Du Toit v Erudite Projects (Pty) Ltd (J 539/21) [2021] ZALCJHB 74 (2 June 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 539/21

In the matter between:

JOHANNES

STEPHANUS DU

TOIT

Applicant

and

ERUDITE PROJECTS (PTY)

LTD

Respondent

Heard: 26 May 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives through email. The date and time for hand-down is deemed to be 02 June 2021.

JUDGMENT

MAHOSI, J

Introduction

[1] This is an application brought by the applicant for an order in the following terms:

‘1. That the application be enrolled as an urgent application and that the forms and service provided for in the rules of Court be dispensed with;

2. That the Respondent be ordered to immediately pay the Applicant his monthly salary less any statutory mandated deductions including Pay As You Earn (PAYE) tax for the month of April 2021;

3. That the Respondent be ordered to continue paying the Applicant his monthly salary less any statutory mandated deductions including pay as you earn (PAYE) tax by no later than the last day of each month until such time [as] his employment is terminated by the respondent;

4. That the Respondent be ordered to restore the Applicant’s access to Microsoft 365 One Drive and internet with immediate effect and to provide such access until such time as his employment is terminated by the respondent.

5. That the Respondent be ordered immediately to pay to the Applicant all reimbursable expenses for his cell phone since February 2021 and to continue to do so until such time as his employment is terminated by the Respondent.

6. That the Respondent be ordered to pay the costs of this application on an attorney and own client scale.’

[2] The applicant has since recorded his intention not to pursue the relief sought in prayer 5 of the Notice of Motion in the current application.

[3] Prior to outlining the applicant’s case in detail and considering the issues that gave rise to the claim, it is necessary to outline the facts that form the relevant background to the dispute between the parties.

Background

[4] The applicant was employed by the respondent as a Business Developer, in the Mpumalanga and Limpopo regions from 01 June 2017. Following the charges of misconduct, the applicant was placed on a precautionary suspension with effect from 01 February 2021 with full pay, pending the outcome of the disciplinary hearing. Whilst on precautionary suspension, the applicant was paid his salary or part thereof for February and March 2021. However, the respondent did not pay the applicant’s salary for April 2021 and blocked his access to Microsoft 365 One Drive and Internet on 03 May 2021.

[5] Aggrieved by the respondent’s actions, the applicant brought this application. The respondent opposed the application on urgency and the merits.

Urgency

[6] The requirements for urgency are trite.[1] A party seeking urgent relief must set out the reasons for urgency and why urgent relief is necessary. In Maqubela v SA Graduates Development Association and Others,[2] considerations for urgency were set out as follows:

‘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 to adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary.’

[7] It is trite that in the case where a party seeks final relief on an urgent basis, such as the applicant in this matter, the bar is raised even higher and I find the following passage in Tshwaedi v Greater Louis Trichardt Transitional Council[3] instructive:

‘… An applicant who comes to court on an urgent basis for final relief bears an even greater burden to establish his right to urgent relief than an applicant who comes to court for interim relief…’

[8] The applicant submits that he became aware of the non-payment of his salary for April, which was payable on 30 April 20121, over the weekend of 01 to 02 May 2021 when it did not reflect in his bank account. This prompted the applicant to instruct his attorneys to address correspondences dated 03, 04 and 06 May 2021 to the respondent in terms of which the breach of contract was placed on record. The respondent was afforded until 07 May 2021 to comply with the employment contract.

[9] The applicant submits that the urgency is not self created in that when it became clear that the respondent had no intention of paying his salary for April 2021 and to restore his access to Microsoft 365 One Drive and Internet, he instructed his attorneys on 10 May 2021, to bring this application. Accordingly, this application was filed on

19 May 2021.

[10] It is the applicant’s further submission that if brought in the normal course, this application would be heard during the fourth term of this year which would be after he would have suffered irreparable harm, namely sequestration of his estate as he would not be able to honour the Nedbank settlement agreement that has automatic kick-in clause for sequestration. Furthermore, the applicant submits that he would not be able to even claim financial damages that he would suffer as a result of the respondent’s failure to pay his salary as its quantification would be an insurmountable task.

[11] The applicant makes a point that the sequestration of his estate would prevent him from acting as a trustee of Ecom, which was formed for the benefit of his children and would further disqualify him from retaining his appointment as a director of any company. Further that without payment of his salary he would not afford to buy chronic medication to maintain his health, which is high risk for a single parent and would further not be able to pay for his vehicle rental, medical aid, life insurance, home loan instalment, municipal services, overdue school fees, children’s therapeutic drama classes and other sports activities.

[12] In opposing, the respondent submits that the applicant has not shown any exceptional circumstances in that he based the urgency of the matter solely on his alleged financial position, which is contested.

[13] In persuading this Court to depart from the approach that financial hardship and loss of income do not necessarily constitute a basis for urgency, the applicant relied on various decisions of this Court and in particular, the judgment in POPCRU obo Sephanda and Another v Provincial Commissioner: South African Police Services, Gauteng Province and Another[4] in which the employee’s financial loss or pressures were deemed sufficient to justify urgency. However, in that case, the relief sought by the applicants was for the Court to review and set aside the decision of the SAPS Provincial Commissioner to suspend them without pay on the basis that there was no factual basis which entitled him to do so in terms of regulation 13 which provides for precautionary suspensions. This case is, therefore distinguishable from the aforementioned case.

[14] In the current matter, it is my view that the applicant has not shown any exceptional circumstances warranting an urgent relief and has not set out the reasons why he claims that he cannot be afforded substantial redress at a hearing in due course. For these reasons, his application must be struck off the roll for want of urgency.

Costs

[15] Guided by the principles of law and fairness, this Court has a discretion in awarding costs. In Zungu v Premier of Kwa Zulu-Natal and others,[5] the Constitutional Court confirmed that the rule of practice that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand allowing those parties to bring to this Court or oppose cases that should not have been brought to Court or opposed in the first place. This is one of those matters where I believe that the interest of justice will be best served by making no order as to costs.

[16] Accordingly, the following order is made:

Order

1. The application is struck off the roll for want of urgency.

2. There is no order as to costs.

______

D. Mahosi

Judge of the Labour Court of South Africa

Appearances:

For applicant:

Advocate R. Grundlingh

Instructed by:

Heyns Incorporated Attorneys

For respondent: Advocate S. Swiegers

Instructed by:

Duff Pretorius Attorneys

[1] See: Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's Furniture Manufacturers) 1977 (4) SA 135 (W).

[2] (2014) 35 ILJ 2479 (LC) at para 32.

[3] [2000] 4 BLLR 469 (LC) at para 11.

[4] (2012) 33 ILJ 2110 (LC) at para 5 to 6

[5] (2018) 39 ILJ 523 (CC) at para 24.