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[2019] ZALCCT 34
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Februarie v MTN (C608/2019) [2019] ZALCCT 34 (22 October 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case no: C608/2019
In
the matter between:
VUYISEKA
FEBRUARIE
Applicant
And
MTN
Respondent
Date
heard: 18 October 2019
Delivered:
22 October 2019
JUDGMENT
RABKIN-NAICKER, J
[1]
This application for urgent relief was brought by the applicant in
person. The relief sought on the
papers was final in nature, to:
“
Interdict
the respondent from executing an unreasonable and unjust instruction
to the applicant;
Interdict
the respondent from instituting the disciplinary action referred to
in the unreasonable and unjust instruction;”
[2]
At the hearing of the matter the applicant asked the Court for
interim relief, i.e. that the instruction
to report and be based at
MTN Head Office on Monday October 21
st
October 2019 be declared unenforceable pending a conciliation to be
held at the CCMA on the 31
st
October 2019.
[3]
Counsel for the respondent submitted that the application before
Court was for final relief and he urged
the case for the respondent
on that basis. He did however state that it was for the Court to
decide whether it should determine
the matter as an application for
interim relief. The CCMA set down date only came to knowledge of the
applicant after she had drafted
her papers.
[4]
It is trite that this Court is very loathe to intervene in dispute
which stand to be conciliated and/or
arbitrated by the CCMA. The
merits of the dispute between the parties fall into that category.
Any finding in this judgment regarding
allegations of an unfair
labour practice and/or a claim of unfair discrimination would amount
to a pre-determination of processed
that must take place in a
different forum.
[5]
I have decided to decide this matter on the basis of an application
for interim relief. The granting
of interim relief will allow the
parties to meet at conciliation proceedings in order that an
important purpose of the LRA, that
of mediation, can take place. The
balance of convenience to both parties in the circumstance of such a
mediation taking place is
in my view served. The prejudice to the
respondent of a delay amounting to eleven days cannot disturb that
balance. In this regard,
I take into account that the applicant has
spent the last 11 months working from Cape Town.
[6]
Only this Court can provide the interim remedy sought by the
applicant. The further requirement for
interim, of a prima facie
right, requires consideration. A ‘prima facie right, though
open to some doubt’ conveys that
the strength of the right is
allowed to fluctuate from strong to weak: if it is strong, the other
requirements for an interim interdict
may be weak; if is it is weak,
the other requirements for an interim interdict may be strong.
[1]
[7]
In this case, on a reading of the papers and on the submissions
before me. I am prepared to grant interim
relief thus accepting that
even if the prima facie right in casu were to be considered
relatively weak, the other requirements
are relatively strong. In any
event, the remedy I am granting remains ‘an extraordinary
remedy within the discretion of the
Court’.
[2]
I am not dealing with the merits in this judgment purposively given
the role of the mediation process which will take place shortly.
[8]
In all the circumstances, I make the following order:
Order
1.
The respondent is interdicted from ordering
the applicant to resume her duties and be based at its headquarters
in Johannesburg
pending the outcome of the conciliation hearing to be
held at the CCMA on the 31
st
October 2019.
______________
H. Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant: In person
Respondents:
A.M. Mtembu instructed by Mashiane Moodley& Monama Inc
[1]
Resilient
Prop (Pty) Ltd V Eskom Holdings Soc Ltd
2019 (2) SA 577
(GJ) at
paragraphs 49-52 in which the authorities on this principal are
discussed.
[2]
Eriksen
Motors (Welkom) Ltd V Protea Motors, Warrenton
1973 (3) SA 685
(A)
at 691