Member of the Executive Council, Department of Education, Eastern Cape and Another v Mokone obo Tapole (1065/16) [2017] ZAECMHC 54 (14 November 2017)

IN THE HIGH COURT OF SOUTH AFRICA

[EASTERN CAPE LOCAL DIVISION, MTHATHA]

CASE NO: 1065/16

Delivered on: 14/11/17

In the matter between:

MEMBER OF THE EXECUTIVE COUNCIL,

DEPARTMENT OF EDUCATION, EASTERN CAPE 1st Applicant

DISTRICT DIRECTOR, NGCOBO, EASTERN CAPE

2nd Applicant

and

MOSA JULIA MOKONE nee TAPOLE

Respondent

REASONS FOR THE ORDER DATED 09 MARCH 2017

NHLANGULELA DJP

[1] The order that I made reads that the rescission application is set aside; and that the applicants pay costs of the application on an attorney and own client scale including costs occasioned by the appointment of two counsel.

[2] The application for rescission addresses two previous orders of this Court. The first was the costs order issued by Alkema J on 26 April 2016; and the second was made by Majiki J in the same matter on 07 June 2016 granting the Respondent an order reviewing and setting aside the unlawful termination of employment at the instance of the Applicant. The proceedings for review, the main application, preceded the present application. The Respondent was the Applicant in the main application, and the Applicants were the Respondents respectively.

[3] In the main application the Applicants did not file an opposing affidavit, hence the quest for a relief in the present application

that they should be allowed to file an opposing affidavit in the event that the order of Majiki J is rescinded.

[4] The rescission application was brought in August 2016 on the basis that it was urgent. In dealing with the circumstances of urgency the Applicants stated that the main application gave the Respondent a contract of employment as an educator, and the financial benefits thereof, without the parties themselves having had a valid agreement of employment. That I found to be at odds with the fact that the disputed employment contract had come into being in September 2014, sought to be terminated in January 2016 and the court decision was made thereon on 07 June 2016. Majiki J’s order was neither predicated on existing urgency nor anticipated any urgency as the Applicants would want the Court to believe. The alleged urgency was a classical case of self-created urgency that could not be accepted by the Court.

[5] Urgent as the Applicants’ claim about employment contract was made to be, they did not file an opposing/answering affidavit towards the review application and let alone to dispute the Respondent’s well made out case that there was a binding contract of employment that entitled her to be taken back to her job as an educator. Briefly stated, the claim about urgency was preposterous.

[6] Be that as it may, the Applicants had to prove the jurisdictional factors as provided in Rule 42 of the Uniform Rules of the High Court in order to succeed in the present application. The one factor relied upon that Alkema J and Majiki J committed errors in granting the orders is not supported by the evidence and/or a legal point. That those courts should not have ordered payment of costs and not upheld the review application by reason that the State Attorney dealing with the matter was absent when the application was postponed on 26 April 2016; that the notice setting the application down for hearing on 07 June 2016 was premature and the merits of the case were not presented by the Respondent did not sit well with the Court because:

(a) It was not explained how it was that the office of State Attorney would have substitute the attorney on official sick leave with another one of very many attorneys who are always available in the office.

(b) The State Attorney observed that the notice of set down, received on 31 May 2016, was irregular but nevertheless it supinely proceeded to court on 07 June 2016 (represented by Attorney Nqiwa) without having exercised its rights in terms of Rule 30 (or in any other manner), still without an answering affidavit and heads of argument and even without bringing a substantive application for a postponement.

(c) It is simply cannot be that Majiki J did not apply her mind to the merits as set out in the founding affidavit as is insinuated by the Applicants

[7] More facts stated by the Respondent in the answering affidavit that contradict the correctness of the Applicants’ allegation that the courts erred in making the two orders as aforementioned were accepted by this Court.

[8] For the purpose of completeness I must also mention that I found the application for a postponement made from the bar to be a deplorable conduct on the part of Ms Govender if regard is had to the facts that the answering affidavit had still not been filed of court and no effort was made to give reasons for the postponement sought. The reason for failure by the Applicants to file a replying affidavit was also not proffered on affidavit.

[9] For reasons already stated above I ruled that the matter must proceed and the Respondent dutifully obliged to present arguments on the merits, the relevant aspects of procedure and the entire background to the matter. I finally granted the order having been fully persuaded by the Respondent that it was right to do so.

[10] In short, the absence of urgency and proof that the orders of 26 April 2016 and 07 June 2016 were made in error were the main reasons for which I dismissed the present application with punitive costs.

_________________________________________________

Z. M. NHLANGULELA

DEPUTY JUDGE PRESIDENT OF THE HIGH COURT

MTHATHA

Counsel for the Applicant : Ms Govender

Instruced by

: The State Attorney

MTHATHA.

Counsel for the Respondents : Adv. N. R. Mtshabe

Instructed by

: Chris Bodlani Attorneys