South African Social Security Agency (SASSA) v National Education Health and Allied Workers Union (NEHAWU) and Others (J243/2023) [2023] ZALCJHB 286 (10 October 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J243/2023

In the matter between:

SOUTH AFRICAN SOCIAL SECURITY AGENCY (SASSA)

Applicant

and

NATIONAL EDUCATION HEALTH AND ALLIED

WORKERS UNION (NEHAWU)

First Respondent

MEMBERS OF THE ABOVE UNION AND

Second to Further

NON-MEMBERS WHO ARE EMPLOYEES OF

Respondent

SOUTH AFRICAN SOCIAL SECURITY AGENCY, IN

MPUMALANGA REGIONAL, DISTRICT AND LOCAL

OFFICES

Heard: 24 March 2023

Delivered: 10 October 2023

JUDGMENT

VOYI, AJ

[1] The applicant, South African Social Security Agency (SASSA) seeks confirmation of a rule nisi which was issued by this Court on 16 February 2023. The rule nisi called on the respondents to show cause on 8 March 2023 why a final order should not be made on the following terms:

‘2.1 Declaring the conduct of the respondents and their members as an unprotected strike as contemplated in section 68 of the Labour Relations Act 66 of 1995 (the LRA).

3 All the respondents are Interdicted and restrained in any way from participating in the strike and further:

3.1 From assaulting, threatening, intimidating and inciting violence in respect of any employees, or staff member of the applicant;

3.2 From destroying or damaging any of the property of the applicant;

3.3 From interfering with access to or egress from and free movement on or off the premises of all the regional and/or local offices of the applicant in Mpumalanga Province; and

3.4 The respondents are interdicted and restricted from interfering with the employees of the applicant and are prohibited from obstructing any of the officers and employees of the applicant in the execution of their official duties.’

[2] The order granted further stated that the above terms shall operate as an interim interdict, with immediate effect, pending the return date on which the respondents and/or any other interested party are called upon to advance reasons why the interim order should not be made final. The order also stated that the costs of the application are to be determined on the return date.

[3] The rule nisi was issued pursuant to an urgent application that was launched by SASSA on 14 February 2023. According to the affidavit of service deposed to by Mr Collins Marvin Khoza (Khoza), a candidate legal practitioner at the attorneys of record for SASSA, the urgent application was served on the first respondent by email at approximately 17:15 p.m. on 14 February 2023.

[4] When the matter came before this Court on 16 February 2023, there was no appearance on behalf of the respondents. The rule nisi was, therefore, granted in the absence of the respondents. I will return to this aspect later in this judgment, particularly with regard to the service of the urgent application on the second to further respondents.

[5] On 8 March 2023, the rule nisi was extended to 24 March 2023. This was also the day the first respondent, National Education Health and Allied Workers Union (NEHAWU) delivered its answering affidavit in opposition to the matter. In its order extending the rule nisi, this Court also ordered that SASSA “… may file any replying affidavit by close of business on 15 March 2023”. The costs of the day were reserved. A replying affidavit deposed on 16 March 2023 was delivered on behalf of SASSA.

[6] On the extended return date, the matter was fully argued before me, with both SASSA and NEHAWU having delivered their respective heads of argument. In opposing the confirmation of the rule nisi, NEHAWU contended inter alia that the parties have reached a compromise and thus rendered the interim relief granted by this Court on 16 February 2023 as academic.

[7] The events that, according to NEHAWU, illustrate the compromise reached between the parties are set out in the answering affidavit as follows:

‘4.5.1 Parties convened on 16 February 2023, with [SASSA] represented by its Chief Executive Officer (CEO), Mrs B. J. Memela-Khambula, and NEHAWU represented by its National Office Bearers, Mr M Shingane and Mr D Mavuso, and resolved to establish a Task Team to deal with the issues which NEHAWU intended to raise at the meeting of 9 February 2023, but which collapsed, as well as additional issues that arose as a result of incidents prior to and at that meeting. The Task Team is referred to as the “JOINT NEHAWU/SASSA TASK TEAM”;

4.5.2 Officials to serve on the Task Team, inclusive of a Chairperson and Secretary, were nominated.

4.5.3 A further meeting took place on 4 March 2023, during which parties concluded draft Terms of Reference for the Task Team, as well as a Project Implementation Plan, which was intended for signature by [SASSA’s] CEO and NEHAWU’s General Secretary, copies thereof attached hereto, respectively marked “AA2” and “AA3”.

4.5.4 A third meeting was scheduled for today, 7 March 2023, but at the time of deposing to this affidavit, I was not in a position to state with certainty what transpired at the said meeting. It was, however, brought to my attention that it is NEHAWU’s understanding, as a result of conversations between its officials and those of [SASSA], that there may be an intention to proceed with this matter, which by itself necessitated the need for NEHAWU’s Answering Affidavit.’

[8] In its replying affidavit, SASSA retorted as follows to the above averments as contained in the answering affidavit delivered by NEHAWU:

‘The contents of these sub-paragraphs are denied. Save to admit the engagement between the parties, the remaining allegations are denied. Contrary to the deponent’s views, the final Court Order will enhance the engagements.’

[9] At the hearing of the matter, it was submitted on behalf of NEHAWU as being the common cause that the “JOINT NEHAWU/SASSA TASK TEAM” was indeed established. It appears that a resolution for the establishment of the Task Team was taken at the meeting of 16 February 2023 between NEHAWU’s top structure and the executive of SASSA. It is therefore clear to me that the parties have engaged, as admitted by SASSA, and further resolved to deal with the issues that were raised by NEHAWU against the management of SASSA’s Mpumalanga Region.

[10] When the matter was argued, the Terms of Reference for the Task Team were handed up and I was informed that same were signed by the parties. The introductory paragraph thereof reads as follows:

‘Following the stand-off between Management and NEHAWU which resulted in union members embarking on protest action on the 6th of February 2023 at the Mpumalanga regional office and then spread to others within the region until the 16th February 2023. The NEHAWU members raised critical matters affecting the work environment and conditions of service. A meeting between the Principals was convened on the 16th of February 2023 led by the Chief Executive Officer (CEO) of SASSA and the President of the national union in order to take stock of the issues that had led to the conflict between parties; and to map a way forward. The meeting following several deliberations agreed on the establishment of a task team to deal with the issues contained in clause 3 below.’

[11] The Project Implementation Plan for the Task Team was prepared and one of its main aims/purposes was recorded as being to outline the goals and objectives to be achieved by the Task Team Structure. This Plan was signed by the Task Team Chairperson on 05 March 2023 and by the General Secretary of NEHAWU on 06 March 2023. The Plan was attached to the answering affidavit delivered by NEHAWU as an annexure.

[12] In the Project Implementation Plan, one of the tasks/activities to be undertaken was that of addressing the employees under Mpumalanga Region “….to stop picketing and return to their workplaces for full time work, as the SASSA top management is attending to all issues raised by NEHAWU on the meeting of 16th February 2023”. This particular task/activity was to be undertaken and completed by NEHAWU on 20 February 2023. In the Project Implementation Plan, the method of achieving this task/activity was set out as follows:

‘NEHAWU to assign a delegation from its office bearers to meet with the staff for a report back session on the resolutions collectively taken by the top executives of SASSA and Top Delegation of NEHAWU on the 16th February 2023.’

[13] An outcome for the task/activity mentioned hereinabove was recorded in the Project Implementation Plan. It was expressed in the following terms:

‘Employees apprised of the resolutions taken on the 16th of February; and

Returning to normal work.’

[14] In one of the other tasks/activities that were also mentioned in the Project Implementation Plan, namely communication of the resolutions taken on 16 February 2023, the outcome was recorded as follows:

‘Message of cease fire well communicated to the Staff and restoration of SASSA services in all workplaces.’

[15] It is worth repeating that the Project Implementation Plan was duly signed on behalf of SASSA on 05 March 2023 and on behalf of NEHAWU on 06 March 2023. In as much as what has been agreed to between the parties is not specifically admitted by SASSA in its replying affidavit, in that only the engagements between the parties are admitted, I am satisfied that what the Project Implementation Plan captures are the terms of what has been agreed to between the parties.

[16] It is submitted by NEHAWU that confirmation of the rule nisi may be destructive to the compromise reached. SASSA disagrees and contends that the final order that is sought in this matter will

‘enhance’ the engagements. SASSA further contends in its replying affidavit that the purpose of the interdict is to restore order at its workplace.

[17] What has transpired subsequent to the granting of the interim order on 16 February 2023 clearly reveals that the parties have since resolved what may have prompted SASSA to launch the urgent application. The stance taken by NEHAWU that the parties have reached a compromise is clearly borne out by the objective facts of this case. I, therefore, have no hesitation in finding that that compromise not only rendered the granting of a final order moot, but equally had the effect of being an absolute bar to further action on the issues compromised.

[18] In Koko v Eskom Holdings SOC Limited[1] this Court held as follows:

‘… A case becomes moot if a party seeks to obtain judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has actually been asserted and contested, or a judgment upon some matter which when rendered, for any reason, cannot have any practical effect upon an existing controversy. Courts exists to resolve controversies and not abstract issues. As I see it, for a court to intervene and assist the warring parties, there must be controversy between the parties. The dictionary meaning of the term controversy is a dispute, argument, or debate, especially one concerning a matter about which there is a strong disagreement. Further, the controversy must be a live one. Put differently it must exist between the warring parties. A case would be moot if the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court for some other reason cannot operate to grant any actual relief, and the court is without power to grant a decision...’[2]

[19] In finding that the granting of a final order has become moot, I am influenced by what is contained in the signed Project Implementation Plan. The final order sought is to inter alia interdict and restrain all the respondents in any way from participating in the alleged unprotected strike. The Project Implementation Plan recorded that the second to further respondents were appraised of the resolutions taken on 16 February 2023 and were returning to normal work. The said Plan also recorded that a “…message of cease fire [was] well communicated to the Staff and [that there was] restoration of SASSA services in all workplaces”.

[20] It therefore begs the question: what exactly is SASSA seeking to archive with the final order? In truth, is there anything to be interdicted, considering what is revealed by the contents of the Project Implementation Plan? These questions lead me to the following

remarks[3]:

‘The purpose of litigation is to arrive at an effective judgment or order and a court is not wont to give an order whereby no particular end is achieved. Where an applicant has been granted a rule nisi, and all things have been done which the rule required to be done and there seems little point in making the rule absolute, the more obvious order is for the rule to be discharged.’

[21] It is equally a trite position in our law that courts “do not pronounce on matters that are academic purely for the purpose of precedent”.[4]

[22] In Normandien Farms (Pty) Limited v South African Agency for Promotion of Petroleum Exportation and Exploitation (SOC) Limited and Others[5] (Normandien Farms) at para 47, the Constitutional Court remarked as follows on mootness:

‘Mootness is when a matter “no longer presents an existing or live controversy”. The doctrine is based on the notion that judicial resources ought to be utilised efficiently and should not be dedicated to advisory opinions or abstract propositions of law, and that courts should avoid deciding matters that are “abstract, academic or hypothetical’. (own emphasis)

[23] In as much as mootness does not serve as an absolute bar to this Court determining the matter,[6] it is my finding that the compromise itself serves as that bar. A compromise is a settlement by agreement of disputed obligations,

whether contractual or otherwise.[7] The effect of a compromise is the same as res judicata on a judgment given by consent.[8]

[24] Even if I am wrong on mootness and on the effect of the compromise, what stands in the way of the final relief being granted is the fact that NEHAWU sharply denies that its members were on an illegal strike.

[25] There is, therefore, a dispute of fact as to whether the second to further respondents did embark on the alleged illegal strike as alleged by SASSA. Under such circumstances, I am enjoined to apply the Plascon-Evans rule, which inter alia provides thus:

‘… where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order.’[9]

[26] These being urgent proceedings and it being strongly denied by NEHAWU that there was an illegal strike, it therefore cannot prevail that SASSA should be entitled to the final relief sought. In my considered view, the facts alleged by NEHAWU do not justify the granting of the final order as sought by SASSA.

[27] With regard to the further respondents who are not members of NEHAWU, it appears that the urgent application was not served on them. This issue was pointed out by NEHAWU in its answering affidavit. In the replying affidavit, the issue of non-service of the application on those respondents who are not members of NEHAWU was not directly addressed. Instead, SASSA simply stated that sufficient notice was given to the respondents to come to Court and they decided not to come.

[28] The provisions of Rule 7(2) of the Rules of the Labour Court[10] require that an application be delivered, meaning that it must be served on other parties and filed with the registrar.[11] The urgent application by SASSA is therefore inherently defective in so far as those further respondents who are not members of NEHAWU are concerned. Accordingly, it would amount to a momentous violation of the said respondents’ right to be heard if I were to confirm the rule nisi in respect of them in the absence of any proof that they were also served with the urgent application.

[29] All things considered, the rule nisi stands to be discharged. As for costs, it is the court’s considered finding that no costs order is warranted or justified in this matter having regard to the existing relationship between the parties.

[30] Therefore the following order is made:

Order

1. The rule nisi issued on 16 February 2023 is hereby discharged.

2. There is no order as to costs.

N P Voyi

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: Advocate M. H. Mhambi Instructed by: Office of the State Attorney, Pretoria For the First Respondent: Ms F. Scholtz of Scholtz Attorneys

[1] [2018] ZALCJHB 76.

[2] Ibid at para 21.

[3] Prest The Law & Practice of Interdicts 1st ed (Juta & Co., Cape Town 1996) at 333.

[4] Tshwane University Technology v All Members of the Central Student Representative Council of the Applicant and Others [2016] ZAGPPHC 881 at para 12.

[5] 2020 (4) SA 409 (CC); [2020] ZACC 5 at para 47.

[6] See: Normandiem Farms at para 48.

[7] Christie The Law of Contract in South Africa 2 ed (LexisNexis Butterworths, Durban 1991) at 344. See also: ABSA Bank Ltd v Van De Vyver NO [2002] 3 All SA 425 (A); [2002] ZASCA 8 at para 10.

[8] Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd and others 1978 (1) SA 914 (A) at 922H.

[9] Plascon- Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623; [1984] ZASCA 51 at 634H-I.

[10] GN 1665 of 14 October 1996: Rules for the conduct of proceedings in the Labour Court.

[11] Rule 1 of the Rules of the Labour Court. See also: Mbatha v Lyster & Others [2001] 4 BLLR 409 (LAC); (2001) 22 ILJ 405 (LAC).