About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2020
>>
[2020] ZALCJHB 147
|
|
Stein v Minister of Education and Training and Others (J415/20) [2020] ZALCJHB 147 (14 May 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J415/20
In the matter between:
MOPEDI CLIFFORD
STEIN Applicant
and
MINISTER OF EDUCATION
AND TRAINING
(DR. BLADE
NZIMANDE) First
Respondent
MR GWEBINKUNDLA
QONDE
Second Respondent
(DIRECTOR GENERAL
HIGHER EDUCATION AND TRAINING
EKURHULENI WEST TVET
COLLEGE)
Third Respondent
MS MCN DANGAZELE
(ACTING PRINCIPAL)
Fourth
Respondent
MS S MAVHUNGU (ACTING
DEPUTY PRINCIPAL
CORPORATE
SERVICE)
Fifth
Respondent
MR MANDIWANA (HUMAN
RESOURCE MANAGER)
Sixth
Respondent
Heard:
14 May 2020
Delivered:
14 May 2020
Reasons:
In view of the measures implemented as a result of the Covid-19
outbreak, this judgment was
handed down electronically by circulation
to the parties' representatives by email. The date for hand-down is
deemed to be 31 August
2020.
JUDGMENT –
REASONS FOR ORDER
MAHOSI,
J
Introduction
[1]
On 14 May 2020, the applicant brought an urgent application in terms
of which he sought
an order declaring that the respondents made
unlawful and invalid deductions from his salary and an order for the
reversal thereof.
[2]
The applicant further sought an order interdicting the respondents
from making any
such deductions without following the procedure as
set out in the Determination and Directive on Leave of Absence in the
Public
Service. Furthermore, the applicant sought an order declaring
that the respondent committed an unfair labour practices in terms
of
section 186(2) of the Labour Relations Act
[1]
(LRA) and section 23 of the Constitution
[2]
.
[3]
The parties agreed to have the matter disposed of on the pleadings
and the heads of
argument filed. Having had regard thereto, this
Court struck the matter off the roll with costs.
[4]
Subsequent thereto, the applicant requested reasons for this Court’s
order
which
are provided hereunder.
Background
[5]
The applicant is employed by the Department of Higher Education to
perform his duties
at the third respondent in a position of Labour
Relations Officer. He is aggrieved by the alleged unilateral
deductions from his
salary, which relate to a period on 8 January
2019, 25 and 26 February 2019, 6 March 2019, and 2 to 9 December
2019.
Preliminary points
[6]
In his replying affidavit, the applicant raised a preliminary point
challenging Mr.
Mandiwana’ authority to depose to respondents’
the answering affidavit and his personal knowledge of the contents
thereof.
In doing so, the applicant simply makes allegations without
laying out facts to supporting them.
[7]
There is absolutely no merit to this point. Mr. Mandiwana, third
respondent’s
Human Resource Manager, is cited by the applicant
as the sixth respondent and it is not disputed that the applicant
reports to
him. It is further not disputed that Mr Mandiwana is
responsible for keeping the attendance register of the third
respondent’s
employees. For this reason, this point must be
dismissed.
[8]
The point raised in relation to Mr. Madiwana’s credibility and
alleged fraudulent
signing of leave forms goes to the merit of this
matter which will not be dealt with for the reasons that become
apparent later
in the judgment.
Submissions
[9]
It is the applicant’s case that he only became aware of the
deductions on 28
February 2020 after he received an sms notification
of his salary from his employer. Upon realization of this alleged
unlawful
deduction, the applicant made enquiries from the Human
Resource (HR) office after which he realized that further deductions
were
made in 2019. After unsuccessfully engaging with the HR, he
lodged a grievance with the respondents. However, he was dissatisfied
with the outcome thereof. This then led to the launching of this
application.
[10]
The respondents opposed this application for its lack of urgency and
on merits.
Urgency
[11]
Rule 8(2) of the Rules of this Court, which governs urgent
applications provides as follows:
‘
(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.’
[12]
In
Jiba
v Minister of Justice and Constitutional Development and Others
[3]
,
this Court considered Rule 8 and stated as follows:
‘
Rule
8 of the rules of this court require 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 ordinary 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.’
[13]
In this matter, the applicant submitted that the reason his matter
should be dealt with urgently is
because it is about his livelihood
as he uses his salary for transportation that he uses in order to
report for duty and to take
care of his two families. The applicant
further submits that there will be continuous salary deductions by
the respondents and
that he has moved this application as
expeditiously as possible in the circumstances.
[14]
In opposing, the respondent submits that the sms that the applicant
received on 28 February 2020, which
alerted him to the deductions
made in December 2019 cannot be a cogent enough reason for this Court
to intervene on an urgent basis.
The basis for this submission is
that to an extent that the applicant, like all other employees,
receives a paper-based pay slip,
have access to the Department’s
persal system where he can electronically view his pay slip and
receives an sms notification
when his salary is deposited into his
account, it is improbable that he could not have been aware of the
deduction that took place
over a year or so ago.
[15]
On the deduction made on February 2020, the respondent submits that
there are no exceptional circumstances
warranting the applicant
urgent assistance. In relation to the suspected future deductions,
the respondent submits that the applicant
failed to specify the
quantum and dates thereof, which leaves them and the court to
speculate, so goes the argument.
[16]
In this regard, I agree with the respondent’s submission that
the applicant has not made out
a case to justify an expedited hearing
and has not set out the reasons why he claims that he cannot be
afforded substantial redress
at a hearing in due course. This is
further demonstrated by the order that the applicant seeks in terms
of paragraph 4, that is
the declaration that the respondent committed
unfair labour practice. These kinds of matters are not determined in
an urgent court.
There is, therefore, no reason why this matter ought
to have been afforded urgent attention and not dealt with in the
normal course.
[17]
What aggravates matters for the applicant is his submission, in his
replying affidavit, that this application
is not about monetary value
but about the violation of the basic labour law rights and abuse of
power. These are issues that can
be entertained in the ordinary
motion court, not the urgent court during the national disaster. In
light of the aforementioned
reasons, its is my view that the
applicant has failed to make out a case for urgency in this case.
Costs
[18]
Guided by the principles of law and fairness, this Court has a
discretion in awarding costs. In
Zungu
v Premier of Kwa Zulu-Natal and Others
[4]
the Constitutional Court confirmed that the rule of practice that
costs follow the result does not apply in labour matters. The
Court
should seek to strike a fair balance between unduly discouraging
parties from approaching the Labour Court to have their
disputes
dealt with and, on the other hand allowing those parties to bring to
this Court or oppose cases that should not have been
brought to Court
or opposed in the first place.
[19]
This is a case where the Court has to strike a balance, considering
the requirements of law and fairness.
This Court is loath to award
costs where there is an existing relationship between the parties,
however, this is one of those matters
where costs against the
applicant are warranted as his persistence in bringing this
application during level 5 national lockdown,
when there was no
urgency was unreasonable.
In the premise,
the
requirements of law and equity
prompted this Court to
exercise its discretion in favour of the respondent and to order
applicant to pay the respondents’
costs.
[20]
It was for the above reasons why this Court issued
the aforementioned order.
__________________
D. Mahosi
Judge
of the Labour Court of South Africa
Representatives
For
the Applicant:
S. Gunuza Attorneys
c/o Chris Billing Attorneys
For
the Respondent:
Mr Nicholas Mgedeza from State Attorney’s
Office
[1]
Act
66 of 1995, as amended.
[2]
Act
108 of 1996, as amended
[3]
(2010)
31
ILJ
112
(LC) at para 18.
[4]
(2018)
39 ILJ 523 (CC) at para 24.