Ntombela v Minister of Justice and Constitutional Development and Others (J847/2024) [2024] ZALCJHB 337 (25 August 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: J 847/2024

In the matter between:

MS SIPHIWE NTOMBELA Applicant and MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT First Respondent DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT Second Respondent DEPUTY DIRECTOR-GENERAL: CORPORATE SERVICES, DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT Third Respondent THABISO THITI N.O Fourth Respondent THE STATE ATTORNEY Fifth Respondent

Heard: 15 August 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 hand-down is deemed to be 25 August 2024.

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] The applicant approached this Court on an urgent basis seeking various forms of declaratory and interdictory interim relief. She seeks the following orders;

(i) Declaring that her dismissal without a disciplinary hearing is null and void, and that the failure to reply to her appeal within the required time periods was in non-compliance with the ‘Code of the Public Service’, and that the ‘status quo ante’ be restored as per an internal memorandum circulated by the First – Fourth Respondents.

(ii) Declaring that the failure by the Department of Justice to pay her full remuneration during her appeal was unlawful, and that she be ‘refunded with immediate effect’.

(iii) Interdicting the First – Fourth Respondents from suspending her services without pay and without a full hearing and ordering them to release her remuneration for the period whilst her appeal is considered until its finalisation, and that she be reinstated pending the appeal.

(iv) Directing the First – Fourth Respondents and/or its officials to immediately release all memorandums and communication with regards to her dismissal and her reinstatement.

[2] The respondents filed a Notice of intention to oppose without filing an answering affidavit. They however opposed the matter based on the applicant’s pleadings and the reason for doing so is apparent from the nature of the relief sought by the applicant. Central to the opposition however was that the application does not deserve the urgent attention of the Court. From the relief sought as above, immediate problems arise in the light of the background to this application which is summarised as follows;

2.1 The applicant was in the employ of the Department of Justice since 2007 until 22 May 2024 when her services were terminated (Deemed

discharge) by operation of the law under section 17(3)(a)(i) of the Public Service Act.[1] The deemed discharge was however with effect from 28 November 2023 on the basis that the applicant had allegedly absented herself from duty without permission for a period exceeding one calendar month. The applicant in the letter notifying her of her discharge was informed of her right to make representations in terms of section 17(3)(b) motivating her reinstatement.

2.2 The applicant contends that she had submitted her appeal and that as at 26 July 2024 she had not received any response. She however averred that another official, Mr Zitha, the Acting Director: Labour Relations, informed her telephonically followed with a WhatsApp text, that she had been reinstated in her position. She however contends that nothing came out of Zitha’s information about her reinstatement, despite her communication with officials in Corporate Services and the Director-General, and further correspondence from her attorneys of record demanding her immediate reinstatement.

Urgency:

[3] As already indicated, the sole basis of opposing the application in the absence of an answering affidavit by the respondents was that it did not deserve the urgent attention of this Court.

[4] The applicant contends that her application is urgent on the grounds that she had a clear right to be reinstated. She claims that she cannot follow due process as she is under financial distress and is prejudiced by having to wait for the outcome of her appeal, and not being able to refer the dispute to a bargaining council in the absence of an outcome. She contends that the withholding of her salary was unlawful, and claims that she will not have substantial redress as she was unfairly dismissed.

[5] The requirements to be met when urgent relief is sought are trite emanating from the now familiar authorities[2]. This Court under the provisions of Rule 38 of its Rules may dispense with the forms and manner of service provided for in the Rules of Court where urgent relief is sought. The applicant must demonstrate explicitly why the matter is said to be urgent and why she will not be afforded substantial redress at a later hearing. Further considerations the Court must take into account are whether the urgency claimed is not self-created; the interests of the respondent party, and any prejudice it may suffer if the matter is disposed of on an urgent basis.

[6] One of the fundamental requirements when seeking urgent relief is to approach the Court at the first available opportunity[3]. This in my view implies that where harm, prejudice or unlawfulness is likely to arise from a set of facts, a party must take immediate

action to protect its rights. To illustrate the point in this case, any urgency must on the facts, have been triggered by the letter of 22 May 2024, informing the applicant of her deemed discharge.

[7] The applicant contends that she made representations under section 17(3)(b) of the Public Service Act as to why she should be reinstated, and had as at the delivery of this application on 14 August 2024, not had a response to her representation made on 27 May 2024. Effectively, she waited two months after her deemed dismissal notwithstanding the fact that nothing was coming from Zitha’s promises that she would be reinstated.

[8] Ordinarily in circumstances where a deemed discharged has taken effect and an employee has not received a response to her submissions, the appropriate step to take as correctly pointed out on behalf of the respondents, is to seek an order in a form of a mandamus, compelling the employer to issue an outcome. In this case, the applicant sought a myriad of convoluted interim orders which are in any event impermissible in the light of their

nature.

[9] It is impermissible for an applicant to seek a declaratory order related to an alleged unfair dismissal in circumstances where the dispute resolution mechanisms under the LRA are readily available[4]. It is not clear further on what basis this court can make a declaratory order that her ‘dismissal without a disciplinary

hearing is null and void’, in circumstances where in the light of her deemed discharge under section 17(3)(b) of the Public Service Act, there cannot be a dismissal, as the termination was by operation of the law.

[10] It is equally unclear on what basis the Court should interdict the First – Fourth Respondents from ‘suspending her services without pay and without a full hearing’, in circumstances where she is not suspended, but has since been deemed discharged.

[11] In the end, other than the impermissible orders that the applicant seeks, the timing of the deemed discharge and the delivery of this application makes the urgency claimed in this case as being self-created. The consequence of self-created urgency is fatal to an application[5]. Urgency which is self-created in a sense that an applicant sits on her laurels or takes her time to bring an urgent application can on its own lead to a decision that a matter is struck off the roll[6].

[12] A further issue related to urgency is whether it can be said that the applicant cannot be afforded substantial redress at a later stage. On the authority of the East Rock Trading 7,[7] the Court can accept that a delay in instituting proceedings is not on its own a ground for refusing to accord a matter urgency, and that the issue is whether despite the delay, the applicant can or cannot be afforded substantial redress at the hearing in due course.

[13] Under the rubric of ‘Urgency’ in the founding affidavit, nothing is said about whether the applicant can or cannot be afforded substantial redress in due course, other than that she is under financial distress. Financial hardship in itself is not ordinarily regarded as a ground for urgency. It is however accepted that a court has a discretion to grant urgent relief in appropriate circumstances where an applicant was able to demonstrate that she would suffer detrimental

consequences or undue hardship that may not be capable of being addressed in the normal course[8].

[14] The Court however is disinclined to accept the applicant’s reasoning that urgency is based on her unfavourable financial position. This is based on the conclusions already made in regards to the nature of relief that she seeks, for which a case has not been made out in any event. It is not for this Court to grant urgent relief in circumstances where any form of substantial redress is obtainable in due course should the applicant utilise appropriate means of doing so.

[15] In the light of the impermissible nature of the interim relief sought, coupled with the conclusions reached that the urgency claimed in this case is clearly self-created, it follows that the matter ordinarily ought to be struck off the roll.

[16] A costs award was sought on behalf of the respondents. However, taking into account the requirements of law and fairness and the circumstances of this case, it is deemed appropriate that each party must be burdened with its own costs.

[17] Accordingly, the following order is made;

Order:

1. The applicants’ urgent 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:H.J. Horn, instructed by Kgotsofatso Masete, Masete Attorneys Incorporated.

For the First – Fifth Respondents:N.J. Ferris, instructed by the State Attorney.

[1] Act 103 of 1994.

[2] See Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC) at para 18; Luna Meubel Vervaardigers v Makin and Another 1977 (4) SA 135 (W) at 136H-137F); 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, where it was held: - “The import thereof is that the procedure set out in Rule 6(12) is not there for the taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant must state the reasons why he claims that he cannot be afforded substantial readdress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial readdress in the application in due course. The rules allow the court to come to the assistance of a litigant because of the latter, were to wait for the normal course laid down by the rules, it will not obtain substantial readdress. It is important to note that the rules require absence of substantial redress. This is not equivalent to irreparable harm that is required before the granting of an interim relief. It is something less. He may still obtain redress in an application in due course, but it may not be substantial. Whether an applicant will not be able to obtain substantial redress in an application in due course will be determined by the facts of each case. An applicant must make out his case in this regard.”

[2] See Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC) at para 18; Luna Meubel Vervaardigers v Makin and Another 1977 (4) SA 135 (W) at 136H-137F); 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, where it was held: -

“The import thereof is that the procedure set out in Rule 6(12) is not there for the taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant must state the reasons why he claims that he cannot be afforded substantial readdress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial readdress in the application in due course. The rules allow the court to come to the assistance of a litigant because of the latter, were to wait for the normal course laid down by the rules, it will not obtain substantial readdress. It is important to note that the rules require absence of substantial redress. This is not equivalent to irreparable harm that is required before the granting of an interim relief. It is something less. He may still obtain redress in an application in due course, but it may not be substantial. Whether an applicant will not be able to obtain substantial redress in an application in due course will be determined by the facts of each case. An applicant must make out his case in this regard.”

[3] Association of Mine Workers and Construction Union and others v Northam Platinum Ltd and another [2016] 11 BLLR 1151 (LC).

[4] Mantzaris v University of Durban - Westville and Others [2000] 10 BLLR 1203 (LC) at 1212; MEC for Education, North West Provincial Government v Gradwell [2012] ZALAC 8; [2012] 8 BLLR 747 (LAC); (2012) 33 ILJ 2033 (LAC) at para 46.

[5] See Public Servants Association of SA and Another v Minister of Home Affairs and Others [2016] ZALCJHB 439 at paras 12 - 18; City of Tshwane Metropolitan Municipality v Afriforum and Another 2016 (6) SA 279 (CC) at paras 24 – 25; IL&B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another; Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd and Another 1981 (4) SA 108 (C)

[6] Roets N.O. and Another v SB Guarantee Company (RF) (PTY) Ltd and Others [2022] ZAGPJHC 754 (6 October 2022) at para 26.

[7] Supra at paras 8 – 9.

[8] See Harley v Bacarac Trading 39 (Pty) Ltd (2009) 30 ILJ 2085 (LC).