Tloubatla v Thabazimbi Municipality and Another (J 1146/2022) [2022] ZALCJHB 257 (22 September 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 1146/2022

In the matter between:

LETSEKA GLADWIN TLOUBATLA

Applicant

and

THABAZIMBI MUNICIPALITY

First Respondent

L P MAKAYA N.O

Second Respondent

Heard: 21 September 2022

Delivered: 22 September 2022

(This judgement was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLII. The date on which the judgment is delivered is deemed to be 22 September 2022.)

JUDGMENT

VAN NIEKERK, J

[1] This is an urgent application in which the applicant seeks an interim order reinstating him in the first respondent’s employ pending the finalisation of an unfair dismissal dispute that he has referred to the CCMA.

[2] The applicant was appointed by the first respondent as its chief financial officer, with effect from 16 July 2019, on a five year fixed-term contract. On 1 July 2021, the applicant was appointed as the acting municipal manager. On 16 July 2022, the council of the first respondent resolved to withdraw that appointment. The next day, the applicant received a notice of intention to suspend him. He was suspended with effect from 1 April 2022. On 7 September 2022, the applicant received a letter terminating his employment.

[3] There is a challenge to the first respondent’s authority to oppose the application, in the form of a notice in terms of Rule 7 (1). A resolution was filed by the respondents, which the applicant disputes. In view of the conclusion to which I have come on the applicant’s version, it is not necessary for me to decide the point of authority.

[4] The applicant contends that the first respondent has flooded the applicable disciplinary regulations, and thus denied him a fair hearing prior to the decision to dismiss him. On 12 September 2022, the applicant referred an unfair dismissal dispute to the CCMA. In these proceedings, the applicant contends that he has a prima facie right not to be dismissed, and to a hearing instituted and completed in accordance with the applicable disciplinary regulations.

He contends that he will suffer irreparable harm if interim relief is not granted and in this regard, points to potential reputational

harm. The applicant further points to the prospect of the conciliation and arbitration process taking ‘several months’

to conclude, and the prospect of financial prejudice until an award in his favor is implemented.

[5] I am prepared to accept, for present purposes, that the application is urgent. In regard to the relief sought, the requirements for interim relief are a clear right or a prima facie right established though open to some doubt; irreparable harm if the interdict is not granted; the balance of convenience must favour the granting of interim relief; and the absence of any alternative remedy available to the applicant (see Setlogelo v Setlogelo 1914 AD 221). Setlogelo was the subject of more recent commentary and application by the Constitutional Court in National Treasury and others v Urban Tolling Alliance and others 2012 (6) SA 223 (CC), where the court said:

Under the Setlogelo test, the prima facie right claimant must establish is not merely the right to approach a court in order to review an administrative decision. It is a right to which, if not protected by an interdict, irreparable harm would ensue. An interdict is meant to prevent future conduct and not decisions already made. The requirements for a final interdict are well-established. An applicant seeking final relief must establish a clear a right; an injury actually committed or reasonably apprehended (in the form of an actual or threatened unlawful infringement of the clear right that the applicant asserts); and the absence of similar protection by any other ordinary remedy.

[6] One of the fundamental purposes underlying the LRA is the expeditious and efficient resolution of labour disputes. The intention is that workplace disciplinary proceedings are informal, and provide the employee with nothing more than an opportunity to respond to any allegations of misconduct made by the employer. The LRA then provides for referral to the CCMA [order bargaining Council’s jurisdiction] and an attempt at conciliation, failing which the aggrieved employee may refer the dispute to arbitration. It is significant that the Act does not include a provision equivalent to section 43 of the 1956 LRA, which provided the specific procedure for status quo relief pending the final determination of a dispute. The intention clearly was that no similar provision was necessary given the new dispute resolution structure, complete with time limits within which disputes were required to be referred, conciliated, arbitrated and the period within which arbitration awards were to be issued. This is not to say that the LRA does not confer jurisdiction on this court to grant interim orders pending the determination of disputes by the CCMA, intervention is limited to the most exceptional cases, where a grave injustice would otherwise result.

[7] The present case is not exceptional and does not warrant intervention. The applicant’s primary complaint is one regarding unfair procedure, indeed, he contends that no procedure was adopted at all. To the extent that the applicant’s counsel submitted that a refusal to intervene in the present circumstances would have the result that on scrupulous employers would be encouraged simply to dismiss employees without affording them a right to be heard, the purpose of the LRA and the code of good practice is to make clear the standard required, and the consequences of a failure to comply with it. Those employers who fail to observe procedural norms will be held to account. On the other hand, the respondents contend that the applicant committed acts of serious misconduct and that it was entitled, after considering a report by the auditor general, to terminate the applicant’s employment. The respondent submits further that even if the applicant’s dismissal is found to be procedurally unfair, that he would not be entitled in those circumstances to the remedy of reinstatement. These are matters best dealt with in the CCMA.

[8] In summary, the applicant has no prima facie right to be reinstated, and he has an adequate alternative remedy in the form of the referral of the dispute to the CCMA, the remedy that he has already invoked. The application thus tends to be dismissed.

[9] In relation to costs, section 162 provides that the court may make orders for costs according to the requirements of the law and fairness. Ordinarily, the court is hesitant to make orders for costs against aggrieved individuals who in good faith pursue their interests against their employers. On the other hand, the present application borders on an abuse of the process of this court. I will afford the applicant the benefit of the doubt with an order to the effect that each party bears its own costs.

I make the following order:

1.The application is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa

REPRESENTATION

For the applicant:

R Venter

Instructed by:

Mohale Inc.

For the respondents:

P Kirstein

Instructed by:

JF Van Graaf & Van der Wateren