Charlies v South African Social Security Agency and Another (J 1157/20) [2020] ZALCJHB 245 (7 November 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: J 1157/20

In the matter between:

DONALD CHARLIES

Applicant

and

SOUTH AFRICAN SOCIAL SECURITY AGENCY First Respondent

MDUMISENI ZULU

Second Respondent

Heard:

27 October 2020

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to

be on 7 November 2020 at 10:00

JUDGMENT

TLHOTLHALEMAJE, J

Introduction and background:

[1] The applicant approached this Court on an urgent basis seeking an interim order to interdict and restrain the first and second respondents from proceeding with the disciplinary enquiry instituted against him, pending the determination of a final interdict sought in another application filed under the present case number.

[2] The first respondent (SASSA) and second respondent (Zulu) in opposing the application raised two preliminary issues in respect of urgency and whether this Court has jurisdiction to intervene in ongoing disciplinary processes.

[3] A preliminary issue was raised regarding the authority of Ms Teleni Emelda Ntabeni to depose to that affidavit. Ntabeni is employed by SASSA as the General Manager: Corporate Service, and she attached a letter of authorisation[1] by SASSA’s Chief Executive Officer.

[4] This preliminary however need to disposed of on the basis of the principles set out in Ganes and Another v Telecom Namibia Ltd,[2] to the effect that the deponent to an affidavit in motion proceedings need not be authorised by the party concerned to depose to the affidavit, and that it is the institution of the proceedings and the prosecution thereof which must be authorised. In any event, ‘Annexure ‘TEN1’ to the answering affidavit, clearly indicates that Ntabeni is duly authorised to depose to the answering affidavit, and in my view, that is sufficient. It is therefore not even necessary to deal with the issue surrounding whether Ntabeni had authority to act on behalf of Zulu as the chairperson of the disciplinary enquiry.

[5] The background to this application is fairly common cause;

5.1 The applicant commenced his employment with SASSA on 1 April 2004 and holds the position of Manager: Facilities Management and Auxiliary Services. On 30 January 2018, a variety of allegations of misconduct were preferred against him, ranging from multiple counts of absenteeism, failure to comply with lawful instructions, and non-compliance with the provisions of the Public Finance Management Act (PFMA).[3]

5.2 A disciplinary enquiry was scheduled to take place on 7 and 8 February 2018. At the commencement of the disciplinary enquiry, SASSA’s Chief Director: Employee Engagement, Sello Malaka (Malaka) was appointed as the chairperson. Another employee, Mr Sizwe Khumalo (Khumalo), who was then in the employ of SASSA as a Senior Manager, was appointed as the initiator. At those proceedings, the applicant sought a postponement in order to be afforded an opportunity to prepare for his case. The enquiry was duly postponed.

5.3 On 6 March 2018, the Public Servants Association (PSA) on behalf of the applicant made a request to SASSA for the disciplinary

process to be conducted under the auspices of the Commission for Conciliation Mediation and Arbitration (CCMA) in terms of the

provisions of section 188A of the Labour Relations Act (LRA).[4] On 8 March 2018, the applicant further made a unilateral application to the CCMA for the disciplinary process to be conducted

under the provisions of section 188A of the LRA.

5.4 In a letter dated 16 March 2018, SASSA’s Reginal Executive Manager: Gauteng, Mr M. Matlou, had declined the applicant’s request for the appointment of an arbitrator, on the basis that the appointed chairperson was an employee of SASSA and was therefore competent to preside over the disciplinary enquiry.

5.5 Further requests by the applicant and the PSA to have the enquiry conducted under the provisions of section 188A of the LRA were declined on 9 April 2018. The enquiry was scheduled for 24 April 2018, but was also postponed. A further sitting scheduled to take place on 9 May 2018, was again postponed on account of the applicant’s absence.

5.6 At some point, the appointed chairperson of the enquiry, Malaka withdrew from the enquiry. Zulu, SASSA’s General Manager: Corporate Services of SASSA, was then appointed as the new chairperson.

5.7 The enquiry was thereafter scheduled to take place on 10 October 2018. On that date, the applicant had raised various preliminary points, contending that in view of him being a shop steward, SASSA ought to have notified the PSA prior to instituting the disciplinary process. He further complained of the inordinate delays in concluding the enquiry and raised issues related to the discovery of the investigation report. He also alleged that there was a conflict of interest in view of Mr Matlou being the

complaint, and also having appointed Zulu and Khumalo as presiding officer and the initiator. He also alleged that the disciplinary

process was a charade, and that he was being subjected to double jeopardy.

5.8 On 25 October 2018, Zulu dismissed all the applicant’s preliminary points and ordered that the enquiry should proceed. The applicant avers that once the enquiry had resumed, further issues arose which necessitated further delays.

[6] In opposing the application, Ntabeni on behalf of the respondents averred that;

6.1 The disciplinary enquiry commenced in earnest on 11 October 2018 and on 12 and 13 November 2018, whereat the evidence of two of SASSA’s witnesses was heard.

6.2 On 10 December 2018 the applicant sought the recusal of Zulu, alleging bias on the latter’s part, and his purported connection with Mr Matlou and his general conduct during the enquiry. The application for a recusal was refused. On 11 December 2018, the applicant was excused from the enquiry on account of being ill, and he had subsequent thereto, submitted a medical certificate which declared him unfit.

6.3 The enquiry was further postponed on 27 March 2019 and had resumed on 31 July 2019 until 2 August 2019. It had also proceeded on 22 October 2019 until 23 October 2019. A further sitting of the enquiry scheduled for 2 December 2019 had to be postponed on account of the applicant’s medical reasons.

6.4 The sitting of the enquiry scheduled for 2 March 2020 until 6 March 2020 was again postponed on the basis that the applicant had alleged that he had not received the notice of the continuation.

6.5 In the meanwhile, the applicant had on 18 March 2020, made an application to postpone the enquiry pending the finalisation of his application under the Promotion of Access to Information Act (PAIA)[5], in order to secure certain information for the purposes of preparing for the enquiry. That application was however dismissed.

6.6 The enquiry having been further scheduled for 23 March 2020 was again postponed on account of the declaration of the National State of Disaster and the imposition of the National Lockdown.

6.7 As at 25 March 2020, the applicant had completed his evidence in chief and was in process of being cross-examined. On the same date, the initiator, Khumalo, resigned from the employ of SASSA.

6.8 The resignation of Khumalo was confirmed on 22 June 2020 in an email by SASSA’s Manager: Labour Relations, Mr Stanley Rakgantsho, who had further indicated that although Khumalo had resigned from SASSA, he would nevertheless continue in his role as initiator until the finalisation of the enquiry.

6.9 The applicant had on 29 June 2020, objected to the continued participation of Khumalo in the enquiry as initiator, as he was no longer SASSA’s employee. He had also reiterated his complaints that Zulu was biased.

6.10 The enquiry was scheduled to continue on 6 July 2020, and the applicant had sought a postponement, alleging that he had been exposed to Covid-19, and thus obliged to self-isolate. Zulu declined to grant the postponement. On 3 July 2020, the applicant approached this Court for urgent relief to stay the disciplinary proceedings, and the matter was settled out of court between the parties.

6.11 The enquiry was thereafter rescheduled to proceed on 20 October 2020 until 23 October 2020. On 14 October 2020, the applicant’s attorneys of record forwarded correspondence to SASSA and Zulu, requesting that the hearing be postponed pending the final determination of an application brought before this Court, to challenge the lawfulness of that hearing.

6.12 On 15 October 2020, Zulu in his response indicated that since a formal application had not been filed and/or that an order of court had not been obtained staying the enquiry, the hearing would continue as scheduled.

6.13 The applicant launched this application on or about 19 October 2020. It initially came before Prinsloo J on 21 October 2020 and was postponed to afford the parties an opportunity to file answering and replying affidavits, with costs being reserved.

Jurisdiction and urgency:

[7] It is trite that jurisdiction is to be determined strictly on the basis of the applicant’s pleadings, and not on the substantive merits of the claim[6]. This Court derives its jurisdiction from the provisions of section 157(1) and (2) of the LRA and its powers from section 158 thereof. As was reiterated in POPCRU and Others v South African Police Service[7], the powers and jurisdiction of the Court are separate concepts that should not be confused with each other.

[8] What is required is a determination of the legal basis for the claim, and then an assessment of whether the court has jurisdiction over it[8]. The issue that arises in this case is whether the court has jurisdiction to entertain a claim for interim relief where the basis

of the complaint is the alleged unfair conduct or unlawfulness on the part of SASSA and Zulu in the conduct of internal and incomplete

disciplinary proceedings.

[9] At the onset, it needs to be pointed out that the applicant has insurmountable hurdles in convincing this Court that it has jurisdiction. One need only have regard to his own pleadings, and the first obvious difficulty is that the founding affidavit does not even address the legal basis upon which this Court has jurisdiction.

[10] In the answering affidavit, it was correctly pointed out that since the applicant impugned the legitimacy of the disciplinary hearing, the court lacks jurisdiction. Rather than a response in regards to the basis upon which the Court has jurisdiction, the applicant in the replying affidavit merely denies that the Court lacks jurisdiction, contending that it has inherent jurisdiction to hear matters of this nature, and further that he had laid a basis for exceptional circumstances. In the heads of argument, it was submitted that based on the decisions in Booysen v Minister of Safety and Security[9], and McBride v Minister of Police and Another[10], this Court has jurisdiction to intervene in incomplete internal disciplinary proceedings. Be that as it may, the pleadings still need to point to any particular legislative provision in invoking such jurisdiction. In this case however, it was only during oral

submissions that it was indicated by the applicant’s counsel that reliance was placed on the provisions of section 158 of the LRA, and it is trite that a case can only be made out in the pleadings.

[11] The contention that based on Booysen and McBride this Court has inherent jurisdiction in respect of all employer-employee related matters is fallacious. As was stated in Gcaba,[11] a legal basis for the claim under which the applicant has chosen to invoke the court’s competence must be laid and for the Court to assess whether it has jurisdiction over that claim. Thus, as was stated in Shezi, what is required of the applicant is to point to a provision of the LRA or some other law that confers jurisdiction on this Court to adjudicate the dispute[12]. The Court cannot by all account have general jurisdiction in respect of every dispute that emanates from an employer/employee

relationship.

[12] The applicant alleges that the current disciplinary proceedings instituted against him are unlawful. Even then, that argument is

unsustainable based on what was stated in Steenkamp & others v Edcon Ltd (National Union of Metalworkers of SA intervening)[13], i.e., that this Court lacks jurisdiction to determine the lawfulness of the employer’s conduct, as the general scheme of the LRA does not make any reference to ‘unlawfulness’.

[13] Van Niekerk J in Shezi further reiterated that the provisions of section 157(5) of the LRA are such that this Court has no jurisdiction to determine the fairness of employer action where the nature of the dispute is one that requires it to be determined by arbitration. This therefore similarly applies where at the core of the dispute, is the fairness of any procedure adopted by the employer in the course of disciplinary action.

[14] It follows that this Court has no jurisdiction in regards to the fairness or otherwise of the procedure adopted by the employer in the course of exercising disciplinary action[14]. This proposition finds its basis in the provisions of section 188 and 191 of the LRA, in terms of which any dispute about the existence or otherwise of fair procedure must be referred to arbitration and determined by the CCMA or bargaining

council having jurisdiction.

[15] If ever there is any doubt about the applicant’s claim being located squarely in the unfairness of the disciplinary proceedings,

one need only examine his averments under ‘Prima Facie Right’[15]. In this regard he places reliance on his right to fair labour practices as contemplated in the provisions of section 23(1) of the

Constitution,[16] and his right not to be subjected to unfair labour practices under section 185(b) of the LRA. He then makes reference to the definition of unfair labour practice in section 186(2) (b) of the LRA in supporting his claim.

[16] It has since been stated by the Labour Appeal Court in Booysen that this Court has jurisdiction to intervene in incomplete disciplinary hearings, if a failure to intervene would lead to a grave injustice, and with the question further being whether justice might be attained by any other means. This proposition also finds

support in Jiba v Minister of Justice and Constitutional Development and Others, where it was held that;

‘In summary, although the court has jurisdiction to entertain an application to intervene in uncompleted disciplinary proceedings, it ought not to do so unless the circumstances are truly exceptional. Urgent applications to review and set aside preliminary rulings made during the course of the disciplinary enquiry or to challenge the validity of the institution of the proceedings ought to be discouraged. These are matters generally best dealt with in arbitration proceeding consequent on any allegation of unfair dismissal, and if necessary, by this court in review proceedings under section 145.[17]”

[17] At the core of the applicant’s concerns in seeking interim relief and further contending that there are exceptional circumstances necessitating the Court’s urgent intervention is that Zulu is biased; has treated him in a grossly procedurally unfair manner; and had complete disregard for fair labour practices and fair manner in which the hearing should be conducted.

[18] The obvious difficulty with what the applicant claims to be exceptional circumstances is that as is apparent from the pleadings as already indicated, what he complains about is the fairness in the conduct of the disciplinary proceedings. To the extent that the applicant persists with his complaints about the appointment of Khumalo as initiator, and further to the extent that the complaints

are based on the alleged non-compliance with the provisions of the PSCBC Resolution 1 of 2003, that ordinarily cannot equate to the proceedings being unlawful, as any disputes in regards to the application and interpretation of such collective agreements are determined under the provisions of sections 24 and 25 of the LRA. In any event, and as already indicated, matters of unfairness related to disciplinary processes are to be dealt with at arbitration.

[19] Other than what has already been stated with reference to the provisions of section 188 and 191 of the LRA, it has repeatedly been

stated that it is not for this Court to micro-manage internal disciplinary processes in view of the employer’s discretion to institute and conduct such proceedings. Any employee who is aggrieved with the fairness of a disciplinary enquiry cannot simply abandon that process and run to the Court, unless a grave injustice would occur if there is no urgent intervention.

[20] One struggles with establishing what grave injustice the applicant would suffer, in circumstances where the undisputed facts are that the disciplinary hearing has been on-going since February 2018, and beset with various postponements at his request. Furthermore, the preliminary issues the applicant had persistently raised were dealt with, and the fact that he is aggrieved with the rulings in that regard does not grant him access to the intervention of this Court. In my view, this case is symptomatic of an employee who is willing to make every attempt to stall the disciplinary proceedings, and ultimately have them permanently stayed. Clearly should an adverse outcome be the result of that process, the applicant like all other employees, has remedies under the dispute resolution provisions of the LRA.

[21] In the end, the applicant has not established the legal basis upon which this Court should assume jurisdiction over the matter. To the extent that he claims unlawfulness of the disciplinary process, that claim is unsustainable based on what was said in Steenkamp.[18] Any allegations on his part of exceptional circumstances existing in this case are mere red herrings, in that the issues that he is complaining about are those that ought to be determined in the course of arbitration proceedings, that is if in the end, the outcome of disciplinary proceedings is unfavourable to him.

[22] The question of urgency in the light of the above conclusions become moot. However for the sake of completeness, this matter is not urgent, and the urgency claimed is clearly self-created. My conclusions in this regard are based on the following.

22.1To reiterate, the applicant approached this Court on or about 19 October 2020, in circumstances where the disciplinary

hearing had been ongoing since February 2018, and was due to proceed on 20 – 23 October 2020. The alleged urgency is said to have arisen from the fact that Zulu refused to postpone the disciplinary proceedings in the light of his application before this Court. It is my view that the refusal by Zulu to postpone the proceedings, or the fact that SASSA had retained Khumalo as the initiator in those proceedings despite he being no longer its employee, or the fact that Zulu had insisted that he could only postpone the proceedings upon the issuing of a Court order, cannot by all accounts trigger urgency.

22.2On his own version, the applicant was informed as far back as 22 June 2020 that Khumalo would still continue in his role as initiator. The applicant did nothing other than to send correspondence on 29 June 2020, to object to Khumalo

proceedings as initiator. Since that date, the hearing was scheduled to proceed on 6 July 2020 and the only thing that he did was to seek an order from this Court, which matter was then settled between the parties.

22.3It is apparent that the applicant does not wish that the disciplinary proceedings take their course. The charges and notice to attend a disciplinary enquiry was served on the applicant on 30 January 2018. From the first day of those proceedings in February 2018, the applicant has raised all manner of points to stall those proceedings. The numerous occasions on which those proceedings were postponed at his behest, the numerous preliminary points he had raised, and numerous attempts to have the matter arbitrated under section 188A of the LRA, bears testimony to his resolve to either stall those proceeds or completely bring them to a halt. In fact, with his purported pending application before this Court, his ultimate aim is to have those proceedings be finally interdicted, and for him to go back to work as if the allegations against him did not exist.

22.4It was submitted on behalf of SASSA that the disciplinary proceedings, despite their stop-start nature, have reached a point where its witnesses’ testimony was disposed of, and were at a stage where the applicant was to complete his testimony. To this end, it is apparent that the proverbial horse has long bolted.

22.5It is trite that urgent relief will not be granted in circumstances where the applicant can obtain substantive relief in due course, and further where it is apparent that the urgency claimed is self-created.[19]. Aligned to these requirements is that the Court must consider the interests of the respondent party, and in particular, the prejudice the respondent may suffer if the urgent relief sought is granted[20].

22.6In this case, it has been concluded that the urgency claimed is clearly self-created. To the extent that the current disciplinary process may end with an adverse outcome, the applicant has alternative remedies readily available under the dispute resolution scheme of the LRA. In circumstances where the applicant faces serious allegations of misconduct, and where the disciplinary proceedings are about to reach an end after about close to three years, it would clearly not be in the interests of SASSA which seeks an end to the enquiry, and it would further be prejudicial to it should the relief sought by the applicant be granted.

[23] Having had regard to the above conclusions, it follows that the applicant’s application fails on the two fronts mounted by SASSA, i.e., on account of lack of urgency and lack of jurisdiction of this Court.

[24] In relation to an award of costs, it needs to be reiterated that notwithstanding numerous judgments from this Court[21] on issues surrounding its jurisdiction to intervene in internal disciplinary enquiries, it is apparent that senior employees with

deep pockets continue to burden this Court’s urgent roll, with contrived arguments surrounding the unlawfulness of those enquiries. In most if not all these cases, it is apparent that all that these employees seek is a complete halt of those proceedings, and for the charges of misconduct against them to vanish. Furthermore, these applications continue coming, in circumstances where these employees know or ought to have known that the remedies under the scheme of the LRA remain readily and easily available, in the event of adverse outcomes of disciplinary enquiries or alleged unfair decisions by employers. In such circumstances, and taking into account the requirements of law and fairness, the Court can only continue to discourage such conduct, by making costs orders against such recalcitrant employees.

[25] Accordingly, the following order is made:

Order:

1. The applicant’s urgent application is dismissed with costs.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Adv.

N. Deeplal, Instructed by Harris Attorneys

For the 1st and 2nd Respondents: Adv. N. Mgedeza, Instructed by the State Attorney, Johannesburg

[1] Annexure ‘TEN1” to the Answering Affidavit

[2] 2004 (3) SA 615 (SCA) at para 19. See also South African Broadcasting Corporation (Soc) Ltd v Keevy and Others (J1652/19) [2020] ZALCJHB 31; [2020] 6 BLLR 607 (LC), where Moshoana J held that; “[17] In Ganes v Telecom Namibia, it was held that what is relevant is that the institution and prosecution of an action was authorized. While in motion proceedings the best evidence would be an affidavit by an officer of the company annexing a copy of the relevant resolution of the Board, such evidence is not necessary in every case and the Court must decide whether enough has been placed before it to warrant a conclusion that it is the company which is litigating and not some unauthorized person on its behalf. In ANC Umvoti Council Caucus v Umvoti Municipality, the following was said: ‘[28] I am therefore of the view that the position has changed since Watermeyer J set out the approach in Merino…case. The position now is that absent specific challenge by way of Rule 7 (1), the mere signature of the notice of motion by an attorney and the fact that the proceedings purport to be brought in the name of the applicant is sufficient.’”

[2] 2004 (3) SA 615 (SCA) at para 19. See also South African Broadcasting Corporation (Soc) Ltd v Keevy and Others (J1652/19) [2020] ZALCJHB 31; [2020] 6 BLLR 607 (LC), where Moshoana J held that;

“[17] In Ganes v Telecom Namibia, it was held that what is relevant is that the institution and prosecution of an action was authorized. While in motion proceedings the best evidence would be an affidavit by an officer of the company annexing a copy of the relevant resolution of the Board, such evidence is not necessary in every case and the Court must decide whether enough has been placed before it to warrant a conclusion that it is the company which is litigating and not some unauthorized person on its behalf. In ANC Umvoti Council Caucus v Umvoti Municipality, the following was said:

‘[28] I am therefore of the view that the position has changed since Watermeyer J set out the approach in Merino…case. The position now is that absent specific challenge by way of Rule 7 (1), the mere signature of the notice of motion by an attorney and the fact that the proceedings purport to be brought in the name of the applicant is sufficient.’”

[3] Act 1 of 1999, as amended

[4] Act 66 of 1995, as amended

[5] Act 2 of 2000

[6] Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) ; (2010) 31 ILJ 296 (CC) ; [2009] 12 BLLR 1145 (CC) at para 75, where it was held; “Jurisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa,and not the substantive merits of the case. If Mr Gcaba’s case were heard by the High Court, he would have failed for not being able to make out a case for the relief he sought, namely review of an administrative decision. In the event of the Court’s jurisdiction being challenged at the outset (in limine), the applicant’s pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the court’s competence. While the pleadings – including in motion proceedings, not only the formal terminology of the notice of motion, but also the contents of the supporting affidavits – must be interpreted to establish what the legal basis of the applicant’s claim is, it is not for the court to say that the facts asserted by the applicant would also sustain another claim, cognisable only in another court. If however the pleadings, properly interpreted, establish that the applicant is asserting a claim under the LRA, one that is to be determined exclusively by the Labour Court, the High Court would lack jurisdiction. An applicant like Mr Gcaba, who is unable to plead facts that sustain a cause of administrative action that is cognisable by the High Court, should thus approach the Labour Court.”

[6] Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) ; (2010) 31 ILJ 296 (CC) ; [2009] 12 BLLR 1145 (CC) at para 75, where it was held;

“Jurisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa,and not the substantive merits of the case. If Mr Gcaba’s case were heard by the High Court, he would have failed for not being able to make out a case for the relief he sought, namely review of an administrative decision. In the event of the Court’s jurisdiction being challenged at the outset (in limine), the applicant’s pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the court’s competence. While the pleadings – including in motion proceedings, not only the formal terminology of the notice of motion, but also the contents of the supporting affidavits – must be interpreted to establish what the legal basis of the applicant’s claim is, it is not for the court to say that the facts asserted by the applicant would also sustain another claim, cognisable only in another court. If however the pleadings, properly interpreted, establish that the applicant is asserting a claim under the LRA, one that is to be determined exclusively by the Labour Court, the High Court would lack jurisdiction. An applicant like Mr Gcaba, who is unable to plead facts that sustain a cause of administrative action that is cognisable by the High Court, should thus approach the Labour Court.”

[7] Case No: J848/2020 (delivered on 25 September 2020)(Per Prinsloo J)

[8] See Lieutenant-General Adeline Lungwisa Shezi v South African Police Services and others (Reportable Case Number J 852/2020) )Delivered on 15 September 2020)( Per Van Niekerk J) at para 10

[9] (2011) 32 ILJ 112 (LAC) at para 54

[10] (J1396/15) [2015] ZALCJHB 216 (24 July 2015)

[11] Supra

[12] Shezi supra

[13] (2016) 37 ILJ 564 (CC)

[14] At para 13 - 14

[15] Paragraphs 94 – 98 of the Founding Affidavit.

[16] The Constitution of the Republic of South Africa, 1996 (Act 108 of 1996)

[17] [2005] ZALC 15; [2009] 10 BLLR 989 (LC) at para 17

[18] Supra

[19] See Jiba v Minister: Department of Justice and Constitutional Development and Others at para 18; See also Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another (2016) 37 ILJ 2840 (LC) at para 26; Minister of Law and Order v Committee of the Church Summit, 1994 (3) SA 89 (BGD) at 99F-G; Maqubela v SA Graduates Development Association and Others (2014) 35 ILJ 2479 (LC) at para 32, where it was held; ‘Whether a matter is urgent involves two considerations. The first is whether the reasons that make the matter urgent have been set out and secondly whether the applicant seeking relief will not obtain substantial relief at a later stage. In all instances where urgency is alleged, the applicant must satisfy the court that indeed the application is urgent. Thus, it is required of the applicant adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary. …’

[19] See Jiba v Minister: Department of Justice and Constitutional Development and Others at para 18; See also Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another (2016) 37 ILJ 2840 (LC) at para 26; Minister of Law and Order v Committee of the Church Summit, 1994 (3) SA 89 (BGD) at 99F-G; Maqubela v SA Graduates Development Association and Others (2014) 35 ILJ 2479 (LC) at para 32, where it was held;

‘Whether a matter is urgent involves two considerations. The first is whether the reasons that make the matter urgent have been set out and secondly whether the applicant seeking relief will not obtain substantial relief at a later stage. In all instances where urgency is alleged, the applicant must satisfy the court that indeed the application is urgent. Thus, it is required of the applicant adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary. …’

[20] Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another [2016] ZALCJHB; [2016] BLLR 1151 (LC); (2016) 37 ILJ 2840 (LC) at para 26

[21] See Manamela Ida v Department of Co-operative Governance & Traditional Affairs & others Case no: J 1886 / 2013; Mosiane v Tlokwe City Council (J202/09) [2009] ZALC 39; [2009] 8 BLLR 772 (LC); (2009) 30 ILJ 2766 (LC), where Francis J at paragraphs 15 – 17 held; “ A worrying trend is developing in this Court in the last year or so where this Court’s roll is clogged with urgent applications. Some applicants approach this Court on an urgent basis either to interdict disciplinary hearings from taking place, or to have their dismissals declared invalid and seek reinstatement orders. In most of such applications, the applicants are persons of means who have occupied top positions at their places of employment. They can afford top lawyers who will approach this Court with fanciful arguments about why this Court should grant them relief on an urgent basis. An impression is therefore given that some employees are more equal than others and if they can afford top lawyers and raise fanciful arguments, this Court will grant them relief on an urgent basis. All employees are equal before the law and no exception should be made when considering such matters. Most employees who occupy much lower positions at their places of employment who either get suspended or dismissed, follow the procedures laid down in the Labour Relations Act 66 of 1995 (the Act). They will also refer their disputes to the CCMA or to the relevant Bargaining Councils and then approach this Court for the necessary relief. Other employees would still approach this Court for relief in the ordinary manner and not on an urgent basis.”

[21] See Manamela Ida v Department of Co-operative Governance & Traditional Affairs & others Case no: J 1886 / 2013; Mosiane v Tlokwe City Council (J202/09) [2009] ZALC 39; [2009] 8 BLLR 772 (LC); (2009) 30 ILJ 2766 (LC), where Francis J at paragraphs 15 – 17 held;

“ A worrying trend is developing in this Court in the last year or so where this Court’s roll is clogged with urgent applications. Some applicants approach this Court on an urgent basis either to interdict disciplinary hearings from taking place, or to have their dismissals declared invalid and seek reinstatement orders. In most of such applications, the applicants are persons of means who have occupied top positions at their places of employment. They can afford top lawyers who will approach this Court with fanciful arguments about why this Court should grant them relief on an urgent basis. An impression is therefore given that some employees are more equal than others and if they can afford top lawyers and raise fanciful arguments, this Court will grant them relief on an urgent basis.

All employees are equal before the law and no exception should be made when considering such matters. Most employees who occupy much lower positions at their places of employment who either get suspended or dismissed, follow the procedures laid down in the Labour Relations Act 66 of 1995 (the Act). They will also refer their disputes to the CCMA or to the relevant Bargaining Councils and then approach this Court for the necessary relief. Other employees would still approach this Court for relief in the ordinary manner and not on an urgent basis.”