Nhlapo v Member of the Executive Council and Another (J164/2022 (2)) [2023] ZALCJHB 102; (2023) 44 ILJ 1772 (LC) (13 April 2023)

FLYNOTES: SEEKING REINSTATEMENT PENDING APPEAL LABOUR – Appointment – Set aside – Effect of appeal – Department arguing that it already implemented judgment before application for leave to appeal – Judgment of no force in absence of department successfully launching an application under section 18(3) to suspend decision – Court not ordering specific performance of reinstatement where applicant has contractual remedy and hardship to department was clear – Superior Courts Act 10 of 2013, s 18.

The Labour Court of South Africa,

held at Johannesburg

case: J164/2022 (2)[1]

Reportable

In the matter between:

NHLAPHO, BAFANA NICHOLAS First Applicant and MEMBER OF THE EXECUTIVE COUNCIL (“MEC”) First Respondent GAUTENG DEPARTMENT OF EDUCATION (“GDE”) Second Respondent

Date of Hearing: 4 April 2023

Date of Judgment: 13 April 2023

Summary: (Urgent application – Applicant seeking reinstatement pending the outcome of an application for leave to appeal against a judgment nullifying the decision to appoint him – Right to relief based on s 18(1) of Superior Courts Act 10 of 2013. Applicant effectively seeking specific performance of his employment pending the outcome of the appeal process- Status of purported

‘execution’ of judgment by respondent as a bar to applicant’s relief)

JUDGMENT

LAGRANGE J

Introduction

[1] This is an urgent application in which the applicant requests the following principal relief, apart from having the application heard as one of urgency:

“2. Declaring the decision of the respondents to terminate his employment is unfair and contrary to section 18 (1) of the Superior Courts Act 10 of 2013;

3. Reinstating the applicant in his position as Administrative Assistant under post number: SE005/2021 at Rusoord Secondary School with immediate effect, pending the appeal of the matter under case number J1614/22 currently pending before His Lordship Van Niekerk J and in all other appeals that may be instituted by the applicant;

4. Interdicting and restraining the first and second respondent’s from interfering with the applicant’s execution of his duties at the school;

5. Declaring the conduct of the 1st to 3rd respondent’s to terminate the applicant’s salary to be unfair, unconstitutional and unlawful;

6. Ordering the first to third respondents to pay the applicant his salary for the month ended in February 2023 and to pay the applicant salary for the month ending in March 2023 and any other salary, remuneration and/or income which is due and will be paid to the applicant in the future;

7. Costs of the application on the attorney and own client scale; …”

[2] The respondents opposed the application and filed an answering affidavit. No replying affidavit was filed. Typically, applications pending leave to appeal proceedings are launched by the successful party under s18(1) of the Superior Courts Act, 10 of 2013 to give effect to the judgment pending the outcome of appeal proceedings. What makes this application unusual is that it is the unsuccessful party who is seeking to give effect to the default principle embodied in that provision and the common law, namely that the judgement is unenforceable pending the outcome of appeal proceedings.

Brief chronology

[3] To contextualise the origin of this application a brief narrative of events prior to the application being launched on 24 March 2023 must be set out.

[4] On 24 January 2023, Van Niekerk J reviewed and set aside a decision by the first respondent (‘the MEC’) to appoint the applicant with effect from 1 January 2022 in the administrative assistant post previously mentioned. The court found, amongst other things, that the appointment was made in contravention of various regulations governing appointments.

[5] On 25 January 2023, the applicant’ s attorneys of record advised the State Attorney that the applicant intended to appeal the judgement and requested the department to “hold execution pending appeal”. The applicant argues that on 26 January the respondents agreed not to prevent the applicant from coming to its premises, which the respondents dispute. It does appear from internal correspondence in the department, belatedly handed up in court by the applicant’s counsel, that the Director: Labour Relations did request that the implementation of the order be halted.

[6] Be that as it may, on 31 January 2023, the school principal orally told the applicant to leave the school as he was no longer an employee there. On 2 February 2023, his attorneys sent a letter to the second respondent (“the department”) complaining that the decision to “prematurely dismiss” the applicant, despite being notified that the matter was “going on appeal” was unlawful. The letter demanded the immediate withdrawal of the decision and stated that a “copy of leave to appeal” was attached to it. The respondent disputes receiving a notice of application for leave to appeal on that date. The notice of application for leave to appeal was stamped by the registrar of this court on 3 February 2023.

[7] The respondents agree that the applicant attended and worked at the school for the whole month of February without any interference by any of them. It is also common cause the applicant was not paid a salary at the end of February. The respondent claims that he had been removed from PERSAL and to have paid him would have been contrary to the Public Finance Management Act, 1 of 1999.

[8] During the first week of March 2023, the applicant and his attorneys made enquiries about his salary.

[9] On 13 March 2023 the applicant was given a copy of a letter, dated 3 March 2023, from the Director: Labour Relations addressed to the chairman of the school governing body (‘the SGB’). The letter confirmed that the decision to appoint the applicant had been set aside and that in terms of the court order his service had been terminated. The applicant contends that the respondents terminated his contract of employment on 6 or 13 March 2023. The respondents assert that his employment was terminated when he was told by the principal on 31 January 2023 that he was no longer employed. They deny that the letter given to him on 13 March was a termination letter because it was addressed to the SGB.

[10] The respondents raised an intriguing argument that beccause the department orally confirmed the termination of the applicant’s

services on 13 January 2023, that action was tantamount to the execution of the judgment and it occurred before he had filed his

application for leave to appeal. Relying on the authority of BP Southern Africa (Pty) Ltd v Mega Burst Oils And Fuels (Pty) Ltd And Another and a Similar Matter 2022 (1) SA 162 (GJ), they argued that the applicant did not have a right to the relief he sought. In the BP case, the applicant had sought an order suspending execution of the judgment against it pending the outcome of a petition for leave to appeal, yet to be filed, for the period during

which it could still exercise its right to petition. The court held:

“[14] The right that the applicant seeks to rely on does not exist. Our law is not that execution may only be levied once the time periods for lodging an application for leave to appeal (or a petition) have lapsed. This would have required legislative intervention, and the Superior Courts Act 10 of 2013 does not contain such a provision. Interim execution in terms of s 18 of the Superior Courts Act would only come into play once the petitions for leave to appeal have been delivered. Inasfar as the applicant has contended that it has a right to demand that execution be delayed for the period within which the right to petition still exists, such an argument is ill-founded and cannot form the basis for an interim interdict.”

The respondent’s submission will be addressed below.

Evaluation

Urgency

[11] The applicant argued that he acted with sufficient urgency after his employment was terminated on 13 March, which resulted in the application being served on the respondent’s on 22 March 2023, bearing in mind that there was a so-called ‘national shutdown ‘on 21 March 2023. The respondents argue that the urgency is self-created and he could have initiated the process as far back as 31 January 2023 when he was told to leave the school premises by the principal.

[12] Nevertheless, it is undisputed on the papers that the applicant was allowed to attend the school premises and perform his duties during the whole of February without any further objection being raised by any of the respondents until he was prevented from attending at the school premises, sometime around 6 to 13 March, after he was given the letter addressed to the chairman of the school governing body. Moreover, the department had never responded to the letter from the applicant’s attorneys of record requesting it not to give effect to the judgement. In circumstances in which he was permitted to return to work and no correspondence had been received during the whole of February to indicate that the respondents were unequivocally giving effect to the judgement, I do not believe this is a simple case of self-created urgency. As soon as the department made it clear

that any equivocation in giving effect to the judgement had to come to an end, the application was launched with sufficient speed.

Existence of a clear right

[13] Subject to exceptions, execution of the judgment which is the subject of an application for leave to appeal is suspended pending the decision of the application or appeal in terms of s 18(1) of the Superior Courts Act, 10 of 2013 (‘the SCA’)[2]. The applicant bases his entitlement to relief on this.

[14] As mentioned, the respondents argue that having confirmed his termination on 13 January 2023, the department had already implemented the judgment before he filed his application for leave to appeal and argue, on the strength of the BP decision, that he has no basis for reversing its implementation of the judgment. However, I do not think the two cases are on all fours. In this instance the court is not dealing with the suspension of the execution of a judgment debt consequent upon a judgment. It is dealing with the enforcement of the suspension of the effect of the judgment pending an appeal process. The principle alluded to in the BP judgment does not appear to advance the respondents’ case.

[15] The judgment of Van Niekerk J, nullified the applicant’s appointment as an employee. In Police And Prisons Civil Rights Union and Others v Minister of Correctional Services and Others (No 1) 2008 (3) SA 91 (E), Plasket J (as he then was) confirmed the principle that a declaration of nullity extinguishes the existence of the impugned act and any legal consequences which might have flowed from it:

“[75] The effect of an administrative action that is taken without lawful authority is that it is a nullity. The administrator simply had no power to do what he or she purported to do and, consequently, no legal effects can flow from his or her act.”

(footnotes omitted)

Van Niekerk J’s very judgment brought an end to the employment relationship between him and the department. The department’s subsequent advice to him to stop working was not a form of execution of the judgment. At best it simply confirmed that in the circumstances, there was no basis for him to tender his services. It did not constitute a distinct legal act of ‘dismissal’ flowing from the judgment.

[16] Accordingly, the ordinary principles flowing from s 18(1) of the SCA apply. In the absence of the respondents successfully launching an application under s 18(3)[3] of the SCA to give effect to the judgment, despite the pending appeal, the judgment has no current force and effect. This means the original decision to employ the applicant remains in place pending the outcome of the pending application for leave to appeal. Essentially, the applicant seeks an order to continue giving effect to the impugned decision to employ him. This amounts to seeking relief in the form of an order of specific performance, pending the outcome of his application for leave to appeal and any subsequent appeals.

[17] In Santos Professional Football Club (Pty) Ltd v Igesund & another 2003 (5) SA 73 (C); (2002) 23 ILJ 2001 (C), the High Court confirmed that when it comes to enforcement of employment contracts “the true position is that the court has to exercise its discretion on the particular facts and will refuse to order specific performance in the circumstances set out in Haynes's case. Those principles were that specific performance will only be refused if it will operate - 'unreasonably hardly on the defendant, or where the agreement giving rise to the claim is unreasonable, or where the decree would produce injustice, or would be inequitable under the circumstances'[4]. The court continued after citing Brisley v Drotsky 2002 (4) SA 1 (SCA) at 35:

“(C)ourts should be slow and cautious in not enforcing contracts. They should, in specific performance situation, only refuse performance where a recognized hardship to the defaulting party is proved. The reasons given by the court a quo amount to 'practical considerations' which, in my view, do not meet the proper test.

While it is no doubt so that the court a quo had a discretion to be exercised judicially, and that the grant or refusal of the order was entirely a matter for the discretion of the court a quo, the power to interfere on appeal does exist where the court a quo has exercised its discretion capriciously or upon a wrong principle, that it has not brought its unbiased judgment to bear on the question or has not acted for substantial reasons. (See Ex parte Neethling & others 1951 (4) SA 331 (A) at 335E.).”[5]

(emphasis added)

[18] It is noteworthy that in Santos, the court commented that ‘It must be remembered that we are dealing with a contract which first respondent entered into freely and voluntarily and in terms of which he agreed to an order for specific performance being made”[6]. In that case there was no dispute between the parties that a valid contract existed. By contrast, in this matter the very existence of the employment contract is in question. Accordingly, the question is whether this court should exercise its discretion to enforce the disputed employment contract, the existence of which is dependent on the outcome of appeal proceedings.

[19] If the court gives orders specific performance based on the applicant’s appointment not yet being set aside, it will have the effect of requiring the department to employ the applicant in a post which is currently filled by the successful appointee. Consequently it will also have to remunerate two persons instead of one. If the applicant is ultimately unsuccessful on appeal the department will have paid the applicant a salary which was not due to him and which there would seem to be little prospect of recovering because the effect of such a judgment would be that the applicant would be without a foreseeable stream of income. On the other hand, if the applicant is successful, he will be entitled to launch proceedings to recover contractual damages for the period he was denied employment following the suspension of the judgment under s 18(1) of the SCA. In my view the hardship to the respondent of making an order of specific performance is clear and the applicant still has a contractual remedy. Moreover, if he succeeds on appeal, he stands to be reinstated in any event.

[20] For the reasons above, the application must fail. This is not a case in which a cost award would be appropriate as I accept the applicant reasonably believed he had an arguable case.

Order

[1] The application is dealt with as one of urgency in terms of Rule 8 of the Labour Court Rules and any non-compliance with time periods in the Rules is condoned.

[2] The application is dismissed.

[3] No order is made as to costs.

Lagrange J

Judge of the Labour Court of South Africa

Appearances/Representatives For the Applicant M M Petlane assisted by K Pama-Sihunu instructed by Mudzusi Molebela Inc. For the Respondents I Motimele instructed by the State Attorney (Johannesburg)

[1] To avoid confusion with the original judgment under this case handed down under case number J 164/2022 on 23 January 2023, the case number has been altered to J 164/2022 (2).

[2] S 18(1) Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended

pending the decision of the application or appeal.

[3] (3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.

[4] ILJ report, at 2104A-C

[5] At 2014G-2015A

[6] At 20114E-F.