Maphalle v National Heritage Council and Others (J 929 / 2022) [2022] ZALCJHB 99; (2023) 44 ILJ 579 (LC) (30 August 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 929 / 2022

In the matter between:

KAGISO ANNETTE MAPHALLE

Applicant

and

NATIONAL HERITAGE Council First

Respondent

THE CHIEF EXECUTIVE OFFICER:

NATIONAL HERITAGE COUNCIL Second Respondent

SANDILE THOKOZANI MABASO N.O. Third Respondent

CHARLES BECKENSTRATER N.O.

Fourth Respondent

Heard: 12 August 2022

Delivered: 30 August 2022

Summary: Urgency - applicant must establish compelling considerations of urgency - proper urgency not shown - substantial redress in due course

Alternative remedy - applicant has proper alternative remedy available in the form of unfair dismissal proceedings in the normal course or contract claim in the ordinary course - issues raised in the current application can be raised in such proceedings - applicant can obtain full redress in the ordinary course

Costs - proceedings an abuse of process - costs ordered

REASONS

SNYMAN, AJ

Introduction

[1] This is yet another urgent application brought by a senior employee in the service of a State organization, seeking to urgently intervene in proceedings where there are clearly alternative specific dispute resolution processes prescribed by the Labour Re1atlons Act (LRA).[1] These employees, who are highly remunerated and can thus afford it, often rush off to this Court on the back of clever lawyering to try and secure an advantage over all the other thousands of litigants that patiently wait in the queue to have their cases of termination of employment decided.

[2] What makes it worse is that these litigants seek to classify what is in reality an ordinary unfair dismissal dispute as contemplated by Chapter VIII of the LRA as something else, namely a breach of contract, or unlawful dismissal. It is true that in the case of an alleged breach of contract, which is the cause of action on which the applicant's current application is founded, this Court would have jurisdiction in terms of section 77(3) of the Basic Conditions of Employment Act (BCEA][2], as read with section 77A, to entertain such a claim. That being said, and as will discussed in more detail below, there is nothing special or unique in such a breach of contract claim that propels it into the realms of urgency and so cause it to be heard immediately and ahead of the queue of other similarly fated litigants. In Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another[3] the Court held as follows:

'... as a result of the judgment in SABC, an unforeseen, and I am quite sure unintended, consequence has arisen. The judgment has been taken to now establish some sort of licence for litigants to approach the Labour Court on an urgent basis challenging dismissals as being unlawful. There seems to be a general view that the fact that the dismissal may be considered to be unlawful, and is challenged on that basis, is in itself a basis for urgency. It needs to be made clear that such an approach would be wrong. In fact, this was recognised by Lagrange J himself in SABC, where the learned judge said: 'The mere fact that the applicants have been dismissed in breach of their contracts of employment might not in and of itself warrant urgent relief. What makes the application urgent is related to a number of factors.'[4]

[3] It is my view that breach of contract claims seldomly warrant being dealt with on the basis of urgency. Ordinarily, this Court should be reluctant to entertain these kinds of urgent applications,

considering the fact that there is no reason, in general, why a dispute concerning the breach of a contract of employment cannot be pursued in the ordinary course, as would the case where an ordinary civil court is seized with such a contract dispute.[5] If every breach of a contract of employment was per se urgent, then this Court would be flooded with urgent applications to overturn terminations of employment, which is simply not the kind of process fit for purpose.

[4] All considered, the termination of an employment contract on notice is nothing else but a dismissal as defined in section 186(1)(a) of the LRA. Challenging such a dismissal under the LRA follows a prescribed dispute resolution process, and this does not include approaching this Court directly on an urgent basis to effect such a challenge. Whilst it is true that an employee has the election to challenge a termination of his or her employment contract either as an unfair dismissal under the LRA, or on the basis of a breach of contract, it must always be remembered that the preferred method to challenge such a termination of employment, from a general policy perspective, would be unfair dismissal proceedings under the LRA.[6] The simple reality is that urgent applications based on alleged unlawfulness or breach of contract are often abused by litigants who seek to bypass these prescribed dispute resolution processes. [7] As the Court held Northam Platinum supra:[8]

'Whilst it may be so that a dismissal could in particular circumstances, and where the LRA is not relied upon, be considered to be unlawful and consequently invalid because of a specific provision in a contract of employment which has been breached, this cannot per se serve to jump the queue of all other dismissed empl9yees relying on the provisions of the LRA waiting for their turn in court. This kind of situation is merely another cause of action upon which the termination of a contract of employment can be challenged in the Labour Court. But other than that it holds no particular magic.'

[5] It must follow that any application to approach this Court directly to challenge a dismissal on the basis of a breach of contract, as a matter of urgency, would only be competent in truly exceptional circumstances.[9] If there are no such exceptional circumstances, then this Court should decline to step in. As to what exceptional circumstances may be, there are of course no specific hard and fast rules. but it has been said that amongst the factors to be considered would be whether it would be impossible that justice be attained by other means, or if material irremediable prejudice or injustice is shown to exist.[10]

[6] In the notice of motion, the applicant asks for final relief in the form of setting aside her dismissal and reinstating her into her former position. Because the applicant is seeking final relief in this regard, she must satisfy three essential requirements which must all be shown to exist, being: (a) a clear right; (b) an injury actually committed or reasonably apprehended (prejudice); and (c) the absence of any other satisfactory remedy.[11]

[7] This matter came before me for argument 12 August 2022 and was opposed by the first and fourth respondents. According to the first respondent, the matter was not urgent, there was no basis to intervene in at this stage, and the applicant should pursue her dispute concerning her alleged breach of contract either in the ordinary course, or should instead pursue an unfair dismissal case in terms of the LRA utilizing the dispute resolution mechanisms of the LRA. After hearing argument by both parties, and on 12 August 2020, I granted the following order:

'(1) The application is struck from the roll for want of urgency.

(2) The applicant is ordered to pay the costs of the application, of all the respondents.

(3) Written reasons for this order will be handed down on 30 August 2022.'

[8] This judgment now constitutes the written reasons referred to in paragraph 3 of my order, supra. I will do so by first setting out the relevant background facts, followed by dealing with the issue of urgency.

The relevant background

[9] The applicant was employed by the first respondent on a five years' fixed term contract of employment, commencing 1 October 2018 and terminating on 30 September 2023 ('the contract'). The contract was actually concluded on 1 October 2018. Included in the contract are references to the Public Service Act, 1994 (PSA) and its associated regulations. In particular, it is stated that "The employee's employment and conditions of service shall be governed by the Public Services Act, the regulations thereto, and any other legal provision applicable to the employee".

[10] The contract also dealt with its termination in clause 3 thereof, and provides in clause 3.1 that it may be terminated as provided for in section 17 of the PSA, for misconduct or for non-performance. The contract further specifically provides that terminations in terms of the provisions referred to above will be "reviewed" in accordance with the LRA and any applicable labour legislation and directives.

[11] In turn, section 17(2) of the PSA provides that an employee may be dismissed on account of incapacity due to ill health or injury, operational requirements, incapacity due to poor performance or misconduct. Section 17(1)(b) of the PSA provides that a dismissal for misconduct shall be exercised as provided for in section 168(1), which in tum prescribes that the person giving effect to a sanction pronounced upon by a chairperson in a disciplinary hearing must be either the relevant executive authority or the head of department, depending on the seniority of the employee.

[12] On 14 June 2021, the applicant was given notice to attend a disciplinary hearing on a number of misconduct charges, including gross insubordination, gross dishonesty, and failing to comply with policies and procedures of the first respondent. The disciplinary hearing ultimately convened before a third-party chairperson, being the third respondent. The applicant and the first respondent (through its representatives) fully participated in the disciplinary hearing. The hearing was delayed, principally because of the manner in which the applicant conducted herself in the course of the hearing. The ultimate outcome of the disciplinary hearing was a written pronouncement by the third respondent on 4 July 2022 that the applicant was guilty of the first charge against her, which was the gross insubordination charge, followed by a further pronouncement on the issue of an appropriate sanction given on 12 July 2022, to the effect that the applicant receive a final written warning plus a forfeiture of 75% of her salary for three months.

[13] The first respondent was not satisfied with the sanction recommendation. In a notice presented to the applicant on 15 July 2022, the first respondent provided substantive reasons as to why it did not accept the recommendation by the third respondent as chairperson where it came to the issue of an appropriate sanction, and in particular why it considered the trust relationship between the parties to have broken down. The applicant was specifically invited to make submissions in response to these reasons given by the first respondent.

[14] The applicant however refused to provide such submissions. In a letter by her attorneys sent to the first respondent on 16 July 2022, the applicant indicated that as far as she was concerned, the disciplinary proceedings had concluded, that the first respondent was bound by the recommendation by the third respondent as chairperson, and that if it was dissatisfied with such recommendation, it needed to apply to review and set aside the same.

[15] In the absence of submissions by the applicant, the first respondent's chief executive officer, on 22 July 2022, exercised his powers under the PSA and decided to dismiss the appl1cant based on the reasons as set out.in the notice of 15 July 2022 sent to the applicant.

[16] The current application then followed on 27 July 2022, in which the applicant contended that the first respondent had no power in terms of her contract of employment to change the sanction recommendation of the third respondent as chairperson as set out above, and to instead dismiss her. According to the applicant, her dismissal was thus in breach of the contract and unlawful.

Urgency

[17] Urgent applications are governed by Rule 8. In considering Rule 8, the Court in Jiba v Minister: Department of Justice and Constitutional Development and Others[12] said:

'Rule 8 of the rules of this court requires a party seeking urgent relief to set out the reasons for urgency, and why urgent relief is necessary. It is trite law that there are degrees of urgency, and the degree to which the ordinarily applicable rules should be relaxed is dependent on the degree of urgency. It is equally trite that an applicant is not entitled to rely on urgency that is self created when seeking a deviation from the rules.'

[18] Another important consideration to be applied when deciding whether a matter is urgent, is the determination of whether an applicant would not be afforded substantial redress in due course, and the duty is on the applicant to provide proper reasons in support of such a case.[13] As succinctly described by the Court in Maqubela v SA Graduates Development Association and Others[14]:

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

[19] Because the applicant in casu is actually seeking final relief on an urgent basis, the Court must be even more circumspect when deciding whether or not urgency has been established.[15] In Tshwaedi v Greater Louis Trichardt Transitional Council[16] the Court said:

'... 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 '

[20] When considering urgency, it is not just about the interests of the applicant party. The interests of the respondent party must also be considered. In particular in this regard, it must be considered what the prejudice the respondent may suffer if the matter is urgently disposed of. In Northam Platinum supra[17] the Court held as follows:

'But it is not just about the applicant. Another consideration is possible prejudice the respondent might suffer as a result of the abridgement of the prescribed time periods and an early hearing '

[21] In the end, one can hardly put it any better than to refer to the following dictum in Mmatli and Others v Department of Infrastructure Development (Gauteng Province)[18]:

'In exceptional circumstances the Labour Court may intervene on an urgent basis to interdict an unfair dismissal. Thus, there is no inherent jurisdictional obstacle to obtaining such relief. As the Labour Appeal Court observed in the Booysen decision there is no closed list of factors to consider, but in my view employees should not even consider seeking this extraordinary relief if the unfairness is not glaringly obvious and of a very fundamental nature which can be .easily redressed '

Analysis

[22] I am satisfied that, after due application of the above principles to the facts of this matter, the applicant has fallen far short of making out a proper case of urgency. I am compelled to conclude that there simply exists no basis on which to urgently intervene in this matter, for the reasons set out hereunder.

[23] As a point of departure, the applicant seeks to tie urgency to the issue of the breach of her contract of employment, per se. In other words, and according to the applicant, because her contract of employment has been so flagrantly and materially breached, it must follow that the application is urgent. But this proposition is misdirected and cannot be correct. As explained in Northam Platinum supra:[19]

'The substance of the applicants' case on urgency bears out what I consider to be the situation in the aforesaid paragraph. It is a case based squarely on considerations of hardship, sympathy and the merits of the case itself. In simple terms, it is said that urgency is established by the alleged unlawfulness of the first respondent's conduct which will cause the individual applicants extreme hardship. In my view, this approach is squarely founded on the kind of 'licence' assumed by practitioners following the judgment in SABC, as I have discussed above. The applicants in fact say it in so many words in the founding affidavit. But, and as I have already said, the judgment in SABC does not support such an approach. It is not the 'licence' the applicants believe it to be, and the allegations of unlawfulness of the conduct of the first respondent cannot in themselves serve to establish urgency.'

[24] In the end, the applicant, like any other employee that has alleged breach of contract, can seek to enforce her contract of employment in terms of all the normal course mechanisms provided to such litigants in terms of the BCEA. There is nothing special about the applicant or her case, and she simply faces the exact same challenges as all other such languishing litigants who have lost their employment because of an alleged breach of contract. As held in Denosa and Others v Provincial Administration, Western Cape:[20]

'The mere fact that there is a breach does not make a matter urgent; if this was so, there would be no need for a court to grant leave to a party to come before it on an urgent basis as every matter has to relate to a breach of some kind.'

[25] Therefore, and even if the applicant has suffered a breach of contract as alleged, she still needed to make out a particularly compelling case for urgent intervention, and show that it would not be possible for her to get substantial redress in the ordinary course. As will be set out later in this judgment, she in fact can get substantial redress in the ordinary course, and there are no compelling considerations of urgency justifying intervention now.

[26) I do accept that the applicant acted promptly in bringing this application to Court. She was notified of the termination of her contract of employment on 22 July 2022, and brought the current application in less than a week after that, being on 27 July 2022. Therefore, and at least, where it comes to taking prompt and immediate action after the event in raising a legal challenge, the applicant has satisfied the requirements of urgency.[21] But unfortunately for her, that is only half the battle. She still needs to show the kind of irremediable prejudice discussed above, as coupled with an inability to obtain substantial redress in the ordinary course. It is in this latter context where the applicant falls far short.

[27] Further, and as part of any case of urgency, the interests of the first respondent must also be considered. It is entirely inappropriate to drag the first respondent to Court by way of motion proceedings on extreme short notice to answer a case of breach of contract and to address the issue of the remedies that may follow such breach of contract, including the possibility of specific performance (the applicant calls this reinstatement). The fact that there may be breach of contract does not mean that specific performance

(reinstatement) as a remedy follows as a matter of course, and the Court would need to be satisfied, on the basis of proper evidence,

that such relief is appropriate.[22] It is seldom appropriate to make these kinds of determinations, which are in the form of final declaratory relief, in motion proceedings on an urgent basis. As held in Member of the Executive Council for Education, North West Provincial Government v Gradwell[23]:

'... A declaratory order will normally be regarded as inappropriate where the applicant has access to alternative remedies, such as those available under the unfair labour practice jurisdiction. A final declaration of unlawfulness on the grounds of unfairness will rarely be easy or prudent in motion proceedings ...'

[28] Next, the applicant relies on a number of financial hardship considerations brought about by her termination of employment, in order to make out a case of urgency. However, financial hardship, as a general proposition, is no basis for urgency.[24] In Jonker v Wireless Payment Systems CC[25] the Court said:

'... The general rule that financial hardship and loss of income are not considered to be grounds for urgent relief was upheld in Malatji v University of the North [2003] ZALC 32 (LC) and Nasionale Sorghum £3ierbrouery (Edms) Bpk (Rantoria Divisie) v John NO en Andere (1990) 11 ILJ 971 (T)

[29] It is thus up to the applicant, in order to avoid the application of this general principle, to make out a compelling or exceptional case of irremediable financial prejudice which cannot be mitigated in the normal course. This kind of case must be set out in the founding affidavit in such particularly that the Court is able to satisfy itself that such considerations indeed apply.[26] As said in Democratic Nursing Organisation of SA and Another v Director-General,

Department of Health and Others'.[27]

'... as a general principle financial hardship or loss of income cannot be regarded as grounds for urgent relief. For the applicant to succeed when relying on financial hardship or loss of income he or she must show the existence of exceptional circumstances justifying the granting of an order on an urgent basis and on the ground of financial hardship '

[30] Looking at the applicant's case of financial hardship as contained in the founding affidavit, it is based on the applicant being unable to meet her monthly expenses. Those expenses include bond instalments, medical aid, vehicle instalments, credit card payments and general costs of living. The applicant also claims that her sudden dismissal meant she was unable to make 'financial arrangements' to mitigate her harm. Ironically, the applicant even seeks to rely on the fact that she is being held liable for costs by the first respondent as a result of an earlier urgent application by the applicant to interdict the disciplinary hearing against her, which was dismissed by Van Niekerk J with costs in the judgment of Maphalle v National Heritage Council and Others.[28] The learned Judge held as follows in awarding costs against the applicant:[29]

'In casu, the Applicant brought an urgent application at a time when urgency has passed. There was no consideration of the applicable authorities on the issue of this Court interfering in incomplete disciplinary hearings and the warnings contained in those judgments. This application amounts to an abuse of process. To make matters worse for the Applicant, she was legally represented and did not approach this Court as an unrepresented layperson who did not know better. On the contrary, not only is she represented by counsel and attorneys, the Applicant cited herself as 'a female advocate."

Yet here we are again, with the applicant relying on her own failures to make out a case of financial prejudice. This is unacceptable.

[31] I am unconvinced that any explanation by the applicant concerning her financial prejudice is compelling or exceptional. None of what the applicant has set out in her founding affidavit makes the applicant's case different to the thousands of other cases where employees have been dismissed, and as a result, lost their salaries. As harsh as it may sound, the applicant is in exactly the same position as anyone else who has not received a salary, and there is no reason why she cannot wait in the queue to obtain an order to secure payment of that which may bet contractually due to her, just like everyone else. And even harsher still, the applicant is mainly the cause of her own misfortune, by coming to this Court when she should not have done so. In my view, the following dictum in De Beer v Minister of Safety and Security and Another[30] is particularly apposite:

'... The grounds for 'semi-urgency' which were primarily relied upon by the appellant, were that he was not receiving a salary and had no other source of income, his savings were almost exhausted and that he had ongoing financial commitments that he could not, or had difficulty in honouring. The loss of salary and benefits, with the concomitant financial hardship, are not regarded as sufficient to establish urgency ... '

[32] What I also find perplexing is that an applicant who is facing such financial harm as she contends to be the case, and having been sternly warned by this Court already, still has the funds to spend on legal fees on this application, instead of rather filing a either an unfair dismissal case in the bargaining council, or a statement of claim based on breach of contract in the ordinary course in this Court.

[33] Next, and importantly, the applicant can obtain what is nothing else but full redress in the ordinary course. What makes this consideration more compelling is that the primary basis of the applicant's case of breach of contract, being that it was impermissible and unlawful for the first respondent to change the chairperson's recommendation of a sanction short of dismissal to a sanction of dismissal, is nothing else but a fairness consideration,[31] and thus appropriately determinable under the unfair dismissal jurisdiction under the LRA. In BMW (SA) (Ply) Ltd v Van der Walt[32] the Court held:

'... Whether or not a second disciplinary enquiry may be opened against an employee would, I consider, depend upon whether it is, in all the circumstances, fair to do so….In labour law fairness and fairness alone is the yardstick. '

[34] I will assume (and I make no determination in this regard) for the purposes of argument, that the SMS Handbook finds application in this case. The disciplining of employees in the Public Service is regulated by Chapter 7 of the SMS Handbook. That being so, the problem the applicant still has is that clause 1.2 of Chapter 7 prescribes the Chapter must be read and applied in conjunction with the LRA. It is also prescribed in Chapter 7 that that the Code of Good Practice in Schedule 8 of the LRA is considered to be part and parcel of the whole code and procedure contained in the SMS Handbook.[33] It is also stated in the SMS handbook itself that nothing in it detracts from the right of an employee to utilize the dispute resolution

mechanisms under the LRA.[34] In Manamela Ida v Department of Co-Operative Governance, Human settlements and Traditional Affairs Limpopo Province and Another[35] it was held as follows:

'... This has to mean that where it comes to rights as envisaged by the LRA that arise where the SMS Handbook is applied, all the provisions of the LRA find application, including the dispute resolution process ... '

[35] It must once again follow that the applicant, insofar as her case is founded on the provisions of the SMS Handbook, is bound to the dispute resolution processes under the LRA, unless there are truly exceptional circumstances dictating otherwise. And as stated above, no such exceptional circumstances exist in this case. The applicant can competently raise all her complaints in this regard in the ordinary course of dispute resolution proceedings in terms of the LRA before the bargaining council, should she be dismissed, as a ground in support of a case of an unfair dismissal.[36]

[36] If the applicant tis successful with an unfair dismissal case on the basis that her change of sanction is unfair, then she may well be entitled to the primary relief of reinstatement with full back pay in terms of section 193(1) of the LRA, which will be complete redress. But that is something for an arbitrator to decide, after considering all the evidence. Similarly, and even in the case of a breach of contract dispute properly heard in the normal course, if a Judge finds that there was a breach of contract, then specific performance may be competent, which would once again offer full redress to the applicant. But just like in the case of arbitration, a Judge would have to decide on the evidence whether such remedy is competent, as I have discussed above. These kind of urgent proceedings, as brought in casu, are simply not the competent manner in which to make these kinds of determinations.

[37] In the end, one can hardly describe the situation any better than referring to the following dictum in Ngobeni v Passenger Rail Agency of SA Corporate Real Estate Solutions and Others[37] where it was said:

'... what the applicant effectively seeks to do is to bypass the statutory dispute­ resolution structures in the form of the CCMA and bargaining councils. One of the primary functions of these structures is to determine the substantive and procedural fairness of unfair dismissal disputes. Applicants who move applications on an urgent basis in this court for orders that effectively constitute findings of procedural unfairness, bypass and undermine the statutory dispute­ resolution system. The court's proper role is one of supervision over the statutory dispute-resolution bodies: it is not a court of first instance in respect of the conduct of a disciplinary hearing, nor is its function to micromanage discipline in workplaces '

[38] Therefore, and in sum, the applicant has failed to make out a case of urgency. The requirements of Rule 8 ha'1e thus Mt been satisfied, for two reasons. First, she has failed to show that truly exceptional circumstances justifying immediate intervention exist in this case. Second, she has at least two perfectly suitable alternative remedies available to her in terms of which she can obtain substantial redress in the ordinary course. The applicant's application thus falls to be struck from the roll for want of urgency.

Costs

[39] This then only leaves the issue of costs. The applicant was legally assisted throughout these proceedings, and is herself legally qualified,

referring to herself in the founding affidavit as an advocate. The applicant should thus have known, from the outset, especially

considering it was brought on the basis of non-existent urgency, that her application was doomed to fail. I also consider that the applicant in fact deliberately designed the current application to try and obtain an undue advantage of having her dismissal overturned on an urgent basis, outside of the structures prescribed by the LRA, which should as a matter of principle have been followed. This kind of behaviour should be frowned upon. I also consider that there was absolutely no need for the applicant to have brought the fourth respondent into these proceedings and the statements she made in the affidavits concerning the fourth respondent are unfounded, spurious and unacceptable.

[40] And finally, the continuous failure by litigants to heed the numerous warnings by this Court where it comes to these kind of applications must now be visited with adverse consequence.[38] In terms of the broad discretion I have with regards to costs, in terms of section 162(1) of the LRA, I believe this is a situation where a costs order against the applicant was certainly earned, and justified. I fully align myself with the following dictum in Mokoena v Merafong Municipality and Others[39]:

'In casu, the applicant brought a meritless application to this court and fairness dictates that the respondents cannot be expected to endure enormous costs defending litigation where more thought and consideration had to be put in before approaching this court on an urgent basis. This is more so where the costs incurred by the respondents are paid from taxpayers' money and I can see no reason why the taxpayers should be burdened with the costs in this application ... '

[41] In any event, and as the applicant has chosen to base her case on contract and not on tie LRA, it is a contractual dispute in respect of which the general rule that costs are ordinary not awarded in employment law disputes does not apply. As said in Skinner and Others v Nampak Products Ltd and Others[40]:

'... As this matter is principally a contractual claim in terms of s 77(3) of the BCEA, the ordinary rule that costs should follow the result applies '

[42] For all the above reasons, I thus conclude that this is an appropriate case where an exercise of my discretion under section 162 of the LRA must lead to the applicant being ordered to pay the costs of the application.

[43] It is for all the reasons set out above that I made the order that I did, as reflected in paragraph 7 of this judgment, supra.

S Snyman

Acting Judge of the Labour Court of South Africa

APPEARANCES:

On behalf of the Applicant:

Advocate L Moela

Instructed by:

Sithi & Thabela Attorneys

On behalf of the First Respondent:

Advocate G Fourie SC

Instructed by:

Moodie & Robertson

Attorneys On behalf of the Fourth Respondent: Advocate W Hutchinson

Instructed by:

Salijee Van Der Merwe Govender Inc

[1] Act 66 of 1995 (as amended).

[2] Act 75 of 1997 (as amended).

[3] (2016} 37 ILJ 2840 (LC).

[4] The Court was referring to the judgment in Solidarity and Others v South African Broadcasting Corporation (2016} 37 /LJ 2888 (LC} at para 47.

[5] This Court in essence sits as a civil court when deciding disputes concerning an employment contract under section 77(3) of the BCEA.

[6] In Chirwa v Transnet Ltd and Others (2008) 29 ILJ 73 (CC) at para 41 the Court said: 'It is my view that the existence of a purpose-built employment framework in the form of the LRA and associated legislation infers

that Labour processes and forums should take precedence over non-purpose-built processes and forums in situations involving employment related matters. At the least, litigation in terms of the LRA should be seen as the more appropriate route to pursue. Where an alternative cause of action can be sustained in matters arising out of an employment relationship, in which the employee alleges unfair dismissal or an unfair labour practice by the employer, it is in the first instance through the mechanisms established by the LRA that the employee should pursue her or his claims ... '. See also Gcaba v Minister for Safety and Security and Others (2010) 31 ILJ 296 (CC) at para 56, where it was held: '... Once a set of carefully crafted rules and structures has been created for the effective and speedy resolution of disputes and protection of rights in a particular area of law, it is preferable to use that particular system. This was emphasized in Chirwa by both Skweyiya J and Ngcobo J. If litigants are at liberty to relegate the finely tuned dispute-resolution structures created by the LRA, a dual system of law could fester in cases of dismissal of employees ... '.

[7] See for example Zonda and another v Uthukela District Municipality and Another (2015) 36 ILJ 502 (LC) at para 45; SA Municipal Workers Union on behalf of Members v Kopanong Local Municipality (2014) 35 ILJ 1378 (LC) at paras 32 - 33; Madzonga v Mobile Telephone Networks (Ply) Ltd [2016] JOL 37300 (LC) at para 63; Manamela Ida v Department of Co-operative Governance, Human Settlements and Traditional Affairs, Limpopo Province and Another[2013J ZALCJHB 225 (5 September 2013) at para 53.

[8] Id at para 6

[9] See Booysen v Minister of Safety and Security and Others (2011) 32 ILJ 112 (LAC) at para 54; Member of the Executive Council for Education, North West Provincial Government v Gradwell (2012) 33 ILJ 2033 (LAC) at para 46.

[10] Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC) at para 17; Ngobeni v Passenger Rail Agency of SA Corporate Real Estate Solutions and Others (2016) 37 ILJ 1704 (LC) at para 12; Uthukela District Municipality (supra) at para 17.

[11] Setlogelo v Setlogelo 1914 AD 221 at 227; V & A Waterfront Properties (Pfy) Ltd and Another v Helicopter and Marine Services (Pfy) Ltd and Others 2006 (1) SA 252 (SCA) at para 20; Mere v Tswaing Local Municipality and Another (2015) 36 ILJ 3094 (LC) at para 4.

[12] (2010) 31 ILJ 112 (LC) at para 18.

[13] Mojaki v Ngaka Modiri Molema District Municipality and Others (2015) 36 ILJ 1331 (LC) at para 17; East Rock Trading 7 (Ply) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others [2012] JOL 28244 (GSJ) at para 6.

[14] (2014) 35 ILJ 2479 (LC) at para 32. See also Transport and Allied Workers Union of SA v Algoa Bus Co (Ply) Ltd and Others (2015) 36 ILJ 2148 (LC) at para 11.

[15] Ntombela and Others v United National Transport Union and Others (2019) 40 ILJ 874 (LC) at para 28.

[16] [2000] 4 BLLR 469 (LC) at para 11. See also Minah v Elias Motswaledi Local Municipality [2019] 5 BLLR 481 (LC) at para 26.

[17] Id at para 26. See also IL & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another 1981 (4) SA 108 (C) at 113D-114C.

[18] (2015) 36 ILJ 464 (LC) at para 13.

[19] Id at para 33.

[20] (2001) 22 ILJ 1383 (LC) at para 12.

[21] See Northam Platinum (supra) at para 26.

[22] See Pilanesberg Platinum Mines (Pty) Ltd v Ramabulana (2019) 40 ILJ 2723 (LAC) at paras 31 - 32.

[23] (2012) 33 ILJ 2033 (LAC) at para 46.

[24] Northam Platinum (supra) at para 37.

[25] (2010) 31 ILJ 381 (LC) at para 16.

[26] Northam Platinum (supra) at para 35; Gamba v Member of the Executive Council: Gauteng Department of Human Settlement (2019) 40 ILJ 2355 (LC) at para 15; CWIU v Sasol Fibres (1999) 20 ILJ 1222 {LC) at 1227B - C.

[27] (2009) 30 ILJ 1845 (LC) at para 19.

[28] (J1502/2021) [2021] ZALCJHB 452 (13 December 2021).

[29] Id at para 101

[30] (2013) 34 ILJ 3083 (LAC) at para 32.

[31] See the judgments in Anglo American Platinum (Rustenburg Platinum Mines) v Beyers and Others (2021) 42 ILJ 2149 (LAC) at para 31; Moloantoa v Commission for Conciliation, Mediation and Arbitration and Others (2021) 42 ILJ 2259 (LC) at paras 24 - 25; Mahlakoane v SA Revenue Service (2018) 39 ILJ 1034 (LAC) at para 27.

[32] (2000) 21 ILJ 113 (LAC) at para 12.

[33] See clause 2.4(1) of chapter 7 of the SMS Handbook. In Chibi v MEG: Deparlment of Co-operative Governance and Traditional Affairs (Mpumalanga Provincial Government) and Another (2012) 33 ILJ 855 (LC) at para 27 it was confirmed that the SMS Handbook incorporates the LRA's Code of Good Practice.

[34] See clause 2.9 of chapter 7 of the SMS Handbook

[35] (J1886/2013) [2013] ZALCJHB 225 (5 September 2013) at para 25.

[36] Compare Mokoena v Merafong City Local Municipality and Another (J 814/20) [2020] ZALCJHB 135 (24 August 2020).

[37] (2016) 37 ILJ 1704 (LC) at para 14.

[38] See, for example, Uthukela District Municipality (supra) at para 47; Magoda (supra) at para 20; Bates v City of Joburg Property Company SOC Ltd and Another (J 937/20) [2020] ZALCJHB 200 (28 September 2020) at para 50; Bojanala Platinum District Municipality (supra) at para 64.

[39] (2020) 41 ILJ 234 (LC) at para 36.

[40] (2021) 42 ILJ 838 (LAC) at para 47.