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[2019] ZALCJHB 267
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Potgieter v Modikwa Platinum Mine and Others (J1892/2019) [2019] ZALCJHB 267 (8 October 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: J 1892/2019
In the matter between:
DIRK WILLEM
POTGIETER
Applicant
and
MODIKWA PLATINUM
MINE
First
Respondent
MR C GRIFFITHS (CEO OF
ANGLO AMERICAN
PLATINUM)
Second
Respondent
MR M SCHMIDT (CEO OF
AFRICAN RAINBOW
MINERALS)
Third Respondent
Heard:
3 October 2019
Delivered:
8 October 2019
JUDGMENT
TLHOTLHALEMAJE,
J
[1]
The applicant approached the Court on an urgent basis to seek an
order
interdicting the respondents from proceeding with any
disciplinary action against him. In the alternative, he seeks an
order that
the disciplinary proceedings against him be conducted
under the provisions of section 188(A) of the Labour Relations Act
(LRA).
[2]
This urgent application, which the first respondent (Modikwa)
opposed,
is brought before this Court against the following
background;
2.1
The applicant is currently in the employ of Modikwa. He complains
about four
different disciplinary proceedings related to allegations
of misconduct instituted against him since April 2017. It is
common
cause that Modikwa withdrew three charges of misconduct
against the applicant.
2.2
The fourth and most recent disciplinary proceedings against the
applicant which
triggered this application were instituted in
September 2019. As with the previous disciplinary proceedings
instituted against
him, the applicant had sought that these be
conducted in accordance with the provisions of section 188(A) of the
LRA, which request
was declined by Modikwa.
2.3
The applicant as apparent from his founding affidavit, holds the view
that
the charges against him are either unwarranted,
unjustified, or that the issues leading to those charges could have
been amicably
resolved, or that at best, that they can be properly
dealt with under a section 188(A) of the LRA process. He further
holds the
view that he would not receive a fair internal disciplinary
hearing.
[3]
Modikwa in opposing the application raised two preliminary points
which
are dispositive of this matter. The first is that the second
and third respondents ought not to have been joined in these
proceedings
as there is no employment relationship between them and
the applicant. In this regard, it was submitted that the Court lacks
the
requisite jurisdiction to grant any relief that the applicant
seeks against either the second or third respondent.
[4]
It needs to be stated from the onset that it is not apparent from the
founding affidavit as to the reason the second and third respondents
were cited in these proceedings. In his replying affidavit,
the
applicant’s response to this preliminary point is that Modikwa
had in any event ‘joined the second and third respondents
as
‘Respondents’’ and that Modikwa had also conceded
that the Modikwa is a joint venture between the second and
third
respondents.
[5]
It is appreciated that the applicant in this case not only appeared
in
person but had also drafted his own pleadings. However, to the
extent that this is the path that the applicant chose, when in an
answering affidavit a preliminary point is raised, that point ought
to be sufficiently dealt with, to indicate why it should not
be
upheld. The applicant woefully failed to do so. There is nothing to
indicate in the papers, what direct and substantial interest
in the
outcome of this litigation do the second and third respondents have.
To the extent that it was not disputed that there
is no employment
relationship between the applicant and the second and third
respondents, and further to the extent that it was
not demonstrated
as to what material interest to the outcome of these proceedings the
second and third respondents had, it follows
that there was a
material misjoinder.
[6]
The second preliminary point is even more profound. The applicant
seeks
that his disciplinary proceedings be conducted in terms of
section 188(A) of the LRA on account of the special circumstances of
his case, and further on the basis that this Court can ‘make
any order that it deems appropriate’. The provisions of
section
188(A) of the LRA are clear and requires that a request for such
proceedings be made by the employer with either the CCMA
or relevant
bargaining council; or when a provision is made in the employee’s
contract of employment or a Collective Agreement;
or where the
employee has alleged in good faith that the holding of the
disciplinary enquiry contravened the Protected Disclosures
Act.
[7]
In this case, and as was correctly pointed out on behalf of Modikwa,
the
applicant cannot seek the alternative relief as he has no right
to the enquiry being conducted under the provisions of section 188A
of the LRA. The fact that he had made a request for such an enquiry
does not entitle him to it, as the requirements as set out
above
ought to be met. As it was further submitted on behalf of Modikwa, it
would be untenable for this Court to grant such relief
especially in
circumstances where the applicant seeks an enquiry in terms of
section 188A of the LRA, simply because he does not
trust that he
will get a fair hearing at the internal disciplinary enquiry. The
fact that an employee has no confidence in the
objectivity of an
internal disciplinary enquiry is not a basis for seeking a section
188A of the LRA process.
[8]
Notwithstanding
the fact that the applicant has not established any right to the
section 188A of the LRA enquiry, central
to these types of
applications is that the applicant must satisfy the requirements of
urgency as contemplated in Rule 8 of its
Rules.
[1]
The applicant is thus required to set explicitly the circumstances
and objective facts which he contend renders the matter urgent.
He is
further required to explain in the founding affidavit why he cannot
get substantial redress at a hearing in due course.
[2]
[9]
In this case, no basis was laid out in the founding papers as to the
reason
the matter should be treated as urgent, and why the rules of
this Court should be abridged. The founding affidavit is silent on
this issue and no explanation was proffered whatsoever as to the
reason the Court was only approached on 2 October 2019,
when the charges leading to the disciplinary enquiry arose on
16 September 2019, and when the enquiry was scheduled to
take place on 19 September 2019, or at most, when the
internal enquiry had commenced. Clearly any urgency claimed in
this
case is self-created.
[10]
It is
further trite that this Court does not as a rule, intervene in
on-going internal disciplinary proceedings unless there are
exceptional circumstances that require its urgent intervention, such
as that a grave injustice would occur.
[3]
In
Jiba
v Minister: Department of Justice and Constitutional Development and
others
[4]
this
Court pertinently held that:
‘
Although
the court has jurisdiction to entertain an application to intervene
in uncompleted disciplinary proceedings, it ought not
to do so unless
the circumstances are truly exceptional. Urgent applications to
review and set aside preliminary rulings made during
the course of a
disciplinary enquiry or to challenge the validity of the institution
of the proceedings ought to be discouraged.
These are matters best
dealt with in arbitration proceedings consequent on any allegation of
unfair dismissal, and if necessary,
by this court in review
proceedings under s 145.’
[11]
In this case, the fact that the applicant holds the view that he
might not get a fair hearing
for reasons that do not appear to be
clear, can surely not amount to compelling or exceptional
circumstances that justified the
urgent intervention of this court.
Any harm or injustice arising out of the completion of the
disciplinary enquiry cannot be regarded
as grave in the light of
substantial redress to be obtained at some point if the outcome of
the internal disciplinary enquiry is
unfavourable to the applicant.
[12]
In a nutshell, the applicant has not satisfied the requirements of
urgency, nor has he
demonstrated that he has met the requirements of
the final relief he seeks. In the end, there is no basis for this
Court to intervene
with the internal disciplinary proceedings against
the applicant.
[13]
This then
bring me to the issue of costs. In accordance with the provisions of
section 162 of the LRA, this Court may make an award
of costs upon a
consideration of the requirements of law and fairness. In deciding
whether to order payment of costs, the court
may take into account,
among others, the conduct of the parties in proceeding with the
matter before the court and during the proceedings.
[5]
In my view, this application ought never have seen its way through
this Court’s urgent roll. It was ill-considered and had
no
merit from the beginning. Inasmuch as the applicant may have felt
aggrieved by the manner with which the internal disciplinary
proceedings were dealt with or are unfolding, that in itself was not
sufficient for either the Court or the respondents to be burdened
with this application. Upon receipt of the answering affidavit, the
applicant ought to have reflected on his stance and the folly
of
pursuing this matter. He failed to do so, and I see no reason in law
or fairness, why he should not be burdened with the costs
of this
application.
[14]
Accordingly, the following order is made;
Order:
1. The
Applicants’ application is dismissed with costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
In
Person
For
the Respondent:
Adv. M Van As, instructed by Cliffe Dekker Hofmeyr INC
[1]
8
Urgent relief
(1)
A party that applies for urgent relief must file an application
that
complies with the requirements of rules 7(1), 7(2), 7(3) and, if
applicable, 7(7).
(2)
The affidavit in support of the
application must also contain-
(a)
the reasons for urgency and why urgent relief is necessary;
(b)
the reasons why the requirements of the rules were not complied
with, if that is the case; and
(c)
if a party brings an application in a shorter period than that
provided for in terms of section 68(2) of
the Act, the party must
provide reasons why a shorter period of notice should be permitted.
[2]
See
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd and Others
[2012] JOL 28244
(GSJ) (11/33767); [2011] ZAGPJHC 196 (23 September
2011) at para 6.
[3]
See
Booysen
v Minister of Safety and Security and Others
[2011] 1 BLLR 83
(LAC), (2011) 32 ILJ 112 (LAC) at para 36;
Trustees
for the time being of the National Bioinformatics Network Trust v
Jacobson and others
[2009] 8 BLLR 833
(LC) [2009] at para 3;
Ngobeni
v Passenger Rail Agency of SA Corporate Real Estate Solutions and
others
(2016) 37 ILJ 1704 (LC)
[4]
[2005] ZALC 15
;
[2009] 10 BLLR 989
(LC), (2010) 31 ILJ 112 (LC) at para 17.
[5]
Vermaak
v MEC for Local Government and Traditional Affairs, North West
Province and Others
(JA15/2014)
[2017] ZALAC 2
(10 January 2017) at para where it was
held that;
‘
[10]
The awarding of costs in the Labour Court is governed by s 162 of
the Labour Relations
Act 66 of 1995 (LRA) which provides that in
making orders for payment of costs, the Court has to have regard to
the requirements
of law and fairness. In deciding whether to order
payment of costs, the court may take into account, among others, the
conduct
of the parties in proceeding with the matter before the
court and during the proceedings. In
Moloi
v Euijen,
it was observed that the
framework of s 162 supports the proposition that when making orders
of costs the requirements of law
and fairness are paramount. The
requirements of law and fairness are on equal footing, and none is
secondary to the other. See
in this regard
Callguard
Security Services v T&GWU
and
Xaba
v Portnet Ltd
.
[11]
The rule of practice that costs follow the result does not govern
the making
of costs orders in the Labour Court and such orders are
made in accordance with the requirements of law and fairness. See in
this regard
MEC for Finance (KZN)
and Another v Dorkin NO and Another
where
Zondo JP explained the rationale for that approach:
‘
[T]he
norm ought to be that costs orders are not made unless those
requirements (of law and fairness) are met. In making decisions
on
costs orders this court should strive to strike a fair balance
between, on the one hand, not unduly discouraging workers,
employers, unions and employer organisations from approaching the
Labour Court and this court to have their disputes dealt with,
on
the other, allowing those parties to bring to the Labour Court and
this court frivolous cases that should not be brought to
court. This
is a balance that is not always easy to strike, but if the court is
to err, it should err on the side of not discouraging
parties to
approach these courts with their disputes…’ (Citations
omitted)