Mathonsi v Passenger Rail Agency South Africa (J 752/2023) [2023] ZALCJHB 186 (21 June 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 752/2023

In the matter between:

MACHOVANI

CASWELL MATHONSI Applicant and

PASSENGER

RAIL AGENCY SOUTH AFRICA Respondent

Heard: 20 June 2023

Delivered: 21 June 2023

(This judgment was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 21 June 2023.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant seeks on an urgent basis, to interdict and restrain the respondent from appointing ‘any one’ to the position of general manager: safety, pending the determination of the applicant’s referral of an unfair labour practice dispute to the CCMA.

[2] The material facts are not in dispute. In March 2022, the respondent advertised the above position. The applicant was shortlisted and attended an interview in August 2022. The applicant avers that the interviewing panel recommended him for appointment. In May 2023, after several enquiries regarding the outcome of the interview, the applicant was informed that the board had not approved

his appointment. The post has been re-advertised. The applicant does not dispute that he has applied for appointment to the post, and that a shortlisting of candidates remains pending.

[3] The applicant contends that he has a prima facie right to appointment into the position of general manager, on the basis that the board’s decision not to appoint him is unlawful and amounts to an unfair labour practice. In particular, the applicant contends that he had a legitimate expectation that he would be appointed to the position given that he has previously acted in the position, that during his acting tenure, he exceeded performance expectations, that he has been employed by the respondent for almost 21 years and that he was recommended for appointment to the position.

[4] I will give the applicant the benefit of the doubt and regard the application as urgent, if only because the matter is unlikely to be heard within the next year.

[5] The requirements for interim relief are well-established. The first hurdle for the applicant to clear is that of a prima facie right to the relief sought. It is trite that no employee has a right in law to be appointed to any position. There is similarly no right to be promoted into any position, nor does the legal construct of legitimate expectation on which the applicant relies does not afford him any right or guarantee to be appointed or promoted into the advertised position. In the absence of any right to be appointed or promoted, it is difficult to appreciate precisely what right the applicant seeks to preserve by way of interim relief. At best for the applicant, he seeks to have the post frozen pending his appointment to it, either by way of a successful application, or, as he clearly thinks is more likely, by way of an arbitration award in his favour.

[6] In Oliphant v Thembelihle Local Municipality & Another (2023) 44 ILJ 413 (NCK), where a similar application was dismissed, in the context of an unfair dismissal dispute, Tlaletsi JP said:

‘The right that the applicant wants to protect will only come into existence once he successfully demonstrates to the bargaining council that his dismissal is substantively unfair. He may or may not succeed in that endeavor. Either of the parties who might be aggrieved by the award by the bargaining council has the right to take the award through the dispute-resolution systems provided by the law. That might cause more delays which will be to the detriment of the municipality. It is not for the applicant to decide that the person who is currently acting in the contested position should continue until the dispute with the municipality is finally resolved. It is the prerogative of the municipality to decide whether to keep the person or person permanently fill the position. Whatever delay might be, if, in the end, the applicant is successful, he will be reinstated without loss of emoluments due to him. His conditional right does not translate into a right to keep the position he occupied vacant indefinitely, for just in case he succeeds.

[7] In the present instance, the applicant has referred a dispute to the CCMA. He may or may not succeed in that dispute. Even if he succeeds, he may not secure an order to the effect that he be appointed into the post to which he lays claim. Whatever conditional right the applicant may have (and I express no view on his prospects of success in the CCMA) does not translate into a right to keep vacant the advertised post. In any event, if the applicant succeeds in obtaining an award that requires the respondent to appoint him to the vacant position, the respondent would be obliged to implement that award regardless of any appointment that the respondent may in the interim have made. In short, the applicant has failed to establish a prima facie right to the relief sought and the application stands to be dismissed on this basis.

[8] The court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of the law and fairness. The Constitutional Court has made clear that this formulation is intended to ensure that the doors of the court to remain open to aggrieved applicants and that the spectre of an adverse word of costs should not stand in the way of an employee pursuing his or her interests in good faith. On this basis, it seems to me that the requirements of the law and fairness are best satisfied by each party bearing its own costs.

I make the following order:

1. The application is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the applicant: Mr A Mavimbela, Adonisi Attorneys Incorpotated For the respondent: Adv P.G Seleka SC; Adv N Ali Instructed by: Msikinya Attorneys & Associates