Molobela v Motorovia (1993 Pty Ltd) (J 1150/20) [2020] ZALCJHB 227 (28 October 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 1150/20

In the matter between:

RICHARD THULANI MOLOBELA

Applicant

and

MOTOROVIA (1993 PTY LTD) 1993/004604/07)

Respondent

Heard:

28 October 2020

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

be on 28 October 2020 at 16h00

JUDGMENT

TLHOTLHALEMAJE, J

[1] With this urgent application, the applicant seeks an order declaring his suspension by the respondent to be unfair; directing the respondent to uplift the suspension with immediate effect with full benefits, and that he is entitled to resume his duties.

[2] The applicant is employed by the respondent as a messenger/driver. It is not necessary to deal with the details of his dispute other than to point out that on 17 July 2020, a truck allocated to him for a trip to the Democratic Republic of Congo was given to another driver. On 23 July 2020, the applicant was then issued with a notice of suspension, and as a consequence, he was not paid his salary at the end of July 2020. Having approached his attorneys of record, who had in turn made attempts to communicate with a Mr Gouws of the respondent, and when nothing came out of those attempts, he then instructed his attorneys on 13 August 2020 to institute these proceedings.

[3] Central to the applicant’s case is that his continued suspension without pay is unfair as it is ‘against the labour law’, amounts to unfair labour practice and is unjustified.

[4] Clearly there are insurmountable hurdles faced by the applicant with this application, even in the absence of an answering affidavit. The first relates to the issue of urgency.

[5] The requirements for urgent relief as contemplated in Rule 8 of the Rules of this Court are trite. The applicant seeking urgent relief must set out in the founding affidavit, the reasons why the matter deserves the urgent intervention of this Court. It is further trite that urgent relief will not be granted in circumstances where the applicant can obtain substantive relief in due course, and further where it is apparent that the urgency claimed is self-created[1]. Equally important is the consideration of whether the applicant acted with the necessary haste in approaching the Court for relief, which consideration is aligned to the mitigation of the alleged irreparable harm should the relief sought not be granted.

[6] The first difficulty is that despite seeking what clearly appears to be final relief, none of the requirements in that regard were addressed. The second difficulty is that nowhere in the founding affidavit is the basis of the urgency claimed indicated. The third difficulty is that despite the matter being brought on the urgent roll, the suspension took place on 23 July 2020, whilst this application was brought before the Court on 16 October 2020, some 12 weeks since the suspension took effect. Clearly any urgency claimed is self-created.

[7] Other than the issue of urgency, there is further the question whether this Court has jurisdiction to determine the fairness of suspensions, let alone on an urgent basis. This question should be disposed of on the basis of the remarks made by the Labour Appeal Court in North West Provincial Government v Gradwell[2] as follows;

“Disputes concerning alleged unfair labour practices must be referred to the CCMA or a bargaining council for conciliation and arbitration in accordance with the mandatory provisions of s 191(1) of the LRA. The respondent in this case instead sought a declaratory order from the Labour Court in terms of s 158(1)(a)(iv) of the LRA to the effect that the suspension was unfair, unlawful and unconstitutional. 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. The determination of the unfairness of a suspension will usually be better accomplished in arbitration proceedings, except perhaps in extraordinary or compellingly urgent circumstances. When the suspension carries with it a reasonable apprehension of irreparable harm, then, more often than not, the appropriate remedy for an applicant will be to seek an order granting urgent interim relief pending the outcome of the unfair labour practice proceedings.”

[8] In summary, the applicant has not satisfied the requirements of urgency. This application was not brought before the Court with the necessary haste to justify the Court’s urgent intervention. Furthermore, and in the light of the authority cited above, the nature of the applicant’s dispute falls squarely within the definition of unfair labour practice, and it follows that he would he be able to obtain substantial redress in due course at the CCMA or relevant Bargaining Council. Worst still, the nature of the dispute and the relief that the applicant seeks is not within the scope of the provisions of section 158 of the LRA. It therefore follows that this application ought to be dismissed.

[9] Accordingly, the following order is made;

Order:

1. The applicants’ urgent application is dismissed.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr L.E Thobejane of Botha Massyn & Thobejane Attorneys

For the Respondent: No appearance

[1] See Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC) at para 18; See also 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, where it was held; ‘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. …’

[1] See Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC) at para 18; See also 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, where it was held;

‘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. …’

[2] [2012] 8 BLLR 747 (LAC) at para 46