NOT REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
CASE NO: D818/00
IN THE MATTER BETWEEN
APPLICANT
AND
RESPONDENT
JUDGMENT
[1] In this matter the applicant filed an application in which he seeks the following relief:
(a) An interdict restraining the respondent from terminating his employment pending the
outcome of the arbitration hearings between Mitusa v Portnet under case no. KN 52445.
(b) An order reinstating the applicant in the employ of the respondent with immediate effect,
and thereafter interdicted and restrained from terminating the employment of the applicant
pending the outcome of the proceedings under case no. KN52445 pending at the CCMA.
[2] The application is being opposed by the respondent who also took three points in limine
being the locus standi of the applicant to bring the present application in the light of the fact
that he belongs to a union and that the union had to institute the present proceedings. The
second point was that there is a similar matter pending at the CCMA instituted by the
applicant. The third point is that at the time the present application was launched the
applicant’s services had not been terminated and for that reason this action is premature.
[3] There were other preliminary issues the court had to deal with. Those were in regard to
the late filing of the replying affidavit by the applicant and the late filing of the heads of
argument. I will return to this later.
[4] The applicant was employed by the SADF as a Naval officer. On 24 th March 1999 an
advert appeared in the Sunday Times for the recruitment of Navy personnel to join the
respondent as tugmasters. One of the requirements was a Naval Watch Keeping certificate.
The applicant held this certificate. It was also stated that opportunities for selfrealization
and career advancement existed within the respondent.
[5] On the 24 th April 1997 the chief directorateshipping of the department of transport
published a marine circular No. 10 of 1997. I now set out the important parts of this
circular:
“1. In the continued development of its policy to allow the employment of naval officers on
commercial vessels and in discussions with Portnet, the department has agreed to their
employment on Portnet tugs subject to the following conditions:
(a) The employment is permitted on exemption in terms of section 83 of the Merchant
Shipping Act
(b) .....
(c) because the officer does not hold a STCW equivalent certificate, The exemption is for
port limits only and not for voyages to sea
(d) .....
(e) the application for exemption is to come from Portnet.
2. The above is an interim measure. Portnet is developing a training programme and plan to
take officers through from rating to master. There will be a programme for certificates
limited to port operations and another to enable the officers to obtain an STCW endorsement
to his or her certificate of competency.
3. It is the aim of the programme to slot naval officers into these training programmes and
in so doing, dispense with the need for exemption. Should a Naval Officer want to obtain a
Deck Officer certificate of competency with STCW endorsement, the current system and
practice calls for him or her to show proof for the issue of a Deck Officer Class 3 certificate
of competency.”
[6] The applicant and other naval officers were employed as tug masters by the respondent.
The applicant worked under a temporary exemption issued in terms of section 83 of the
Merchant Shipping Act. The exemption was issued by the Department of transport. These
exemptions were a temporary measure to enable the officers to obtain the necessary
qualification to become tug masters for the purpose of operating commercial vessels. The
exemptions enabled the officers to operate within the port limits. The officer had to obtain
the STCW certificate. In terms of circular NO 10/1997 a programme for this certificate
would be available within the respondent
[7] The respondent developed an internal qualification which was accredited by SAMSA.
This qualification did not qualify the officers to obtain the STCW certificate. The officers
saw this as a unilateral change of employment conditions as contained in the contract of
employment. A dispute was declared and the matter was conciliated. It went on arbitration
in Port Elizabeth under the CCMA cas NO. EC 16971. The Commissioner found that the
employer (Respondent) had committed unfair labour practice by not allowing the employees
to gain training to obtain the STCW certificate.
[8] I will not deal with other issues raised and decided at the arbitration for the purpose of
this application.
[9] The applicant was given notice of termination of employment for operational reasons on
the grounds that respondent had been notified that SAMSA, the controlling body of the
marine industry had decided to withdraw the exemption.
[10] The applicant approached this court for an interdict preventing the respondent from
dismissing him pending the outcome of an arbitration hearing between his union MITUSA v
Portnet under case No. EC 16971. This application was brought before the award was
issued in case No. EC 16971. The award was issued in favour of the UNION on 4 th July
2000.
[11] Applicant has sought amendment to have the respondent interdicted and restrained from
terminating his employment pending the outcome of the arbitration hearing in case No KN
52445. In addition to this applicant is seeking an order of reinstatement pending the
outcome of the arbitration hearing. I must mention that the award in EC 16971 went in
favour of the Union.
[12] I will now deal with the points raised in limine. The first point is that the applicant has
no locus standi to bring these proceedings as he belongs to the union. It was submitted that
in terms of the Recognition Agreement the Union should be the party instituting these
proceedings: I have been provided with the collective agreement between the respondent and
MITUSA the trade union of which applicant is a member. Clause 3.1 of the agreement
provides that the company (Respondent) recognises the union as the collective bargaining
representative to negotiate terms and conditions of employment for employees. It thus sets
out the categories of employees covered by the agreement. Clause 9.2.1 provides that the
union may declare a dispute regarding the fairness of termination of employment by the
company.
[13] I was not referred to any specific clause of the agreement preventing the applicant from
instituting these proceedings. I am not surprised that this was not done because there is
none. There is no waiver in the agreement prohibiting the steps taken by the applicant. I
am not aware of any provision in any law prohibiting a party to institute an action on his
own if he is a member of a trade union. This ground of opposition has no merits in law and I
own if he is a member of a trade union. This ground of opposition has no merits in law and I
reject it. Unless there is a clear waiver by a party it cannot be said by mere becoming a
member of a union he cannot act on his own.
[14] The second point in limine is that of Lis alibi pendens in that the applicant had launched
an application in the CCMA under case number KN 48982. The applicant admits this but
alleges that the said action was to declare the respondent’s action to force the applicant to
take the accumulated leave pay as an act of constructive dismissals.
[15] The onus is upon the respondent to prove this defence. The respondent has to prove not
only that the action at the CCMA is between applicant and respondent but that the cause of
action is the same. See Van As v Appollus EN ‘n Andere 1993 (10) SA 606 at 609 FG. In
this regard, see also Mtshali v Mtambo and Another 1962 (3) 469 at 475 where De Vos
Hugo J stated “ This is an exceptio declinatoria which is available only when the lis alibi
pendens is between the same parties, raises the same issue and arises from the same cause of
action”. In that case the learned judge also raised a question whether such a plea can be
raised in interdict proceedings. The court is not called upon to decide that question in the
present proceedings. The present case is an interdict. There is nothing before me indicating
that the case pending at the CCMA related to the same cause of action as the one presently
before the court. Be that as it may, the CCMA would not have jurisdiction to interdict the
actions of the respondent . This defence must also fail.
[16] the third defence in limine is that these proceedings are premature as the respondent had
not dismissed the applicant. The court accepts that at the time the proceedings were
launched the applicant had not been dismissed. I fail to understand this submission as the
very nature of the interdict is to prohibit the threatening action. Support for this can be
found in Herbstein and Van Winson: The Civil Practice of the Supreme Court of South
Africa, 4 th Edition on page 1063 where the learned authors state “An interdict is an order
Africa, 4 th Edition on page 1063 where the learned authors state “An interdict is an order
made by a court prohibiting or compelling the doing of a particular act for the purpose of
protecting a legally enforceable right which is threatened by continuing or anticipated harm.
Most interdicts are prohibitory in nature, ordering the respondent to desist or refrain from
doing a particular act”. This defence must also fail for the reason that a party does not have
to wait until the threat materialises before approaching the court for an interdict. That will
serve no purpose.
[17] It was submitted on behalf of the respondent that the applicant had failed to file the
heads of argument in time. I then wanted to know if the respondent wanted the matter to be
postponed. I was then advised by counsel for the respondent that if the court is prepared to
grant condonation for the late filing of the heads of argument, respondent was prepared to
proceed with the case. The respondent’s heads of argument did not deal with the merits of
the application. I granted condonation for the late filing of the heads of argument. The
matter was then argued on the merits. At the end of the argument by both counsel I
requested further information relating to the CCMA proceedings to enable the court to make
a decision. These documents were later provided as they were not available when the matter
was argued.
[18] Section 158 (1) (a) (ii) of the Labour Relations Act provides that the Labour Court may
make an appropriate order, including an interdict. This court accordingly has jurisdiction to
hear this matter. For the applicant to succeed in the application he must prove that (a) he has
a prima facie right (b) apprehension of irreparable harm (c) balance of convenience favours
the granting of the interim relief and (d) that he has no other satisfactory remedy.
[19] The applicant has submitted that he has a right not to be dismissed on the ground which
the respondent threatens to do so. It was submitted that the respondent frustrated the
applicant from obtaining the necessary qualification and therefore could not dismiss the
applicant on operational reasons. The respondent has countered this argument by submitting
that the applicant failed to take the port operations certificate provided by the respondent. It
was further submitted that other officers did the course provided by the respondent. The
was further submitted that other officers did the course provided by the respondent. The
applicant submitted in his papers that the respondent was in fact changing the contract of
employment. The CCMA in Port Elizabeth has already ruled that the respondent should
allow the employees to gain the training for the purpose of obtaining a STCW endorsement
certificate. The commissioner further ruled that should such training result in absence on
leave, respondent shall pay such employee his full remuneration and benefits during the
period of absence. It is therefore not open to the respondent to dismiss the applicant. The
applicant has accordingly succeeded in proving that he has a prima facie right. I find that it
is the failure of the respondent to afford the applicant an opportunity to obtain the STCW
qualification which has directly resulted in the applicant’s being unable to obtain the
necessary qualification and be able to be a tug master.
[20] The applicant has submitted in his papers that he would be financially harmed if the
dismissal proceeds. He has further submitted that he can be gainfully employed by the
respondent in several marine fields in which he has experience. It was submitted on behalf
of the respondent that the applicant should have considered the consequences of his actions
prior to breaching the conditions of his employment. It was further submitted that the
respondent cannot pay an individual who cannot perform his job description. I must indicate
again that these proceedings were instituted before the award was made by the CCMA in
Port Elizabeth. At the time the matter was argued, the court was in possession of the
arbitration award which favoured the applicant’s union. The applicant had not been
dismissed at the time of the commencement of these proceedings and felt that his rights were
threatened and needed protection. The applicant would in my view suffer irreparable harm
if the respondent is allowed to dismiss him. In any event the applicant seeks an interim
order pending the resolution of the dispute at the CCMA. I accept that the applicant has not
been offered any alternative employment. The respondent submitted that the applicant
rejected the respondent’s offer. In the same breath it was submitted that there is a material
managerial directive that no vacancies are to be filled pending the restructuring. This leaves
a question as to how the respondent would make an offer of the alternative employment in
a question as to how the respondent would make an offer of the alternative employment in
the light of this allegation. If applicant looses employment in the manner the respondent
intends terminating it, applicant is likely to loose his possessions. I am satisfied that the
applicant has proved that he will suffer irreparable harm.
[21] The respondent has submitted that it will suffer prejudice in the event of its decision to
dismiss applicant being found to be fair in that it would be unable to recover the
remuneration paid to the applicant. The applicant submitted that the balance of convenience
was in his favour. We are here dealing with an individual as opposed to a corporate body.
The applicant only wants an interim order reinstating him pending the determination of the
dispute referred to the CCMA.
[22] The purpose of the interdict is to to prevent the harm from happening. What I am asked
to do is to extend the life of the employment contract. There will be prejudice on the part of
the applicant if the interim order is not granted. The applicant has already been dismissed.
The court is generally reluctant to grant reinstatement orders where employees have been
dismissed. See in this regard S.A. Chemicals Workers Union and Others v Sentrachem
(1999) 20 ILJ 159 (LC). The applicant was dismissed when these proceedings had been
instituted.
[23] The applicant did not have to wait for the threat to materialise before approaching the
court. In my view when the employee feels his employment is being threatened by the
unfair actions of the employer, he is entitled to approach the court for the relief. There is no
other remedy available to the applicant to protect his employment.
[24] In my view, the court is entitled to make an order reinstating the applicant pending the
final determination of the dispute instituted at the CCMA notwithstanding the fact that the
applicant has been dismissed. What the court has to be satisfied with is that at the time of
the institution of the proceedings his rights were threatened. I am satisfied that the applicant
has proved that. I am also satisfied that there is no other alternative available to the
applicant.
[25] Where the employment has already been terminated the court cannot make an order
restraining the termination of employment. Such order will serve no purpose. I am of the
view that the court is entitled to make an interim order of reinstatement.
[26] I am satisfied that the applicant has proved that he is entitled to the order prayed. The
order I make is as follows:
(a) The respondent is ordered to reinstate the applicant in his employ with immediate effect
pending the outcome of the proceedings under case number KN 52445.
(b) Respondent is to pay the costs.
NGCAMU AJ
FOR THE APPLICANT: G J PIENAAR & ASSOCIATES
FOR THE RESPONDENTS: KRUGER, NGCOBO INC.