JUDGMENT
Sneller Verbatim/LR REVISED/ NOT REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J3642/00
Heard on: 2001-07-24
Delivered on : 2001-07-27
In the matter between
T J MAGANO Applicant
and
MEC FOR EDUCATION GAUTENG PROVINCE Respondent
_________________________________________________________
J U D G M E N T
_________________________________________________________
PILLAY, J: This matter was set down for hearing of several interlocutory
applications. On 24 July 2001 the court granted an order dismissing the
application for the joinder of the Education Labour Relations Council as the second
respondent with costs. Herewith my brief reasons for that order.
The claim against the E L R C was purportedly for delictual damages arising
from the way the E L R C handled the applicant's case. This court has no
jurisdiction over a dispute between a bargaining council and an employee of a
party to the council as it is not a dispute between an employer and an employee.
Whereas the court is expressly empowered in terms of section 158(1)(e) to
adjudicate a dispute between a trade union or employer's organisation and its
members, a similar power is not granted for disputes between a bargaining
council and the employees of a party to it.
It also seemed that the application for the joinder was aimed at securing the
attendance of representatives of the E L R C as witnesses as certain documents
were required by the applicant for trial. The applicant was directed to use the
process of subpoenaing witnesses who are relevant and to request that they
produce such documents that are in their possession that the applicant requires.
Insofar as the claim against the E L R C may be for delictual damages, see
the judgment below regarding the exception to strike out.
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JUDGMENT
The court also disposed of an application by the applicant for documentation
and disclosure on the basis of an undertaking by the respondent to respond
formally by affidavit to the application appearing from page 209 of the bundle
within ten days.
The court reserved judgment on the remaining applications.
Herewith the judgment on those applications.
The applicant's applications as pleaded had to be clarified at the hearing as
there was much difficulty in understanding precisely what the issues were and
what relief was sought.
The applications for assistance by the court in securing the attendance of
expert witnesses and to provide the financial resources for such witnesses are
refused. The applicant is once again directed to secure the attendance of such
witnesses as are relevant to the issues in dispute by subpoena if necessary and at
his own costs. The court has neither the resources nor the power to pay for the
witnesses of a party. If the court wishes to call its own witnesses it may do so in
exceptional circumstances and once it is satisfied that such expert testimony is
required and is available.
The application for an order for the payment of an allowance being the
equivalent of the applicant's salary pending the finalisation of the dispute is
refused. Every employee who is dismissed experiences financial hardship. Unlike
the old LRA the legislature has not empowered the Labour Court to grant so-called
"status quo" orders pending finalisation of the dispute.
The applicant's launched an application to compel the respondent to admit
or deny the authenticity of signatures of certain officials. If the applicant disputes
the signature of such officials he will have to prove his case at the trial. The
proper procedure for raising such issues is at a pretrial conference. If the
respondent fails to respond at all or adequately to the inquiry, the applicant can
respondent fails to respond at all or adequately to the inquiry, the applicant can
request a pretrial conference before a judge or approach the trial court for an
appropriate costs order. However, this court does not in its discretion consider it
appropriate to compel such a response from the respondent at this stage.
Then there is the application for a directive to verify tape-recorded
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JUDGMENT
information relating to the disciplinary inquiry. The applicant alleges that the
tape-recordings were tampered with. If the applicant intends to challenge the
authenticity of the tape-recordings he must do so in the usual way through
witnesses at the trial. The court is not an expert to determine the authenticity of
tapes by listening to them.
Finally, the respondent's application to strike out is granted as prayed for
the following reasons:
The applicant seeks reinstatement. Insofar as the issues raised in the
paragraph struck off do not go to proving the fairness or unfairness of his
dismissal, they are irrelevant, vexatious or embarrassing and must be struck off.
Furthermore, this court has no power to award any compensation beyond
that authorised by section 194 of the LRA. If it were the intention of the
legislature not to cap damages, but to permit claims for delictual damages it
would have said so expressly because every dismissal is potentially a delictual
claim. In the circumstances the application to strike out must succeed.
With regard to costs, the applicant was unsuccessful in every application
that he has launched and canvassed above. He also failed to resist the
respondent’s application to strike out. The applicant’s “pleadings” were
voluminous and extremely cumbersome to work through. The costs of all the
applications must therefore be paid by the applicant.
PILLAY J
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