Sikhela v City of Tshwane Metropolitan Municipality and Another (J248/03) [2002] ZALC 8 (2 February 2002)
The court found that the applicant failed to demonstrate a clear right to urgent reinstatement, as he had not referred his dispute to the CCMA, which constitutes an available alternative remedy. The applicant continued to receive his salary and had not suffered any suspension or monetary loss. The alleged breach of...
Source-derived case information.
- Citation
- [2002] ZALC 8
- Parties
- Applicant: P M Sokhela; Respondent: City of Tshwane Metropolitan Municipality; Respondent: Acting Municipal Manager: City of Tshwane
- Court
- Labour Court
- Jurisdiction
- South Africa
- Case Number
- J248/03
- Procedural Posture
- Urgent Application / Application for Interim Relief
- Outcome
- Application dismissed with costs.
- Judges
- E Revelas
- Legal Topics
- Breach of Employment Contract, Urgent Interdict, Alternative Remedy, Disciplinary Proceedings
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
P M Sokhela
Applicant
City of Tshwane Metropolitan Municipality
Respondent
Acting Municipal Manager: City of Tshwane
Respondent
Procedural Posture
Urgent Application / Application for Interim Relief
Legal Issues
- 1 Whether the applicant is entitled to urgent reinstatement pending final adjudication of other relief.
- 2 Whether the applicant has a clear right to reinstatement based on breach of contract.
- 3 Whether the applicant faces irreparable harm justifying urgent relief.
Ratio Decidendi
The court found that the applicant failed to demonstrate a clear right to urgent reinstatement, as he had not referred his dispute to the CCMA, which constitutes an available alternative remedy. The applicant continued to receive his salary and had not suffered any suspension or monetary loss. The alleged breach of contract did not, on the facts, establish a reasonable apprehension of harm or justify urgent interim relief. Consequently, the application for urgent reinstatement was dismissed.
Court Disposition
Application dismissed with costs.
Orders
- The application is dismissed with costs.
Full Case Text
Judgment text and source record
25 paragraphs
Sneller Verbatim/HVR
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J248/03
2002-02-03
In the matter between
P M SOKHELA Applicant
and
THE CITY OF TSHWANE METROPOLITAN
MUNICIPALITY 1st Respondent
THE ACTING MUNICIPAL MANAGER:
CITY OF TSHWANE 2nd Respondent
________________________________________________________________
J U D G M E N T
REVELAS J:
In this matter the applicant brought an urgent application requesting this court for an order that he be reinstated with immediate effect in his position as Strategic Manager in the office of the Municipal Manager of the first respondent pending the final adjudication of the other relief sought.
The applicant wishes to be reinstated in that office for the unexpired term of his five year contract in terms of which he would be employed until the year 2007 at a monthly remuneration of R530 000.00.
The applicant currently holds the position to which he was and unilaterally transferred by the respondents to the licensing department of the Metro Police. The applicant contends that he has a clear right in that the contract entered into was breached and repudiated by the respondent. It was argued that this would cause the applicant irreparable harm.
I raised my concern that the situation regarding the payment could continue indefinitely which was also the applicant's argument in favour of the matter being dealt with by way of urgency. However, I have considered the facts of this matter, and the applicant has an alternative remedy. He may refer his dispute to the Commission for Conciliation, Mediation and Arbitration (âthe CCMAâ).
I also considered whether or not to grant the interdict pending the event of the disciplinary hearing involving the chief executive officer of the Tshwane Metropolitan Municipality, Dr Thoahlane.
On the facts of this case I am not persuaded that this disciplinary inquiry, which also would necessarily involve an investigation into the applicant's activities, will never take place.
It was pointed out to me that Dr Thoahlane earns a salary of approximately R900 000.00 a year and that it was not in the interests of the first respondent to postpone the event of the disciplinary inquiry which relied on the applicant's position in this matter.
However, the applicant has not referred his dispute to the Commission for Conciliation Mediation and Arbitration as one would expect the first step would be. The applicant has not demonstrated that he does not has an alternative remedy. He is still being remunerated at the same salary which he would receive in the position he now seeks to be reinstated into. He has not been suspended and he has not demonstrated any monetary loss or otherwise from conducting different functions for the same employer save for breach of contract, which on the face of it does not constitute a clear right or a reasonable apprehension of harm.
In the circumstances the application is dismissed with costs.
________________
E. Revelas