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[2019] ZALCJHB 225
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Maake v South African Airways Technical (SOC) Ltd (J1764/19) [2019] ZALCJHB 225 (28 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA
(held
at JOHANNESBURG)
case
No: J1764/19
Not
reportable
In the matter between:
NTHABISENG
MAAKE
Applicant
and
South
african Airways TECHNICAL (SOC) LTD
Respondent
Heard
: 27
August 2019
Delivered
: 28
August 2019
Summary:
(urgent application – to interdict shortlisting and interviews
for a post applicant claims to be
appointed to – application
dismissed)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is an urgent application to interdict the respondent (SAA
Technical) from shortlisting
or conducting interviews for the
position of Senior Aviation Instructor advertised on 13 August 2019,
with a closing date for submitting
applications being 16 August 2019.
The application is for interim relief pending the outcome of a
substantive application to compel
SAA Technical to appoint the
applicant to the position of senior aviation instructor with effect
from 1 June 2018, which will be
launched within 20 days of an interim
order being granted.
[2]
The applicant claims that she has already been appointed to the post
which has been advertised
and that if the recruitment process set in
motion by the advertisement mentioned is allowed to run to conclusion
it could result
in the appointment of another person in the same post
she occupies, which would “complicate” her own efforts to
compel
the respondent (SAA Technical) to recognize her permanent
appointment in the position.
Urgency
[3]
Although it is true that the applicant has in the past asserted her
claim to be recognized
as permanently appointed to the position in
question, it is the threat posed by the possibility of a reasonably
imminent appointment
of someone else to the post that has caused her
to launch this application. The application was launched within seven
days of her
becoming aware of the advertisement. In the circumstances
I believed that she has acted with the necessary expedition and the
application
can be entertained on an urgent basis.
Has the applicant met the
requirements for interim relief?
[4]
It is trite law that an applicant for interim relief must establish:
(a) a
prima facie
right, even though open to some doubt; (b) a
well-grounded apprehension of irreparable harm if the interim
interdict is not granted;
(c) no other satisfactory remedy and (d)
the balance of convenience favours the granting of interim relief.
[5]
It is
important to stress that the right which the applicant asserts is
essentially her right to be recognized as the lawfully appointed
permanent occupant of the post in question. In order to establish a
prima
facie
right to the position, she needs to demonstrate a reasonable prospect
of success in the application for a declaratory that she
intends to
launch.
[1]
[6]
Her claim to this position as set out in the founding affidavit rests
on a document at page
25 of the founding papers headed “”SAAT
Acting Instructor/Examiner/Assessor letter of authority and DOA”
in which
it is stated that the applicant is “employed by South
African Airways Technical at OR Tambo International Airport as a
Senior
Aeronautical Instructor”, who meets certain standards
and requirements and who is authorized with effect from 1 June 2008
to provide tuition on certain itemized courses.
[7]
In her replying affidavit, the applicant suggests that when her
application for a declarator
is heard she may place reliance on other
indicators of her permanent employment. In this regard she alludes to
clause 5.2.4 of
the SAA Technical Acting Policy Guidelines. Reading
this together with paragraphs 6.1 and 6.4 of the conditions of
employment relating
to Probation and Appointment to Permanent
Employment, she finds support for her claim to be permanently
employed after acting in
the post for six months. Strictly speaking,
to consider this as part of the merits of her claim in this
application this point
ought to have been made in her founding
affidavit.
[8]
The respondent points out that the document at page 25 of the
founding papers on which she
relies does not imply that the applicant
was appointed in terms of that letter in anything other than an
acting capacity. Insofar
as reliance might be placed on the acting
policy guidelines and conditions of service relating to probation,
even though clause
6.4 relating to probationers deems an appointment
to be automatically made one week after a six month probation period
has passed
without the employee receiving a written confirmation of
appointment, the respondent refers to clause 6.1 which makes it clear
that probation applies to newly hired or newly promoted employees,
which is not the same as a person appointed in an acting
position, even though paragraph 5.2.4 of the Acting Policy Guideline
provides that management should ensure nobody acts in a position
for
longer than six months.
[9]
I am not persuaded on the basis of arguments in favour of the
applicant’s permanent
employment above that she has a
reasonable prospect of success in an application for final
declaratory relief.
[10]
Secondly, if, as she claims, she is indeed the holder of the position
of Senior Aeronautical Training Officer
provided she makes it plain
that she reserves her right to assert her entitlement to the post and
that the respondent takes steps
to appoint someone else at its peril,
nothing prevents her from asserting that right in the face of an
attempt to replace her.
To put it differently, her entitlement to the
post is based on alleged facts which are quite independent of the
outcome of a subsequent
recruitment process. The applicant implicitly
recognizes this by noting that an appointment made subsequent to
completing the recruitment
process would merely be a complication in
the pursuit of her own claim.
[11]
Consequently, I am not persuaded that she would suffer irreparable
harm or that she would be denied the opportunity
to obtain
declaratory relief.
[12]
For the above mentioned reasons, I am satisfied the applicant has
failed to make out a case for interim relief.
Order
[1]
The matter is dealt with as one of urgency and non-compliance with
the rules of service
and time periods in the labour court rules is
condoned.
[2]
The application is dismissed.
[3]
No order is made as to costs.
_______________________
R
G Lagrange
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
B
Ford instructed by Maraga Attorneys Inc.
RESPONDENT:
S
July of Werksmans Attorneys
[1]
See
J
ohannesburg
Municipal Pension Fund and Others v City Of Johannesburg and Others
2005
(6) SA 273
(W)
at
280
at paragraph [8].