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[2020] ZALCJHB 169
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National Union of Public Service and Allied Workers (NUPSAW) obo Members and Another v Gauteng Department of Infrastructure and Development and Others (J 346/20) [2020] ZALCJHB 169 (5 June 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: J 346/20
NATIONAL
UNION OF PUBLIC SERVICE AND
ALLIED
WORKERS (NUPSAW) obo MEMBERS
First
Applicant
EXECUTIVE
MUKWEVHO AND 1004 OTHERS
(List
of members per annexure A)
Second
Applicant
And
GAUTENG
DEPARTMENT OF INFRASTRUCTURE
AND
DEVELOPMENT
THE
MEC FOR THE GAUTENG DEPARTMENT OF INFRASTRUCTURE AND DEVELOPMENT
THE
HEAD OF THE GAUTENG DEPARTMENT OF INFRASTRUCTURE AND DEVELOPMENT
First
Respondent
Second
Respondent
Third Respondent
Heard:
28 May 2020
Delivered:
5 June 2020
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 5 June 2020.
JUDGMENT
PRINSLOO,
J
Introduction
[1]
This application was filed on 25 May 2020
and is opposed by the Respondents.
[2]
The matter was set down for hearing on 28
May 2020 and due to the Covid-19 lockdown measures, the parties
presented arguments via
Zoom.
Relief sought
[3]
The
Applicants approached this Court in terms of the provisions of
section 186(1)(b), read with section 198B(5) of the Labour Relations
Act
[1]
(LRA) for relief in a
Part A and Part B. The relief set out in Part A is sought on an
urgent basis and Part B of the application
is to be enrolled for
hearing on a date to be determined by the Registrar of this Court.
[4]
The Applicants filed an amended notice of
motion and I do not intend to deal with the amendment in much detail.
What is apparent
from the initial as well as the amended notice of
motion is that in Part A thereof, the Applicants effectively seek an
order to
interdict and restrain the Respondents from terminating
their contracts, pending the conclusion and finalisation of the
engagement
process regarding the transfer or absorption of the
Applicants.
[5]
The relief sought in Part B is based on the
provisions of sections 198B of the LRA and it is not relevant for
purposes of this judgment.
Urgency
[6]
The Respondents took issue with urgency and
as this application is brought on an urgent basis, urgency is the
first hurdle that
the Applicants have to overcome.
Legal principles
[7]
Before I deal with the question whether
this application should be heard as one of urgency, I deem it prudent
to set out the legal
framework and principles within which a question
of urgency is to be considered and decided.
[8]
The relevant portion of Rule 8 of the Rules
for the Conduct of Proceedings in the Labour Court provides that:
‘
(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;’
[9]
An
applicant that approaches the court on an urgent basis essentially
seeks an indulgence and to be afforded preference in order
to prevent
the prejudice and harm that may materialise or persist, if the
conduct complained of continues. Central to a determination
of
whether a matter is urgent is whether the applicant has in the
founding affidavit, set forth explicitly, the circumstances which
render the matter urgent, and the reason why substantial relief
cannot be attained at a hearing in due course.
Thus,
it is required of the applicant to adequately set out in his or her
founding affidavit the reasons for urgency, and to give
cogent
reasons why urgent relief is necessary
[2]
.
[10]
What
would an applicant who seeks to make out a case of urgency then have
to show? In
Mojaki
v Ngaka Modiri Molema District Municipality and Others
[3]
the
court referred with approval to the following dictum from
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and Others
[4]
:
‘
An
applicant has to set forth explicitly the circumstances which he
avers render the matter urgent. More importantly, the applicant
must state the reasons why he claims that he cannot be afforded
substantial redress at a hearing in due course. The question of
whether a matter is sufficiently urgent to be enrolled and heard as
an urgent application is underpinned by the issue of absence
of
substantial redress in an application in due course. The rules allow
the court to come to the assistance of a litigant
because if the
latter were to wait for the normal course laid down by the rules it
will not obtain substantial redress.'
[11]
In deciding
whether
a matter is urgent, two considerations are involved. 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.
[12]
In
Vermaak
v Taung Local Municipality
[5]
this
Court has held that:
‘
The
consideration of the first requirement being why is the relief
necessary today and not tomorrow, requires a court to be placed
in a
position where the court must appreciate that if it does not issue a
relief as a matter of urgency, something is likely to
happen. By way
of an example if the court were not to issue an injunction, some
unlawful act is likely to happen at a particular
stage and at a
particular date.’
[13]
The principles around urgency had been
developed and considered by the courts and on numerous occasions have
the courts made it
clear that self-created urgency is not to be
entertained by an urgent Court.
[14]
In
considering Rule 8, the Court in
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
[6]
held
that:
‘
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.'
[15]
In
National
Union of Metalworkers of SA v Bumatech Calcium Aluminates
[7]
the
Court held that:
‘
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. In other words, 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.
In
Collins t/a Waterkloof Farm v
Bernickow NO & another
the
court held that:
'if
the applicants seeks this court to come to its assistance it must
come to the court at the very first opportunity, it cannot
stand
back and do nothing and some days later seek the court's assistance
as a matter of urgency'.
[16]
In
National
Police
Services Union and others v National Negotiating Forum and Others
[8]
this Court held the view that the latitude extended to parties to
dispense with the Rules of the court in circumstances of urgency
is
not available to parties who are dilatory to the point where their
very inactivity is the cause of the harm on which they rely
to seek
relief.
[17]
Emanating from the provisions of Rule 8 and
the principles set out in the authorities referred to, it is evident
that urgency is
not there for the taking, and an applicant seeking
urgent relief must adequately and in detail, set out in the founding
affidavit,
the reasons of which the matter before the court should be
treated with urgency.
[18]
In
order for any arguments on urgency to be sustained, the applicant
must have acted with due haste, when knowledge of the respondent's
prejudicial behaviour or actions is gained.
It
is trite that an applicant is not entitled to rely on urgency that is
self-created when seeking a deviation from the Rules
[9]
.
Material facts:
[19]
The explanation for urgency tendered by the
Applicant has to be considered with due consideration of the
Respondent’s challenge
to urgency.
[20]
In my view, the chronological sequence of
events relevant to this application is a factor to be considered in
deciding the issue
if urgency.
[21]
The First Respondent
(the Department) is engaged in the Expanded Public Works Programme
(EPWP), which terms are governed by the
relevant Ministerial
Determination. The EPWP is a poverty alleviation programme, intended
to provide public or community assets
or services through a labour
intensive programme, initiated by government and funded from public
resources.
[22]
The Applicants were
participants in the Zivuseni Poverty Alleviation / National Youth
Service Programme for a period of one year,
commencing on 1 April
2019 and terminating on 31 March 2020. They accepted the terms of
reference for the aforesaid period, which
regulated the terms and
conditions of participation in this programme.
[23]
The Applicants
rendered various services at different provincial and local
government sites throughout Gauteng. The Applicants’
case is
that on or about 6 March 2020, they received SMS notifications from
the Department stating that their contracts would terminate
on 31
March 2020 and that they would not be renewed.
[24]
The Applicants made
an attempt to engage with the Department pursuant to the notification
they received, which the Respondents initially
refused, but after a
sit-in was staged at the Department’s premises, the Department
was compelled to engage. A meeting was
initially scheduled for 14
March 2020, which was rescheduled to 16 March 2020 and again
rescheduled to 27 and 30 March 2020. Due
to the national lockdown
that commenced on 27 March 2020, the intended meeting with the
Department never materialised.
[25]
On 25 March 2020, the
Applicants’ attorney, Mr Voyi, addressed a letter to the
Respondents, requesting that a written undertaking
be provided that
the Department would not proceed with the intended termination of the
Applicants’ contracts on 31 March
2020, pending the
finalisation of the engagement processes. It was made clear that if
no undertaking was received by 12:00 on 26
March 2020, the Applicants
would approach this Court on an urgent basis to restrain the
Department from proceeding with the aforesaid
termination.
[26]
No response was received and on 27 April
2020, Mr Voyi addressed another letter to the Respondents, demanding
the payment of the
Applicants’ salaries for April, May and June
2020 and a written undertaking that the demanded salaries be paid by
no later
than 28 April 2020, failing which the Applicants would
approach this Court for relief on an urgent basis.
[27]
Mr Voyi approached the Registrar for
allocation of a case number and he was informed that the matter could
be enrolled post the
lockdown.
[28]
The Respondents’ version is that the
application is not urgent as the Applicants were informed in the
various roadshows that
were held during November and December 2019
and they knew from then that their contracts would come to an end on
31 March 2020
and that the Department would not be extending their
contracts when they expire by effluxion of time. Subsequent thereto,
the Applicants
were once again informed in a meeting held on 7
February 2020 that their contracts would come to an end on 31 March
2020 and would
not be extended. The Applicants were finally informed
on 6 March 2020 that their contracts would be ending on 31 March 2020
and
it is not explained why they did not take any action much sooner.
[29]
I take note of the fact that when the
Respondents were put on terms, the intention to approach this Court
on an urgent basis was
expressed for the first time on 25 March 2020,
the intention was repeated on 27 April 2020, yet the application was
only filed
on 25 May 2020.
[30]
Level 5 of the national lockdown was lifted
on 30 April 2020 and the country moved to level 4 alert with effect
from 1 May 2020.
The Applicants submitted that when the lockdown
level was eased to level 4 alert, the Labour Court had not started
operating until
19 May 2020. This statement is factually incorrect as
the Court commenced with the adjudication of matters set down in the
normal
course as from 4 May 2020 and the urgent Court sitting
operated throughout.
[31]
There is no doubt merit in the Respondents’
arguments on the issue of urgency and in the ordinary course, and
applying the
principles set out
supra
,
the Applicants would not have crossed the hurdle of urgency. However,
I am inclined to exercise my discretion and deal with this
matter
notwithstanding the obvious lack of urgency. This matter was enrolled
for hearing on 28 May 2020, when it was fully argued
and received
judicial attention. If it is struck off the roll for lack of urgency,
as it should, it will in all probability be
enrolled in the normal
course, meaning that another judge would have to spend time on this
matter and another Court day will be
allocated for it.
[32]
Judicial resources are scarce and limited
and in my view, this matter lacks merit to the extent that it should
be put out of its
misery sooner rather than later and it should not
make its way back to Court in the ordinary course. No other Court
should be burdened
with dealing with it, therefore I will deal with
Part A of this application, despite the lack of urgency.
Part A
[33]
In Part A, the Applicants seek an order to
interdict and restrain the Respondents from terminating their
contracts, pending the
conclusion and finalisation of the engagement
process regarding the transfer or absorption of the Applicants.
[34]
It is trite than in order to succeed in
obtaining an interim interdict, the Applicants have to satisfy the
following requirements:
they must demonstrate a
prima
facie
right, a well-grounded
apprehension of irreparable harm, that the balance of convenience
favours the granting of the relief sought
and the absence of any
alternative remedy.
[35]
In their heads of argument, the Applicants
framed the relief they seek
inter alia,
as interim relief that will reverse the unlawful termination if their
contracts.
Prima
facie
right
[36]
Whether
or not the Applicants have a right is a matter of substantive law and
the onus is on them to establish on the facts and
evidence placed
before this Court that they have a
prima
facie
right
in terms of the substantive law. The Applicants also have to prove
that the right is a legal right which can be protected
[10]
.
[37]
For purposes of Part A, the Applicant’s
case is that they have been engaged for more than six years rendering
services under
the EPWP and as such a legitimate expectation to a
continued engagement has been established over the years. The right
which the
Applicants seek to enforce and protect, as is apparent from
their pleaded case, is to be found in section 186(1)(b) of the LRA.
[38]
The Applicants’ case is that they are
entitled to remain engaged as employees based on a legitimate
expectation of a renewal
of their contracts in terms of section
186(1)(b) of the LRA. As already alluded to the relief sought in
terms of section 198(B)
of the LRA is to be dealt with Part B and is
not relevant for purposes of this judgment.
[39]
It is evident from the facts placed before
me that the gist of the Applicants’ case is their concern about
the lawfulness
of the termination of their contracts in circumstances
where they had a legitimate expectation to continued and undisturbed
job
security.
[40]
The question thus is whether the Applicants
have a legal right in terms of section 186(1)(b) of the LRA
.
This question calls for a closer
consideration of the provisions of section 186(1)(b) of the LRA.
[41]
In my view, there are multiple difficulties
in the Applicants’ case.
[42]
Firstly,
section
186(1) of the LRA does no more than to set out the meaning of
‘dismissal’. Section 186(1)(b) simply extends
the
definition of dismissal to include the non-renewal of a fixed term
contract or the non-retention of an employee when there
was a
reasonable expectation that the employer would do so.
[43]
The Applicants’ reliance on section
186(1)(b) of the LRA as their
prima
facie
right is misplaced
as it does not bestow any rights or ‘protection’ upon
employees.
[44]
Whether the
Applicants indeed had a reasonable expectation as provided for in
section 186(1)(b) of the LRA or whether the termination
of their
contracts constituted a dismissal, is not for this Court to decide.
[45]
The Applicants failed
to identify the right which entitles them to the relief in the form
of an interdict that they seek. At best,
they placed reliance on a
section of the LRA that does not bestow any rights and as such they
dismally failed to cross the first
hurdle for an interim interdict.
[46]
Secondly, the golden thread that runs
through the Applicants’ pleaded case is that their contracts
were unlawfully terminated
and that the Respondents’ conduct in
that regard is unreasonable and unlawful. In fact, it is specifically
pleaded that urgency
is established on the basis of the unlawful
termination of the Applicants’ contracts.
[47]
It is evident from the founding affidavit
that apart from a single averment that no fair procedure was followed
in the termination
of the Applicants’ contracts, the
Applicants’ pleaded case is premised on unlawfulness and not
unfairness. It is further
evident that relief is sought in terms of
the provisions of the LRA.
[48]
It is doubtful that the Applicants’
lawyers had any regard to the relevant authorities when the founding
affidavit was drafted
as it is by now trite that unlawfulness cannot
be sustained in respect of a cause of action that is found in the
provisions of
the LRA.
[49]
As
far back as 2016, the Constitutional Court held in
Steenkamp
and Others v Edcon Ltd (National Union of Metalworkers of SA
intervening)
[11]
(Steenkamp)
as
follows:
‘
Section
189A falls within chapter VIII of the LRA. That is the chapter that
deals with unfair dismissals. Its heading is: “Unfair
dismissal
and unfair labour
practice”.
Under the heading appears an indication of which sections fall under
the chapter. …
Conspicuous
by its absence here is a para
(c)
to the effect that
every employee has a right not to be dismissed unlawfully. If this
right had been provided for in s 185
or anywhere else in the LRA, it
would have enabled an employee who showed that she had been dismissed
unlawfully to ask for an
order declaring her dismissal invalid. Since
a finding that a dismissal is unlawful would be foundational to a
declaratory order
that the dismissal is invalid, the absence of a
provision in the LRA for the right not to be dismissed unlawfully is
an indication
that the LRA does not contemplate an invalid dismissal
is a consequence of a dismissal effected in breach of a provision of
the
LRA.
This
indication is reinforced when one has regard to the definition of
“dismissal” in s 186(1). … Once again
the absence
of any reference to an unlawful dismissal is telling. It suggests
that, if the dismissed employee wishes to raise the
unlawfulness of
their dismissal, they must categorise it as unfair if they are to
obtain relief under the LRA.’
[50]
In
Smith
and Another v Office of the Chief Justice and Others
[12]
this
Court adopted the same approach where the applicants also alleged a
legitimate expectation and held as follows:
‘
I
deal first with the applicants’ submissions regarding the
alleged unlawfulness of the OCJ’s failure to appoint them.
In
Steenkamp
,
the Constitutional Court held that there is no provision in the LRA
for a right not to be dismissed unlawfully and no provision
is made
for any dispute procedures or processes for the enforcement of
such a right. If the LRA contemplated such a right
in regard to
dismissals, it would have made provision for it and for a dispute
procedure to be followed in disputes concerning
its infringement.
Nowhere in the entire LRA is there mention of the words ‘dismissal’
and ‘unlawful’ or
‘invalid’ in the same
sentence. Yet there are many sentences in the LRA in which the words
‘dismissal’
and ‘unfair’ appear. The LRA does
not contemplate a right not to be unlawfully dismissed nor does it
contemplate invalid
dismissals or orders declaring dismissals invalid
and of no force and effect.
Specifically,
the majority of the court held that:
‘
The
LRA created special rights and obligations that did not exist at
common law. One right is every employee’s right not to
be
unfairly dismissed which is provided for in s 185. The LRA also
created principles applicable to such rights, special processes
and
fora for the enforcement of those rights. The requirement for
the referral of dismissal disputes to conciliation is one
of the
processes created by the LRA. The CCMA, bargaining councils and the
Labour Court are some of the fora. The principles, processes,
procedures and fora were specially created for the enforcement of the
special rights and obligations created in the LRA. Indeed,
the LRA
even provides for special remedies for the enforcement of those
rights and obligations. The special remedies include interdicts,
reinstatement and the award of compensation in appropriate cases.
These special rights, obligations, principles, processes, procedures,
fora and remedies constitute a special LRA dispensation.’
[51]
In
DEMAWUSA
and Others v City of Johannesburg
[13]
,
the
Court confirmed that
the
effect of
Steenkamp
[14]
is that when an applicant alleges that a dismissal is unlawful (as
opposed to unfair), that applicant has no remedy under the LRA
and
this Court has no jurisdiction to make any determination of
unlawfulness. If a remedy is sought under the LRA, the applicant
must
categorise the alleged unlawfulness as unfairness.
[52]
It is well
established that jurisdiction is to be determined from the pleadings.
In motion proceedings, the pleadings comprise the
affidavits filed by
the parties. As already alluded to above, in the founding affidavit,
the Applicants did not place any reliance
on fairness as the basis of
their cause of action. They clearly framed their case on the basis of
what they allege to be an unlawful
termination of their contracts in
circumstances where they allege that they had a legitimate
expectation of continued employment.
[53]
In summary: The
Applicants approached this Court for relief in terms of the LRA and
the cause of action as pleaded by the Applicants
is one of
unlawfulness, based on the alleged unlawful conduct by the
Department. The Applicants’ claim of unlawful termination
of
their contracts is not a claim contemplated by the LRA and the LRA
does not confer jurisdiction on this Court to grant relief
on the
Applicants’ pleaded case. There is no remedy that this Court
can afford the Applicants to the extent that they
claim that the
termination of their contracts was unlawful.
[54]
In view of my
conclusion that this Court lacks jurisdiction to grant the relief
sought, it is not necessary for me to consider whether
the Applicants
have met all the requirements for an interim interdict.
Costs
[55]
The last issue to be
decided is the issue of costs.
[56]
Insofar as costs are concerned, this Court
has a broad discretion in terms of section 162 of the LRA to make
orders for costs according
to the requirements of the law and
fairness.
[57]
In
Zungu
v Premier of Kwa Zulu-Natal and Others
[15]
the
Constitutional Court confirmed the rule 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 cases that should not
have been brought to Court in the first
place.
[58]
Mr Ramaepadi for the Respondents submitted
that costs should follow the result as this is a meritless
application.
[59]
Mr Mkhize for the Applicants submitted that
there should be no order as to costs as the Applicants are the most
vulnerable members
of society and they would be unduly burdened with
a cost order. The First Applicant subsists on subscriptions from its
vulnerable
members and it is not a union that is financially well-off
and it faces uncertainty as to its future.
[60]
In
my view, this is a matter where a cost order would be appropriate.
This application was drafted without due consideration of
the
applicable principles, the provisions of the LRA and the
Constitutional Court
dicta
of
Steenkamp
[16]
.
However,
the Applicants cannot be blamed for this. Their legal representatives
are solely to be blamed for the manner in which their
case was
pleaded and presented. The Respondents however did not ask for a cost
order
de
bonis propriis.
[61]
The Applicants are
fighting to retain their livelihood and in doing so, they opted to
approach this Court, albeit incorrectly so.
In
view of the position that the Applicants find themselves in, the
interest of justice would be best served by making no cost order.
[62]
In the premises, I make the following
order:
Order:
1.
The urgent
application is dismissed;
2.
There is no order as
to costs.
___________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
Applicants:
Advocate B M Mkize
Instructed
by:
Ndomiso Voyi Inc Attorneys
Respondents:
Advocate Ramaepadi
Instructed
by:
State Attorney, Johannesburg
[1]
Act
66 of 1995, as amended.
[2]
Transport
and Allied Workers Union of SA vs Algoa Bus Company (Pty) Ltd
(
2015)
36 ILJ 2148 (LC).
[3]
(2015)
36
ILJ
1331
(LC)
at
para
17
.
[4]
[2011]
ZAGPJHC 196;
[2012] JOL 28244
(GSJ) at para 6.
[5]
(JR315/13)
[2013] ZALCJHB 43 (12 March 2013) at para 12.
[6]
(2010)
31
ILJ
112
(LC)
at
para
18
.
[7]
(2016)
37 ILJ 2862 (LC).
[8]
(1999)
20 ILJ 1081 (LC)
.
[9]
See:
Jiba
v Minister: Department of Justice and Constitutional Development and
others
(2010)
31 ILJ 112 (LC).
[10]
The
Civil Practice of the High Courts of South Africa, Herbstein &
Van Winsen, 5
th
edition, page 1457– 1463.
[11]
2016
(3) SA 251 (CC)
;
(2016)
37
ILJ
564
(CC)
at
paras 106 and 107.
[12]
(2018)
39 ILJ 1357 (LC) at para 24 and 25.
[13]
(2020)
41 ILJ 912 (LC).
[14]
Id
n 11.
[15]
(2018)
39 ILJ 523 (CC) at para 24.
[16]
Supra
n
11.