Kapari and Another v Office of the Chief Justice and Another (J 539/2020) [2020] ZALCJHB 268 (29 June 2020)

Kapari and Another v Office of the Chief Justice and Another (J 539/2020) [2020] ZALCJHB 268 (29 June 2020)

The court found that the applicants, who have been employed as Judges' secretaries on successive fixed term contracts, have a legitimate grievance regarding their employment security. The respondents failed to address this grievance adequately, and the applicants' attempts to resolve the matter through prescribed channels were met with silence. The principle of subsidiarity precludes direct reliance on section 23(1) of the Constitution where the Labour Relations Act provides a remedy, and the applicants are not excluded from the LRA. The Labour Court lacks jurisdiction to grant final relief where arbitration is required, but it may grant interim relief to preserve the applicants'...

Citation
[2020] ZALCJHB 268
Parties
Applicant: Boitumelo Gaopalelewe Valerie January (Kapari); Applicant: The applicants listed in Annexure A to the Notice of Motion; Respondent: Office of the Chief Justice; Respondent: Memme Sejosengwe N.O.
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
29 June 2020
Case Number
J 539/2020
Procedural Posture
Urgent Application / Interim Relief Application Prior to Expiry of Fixed Term Contracts
Outcome
Interim relief granted; applicants to remain employed pending grievance resolution; respondents interdicted from filling positions; costs awarded against first respondent.
Judges
Van Niekerk
Legal Topics
Fixed Term Contracts, Unfair Labour Practice, Reasonable Expectation of Renewal, Subsidiarity Principle, Interim Interdict
Labour Law Civil Procedure Fixed Term Contracts Unfair Labour Practice Reasonable Expectation of Renewal Subsidiarity Principle Interim Interdict

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 18 Party arguments 2
Sign in to unlock

Parties

Boitumelo Gaopalelewe Valerie January (Kapari)

Applicant

The applicants listed in Annexure A to the Notice of Motion

Applicant

Office of the Chief Justice

Respondent

Memme Sejosengwe N.O.

Respondent

Procedural Posture

Urgent Application / Interim Relief Application Prior to Expiry of Fixed Term Contracts

Legal Issues

  1. 1 Whether the applicants are entitled to remain employed pending the outcome of their grievance.
  2. 2 Whether the respondents committed an unfair labour practice by advertising the applicants' positions.
  3. 3 Whether the applicants can rely directly on section 23(1) of the Constitution for relief.

Ratio Decidendi

The court found that the applicants, who have been employed as Judges' secretaries on successive fixed term contracts, have a legitimate grievance regarding their employment security. The respondents failed to address this grievance adequately, and the applicants' attempts to resolve the matter through prescribed channels were met with silence. The principle of subsidiarity precludes direct reliance on section 23(1) of the Constitution where the Labour Relations Act provides a remedy, and the applicants are not excluded from the LRA. The Labour Court lacks jurisdiction to grant final relief where arbitration is required, but it may grant interim relief to preserve the applicants'...

Court Disposition

Interim relief granted; applicants to remain employed pending grievance resolution; respondents interdicted from filling positions; costs awarded against first respondent.

Orders

  • Pending the final outcome in a dispute resolution agency with jurisdiction of the grievance lodged by the applicants on 26 March 2020, the applicants are to remain in the employ of the first respondent on the same substantive terms and conditions of employment.
  • The respondents are interdicted and restrained from interviewing and/or placing any candidates into any of the positions advertised by the first respondent on 22 May 2020 and which are currently occupied by any of the applicants.