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2020
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[2020] ZALCJHB 97
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Kuhlmann v City of Joburg Property Company (SOC) Ltd and Another (J235/20) [2020] ZALCJHB 97 (26 June 2020)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not
Reportable
Case
no: J235/20
In the matter between:
Loraine
Puleng Kuhlmann
Applicant
And
The
Cit of Joburg Property Company (SOC) LTD
First
Respondent
Bonitas
Medical Aid Scheme
Second
Respondent
Decided:
In Chambers
Delivered:
This leave to appeal judgment was handed down electronically by
circulation to the parties' legal
representatives by email,
publication on the Labour Court’s website and released to
SAFLII. The date and time for hand-down
is deemed to be 10h00 on 26
June 2020.
JUDGMENT in
application for leave to appeal
LAGRANGE J
Background
[1]
The first respondent (‘Joprop’)
is the applicant for leave to appeal against part of the judgment
handed down on 28
February 2020 in the above urgent application. The
applicant (‘Kuhlmann’) opposes the application and
applies for condonation
for the late filing of her answering
submissions, which I see no reason not to grant.
[2]
This matter came before the court on the
urgent roll. Kuhlmann had sought reinstatement of her medical aid
cover, salary and benefits
in terms of her contract of employment,
and to be ‘taken back’ to employment. Further, she sought
to prevent the first
respondent from effecting her “unlawful
retrenchment”.
[3]
At the hearing of the urgent application,
the parties agreed to settle the matter except in one respect, namely
the payment of her
remuneration after the date of the order. The
agreed portion of the court’s order read:
‘
By
agreement between the parties the first respondent shall pay the
arrears and employer medical aid contributions to the applicant’
s medical aid from 1 January 2020;
the first respondent will
resume paying the applicant’s housing subsidy in terms of the
first respondent’s conditions
of service with effect from the
date of this order.’
[4]
In respect of the disputed payment of
Kuhlmann’s salary from the date of the judgment, the court
ordered Joprop to resume
paying her salary from the date of the
order. No order was made as to costs.
[5]
The written reasons provided for making
this order were recorded as:
It
was evident that the applicant remains in the employment of the first
respondent at least at the time the order was made. Accordingly,
since the payment of remuneration is a basic reciprocal contractual
obligation of an employer upon tender of services by someone
who
remains in its employment, no good reason was advanced why the
respondent should not resume paying the applicant’s salary
whilst the applicant remains in its employment. Obviously, the
quantum of the salary actually due to the applicant will be subject
to any contractual or statutory provisions governing the
determination thereof, such as lawful deductions.
Application for leave to
appeal
[6]
In essence, the Joprop contends that there
was no basis for granting the remunerative relief on an urgent basis
because Kuhlmann
did not set out grounds justifying that it was a
matter of urgency, neither did she pray for relief in those terms,
nor set out
the factual pre-requisites therefor.
[7]
Having considered the grounds of appeal, I
am satisfied there is a reasonable prospect another court might come
to a different conclusion.
Order
[1]
The late filing of the Applicant’s
answering submissions in the application for leave to appeal is
condoned.
[2]
The First Respondent is granted leave to
appeal against the following order in the judgment:
“
(t)he
First Respondent must resume paying the Applicant’s salary from
the date of the Order’
[3]
Costs shall be costs in the appeal.
_______________________
Lagrange J
Judge
of the Labour Court of South Africa