Mabobo v Commission for Conciliation, Mediation and Arbitration and Others (J586/2021) [2021] ZALCJHB 97 (7 June 2021)

THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

Not reportable

Case No: J 586/2021

In the matter between:

RHULANI MABOBO Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION & ARBITRATION First Respondent

MANYANO MDAKANE Second Respondent

SOUTH AFRICAN REVENUE SERVICES Third Respondent

Date of hearing: 3 June 2021 (via Zoom).

Date of judgment: 7 June 2021. Judgment delivered by email.

JUDGMENT

VAN NIEKERK J

[1] The applicant was employed by the third respondent until 1 June 2020, when he resigned. He contended that he had resigned on account of the intolerability of continued employment, and referred a constructive dismissal dispute to the CCMA. The dispute was referred ultimately to arbitration, where the arbitrator found in favour of the third respondent. The applicant has sought to review and set aside the award by way of proceedings instituted under case number JR 1893/20. That application remains pending.

[2] In these proceedings, the applicant seeks what he refers to as interim relief, pending the outcome of the review application. He seeks inter alia immediate reinstatement, an interim order that he be placed on special leave with full pay pending the finalisation of the review application, that the third respondent be ordered to pay him his monthly salary backdated to the date of resignation (1 June 2020) that the third respondent be ordered to comply with the provisions of the Protected Disclosure Amendment Act, 2017, that the third respondent remove any adverse record or occupational detriment against him, that certain of the third respondent’s representatives be interdicted from submitting malicious and false statements or information about the applicant to the third respondent’s management and other third parties, and other related relief.

[2] In the founding affidavit, the applicant avers further that in his contract of employment, he gave certain restraint undertakings in favour of the third respondent. These relate to the confidentiality of the third respondent’s information and extend to restraints regarding the disclosure of that information to third parties. The applicant considers the restraint clauses to be in violation of his right to choose or pursue a trade or professional occupation, and that no payment in respect of the restraint was made to him. He states that he will continue to lose income consequent on the restraint undertakings. Further, the applicant states that he is unable to comply with his tax obligations on account of having been denied access to the third respondent’s offices. He also seeks access to personal, sentimental information that remains on the third respondent’s IT system. Further, the applicant seeks to have the third respondent contribute to his legal costs in the review application.

[3] The test for interim relief is well established. The applicant must show a clear right, or if not clear, a prima facie right, a well-grounded apprehension of irreparable harm if interim relief is not granted and the ultimate relief is eventually granted, that the balance of convenience favours the grant of an interim order, and that the applicant has no other satisfactory remedy. (See Webster v Mitchell 1948 (1) SA 1186 (W); Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son (SA) (Pty) Ltd 1995 (1) SA 725 (T)).

[4] It has been difficult for me to ascertain from the papers precisely the nature of the applicant’s complaint. What he seeks extends beyond what would ordinarily be considered interim relief, pending a decision in a main application (in this case, the review application). The applicant has introduced a number of separate, substantive causes of action, for example, the relief he seeks in terms of the Protected Disclosures Act. Other relief would appear to relate more broadly to grievances that the applicant harbours against the third respondent, and complaints that he has regarding its policies. It should be recalled that the applicant is no longer an employee of the third respondent. The applicant terminated his contract of employment, at his initiative, on 1 June 2020. After an arbitration hearing, the arbitrator decided, in effect, that for the purposes of section 186 (1) of the LRA, there was no dismissal. The applicant’s contract of employment remains terminated. Should a review court decide ultimately that the arbitrator’s decision is incorrect and that the applicant was dismissed, the enquiry into the fairness of the dismissal would have to be concluded. But in the interim, in the absence of an employment relationship, this court does not have jurisdiction to entertain those of the applicant’s claims that he seeks to assert qua employee.

[5] In so far as the applicant seeks reinstatement with back pay pending the outcome of the review application, the applicant has no clear or even prima facie right to this relief. The merits of the review application, which the applicant has addressed at some length, remain to be dealt with by the review court.

[6] In regard to the substantive relief sought in respect of the restraint undertakings, restraint undertakings are not per se unconstitutional and remain binding unless and until set aside by the court on the grounds that they are unreasonable. The applicant has not made out a case to this effect. Further, there is no right to payment for restraint undertakings voluntarily given and thus no merit to the applicant’s claim for payment for the restraint undertakings. The third respondent’s representative advised that the undertakings extend only to the third respondent’s confidential information, and that the applicant is not barred, as he appears to consider he is, from pursuing an occupation as an income tax adviser in circumstances where the third respondent’s confidential information is not compromised.

[7] Similarly, in so far as the applicant requires the third respondent to guarantee his legal costs in respect of the review application, the applicant has not established any right to such guarantee. Put another way, the applicant has failed to establish that he has a right to assistance with legal costs in any litigation against his erstwhile employer.

[8] In so far as the applicant seeks relief in respect of any denial of access to the third respondent’s premises to obtain what he contends is personal, private information of sentimental value, again, in the absence of any employment relationship, this is not a matter over which this court has jurisdiction.

[9] In short, the applicant has failed to establish that he has a clear or a prima facie right to the relief that he seeks. The application thus stands to be dismissed.

[10] It became clear during argument that the applicant’s real grievance is the delay in the enrolment for hearing of the review application. This is a regrettable consequence of the current backlog in the opposed motion roll, which extends to some 18 months. However, the applicant’s position is not unique – the bulk of the backlog comprises review applications.

[11] Insofar as costs are concerned, this court has a broad discretion in terms of section 162 to make orders for costs according to the requirements of the law and fairness. The applicant is not a lay person. He has a law degree, and is currently pursuing post-graduate studies. The present application was entirely misconceived, and the opposition to it is being funded by the tax payer. In these circumstances, in my view, the requirements of the law and fairness dictate that costs follow the result.

I make the following order:

1. The application is dismissed, with costs.

André van Niekerk

Judge of the Labour Court of South Africa

APPEARANCES

For the applicant: Self

For the third respondent: Adv Luzelle Adams, instructed by RW Attorneys.