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[2019] ZALCJHB 278
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Mxakato-Diseko v Director General: Department of International Relations and Cooperation and Another (J1921/19) [2019] ZALCJHB 278; [2020] 2 BLLR 217 (LC); (2020) 41 ILJ 953 (LC) (15 October 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: J 1921/19
In the matter between:
NOZIPHO JOYCE
MXAKATO-DISEKO
Applicant
and
DIRECTOR GENERAL:
DEPARTMENT OF INTERNATIONAL
RELATIONS AND
COOPERATION
First Respondent
DEPARTMENT OF
INTERNATIONAL RELATIONS
AND
COOPERATION
Second
Respondent
Heard: 1 October 2019
Delivered:
15 October 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The facts of this case are peculiar. It is not every day that this
Court
is called upon to determine a dispute which has its genesis in
the refusal of a senior employee to reinstate a junior employee,
following a settlement agreement that resolved a dismissal dispute
between the employer and that junior employee.
[2]
The applicant approached this Court on urgent basis for an interim
interdictory relief, to restrain the respondents from proceeding with
any contemplated disciplinary proceedings pending the finalisation
of
an application (to be instituted within 30 days from the date of the
order) to review and set aside a settlement agreement entered
into
between the Government of the Republic, and an employee who was
dismissed pursuant to a disciplinary process initiated by
her (the
applicant).
[3]
The first and the second respondents opposed the application,
contending
inter alia
that the applicant has failed to satisfy
the requirements for the relief that she seeks, and in particular,
had failed to set out
sufficient averments to justify this matter
being enrolled as one of urgency. Two further preliminary points were
raised,
viz
, the non-joinder of the dismissed employee, and
the prematurity of the application.
Background:
[4]
The applicant takes issue with certain material aspects of the
background
chronology as set out in the respondents’ answering
affidavit, contending that it is at odds with the background she had
set out in the founding affidavit. Notwithstanding, the background as
summarised below is largely common cause;
4.1
The applicant, Ambassador Nosipho Mxakato-Diseko, was appointed by
the President
as the Permanent representative for the Republic of
South Africa (the Republic) to the United Nations and other
International organisations
in Geneva, Switzerland. She is however
officially employed as the Deputy Director General: Global Governance
Directorate by the
second respondent, the Department of International
Relations and Cooperation (DIRCO).
4.2
The first respondent is the Director-General (the DG) and the
administrative
head of DIRCO. He is responsible for the formulation,
coordination, implementation and management of the foreign policies
on behalf
the Government of the Republic.
The
applicant remains accountable to the DG as the Accounting Officer of
DIRCO.
4.3
The controversy in this proceedings emanates from the dismissal of
one Ms Zinhle
Nkosi (Nkosi) from the Permanent Mission in
Switzerland. Nkosi had commenced her employment on 1 June 2016
in the position
of Consular Clerk, Locally Recruited Personnel (LRP)
in the Permanent Mission. Her services were terminated as per a
letter dated
13 August 2018 and signed by the applicant.
The circumstances surrounding the dismissal of Nkosi are not material
to
the determination of this dispute, except to mention that she is a
South African citizen based in Switzerland.
4.4
On 6 September 2018, the Corporate Services Manager in the
Permanent
Mission received an email from Mr Mahlangu, of the DIRCO’s
Labour Relations sub-directorate, enquiring about the circumstances
surrounding the dismissal of Nkosi. On 10 September 2018,
the Manager for Corporate Services intimated that Nkosi was
a South
African citizen and had been employed by the Permanent Mission as a
LRP, and was therefore subject to Swiss law. It was
further indicated
that if Nkosi was aggrieved with her dismissal, the correct process
would have been through the dispute resolution
mechanisms prescribed
by Swiss law.
4.5
On 15 October 2018, Nkosi approached the Commission for
Conciliation
Mediation and Arbitration (CCMA) alleging that she was
unfairly dismissed by the Permanent Mission, and that the dispute
arose
in Geneva, Switzerland. On 31 October 2018, Mr
Motsisi of DIRCO raised an objection in regards to the jurisdiction
of
the CCMA to determine the dispute, as the employment contract
between Nkosi and the Permanent Mission was concluded in Switzerland,
which meant that Swiss law took precedence.
4.6
On 12 February 2019, the CCMA set down the dispute for a
hearing on
28 February 2019. On the hearing date, the
Commissioner seized with the matter raised the issue of a late
referral of
the dispute and indicated that condonation should be
sought.
4.7
On 8 March 2019, the Deputy Director: Global Governance and
Continental
Agenda, (Ambassador M Nkosi), indicated that a
multidisciplinary team had been established and was to travel to the
Permanent Mission
with the purposes of investigating various internal
issues, including the dismissal of Nkosi. This was necessitated
further by
certain of these issues having appeared in the local
public media. The aim of these investigations was to formulate a
report for
the DG, and to be implemented by the applicant.
4.8
Part of the recommendations (which copy the applicant avers she did
not receive),
appears to be that the dismissal of Nkosi was not in
accordance with the prescripts of the Foreign Service Code. In a
letter dated
9 May 2019, the DG advised that a Mr Scholtz
was to provide the applicant with the necessary assistance, in order
for
settlement discussions to be entered into with Nkosi, which would
effectively result in her reinstatement.
4.9
A follow up letter from the DG on 17 May 2019 reiterated
that the
Permanent Mission was specifically instructed to settle the
matter with Nkosi and to reinstate her. The applicant was however
averse
to such settlement discussions and had sought advice from her
own attorneys. She further sought an indulgence from the DG to
formulate
a proper response.
4.10
On 29 May 2019, the DG sent further correspondence to the
applicant, in which he reiterated
the instruction to settle the
dispute with Nkosi, and advised that DIRCO would make a formal offer
of settlement on a ‘
without prejudice’
basis in
terms of which she would be reinstated. The DG further indicated that
once a written deed of settlement was prepared to
record the
agreement with Nkosi, she should be welcomed back to the Permanent
Mission to resume her duties.
4.11
In her response, the applicant
inter alia
indicated that Nkosi
could be reinstated but only if this was done in accordance with
Swiss law with the Swiss Mission which was
responsible for such
matters. On 8 June 2019, the applicant met with the
Director: Labour Relations of DIRCO (Ntombela),
and requested that
Nkosi not be offered a settlement outside of Swiss law, and for
Ntombela to convey her message to the DG. Despite
concerns raised by
the applicant, a settlement agreement was reached with Nkosi on
10 June 2019.
4.12
The applicant takes issue with the settlement agreement and contends
that there is no evidence
to suggest that the parties had agreed to
settle, or that the dispute was settled at the CCMA. She further
contends that even though
she was not a party to the agreement, the
settlement purports to have been entered into between Nkosi and the
Government of the
Republic through the Permanent Mission; that the
agreement purports to settle the dispute that Nkosi referred to the
CCMA, when
in fact there was no live dispute at that forum; that the
agreement despite being entered into in South Africa refers to Swiss
law; and that the agreement was not signed in the presence of any
witnesses.
4.13
On 26 June 2019, the DG formally advised
the
applicant of the existence of the agreement and further advised her
that a delegation was to be sent to Geneva to assist with
its
implementation, which was to take effect from 3 July 2019.
4.14
In a response to the DG on 27 June 2019,
which was copied to the Minister and her special advisor, the
applicant requested
that a delegation not be sent pending an appeal
she had made to the Minister, in which she had requested her to
mandate the suspension
of all activities related to the Nkosi matter.
4.15
Matters came to a head on 2 August 2019
when the applicant lodged a grievance against the DG, in relation to
the dispute
surrounding Nkosi. On 30 August 2019, the DG
sent a letter to the applicant, in which she was given five days to
explain
why DIRCO should not charge her with insubordination.
4.16
On 2 September 2019, the applicant
requested that she be furnished with a copy of the settlement
agreement in order to
enable her to respond fully to the letter of
30 August 2019. A copy was sent to her as per her request.
On 6 September 2019,
she requested an extension to respond
and was granted until 11 September 2019.
4.17
On 11 September 2019, the applicant’s
response was to challenge the settlement agreement as being unlawful
and advised
that she intended to institute legal proceedings to have
it reviewed and set aside.
On
16 September 2019, she instituted these proceedings.
The
submissions and evaluation:
[5]
In support
of her case,
the
applicant contends that she has a
prima
facie
right
to the relief that she seeks, as she had prospects of success in the
application to review and set aside the settlement agreement.
She
further contended that she had a right under the provisions of
section 23(1) of the Constitution of the Republic
[1]
to fair labour practices, which included the right to a fair
disciplinary hearing, which was in turn entrenched in the Code of
Good Practice in Schedule 8 of the LRA.
[6]
She further contended that there was a reasonable
apprehension of harm in that should disciplinary proceedings against
her commence
before she had had an opportunity to test the lawfulness
of the settlement agreement in the review proceedings, her right to
the
relief sought in such proceedings would be rendered nugatory. She
averred that she was currently involved in a defamation action
against a local newspaper flowing from the publication of two
articles in which Nkosi’s dismissal featured, and that should
she be disciplined, it was likely that news of any such process would
be leaked to the media. She further contended that the balance
of
convenience was in her favour, and that in the end, she had no other
satisfactory remedy.
[7]
Obviously
in such cases, the starting point is that of urgency. The
requirements of urgency in this Court as contemplated in Rule
8 of
its Rules are well known
[2]
.
The applicant such as in this case is required to set out explicitly
the circumstances and objective facts which she contends
renders the
matter urgent. She is further required to explain in her founding
affidavit why she cannot get substantial redress
at a hearing in due
course
[3]
.
[8]
The
pertinent question is whether the applicant has set out such
objective grounds demonstrating urgency. In her averments under
‘urgency’, the applicant essentially says nothing as to
the reason this matter should be accorded urgency. All she
did was to
make averments in regards to the timelines in relation to the filing
of her papers and notices of intention to oppose,
which in themselves
do not indicate why the matter is urgent. As it was stated in
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite and
Others
,
[4]
the fact the applicant wants to have the matter resolved urgently
does not render it urgent. The procedures set out in Rule 8 of
the
Rules of this Court are not for the taking. More than a mere desire
to treat a matter as urgent is required.
[9]
It was submitted on behalf of the applicant that even though not much
was said under the topic of urgency, it was for the Court to read the
pleadings as a whole to effectively determine the urgency.
In the
alternative, it was argued that the replying affidavit deals with the
issue of urgency. These submissions lack merit. In
an instance
where under the rubric of ‘urgency’ it is not clear on
what basis the urgency is alleged, it is not
the duty of the
Court to trawl through the entire founding affidavit to establish
where exactly urgency is claimed, and whether
indeed any general
averment points to urgency. Second, it is trite that the applicant
must make out a case in the founding affidavit,
and not in the
replying affidavit or heads of argument. The founding affidavit as
Rule 8 requires, must set out explicitly and
in detail, why the
matter should be accorded urgency. To the extent that no such
specific averments were made in this case, the
invariable conclusion
as submitted on behalf of the respondents, is that the urgency
claimed was not established, and/or at worst,
is self-created.
[10]
If ever there is any doubt about the nature of the self-created
urgency in this matter,
it is indeed dispelled by its own facts. The
reinstatement of Nkosi was to take effect from 3 July 2019.
Notwithstanding
the applicant’s outright and unambiguous
resistance to Nkosi’s reinstatement, as at the hearing of this
matter, no
application to review and set aside that agreement had
been launched.
[11]
As things stand, the applicant is not suspended nor has any formal
charges been proffered
against her. Despite having furnished a
response and reasons why her conduct should not be deemed to be
insubordinate, as at the
hearing of this matter, the DG had not
indicated to her that she will or would not be charged with
insubordination. There is therefore
merit in the contention that the
application is premature.
[12]
The applicant has in approaching this Court on an urgent basis,
effectively second-guessed
and/or pre-empted the decision of the DG,
when clearly there is no basis for it. It is not for the Court to
grant urgent relief
solely based on what or might not happen in the
future, as central to the relief sought is the basis upon which a
right sought
to be protected (even in the future) is predicated.
Worst still, even if the Court were to grant pre-emptive interdict,
no compelling
case has been made out to demonstrate that the
applicant is entitled to any pre-emptive protection against any
disciplinary processes
that may be instituted against her.
[13]
It
nonetheless gets worse for the applicant insofar as her
prima
facie
right to the relief that she seeks is grounded in section 23(1) of
the Constitution. It has long been stated that it is impermissible
for applicants to rely on a constitutional right in circumstances
where the general scheme of the LRA equally protects that right.
Thus
the LRA is the primary source in matters concerning allegations by
employees of unfair dismissal and unfair labour practice
irrespective
of who the employer is, including the State and its organs
[5]
.
To this end, any contention by the applicant that she has no
alternative remedy insofar as any disciplinary process may ensue,
is
without merit, as the dispute resolution mechanisms of the LRA remain
at her disposal.
[14]
To the extent that the applicant had based her right on her prospects
of success in reviewing
and setting aside the settlement agreement
concluded with Nkosi, it does not serve the purposes of the
determination of this dispute
to answer the question whether she as
an employee, has a right to bring that application, and if so,
whether such an application
will succeed. These are questions to be
answered on another day when that application is eventually launched.
To this end, it is
not even necessary to determine the preliminary
point related to the non-joinder of Nkosi in these proceedings. Be
that as it may,
to the extent that the relief sought in this case is
intrinsically linked to her main concerns about her rights to fair
labour
practices, that question has been answered.
[15]
Insofar as any apprehension of harm is claimed, it can be accepted
that the instruction
to reinstate Nkosi was issued on numerous times
including formally on 23, 27 and 30 August 2019, with the
latter correspondence
indicating that the failure to carry the
instruction was viewed in serious light. As is apparent from her
averments in her pleadings,
the applicant is clearly not willing to
reinstate Nkosi. As to how the dismissal of Nkosi came to the
attention of the media is
not for the Court to speculate, and I fail
to appreciate how the applicant’s legal squabbles with the
media has anything
to do with this Court or the relief that she
seeks. To the extent however that there were media leaks already
about the dismissal
of Nkosi, that is a matter that remains in the
public domain which cannot be undone by any relief she seeks with
this application.
Furthermore, to the extent that she is a high
profile public figure, any news that may reach the public media
surrounding any disciplinary
action that may or may not be taken
against her is a matter which this Court cannot prevent through an
interim order which has
no foundation.
[16]
The balance of convenience cannot be assessed in a vacuum. The common
cause facts however
as already indicated are that currently, the
applicant does not face any discipline nor has the DG indicated
categorically that
any such disciplinary measures are to take place.
If it turn out otherwise, disciplinary proceedings are within the
rights and
discretion of an employer, which this court is loath to
interfere with. Like any other employee, the applicant,
notwithstanding
her position and status, is not immune to the
discipline of the employer, and clearly the balance of convenience
cannot be tilted
in her favour in circumstances where the relief that
she seeks, would impact on the employer’s rights and
discretion.
[17]
In summary, the applicant has not demonstrated why her application
deserves the urgent
attention of this Court, and why she cannot
obtain substantial relief in due course. She has available
alternative remedies to
the extent that the DG may decide to
institute disciplinary proceedings against her. Furthermore, nothing
precludes her from proceedings
with her application to review and set
aside the settlement agreement if she desires to do so, and to defend
her actions in any
disciplinary enquiry that may be instituted
against her. In the end however, she has not established the basis of
a
prima facie
right she relies on, and clearly the balance of
convenience favours that the relief she seeks not be granted.
[18]
I have further had regard to the requirements of law and fairness
insofar as an award of
costs is sought by the respondents. This
application was clearly ill-considered and precipitous, and I see no
reason why the respondents
should be burdened with its costs.
Accordingly, the following order is made;
Order:
1. The Applicant’s
application is dismissed with costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: J
Burger with N Njongane (Pupil), Instructed by Motsoeneng Bill
Attorneys
For
the Respondents: M
Rantho, Instructed by State Attorney: Pretoria
[1]
The Constitution of the Republic of South Africa, 1996 (Act 108 of
1996)
[2]
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.
[3]
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.
[4]
Ibid
[5]
See
Chirwa
v Transnet Limited and Others
[2007] ZACC 23
;
2008 (4) SA 367
(CC);
2008 (3) BCLR 251
(CC);
[2008] 2 BLLR 97
(CC);
(2008) 29 ILJ 73 (CC) at para [124], where it was held;
“
Where,
as here, an employee alleges non-compliance with provisions of the
LRA, the employee must seek the remedy in the LRA.
The
employee cannot, as the applicant seeks to do, avoid the dispute
resolution mechanisms provided for in the LRA by alleging
a
violation of a constitutional right in the Bill of Rights. It
could not have been the intention of the legislature to
allow an
employee to raise what is essentially a labour dispute under the LRA
as a constitutional issue under the provisions
of section 157(2).
To hold otherwise would frustrate the primary objects of the LRA and
permit an astute litigant to bypass
the dispute resolution
provisions of the LRA. This would inevitably give rise to
forum shopping simply because it is convenient
to do so or as the
applicant alleges, convenient in this case “for practical
considerations”. What is in essence
a labour dispute as
envisaged in the LRA should not be labelled a violation of a
constitutional right in the Bill of Rights simply
because the issues
raised could also support a conclusion that the conduct of the
employer amounts to a violation of a right
entrenched in the
Constitution.”