Sejake v Ratlou Local Municipality and Others (J 211/2022) [2022] ZALCJHB 102 (17 May 2022)

The Labour Court of South Africa, Johannesburg

Not Reportable

Case No: J 211/2022

In the matter between:

SEBATANA CASSIUS SEJAKE Applicant

and

RATLOU LOCAL MUNICIPALITY First

Respondent

RATLOU MUNICIPAL COUNCIL Second

Respondent

TEBOGO SHADRACK CHANDA Third

Respondent

SALGA Fourth

Respondent

MEC DEPT OF COOPERATIVE

GOVERNANACE HUMAN SETTLEMENT AND

TRADITIONAL AFFAIRS NW PROVINCE Fifth

Respondent

Delivered: 17 May 2022

(In view of the measures implemented as a result of the Covid 19 pandemic, this judgement was handed down electronically by circulation to the parties’ representatives, by email. The date on which the judgment is delivered is deemed to be 17 May 2022.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant sought, on an urgent basis, a declaratory order to the effect that his suspension by the first respondent was unlawful. The first to third respondents opposed the application. At the hearing, after the Court raised certain concerns regarding its jurisdiction to grant the relief sought, the applicant advised that it intended to transfer the application to another court. The only issue that remains in dispute is that of costs.

[2] This Court is empowered to make orders for costs according to the requirements of the law and fairness. In exercising its discretion, the court may take into account whether the matter referred to the court ought to have been referred to arbitration in terms of the Act, and the conduct of the parties in proceeding with or defending the matter before the court, or in proceedings before the court. The Constitutional Court has made clear that in labour matters, section 162 should not be interpreted to mean that costs necessarily follow the result. This court must necessarily take into account the principle of fairness. In particular, the court must take into account the vulnerable position of those who seek to vindicate their constitutionally entrenched rights and have regard to the statutory purpose of dispute resolution, one which attempts to secure labour peace by the efficient resolution of disputes by specialist institutions (see Union for Police Security & Corrections Orgainsation v SA Custodial Management (Pty) Ltd & others (2021) 42 ILJ 2371 (CC), referring to among other authorities Zungu v Premier of the Province of KwaZulu-Natal & others (2018) 39 ILJ 523 (CC)). As the Constitutional Court put it in Union for Police Security & Corrections Organisation, it is ‘imperative for our democracy that the doors of labour dispute resolution institutions be kept wide open for litigants to air their grievances…’ (at paragraph 31).

[3] The exercise of the discretion conferred by section 162 requires that the Court consider all of the relevant facts and circumstances, carefully weighing the issues in the case, the conduct of the parties and any other factor that may have a bearing on the issue of costs.

[4] First, I must necessarily have regard to the fact that the applicant in effect conceded that the application had been instituted in the incorrect forum. While the respondents have therefore been successful in this Court in their opposition to the application, the basis on which they did so is not of their doing. As I have indicated, the court mero motu raised the issue of jurisdiction. Despite a long line of cases in this court to the effect that this court’s jurisdictional footprint does not extend to any determination of the unlawfulness of a suspension where the basis of the alleged unlawfulness lies in subordinate legislation, the applicant instituted the proceedings and the respondents opposed them with no regard to this principle. The issue of success in the proceedings is thus based at a neutral factor.

[5] To the extent that the respondents rely on what they contend to be a number of errors in the applicant’s papers, while it is correct that the notice of motion suggests that the matter is to be heard in the High Court, Mafikeng, the applicant has explained what is an obvious typographical error. The fact that the papers bear a case number issued out of this court in February 2022 in a separate, substantive application regarding a prior suspension, the applicant has also explained how it came about that the registrar failed to issue a new case number in respect of the present application. This

explanation extends to the respondents’ points regarding joinder and the failure by the attorneys who represented the applicant in the February 2022 proceedings to file a notice of withdrawal.

[6] Although the institution of the present proceedings was misguided, it does not appear to me from the papers that the applicant acted frivolously or vexatious in seeking to protect his interests against what amounts to a second attempt by the first respondent to suspend him from his employment. I must necessarily have regard to what the Constitutional Court has held in respect of individual employees seeking recourse against their employers and the special role of this court in ensuring access to justice, even where that recourse is sought consequent on poor advice.

[7] On balance, and having regard to all of the relevant facts and circumstances, in my view, the requirements of the law and fairness are best satisfied by each party bearing its own costs.

I make the following order:

1. Each party is to bear its own costs.

André van Niekerk

Judge of the Labour Court of South Africa