v Minister of the Department of Correctional Services (J1693/19) [2019] ZALCJHB 220 (16 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO: J1693/19
In the matter between:
NECODEMUS
JOSIAH MOTAUNG
Applicant
and
MINISTER OF THE
DEPARTMENT OF
CORRECTIONAL
SERVICES
Respondent
Heard:
14 August 2019
Delivered:
16 August 2019
JUDGMENT
VAN NIEKERK J
[1]
This is an urgent application in which the applicant seeks relief in
terms of the Promotion
of Access to Information Act. In particular,
he seeks documentation relating to a pending arbitration where it
would appear that
he claims severance pay from the respondent.
[2]
The matter has a history – the applicant resigned from the
respondent’s
employ and claimed that he had been constructively
dismissed. That claim was dismissed after an arbitration hearing and
in terms
of an award issued on 2 April 2019. The applicant now
contends that he is owed severance pay, and seeks a list of
grievances made
by him, his employment contracts, and all records and
proceedings ‘portraying to disciplinary proceedings by the
respondent’.
The notice of motion is incomplete – it
refers simply to ‘the required information’. This lack of
specificity
in itself constitutes a basis for the application to be
dismissed. However, I assume the notice of motion to refer to the
documents
previously demanded from the respondent by his erstwhile
attorney.
[3]
In
Sihlali & others v City of
Tshwane Metropolitan Municipality & another
(2017) 38
ILJ
1692 (LC), Moshoana J said the following:
[29] I take this
opportunity to warn practitioners approaching urgent court with such
matters to ensure that such exceptional circumstances
as contemplated
in Booysens case do exist. Otherwise they run the risk of punitive
costs orders being made against their clients.
It is good practice
for practitioners practicing in this court to keep abreast with the
judgments of this court particularly those
arising from the urgent
court. There is a developing trend that points to the fact that the
urgent court is being abused. Might
I state, the urgent court is for
urgent matters. This court should not be detained to use its scarce,
valuable time entertaining
self-created urgent matters. Practitioners
should exercise urgent matters. Practitioners should exercise greater
care when considering
approaching this court on urgency in matters
where substantial redress is obtainable in due course.’
[4]
I endorse these sentiments. They resonate with a number of other
judgments where this
court has warned litigants that the urgent court
is not there to be used to micromanage workplace discipline, or the
conduct of
proceedings in the CCMA or bargaining councils. In the
present instance, what the applicant seeks is an order compelling
discovery
in a pending arbitration hearing. That is not a matter that
ought to occupy a place on the urgent court roll.
[5]
Even if I give the applicant the benefit of the doubt and find that
the application
is urgent, what the applicant’s attorney was
unable to explain is why the applicant did not seek discovery of the
documents
he requires at the level of the bargaining council, the
forum in which the arbitration hearing will be conducted. Section 7
(1)
of PAIA makes clear that the Act does not apply to a record of a
public or private body if the record is requested for the purpose
of
civil proceedings, requested after the commencement of those
proceedings and where the production of or access to the record
is
provided for in any other law. Contrary to what the applicant’s
attorney submitted, there is specific provision in the
rules of the
GPSSBC for the production of documents, and arbitrators are empowered
to order the production of documents. It is
no answer to say, as the
applicant’s attorney then attempted, that the bargaining
council’s rules make no provision
for urgent applications. The
applicant could have directed his request to the bargaining council
as long ago as the date on which
he received the notice of set down
for the arbitration hearing. In short, there is no merit to the
application.
[6]
The court has a broad discretion to make orders for costs according
to the requirements
of the law and fairness. Ordinarily the court is
reluctant to make orders for costs against individual employees,
where they pursue
legitimately felt grieves against their employers.
In this case, however, the applicant is no stranger to the court.
Indeed, he
demonstrates a trend of approaching the urgent court as a
matter of course – the present application is the third in
which
he has done so, having had an urgent application dismissed with
costs as early as recently as February 2019. It is also not
sufficient
to submit, as was submitted on the applicant’s
behalf, that the applicant should be excused since he is a lay
person. In
this matter, he has the benefit of a legal representative.
On every occasion that the applicant files an urgent application in
circumstances where this is not warranted, not only is the court
inconvenienced, but the taxpayer funds the opposition to the
application.
The applicant ought to have learned a lesson in February
2019. His persistence with the strategy of invoking the assistance of
this court, on an urgent basis, in what is not more than an attempt
to compel discovery in an arbitration hearing, cannot go
unsanctioned.
I make the following
order:
1 The
application is dismissed, with costs, such costs to be paid on the
scale as between attorney and client.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Mr. T Faku, T Faku Inc.
For the respondent: Adv.
S Mahlangu, instructed by the state attorney.