Nongogo v MEC of Education Free State Province and Others (J5366/00) [2000] ZALC 129 (13 November 2000)
The court held that the applicant failed to establish a clear right to urgent reinstatement or payment of salary pending her appeal. The Employment of Educators Act does not provide for automatic reinstatement upon lodging an appeal, and the applicant did not prove that no alternative remedies were available. The...
Source-derived case information.
- Citation
- [2000] ZALC 129
- Parties
- Applicant: Nomakhalipha Margaret Nongogo; Respondent: The MEC of Education, Free State Province; Respondent: The Director General Free State Province; Respondent: The Head of the Department of Education Free State Province
- Court
- Labour Court
- Jurisdiction
- South Africa
- Case Number
- J5366/00
- Procedural Posture
- Urgent Application / Application for Urgent Reinstatement Pending Appeal
- Outcome
- Application dismissed with costs.
- Judges
- Revelas
- Legal Topics
- Unfair Dismissal, Employment of Educators Act, Urgent Interdict, Appeal Rights
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nomakhalipha Margaret Nongogo
Applicant
The MEC of Education, Free State Province
Respondent
The Director General Free State Province
Respondent
The Head of the Department of Education Free State Province
Respondent
Procedural Posture
Urgent Application / Application for Urgent Reinstatement Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to urgent reinstatement pending the resolution of her appeal under the Labour Relations Act and Employment of Educators Act.
- 2 Whether the applicant has a clear right to reinstatement and payment of salary.
- 3 Whether there is no alternative remedy available to the applicant other than approaching the Labour Court on an urgent basis.
Ratio Decidendi
The court held that the applicant failed to establish a clear right to urgent reinstatement or payment of salary pending her appeal. The Employment of Educators Act does not provide for automatic reinstatement upon lodging an appeal, and the applicant did not prove that no alternative remedies were available. The matter was not urgent, and the applicant should pursue her salary claim through normal procedures. The application was dismissed with costs due to lack of merit.
Court Disposition
Application dismissed with costs.
Orders
- The application is dismissed with costs.
Full Case Text
Judgment text and source record
40 paragraphs
K1
J5366/00 2 JUDGMENT
Sneller Verbatim/IDM CASE NO.J5366/00
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
2000-11-13
In the matter between:
NOMAKHALIPHA MARGARET NONGOGO Applicant
and
THE MEC OF EDUCATION, FREE STATE
PROVINCE First Respondent
THE DIRECTOR GENERAL FREE STATE
PROVINCE Second Respondent
THE HEAD OF THE DEPARTMENT OF
EDUCATION FREE STATE PROVINCE Third Respondent
J U D G M E N T
REVELAS J:
The applicant has on an urgent basis approached this court seeking relief to the effect that she be reinstated, pending the resolution
of a "dispute under chapter 8 of the Labour Relations Act of 1995 (sic) read with the relevant provisions of the Employment of Educators Act of 1998 (the Act)".
The applicant's services were terminated on 3 October 2000. This apparently came to the attention of the applicant's attorneys on 26 October 2000. The reason for her dismissal appears to be that she was discharged form
her services on account of misconduct, being that she was absent from work for a period exceeding 14 consecutive days without the consent of her employer. It was argued on behalf of the applicant that since section 25 of the Educators Act provides that certain terms and conditions remain intact pending an appeal, which had been lodged at this stage, the applicant has not been paid her salary, she is entitled to reinstatement and the payment of her salary.
To succeed with the application the applicant has to show firstly that she has a clear right to reinstatement and repayment, which on the facts, she has not proved.
Secondly, it must be shown that there is no alternative remedy than to approach this court on an urgent basis. The Labour Court does provide for remedies for disputes of this nature. A right to appeal does not mean that all actions are to be suspended immediately. That is not what the section says. Employees have a right to appeal, but the effect of the appeal is not to reinstate the employee, and on the basis that an appeal has been lodged, I see no need to reinstate the applicant. The applicant should persue the relief she seeks in respect of her salary in the normal course. For all the aforesaid reasons I do not regard the matter as urgent.
Consequently the application is dismissed.
There is no reason why it should not be dismissed with costs, since the applicant has brought to court a case with no merit and has caused the respondent to incur the costs of opposing it. ORDER The Application is dismissed with costs.
her services on account of misconduct, being that she was absent from work for a period exceeding 14 consecutive days without the consent of her employer.
It was argued on behalf of the applicant that since section 25 of the Educators Act provides that certain terms and conditions remain intact pending an appeal, which had been lodged at this stage, the applicant has not been paid her salary, she is entitled to reinstatement and the payment of her salary.
To succeed with the application the applicant has to show firstly that she has a clear right to reinstatement and repayment, which on the facts, she has not proved.
Secondly, it must be shown that there is no alternative remedy than to approach this court on an urgent basis.
The Labour Court does provide for remedies for disputes of this nature. A right to appeal does not mean that all actions are to be suspended immediately. That is not what the section says. Employees have a right to appeal, but the effect of the appeal is not to reinstate the employee, and on the basis that an appeal has been lodged, I see no need to reinstate the applicant.
The applicant should persue the relief she seeks in respect of her salary in the normal course. For all the aforesaid reasons I do not regard the matter as urgent.
Consequently the application is dismissed.
There is no reason why it should not be dismissed with costs, since the applicant has brought to court a case with no merit and has caused the respondent to incur the costs of opposing it.
ORDER
The Application is dismissed with costs.
3 JUDGMENT On behalf of the Applicant: Mr M. Khang On behalf of the Respondent: Mr Makka
3 JUDGMENT
On behalf of the Applicant: Mr M. Khang
On behalf of the Respondent: Mr Makka
2