Tshepo v South African Police Service and Others (J 656/21) [2021] ZALCJHB 155 (25 June 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 656/21

In the matter between:

RASILA TSHEPO

Applicant

and

THE SOUTH AFRICAN POLICE SERVICE

First Respondent

LT COL MATHE N.O

Second Respondent

THE NATIONAL COMMISSIONER

SOUTH AFRICAN POLICE SERVICE

Third Respondent

THE GAUTENG PROVINCIAL COMMISSIONER

SOUTH AFRICAN POLICE SERVICE

Fourth Respondent

THE MINISTER OF POLICE

Fifth Respondent

Heard: 17 June 2021

Delivered: 25 June 2021

In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be on 25 June 2021.

JUDGMENT

PRINSLOO, J

Background:

[1] The Applicant was employed by the First Respondent (SAPS) since July 2008 and he held the rank of sergeant. He was presented with a notice of investigation in terms of the South African Police Service Discipline Regulations[1] (the Regulations) on 15 March 2019 and on 18 February 2021 he was served with a notice to attend a disciplinary hearing.

[2] The disciplinary hearing took place on 28 May 2021 and the Applicant was found guilty in terms of Regulation 5(3)(gg) and 5(3)(u) of the Regulations for neglecting his duty or performing his functions in an improper manner and for contravening the code of conduct. He was informed about the outcome of the disciplinary hearing and on the same date he was dismissed.

[3] The Third Respondent confirmed the Applicant’s dismissal on 13 June 2021.

This application

[4] The Applicant approached this Court on an urgent basis for the following relief, as set out in his notice of motion:

2. Interdicting the Third and/or Fourth Respondent(s) from confirming the dismissal of the Applicant under Lenasia South Dr 12/2019 number as indicated orally by the Chairperson of the hearing on the 28 May 2021, hereinafter referred to the Second Respondent.

3. The ruling by the Second Respondent on Lenasia South DR 12/2019, under the auspices of the Third and/or Fourth Respondent(s), be set aside for gross irregularity and gross injustice.

4. Alternatively, the dismissal of the Applicant by the First Respondent be set aside or suspended pending the finalization of a formal hearing at the Safety and Security Bargaining Council (the SSSBC).

5. An order compelling the First Respondent to continue allowing the Applicant to work in the employ of the First Respondent and that the Applicant be paid his remuneration and other benefits pending the decision of the Safety and Security Bargaining Council (the SSSBC); alternatively pending the decision of this Honorable Court.

6. Alternatively, an order setting aside the Third and/or Fourth Respondent(s)’s confirmation in the event it has already been confirmed.

7. Ordering Respondents to pay the costs of this application on attorney and client scale if opposed, jointly and severally, the one paying, the other to be absolved.

[5] The Respondents opposed the application and raised a jurisdictional point in limine, which I will deal with infra.

[6] In argument I canvassed the relief sought with Mr Mihlanga, for the Applicant. Mr Mihlanga conceded that no dispute was referred to the Safety and Security Bargaining Council (the SSSBC). As a result, there is no dispute pending at the SSSBC, let alone one that awaits the finalisation of a formal hearing or a decision. This reality renders the relief sought in prayer 4 of the notice of motion wholly incompetent and the relief sought in prayer 5 partly incompetent.

[7] As the decision to dismiss the Applicant was confirmed on 13 June 2021, the relief sought in prayer 2 became moot.

[8] The remaining relief to be considered by this Court is the relief set out in prayers 3, partly 5, 6 and 7 of the notice of motion.

The relief sought

[9] Effectively the relief the Applicant seeks is for the Second Respondent’s (chairperson) ruling to dismiss him, as well as the confirmation thereof, to be set aside and that he be allowed to continue with his employment, including to be paid his remuneration and other benefits. In short, the Applicant seeks for the outcome and consequences of his disciplinary hearing to disappear and to be reinstated in the employ of SAPS.

[10] The basis upon which the Applicant seeks to set aside the chairperson’s ruling, is that it constitutes a gross irregularity and a gross injustice. Evidently from the relief sought, the Applicant is not seeking the review of the ruling, but merely the setting aside thereof. It is unclear on what basis this Court can merely set aside the ruling, without engaging in a process of review.

[11] The Respondents took issue with jurisdiction and submitted that the Applicant’s dispute must be referred to the SSSBC for

adjudication. The obvious question that leaps out is whether this Court has jurisdiction to grant the relief sought by the Applicant.

Jurisdiction

[12] The Applicant submitted that the Court has jurisdiction to grant the relief sought as the cause of action arose wholly within the

jurisdiction of this Court and by virtue of the provisions of section 157(2)(a), read with (b) and (c) of the Labour Relations Act[2] (the LRA).

[13] Section 156 of the LRA provides that this Court has jurisdiction in all the provinces of South Africa, wherefore it is strictly speaking not necessary to aver that a cause of action arose within the jurisdiction of the Court, as this Court has national jurisdiction. It is rather necessary for the cause of action to fall within the ambit of the jurisdiction of the Labour Court and for averments to be made in that regard.

[14] In Shezi v SAPS and Others[3](Shezi) the Court considered the issue of jurisdiction and held that:

This court is a creature of statute. Its inherent powers, authority and standing are equal to that of a Division of the High Court, but only in relation to matters under its jurisdiction (see section 151 (2) of the LRA). There is a misconception that the court has jurisdiction over all disputes that arise in the context of an employment relationship. It does not. Some 20 years ago, the Judge President bemoaned the fact that the Court did not enjoy jurisdiction over all employment-related disputes, and urged the legislature to remedy this shortcoming. Regrettably, the legislature did not respond to this call and in broad terms, the jurisdiction of this court remains to be determined in terms of the Act as it was drafted in 1996.

[15] The Labour Court derives its jurisdiction from section 157(1) and (2) of the LRA and its powers from section 158 thereof.

[16] In Moropane v Gilbeys Distillers and Vintners (Pty) Ltd and Another[4] the Court held that:

I must accordingly turn to the question whether this court has jurisdiction to entertain the present application. This question is intimately intertwined with the question whether the applicant has a right to have the court intervene and come to his assistance at this stage. I might, at the outset state that if the court has the jurisdiction it would have the power to grant an appropriate remedy. …… But because it has a power does not mean that it has jurisdiction. This proposition is sometimes overlooked.’

[17] In Natal Sharks Board v SA Commercial Catering and Allied Workers Union and Others[5] the Court held that “Powers and jurisdiction are separate concepts that should not be confused.” This is a very important distinction, because where the Court has a power, it does not automatically follow that it has jurisdiction.

[18] The question whether this Court has jurisdiction to grant the relief sought by the Applicant, is to be determined on the basis of his pleadings. This was confirmed by the Constitutional Court in Gcaba v Minister for Safety and Security and others[6](Gcaba) where it was held that:

Jurisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa, and not the substantive merits of the case. If Mr Gcaba’s case were heard by the High Court, he would have failed for not being able to make out a case for the relief he sought, namely review of an administrative decision. In the event of the court’s

jurisdiction being challenged at the outset (in limine), the applicant’s pleadings are the determining factor. They contain

the legal basis of the claim under which the applicant has chosen to invoke the court’s competence. While the pleadings –

including in motion proceedings, not only the formal terminology of the notice of motion, but also the content of the supporting

affidavits - must be interpreted to establish what the legal basis of the applicant’s claim is, it is not for the court to say that the facts asserted by the applicant would also sustain another claim, cognizable only in another court.

Section 157(1) of the LRA

[19] Section 157 (1) provides that subject to the Constitution and section 173, and except where the LRA provides otherwise, the Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of the LRA or any other law are to be determined by this Court. What this requires is that a party referring a dispute to this Court for adjudication must necessarily point to a provision of the LRA or some other law that confers jurisdiction on this Court to adjudicate the dispute.

[20] It is thus incumbent on an applicant referring a matter to this Court for adjudication, relying on the provisions of section 157(1), to identify the provision in the LRA, or any other law, which confers jurisdiction on this Court to entertain the claim. What is required is a determination of the legal basis for the claim, and then an assessment of whether the Court has jurisdiction over it[7].

Section 157(2 of the LRA

[21] In casu the Applicant is not relying on the provisions of section 157(1) of the LRA. His pleaded case is that this Court has jurisdiction to entertain his case in accordance with the provisions of section 157(2) (a) – (c) of the LRA.

[22] Section 157(2) gives the Labour Court jurisdiction in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution and arising from employment and labour relations and any dispute over the constitutionality of any executive or administrative act or conduct or any threatened executive or administrative act or conduct by the State in its capacity as an employer. Section 157(2) refers to a 'fundamental right entrenched in Chapter 2 of the Constitution[8]’ and it has been accepted that it refers to a 'fundamental right' as set out in the 'Bill of Rights'[9].

[23] In Gcaba the Constitutional Court held that:

Section 157(2) confirms that the Labour Court has concurrent jurisdiction with the High Court in relation to alleged or threatened violations of fundamental rights entrenched in chapter 2 of the Constitution and arising from employment and labour relations, any dispute over the constitutionality of any executive or administrative act or conduct by the state in its capacity as employer and the application of any law for the administration of which the minister is responsible. The purpose of this provision is to extend the jurisdiction of the Labour Court to disputes concerning the alleged violation of any right entrenched in the Bill of Rights which arise from employment and labour relations, rather than to restrict or extend the jurisdiction of the High Court. In doing so, s 157(2) has brought employment and labour relations disputes that arise from the violation of any right in the Bill of Rights within the reach of the Labour Court. This power of the Labour Court is essential to its role as a specialist court that is charged with the responsibility to develop a coherent and evolving employment and labour relations jurisprudence. Section 157(2) enhances the ability of the Labour Court to perform such a role.

Therefore, s 157(2) should not be understood to extend the jurisdiction of the High Court to determine issues which (as contemplated by s 157(1)) have been expressly conferred upon the Labour Court by the LRA. Rather, it should be interpreted to mean that the Labour Court will be able to determine constitutional issues which arise before it, in the specific jurisdictional areas which have been created for it by the LRA, and which are covered by s 157(2)(a), (b) and (c).

[24] It is trite that section 157(2) gives this Court jurisdiction to determine constitutional issues, arising from employment and labour relations. It is further trite that section 23 of the Constitution provides for fair labour practices and that the LRA was enacted to give effect to and regulate the fundamental rights so conferred by section 23 of the Constitution. To the extent that the LRA gives effect to the fundamental rights in section 23, an applicant is not entitled to place direct reliance on the Constitution, except to the extent that the constitutionality of the LRA is challenged or where the issue falls outside of its ambit.

[25] In Besani v Maquassi Hills Local Municipality[10] this Court summarised the position as follows:

The concurrent jurisdiction as provided for in section 157(2) of the LRA is exercisable when there is a violation of the designated

constitutional rights that occurs in one or other of the circumstances referred to in paragraphs (a)-(c)[11].

Section 157(2) refers to a 'fundamental right entrenched in Chapter 2 of the Constitution’ and it has been accepted that it refers to a 'fundamental right' as set out in the 'Bill of Rights'[12].

The first enquiry relates to whether an allegation is made that a fundamental right has been infringed or whether a threat to violate such a right has been made.

As per Gcaba pleadings are the determining factor and the content of the supporting affidavits must be considered to establish what the legal basis of the applicant’s claim is. It is not for the court to say that the facts asserted by the applicant would also sustain another claim.

A perusal of the Applicant’s papers, that is the notice of motion, the founding and replying affidavits and the heads of argument showed that no allegation is made that a fundamental right had been infringed. His case throughout is that the correct process to address the alleged irregularity in his appointment is set out in section 56(5) of the Systems Act and the MEC has not taken appropriate steps and thus the council resolution is invalid and contrary to the law.

There is no general jurisdiction afforded to the Labour Court in all and any employment matter. Section 157(2) affords concurrent jurisdiction to the Labour Court and the High Court in limited circumstances and in the matters referred to therein.

The Applicant has to tell this Court what fundamental rights as entrenched in Chapter 2 of the Constitution had been violated or are being threatened. In casu no allegations are made that a fundamental right had been infringed and in the absence of such averments, this case does not fall within the ambit of section 157(2) of the LRA.

Accordingly, this Court does not have jurisdiction. In view of my finding on jurisdiction, I need not to deal with the merits of the case.

[26] The Applicant, relying on the provisions of section 157(2) of the LRA, has to tell this Court which fundamental rights, as entrenched in Chapter 2 of the Constitution, had been violated or are being threatened. I already alluded to the fact that the content of the Applicant’s supporting affidavits is a determining factor to establish what the legal basis of his claim is.

What is the case made out in the Applicant’s papers?

[27] A perusal of the Applicant’s papers showed that he made no more than extremely vague averments to the effect that his fundamental rights, as entrenched in Chapter 2 of the Constitution, were violated during his disciplinary enquiry. Evidently and in view of the aforesaid authorities he had to do more to bring his case within the ambit of section 157(2) of the LRA.

[28] Be that as it may, the Applicant’s case is that there was no evidence produced in the disciplinary hearing to prove a case against him, therefore the chairperson’s ruling that he was guilty and be dismissed, is an unjustified violation of his constitutional rights.

[29] In his founding affidavit the Applicant referred to the charges levelled against him, the evidence available in respect of each charge, his defence and the reasons why he believes that the chairperson’s findings were irregular and amounted to a miscarriage of justice. It is evident that the Applicant is challenging the chairperson’s findings of guilt on the basis that there was not sufficient evidence to prove the case against him and effectively that he should not have been found guilty or dismissed.

[30] The Applicant stated that with the evidence that was presented at his disciplinary hearing, there is no possibility that he could be found guilty on any of the charges levelled against him. In fact, the Applicant went so far as to state that the Respondents have no case against him “Yet, I am dismissed unfairly so.”

[31] It is evident from the Applicant’s pleaded case, stripped from all the allegations regarding the alleged injustice and gross irregularity, that he is challenging the substantive fairness of his dismissal. Put differently, he disputes that there was a fair reason for his dismissal, as there was no evidence to support a finding that he was guilty and the imposing of a sanction of dismissal. This is the essence of the Applicant’s case.

[32] The question is whether such a dispute could be adjudicated by the Labour Court as Court of first instance. The answer to this is no.

[33] As far back as 2008 the Constitutional Court had held in Chirwa v Transnet Ltd & others[13] that:

The LRA provides procedures for the resolution of labour disputes through statutory conciliation, mediation and arbitration, for which the CCMA is established; and establishes the Labour Court and the Labour Appeal Court as superior courts, with exclusive jurisdiction to decide matters arising from it. Unfair dismissals and unfair labour practices are dealt with in chapter VIII. Section 188 provides that a dismissal is unfair if the employer fails to prove that the dismissal was for a fair reason or that the dismissal was effected in accordance with a fair procedure. Item 9 in schedule 8 to the LRA sets out the guidelines in cases of dismissal for poor work performance.

Ms Chirwa's claim is that the disciplinary enquiry held to determine her poor work performance was not conducted fairly and therefore her dismissal following such enquiry was not effected in accordance with a fair procedure. This is a dispute envisaged by s 191 of the LRA, which provides a procedure for its resolution: including conciliation, arbitration and review by the Labour Court. (Own underlining)

[34] Section 185 of the LRA codified the fundamental right provided for in section 23 of the Constitution even further by providing inter alia that every employee has the right not to be unfairly dismissed. Section 188 provides that an employer must prove that there was a fair reason for dismissal (substantive fairness) and that any dismissal was effected in accordance with a fair procedure (procedural fairness). Any dispute about the existence or otherwise of a fair reason or a fair procedure must be referred to arbitration and determined in terms of section 191 by the CCMA or bargaining council having jurisdiction.

[35] The Constitutional Court held in Steenkamp and others v Edcon Ltd[14](Steenkamp) that:

The LRA created special rights and obligations that did not exist at common law. One right is every employee's right not to be unfairly dismissed which is provided for in s 185. The LRA also created principles applicable to such rights, special processes and fora for the enforcement of those rights. The requirement for the referral of dismissal disputes to conciliation is one of the processes created by the LRA. The CCMA, bargaining councils and the Labour Court are some of the fora. The principles, processes, procedures and fora were specially created for the enforcement of the special rights and obligations created in the LRA. Indeed, the LRA even provides for special remedies for the enforcement of those rights and obligations. The special remedies include interdicts, reinstatement and the award of compensation in appropriate cases. These special rights, obligations, principles, processes, procedures, fora and remedies constitute a special LRA dispensation.

[36] The Labour Appeal Court in Wardlaw v Supreme Mouldings (Pty) Ltd[15] confirmed that this court does not have jurisdiction in respect of disputes which must be referred to arbitration in terms of the provisions of the LRA:

It is clear from s 157(1) that the Labour Court does not have "exclusive jurisdiction where this Act provides otherwise". It has "exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined" by it. However, all of this is subject to the Constitution and s 173 of the Act. Section 173 of the Act deals with the jurisdiction of this court and is of no relevance to the issue before us. Section 157(5) is very important. It provides:

"(5) Except as provided in section 158(2), the Labour Court does not have jurisdiction to adjudicate an unresolved dispute if this Act requires the dispute to be resolved through arbitration.'

This provision lays down a general rule to which there is only one exception. The general rule is that "[t]he Labour Court does not have jurisdiction to adjudicate an unresolved dispute if this Act requires the dispute to be resolved through arbitration'.

This contemplates, for example, a dispute concerning the fairness of a dismissal where the reason for the dismissal as alleged by the employee is misconduct or alleged misconduct on the part of the employee. This means that as a general rule the Labour Court has no jurisdiction to adjudicate such a dispute.

[37] In Steenkamp the Constitutional Court confirmed that the principle that where the true nature of a dispute is one that concerns the breach of an obligation established by the LRA, a remedy must be sought in terms of the LRA and in accordance with the dispute resolution mechanisms established by the LRA. It was held that:

The second basis for my conclusion is that the applicant’s appeal should be dismissed is a principle that, for convenience, I call ‘LRA remedy for an LRA breach’. The principle is that, if a litigant’s cause of action is a breach of an obligation provided for in the LRA, the litigant as a general rule, should seek a remedy in the LRA. It cannot go outside of the LRA and invoke the common law for a remedy. A cause of action based on a breach of an LRA obligation obliges the litigant to utilise the dispute resolution mechanisms of the LRA to obtain a remedy provided for in the LRA.

[38] To make matters worse for the Applicant, Regulation 13 specifically provides that in the event that an employee has been found guilty and sanctioned, such employee may within the time period determined in the SSSBC Constitution and Rules refer the matter to the SSSBC for resolution.

[39] The Applicant is aware of the provisions of Regulation 13 and he knows that he has the right to refer his case to the SSSBC. However, his case is that Regulation 13 provides that he ‘may’ refer the matter to the SSSBC for adjudication, suggesting that there is an option to be exercised. In casu he had exercised his options and chose to rather invoke the provisions of section 157(2) of the LRA.

[40] The Applicant’s interpretation is astonishing and opportunistic. The word ‘may’ in Regulation 13 provides for two options: the one is to accept the outcome and the sanction imposed after a disciplinary hearing and to do nothing about it, the other is to challenge it. It is not compulsory to challenge the outcome and sanction imposed after a disciplinary hearing, therefore the inclusion of the word ‘may’. In the event that an employee elects to challenge the finding of guilt and the sanction imposed, the dispute has to be referred to the SSBC for resolution and the employee has no other ‘options’

to decide where and how the dispute is to be adjudicated.

[41] The Applicant is not blessed with the ‘option’ he believes he has to invoke the provisions of section 157(2). He claims that his dismissal was unfair, yet instead of approaching the SSBC and referring an unfair dismissal dispute as provided for not only in Regulation 13, but also in section 191 of the LRA, he approached this Court for urgent relief.

[42] Section 191 of the LRA provides that if a dispute concerns the unfair dismissal of an employee for reasons related to conduct or capacity, the CCMA or bargaining council must arbitrate the dispute. Section 157(5) of the LRA states very clearly that the Labour Court does not have jurisdiction to adjudicate an unresolved dispute if the LRA or any employment law requires the dispute to be resolved through arbitration.

[43] The Applicant is well aware of the fact that he has to challenge the fairness of his dismissal at the SSSCB, but he instead approached this Court for relief on the basis that he holds the view that the SSSBC “is a forum which is respectfully not suitable given the degree of urgency of the matter.” He further stated that although he is expected to refer his dispute to the SSSBC, “it will take a minimum of a year to get the outcome” and that such a delay would cause serious damage and prejudice to his financial situation.

[44] These statements are astonishing, but more so as they are made on legal advice. The Applicant’s financial prejudice, which is a prejudice experienced by every dismissed employee in the world, cannot confer jurisdiction upon this Court in circumstances where the LRA has put a specially crafted dispute resolution mechanism in place, which specifically provides for arbitration and excludes the Court’s jurisdiction to adjudicate this dispute at this stage.

[45] The Applicant cannot be permitted to circumvent the specific dispute resolution procedures created by the LRA when pursuing his unfair dismissal case.

[46] It is astonishing that the Applicant persisted with this application in the face of and in total disregard for the well-known authorities that made it clear that this Court does not have jurisdiction in an unfair dismissal dispute (except as provided for in section 191(5)(b)). It is nothing but an opportunistic abuse of process to persist with this claim, notwithstanding the Respondents’ objection and jurisdictional challenge. This is worse because the Applicant was legally represented and assisted in pursuing this urgent application, with no regard for the applicable principles and the jurisdiction of this Court.

[47] The Applicant should enforce his right not to be unfairly dismissed through the processes and procedures provided for in section 191 of the LRA.

[48] In summary: this case does not fall within the ambit of section 157(2) of the LRA and it is a matter to be arbitrated, for which this Court’s

jurisdiction is specifically excluded. Accordingly, this Court does not have jurisdiction to grant the relief sought by the Applicant.

Costs

[49] The last issue to be decided is the issue of costs.

[50] In so far as costs are concerned, this Court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of the law and fairness.

[51] The requirement of law has been interpreted to mean that the costs would follow the result. In considering fairness, the conduct of the parties should be taken into account and mala fides, unreasonableness and frivolousness are factors justifying the imposition of a costs order.

[52] It is evident from his papers that the Applicant seeks a punitive cost order against the Respondents. In argument Mr Mihlanga persisted with the argument that the Respondents should pay the costs on a punitive scale. No submissions were made as to why the Applicant should not be ordered to pay the costs.

[53] Ms Jagganath for the Respondents submitted that the Applicant should be ordered to pay the costs on a punitive scale. In support of her argument, she submitted that the Applicant made out no case for the relief he seeks and he ignored the Respondents’ position and advice from the onset that he should refer his case to the SSSBC. Instead he persisted with this application, which is nothing but an abuse of process and a waste of resources.

[54] In Zungu v Premier of Kwa Zulu-Natal and Others[16] the Constitutional Court confirmed that the rule that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand allowing those parties to bring to this Court (or oppose) cases that should not have been brought to Court (or opposed) in the first place.

[55] This is a case where the Court has to strike a balance, considering the requirements of law and fairness. The general accepted purpose of awarding costs is to indemnify the successful litigant for the expense he or she has been put through by having been unjustly compelled to initiate or defend litigation.

[56] In Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others[17] it was emphasized that:‘…unless there are sound reasons which dictate a different approach, it is fair that the successful

party be awarded its costs. The successful party has been compelled to engage in litigation and incur legal costs. An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in the Labour Court, whether as applicant in launching proceedings or as respondent opposing proceedings.’

[57] In my view this is a case where it is appropriate to make a cost order. A cost order is a method of ensuring that decisions to litigate in this Court are taken with due consideration of the law and the prospects of success.

[58] This application was indeed unnecessary and an abuse of process. The Applicant is well aware that his remedy lies at the level of the SSSBC, but because he views that as a process that would not suit him, he approached this Court on an urgent basis. Worse is that he was legally represented. This application was reckless and should not have been brought in the first place, alternatively should not have been persisted with after the Respondents’ opposing papers were received.

[59] This Court is ordinarily reluctant to make orders for costs against individuals, for whom the prospect of an adverse costs order may serve to inhibit the exercise of what they perceive as their rights. This is not an immutable rule.

[60] In casu, the Applicant brought an opportunistic and meritless application to this Court and fairness dictates that the Respondents, and ultimately the tax payers of this country, cannot be expected to endure enormous costs defending litigation where more thought and consideration had to be put in before approaching this Court, and that on an urgent basis.

[61] I am alive to the fact that the Applicant is an individual and that he is unemployed, but I cannot ignore the fact that he ultimately initiated this application in circumstances when he should not have done so. Unemployment is not a licence to approach this Court without merit and that on an urgent basis. The Applicant is the author of his own misfortune.

[62] In the present circumstances, the interests of justice require that the Applicant pays at least a portion of the Respondents’ costs. In my view, a sum equivalent to 20% of the Respondents’ costs will best serve those interests.

Order

In the premises, I make the following order:

1. The application is struck off the roll for lack of jurisdiction;

2. The Applicant is to pay the costs of the application, limited to 20% of the Respondent’s taxed costs.

__________________

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

On behalf of the Applicant:

Advocate Mihlanga

Instructed by:

Chauke S Attorneys

On behalf of the Respondents: Advocate Jagganath

Instructed by:

The State Attorney

[1] Promulgated in terms of section 34(1) of the South African Police Service Act No 88 of 1995.

[2] Act 66 of 1995 as amended.

[3] (2021) 42 ILJ 184 (LC) at para 9.

[4] 1998 19 ILJ 635 (LC) at 638 E-F.

[5] 1997 18 ILJ 1324 (LC).

[6] (2009) 30 ILJ 2623 (CC).

[7] See Shezi at par 10, Chirwa v Transnet Ltd [2007] ZACC 23; 2008 (4) SA 367 (CC) at par 155, Gcaba v Minister of Safety and Security (2010) 1 SA 238 (CC) para 75).

[8] Constitution of the Republic of South Africa, 1996.

[9] Walters v Transitional Local Council of Port Elizabeth and another (2000) 21 ILJ 2723 (LC).

[10] (2016) 37 ILJ 1386 (LC) at paras 31 – 38.

[11] M S M Brassey, Employment and Labour Law Vol 3 at A7:97.

[12] Walters v Transitional Local Council of Port Elizabeth and another (2000) 21 ILJ 2723 (LC).

[13] [2007] ZACC 23; 2008 (4) SA 367 (CC); (2008) 29 ILJ 73 (CC)

[14] [2016] 4 BLLR 335 (CC), (2016) 37 ILJ 564 (CC), 2016 (3) SA 251 (CC) at para 105.

[15] (2007) 28 ILJ 1042 (LAC)

[16] (2018) 39 ILJ 523 (CC) at para 24.

[17] (2012) 33 ILJ 2117 (LC) at para p 2119 I-J.