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[2019] ZALCJHB 266
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South African Municipal Workers Union (SAMWU) and Another v Ekurhuleni Metropolitan Municipality and Another (J1827/19) [2019] ZALCJHB 266 (5 September 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO: J1827/19
In the matter between:
SOUTH AFRICAN MUNICIPAL WORKERS
UNION (SAMWU)
First
Applicant
DOMINION T
PHALA
Second
Applicant
and
EKURHULENI METROPOLITAN
MUNICIPALITY
First Respondent
MBULELI
KOLISI N.O
Second Respondent
Heard:
3 September 2019
Judgment
delivered: 5 September 2019
JUDGMENT
VAN NIEKERK J
[1]
This is an application, brought on an urgent basis, to interdict a
disciplinary hearing
pending the outcome of an application to review
and set aside rulings made by the second respondent, who is the
chairperson of
the hearing. On 8 August 2019, the second respondent
dismissed an objection to his appointment; on 13 August 2019 he
issued a ruling
to the effect that it would be unreasonable not to
allow the first respondent legal representation at the hearing.
[2]
I accept that the application is urgent. The applicants seek an
interim order, and
are required to establish a clear or
prima
facie
right, a well-grounded apprehension of irreparable harm if
interim relief is not granted, the absence of a satisfactory
alternative
remedy, and that the balance of convenience is in their
favour.
[3]
I do not intend for present purposes to canvass in any detail the
merits of the review
application, save to observe that the
application is brought in terms of s 158 (1) (h), and cast as what
the applicants’
representative referred to as a legality
review. In essence, the applicants’ case is that the
chairperson’s appointment
constituted a breach of a collective
agreement regulating workplace disciplinary procedures, as did his
ruling that the first respondent
was entitled to legal
representation. I fail to appreciate on what basis it can be
said that the chairperson’s rulings
constituted the exercise of
a public power. The disciplinary hearing was convened to enquire into
acts of alleged misconduct by
an individual employee, in terms of a
collective agreement that bound the first applicant and the first
respondent, in their capacities
as employee and employer
respectively. The second respondent, in the present context, does
not, it seems to me, exercise a public
function that is subject to
the principle of legality. In any event, as a general rule, this
court does not intervene in uncompleted
disciplinary proceedings. It
will do so only in exceptional circumstances, to remedy a manifest
injustice. There is no basis to
treat the present application as
exceptional, and a refusal to intervene in the disciplinary hearing
will not cause any grave injustice.
The second applicant is being
afforded the right to respond to the allegations made against him –
that is the substance of
the right to a fair procedure established by
the LRA. If the applicant is aggrieved at the manner in which the
enquiry is being
conducted, he has the right in due course to contest
the fairness of the procedure. For these reasons, I am not satisfied
that
the applicants have established a
prima facie
right to
the relief that they seek.
[4]
In so far as the balance of convenience is concerned, I have no doubt
that this lies
in favour of the respondents. The second applicant
appears intent on challenging every aspect of his disciplinary
hearing. The
first sitting of the disciplinary hearing took place on
30 May 2019. Some three and a half months later, little if any
progress
has been made. This is not what the Code of Practice:
Dismissal envisages. The review application was filed a week before
the present
application. It is common knowledge that the back log in
the opposed motion court is such that it is not likely that the
review
application will be finalised within the next 18 months. In
the interim, the first respondent would be obliged to continue
employing
the second applicant for that period, at the ratepayer’s
expense. In my view, the balance of convenience requires that the
matter be brought to finality as soon as possible. As I have
mentioned, the applicants have available to them the remedy of a
right to procedural fairness should they wish in due course to
contest any decision by the second respondent to impose any
disciplinary
sanction. In short: the applicants have failed to
establish a right to the interim relief sought.
[5]
Finally, in relation to costs, the court has a broad discretion to
make orders for
costs according to the requirements of the law and
fairness. The respondents have succeeded in their opposition to
the application,
a significant factor to be taken into account.
Although the first applicant and the first respondent are parties to
a collective
bargaining relationship, there is no indication that an
order for costs will prejudice that relationship. Further, it appears
to
me that the conduct of the applicants has been directed at
frustrating the disciplinary proceedings underway, and avoiding an
expeditious
and informal determination of the substance of the
allegations made against the second applicant. In my view, the
interests of
the law and fairness are best satisfied by an order that
costs should follow the result.
I make the following order:
1.
The application is dismissed, with costs.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Ms.G Phakedi, Phakedi Attorneys
For the respondent: Adv. A Cook,
instructed by Tshiqi Zebedela Inc.