George v Nyoka and Others (J214/23) [2023] ZALCJHB 70; [2023] 7 BLLR 654 (LC) (10 March 2023)

FLYNOTES:

ABUSE OF THE URGENT COURT

LABOUR – Urgency – Abuse – Municipal and government employees – Strategies to avoid and delay disciplinary

hearings – When these are depleted the employees seek sanctuary from the court with contrived and legally unsustainable

urgent applications – Frivolous applications causing strain on limited judicial resources of the court – Urgent

application dismissed with costs on attorney and client scale.

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Of Interest to other Judges

Case No: J 214/23

In the matter between:

NICHODEMUS

VICTOR GEORGE

Applicant

and

ADV.

NYOKA XOLANI

First Respondent

MBONANI N.J

Second Respondent

MAQUASSI HILLS LOCAL MUNICIPAL COUNCIL Third Respondent

ADV. RAMOGALE N.O .

Fourth Respondent

KGOMO

ATTORNEYS INC. Fifth

Respondent

SIFUMBA ATTORNEYS N.O. Sixth

Respondent

SIFUMBA

TUMELO OSCAR

Seventh Respondent

Heard:

03 March 2023

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 10 March 2023

JUDGMENT

TLHOTLHALEMAJE, J

[1] This application is representative of the now familiar and habitual abuse of the urgent Court by employees, especially those who occupy senior positions in all spheres of government, especially in the municipalities. These employees, after being placed on prolonged periods of precautionary suspensions and when called upon to answer

to the charges of misconduct, will take all means necessary in order to avoid the conclusion of those enquiries. When all the strategies

deployed to avoid the hearing comes to nought, the next step is to seek sanctuary from this Court, with contrived and legally unsustainable urgent applications, with the hope that the serious charges of misconduct will vanish.

[2] The stratagem employed by these employees, ably assisted and cheered on by their legal representatives, is indeed simple but pretentious, and has regularly played itself out in this Court on the urgent roll. Most such applications dealt with in this court or as can be gleaned from countless judgments of this Court dealing with a stay of internal proceedings, have revealed the following familiar pattern;

2.1 The strategy is put into gear once the employee is served with the charges and the notice to appear at the enquiry. On the hearing date (if it had not been postponed several times already even before it has started), the employee will seek a discovery of documents, even if they are irrelevant to his case.

2.2 Repeated request for other documents will be made until there is nothing else to discover. Every time such a request is made, more stalling time is gained as the Chairperson has to allow the employee or his legal representative time to familiarise themselves with the documents. More time is lost as on every occasion the hearing sits,

the employee would make various requests and objections including clarification and objection to the charges, and request for more

documents as the charges are clarified.

2.3 With the presence of the employee’s legal representative, the legal games begin in earnest. In this regard, all manner of preliminary points will be raised, from non-compliance with various Municipal prescripts and the applicable collective bargaining agreements, the authority of the initiator or the chairperson, etc. Invariably, this will require of the Chairperson to adjourn the proceedings in order to consider these points. Upon receipt of an adverse ruling on these legal points, and upon the matter being set down on a particular date, the next strategy is to then just a few hours before the next sitting, for the employee to submit copies of medical certificates, some of which prima facie will appear suspect. The other favourite as part of the stalling tactics, is the sudden disappearance or unavailability of the employee’s witnesses from the workplace. In some cases, more time may be required to consult with or find the identified witnesses.

2.4 When the hearing is to commence, and when the penny drops that the employee has to answer to the charges of misconduct, the ultimate strategy at the hearing is to seek the recusal of the chairperson on a variety of nonsensical grounds. This is for no other reason other than that he had made adverse rulings on all other spurious preliminary points raised in the past.

2.5 When the recusal application is dismissed, in some instances, as in this case, the legal representative would suddenly withdraw from the matter, thus leaving the employee on his own. This necessarily means that the chairperson must again adjourn the proceedings and allow the employee time to secure another legal representative. Despite dates being set down by the chairperson, more postponements will be sought and granted, because the employee cannot find a legal representative.

2.6 At the next sitting the very same legal representative that initially withdrew, would re-appear, and be back on record. Upon being back, the legal representative’s starting point would be to request more time in order to re-familiarise himself with the matter and properly consult the employee and witnesses. In some instances, the

representative would want to raise the same old stale preliminary points that have been dealt with before. When all of these tactics

are thrown out, the legal representative would then seek a further postponement, as he intends to approach this Court on an urgent basis to challenge the rulings.

[3] The Court deems it necessary to outline all of the above for the simple reason that these antiquated shenanigans, exhausting as they are, in the end come back to bite the employees when claiming urgency in this Court. This Court has consistently rebuked such truant like antics, which are in most instances aided and encouraged by legal representatives. My colleague van Niekerk J recently delivered a trio of judgments[1] that concerned attempts at halting internal disciplinary hearings, and in all instances, costs were awarded against recalcitrant

applicants. These judgments are amongst numerous others[2] delivered in this Court from the urgent roll, which have consistently set out the law and the difficulties the applicants face when approaching the court on an urgent basis with applications to stay internal proceedings. These frivolous applications have caused strain on the limited judicial resources of this Court. This message has clearly not filtered through to employees or their legal representatives.

[4] These antics are truly exhausting, not only to the court’s resources but also because in the end, they turn out to be financially draining for the already financially depleted municipalities or government departments and its entities. This is particularly so since in most internal disciplinary enquiries held in all spheres of government, legal practitioners are engaged to act as initiators or chairpersons in those enquiries. I am not even taking into account all the other officials who are taken away from their real work, in order to attend to these stop-start disciplinary enquiries. These antics are an antithesis of the primary purpose and objectives of the Labour Relations Act[3] (LRA), primary of which is to have labour disputes resolved expeditiously. They do not have a place either in the workplace or in this Court, if the primary objectives of the LRA are to be achieved.

[5] The facts of this case are a reflection of the above and a dose of déjà vu. They are summarised as follows;

5.1 The applicant is employed by the third respondent (Municipality) in the position of Director: Community Services since September 2019. It is a fairly senior position. It is not clear as to when he was placed on paid precautionary suspension. He was however served with the disciplinary charges and the notice to appear before an enquiry

on 4 August 2022, to answer to several charges of gross dishonesty. These charges mainly pertained to alleged misrepresentations he had made when applying for the post in question to the Municipality. He is alleged to have misrepresented the circumstances under which his previous employment Dr Kenneth Kaunda Municipality was terminated. Whilst he had stated that his previous contract came to an end, investigations had revealed that he was instead dismissed from the previous municipality, on serious charges of financial misconduct, fraud and corruption.

5.2 The disciplinary enquiry commenced on 17 August 2022 before the first respondent and Chairperson (Adv. Nyoka). Present at those proceedings was Mr Mmusi from the sixth respondent (Sifumba Attorneys); the initiator from the fifth respondent (Kgomo attorneys); the fourth respondent being the Municipality’s representative (Adv. Ramogale); and Mr Ramatshosa, an attorney representing the applicant. Ramatshosa was standing in for another attorney, Mr Mataka, who was placed on record but was unable to attend the first sitting.

5.3 At the first sitting, Ramatshosa sought a postponement on the grounds that a bundle of documents had not been provided to the applicant. The postponement was granted and the chairperson directed the Municipality to discover the bundle by no later than 21 August 2022. The applicant was also directed to favour the Municipality with his bundle by no later than 9 September 2022.

5.4 The chairperson scheduled a pre-hearing for 20 September 2022 for the purposes of dealing with any preliminary points that may arise. At that hearing, neither the applicant, Ramatshosa nor Mataka

were present. This was in circumstances where the Municipality had complied with the chairperson’s directive to make a discovery,

and the applicant had done nothing of the sort in return.

5.5 In the light of the applicant’s absence, the chairperson postponed the matter to 26 – 27 September 2022. At the latter proceedings, the applicant made an appearance, and requested further documents from the Municipality. The Chairperson directed that the applicant should make his request before 18 October 2022, and for the Municipality to respond by 31 October 2022. Thereafter the applicant was to provide the Municipality with his own bundle by no later than 11 November 2022. This is the same bundle the applicant ought to have made available to the Municipality on no later than 9 September 2022.

5.6 The matter was again set down for 25 November 2022 to iron out any preliminary issues, and to start in earnest on 30 November 2022 – 1 and 2 December 2022. The applicant with Mataka made an appearance at the virtual hearing. Mataka again sought a postponement on the grounds that the Municipality had not made its bundle timeously, and that he needed more time to prepare. He was still not satisfied with the Municipalities’ further particulars. Since the matter was further scheduled to proceed from 30 November 2022, he indicated that he was not available on those future dates. When a postponement was refused, aggrieved, Mataka withdrew from the matter, thus leaving the applicant on his own. This necessitated a postponement to afford the applicant an opportunity to secure another legal representative.

5.7 The next sitting was scheduled for 30 November 2022. The applicant appeared without a legal representative. He again sought the Chairperson’s indulgence in order to find an alternative legal representative. The Chairperson granted the postponement, but stressed that this was the last postponement to be granted, and the

matter was due to resume on 9 – 17 February 2023, with a pre-hearing to be held on 3 February 2022 to iron out preliminary issues. The applicant was again reminded to furnish his bundle of documents by 30 January 2023.

5.8 At the pre-hearing held on 3 February 2023, neither the applicant nor his representative were present. The Municipality indicated its intention to proceed on 9 February as scheduled as it was ready. A letter was also sent to the applicant reminding him that the hearing will proceed on 9 February 2023.

5.9 In the late evening of 8 February 2023, with the enquiry to resume the next day, the applicant sent through an email to the initiator and to Sifumba, attached to which was a copy of a medical certificate from a Dr Shamley. Other than the doctor’s practice number being indicated on the copy, there is no indication as to where the medical practice is based. The medical certificate simply indicated that consultations were held with the applicant on 08 February 2023, and sick leave was recommended from 9 to 12 February 2023, and that he will be fit for work on 13 February 2023.

5.10 The medical certificate despite recommending sick leave on the days the applicant was due to appear at the enquiry, does not in any manner indicate what was wrong with him to disable him from attending the enquiry. In the circumstances, the chairperson upheld an objection by the Municipality for a further postponement. For some reason, the matter did not proceed on 9 February 2023, and the applicant was duly informed that it will proceed on 10 February 2023.

5.11 No miracles were expected on the Friday of 10 February 2023 as neither the applicant nor his representative made an appearance. The Municipality began to lead the evidence of its witnesses before the Chairperson, and the hearing was due to continue on the Monday of 13 February 2023.

5.12 On 13 February 2023, the applicant made an appearance, accompanied by Mataka, who it will be recalled had withdrawn from the matter on 25 November 2022. Having placed himself back on record, Mataka raised a preliminary point, challenging the authority of the Chairperson to preside over the matter. The authority of Sifumba Attorneys to act as instructing attorneys on behalf of the Chairperson was equally challenged. Mataka sought to rely on some circular issued in 2018 related to the SALGBC Disciplinary Procedure and Collective Agreement. The most ingenious (if one may call it that), but fatally flawed preliminary point raised by Mataka, was that Sifumba Attorneys was conflicted in the matter and ought not have been involved in the appointment of the Chairperson. The essence thereof was the Chairperson’s objectivity was questioned.

5.13 These the same contrived legal arguments that were to be repeated in this application, and the Chairperson correctly threw them out. This is so in that the Council correspondence specifically appointed the Chairperson. Sifumba was merely appointed to act as the briefing attorney since the Rules of the Bar did not allow the Municipality to directly approach the Chairperson as a Member of the Bar. It is not even necessary to outline the basis upon which it was said that Sifumba was conflicted in the matter. All that can be said was that in seeking to approach the Court only after 12 February 2023, the applicant had alleged that he and Mataka only became aware of that conflict on that date.

5.14 After these preliminary points were thrown out, at the hearing, and the enquiry was to proceed, Mataka sought a postponement on account of his unavailability for the remainder of the period which was set to finalise the matter. The Municipality refused to accede to the postponement, and the matter proceeded on 14 February 2023, with the Municipality leading its third and final witness. The applicant was in attendance on his own, Mataka having abandoned him after a postponement was refused on the previous occasion. Upon the completion of the evidence in chief of the last witness, the applicant, despite invitation by the chairperson for him to cross-examine the witness, refused to do so. The Municipality closed its case and upon the applicant being invited by the chairperson to proceed with his case and call his witness, he declined to do so. As shall become clearer from the Municipality’s answering affidavit, the disciplinary enquiry was completed, but for the outstanding outcome of the Chairperson.

5.15 It is against this background that this matter landed on the urgent roll.

[6] The urgent application was launched on 16 February 2023, setting the matter down for 28 February 2023. The applicant’s founding papers as well as other subsequent pleadings are as shoddy and convoluted as were the arguments presented in this Court in support thereof. In the Notice of Motion, a rule nisi is sought, calling upon the respondents to show cause on 28 February 2023, why the orders sought ought not be made final on the very same date.

[7] It is either the applicant’s attorneys of record when drafting the papers, did not know what they were doing, or they did not care, as long as this application found its foot before the Court. At

paragraph 3 of the Notice of Motion, it was prayed that all the orders mentioned shall serve as an interim interdict until the return date. The respondents were further informed in the Notice that they are ‘entitled to anticipate the return date after 24 hours written notice’.

[8] Clearly the 28th February 2023 could not have been a return date, it being the first time that the matter was before the Court. A return date can only be anticipated if a rule nisi was obtained. This was not the case in this matter, and in line with the applicant’s Notice, the sitting of 28 February 2023 could only have been a return date in respect of a rule nisi that was non-existent as correctly pointed out on behalf of the Municipality.

[9] It nonetheless get worse for the applicant. At paragraph 2.4 as an alternative remedy, the applicant seeks an order interdicting the Chairperson from making any findings against him, pending the hearing and finalisation of this application. This is in circumstances where prima facie, all that is being sought is a final order, to the extent that the internal enquiry was concluded. It is correct as submitted on behalf of the Municipality, that all the applicant is a disguised review. The shoddy draftsman ship of the papers is shocking to say the least, and it raises the questions whether the papers were even settled by counsel. There is total disregard of the provisions of Rule 8(1) and (2) of the rules of this court, which requires of a party that applies for urgent relief to file an application that complies with the requirements of Rule 7. I agree that based on this fatal defect, that should be the end of the matter.

[10] In the end, all that was sought was a final order declaring the appointment of the chairperson to be null, void and unlawful for contravention of Regulation 5(7) read with Regulation 5(6) of the Local Government: Disciplinary Regulations for Senior Managers, 2010. In the alternative, an order was sought setting aside the appointment of the chairperson by Sifumba on behalf of his firm of attorneys; interdicting the disciplinary hearing and all other ancillary relief related thereto. I will therefore not venture into whether or not the applicant has even attempted to satisfy the requirements of such relief, since these were not even properly pleaded.

[11] The question of whether the Court can intervene in on-going internal disciplinary proceedings has been before it on countless occasions

and the principles in that regard are fairly settled. It is accepted that this Court has jurisdiction and the discretion to intervene in on-going disciplinary proceedings[4]. It is however specifically required of an applicant to demonstrate exceptional circumstances necessitating such intervention, and to also demonstrate that grave injustice will result should the Court not intervene[5]. In this case, no such exceptional circumstances were pleaded in the founding affidavit.

[12] Against this background, and notwithstanding the Court’s conclusions on the defective nature of the pleadings, a further issue dispositive of the matter is the clear lack of jurisdiction of this court. The applicant has not laid out the basis upon which this Court had jurisdiction to the extent that he sought to declare the appointment of the chairperson and the disciplinary enquiry unlawful.

[13] I have gone through the applicant’s founding papers, and there is not even a single sentence attributed to the legal basis upon which this Court ought to assume jurisdiction. Even when this issue was raised in the answering papers, the sole flippant response without more in the replying affidavit, was that the Court has jurisdiction. It was only in the heads of argument that reference was made to various provisions of the Municipal Systems Act, 2000, and sections 158(1)(a)(ii) and (iv) and157(2) of the LRA for the proposition that the Court should assume jurisdiction. This is impermissible as it demonstrates an attempt to introduce a completely new case. It has long been stated from a long line of authorities that generally speaking, an applicant must stand or fall by his founding affidavit, and that he is not allowed to make out his case or rely upon new grounds in the replying affidavit, let alone in the heads of argument[6]. Even if the Court was inclined based on the proposition in NESTADT R in Shephard v Tuckers Land and Development Corporation (Pty) Ltd[7] that the rule against creating a new case in the replying affidavit is not absolute, there is nothing in the replying affidavit in the light of the glib response on the issue of jurisdiction, to have regard to that affidavit.

[14] No more needs to be said in regard to jurisdiction other than that the Municipality correctly pointed out that this Court, based on Steenkamp[8] and further what any legal practitioner ought to be aware of, is that it has long determined that it is impermissible for the Court to determine the lawfulness of the conduct of the employer, since such a concept is foreign to the tenets of the LRA.

[15] The trite principle that jurisdiction is to be determined solely by reference to the pleadings without regard to the merits of the claim[9] has been re-hashed ad nauseum in this and other Courts. The applicant’s pleadings, other than the fact that it says nothing about jurisdiction, and further to the extent that the Court is able to make sense of them, mainly disclosed a case of unlawfulness in the form of a breach by the Municipality of the applicable Regulations. And this all relates to the appointment of the chairperson and the manner of his appointment. There is nothing placed before the Court by or on behalf of the applicant in the founding affidavit that points to any other provision in the LRA nor any other statute, that confers jurisdiction on the Court to determine a dispute that relies on the unlawfulness of the conduct of the Municipality, on account of a breach of the cited Regulations. On this score, again the application ought to be dismissed.

[16] Still aligned to the hurdles faced by the applicant is the relief in which he seeks to interdict the disciplinary hearing. From the answering affidavit, which is something that the applicant deliberately failed to deal with let alone bring to the attention of the Court, it is revealed that as a result of, and in the light of the applicant’s antics in seeking to avoid the disciplinary hearing, those proceedings were effectively finalised with the completion of the Municipality’s evidence, and when he refused to participate after Mataka sulked and left the hearing because he could not get yet another postponement. Thus all that was pending as at the hearing of this application, was the Chairperson’s final outcome. Effectively, the applicant when seeking to interdict the completion of the hearing or making of findings by the chairperson, he knew the status of that hearing, but downplayed its significance in relation to the relief he seeks.

[17] It nonetheless gets worse for the applicant, to the extent that the Municipality has also correctly pointed out that this matter lacked urgency, and that in fact, the urgency claimed is self-created. It is not necessary to outline the now trite principles of urgency as flowing from Rule 8 of the Rules of this Court and an abundance of authorities on the topic. All that can be said is that there is no basis upon which it can be said that the applicant had set out forth in his founding papers, the facts and circumstances that make the matter urgent, nor has he demonstrated that he will not obtain substantial redress in due course. Equally so, the applicant has not acted with the necessary expedition in approaching the court, in order to prevent harm. Furthermore, to the extent that we now know that the disciplinary enquiry has been completed, bar the

outstanding outcome, all that the applicant can do is to wait, and should he be aggrieved by the outcome, he is at liberty to approach

the relevant dispute resolution forum, where he can get substantial redress. Effectively, the matter is moot. Of course the issue of substantial redress is separate from the issue of alternative, which the Court does not even consider worthy of consideration in the light of other conclusions made.

[18] From the background outlined in this judgment, it is apparent that the applicant has taken all measures necessary and with the misguided legal muscle behind him, to stall and avoid answering to the serious allegations of misconduct against him before the disciplinary enquiry. In seeking urgency, he relies on the very issues that he had raised before the chairperson related to his alleged irregular appointment and involvement of Sifumba in his appointment. This is in circumstances where the initial commencement of the hearing took place as far back as 17 August 2022, and when Mataka was in one or the other involved in those proceedings. It is disingenuous for the applicant to contend that he and his legal representatives only became aware of any alleged irregularities about the chairperson’s appointment on 12 February 2023. IN any

event, the seventh respondent (Sifumba), who was accused of being conflicted in the appointment of the Chairperson, has since withdrawn

from the disciplinary proceedings. His ‘Explanatory Affidavit’ debunked the applicant’s and Mataka’s contentions that they only knew of the alleged conflict on 12 February 2023. Clearly the basis upon which the applicant alleged that the urgency arose flowing from the alleged knowledge of conflict of interest, is so far- fetched that I am of the view that even his own counsel could not have believed such hogwash.

[19] Aside from all the contrived legal arguments, the facts of this case as already indicated, depict an applicant who because he was literally avoiding the disciplinary hearing, took his time until he hit a brick wall when the chairperson refused a postponement on 9 February 2023. Without his legal representative Mataka, who had abandoned him when a postponement was not granted, the applicant was on his own and had nowhere to escape, other than approaching this Court.

[20] I have gone through the background events leading up to this application, and all that they demonstrate was that the Municipality and the chairperson, unnecessarily indulged the applicant in his antics over prolonged periods, until their patience ran out. The applicant, as encouraged by his legal representatives, was abusive of the disciplinary process, as his counsel was abusive of these court proceedings, an issue I will deal with shortly within the context of costs. In the end however, the urgency in this case was clearly self-created, and would ordinarily have been struck off the roll. This however means that it will find itself back on the already overburdened ordinary roll, hence in the light of the conclusions reached on lack of jurisdiction and defective nature of the Notice of Motion, the application ought to be dismissed.

[21] In regards to costs, this court considers such order in accordance with the requirements of law and fairness. The legal position contrary to the applicant’s counsel approach, is not that costs should follow the results. This issue was recently settled in Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Limited and Others[10]. It is significant to add that in addressing the issue of the right of access to the statutory dispute resolution mechanism created by the LRA, the Apex court was mindful of that right, and the need not to curtail that access through mulcting litigants with costs. It was further stated that;

‘…Zondo JP, as he was then, on behalf of a unanimous Labour Appeal Court in Dorkin, explained the position thus:

“In making decisions on costs orders this Court should seek to strike a fair balance between, on the one hand, not unduly discouraging

workers, employers, unions and employers’ organisations from approaching the Labour Court and this Court to have their disputes

dealt with, and, on the other, allowing those parties to bring to the Labour Court and this Court frivolous cases that should not be brought to court. That is a balance that is not always easy to strike but, if the court is to err, it should err on the side of not discouraging parties to approach these courts with their disputes. In that way these courts will contribute to those parties not resorting to industrial action on disputes that should properly be referred to either arbitral bodies for arbitration or to the courts for adjudication.”””[11]

[22] The import of this judgment is merely to reinforce and put more meaning to the provisions of section 162 of the LRA to the extent that this Court retains its discretion with due regard to what the requirements of law and fairness are. The Apex Court confirmed that it is not correct that costs can never be ordered against a party in labour matters, since an award of costs was left to the discretion of the court to be exercised judicially. Furthermore, the Court emphasised that reasons were to be furnished why a costs order was deemed necessary or not. This entailed that where an adverse costs order was to be made, it was required of the court to similarly consider the principle of fairness and have due regard to the conduct of the parties.[12] In this case, the Municipality asked that an order of punitive costs be made, and I agree that such an order is warranted. My reasons in this regard are as follows;

22.1 The applicant has since the commencement of his disciplinary hearing, adopted every conceivable stratagem to avoid the disciplinary enquiry, and was ably assisted and encouraged by Mataka. It is accepted that this conduct ought not influence the reasoning of this Court when considering a costs order. All that is being said is that this conduct continued to play itself out in these proceedings.

22.2 Having failed ultimately at the internal enquiry, the applicant sought to find sanctuary in the urgent court, with an application that was shockingly and poorly drafted. Based solely on its Notice of Motion, that application was a non-starter, and ought not have entered the urgent court room, let alone have passed the main entrance of the court’s premises. This was so based on its defective nature, the lack of jurisdiction, and its inherent self-created urgency.

22.3 The applicant’s counsel did not in any manner assist the Court on the urgent roll. He sought to make out a new case in the heads of argument and unduly detained the court, as he was bent on having his say, even if he had nothing of substance to say over two hours (barring the intermittent breaks) during which he took his time to address the court. Counsel despite being reminded on

several occasions to address pertinent issues and be brief in view of other important urgent matters on the roll, was nonetheless

unperturbed, and was determined to be the master of his own show, with his repeated and laborious submissions and references to

material which added no value at all to the applicant’s case.

22.4 It is not the duty of this Court to remind practitioners, especially counsel, that they are its officers. When they appear in the urgent court, that being a special court, they are required to assist in separating the wheat from the chaff, and place before the Court, identifiable pertinent issues that requires its urgent attention. This effectively means one and one thing only, being prepared on the facts and the law, and having ensured that the papers they present and rely on in Court are in order. Repeated and non-consequential arguments and references to documents does not assist the Court, nor does it assist to cure a parties’ pleadings which are in a shockingly incomprehensible state.

22.5 In the end however, with a view of affording counsel an opportunity to address the court as to why an adverse costs order ought not to be made in favour of the Municipality, other than incorrectly referring to the approach of this Court in such matters, counsel was non-committal as well as being nonchalant.

22.6 For some reason, the Municipality only requested a punitive cost order rather than an order of costs de bonis propriis. Had such a costs been sought, I would have seriously considered it. Be that as it may, I have already indicated elsewhere in this judgment about this court’s exhaustion with having to deal with such similar cases that involve senior employees facing serious charges of misconduct, and whose aim is to wish these charges away. In almost all such cases that have come before it on the urgent roll, costs orders have been awarded against the applicants. Unfortunately, the floodgates remain opened if not gaining steam.

22.7 The facts and background of this case, together with the manner and conduct with which the applicant approached the urgent court, was particularly deplorable, and an utter abuse of the Court[13]. The Court is mindful of not dissuading litigants, especially vulnerable employees, from approaching the Court for relief. But as stated from the authorities elsewhere in this judgment, there is a need to strike a balance between access to court and discouraging

frivolous litigation filtering through. The frivolous and vexatious applications keep coming in this court, and in my view, this

application represents one of the most egregious of them all. There are applications that are genuinely and truly deserving of the attention of this Court on its urgent roll, and there are those that are complete non-starters by virtue of being frivolous and vexatious. This case definitely falls within the latter category. Respondent parties cannot be compelled to defend against such cases at great costs, without consequences.

22.8 Costs on an attorney and client scale are to be awarded where there was fraudulent, dishonest, vexatious conduct, and conduct that amounts to an abuse of court process. Such an order was justified where the conduct concerned was “extraordinary” and worthy of a court’s rebuke’[14]. Furthermore, and within the context of labour disputes, the LAC has since held that the scale of attorney and client is an extraordinary

one which should be reserved for cases where it can be found that a litigant conducted itself in a clear and indubitably vexatious and reprehensible manner. Such an award is exceptional and is intended to be very punitive and indicative of extreme opprobrium.’[15]

22.9 The facts of this case, inclusive of the conduct of the applicant and his legal team also demonstrates dishonest conduct on the part of the applicant for deliberately failing to disclose to the Court that the disciplinary enquiry had reached a stage where evidence was concluded after the applicant refused to participate. Equally dishonest was the contention that he and Mataka only knew of Sifumba’s alleged conflict of interest in the disciplinary enquiry on 12 February 2023,

when Sifumba had been involved in the matter since November 2022. The manner with which this application was brought before the Court (with the defects already pointed out), and conduct in bringing it was equally mala fide, vexatious and reprehensible, since the intention was not only to dodge the disciplinary hearing but also to cause the Municipality irritation of having to defend a baseless application, and in the cause of doing so, abused this court’s process. Such conduct cannot be countenanced, and clearly deserves stern rebuke through the nature of costs to be awarded as below.

[23] Against all of the above conclusions, the following order is made;

Order:

1. The applicants’ urgent application is dismissed.

2. The applicant is ordered to pay the Third Respondent’s costs on attorney and client scale.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Adv. Mvuyo Ndziba,

Instructed by Ramatshosa Attorneys

For the 2nd, 3rd & 5th Respondents: Adv. C.Z Muza,

Instructed by Kgomo Attorneys

For the 7th Respondent: Adv MZ Makoti,

Instructed by Sifumba Attorneys

[1] J18/2023, delivered on 19 January 2023; J24/2023 and J39/2023, delivered on 23 January 2023.

[2]See Ngobeni v Minister of Communications and Others (J 1603/14) [2014] ZALCJHB 240 (11 July 20); National Education Health and Allied Workers Union v University of South Africa (J569/22) [2022] ZALCJHB 162; (2022) 43 ILJ 2351 (LC); Ngwenya v Sishen Iron Company (J 3581/18) [2022] ZALCJHB 173 (27 June 2022); Masete v Transnet Bargaining Council and Others (J 554/2021) [2021] ZALCJHB 153 (16 July 2021); Futshane v Millard NO and Others (J1309/21) [2021] ZALCJHB 432 (3 November 20; Lieutenant Shezi v SAPS and Others (case no. J8521/20, dated 15 September 2020).

[3] Act 66 of 1995, as amended.

[4] Jiba v Minister: Department of Justice and Constitutional Development (2010) 31 ILJ 112 (LC) at para 11 – 12, and also para 17, where it was held; “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 a disciplinary enquiry or to challenge the validity of the institution of the proceedings ought to be discouraged. These are matters best dealt with in arbitration proceedings consequent on any allegation of unfair dismissal, and if necessary, by this court in review proceedings under s 145.”

[4] Jiba v Minister: Department of Justice and Constitutional Development (2010) 31 ILJ 112 (LC) at para 11 – 12, and also para 17, where it was held;

“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 a disciplinary enquiry or to challenge the validity of the institution of the proceedings ought to be discouraged. These are matters best dealt with in arbitration proceedings consequent on any allegation of unfair dismissal, and if necessary, by this court in review proceedings under s 145.”

[5] See Booysen v Minister of Safety and Security and others [2011] 1 BLLR 83 (LAC); (2011) 32 ILJ 112 (LAC) at para 54, where it was held; “To answer the question that was before the court a quo, the Labour Court has jurisdiction to interdict any unfair conduct including

disciplinary action. However, such an intervention should be exercised in exceptional cases. It is not appropriate to set out the test. It should be left to the discretion of the Labour Court to exercise such powers having regard to the facts of each case. Among the factors to be considered would in my view be whether failure to intervene would lead to grave injustice or whether justice might be attained by other means. The list is not exhaustive.” See also City of Cape Town v South African Municipal Workers Union obo Abrahams & others [2012] 6 BLLR 535 (LAC) at para [16]; Magoda v Director-General of Rural Development and Land Reform and another [2017] 12 BLLR 1267 (LC); Zondo and Another v Uthukela District Municipality and Another (2015) 36 ILJ 502 (LC) at para 38; Phahlane v National Commissioner of the South African Police Services and Others (46485/18) [2020] ZAGPPHC 159 (4 May 2020) at paras 25 – 29.

[5] See Booysen v Minister of Safety and Security and others [2011] 1 BLLR 83 (LAC); (2011) 32 ILJ 112 (LAC) at para 54, where it was held;

“To answer the question that was before the court a quo, the Labour Court has jurisdiction to interdict any unfair conduct including

disciplinary action. However, such an intervention should be exercised in exceptional cases. It is not appropriate to set out the test. It should be left to the discretion of the Labour Court to exercise such powers having regard to the facts of each case. Among the factors to be considered would in my view be whether failure to intervene would lead to grave injustice or whether justice might be attained by other means. The list is not exhaustive.”

See also City of Cape Town v South African Municipal Workers Union obo Abrahams & others [2012] 6 BLLR 535 (LAC) at para [16]; Magoda v Director-General of Rural Development and Land Reform and another [2017] 12 BLLR 1267 (LC); Zondo and Another v Uthukela District Municipality and Another (2015) 36 ILJ 502 (LC) at para 38; Phahlane v National Commissioner of the South African Police Services and Others (46485/18) [2020] ZAGPPHC 159 (4 May 2020) at paras 25 – 29.

[6] See Director of Hospital Services v Mistry 1979 (1) SA 626 (A) at 635F-636A; My Vote Counts NPC v Speaker of the National Assembly and Others 2016 (1) SA 132 (CC) at para [177].

[7] 1978 (1) SA) 173 (W) at para 177 .

[8](CCT46/15, CCT47/15) [2016] ZACC 1; (2016) 37 ILJ 564 (CC); 2016 (3) BCLR 311 (CC); [2016] 4 BLLR 335 (CC); 2016 (3) SA 251 (CC)

[9] see Chirwa v Transnet Ltd [2007] ZACC 23; 2008 (4) SA 367 (CC) at par 155; Gcaba v Minister of Safety and Security (2010) 1 SA 238 (CC) para 75.

[10] (CCT 192/20) [2021] ZACC 26; 2021 (11) BCLR 1249 (CC); (2021) 42 ILJ 2371 (CC); [2021] 12 BLLR 1173 (CC), where it was held at para 24; See also Zungu v Premier of Kwa Zulu-Natal and Others (2018) 39 ILJ 523 (CC) at para 24.

[11] At para 30

[12] See at para 34 - 35.

[13] See Beinash v Wiley 1997 (3)S A 721 (SCA) where the court held that: “What does constitute an abuse of the process of the Court is a matter which needs to be determined by the circumstances of each case. There can be no all-encompassing definition of the concept of ‘abuse of process’. It can be said in general terms, however, that an abuse of process takes place where the procedures permitted by the Rules of the Court to facilitate the pursuit of the truth are used for a purpose extraneous to that objective”.

[13] See Beinash v Wiley 1997 (3)S A 721 (SCA) where the court held that:

“What does constitute an abuse of the process of the Court is a matter which needs to be determined by the circumstances of each case. There can be no all-encompassing definition of the concept of ‘abuse of process’. It can be said in general terms, however, that an abuse of process takes place where the procedures permitted by the Rules of the Court to facilitate the pursuit of the truth are used for a purpose extraneous to that objective”.

[14] Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) at para 8.

[15] Plastic Convertors Association of SA on behalf of Members v National Union of Metalworkers of SA and Others (2016) 37 ILJ 2815 (LAC) at para 46.