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J5366/00 1 JUDGMENT
Sneller Verbatim/IDM CASE NO.J5366/00
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
20001113
In the matter between:
NOMAKHALIPHA MARGARET NONGOGO Applicant
and
THE MEC OF EDUCATION, FREE STATE
PROVINCE First Respondent
THE DIRECTOR GENERAL FREE STATE
PROVINCE Second Respondent
THE HEAD OF THE DEPARTMENT OF
EDUCATION FREE STATE PROVINCE Third Respondent
J U D G M E N T
REVELAS J :
1.The applicant has on an urgent basis approached this court seeking relief
to the effect that she be reinstated, pending the resolution of a
"dispute under chapter 8 of the Labour Relations Act of 1995 (sic) read
with the relevant provisions of the Employment of Educators Act of 1998
(the Act) ".
2.The applicant's services were terminated on 3 October 2000. This apparently
came to the attention of the applicant's attorneys on 26 October 2000.
The reason for her dismissal appears to be that she was discharged form
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her services on account of misconduct, being that she was absent from
work for a period exceeding 14 consecutive
JUDGMENT
days without the consent of her employer.
3.It was argued on behalf of the applicant that since section 25 of the
Educators Act provides that certain terms and conditions remain intact
pending an appeal, which had been lodged at this stage, the applicant
has not been paid her salary, she is entitled to reinstatement and the
payment of her salary.
4.To succeed with the application the applicant has to show firstly that she
has a clear right to reinstatement and repay ment, which on the facts,
she has not proved.
5.Secondly, it must be shown that there is no alternative remedy than to
approach this court on an urgent basis.
The Labour Court does provide for remedies for disputes of this
nature. A right to appeal does not mean that all actions are to be
suspended immediately. That is not what the section says. Employees
have a right to appeal, but the effect of the appeal is not to
reinstate the employee, and on the basis that an appeal has been lodged,
I see no need to reinstate the applicant.
6.The applicant should persue the relief she seeks in respect of her salary
in the normal course.
7.For all the aforesaid reasons I do not regard the matter as urgent.
8.Consequently the application is dismissed.
9.There is no reason why it should not be dismissed with costs, since the
applicant has brought to court a case with no merit and has caused the
respondent to incur the costs of opposing it.
ORDER
The Application is dismissed with costs.
JUDGMENT
On behalf of the Applicant: Mr M. Khang
On behalf of the Respondent: Mr Makka
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