VIC & DUP/JOHANNESBURG/LKS
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO. J672/99
In the matter between:
PUBLIC SERVANTS ASSOCIATION OF
SOUTH AFRICA Applicant
and
DIRECTORGENERAL, NORTHWEST PROVINCIAL
ADMINISTRATION Respondent
J U D G M E N T
ZONDO J :
[1] The Public Association of South Africa has brought an application on
an urgent basis against the DirectorGeneral, NorthWest Province for
an interim order the effect of which would be to order the respondent
to pay certain members of the applicant who have been suspended
from the employment of the North West Province their normal
emoluments during their suspension which was effected by the
respondent with effect from about 18 January 1999.
[2] The applicant contends that the suspension constitutes an unfair
labour practice insofar as it is without emoluments. It says there is no
basis for their suspension to be without emoluments because the
respondent’s case is that the purpose of the suspension is to ensure that
there is no interference with the investigation that is being conducted
in the interim during their suspension. The applicant points out that if
its members are paid their emoluments and they still remain
suspended, that would be adequate to ensure that there is no
interference with investigations which are being conducted.
[3] The suspension of the members of the applicant involved appears to
have been effected by way of a letter which was signed by the Deputy
DirectorGeneral of the North West Province which was attached to
the papers as "AC4". The last sentence of the first paragraph of that
letter says that the suspension would be for six weeks which is with
effect from 18 January 1999. Today is the 26th February 1999. This
means that the suspension has been going on for five weeks and that
only a week is left before the six weeks period is up.
[4] The first issue which the court has to deal with is to satisfy itself
whether this matter is urgent. This is so for at least three reasons. One
reason is that the respondent must be given enough time to take the
necessary steps to oppose such an application. The second is that
there is public interest involved in the court allowing matters to be
dealt with on an urgent basis. The third is the convenience of the court.
Of these factors I am of the opinion that the fact that in this case the
respondent appears to have been given notice and served with papers
and could have opposed the application if it wanted to, only addresses
the first point.
[5] With regard to the second point, namely public interest, that is based
on the fact that there are many litigants who have got matters pending
in this Court who desire to have their matters dealt with. All of those
litigants are awaiting their turn for their matters to be heard. When a
litigant therefore applies to court on an urgent basis, the court must be
satisfied that the matter is truly urgent and that if the matter were not
dealt with on an urgent basis, such person would suffer irreparable
damage. In fact, a litigant who approaches the court on an urgent
basis asks the court to allow it to jump the queue.
[6] If a matter is not truly urgent the court ought not to allow it to be heard
on an urgent basis and the court should let that particular litigant take
his place in the queue and come and be heard in court when his turn
comes. In this particular matter the applicant sets out under paragraph
5 what it puts forward as grounds of urgency. In paragraph 5.2 the
applicant says the suspension without emoluments of its members will
create suspicion in the minds of its members’ colleagues about their
integrity. I do not think that that point is particularly persuasive to
justify allowing the applicant in this matter to be heard on an urgent
basis.
[7] The second point is in 5.3. It is that the suspension without
emoluments constitutes a penalty despite the fact that no charges have
been preferred against the members of the applicant. I am also of the
opinion that insofar as the issue of urgency is concerned, 5.3 is not a
particularly persuasive point.
[8] The point that requires some consideration is 5.5. There the applicant
has the following to say about its members and the alleged urgency of
this matter:
"5.5 The families of the individual employees also depend on them to
meet their basic needs. This includes the education of their
children, payment of accounts, payment of policies to ensure that
they do not lapse, payment for medical expenses, transport,
boarding, maintenance and the like. This very real prejudice
which is ongoing cannot be cured by a subsequent order of either
reinstatement or compensation. While Professor Ntwane has
stated that their suspension will operate for a period of six weeks,
there is no indication from the department as to when, if at all,
disciplinary proceedings will be instituted against them. In the
event of no disciplinary proceedings being instituted against the
individual employees, they will have been penalised unfairly by
being placed on suspension without emoluments.”
[9] The point in 5.5 is stated in very general terms. Par 5.5 refers to
education of children of members of the applicant. It does not in this
regard indicate what schools or institutions of learning such children
go to nor does it indicate that all the members involved in this case
have got children who go to school and will have a problem. It also
does not indicate exactly when next the members would need to make
payments for school fees. That is important in the context of this case
because in a week's time the suspensions, according to the letter of
suspension, will come to an end. It would have been particularly
important for the applicant to indicate if by the end of that period there
will be any school accounts which would have become due or overdue
and that the particular schools involved take the attitude that they will
not wait.
[10] In general it may be argued that one could have allowed a matter such
as this to be dealt with as urgent on the basis of such disruptions of the
children’s schooling as the failure to pay their school fees could cause
to the children of the applicant’s members. However, in this case such
weight as that factor might have had is weakened by the fact that in a
week’s time the suspension will come to an end and no evidence has
been placed before the Court to show that there are any school
accounts which are already overdue.
[11] In my view all the factors which the applicant refers to in par 5 are
stated without sufficient information that would enable the court to
conclude that what is going to happen or is likely to happen within the
remaining week of the suspensions is such that the applicant’s
members will suffer irreparable harm. It is possible that after a week
the individuals concerned may well have the suspensions lifted as is
implied in the letter of the DirectorGeneral.
[12] In all the circumstances I am not persuaded that this matter deserves to
be dealt with on an urgent basis. Accordingly the matter is struck off
the roll.
R M M ZONDO
JUDGE : LABOUR COURT OF SOUTH AFRICA
26 FEBRUARY 1999
ON BEHALF OF APPLICANT : MR G HIGGINS
: Sampson Okes Higgins
ON BEHALF OF RESPONDENT : NO ATTENDANCE
DATE OF JUDGMENT : 26 FEBRUARY 1999