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[2019] ZALCJHB 280
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Letlonkane v City of Tshwane Metropolitan Municipality and Another (J1940/19) [2019] ZALCJHB 280 (15 October 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no:J1940/19
In the matter between:
PHEKO IGNATIUS
LETLONKANE Applicant
and
CITY OF TSHWANE
METROPOLITAIN MUNICIPALITY First
Respondent
MOOKETSI
NTSIMANE Second
Respondent
Date
heard: 25 September 2019
Delivered:
15 October 2019
JUDGMENT
RABKIN-NAICKER,
J
[1]
The applicant sought the following relief on an urgent basis:
“
2.
An order declaring that the
further extension of Applicant’s suspension on 13 September
is
unlawful;
3.
An order compelling the
First and Second Respondents to allow Applicant to return
to work and
to continue with his duties, responsibilities and functions as Group
Head: Roads and Transport;”
4.
In the alternative to the
relief in paragraphs 2 and 3 above, an order that Respondent’s
suspension be uplifted and the Applicant be allowed to return to work
and work as Group Head: Roads and Transport pending the outcome
of
the dispute that the Applicant referred to the South African Local
Government Bargaining Council.”
[2]
On the 4 July 2019 the applicant had filed an urgent application
under J1516/19 which
sought: “
A
final order declaring the ongoing precautionary suspension of the
Applicant to be unlawful and that he be permitted to return
to work.”
That application dealt with a series of extensions of Applicant’s
suspension. He was originally suspended on 22 November
2018. As the
applicant avers in this application, the respondents opposed his
application on the basis that it was not urgent and
it was struck off
the roll “
for that reason
”.
[3]
Having been struck off the urgent roll, for want of urgency, the
applicant was at
liberty to enroll same in the normal course on its
merits. However, what the applicant has done in this case is to bring
a new
urgent application and submits that because the suspension of
the applicant has been extended once more, i.e. on September 13 2019,
a new cause of action has arisen.
[4]
The applicant relies on the judgment of Whitcher J in the unreported
judgment of
Nontobeko
Memela v The City of Tshwane Metropolitan Municipality and
Another
[1]
.
In that matter the Municipality argued that the matter was
res
judicata
because the applicant launched an urgent application on 12 March 2019
asking the court to order her suspension was unlawful and
that she be
permitted to return to work, which application was dismissed on 14
March 2019
[2]
.
[5]
The Court dealt with the above submission as follows
“
The
first objection falls to be dismissed. The cause of action in the
first matter related to the lawfulness of the respondents’
decision of 28 February 2019 to extend the applicant’s initial
3-month suspension for a further 3 months, which took it 6
months.
One of the reasons the Court dismissed her application is because in
its view “the intention [of the collective agreement]
is that
any period of suspension may not exceed 6 months, being the two
periods of three months each”. The dispute in the
present
matter concerns the alleged unlawfulness of a different act
altogether, the municipality’s refusal to uplift the
suspension
on the lapse of the 6-month period.”
[6]
This matter stands to be distinguished. In the matter under case
number J1516/19,
which was struck off the roll for want of urgency,
the applicant averred, under the heading “
Prima
Facie or Clear Right
”,
inter
alia
that:
“
6.3
The continued suspension is unlawful and I respectively submit that
in terms of the Collective agreement
any period of suspension may not
exceed 6 months.
6.4
I respectively submit that the unlawfulness relates to the First
Respondent’s refusal
to uplift my suspension on the lapse of
the 6 month period.”
[7]
In the application before me the applicant avers
inter
alia
as follows, under the same heading
“
Prima Facie or Clear Right
”:
“
6.3
The continued suspension is unlawful and I
respectfully submit that in terms of the collective agreement
any
period of suspension may not exceed 6 months.
6.4
I respectfully submit that the
unlawfulness relates to the First Respondent’s refusal to
uplift my suspension on the lapse of the 6 months period. My further
suspension on 16 September 2019 is unlawful.”
[8]
This matter stands to be dismissed on the principle of
lis
alibi pendens
.
As the Court in
Keyter
NO v van der Meulen and Another NNO
[3]
summarized the principle thus:
“
[10]
The defence of lis alibi pendens arises when four
requirements are met. They are that: (a) there is litigation
pending
(b) between the same parties (c) based on the same cause of action
and (d) in respect of the same subject-matter. Lis alibi
pendens does
not, if successfully invoked, put an end to the plaintiff's or
applicant's case. Rather, it allows for the staying
of the later
matter pending the final determination of the earlier matter. Once
the earlier proceedings have been finalised, however,
the later
proceedings will be struck by, and terminated by, the defence of res
judicata.”
[9]
There is no merit in the applicant’s submission that a new
cause of action has
arisen because a further extension of the
suspension has been made as set out above. The urgent court is
burdened enough
without hearing an “
urgent
application
” that has already
been struck off the urgent roll. I express the Court’s
displeasure at these tactics.
[10]
The matter was not opposed. As I stated in Court I was satisfied with
the applicant’s attorneys
assurance that the matter had been
properly served after I raised my concern with him.
[11]
In all the premises I make the following order:
Order
1.
The
application is dismissed.
_________________
H. Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: G.J. Geldenhuys of Geldehuys @ Law
Inc.
[1]
Case
number: J1429/19 heard on 18 June 2019, delivered 20 June 2019.
[2]
Ibid
at para 3.
[3]
2014
(5) SA 215
(ECG).