South African Municipal Workers Union and Others v Amathole District Municipality and Others (P39/22; PR42/2022) [2022] ZALCPE 10 (24 June 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

CASE NO: P39/22 &

PR42/2022

In the matter between:

THE SOUTH AFRICAN MUNICIPAL

WORKERS UNION

First Applicant

ASANDA NKETHO

Second Applicant

ASANDA NQUMA

Third Applicant

TIBA PETER

Fourth Applicant

DALI KUTU

Fifth Applicant

AYAKHA MVIMBA

Sixth Applicant

YVONNE MAHLEZA

Seventh Applicant

AKHONA MAGAYIYANA

Eight Applicant

YONGAMA JANDA

Ninth Applicant

LONA LUBEDU

Tenth Applicant

ZUKO MANQUMA

Eleventh Applicant

MBUYISELO WALAZA

Twelfth Applicant

MOMELEZI NDAMASE

Thirteenth Applicant

LUNDI SELEKWA

Fourteenth Applicant

and

AMATHOLE DISTRICT MUNICIPALITY

First Respondent

THE MUNICIPAL MANAGER

AMATHOLE DISTRICT MUNICIPALITY

Second Respondent

BOTHA DU PLESSIS

Third Respondent

Heard: 8 June2022

Delivered: This judgment was handed down electronically by circulation to the Applicant Trade Union and the First Respondent’s Legal Representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing - down is deemed to be 12h00 on 24 June 2022.

JUDGMENT

LALLIE J.

[1] On 7 March 2022 the applicant launched an application under case number PR42/22 seeking the following relief:

‘1. Reviewing and setting aside the decision of the first and the second respondent to charge the employees of the first respondent for embarking in a strike on 9 November 2020;

2. An order declaring that the strike the employees of the first respondent embarked upon with effect from 9 November 2020 was a protected strike;

3. The respondents are interdicted from charging the employees who embarked on the strike on 9 November 2020.

4. The amended notice to strike issued by the applicant on 10 November 2020 cured the defect in the notice to strike issued on 5 November 2020;

5. By reason of the failure to issue a notice to the applicant and the ultimatum as set out in clause 18 of the Disciplinary Procedure Collective Agreement, Circular No. 01/2018, the respondents are interdicted from charging the employees that embarked on the strike on 9 November 2020.’

[2] On April 2022 the first applicant filed an urgent application on behalf of the second to fourteenth applicant under case number P39/2022 and sought, mainly the following relief:

‘2. That a Rule Nisi is hereby issued returnable on a date to be arranged with the register herewith in terms of which the respondents are called upon to show cause as to why an order in the following terms should not be made a final order of the above Honourable Court:

2.1 Pending a decision in a review application already before the Labour Court with case number PR42/22, the respondents are interdicted from commencing and/or continuing with the disciplinary enquiry which is likely to be set down for 26 April 2022.

2.2 That the disciplinary proceedings be held in abeyance until the Labour Court decides on case number PR42/22.

3. That prayers in 2.1 and 2.2 above serve as an interim order against the respondents until the return date.

4. That the third respondent recuse himself as a chairperson of the disciplinary enquiry in question if and or when the enquiry proceeds.’

[3] The urgent application was struck from the roll on 21 April 2022 owing to the applicants’ non-appearance. On 29 April 2022 an order was granted by agreement between the parties in terms of which the urgent application was postponed to 7 June 2022 and the review application enrolled to be heard on the same date. The hearing of the disciplinary hearing of the individual applicants was also stayed to 7 June 2022.

[4] Both applications are opposed by the Amathole District Municipality which will be referred to as the municipality in this judgment. The municipality raised a number of points in limine. The first was that the applications stand to be dismissed for lack of urgency. Rule 8 of the Labour Court Rules provides that an applicant for urgent relief must disclose reasons for urgency and the necessity for urgent relief.

[5] On 9 November 2020 employees of the municipality including the individual applicants embarked on a strike. On 10 November 2020 the municipality obtained a rule nisi interdicting the individual applicants from participating in the unprotected strike. The rule nisi was confirmed on 23 December 2020. Charges arising from participating in the strike were preferred against the individual applicants. A disciplinary enquiry into the allegations was convened. It was postponed sine die on 9 March 2022 and rescheduled on 28 March 2022. The reasons the applicants provided to have this matter heard urgently were that after receiving the news that charges had been preferred against them they expressed the intention of having the present application instituted. On 4 April 2022 the first applicant which will be referred to as the SAMWU in this judgment gave authority for the institution of this application. Consultation with the applicants’ attorneys was held on 5 April 2022. The founding affidavit was attested to on 8 April 2022. The application was served on and set down for 21 April 2022. The applicants failed to appear in court on 21 April 2022 and their matter was struck form the roll. It was re-enrolled for 29 April 2020 when it was postponed

by agreement between the parties to 7 June 2022.

[6] It was submitted on behalf of the municipality that the applicants’ delay in bringing this application indicates its lack of urgency alternatively self created urgency. There is a duty on a party seeking urgent relief to approach this court urgently. The applicants gave no valid explanation for the delay from the date SAMWU authorised the bringing of this application to the date on which it was eventually filed. What exacerbated matters is the applicants’ non-appearance in court on 21 April 2022, a date they had requested for the hearing of this application.

[7] The applicants’ delay in bringing this application also resulted from the unavailability of their attorney. It was argued, correctly, on behalf of the municipality that the unavailability of an attorney does not constitute valid grounds for urgency. The applicants did not disclose why the services of another attorney could not be enlisted. Urgent applications are heard when the need for urgency has been proved. They give their applicants an unfair advantage of having their cases given priority. The advantage can only be given when urgency is prove. The applicants failed to justify the urgency of this application on 7 June 2022 when they identify it on 9 March 2022. They provided no valid explanation for their failure to act with the necessary alacrity in bringing and prosecuting the urgent application. They therefore did not succeed in proving the urgency of their application. The urgency of the review application was predicted on the urgent application. The review application is, in the circumstances not urgent.

[8] Notwithstanding the applicants’ unreasonable conduct in the prosecution of their application, I am not convinced that fairness justifies a costs order against them.

[9] In the premises the following order is made:

Order:

1. The applications are struck from the roll for lack of urgency.

2. There is no order as to costs.

Z. Lallie

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate Nyangiwe

Instructed by

Cromwell & Associates Inc.

For the First Respondent: Mr W. van Rensburg of Wikus van Rensburg