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[2019] ZALCJHB 359
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South African Municipal Workers' Union and Others v Rand West City Local Municipality and Another (J2310/19) [2019] ZALCJHB 359 (5 December 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no: J 2310 / 19
In
the matter between:
SOUTH
AFRICAN MUNICIPAL WORKERS’ UNION
First Applicant
EMPLOYEES
OF THE RESPONDENT WHO
ARE
MEMBERS OF THE APPLICANT
Second to Further Applicants
and
RAND
WEST CITY LOCAL
MUNICIPALITY
First Respondent
THEMBA
GOBA
Second Respondent
Heard
:
27 November 2019
Delivered
:
5 December 2019
Summary
:
Urgent application
–
requirements for urgency – principles set out
Urgency
– applicant must make out case for urgency – urgency
self-created – no explanation for material delay
–
application struck from the roll
Urgency
– pay deduction – no basis for urgency – claim for
payment can be brought in the normal course
REASONS
SNYMAN, AJ
Introduction
[1]
The
applicants have brought an urgent application in terms of which the
applicants sought relief to the effect that the respondents
be
interdicted and prevented from making deductions from the
remuneration of the second to further applicants in contravention
of
the provisions of section 34 of the Basic Conditions of Employment
Act (‘BCEA’).
[1]
The
applicants also seek an order declaring that the deductions already
made from the remuneration of the second to further applicants
in
October 2019 be declared to be unlawful, and that it be ‘reversed’.
[2]
The matter was opposed by the respondent,
principally on the basis of a lack of urgency, and a contention that
the applicants are
able to obtain full redress in proceedings brought
in the normal course.
[3]
The application came before me for hearing
on 27 November 2019 in the urgent Court. After hearing argument by
both parties, I made
the following order:
1. The
application is struck from the roll for the want of urgency.
2.
There is no order as to costs.
3.
Written reason for this order will be handed down on 5 December 2019.
[4]
This judgment now constitutes the written
reasons referred in paragraph 3 of the order,
supra
.
For ease of reference, in this judgment, I will refer to the first
applicant as ‘SAMWU’, the second to further applicants
as
‘the individual applicants’ and the first and second
respondents jointly as ‘the Municipality’.
The
relevant background
[5]
The relevant background facts are fortunately relatively
straight forward.
[6]
It appears that a dispute arose in August 2019 as a result of
the categorization of the Municipality following a merger of two
municipalities,
being the former Westonaria and Randfontein local
municipalities. This merger resulted in the Municipality being
classified as
a grade 6 municipality, and this would result in salary
adjustments having to be made to the salaries of the individual
applicants.
[7]
This possibility of salary adjustments raised the ire of the
individual applicants. They gate crashed an executive committee
meeting
of the Municipality on 19 August 2019 and demanded that the
second respondent address them. When this did not happen, according
to the Municipality, and on the same date, the individual applicants
embarked upon unprotected strike action and further embarked
upon a
campaign of the harassment and intimidation of non-striking
employees.
[8]
The Municipality them implemented a ‘no-work-no-pay’
principle as from 19 August 2019 as a result of this unprotected
strike action. The unprotected strike action continued after 19
August 2019 and persisted despite attempts to resolve the dispute,
and have the individual applicants resume their duties. The
Municipality then brought an application to this Court to interdict
the individual applicants from continuing with the unprotected strike
action, and the application was set down for 5 September
2019.
However, and faced with this application, the individual applicants
returned to work on 4 September 2019.
[9]
On 12 September 2019, the dispute flared up
again. SAMWU demanded that the grade 6 be implemented and the
Municipality refused.
On 13 September 2019, the unprotected strike
action by the individual applicants restarted. Again, the
Municipality applied the
‘no-work-no-pay’ principle.
[10]
The Municipality then brought a second
application to this Court to interdict the unprotected strike action,
which application was
heard on 19 September 2019 under case number J
1932 / 19. On 19 September 2019, Gush J granted a
rule
nisi
in terms of which the strike
action embarked upon by the individual applicants was declared to
constitute an unprotected strike,
and was interdicted. The return
date for the
rule nisi
was 29 November 2019. I may add that this
rule
nisi
came before me on 29 November
2019, where the
rule nisi
was confirmed by agreement between the parties. The individual
applicants however only returned to work on 30 September 2019.
[11]
According to the Municipality, the
individual applicants were embarking upon unprotected strike action
for the period from 19 August
to 30 September 2019, save for the days
between 5 and 12 September 2019 when they returned to work. SAMWU and
the individual applicants
disputed that they embarked upon
unprotected strike action in this period, and this is obviously a
material dispute of fact that
can only be resolved after proper
determination and consideration of the evidence in the ordinary
course.
[12]
The Municipality instructed its managers to
prepare a schedule of all the employees that had embarked upon the
unprotected strike
action, and the periods when they were not at
work. This is how the individual applicants came to be identified.
This schedule
was presented to the human resources department of the
Municipality in October 2019 for processing. It must be stated that
the
individual applicants were paid their ordinary salaries in August
and September 2019, despite their participation in the unprotected
strike action.
[13]
The Municipality then informed SAMWU and
the individual applicants of its intention to apply the
‘no-work-no-pay’ principle
for the period of the
unprotected strike referred to above, and conveyed that it would
effect a recovery from the salaries of the
individual applicants from
their salaries for October 2019. This happened at the beginning of
October 2019.
[14]
The Municipality normally pays its
employees on the 25
th
of the month. Having been informed by the Municipality at the
beginning of October 2019 that it would effect a recovery on the
next
pay day (25 October 2019), as aforesaid, SAMWU then wrote to the
Municipality on 23 October 2019, indicating that it required
confirmation whether the Municipality was going to apply the
“deplorable’ no-work-no-pay principle for the next pay
day. The Municipality the indicated on 24 October 2019 that it would
indeed proceed to effect the recovery on 25 October 2019.
It then
indeed effected a deduction from the salaries of the individual
applicants on 25 October 2019.
[15]
On 25 October 2019, SAMWU again wrote to
the Municipality. It stated that it disputed that the individual
applicants embarked upon
unprotected strike action and demanded proof
from the Municipality, by close of business on 28 October 2019, of
this alleged strike
action. The Municipality was required to urgently
comply with this demand, or face external recourse pursued by SAMWU.
[16]
SAMWU also sent a second and far more
formal letter of demand to the Municipality on 25 October 2019. In
this letter, SAMWU specifically
took issue with the deduction from
the individual applicants’ salaries on 25 October 2019. It
contended that such deductions
were unlawful, and that it would cause
the individual applicants severe prejudice. The following was
specifically stated in this
letter:
‘
You
are called upon and required to reverse immediately all the unlawful
deductions which the municipality has effected in the salaries
of our
members in your employ and to give us a written undertaking by close
of business today, 25 October 2019, that the reversals
will be
effected immediately.’
The
letter concluded that if the undertaking demanded was not
forthcoming, legal proceedings would be instituted in the Labour
Court.
[17]
The Municipality did not effect the
reversals as demanded by SAMWU. However, no Labour Court proceedings
followed. In fact, nothing
was done by SAMWU until 18 November 2019,
almost four weeks later, when its attorneys sent a letter of demand
to the Municipality.
In this letter of demand, it was again contended
that the October 2019 deductions were unlawful and had to be repaid
to the individual
applicants. The letter further indicated that
further deductions were to be made from the individual applicants’
November
2019 salaries, and it was stated that such a deduction would
also be unlawful. An undertaking was demanded from the Municipality,
to be provided by close of business on 19 November 2019, that it
would not effect the deductions from the individual applicants’
November 2019 salaries. If the undertaking was not forthcoming by the
demanded deadline, an urgent application would follow.
[18]
The undertaking was not provided, and the
current application followed on 20 November 2019. Inexplicably
however, the application
was set down for 27 November 2019, which was
after the Municipality’s salary run on 25 November 2019. As a
result, and when
this matter came before me for hearing on 27
November 2019, the deductions has already been effected and salaries
paid to the individual
applicants. The Municipality also indicated in
its answering affidavit that this would be the final deductions to be
made and no
further deductions would be made going forward.
Principles
- Urgency
[19]
Urgent
applications are governed by Rule 8 of the Labour Court Rules. in
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
[2]
applied Rule 8 as follows:
‘
Rule
8 of the rules of this court requires a party seeking urgent relief
to set out the reasons for urgency, and why urgent relief
is
necessary. It is trite law that there are degrees of urgency, and the
degree to which the ordinarily applicable rules should
be relaxed is
dependent on the degree of urgency. It is equally trite that an
applicant is not entitled to rely on urgency that
is self created
when seeking a deviation from the rules.’
[20]
Further,
and when considering whether urgency has been established, it must be
considered whether an applicant would not be afforded
substantial
redress in due course, and the applicant must provide proper reasons
in support of such a case.
[3]
As
succinctly described in
Maqubela
v SA Graduates Development Association and Others
[4]
:
‘
Whether a matter
is urgent involves two considerations. The first is whether the
reasons that make the matter urgent have been set
out and
secondly whether the applicant seeking relief will not obtain
substantial relief at a later stage. In all instances
where urgency
is alleged, the applicant must satisfy the court that indeed the
application is urgent. Thus, it is required of the
applicant
adequately to set out in his or her founding affidavit the reasons
for urgency, and to give cogent reasons why urgent
relief is
necessary. …’
[21]
Where
an applicant seeks final relief, the Court must be even more
circumspect when deciding whether or not urgency has been
established.
[5]
In
Tshwaedi
v Greater Louis Trichardt Transitional Council
[6]
the Court said:
‘…
An
applicant who comes to court on an urgent basis for final relief
bears an even greater burden to establish his right to urgent
relief
than an applicant who comes to court for interim relief. ….
’
[22]
The
Court must also further consider the interest of the respondent
party, and in particular, the prejudice the respondent may suffer
if
the matter is urgently disposed of. In
Association
of Mineworkers and Construction Union and Others v Northam Platinum
Ltd and Another
[7]
the
Court held as follows:
‘
But
it is not just about the applicant. Another consideration is possible
prejudice the respondent might suffer as a result of the
abridgement
of the prescribed time periods and an early hearing.
’
[23]
Finally,
urgency must not be self-created by an applicant, as a consequence of
the applicant not having brought the application
at the first
available opportunity.
[8]
As the
Court said in
Northam
Platinum supra
[9]
:
‘…
the
more immediate the reaction by the litigant to remedy the situation
by way of instituting litigation, the better it is for establishing
urgency. But the longer it takes from the date of the event
giving rise to the proceedings, the more urgency is diminished.
In short, the applicant must come to Court immediately, or risk
failing on urgency. …
’
Analysis
[24]
In applying the above principles relating
to urgency to the facts of this matter, I have little hesitation in
concluding that the
applicants’ application is not urgent, for
the reasons I now set out.
[25]
Firstly,
there has been an inordinate delay in the bringing of this
application by SAMWU, which
per
se
diminishes urgency. SAMWU had been aware since the beginning of
October 2019 that the Municipality considered the individual
applicants
to have embarked upon an unprotected strike in August and
September 2019, intended to apply the no-work-no-pay principle, and
would
effect deductions from the salaries of the individual
applicants. However, and if there was any doubt, this was dispelled
on when
the deductions were actually effected on 25 October 2019.
Nothing was however done by SAMWU from 25 October until 18 November
2019,
when the last letter of demand was sent. Therefore, the total
delay in this instance, from when it could be said that SAMWU was
aware of what would happen, and until the application was brought,
was some seven weeks. By comparison, in
Mashiya
v Sirkhot NO and Others
[10]
the
Court dealt with a period of delay of
four
weeks, which was considered to be unacceptable. In
Ngcongo
v University of South Africa and Another
[11]
the
Court found a five week delay in seeking to urgently challenge a
ruling, not to be not urgent. In
Northam
Platinum supra
,
[12]
the Court held the same view about a delay of a month.
In
casu
,
the delay is far more than the delay in all these cases, and is thus
unacceptable and destructive of urgency.
[26]
SAMWU
simply offers no explanation why no urgent legal proceedings were
instituted at the very least immediately after the first
deduction
was made on 25 October 2019. It similarly offers no explanation for
the delay of some three weeks between that date,
and then when the
application was finally brought. If the unexplained period from
beginning October 2019 is thrown into the mix,
what one has in this
case is an excessive delay with no explanation for it. In
Northam
Platinum supra
[13]
the Court held:
‘
The
applicants simply offer no explanation why no urgent legal
proceedings were instituted immediately after 5 July 2016, and why
no
urgent action was taken as threatened in the letters by Nkome Inc on
20 June and 8 July 2016. The failure to offer such an explanation
weighs heavily against the applicants where it comes to urgency. …
’
[27]
The only explanation why this matter was
brought as one of urgency is indicated in the founding affidavit as
being a case of ‘ongoing
wrong’. This in my view is just
another name for self-created urgency. The circumstances where it
comes to the October deductions
and the following November deductions
are the same. It arises out of the same events in August and
September 2019. SAMWU had raised
its first formal complaint on 25
October 2019 and demanded from the Municipality that it urgently
reverse the same or face immediate
Labour Court action. To then wait
until 18 November 2019 and then use the intended November 2019
deduction as a basis for urgency,
is thus self-created urgency. There
is no reason why the application could not have been brought at least
four weeks before it
was actually brought.
[28]
Further, the case of urgency brought by
SAMWU and the individual applicants is also based on
considerations
of hardship, sympathy and merits of the case itself. In simple terms,
it is said that urgency is established by the
alleged unlawfulness of
the Municipality’s conduct of making deductions from the
remuneration of the individual applicants
without proper cause and in
contravention of the provisions of section 34 of the BCEA. It is
alleged that this deduction causes
the individual applicants extreme
hardship because they have no funds to take of their families.
[29]
The
problem,
in
casu
,
where it comes to financial hardship as a basis for urgency, is that
the case made out in the founding affidavit is sparse and
completely
lacking in particularity. Only general statements are made as to the
individual applicants being unable to take of their
families, pay
school fees, accommodation, monthly accounts and groceries. There
kind of general submissions are of little assistance
when deciding
urgency. In
CWIU
v Sasol Fibres
[14]
the Court held:
‘
As
far as the issue of irreparable harm is concerned, the applicants
state that they will suffer substantial reduction of income.
I accept
that that is correct but the Court is not told what effect that
situation will have on the union's members. It is simply
not
acceptable for parties to make bald allegations and leave it to the
Court to fathom consequences of the conduct complained
of.’
[30]
In
any event, the general principle is that financial hardship does not
establish a basis for urgency.
In
Democratic
Nursing Organisation of SA and Another v Director-General, Department
of Health and Others
[15]
the
Court said:
‘…
as
a general principle financial hardship or loss of income cannot be
regarded as grounds for urgent relief. For the applicant to
succeed
when relying on financial hardship or loss of income he or she must
show the existence of exceptional circumstances justifying
the
granting of an order on an urgent basis and on the ground of
financial hardship. In the present instance the applicants have
not
shown that there are special circumstances for granting the relief
sought. …
’
However,
this general principle may be departed from if exceptional
circumstances exist.
[16]
In
Harley
v Bacarac Trading 39 (Pty) Ltd,
[17]
the Court held:
‘
If
an applicant is able to demonstrate detrimental consequences that may
not be capable of being addressed in due course and if
an applicant
is able to demonstrate that he or she will suffer undue hardship if
the court were to refuse to come to his or her
assistance on an
urgent basis, I fail to appreciate why this court should not be
entitled to exercise a discretion and grant urgent
relief in
appropriate circumstances. Each case must of course be assessed on
its own merits.’
[31]
The
founding affidavit makes out no case as to why the circumstances of
the individual applicants are exceptional, and would not
be capable
of being fully addressed in the normal course. I accept that
the individual applicants will suffer financial hardship,
but there
is no demonstration of undue hardship of such an exceptional nature
that cries out for immediate intervention.
[18]
There is nothing different between the individual applicants and the
thousands of other employees standing patiently in the queue
waiting
for an opportunity to claim their unpaid salaries in Court. In my
view, the vague and general case of financial hardship
as raised in
the founding affidavit, does not substantiate a case of urgency.
[32]
SAMWU and the individual applicants can get
full and proper redress in the ordinary course. What happened in this
case was deductions
from the individual applicants’ salaries in
October and November 2019. There are to be no further deductions.
SAMWU believes
the deductions are unlawful because it is in
contravention of the provisions of section 34 of the BCEA. If this
case ultimately
succeeds, the Municipality will be ordered to pay
back these deductions, providing full redress. There is no need to
resort to
these urgent proceedings.
[33]
There
is another reason why I believe it is important that this case be
properly ventilated in the ordinary course, and that proper
evidence
be led, determined and considered. The sole reason why the
Municipality made deductions from the salaries of the individual
applicants is because it considered them to have embarked upon
unprotected strike action. It is trite that in the course of
unprotected
strike action, the principle of no-work-no-pay applies.
Employees are only entitled to be paid salaries if they tender
service,
which is not the case when they embark upon strike action.
It is thus critical to decide whether the individual applicants were
embarking upon unprotected strike action over the period in August
and September 2019 referred to. The fact that the individual
applicants may have embarked upon unprotected strike action may also
have an implication on the application of section 34 of the
BCEA. In
NEHAWU
v Eastern Cape, Department of Sports, Recreation, Arts and
Culture
[19]
the
Court held:
‘…
in
so far as the applicant’s claim to a
prima
facie
right is based on s 34 of the
Basic Conditions of Employment Act (which prohibits deductions from
remuneration without consent
or authority in law), in the present
instance, there is no deduction. Section 34 assumes a deduction from
remuneration earned.
The application of a ‘no work-no pay’
principle is simply that remuneration is not payable for days not
worked. This
is recognised by s 67 (3) of the LRA, which states
clearly that an employer is not obliged to remunerate an employee for
the period
that the employee participates in a protected strike.
A
fortiori
, there is no obligation to
remunerate an employee for the period of any unprotected strike. In
short, when an employer refuses
to pay remuneration for days not
worked on account of strike action, s 34 is not breached when payment
is withheld.’
But
there is no need to decide any of this now, and all of this must be
dealt with and decided in the ordinary course.
[34]
Applying the above reasoning, I am not
satisfied that any exceptional circumstances exist for this Court to
intervene based on financial
hardship, and SAMWU and the individual
applicants have simply not shown this to exist. In the end, the
individual applicants’
claim is for the refund of deductions
made from their salaries. The individual applicants can be fully
indemnified where it comes
to the relief sought, by way of an award
for the payment of money in due course, plus interest. Further, the
approach SAMWU decided
to adopt is inconsistent with establishing a
case of exceptional circumstances of financial hardship, in that it
simply did not
launch an immediate challenge as it should have.
[35]
One
final consideration remains. The interdictory relief sought by SAMWU
has become moot. By the time this matter was heard, the
deductions
from the individual applicants’ salaries had already been
effected. The undisputed evidence was that after this
November 2019
deduction, there were no further deductions to come. It follows that
there was nothing left to interdict, and all
that remained was a
monetary claim for the two deductions that had already been made. As
a comparison, in
Centlec
(SOC) Ltd v SA Municipal Workers Union and Others
[20]
,
the Court refused interdictory relief sought by the applicant in that
matter to interdict unlawful conduct in the course of a
strike
because the strike action ceased, and thus there could be no further
unlawful conduct performed that can practically be
interdicted. Another example is
Tor
Industries (Pty) Ltd v Gee-Six Superweld CC and Others
[21]
where it was held that it was too late to obtain an interdict to
prevent the disclosure of confidential information where it had
already been conveyed. As held in
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[22]
:
‘
A
case is
moot
and
therefore not justiciable, if it no longer presents an existing or
live controversy which should exist if the Court is to avoid
giving
advisory opinions on abstract propositions of law.'
[36]
Therefore, the applicants have failed to
make out a case of urgency. The requirements of Rule 8 have thus not
been satisfied.
This is clearly a matter of self-created
urgency. The application falls to be struck from the roll.
[37]
This then only leaves the issue of costs.
SAMWU elected to approach the Labour Court on an urgent basis when it
must have been clear
there was no basis for doing so. Normally, this
would justify a costs order. But the parties have an ongoing
employment relationship
and there is clearly litigation to follow to
decide the issue giving rise to the deductions. It is my view that it
would be inappropriate
to mulch either of the parties with a costs
order going forward, in these circumstances. In any event, and in
terms of section
162(1) of the LRA, I have a wide discretion where it
comes to the issue of costs, and in this instance, I exercise this
discretion
in favour of making no order as to costs.
[38]
Based on all the above reasons, I made the
order that I did on 27 November 2019, referred to in paragraph 3 of
this judgment,
supra.
_____________________
S.Snyman
Acting Judge of the
Labour Court of South Africa
Appearances:
For the Applicants:
Mr
J Gwebu of Madlela Gwebu Mashamba
Attorneys
For the
Respondents: Adv F
Nalane
Instructed
by:
Edwin S Nkwana Inc Attorneys
[1]
Act 75 of 1997 (as amended).
[2]
(2010)
31 ILJ 112 (LC) at para 18.
[3]
Mojaki
v Ngaka Modiri Molema District Municipality and Others
(2015)
36 ILJ 1331 (LC) at para 17;
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite
(Pty) Ltd and Others
[2012]
JOL 28244
(GSJ) at para 6.
[4]
(2014)
35 ILJ 2479 (LC) at para 32. See also
Transport
and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others
(2015) 36
ILJ
2148 (LC) at para 11.
[5]
[2002]
JOL 9452
(LC) at para 8.
[6]
[2000]
4 BLLR 469
(LC) at para 11.
[7]
(2016)
37 ILJ 2840 (LC) at para 26. See also
IL
& B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another
1981(4)
SA 108 (C) at 113D-114C.
[8]
See
Golding
v HCI Managerial Services (Pty) Ltd and others
[2015] 1 BLLR 91
(LC) at para 24;
National
Union of Mineworkers v Lonmin Platinum Comprising Eastern Platinum
Ltd and Western Platinum Ltd and Another
(2014) 35
ILJ
486 (LC) at para 50.
[9]
Id
at para 26. See also
Sihlali
and Others v City of Tshwane Metropolitan Municipality and Another
(2017)
38 ILJ 1692 (LC) at para 18;
Valerie
Collins t/a Waterkloof Farm v Bernickow NO and Another
[2002]
JOL 9452
(LC) at para 8
.
[10]
(2012)
33 ILJ 420 (LC).
[11]
(2012)
33 ILJ 2100 (LC) at para 9.
[12]
Id at para 28.
[13]
Id at para 29.
[14]
(1999)
20
ILJ
1222
(LC) at 1227B – C.
[15]
(2009)
30 ILJ 1845 (LC) at para 19. See also
Jonker
v Wireless Payment Systems CC
(2010)
31 ILJ 381 (LC) at para 16;
Northam
Platinum
(
supra
)
at para 37.
[16]
Jonker
(
supra
)
at paras 17 – 18.
[17]
(2009)
30 ILJ 2085 (LC)
at
para 8.
[18]
Northam
Platinum
(
supra
)
at para 37.
[19]
(P485/18)
[2018] ZALCPE 43 (22 November 2018) at para 7.
[20]
(2019)
40 ILJ 846 (LC) at para 10.
[21]
(2001)
22 ILJ 1327 (W) at 1345D-F
[22]
2000
(2) SA 1
(CC)
at
fn 18.