Mtambo v Minister of Police and Others (J693/2024) [2024] ZALCJHB 266 (5 July 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 693/2024

In the matter between:

GLADYS NCAMISILE MTAMBO Applicant

and

MINISTER OF POLICE First Respondent

NATIONAL COMMISSIONER OF POLICE Second Respondent

NATIONAL HEAD: DIRECTORATE FOR PRIORITY

CRIME INVESTIGATION Third Respondent

Heard: 2 July 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. The date for the hand-down is deemed to be on 5 July 2024

JUDGMENT

TLHOTLHALEMAJE, J

Introduction and background:

[1] In this opposed urgent application, the applicant seeks an order interdicting the respondents or their delegates from appointing any candidate or personnel in the post of Section Head: Intelligence Analysis and Co-ordination at the level of Brigadier, pending the determination of the arbitration before the Commission for Conciliation, Mediation and Arbitration (CCMA).

[2] The background facts to the extent that they are common cause are the following;

2.1 The applicant currently occupies the rank of Colonel in the South African Police Services (SAPS). During February 2023, SAPS advertised the post of Section Head: Intelligence Analysis and Co-ordination: Division, Crime Intelligence in Gauteng.

2.2 The applicant had applied for the post. She was short-listed and invited for interviews. On 30 June 2023, the applicant was appointed to the post in accordance with an appointment letter dated 29 June 2023. The appointment was effective from 1 June 2023.

2.3 On 2 November 2023, the applicant was issued with correspondence dated 26 October 2023 titled; ‘Notice of intended withdrawal of appointment: 0463100 – 5 Brigadier G.N Mtambo’. The notice was issued by the Acting Deputy National Commissioner: Support Services, Lt General L Ntshiea.

2.4 The essence of this notice was to advise the applicant that she was conditionally appointed to the post, and that it subsequently came to the attention of the Divisional Commissioner’s office that she failed to declare a pending disciplinary investigation into allegations of misconduct against her in her application for the post as well as in her certificate of acceptance of the post. The notice further advised the applicant that there was intention to recommend to the National Commissioner to consider the withdrawal of the appointment. The applicant was also afforded 14 days within which to make representation why her appointment should not be withdrawn.

2.5 The respondents averred that the allegations of misconduct emanate from an incident that took place on 24 January 2023, when the applicant is alleged to have conducted herself in an improper, disgraceful and unacceptable manner.

2.6 Upon receipt of the notice, the applicant approached her erstwhile attorneys who had on 14 November 2023, addressed her representations to the respondents as requested.

2.7 It appears that no response was made to the representations until 24 January 2024 when the applicant was called to a meeting by her supervisor, General Khumalo, who had served her with a letter of withdrawal of her appointment and a notice titled ‘dispute over possible demotion’. These were signed by Lt General Ntshiea.

2.8 On 22 March 2024, the post in contention was re-advertised. It is not clear from the founding papers as to the date that the applicant had referred an unfair labour practice dispute to the CCMA related to her demotion, but the parties were due to attend what the applicant referred to as ‘pre-arbitration’ hearing on 9 April 2024. That hearing did not however take place.

[3] The applicant contends that it was only on 12 June 2024 that it came to her attention that interviews for the post were conducted on 7 and 8 June 2024. The applicant’s attorneys’ correspondence to the respondents on 13 June 2024 demanding that the process of appointment to the post be halted pending the arbitration proceedings did not elicit any positive response. This resulted with the applicant approaching the Court on 24 June 2024 with this urgent application, which the respondents had opposed.

Urgency and evaluation:

[4] In opposing the application, the respondents submitted that the requirements for urgent relief were not met in this case, or that at best, the urgency claimed was self-created.

[5] The Court may at its discretion under Rule 8 of the Rules of this Court, relax or shorten the strict formal rules relating to the timeframes for service, and treat an application as urgent. In such applications, the applicants are required to first, set forth explicitly in the founding papers, the circumstances which they aver, renders the matter urgent and second, to explicitly advance the reasons why they claim that they could not be afforded substantial redress if they had brought the matter to Court by way of an ordinary procedure, instead of this extraordinary urgent procedure.

[6] Whether the applicants will be able to obtain substantial redress in due course is dependent on the facts and particular circumstances of each case[1]. Of equal importance is that urgent relief may be refused in circumstances where the matter has become urgent owing to dilatoriness on the part of the applicant, and where an applicant had effectively created the urgency claimed[2].

[7] As I understood the applicant’s grounds for claiming urgency, following her demotion in January 2024 and her referral of an unfair labour practice dispute to the CCMA on an unspecified date, she became aware that the contested post was re-advertised on 22 March 2024.

[8] The applicant’s contentions were that she did not approach the Court sooner or at least from when she gained knowledge that the contested post was re-advertised on the basis that she believed that her dispute before the CCMA would have been concluded before the shortlisting process. Clearly this reasoning is not only flawed but is equally unreasonable and short-sighted for the simple reason as properly submitted on behalf of the respondents, that there was no guarantee that the CCMA proceedings would have been finalised within a particular period, or that any finding would have been made in favour of the applicant even if the matter was finalised.

[9] Effectively, nothing prevented the applicant from approaching the Court immediately when the post was re-advertised and after her dispute was pending before the CCMA. The fact that she was not aware of the dates of the interviews is irrelevant as she did not have to wait for that eventuality before approaching the Court. Inasmuch as the Court is sympathetic to the fact that she had not been reporting for duty since January 2024 because of having been diagnosed with depression, the principal issue is that notwithstanding the unfortunate circumstances leading to her absence from work, she was on her own version, aware of essential developments pertaining to the contested posts since 22 March 2024.

[10] It is therefore disingenuous of the applicant to contend that the urgency arose on 12 June 2024 when she gained knowledge that interviews for the post took place over 8 and 9 June 2024. Once the post was advertised, the process of filling it was put in motion. By parity of reasoning, this meant that it is at that point that any harm to the applicant or her interests in respect of the post occurred. The purpose of urgent intervention by the Court is to prevent any harm to a litigant, on the proviso that the litigant in turn had acted with the necessary haste to prevent that harm. The conduct of the applicant in this case of failing to act at the time that the post was advertised, and only doing so some two months later and after the process of its filling was placed in motion, effectively obliterated any form of urgency.

[11] Flowing from East Rock Trading 7 (Pty) Limited and another v Eagle Valley Granite (Pty) Limited and others, it is appreciated that the failure to act in haste in approaching the Court for urgent relief is not the only consideration, and that a further consideration is whether the applicant cannot obtain substantial redress in due course. Clearly the applicant cannot claim to be deprived of substantial redress in due course particularly in circumstances where the essence of her complaint is before the CCMA for determination.

[12] Where it is found that her demotion constituted an unfair labour practice, redress can be obtained under the provisions of section 193(4) of the Labour Relations Act.[3] The mere fact that a contested post is to be filled or is already filled cannot ordinarily give rise to urgency or a lack of inability to obtain substantial redress. Thus, even if the position is occupied at the time that the dispute before the CCMA is finally determined in the applicant’s favour, the mere fact that the position had already been filled cannot serve as a legally acceptable bar to her reinstatement into the position[4]. Equally so, the mere fact that the respondents have a long-standing practice of putting employees in different posts or provinces where they cannot be reinstated in the same posts after reinstatement orders cannot give rise to urgency in the light of the Labour Appeal Court decision referred to above. Effectively, an employer’s policy regarding reinstatements cannot trump over an award or a court order. Thus were an employer refuses to reinstate an employee in accordance with an arbitration award or Court order, enforcement mechanisms or at worst, remedies under contempt proceedings remain available to an employee.

[13] In the end, given the timeline of events since the contested post was advertised; the stage at which this application was launched, and given the applicant’s dilatoriness in this regard, it is apparent that the urgency claimed is self-created. Equally so, the applicant will be able to obtain substantial redress in due course other than on an urgent basis from this Court. It follows that in the absence of the requirements of urgency being satisfied, the matter ought to be struck off the roll.

[14] I have further had regard to the requirements of law and fairness regarding an order of costs. Having had regard to the facts and circumstances of this case, it is my view that a costs award against the applicant is not warranted, and accordingly, it is appropriate that each party be burdened with its own costs.

[15] Accordingly, the following order is made;

Order:

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

2. Each party is to pay its own costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv H.L Kelaotswe with Adv K Mohlake, instructed by Mkati Inc Attorneys

For the 1st – 3rd Respondents: Adv. K Magano, instructed by the State Attorney, Pretoria.

[1] See 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; See also Export Development Canada and Another v Westdawn Investments Proprietary and Others (6151/2018) [2018] ZAGPJHC 60; [2018] 2 All SA 783 (GJ) at para 11; and Mogalakwena Local Municipality v The Provincial Executive Council, Limpopo and others (2014) JOL 32103 (GP) at para 63 – 64, where it was held; “It seems to me that when urgency is an issue the primary investigation should be to determine whether the applicant will be afforded

substantial redress at a hearing in due course. If the applicant cannot establish prejudice in this sense, the application cannot be urgent. Once such prejudice is established, other factors come into consideration. These factors include (but are not limited to): Whether the respondents can adequately present their cases in the time available between notice of the application to them and the actual hearing, other prejudice to the respondent’s and the administration of justice, the strength of the case made by the applicant and any delay by the applicant in asserting its rights. This last factor is often called, usually by counsel acting for respondents, self-created urgency.”

[1] See 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; See also Export Development Canada and Another v Westdawn Investments Proprietary and Others (6151/2018) [2018] ZAGPJHC 60; [2018] 2 All SA 783 (GJ) at para 11; and Mogalakwena Local Municipality v The Provincial Executive Council, Limpopo and others (2014) JOL 32103 (GP) at para 63 – 64, where it was held;

“It seems to me that when urgency is an issue the primary investigation should be to determine whether the applicant will be afforded

substantial redress at a hearing in due course. If the applicant cannot establish prejudice in this sense, the application cannot be urgent.

Once such prejudice is established, other factors come into consideration. These factors include (but are not limited to): Whether the respondents can adequately present their cases in the time available between notice of the application to them and the actual hearing, other prejudice to the respondent’s and the administration of justice, the strength of the case made by the applicant and any delay by the applicant in asserting its rights. This last factor is often called, usually by counsel acting for respondents, self-created urgency.”

[2] See Golding v HCI Managerial Services (Pty) Ltd and others [2015] 1 BLLR 91 (LC) at para 24; Ntozini and Others v African National Congress and Others (18798/2018) [2018] ZAGPJHC 415 (25 June 2018) at para 11. See also Erasmus in Superior Court Practice at D6 – 23, where it is stated that: “An interlocutory interdict may be refused if the applicant has delayed long before applying. An application for an interdict pendente lite from its very nature requires the maximum expedition from an applicant, who may forfeit his right to temporary relief if he delays unduly in bringing the interim proceedings to finality.”

[2] See Golding v HCI Managerial Services (Pty) Ltd and others [2015] 1 BLLR 91 (LC) at para 24; Ntozini and Others v African National Congress and Others (18798/2018) [2018] ZAGPJHC 415 (25 June 2018) at para 11. See also Erasmus in Superior Court Practice at D6 – 23, where it is stated that:

“An interlocutory interdict may be refused if the applicant has delayed long before applying. An application for an interdict pendente lite from its very nature requires the maximum expedition from an applicant, who may forfeit his right to temporary relief if he delays unduly in bringing the interim proceedings to finality.”

[3] Act 66 of 1995, as amended.

[4] Sibiya v South African Police Service [2022] ZALAC 88; (2022) 43 ILJ 1805 (LAC); [2022] 9 BLLR 822 (LAC) at para 34.