Mdlulu v National Housing Finance Corporation (J841/2024) [2024] ZALCJHB 346 (23 August 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: J841/2024

In the matter between:

DIMAKATSO MDLULI Applicant and

NATIONAL HOUSING FINANCE

CORPORATION Respondent

Heard: 13 August 2024

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website and released to Saflii. The date for hand-down is deemed to be on 23 August 2024

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] The applicant seeks urgent relief terms of section 77(3) read with section 77A(e) of the Basic Conditions of Employment Act (BCEA). She seeks a declaratory order that the respondent is in breach of an employment contract between the parties in that it failed or refuses to pay her salary in the amount of R56 666.67, after it was due and payable at the end of July 2024.

The applicant’s case:

[2] The applicant commenced her employment with the respondent as Committee Secretary with effect from 1 November 2023. She contends that she fell sick from 31 May 2024 and her condition had deteriorated, forcing her to take leave of absence. During her

absence, she contends that she updated the respondent of her health condition throughout and submitted medical certificates.

[3] The first certificate was issued by a Clinical Psychologist who recorded that the applicant was consulted on 31 May 2024, and that she was booked off from 3 June 2024 whilst awaiting admission at Vista Clinic. It was further recorded that her fitness to resume duty would be communicated after her discharge.

[4] The second certificate was issued by a Specialist Physician on 20 June 2024, who recorded that the applicant was unfit for duty from 13 June 2024 to 20 June 2024 as she had a “Medical Problem”. The certificate was issued on 20 June 2024.

[5] A third certificate was issued by a Psychiatrist on 1 August 2024, in which it was recorded that the applicant was admitted to Vista Clinic from 4 June 2024 to 14 June 2024. It was recorded that during her admission she presented physical illness and was referred to a physician at Die Wilgers Hospital for further management of her physical condition. The applicant avers that notwithstanding the fact that she had submitted copies of her medical certificates, the respondent withheld her salary for July 2024 without any engagement or notice.

[6] She holds the view that if the respondent believed that her health condition had rendered her incapable of performing her duties, it should have instituted an incapacity hearing instead of withholding her salary.

The respondent’s case:

[7] The respondent relied on clause 9.2 of the contract of employment which provides that an employee was entitled to 30 days of sick leave in a 36 month cycle, but within the first six months of employment, the employee was only entitled to one day for every 26 days on duty. Clause 9.2.3 of the contract further provided that for any absence on account of illness or injury, the employee is required to submit a medical certificate if she is absent for two straight days or more on more than two occasions in a 8 week period.

[8] The respondent’s contention is that the applicant took sick leave from 7 – 25 February 2024 for which she submitted a medical certificate. She thereafter took further sick leave between 28 – 31 May 2024 and submitted another certificate. She however remained on sick leave between 31 May 2024 – June 2024 and submitted another medical certificate.

[9] The respondent avers that since taking sick leave from 28 May 2024, she had not returned to work, and that despite submitting medical certificates for 4 June 2024 to 14 June 2024 and for between 13 – 20 June 2024, there was no evidence of any medical certificates for July 2024 notwithstanding that her sick leave was exhausted either in terms of the contract of employment or under the BCEA.

[10] The respondent in reference to sections 22 and 23 of the BCEA averred that it was absolved from the duty to pay the applicant’s

remuneration for sick leave since she was absent from duty for two consecutive days without producing a copy of her medical certificate.

Further based on the respondent’s Code of Conduct, the applicant was considered without official leave is she was absent

from work for 5 days without an official reason. In the light of these considerations, the respondent contends that the applicant had exhausted her sick and annual leave, and it was therefore under no obligation to pay her salary for July 2024, and further since she was absent for that month without producing a medical certificate.

Urgency:

[11] Other than contesting the merits of the applicant’s claim, the respondent denied that this application deserved the urgent attention of this Court. The principles applicable to urgent applications are trite as can be gleaned from various decisions of this and other Courts[1]. An applicant that approaches the Court on an urgent basis essentially seeks an indulgence, and to be afforded preference in order to prevent prejudice and harm that may materialise or persist if the conduct complained of continues. Central to a determination of whether a matter is urgent is whether the applicant has in the founding affidavit, set forth explicitly, the circumstances which

renders the matter urgent, and the reason why it is said that substantial relief cannot be attained at a hearing in due course.

[12] It is further trite that urgent relief will not be granted where it is apparent from the papers that the urgency claimed is self-created. Self-created urgency will be evident in circumstances where an applicant failed to bring the application at the first available opportunity[2]. Effectively, it is expected of litigants to react immediately to remedy or prevent harm and/or prejudice, rather than standing back and doing nothing until it is too late[3].

[13] The applicant contends that she brought the application because her rights were being infringed which causes her great harm of a continuous kind, and that she will not be able to obtain substantive relief in due course. Amongst the grounds she relies for urgency are her health and that of her child, and the need for the respondent to continue to contribute to her medical aid to enable her and her child to receive medical attention.

[14] This application was brought before the Court on 6 August 2024. It was brought in circumstances where the applicant officially took sick leave from 24 May 2024 to 3 June 2024 and has since not returned to work. The respondent accepted that the applicant had submitted two further medical certificate covering the period 4 – 20 June 2024. Other than these medical certificates, there was no evidence that she had submitted any other into July 2024.

[15] On 4 July 2024, the respondent’s Ms Mawela, had sent an email to the applicant informing her that she had exceeded her leave days. In the email, the applicant was informed that as of close of business on that day, she would have exhausted her annual and sick leave balance which meant that she would be on unpaid leave. In the same email, the applicant was advised to write to the CEO as per policy, requesting special leave and to do so before 25 July 2024 in order to receive her salary for July 2024. The applicant however did not take this offer.

[16] To the extent that the applicant relied on financial hardship in seeking urgent relief, it is my view that flowing from the respondent’s email of 4 July 2024, the hardship is indeed of her own making. It is not clear as to the reason that she did not accept this offer which was meant to assist her. The submissions made on her behalf that she was not aware of the offer simply because she was paid in June 2024 are clearly disingenuous. Equally disingenuous is the applicant’s primary contention that her salary was withheld without notice. This is particularly based on her own version that she was informed that she had exceeded her allowable days of leave. There is no other correspondence in this regard other than that of 4 July 2024 which effectively notified her of steps to be taken in the light of her prolonged absence from work.

[17] The applicant was clearly of aware of the reasons why she was not paid as well as the offer which she had ignored. In addition, it further appears from the applicant’s own attachments to the founding affidavit[4], that as early as 27 June 2024, she was advised by Ms Mawela that in case she did not have enough days of leave, she needed to apply to the CEO for special leave which could take up to 30 days. As I further understood from the respondent’s counsel’s

submissions, that offer even as at the hearing of this application stood.

[18] Equally evident is that the urgency claimed is self-created. She was advised on 4 July 2024 that her salary would be stopped, and she only brought this application before the Court some 23 court days later. That period of inactivity is unexplained and no effort was made in the founding affidavit as to why the application was not brought sooner in view of the purpose of urgent relief, which is to prevent harm or prejudice to her. All that is stated in the founding affidavit is that her legal representative addressed correspondence to the respondent on 1 August 2024 asking for reasons why her salary was withheld, and that her child was hospitalised on 4 August 2024.

[19] Seeking reasons for the withholding of her salary was in my view a futile exercise in circumstances where the respondent’s correspondence had specifically set out the reasons and provided her with her with a reconciliation of her leave days in a tabulated form[5], and the steps she needed to take in order to prevent that eventuality.

[20] The applicant cannot equally claim to be deprived of substantial redress in due course in circumstances where the very same remedy she seeks remains available to her in the event that she was successful with her claim in due course.

[21] In the light of the above conclusions that the urgency claimed by the applicant is self-created, and further since it cannot be said that she will not obtain substantial redress in due course, it follows that this matter ought to be struck off from the roll.

[22] I have further had regard to the requirements of law and fairness in regards to an award of costs. Given the applicant’s

circumstances and the facts of this case, it is my view that a costs order is wholly not warranted.

[23] Accordingly, the following order is made;

Order:

1. The Applicant’s application is struck off from the roll on account of lack of urgency.

2. There is no order as to costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv T Nkosi,, instructed by Mametja & Associates INC.

For the Respondent: Adv. CR Dames, instructed by Haasbroek & Boezaart INC.

[1] See Mogalakwena Local Municipality vs The Provincial Executive Council, Limpopo and others (2014) JOL 32103 (GP) at para 63 – 64; Golding v HCI Managerial Services (Pty) Ltd and others [2015] 1 BLLR 91 (LC) at para 24; Jiba v Minister: Department of Justice and Constitutional Development and Others at para 18; Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another (2016) 37 ILJ 2840 (LC) at para 26; Minister of Law and Order v Committee of the Church Summit, 1994 (3) SA 89 (BGD) at 99F-G; Maqubela v SA Graduates Development Association and Others (2014) 35 ILJ 2479 (LC) at para 32. See also East Rock Trading 7 (Pty) Limited and another v Eagle Valley Granite (Pty) Limited and others (2012) JOL 28244 (GSJ) at para 6 and 7, where it was held:- “The import thereof is that the procedure set out in Rule 6(12) is not there for the taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant must state the reasons why he claims that he cannot be afforded substantial readdress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial readdress in the application in due course. The rules allow the court to come to the assistance of

a litigant because of the latter, were to wait for the normal course laid down by the rules, it will not obtain substantial readdress. It is important to note that the rules require absence of substantial redress. This is not equivalent to irreparable harm that is required before the granting of an interim relief. It is something less. He may still obtain redress in an application in due course, but it may not be substantial. Whether an applicant will not be able to obtain substantial redress in an application in due course will be determined by the facts of each case. An applicant must make out his case in this regard.”

[1] See Mogalakwena Local Municipality vs The Provincial Executive Council, Limpopo and others (2014) JOL 32103 (GP) at para 63 – 64; Golding v HCI Managerial Services (Pty) Ltd and others [2015] 1 BLLR 91 (LC) at para 24; Jiba v Minister: Department of Justice and Constitutional Development and Others at para 18; Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another (2016) 37 ILJ 2840 (LC) at para 26; Minister of Law and Order v Committee of the Church Summit, 1994 (3) SA 89 (BGD) at 99F-G; Maqubela v SA Graduates Development Association and Others (2014) 35 ILJ 2479 (LC) at para 32.

See also East Rock Trading 7 (Pty) Limited and another v Eagle Valley Granite (Pty) Limited and others (2012) JOL 28244 (GSJ) at para 6 and 7, where it was held:-

“The import thereof is that the procedure set out in Rule 6(12) is not there for the taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant must state the reasons why he claims that he cannot be afforded substantial readdress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial readdress in the application in due course. The rules allow the court to come to the assistance of a litigant because of the latter, were to wait for the normal course laid down by the rules, it will not obtain substantial readdress. It is important to note that the rules require absence of substantial redress. This is not equivalent to irreparable harm that is required before the granting of an interim relief. It is something less. He may still obtain redress in an application in due course, but it may not be substantial. Whether an applicant will not be able to obtain substantial redress in an application in due course will be determined by the facts of each case. An applicant must make out his case in this regard.”

[2] See Association of Mine Workers and Construction Union and others v Northam Platinum Ltd and another [2016] ZALCJHB 309; [2016] 11 BLLR 1151 (LC); (2016) 37 ILJ 2840 (LC) at para 25 – 26.

[3] Valerie Collins t/a Waterkloof Farm v Bernickow NO and Another [2001] ZALC 223 (7 December 2001) at para 8.

[4] Annexure ‘C’ to the founding affidavit at pages 28

[5] Page 27 to Annexure ‘C’ to the Founding Affidavit.