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[2019] ZALCCT 25
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Myers v Lieutenant General Jula N.O Provincial Commissioner of the South African Police Service (Western Cape Province) and Others (C383/2019) [2019] ZALCCT 25 (21 August 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
No: C383/2019
In the matter between:
IVAN
MYERS Applicant
and
LIEUTENANT GENERAL
JULA N.O
THE PROVINCIAL
COMMISSIONER OF THE
SOUTH AFRICAN POLICE
SERVICE
(WESTERN CAPE
PROVINCE)
First
Respondent
LIEUTENANT COLONEL
GOLIATH Second
Respondent
LIEUTENANT
COLONEL MOSES Third
Respondent
Date
heard: 13 August 219
Delivered:
21 August 2019
JUDGMENT
RABKIN-NAICKER, J
[1]
This application was brought on an urgent basis under the same case
number as a statement of claim filed
by the union Solidarity on
behalf of the applicant (“Myers”) on the 11 June 2019.
[2]
In this application, Myers seeks the following relief:
“
1.
The first respondent is ordered to:
1.1
cease to subject the applicant to
occupational detriment, as defined in section 1 (iv) of the Protected
Disclosures Act, 2000 (Act
No. 26 of 2000) as amended by Act 5 of
2017.
2.
The second and third respondents are ordered to refrain from
harassing, and intimidating
the applicant….”
[3]
It must be said that despite the application being described as
‘interlocutory’
by Myers, the relief sought is not.
Counsel for Myers wrote in his submissions that essentially what is
sought is the suspension
of disciplinary proceedings, pending the
finalization of the claim under this case number. This, he properly
conceded, is not what
the Notice of Motion reflects. The relief
sought in the Notice of Motion is essentially the same to the relief
sought in the action
under this case number. Before considering this
application on its merits, it is necessary to deal with whether the
matter is urgent.
[4]
The application was filed on the 4 July 2019. The respondents were
put on notice to
inform the Court of their intention to oppose on
Monday 8 July 2019 and to serve and file their answering papers by no
later than
12h00 on Wednesday 10 July 2019, in order to place the
applicant in a position to file a replying affidavit by 12h00 on
Friday
12 July 2019. Myers did not specify a date for the hearing in
his Notice of Motion and it was set down for hearing on the 13 August
2019. These facts do not evince a sense of urgency on his behalf.
[5]
The founding affidavit is replete with averments relating to the
steps Myers and Solidarity
have taken to attempt to stop the hearing
of the disciplinary charges against him, which he alleges amount to
an occupational detriment.
He received notice of these charges in
April 2019. Under the heading “Urgency”, he avers the
following:
“
The
unfair labour practice is not only reasonably anticipated but is
actually being committed by the Respondents. Despite all the
legislative processes that Solidarity and I exhausted (referral to
the SSSBC and filing the main proceedings and the interlocutory
application
[1]
) the Respondents
appear to be hell-bent to proceed with the disciplinary hearing on 4
July 2019. This is despite the fact that
I am a state witness in the
criminal matter regarding the police dog as well as a witness in a
potential disciplinary hearing against
the Second Respondent. I
respectfully submit that I have made out a prima facie right to be
protected from occupational detriment
as a result of the protected
disclosure.”
[6]
Myers further quotes from a letter he has written to the State
Attorney regarding
a pre-trial conference he wished to be held on the
9 July 2019. In that letter he states the following inter alia:
“
Lieutenant
General Jula has been duly served the Statement of Claim and decided
to engage as a litigant in the proceedings by filing
your response.
It is clearly an admission that the protected disclosure dispute (the
disciplinary action in the form of an occupational
detriment) is
pending in the Labour Court.
Regardless
of the above, Lieutenant General Jula remains relentless in
proceeding with the disciplinary hearing on 4 July 2019.
The
disciplinary hearing (occupational detriment) is the crux of the
cause of action set out in the statement of case.
I
therefore respectfully request you as a matter of urgency to advise
Lieutenant General Jula to suspend the disciplinary hearing
pending
the outcome of the litigation in the Labour Court, alternatively, to
postpone the disciplinary hearing on 4 June (sic)
until after the
pre-trial….”
[7]
Myers further puts the respondents on notice that he would bring an
urgent application
on the 4 July 2019 unless his demands were acceded
to. The founding papers quote part of the State Attorney’s
reply:
“…
we
confirm that you will prepare and furnish us with a draft pre-trial
minute for our client’s consideration. This will facilitate
matters considerably.
…
.our
client denies that any allegations contained in the statement of
claim filed above constitute a protected disclosure. In the
circumstances our client is of the view that the disciplinary
proceedings set down for hearing on 4 July 2019 should proceed.”
[8]
It is averred by Myers that the contents of the second paragraph of
the letter from the State Attorney
will:
“
defeat
the entire purpose of the facilitation and the pending main
proceedings. The Respondents will proceed to dismiss me as the
Third
Respondent, acting for the employer had made this clear before the
chairperson on 25 April 2019.
The
inevitable result will be that the main proceeding would be moot.”
(
his
emphasis
)
[9]
Under the heading of “Urgency”, Myers avers as follows:
“
The
Respondents created urgency after I requested to have a pre-trial
conference. I respectfully submit that the invitation to file
pre-trial minutes is a farce. It can definitely not be an attempt to
facilitate matters. Why then the instruction to proceed with
the
disciplinary hearing.”
[10] A
further issue that deserves consideration is that Solidarity on
behalf of Myers filed an urgent application in
this Court on 28 June
2019 under case number C433/2019 applying for a hearing date on 4
July 2019, wherein it sought interdictory
relief to suspend the
disciplinary hearing proceeding pending the hearing of the main
action. Such application was withdrawn by
Meyers on the 29 June 2019,
because, according to the submissions by his Counsel, he believed it
was shoddily drafted and that
Solidarity should have enrolled the
first application under C261/2019 which was filed on 17 April 2019.
As I have dealt with above,
he did not ensure that this application
was enrolled promptly in any event.
[11] It is
submitted on behalf of Myers that the respondents created the urgency
for this application by their grossly
unfair conduct to persist with
the disciplinary proceedings knowing that the issue is pending in the
Labour Court (i.e. in the
action). However, in my view, given the
history of this matter, the urgency in the application before me was
self-created.
[12] It is
evident from his own papers that Solidarity had enrolled and set down
an urgent application to stay the disciplinary
proceedings on 4 July
2019 but Myers saw fit to withdraw this. The action itself could have
been set down on an urgent basis or
have been accompanied by an
application for interim relief when the statement of case was filed
on the 11 June 2019. It appears
to the Court that Myers founding
affidavit, which in essence seeks both final relief and to
incorporate the entire pleadings of
the action, reflects that the
application has been set down because Myers now regards the action as
moot. The notion that the respondents
have created the urgency herein
is without merit.
[13] In all
these circumstances, the Court will not consider the merits of the
application. I find that this application
cannot be treated as urgent
and it therefore stands to be struck off the roll. I consider it in
order that costs of this application
stand over for future
determination. I therefore make the following order:
Order
1.
The application is struck of the roll for
want of urgency.
2.
Costs to stand over for future
determination.
_________________
H. Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
JA Nortje instructed by Heidi van der Meulen Attorneys
Respondents:
De Villiers Jansen SC instructed by the State Attorney
[1]
This
refers to an application Myers brought for an interdict under
C261/19 which was never enrolled