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[2019] ZALCJHB 227
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Kolisa and Others v City of Tshwane Metropolitan Municipality and Another (J1814/19) [2019] ZALCJHB 227 (12 September 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J 1814/19
In the matter between:
MTHOBELI
SOLAM KOLISA
First
Applicant
44 OTHER EMPLOYEES OF
THE CITY OF
TSHWANE METROPOLITAN
MUNICIPALITY Second to forty
fourth Applicant
and
THE
CITY OF TSHWANE METROPOLITAN MUNICIPALITY First
Respondent
MUNICIPAL MANAGER OF
THE CITY OF
TSHWANE METROPOLITAN
MUNICIPALITY Second
Respondent
Heard: 3 September
2019
Delivered: 12
September 2019
JUDGMENT
PRINSLOO, J
Background
[1]
The First Respondent’s (the
Municipality) employees can be divided into three tiers, to wit: the
first tier being the City
Manager and the managers directly
accountable to the City Manager (the section 56 managers), the second
tier being the group and
divisional heads (the non-section 56
managers) and the third tier being all other employees up to the
level of director (the other
employees). The total cost to company
packages and increases of the section 56 and non-section 56 managers
are determined by the
Minister for Cooperative Governance and
Traditional Affairs (COGTA) whilst the remuneration and service
conditions of the other
employees are determined by way of
negotiations in the South African Local Government Bargaining Council
(SALGBC).
[2]
The
Municipal Systems Amendment Act
[1]
brought about a change in the categorisation of employees and limited
the operation of section 56 of the Municipal Systems Act
[2]
(MSA) to managers directly accountable to the City Manager. In 2017 a
report was submitted to the council with the purpose of proposing
a
way forward in relation to the positions that were classified as
non-section 56 manager positions. The council took certain pertinent
resolutions in respect of the aforesaid positions.
[3]
On 19 January 2018, the Municipality was
re-classified from a category 9 to a category 10 municipality.
[4]
On 29 March 2018, a report was submitted to
council to seek approval for the implementation of an annual
remuneration increase for
section 56 managers and for non-section 56
managers. The report differentiated between the two categories. The
re-categorisation
of the Municipality was also considered and in that
regard the differentiation was relevant as the section 56 managers
received
a higher remuneration, whilst the non-section 56 managers
did not as they technically fell within the SALGBC provisions.
[5]
The cost to company packages for the
section 56 managers were subsequently adjusted in accordance with the
packages of a category
10 municipality as promulgated annually by the
Minister of COGTA. The section 56 managers received an increase of
18%.
[6]
The remuneration packages of the
non-section 56 employees were increased by 5% with effect from 1 July
2017.
[7]
A disparity arose between the section 56
and non-section 56 managers who were all remunerated on a total cost
to company salary
package and a grievance was lodged as the
non-section 56 managers expected their packages to be adjusted in
accordance with those
of the section 56 managers. As a result, the
Municipality recommended that the non-section 56 managers’
salary packages be
adjusted in line with those of the section 56
managers in a grade 10 municipality. The non-section 56 managers’
salary packages
had been adjusted accordingly for May, June and July
2019.
[8]
On 17 July 2019, SAMWU, on behalf of all
its members in the Municipality filed a grievance with the employer.
The nature of the
grievance was an unfair labour practice in relation
to the inconsistent application of remuneration policy in the
re-grading of
the Municipality from grade 9 to grade 10 in that the
Municipality decided to implement salary increases of 18% for
non-section
56 managers, excluding all other permanent employees.
SAMWU demanded that all permanent employees be treated consistently
with
the implementation of a salary increase of 18% in line with the
re-grading of the Municipality. SAMWU demanded that all salaries
be
graded and evaluated in line with a grade 10 municipality and that a
proper job evaluation be conducted.
[9]
When the aforesaid demand was not met, the
dispute escalated into a full-scale strike by the third-tier
employees who brought the
Municipality to a standstill from 29 July
2019. On 29 July 2019 the Municipality obtained an urgent interim
interdict from this
Court, interdicting and restraining the employees
inter alia,
from
blocking or interfering with the traffic flow in the Pretoria CBD.
[10]
Notwithstanding the fact that an interdict
was obtained, the unprotected strike action continued unabated until
the Municipality
had signed a settlement agreement during the night
of 1 August 2019.
The settlement
agreement
[11]
It is evident from the settlement agreement
that it was signed on 1 August 2019 and that it was entered into
between the Municipality,
and IMATU and SAMWU acting on behalf of
their members.
[12]
The parties to the agreement recorded that
they had agreed that the implementation of the increase for
non-section 56 managers would
be suspended until completion of the
benchmarking exercise, which the parties agreed that a task team,
consisting of representatives
of the Municipality, SAMWU and IMATU,
would conduct within 60 days of the date of the agreement in order to
develop pay scales.
[13]
The Municipality further offered to pay a
once off
ex gratia
equalization
payment to employees, based on their current basic monthly salaries.
The unprotected strike action was to be discontinued
and the parties
committed to restore order and stability within the City of Tshwane.
[14]
The Municipality has effected the
ex
gratia
payments as per the agreement
and the strike action had been called off.
This
application
[15]
The Applicants approached this Court on an
urgent basis for
inter alia,
the
following relief:
‘
1.
To set aside Clause 1 of the settlement agreement concluded by the
Respondents and SAMWU and IMATU on 1 August 2019,
suspending the
implementation of the salary increase for non-section 56 group heads
and divisional heads until completion of the
bench marking exercise,
pending the institution and finalisation of review proceedings of the
Respondents’ decision to suspend
the implementation of the
salary increases of the Applicants;
2.
Directing the Respondents to effect the salary increases of 18%
retrospectively from the 26th August
2019 to the Applicants;
3.
Directing the Applicants to institute review proceedings within (30)
thirty days of this court order
against the Respondents’
decision to suspend the implementation of the salary increase in
favour of the Applicants;’
[16]
The Respondents took issue with urgency. I
have considered the submissions made in support and in opposition of
urgency and I do
not intend to deal with the submissions in any
detail as
I am
inclined to deal with the matter notwithstanding the objections
regarding urgency.
Non-joinder
[17]
The Respondents raised a point
in
limine
regarding the non-joinder of
SAMWU, IMATU and the affected employees.
[18]
Rule 22 of the Rules of this Court provides
for joinder as follows:
‘
(1)
The court may join any number of persons, whether jointly, jointly
and severally, separately, or in the alternative, as parties
in
proceedings, if the right to relief depends on the determination of
substantially the same question of law or facts.
(2)(a)
The court may, of its own motion or on application and on notice
to
every other party, make an order joining any person as a party in the
proceedings if the party to be joined has a substantial
interest in
the subject matter of the proceedings.
(b)
When making
an order in terms of paragraph (a), the court may give such
directions as to the further procedure in the proceedings
as it deems
fit, and may make an order as to costs.’
[19]
It is trite and in accordance with the
provisions of Rule 22 that in order for parties to be joined to
particular proceedings, they
must have a direct and substantial legal
interest in the matter such as to make them necessary parties to the
proceedings. The
Court may join parties where the right to relief
depends on the determination of substantially the same question of
law or facts.
[20]
In casu,
the
Applicants seek an order to set aside clause 1 of the settlement
agreement, pending the institution and finalisation of review
proceedings. The Respondents’ case is that if the Court were to
grant the order, it would effectively suspend the operation
of the
settlement agreement. The settlement agreement was concluded between
the Municipality, and SAMWU and IMATU representing
their members,
therefore they all have a direct and substantial interest in the
outcome of this litigation and should be joined
as parties.
[21]
In answer to the point taken regarding
non-joinder of necessary parties, the Applicant submitted that the
setting aside of clause
1 to the settlement agreement would in no way
suspend the operation of the settlement agreement due to the fact
that clauses 3
– 8 have already been fulfilled and clause 2 has
taken effect in that the task team has met twice already. The setting
aside
of clause 1 will not affect the continuation of the task team.
[22]
The Applicants indicated that upon the
institution of the review proceedings, the parties to the settlement
agreement would be cited.
[23]
There are two critical factors to be
considered here, namely; whether the other parties to the settlement
agreement have
a direct and substantial
legal interest in the matter such as to make them necessary parties
to the proceedings and whether the
determination
of relief depends on substantially the same question of law or facts.
[24]
The Applicants approached this Court for an
order to set aside clause 1 of the settlement agreement concluded on
1 August 2019,
pending the institution and finalisation of review
proceedings to be instituted at a future date. The approach adopted
by the Applicants
in this urgent application is concerning for a
number of reasons.
[25]
Firstly,
the approach is nothing but a piecemeal approach. Litigation in this
Court should not be approached or conducted in a piecemeal
fashion as
it undermines the purpose of the Labour Relations Act
[3]
(LRA) namely the expeditious and effective resolution of labour
disputes. It further not only burdens this Court, with already
limited resources, unnecessarily in that the same matter calls for
judicial attention on more than one occasion, but it also burdens
the
respondent parties unnecessarily in opposing an application based on
virtually the same set of facts more than once. Piecemeal
litigation
in this Court is not encouraged and should be avoided where
possible.
[26]
Secondly, the obvious approach to take was
to file an urgent review application, seeking the review of the
decision that the Applicants
seek to attack as well as the setting
aside of clause 1 of the settlement agreement. Mr Ramarumo appearing
for the Applicants submitted
that this approach was not taken as the
Applicants were of the view that a review application would take too
long and they were
unaware of the possibility that a review
application could be brought on an urgent basis. I find this
explanation surprising in
view of the fact that the Applicants are
legally represented and they should have been advised that a review
application of this
nature could be brought on an urgent basis,
provided that there are grounds to approach the Court on urgent
basis.
[27]
The piecemeal approach adopted by the
Applicants is the main reason behind the non-joinder point
in
limine.
In my view there is merit in
the Respondents’ point
in limine
.
On the Applicants’ own version, the parties to the settlement
agreement, IMATU and SAMWU on behalf of their members, will
be cited
as parties in the review application. Thus, on the Applicants’
own version they are necessary parties in the review.
[28]
In my view the parties to the settlement
agreement have a
direct and substantial
legal interest in the matter such as to make them necessary parties
to the proceedings. Not only are they
parties to the settlement
agreement of which the Applicants seek to set aside a clause, but the
right to relief that the Applicants
claim, will ultimately depend on
the determination of substantially the same question of law or facts.
[29]
The Applicants’ submission that the
setting aside of clause 1 of the settlement agreement will not affect
or suspend the operation
of the entire agreement as the remainder of
the settlement agreement had been fulfilled or had taken effect, is
without merit.
Mr Basson for the Respondents, submitted that clause 1
of the settlement agreement forms the basis of the remainder of the
settlement
agreement and is not severable therefrom and if clause 1
is set aside, it will affect the entire settlement agreement. The 18%
increase paid to the non-section 56 managers was the reason or the
trigger for the strike in the first place and the suspension
of the
implementation thereof, is the main basis of the settlement
agreement. The object of entering into the settlement agreement
was
to discontinue the strike and to restore order and stability within
the Municipality. If clause 1 is set aside, it will affect
the
remainder of the settlement agreement.
[30]
Considering the context within which the
settlement agreement was concluded as well as considering its terms
holistically, I am
not convinced that the setting aside of clause 1
will not affect the operation of the entire settlement agreement.
That being so,
the signatories of the settlement agreement will be
affected by the outcome of this application and they have a
substantial interest
in the subject matter of this application,
therefore they should have been joined as parties to this
application.
Costs
[31]
The last issue to be
decided is the issue of costs.
This
Court has a wide discretion in respect of costs, considering the
requirements of law and fairness.
[32]
In
Zungu
v Premier of Kwa Zulu-Natal and Others
[4]
the
Constitutional Court confirmed the rule that costs follow the result
does not apply in labour matters. The Court should seek
to strike a
fair balance between unduly discouraging parties from approaching the
Labour Court to have their disputes dealt with
and, on the other hand
allowing those parties to bring to this Court cases that should not
have been brought to Court in the first
place.
[33]
Mr Ramarumo submitted
that the Applicants are entitled to a cost order. Mr Basson, on the
other hand submitted that the Respondents
are entitled to a cost
order as there is no merit in this application and notwithstanding
the fact that the Applicants were warned
about the points
in
limine,
they
persisted with this application without joining the necessary
parties. In short, both parties seek an order for costs.
[34]
This
is a case where the Court has to strike a balance, considering the
requirements of law and fairness. The general accepted purpose
of
awarding costs is to indemnify the successful litigant for the
expense he or she has been put through by having been unjustly
compelled to initiate or defend litigation.
In
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and
Others
[5]
.it was emphasized
that:‘…unless there are sound reasons which dictate a
different approach, it is fair that the successful
party be awarded
its costs. The successful party has been compelled to engage in
litigation and incur legal costs. An appropriate
award of costs is
one method of ensuring that much earnest thought and consideration
goes into decisions to litigate in the Labour
Court, whether as
applicant in launching proceedings or as respondent opposing
proceedings.’
[35]
In casu,
the
Applicants failed to join the necessary parties, notwithstanding the
indication that they had to do so. The Respondents had
to defend an
urgent application where the point
in
limine
raised is upheld. F
airness
dictates that the Respondents cannot be expected to endure enormous
costs defending litigation in circumstances where, despite
a warning
given to the Applicants raising non-joinder and such warning being
ignored, caused them to incur costs.
This
is more so where the costs incurred by the Respondents are paid from
taxpayers’ money and I can see no reason why the
taxpayers
should be burdened with the costs in this application.
[36]
In my view this is a case where a cost
order would be appropriate.
[37]
In the premises, I make the following
order:
Order:
1.
The point
in
limine
on non-joinder is upheld;
2.
The matter is postponed
sine
die;
3.
The Applicants are to pay the Respondents’
costs, jointly and severally, the one paying the other to be
absolved.
______________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant:
Advocate K Ramarumo
Instructed
by: Seabela
Attorneys
For the Respondents:
Advocate J L Basson
Instructed
by:
Diale Mogashoa Attorneys
[1]
Act
7 of 2011.
[2]
Act
32 of 2000.
[3]
Act
66 of 1995, as amended.
[4]
(2018)
39 ILJ 523 (CC) at para 24.
[5]
(2012)
33 ILJ 2117 (LC) at para p 2119 I-J.