Public Servants Association of SA and Another v Minister of Home Affairs and Others (J1673/16) [2016] ZALCJHB 439 (22 November 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

case no: J 1673 / 16

In the matter between:

PUBLIC

SERVANTS ASSOCIATION OF SA

First Applicant

URSULA

THEUNISSEN

Second Applicant

and

MINISTER

OF HOME

AFFAIRS

First Respondent

MINISTER

OF PUBLIC SERVICE AND

ADMINISTRATION

Second Respondent

MINISTER OF FINANCE:

GAUTENG

Third Respondent

DIRECTOR GENERAL: DEPARTMENT OF

HOME

AFFIARS

Fourth Respondent

Heard: 16 November 2016

Delivered: 22 November 2016

Summary: Urgent application – requirements for urgency – principles set out

Urgency – applicant must make out case for urgency – urgency self created – application struck from the roll

SNYMAN, AJ

Introduction

[1] This matter came before me on 16 November 2016 as an urgent application brought by the applicants on 3 November 2016, to stop deductions being made from the second applicant’s salary. After hearing argument presented on behalf of the parties on 16 November 2016, I made the following order:

‘1. The application for urgent interim relief filed on 3 November 2016 is struck from the roll for want of urgency.

2. There is no order as to costs.

3. Written reasons for this order will be handed down on 22 November

2016. …’

[2] This judgment now constitutes the reasons for the order I have made, supra.

[3] The second applicant is employed by the Department of Home Affairs (‘the Department’). The applicants had already brought an application on 2 August 2016 (which I will refer to as ‘the main application’) in order to declare the deductions made by the Department from the second applicant’s salary commencing in July 2016 to be unlawful and invalid. The applicants further sought an order to the effect that all deductions made from the second applicant’s salary as from July 2016 be refunded, and that the Department be interdicted from making any further such deductions in the future. The Department had opposed this application and filed an answering affidavit.

[4] As stated above and in the current urgent application, the applicants have prayed that the first and fourth respondents be interdicted from making any further deductions from the second applicant’s salary pending the outcome of the main application referred to above. The applicants have described the current application as an application for an interim order, pending the main application. But to merely label the relief sought as interim, just because it is pending something else, does not make it so. In Zondo and Another v Uthukela District Municipality and Another[1] the Court held:

‘The first issue to be dealt with is the nature of the relief sought. The applicants have couched the relief sought as an interim order. However, and to simply call the relief sought an interim order in the notice of motion does not make it so. To just attach a particular label to substantive relief sought in a notice of motion cannot change the true nature of what it is that is being applied for. There is of course good reason why applicants would want to have an application determined on the basis of seeking interim relief, being that the more stringent requirements the applicants would have to prove have been met, when final relief is sought, is avoided. Therefore it is always important to establish from the outset what the nature of the relief being sought by applicants actually is. …’

[5] The applicants did not call on me to decide the main application, which was in any event not before me. What the applicants are actually seeking is that the current deductions from the second applicant’s salary be interdicted from in any way continuing until the main application has been finally determined. This is clearly not interim relief, but final relief.[2] In effect, the deductions would be permanently stayed until the event of the final outcome of the main application. As matters stand, this could be indefinitely, which makes the relief that of final relief.[3]

[6] As this matter also concerns the granting of final relief, the applicants must satisfy three essential requirements, being: (a) the existence of a clear right; (b) an injury actually committed or reasonably apprehended; and (c) the absence of any other satisfactory remedy.[4]

[7] If a litigant seeks to have the matter determined as one of urgency, a proper case of urgency as contemplated by Rule 8 must be made out. The question is now whether the applicants have made out such a case for urgency.

Facts relating to Urgency

[8] In this matter, it is common cause that the second applicant was paid an allowance by the Department she was not entitled to. It is in dispute what the quantum of the overpayment of that allowance would be. Section 38 of the Public Service Act (‘The PSA’)[5] provides for the recovery of an overpayment of remuneration to an employee which the employee was not entitled to. This recovery

may take the form of a deduction made from the employee’s salary in monthly amounts, the quantum of which the relevant accounting officer may decide.

[9] Pursuant to this provision of the PSA, the Department informed the second applicant on 22 April 2016 that she had been overpaid in the total sum of R31 391.00, and that this amount would be deducted from her remuneration in 12 equal payments commencing 1 May 2016. As matters turned out, the deductions only started on 1 July 2016. These deductions were then challenged by the applicants in the main application referred to above, filed on 2 August 2016, without any reliance on urgency.

[10] The deductions from the second applicant’s salary then persisted in August, September and October 2016. It was only following the deduction in November 2016 that the applicants decided to bring an urgent application to stop further deductions pending the deciding the main application.

[11] The only reason the applicants have provided in order to establish urgency is that even though the second applicant believed that she could ‘survive’ in the face of these deductions, and still provide for her family, this turned out not to be the case. She explained that by November 2016, she realized that she was short on her monthly income and if the deductions proceeded going forward, she will be even more short, which would cause her prejudice. It was then decided to bring this application as one of urgency to stop further deductions.

Principles - Urgency

[12] Urgent applications are governed by Rule 8. In considering this Rule, the Court in Jiba v Minister: Department of Justice and Constitutional Development and Others[6] said:

‘Rule 8 of the rules of this court requires a party seeking urgent relief to set out the reasons for urgency, and why urgent relief is necessary. It is trite law that there are degrees of urgency, and the degree to which the ordinarily applicable rules should be relaxed is dependent on the degree of urgency. It is equally trite that an applicant is not entitled to rely on urgency that is self created when seeking a deviation from the rules.’

[13] As to what an applicant must show in order to make out a case of urgency, was dealt with in Mojaki v Ngaka Modiri Molema District Municipality and Others[7], where the Court referred with approval to the following dictum from the judgment in East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others:[8]

‘…. 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 redress 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 redress in an application in due course. The rules allow the court to come to the assistance of a litigant because if the latter were to wait for the normal course laid down by the rules it will not obtain substantial redress.’

[14] The Court in Maqubela v SA Graduates Development Association and Others[9] dealt with the considerations pertaining to urgency as follows:

‘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. As Moshoana AJ aptly put it in Vermaak v Taung Local Municipality:

'The consideration of the first requirement being why is the relief necessary today and not tomorrow, requires a court to be placed in a position where the court must appreciate that if it does not issue a relief as a matter of urgency, something is likely to happen. By way of an example if the court were not to issue an injunction, some unlawful act is likely to happen at a particular stage and at a particular date.'’

[15] Where an applicant seeks final relief, the Court must be even more circumspect when deciding whether or not urgency has been established.[10] In simple terms, the applicant must make out an even better case of urgency. In Tshwaedi v Greater Louis Trichardt Transitional Council[11] the Court said:

‘… An applicant who comes to court on an urgent basis for final relief bears an even greater burden to establish his right to urgent relief than an applicant who comes to court for interim relief. ….’

[16] But it is not just about the applicant. Another consideration is possible prejudice the respondent might suffer as a result of the abridgement of the prescribed time periods and an early hearing.[12]

[17] Also, urgency must not be self-created by an applicant, as a consequence of the applicant not having brought the application at the first available opportunity.[13]

[18] A final consideration where it comes to urgency is expedition when taking action. In other words, the more immediate the reaction

by the litigant to remedy the situation by way of instituting litigation, the better it is for establishing urgency.[14] But the longer it takes from the date of the event giving rise to the proceedings, the more urgency is diminished. In short, the applicant must come to Court immediately, or risk failing on urgency. In Valerie Collins t/a Waterkloof Farm v Bernickow NO and Another the Court held:

‘… if the applicants seeks this Court to come to its assistance it must come to the Court at the very first opportunity, it cannot stand back and do nothing and some days later seek the Court’s assistance as a matter of urgency.’

Analysis

[19] I applying the above principles relating to urgency to the facts of this matter, I have little hesitation in concluding that the applicants’ application is not urgent, for the reasons I now set out.

[20] Firstly, there has been an inordinate delay in the bringing of this application by the applicants, which diminishes urgency. At best for the applicants, the first deduction from the second applicant’s salary beginning July 2016 should have been the catalyst for the bringing of an urgent application. But the applicants did not bring an urgent application. It in fact took the applicants about a month to bring an application in the normal course without any reliance on urgency. To then still wait a further three months after that to bring the current application is in effect fatal where it comes to urgency. The applicants should have taken immediate action and have brought an urgent application immediately following the first deduction, if the issue of the deduction per se would have caused the second applicant irremediable prejudice.

[21] A total period of delay of more than four months is incompatible with the existence of urgency. In Mashiya v Sirkhot NO and Others[15] the Court dealt with a period of delay from a period of delay from 25 July to 19 August which the Court considered to be unacceptable. And in Ngcongo v University of South Africa and Another[16] the Court found a five week delay in seeking to urgently challenge a ruling, without any proper explanation for it, to be not urgent. In my view, the same considerations apply in casu.

[22] The applicants simply offer no explanation why no urgent legal proceedings were instituted immediately after July 2016. There

in fact cannot be such an explanation, as the applicants deliberately decided not to follow such a course of action. The only explanation is that by November 2016, the second applicant could no longer afford the deductions, and that makes the matter urgent then. In short, the applicants’ case is squarely founded on a case of financial hardship. In Democratic Nursing Organisation of SA and Another v Director-General, Department of Health and Others[17] the Court said:

‘… as a general principle financial hardship or loss of income cannot be regarded as grounds for urgent relief. For the applicant to succeed when relying on financial hardship or loss of income he or she must show the existence of exceptional circumstances justifying the granting of an order on an urgent basis and on the ground of financial hardship. In the present instance the applicants have not shown that there are special circumstances for granting the relief sought. …’

[23] In my view, therefore, the general principle has to be that financial hardship does not establish a basis for urgency. This is certainly what the Court said in Jonker v Wireless Payment Systems CC[18] where it was held:

‘The general rule that financial hardship and loss of income are not considered to be grounds for urgent relief was upheld in Malatji v University of the North [2003] ZALC 32 (LC) and Nasionale Sorghum Bierbrouery (Edms) Bpk (Rantoria Divisie) v John NO en Andere (1990) 11 ILJ 971 (T).’

This general principle may be departed from if exceptional circumstances exist.[19] In the case Harley v Bacarac Trading 39 (Pty) Ltd,[20] the Court held:

‘If an applicant is able to demonstrate detrimental consequences that may not be capable of being addressed in due course and if an applicant is able to demonstrate that he or she will suffer undue hardship if the court were to refuse to come to his or her assistance on an urgent basis, I fail to appreciate why this court should not be entitled to exercise a discretion and grant urgent relief in appropriate circumstances. Each case must of course be assessed on its own merits.’

[24] Applying the above reasoning, I am not satisfied that any exceptional circumstances exist for this court to intervene based on financial hardship, and the applicants have simply not shown this to exist. In the end, the applicants’ claim is for the refund of deductions made from the second applicant’s salary. The second applicant can be fully indemnified where it comes to the relief sought, by way of an award for the payment of money in due course, plus interest. Further, the second applicant’s own approach is inconsistent with establishing a case of exceptional circumstances of financial hardship. She did not immediately challenge the deduction and on her own version believed she could afford it. Months later she changes her mind, and then decides she cannot afford it. The second applicant is in the same position as a myriad of other litigants who have not been paid their salary or have deductions made from their salary, and who are prosecuting their disputes in the normal course.

[25] This matter is further a prime example of self-created urgency. The second applicant was advised at the end of April 2016 that the deductions would follow. She made no attempts to stop it from happening. When the deductions then happen, she waits a month to bring an application in the normal course and actually deliberately decides to acquiesce in the deductions in the interim. Nothing changes for three months, and then the second applicant changes her mind and decides she can no longer afford the deductions, and thus the matter has become urgent. If this is not self-created urgency, it is difficult to comprehend

what would be.

[26] In order to afford the applicants the relief sought, is would be necessary to decide the merits of the applicants’ case in the main application. After all, the applicants are seeking a final interdict, and must show that a clear right exists. A determination of the applicants’ case in the main application is needed to establish whether such a clear right exists. It is simply not appropriate to decide this case at this stage, with the main application pending. In fact, and to afford the applicants the relief sought may well pre-empt the decision to be taken by the Court in the normal course. An approach where in effect the same issue is to be dealt with twice, is to be discouraged. In Evins v Shield Insurance Co Ltd[21] the Court said:

'…a plaintiff must claim in one action all damages, both already sustained and prospective, flowing from one cause of action (see Cape Town Council v Jacobs 1917 AD 615 at 620; Oslo Land Co Ltd v The Union Government 1938 AD 584 at 591; Slomowitz v Vereeniging Town Council 1966 (3) SA 317 (A) at 330; Custom Credit Corporation (Pty) Ltd v Shembe (supra at 472). …. it is a well-entrenched rule. Its purpose is to prevent a multiplicity of actions and to ensure that there is an end to litigation.'

This Court has also expressed its reluctance to grant this kind if interim relief where there is a competent alternative process pending which will actually decide the same issue.[22] The simple reality is that the applicants can get proper substantial redress in the normal course, without having to resort to these urgent proceedings.

[27] Therefore, the applicants have failed to make out a case of urgency. The requirements of Rule 8 have thus not been satisfied. This is clearly a matter of self-created urgency. The application falls to be struck form the roll. In the end, and as I have said on several occasions in the past, this is one of those matters that forms part of the worrying trend of litigation in the Labour Court to jump the queue and try to get matters heard as urgent matters, when there is no justification for this. I once again reiterate the following dictum in Mosiane v Tlokwe City Council[23] which I consider to be applicable in casu:

‘A worrying trend is developing in this court in the last year or so where this court's roll is clogged with urgent applications. Some applicants approach this court on an urgent basis either to interdict disciplinary hearings from taking place, or to have their dismissals declared invalid and seek reinstatement orders. In most of such applications, the applicants are persons of means who have occupied top positions at their places of employment. They can afford top lawyers who will approach this court with fanciful arguments about why this court should grant them relief on an urgent basis. ….’

[28] This then only leaves the issue of costs. The applicants have elected to approach the Labour Court on an urgent basis when it must have been clear there was no basis for doing so. Normally, this would justify a costs order. But the parties

have an ongoing employment relationship and there is clearly litigation to follow to decide the issue giving rise to the deductions. It is my view that it would be inappropriate to mulch either of the parties with a costs order going forward, in these circumstances. In any event, and in terms of Section 162 of the LRA, I have a wide discretion where it comes to the issue of costs, and in this instance, I exercise this discretion in favour of making no order as to costs.

[29] Based on all the above reasons, I made the order that I did on 16 November 2016, referred to supra.

_____

S Snyman

Acting Judge of the Labour Court

Appearances:

For the Applicants:

Mr H Pretorius

MacGregor Erasmus Attorneys

For the First and Fourth Respondents: Adv S Mpakane

Instructed by:

The State Attorney

[1] (2015) 36 ILJ 502 (LC) at para 2

[2] Compare Mashiya v Sirkhot NO and Others (2012) 33 ILJ 420 (LC) at para 19.

[3] See Uthukela District Municipaly (supra) at para 4.

[4] Setlogelo v Setlogelo 1914 AD 221 at 227; V & A Waterfront Properties (Pty) Ltd and Another v Helicopter & Marine Services (Pty) Ltd and Others 2006 (1) SA 252 (SCA) at para 20; Royalserve Cleaning (Pty) Ltd v Democratic Union of Security Workers and Others (2012) 33 ILJ 448 (LC) at para 2; Van Alphen v Rheinmetall Denel Munition (Pty) Ltd (2013) 34 ILJ 3314 (LC) at para 7.

[5] Of 1994 – effective 3 June 1994.

[6] (2010) 31 ILJ 112 (LC) at para 18. See also Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's Furniture Manufacturers) 1977 (4) SA 135 (W).

[7] (2015) 36 ILJ 1331 (LC) at para 17.

[8] [2012] JOL 28244 (GSJ) at para 6.

[9] (2014) 35 ILJ 2479 (LC) at para 32. See also Transport and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others (2015) 36 ILJ 2148 (LC) at para 11.

[10] [2002] JOL 9452 (LC) at para 8.

[11] [2000] 4 BLLR 469 (LC) at para 11.

[12] IL & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another 1981(4) SA 108 (C) at 113D-114C.

[13] See Golding v HCI Managerial Services (Pty) Ltd and others [2015] 1 BLLR 91 (LC) at para 24; National Union of Mineworkers v Lonmin Platinum Comprising Eastern Platinum Ltd & Western Platinum Ltd and Another (2014) 35 ILJ 486 (LC) at para 50; Association of Mineworkers and Construction Union v Lonmin Platinum (comprising Eastern Platinum Ltd & Western Platinum Ltd) and Others (2014) 35 ILJ 3097 (LC) at paras 30-44.

[14] See University of the Western Cape Academic Staff Union and Others v University of the Western Cape (1999) 20 ILJ 1300 (LC) at para 15.

[15] (2012) 33 ILJ 420 (LC).

[16] (2012) 33 ILJ 2100 (LC) at para 9.

[17] (2009) 30 ILJ 1845 (LC) at para 19.

[18] (2010) 31 ILJ 381 (LC) at para 16.

[19] Jonker (supra) at paras 17 – 18.

[20] (2009) 30 ILJ 2085 (LC) at para 8.

[21] 1980 (2) SA 814 (A) at 835C-E. See also Janse van Rensburg NO and Others v Steenkamp and Another; Janse van Rensburg and Others v Myburgh and Others [2009] 1 All SA 539 (SCA) at para 27; Truter and Another v Deysel [2006] JOL 16961 (SCA) at para 22; Symington and Others v Pretoria-Oos Privaat Hospitaal Bedryfs (Pty) Ltd [2005] 4 All SA 403 (SCA) at para 26.

[22] See Nchabeleng v University of Venda and Others (2003) 24 ILJ 585 (LC) at paras 15 – 16; Denosa (supra) at para 22.

[23] (2009) 30 ILJ 2766 (LC) at paras 15 – 16.