Mgoqi v Centlec (Soc) Limited and Another (4638/2020) [2021] ZAFSHC 61 (18 March 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case No: 4638 /2020

In the matter between:

NA

MGOQI APPLICANT

and

CENTLEC (SOC) LIMITED

FIRST RESPONDENT

MANGAUNG

METROPOLITAN

MUNICIPALITY

SECOND RESPONDENT

JUDGMENT BY: MOLITSOANE, J

HEARD ON:

12 MARCH 2021

DELIVERED ON: 18 MARCH 2021

[1] The applicant seeks an order on an urgent basis restraining the First Respondent (Centlec) from filling an advertised position of an Executive Manager: Engineering Wires, pending the final determination of two other applications instituted in this Court and the Labour Court.

[2] The second respondent was joined on the basis that it is a party in the application pending in this Court but no relief is sought against it in these proceedings.

[3] On 26 February 2021 the parties in this matter appeared before Mathebula, J and he postponed it after giving certain directives as to the filing of further affidavits and Heads of Arguments.

[4] It is necessary to set out the common cause facts in this matter. The applicant joined Centlec as a trade worker in 1994. On 1 February 2013 he was appointed Executive Manager: Engineering Wires. He occupied this position until 2015. On 1 April 2015 he was appointed the Chief Executive Officer (CEO) of Centlec for a fixed term of five years. This fixed term would expire on 31 March 2020.

[5] Some ten months later, on 17 February 2021 after appointment as CEO, the applicant acting in person and Centlec represented by its Chairperson of the Board of Directors concluded a contract of employment for the position of the CEO above-mentioned. The conclusion of this agreement appears is in dispute but I do not deem it necessary to deal with the said dispute in the adjudication of the case before me as the validity or otherwise thereof has no bearing in the adjudication of this application. It is the subject of dispute by another court. That the agreement exists is common cause. One of the salient terms of this agreement, which is at the heart of all three applications between the applicant and Centlec, provides that termination of the employment of the applicant as CEO would be subject to clause 6 of the agreement .This clause essentially entitles the applicant to be placed in the position he occupied prior to his appointment as the CEO or be offered an equivalent position upon the expiration of the period as CEO. I will revert to this clause later in detail.

[6] The applicant instituted an action in this Court under case number 4638/2020 in which he seeks, inter alia, the following order:

“In accordance with clause 16.6 of the Employment Contract concluded between the Applicant and the First Respondent on 17 February 2016 the First Respondent (Centlec) is ordered to employ the Applicant in the position of Executive Manager: Engineering and provide the Applicant with commensurate remuneration and benefits, alternatively, to place the Applicant in a position equivalent to this position and remunerate him accordingly.”

[7] A few days after the applicant instituted the application in this court, Centlec also instituted an application in the Labour Court in which the following relief is sought:

1. “Declaring clause 16.6 of the contract of employment and any reference in the aforesaid contract to clause 16.6 to be void and or unlawful alternatively unenforceable;

2. Insofar as necessary, an order striking, alternatively expunging clause 16.6 from the agreement and any reference in other clauses to clause 16.6.”

[8] Both applications have not been finalised. On or about 16 February 2021 the applicant became aware that the position of Executive Manager: Engineering Wires was advertised. The deadline for the submission of the applications for this position was, Friday 26 February 2021. The advertisement of this position prompted the applicant to approach this court on an urgent basis for an interdict.

[9] The application is opposed on the basis that the applicant failed to establish that this application was urgent. The application is further opposed on the basis that the applicant has failed to make out a case for interdictory relief. It is the case for Centlec that the matter is res iudicatae; that the applicant has created the impossibility of performance and thus the right of the applicant, if it existed has dissipated and that the balance of convenience does not favour the granting of the interdict.

[10] The court has a discretion to abridge the time limits prescribed by the rules of court upon satisfactory grounds being shown by the applicant. In the matter before me, seeing that the parties intended to argue the merits, Counsel for the applicant informed me that Centlec no longer pursued the attack of lack of urgency of the application. I accordingly exercised my discretion and dealt with the application.

[11] The test for the grant of an interim interdict is trite. For the applicant to succeed with this application he must establish (a) a prima facie right even if it is open to doubt; ( b) a reasonable apprehension of irreparable harm if the interdict is refused; ( c) the balance of convenience favour the grant of the interdict and(d) he must have no other remedy.

[12] It is the contention of the applicant that there exists an agreement entitling him to an employment as Executive Manager: Engineering: Wires. It is his contention that if the declaratory order instituted in the Labour court does not succeed, Centlec would be obliged to employ him in that position. The applicant thus contends that he has established a prima facie right entitling him to an interdict.

[13] The applicant further contends that all attempts to persuade Centlec from filling the position were ignored. It is his contention that should Centlec appoint a person in that position, he stands to suffer irreparable harm as an innocent applicant would have filled the position and the Court might be unwilling to grant specific performance as that order might affect an innocent applicant who filled the position. He contends that the balance of convenience favour the granting of the interdict as Centlec may temporarily fill the position on an acting position.

[14] On the other hand, Centlec contends that the matter before this court has been finally adjudicated upon by this Court and is thus res judicata. Centlec also contends that the applicant failed to establish a right and that the balance of convenience do not favour the applicant.

[15] Before dealing with other issues, it is necessary to deal with the defence of res judicata raised by Centlec. Centlec contends that the issue before this court was finally adjudicated upon. The elements required to establish the plea of res judicata are the same as those required to prove lis pendens.( See Janse van Rensburg NO and others v Steenkamp and Another : Janse van Rensburg NO and other v Myburgh and others [2009] 1 AII SA 539 (SCA); 2010(1) SA 649 ( SCA).

[16] On 3 August 2020, the applicant launched an application in this court under Case No 2817/2020 on an urgent basis in which he sought interdictory relief against Centlec. The applicant in essence sought relief that Centlec be ordered to pay his past and future salaries. Having heard the application, the court seized with that application made the following order:

“Application is dismissed with costs, which costs shall include the employment of two (2) counsels.”

[17] The interpretation of this order is in dispute. The applicant contends that the court struck off the application from the roll for lack of urgency, as the court did not hear the merits of the application. In proof thereof, the applicant further undertook to obtain a certified transcript of the record of the urgent application and place it before the court. The applicant did not make the transcript available as undertaken. On the other hand, Centlec contends that urgency and the merits were fully argued and the application was dismissed with costs.

[18] Upon scrutiny of the pleadings and the submissions made before me, it appears that there is no dispute that the litigation in case number 2817/2020 and the one before me was between the same parties on the same cause of action and the same subject matter. What the parties differ on is only whether the dismissal was on the merits or not.

[19] If a matter is struck from the roll for lack of urgency, then in that case it does not mean that there are no merits In the applicant’s case.( See PT Operational Services (Pty) Ltd v RAWU obo Ngwetsana (2013) 34 ILJ 1138 (LAC). In such a case a plea of res judicata will not avail the respondent faced with the same matter. Such a

matter may still be placed on the roll. If, however, the matter was dismissed on the merits, then the order is final. The respondent

faced with the same matter may raise a plea of res judicata. Where the court declines to hear the matter based on lack of urgency the ‘appropriate order is generally to strike the application from the roll.( See In Commissioner for South African Revenue Services (Pty) Ltd: Commissioner For South African Revenue Service v Hawker Aviation Services Partnership & Others 2006(4) SA 292(SCA) 299-300.

[20] The party who raises the defence of res judicata must not only allege the elements of the defence but must prove them. In my view the fact that the applicant undertook to deliver the transcript of the proceedings in case number 2817/2020 does not shift the burden of proof to him. Mr Louw submitted that the court made no findings on the merits and only dismissed the application for lack of urgency. On the other hand Mr Mokhari submitted that the court in the urgent matter gave an ex tempore judgment. That such a judgment dealt with the merits of the application. In the absence of proof, to the contrary I am obliged to interpret the order as it stands. The judge in the urgent application dismissed the application and did not struck same from the roll. I am constrained to accept that the dismissal was on the merits hence the choice of the words in the order. The order clearly show that the application was dismissed as opposed to it being struck from the roll. In consequence, I find that this application was finally adjudicated upon and the defence of res judicata ought to be upheld. This finding is dispositive of the application before me. I however deal with other issues dealt with in this application.

[21] The applicant concluded a contract of employment with Centlec. Centlec contends that the Board of Contractors did not ratify this contract. In my view, this contention does not assist Centlec in the present proceedings. I am not called upon to adjudicate on the validity or otherwise of the contract or clause 16.6 for that matter. What is clear to me is that Centlec, despite its misgivings, accepts that the contract exists. Centlec approached the Labour Court to declare clause 16.6 of the employment contract void and /unlawful, alternatively unenforceable. If Centlec disputed the existence of the agreement, then it would not have approached the Labour Court for the relief it seeks couched in that particular manner. Whether the then Chairperson of the Board of Directors was authorised or not to conclude this contract is immaterial for the purposes of this interim interdict. Such an agreement is valid until it is set aside. In my view, the applicant has established a prima facie right to seek an interdict.

[22] The applicant’s case is founded on clause 16.6 of the disputed employment contract. Clause 16.6 of the employment contract states as follows:

“Irrespective of any provision to the contrary and/ or despite what any other provision may state on this agreement, upon expiration of this employment agreement and in the event that the employer elects not to renew it on the same or similar terms, the employee will be placed in the position which he previously held with the employer immediately prior to the conclusion of this employment agreement and shall continue his employment with the employer until retirement age. However, should the employee’s position not be available for whatever reason, then the employer will offer the employee a position equivalent to the position he occupied immediately prior to the conclusion of this employment agreement. By signing this employment agreement the employees (sic) does not in any way waive his permanent employment status as an employee of the employer. (my emphasis)”

[23] Proper reading of the clause reveal the following: (a) that upon the expiration of the period of appointment of the applicant as the CEO of Centlec, if not re-appointed to the same or similar position( of being the CEO), he is entitled to be appointed to his original position as Executive Manager: Engineering Wires, if such a position was available. (b) If the position was no longer ‘available for whatever reason’ Centlec was obliged to offer him another position equivalent to the one of Executive Manager; Engineering Wires.

[24] Clause 16.6 entitles the applicant to be appointed to his previous position or any other equivalent position. The applicant cannot insist and is not entitled to a specific position as the clause on which his cause of action is founded, makes provision for two alternatives. Should his prior position be unavailable, he is entitled to be offered another equivalent position. If the position he seeks to interdict is filled, he still has another remedy in the form of alternative appointment to an equivalent position. To this end, the applicant would suffer no irreparable harm should the appointment of the position he seeks to interdict, be filled. On this basis, his application also ought to fail.

[25] Centlec contends in its Heads of Argument that the position of Executive Manager: Engineering Wires constituted 51% of its core business. It is, therefore, clear that the position cannot remain unfilled while the parties engaged in protracted litigation. If the applicant succeeds in the application before the Labour Court, he can insist on an equivalent position or he can claim damages later. The balance of convenience do not favour the granting of an interdict. I accordingly make the following order:

ORDER

1. The application is dismissed with costs.

2. The costs shall include the costs of employment of two Counsels.

P.E MOLITSOANE, J

On behalf of the Applicant: Adv. MC Louw

Instructed by: Honey

Attorneys

BLOEMFONTEIN

On behalf of the 1st Respondent: Adv. W Mokhari,and

Adv. Masihleho

Instructed by:

Tshangana Attorneys