Malatji v University of the North (J635/03) [2003] ZALC 32 (22 April 2003)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT BRAAFONTEIN

CASE NO J635/03

In the matter between:

MALATJI, CONSTANCE Applicant

and

University of the North First Respondent

_________________

JUDGMENT

TIP AJ:

1. The applicant was employed in 1991 as a manager at the respondent’s main campus students residence. Her gross salary was approximately R8 000 per month. On 5 August 1996 she was injured. There is a dispute as to whether or not this injury was sustained in the course and scope of the applicant’s employment. It is however not disputed that the injury was a serious one resulting in considerable incapacity on the part of the applicant.

2. Although she was unable to perform her normal duties, the applicant continued to receive her salary until the end of October 2001. According to the respondent, the applicant worked episodically during the period June 1997 until December 1999. Thereafter she did not come to work at all.

3. In the course of January 2002 there was a meeting between the parties at which the reasons for the discontinuance of the salary were discussed. The respondent contends that an agreement was reached that the applicant should be boarded on medical grounds. The applicant disputes this. In any event, the meeting was followed by a letter from the respondent to the applicant dated 11 February 2002 which inter alia reconfirmed that her services had been terminated on account of ill health with effect from 1 November 2001.

4. The applicant reacted to this by referring an unfair dismissal dispute to the CCMA. An unsuccessful attempt at conciliation was conducted on 5 April 2002. Some time passed before an arbitration hearing was scheduled, this being on 4 February 2003. Settlement discussions ensued, fruitlessly, and the hearing did not get under way.

5. On 27 March 2003 the present proceedings were launched by the applicant on an urgent basis. The substantive relief sought is that:

5.1. the respondent’s conduct in unilaterally stopping the applicant’s salary should be declared to be unlawful; and

5.2. the applicant should be ordered to reinstate the applicant’s retrospectively to 1 November 2001, including payment of her thirteenth cheque.

6. The hearing of the application was postponed on 27 March 2003 in order for further affidavits to be filed. It was argued before me on 15 April 2003.

7. The respondent has raised several in limine points and the argument on 15 April 2003 was confined to those issues. They are:

7.1. the application must fail for want of urgency;

7.2. there are material and foreseeable disputes of fact;

7.3. this Court does not have the jurisdiction to reinstate an employee’s salary on the basis sought by the applicant;

7.4. the matter is lis pendens in that the dispute already referred to the CCMA in substance deals with the same questions as those raised in this Court.

8. In my view, there is merit in each of those points. It will however be sufficient for me to deal only with the first ground, relating to urgency, this being the principal ground advanced for the respondent.

9. The application rests upon allegations of financial need. This is related by the applicant to medical expenses, in that the applicant’s medical aid cover came to an end when the respondent stopped paying her salary as from November 2001. In consequence, alleges the applicant, she has been unable to undergo the constant medical treatment that she requires. She also needs a variety of medication, as well as ‘exclusive and peculiar diets’. She goes on to aver: “In view of the fact that the Respondent unilaterally stopped my salary, I depleted all the reserves that I had together with those of my husband. I am now unable to meet all these requirements in view of the period in which the Respondent had stopped my salary.”

10. Mr Woudstra, who appeared for the respondent, points out that no substantiation of any of these allegations has been furnished by the applicant. That submission appears to me to be well-founded:

10.1. In the first place, no monetary value has been put to the applicant’s medical treatment. Two notes from a medical practitioner were annexed to the replying affidavit. Those go no further than to record that the applicant complains of back and neck pain, with related headaches. There is reference to treatment with anti-inflammatories and physiotherapy, but no indication of the frequency or the cost of such treatment.

10.2. The statement that the reserves of the applicant and her husband have been depleted is similarly vague and lacking the quantification that would be necessary to place this Court in a position where it can make a proper assessment of the applicant’s position.

10.3. In this context, it is a striking feature of the applicant’s papers that no reference is made to an amount of R196 776 that was paid to her on 23 May 2001 from the respondent’s Disability Benefit Fund. There is also no mention of a sum of R30 855 paid to her on 4 March 2002 by the Compensation Commissioner. That the fact of these payments emerged from the answering affidavit and not from those deposed to by the applicant points to a grave failure on her part to disclose all relevant information to this Court.

10.4. The only financial data put up by the applicant comprise an outline of the family expenses related to her husband’s income of R23 000. The expenses that are scheduled amount to R21 500. On the face of the applicant’s own figures, there is a monthly surplus of R1 500.

11. Neither the founding nor the replying affidavits of the applicant make any statement about when the CCMA arbitration will be heard. A statement under oath concerning that event seems to me to be an essential part of any approach for urgent relief. Indeed, in the course of the argument of Mr Kekana, on behalf of the applicant, he properly informed me that the arbitration was to be heard in the course of the coming week, a matter about which Mr Woudstra had no knowledge. Although I was informed telephonically after the hearing that the CCMA arbitration had been postponed, that does not detract from the significance of this lacuna in the applicant’s approach to this Court.

12. A further difficulty with the manner in which the applicant’s case has been assembled arises from the terms of the relief claimed, which is in the form of a couplet of final orders, each of which would inevitably impact on the conduct of the pending arbitration before a CCMA Commissioner. The undesirability of that is self-evident.

13. In general, financial hardship and loss of income are not considered to be grounds for urgent relief. Exceptional circumstances must exist before urgent interim relief can be granted. See Nasionale Sorghum Bierbrouery (Edms) Bpk (Rantoria Divisie) v John NO & Andere (1990) 11 ILJ 971 (T); University of the Western Cape Academic Staff Union & Others v University of the Western Cape (1999) 20 ILJ 1300 (LC) at para [17]; Hultzer v Standard Bank of South Africa (Pty) Ltd [1999] 8 BLLR 809 (LC) at para [13]:

“Financial hardship or loss of income is not regarded as a ground for urgency. Mlambo J in the University of Western Cape matter (supra) found that loss of income cannot establish a ground for urgency in an attempt to obtain urgent interim relief from this Court.”

See also Nchabeleng v University of Venda & Others (2003) 24 ILJ 585 (LC) at paras [7] to [12] in relation to the limitations on this Court vis-Ã -vis the granting of interim relief pending dispute proceedings in the CCMA.

14. Although the prayers set out in the notice of motion are in the form of final declaratory relief, the applicant does in the body of the founding affidavit indicate that the payment of the salary should be ordered pending the outcome of the proceedings in the CCMA. There is however no suggestion in her papers that such payments will be refunded by her in the event that she does not succeed in the CCMA. I have examined the papers in relation to prospects of success. I have also heard argument on the merits to the extent that it is relevant to the issue of urgent relief. In view of the pending CCMA arbitration I do not express any view on the merits, save that I do not

15. Having regard to all the circumstances, it is my conclusion that the applicant has failed to demonstrate urgency. I make the following order: the application is dismissed with costs.

________

K S TIP

ACTING JUDGE OF THE

LABOUR COURT

DATE OF HEARING: 15 April 2003

DATE OF JUDGMENT: 22 April 2003

FOR APPLICANT: ADV K KEKANA

Instructed by MLALAZI MARIBANA ATTORNEYS

FOR RESPONDENTS: ADV H VAN R WOUDSTRA SC

Instructed by HLATSWAYO DU PLESSIS VAN DER MERWE NKAISENG