Tshoke v Chief Executive Officer of the National Youth Development Agency and Others (J 600/2020) [2020] ZALCJHB 199 (20 July 2020)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: J 600/2020

JULIET TSHOKE Applicant and THE CHIEF EXECUTIVE OFFICER OF THE NATIONAL YOUTH DEVELOPMENT AGENCY THE CHAIRPERSON OF THE BOARD OF THE NATIONAL YOUTH DEVELOPMENT AGENCY MINISTER OF WOMEN, YOUTH AND PERSONS WITH DISABILITIES First Respondent Second Respondent Third Respondent

Heard: 14 July 2020

Delivered: 20 July 2020

Summary: Interim relief should not be granted in cases where the relief sought is effectively final relief.

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 20 July 2020.

JUDGMENT

PRINSLOO, J

Introduction

[1] This application was filed on 29 June 2020 and is opposed by the

First Respondent (the Respondent).

[2] The matter was initially set down for hearing on 7 July 2020 when it was postponed to 10 July 2020, when it was again postponed to 14 July 2020, when the parties, due to the Covid-19 lockdown measures,

presented arguments via Zoom.

Urgency

[3] The Applicant approached this Court on an urgent basis for relief

which I will fully deal with infra.

[4] The Respondent took issue with urgency and as this application is

brought on an urgent basis, urgency is the first hurdle that the Applicant has to overcome.

[5] The relevant portion of Rule 8 of the Rules for the Conduct of Proceedings in the Labour Court provides that:

„(1) “A party that applies for urgent relief must file an application that complies with the requirements of rules 7(1), 7(2), 7(3) and, if applicable, 7(7).

(2) The affidavit in support of the application must also contain-

a) the reasons for urgency and why urgent relief is necessary;

b) the reasons why the requirements of the rules were not complied with, if that is the case;‟

[6] An applicant that approaches the court on an urgent basis essentially seeks an indulgence and to be afforded preference in order to prevent the prejudice and harm that may materialise or persist, if the conduct complained of continues. Central to a determination of whether a matter is urgent is whether the applicant has in the founding affidavit, set forth explicitly, the circumstances which

render the matter urgent, and the reason why substantial relief cannot be attained at a hearing in due course. Thus, it is required of the applicant adequately, to set out in her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary[1].

[7] I have considered the facts and arguments placed before this Court in support of and in opposition of urgency in light of the applicable principles. The Respondent’s arguments against urgency are not without merit. The Respondent also raised an issue regarding the citation of the parties before Court, which point is also not entirely without merit. However, I am inclined to exercise my discretion to deal with this matter notwithstanding the lack of urgency. This matter was enrolled for hearing on 7 July, 10 July and 14 July 2020, when it was fully argued and received judicial

attention. If it is struck off the roll for lack of urgency, as it should be, it will in all probability be enrolled in the normal course, meaning that another judge would have to spend time on this matter and another Court day will be allocated for it, in circumstances where three court dates had already been allocated and judicial resources had been spent on this matter.

[8] Judicial resources are scarce and limited and in my view, this matter

lacks merit to the extent that it should be put out of its misery sooner rather than later and it should not make its way back to this Court in the ordinary course. No other Court should be burdened to deal with it, therefore I will deal with “Part A” of this application, despite the lack of urgency. It is evident from the papers that there is no “Part B”.

Relief sought

[9] The relief sought in prayer 2 of the Applicant’s notice of

motion reads as follows:

“The Respondents are interdicted from unlawfully terminating the employment contract of the applicant pending an application in the above Honourable court in terms of the letter issued by the applicant (sic) purporting to do so pending the outcome of an action instituted in this Honourable Court under case number J 600/2020, date to be allocated by the registrar of the above Honourable court in due course.”

[10] The Respondent took issue with the relief sought in that the Applicant purports to seek interim relief when she is effectively seeking final relief. The Respondents submitted that the Applicant has devised a plan to secure future remuneration from her employer by initiating an application for interim relief pending the outcome of an application that will either be dismissed or withdrawn in due course.

[11] I canvassed this issue with Mr Mabaso, counsel for the Applicant, as I was of the view that there is merit in the Respondents‟ submission regarding the final nature of the relief sought. Mr Mabaso submitted that the Applicant will challenge the lawfulness of the termination of her contract in due course and what she is effectively seeking in this application, is for a retention of the status quo, thus for her to remain employed pending the determination of the question whether the termination of her contract was lawful or not. He further submitted that she should remain employed and should her case ultimately be unsuccessful, it will be the end of her employment, but if she is ultimately successful, there will be no prejudice to any of the parties. Mr Mabaso argued that the question as to whether the termination of the Applicant‟s contract was lawful or not, is not a question for this Court to decide, but is to be decided in the main application, still to be filed, and that this Court should concern itself only with the interim relief that the Applicant seeks.

[12] There are a number of difficulties with Mr Mabaso‟s submissions. The first and the foremost is the relief sought in prayer 2 of the notice of motion. Evidently the Applicant seeks an order interdicting the Respondents from unlawfully terminating her employment contract, pending the outcome of an action to be instituted in this Court under case number J 600/2020.

[13] This is supported by her founding affidavit wherein the Applicant explained that she seeks an interim interdict to prevent the Respondents from unlawfully terminating her contract of employment, pending the outcome of an action to be instituted. It is evident that the Applicant does not seek an order to retain the status quo pending the determination of the question whether the termination of her contract was lawful or not.

[14] Secondly, the relief sought by the Applicant requires of this Court to make a determination as to whether the termination of her contract was unlawful or not, thus an order interdicting the „unlawful termination.‟

[15] This Court cannot grant the interdict sought by the Applicant without a consideration and determination of the question as to whether the termination of her contract was lawful or not. Once this question is determined and decided, there is no reason or basis in law for the Applicant to approach this Court again for a determination of the same issue. The filing of a „main application‟ seeking a determination of the question whether the Applicant’s contract

was lawfully terminated, will serve no purpose as the issue would have been decided and this Court would be functus officio.

[16] Thirdly, granting interim relief in relation to the Applicant’s claim as it appears from the papers before me, would have an absurd result. If the Applicant ultimately fails in the application or action she intends to bring, the result of an interim order restoring the status quo would be that the Applicant remained employed and the Respondents remained liable to pay her remuneration for as long as it takes to finalise the litigation which she intends to institute, without any legal basis for that.

[17] Fourthly, there is no other application / action pending before this Court, nor is there any indication of when the Applicant intends to launch same.

[18] Lastly, it will be in the interest of justice as well as the parties not to delay the final determination of the relief sought by the Applicant.

[19] The effective relief that the Applicant seeks is final in nature and there is no reason for the Applicant not to pursue final relief. For the aforesaid reasons I will deal with the application as an application for a final interdict.

Material facts

[20] The sequence of events is relevant to the merits of this application and needs to be placed in context. It appears from the affidavits placed before this Court, that the following facts are common cause:

[21] In July 2015, the Applicant’s employer, the National Youth Development Agency (NYDA) conducted interviews for the position of Executive Director: Corporate Services, for which the Applicant was the successful candidate. In August 2015, an offer of appointment was issued to the Applicant, containing inter alia, the following conditions:

21.1 Her appointment was subject to her concluding a contract of employment prior to commencing her duties;

21.2. Her appointment was for a fixed term period of three years and was to terminate on 31 July 2018.

[22] On 3 August 2015, the Applicant accepted the position as offered to her on the conditions stated in the aforesaid letter and she signed a contract of employment. The Applicant’s contract was for a fixed term period of three years.

[23] On 25 February 2016, the NYDA Board resolved that the duration of the Applicant’s employment be extended by two years, after a decision was taken that the duration of fixed term contracts for executive directors, senior managers and managers be elevated from three to five years.

[24] On 8 March 2015, a letter was issued to the Applicant regarding the extension of her contract. The letter referred to the Applicant’s existing employment agreement, which commenced on 1 August 2015, with

the termination date of 31 August 2018 and recorded that the Board had resolved to extend her contract by a period of two years, to expire on 31 July 2020. The Applicant was informed that all other clauses in the existing employment agreement would be applicable to the extension.

[25] On 30 March 2016, the Applicant signed the extension letter and confirmed that she accepted the extension, as outlined in the letter dated 8 March 2016. The effect of this was that the duration of the Applicant’s contract was extended until 31 July 2020 and that the remainder of the terms and provisions of her contract of employment remained intact.

[26] On 7 July 2016, a letter of redeployment was issued to the Applicant. In the letter she was informed that considering the challenges facing the NYDA, particularly within the corporate services division, and in order to take the organisation forward in line with the turnaround strategy, that it would be in the best interest of the organisation to redeploy her from the position of executive director: corporate services to the position of executive director: planning and strategy. The Applicant was further informed that her redeployment was effective from 8 July 2016 and that it was within her current terms and conditions of employment.

[27] The Respondent’s case is that the Applicant is fully aware of the fact that her contract of employment is due to expire on 31 July 2020, by effluxion of time and as per the agreement between the parties. There is nothing unlawful about the agreement or the termination thereof.

Analysis

[28] The Applicant seeks an order to interdict the Respondents from unlawfully terminating her contract of employment. I have already dealt with the reasons why the application is to be treated as one for final relief and not interim relief.

[29] It is trite that a litigant is required to set out all material facts on which he or she relies in his or her founding affidavit and that a case cannot be made out in reply or in the heads of argument. In casu, material submissions were made in the Applicant’s heads of argument on aspects that are nowhere to be found in the Applicant’s founding affidavit. I canvassed this phenomenon with Mr Mabaso during argument and he submitted that it was an oversight not to include the aspects which he raised for the first time in his heads of argument in the Applicant’s affidavit. This Court is to consider the case made out in the affidavits and cannot consider submissions made in heads of argument that are not placed before Court in the pleadings.

[30] It is further trite than in order to succeed in obtaining final interdict, the Applicant has to satisfy the following requirements: she must demonstrate a clear right, a well-grounded apprehension of irreparable harm and the absence of any alternative remedy.

[31] I will deal with the requirements in turn.

Clear right

[32] Whether or not the Applicant has a right is a matter of substantive law: the onus is on the Applicant to establish on a balance of probability the facts and evidence which prove a clear and definite right in terms of substantive law. The Applicants also have to prove that the right is a legal right and a right which can be protected[2].

[33] The Applicant submitted that she has a right to prevent the termination of her employment prematurely, which right she has at common law and as a constitutional right, that will be violated should the Respondents not be interdicted from terminating her contract. She also stated that she is entitled to the relief that she seeks in “the absence of reasonable conduct for a meaningful opportunity for engagement” with the NYDA.

[34] For purposes of the Applicant’s case, she has to show that she has a clear right that her contract may not be terminated on 31 July 2020 and that she has a right to engagement with the NYDA prior to the termination of her contract.

[35] The question is: where is the right that the Applicant seeks to enforce? She alleged that she has a constitutional right and a right at common law that prevents the termination of her employment prematurely. The Applicant made no further averments as to which constitutional or common law rights she referred to or relied upon and in the absence of any reference to specific rights, the obvious starting point should be the terms of the contract.

[36] The Applicant’s case is as follows: The redeployment letter of 7 July 2016 confirmed a new appointment, which introduced a new role and responsibilities, effective from 8 July 2016, which consequently brought into existence an engagement and contract for five years, thus effective until July 2021. As the NYDA failed to conclude a written contract for the new position, she was by implication, permanently employed. In her replying affidavit, the Applicant’s case is that she was “all along under the impression that I was occupying a permanent position.”

[37] The Respondent disputed that the letter of 7 July 2016 brought into existence a new contract for five years as the Applicant’s redeployment was specifically within the „current terms and conditions‟ of her employment.

[38] On 20 May 2020, the Applicant received a letter that her contract would cease on 31 July 2020. Her complaint is that no engagement or negotiation was conducted prior to this decision, as per the conditions of her employment. She stated that she failed to understand the premature termination of her contract as no business re-engineering process took place, nor was she told about a change to the NYDA environment.

[39] The Respondent stated that there was no need to negotiate or engage the Applicant as no decision was taken, but that the parties had already agreed on the termination date of 31 July 2020 and the letter of 20 May 2020, did not terminate the Applicant’s contract, it was merely a reminder of the termination date that the parties had

agreed to. The Applicant’s contract is to terminate on

31 July 2020, as agreed, and that does not constitute a premature termination, or a decision taken by the employer.

[40] In casu, the Applicant has entered into a fixed term contract of employment with the NYDA. Clause 2.1 of the contract provides that the Applicant is “appointed on a fixed term whereby the employee’s services shall continue until the term of the contract has expired consequent upon the expiration of time, or until it is terminated in terms of the provisions of this agreement or for any other reason recognised in law.” It is evident that the contract was to terminate initially on 31 July 2018, but was extended for a further period of two years and that the termination date is 31 July 2020.

[41] The Applicant has to prove that the terms of her contract of employment do not allow for the termination of her contract on 31 July 2020 and that it provides for a process whereby she is to be engaged in some form of negotiation prior to the termination of her contract.

[42] The expiry of the Applicant’s fixed term contract is provided for in clause 2.1 of her contract and the contract does not provide that there should be a process of engagement prior to the termination of the contract, due to the effluxion of time.

[43] The Applicant’s case however goes further than the terms of the contract, which clearly provide for the termination of her fixed term contract on 31 July 2020. Her case is not that clear – on the one hand she alleges that the redeployment letter of 7 July 2016 brought into existence a new contract for five years, thus effective until July 2021 and on the other hand, she stated that she was all along under the impression that she was occupying a permanent position.

[44] There is no merit in this and the Applicant’s submissions in this regard are opportunistic, absurd and ill-advised.

[45] Clause 2.4 of her contract stipulated that she would be primarily based at the head office and that she may be required to perform any other duties or work at any other places that may be reasonably required by the NYDA. In clause 2.8, the parties agreed that the Applicant’s general conditions of service and benefits may be changed from time to time in the sole discretion of the NYDA. Clause 16.2 of the Applicant’s contract provided that she understood

and accepted that she could be transferred to any division, department or section within the workplace, provided that her status

and remuneration shall not be decreased, unless mutually agreed to by the parties, except in the case of legal demotion.

[46] The Respondent’s version that the Applicant’s redeployment was in accordance with clauses 2.4, 2.8 and 16.2.1 of her employment contract, was not disputed in the Applicant’s replying affidavit.

[47] The Applicant’s averment that the letter of 7 July 2016 brought into existence a new contract for five years, is absurd. The letter made it clear that her redeployment was specifically within the „current terms and conditions‟ of her employment. Her contract specifically made provision inter alia, that she may be required to perform any other duties or work at any other places that may be reasonably required by the NYDA.

[48] The Applicant was redeployed in 2016 on the same terms and conditions of her fixed term contract. She dismally failed to place any facts before this Court to support her version that a new contract came into existence when she was redeployed. As to where on earth she got the impression that she was all along occupying a permanent position, is not explained.

[49] It is evident to me that this application was brought as an opportunistic attempt to secure further employment, in the face of a fixed terms contract, without any consideration of the terms of the contract and the applicable legal principles.

[50] The Applicant failed to identify the right which entitles her to the relief in the form of an interdict that she seeks. At best she placed reliance on her own opportunistic and wrong interpretation of her fixed term contract and as such she dismally failed to cross the first hurdle for an interdict.

Irreparable harm

[51] The Applicant stated that she will suffer harm if the interdict is not granted, because she will not be in a position to defend herself against the actions of the First and the Second Respondents. She further alleged that they have failed to comply with the law, the spirit of the letter of the contract of employment and the code of the NYDA.

[52] The Respondent’s case is that the Applicant has entered into a fixed term contract, which contract is coming to an end on 31 July 2020. There is no basis to accuse the Respondents of failing to comply with the employment contract.

[53] In my view, the Applicant’s averment that she would suffer harm because she will not be in a position to defend herself against the actions of the Respondents, is disconnected from the law[3], the reality and the facts before me.

[54] When a fixed term contract terminates on the date of its expiry, as agreed between the parties, the contract ends automatically in accordance with the intention of the parties and there is no action from the employer’s side to terminate the contract.

[55] In casu, the Applicant’s contract will terminate on 31 July 2020, in accordance with the terms of the agreement and there is no further action or other initiative to be undertaken by the NYDA that will have the consequence of terminating the contract or which action would be the proximate cause of the termination of the Applicant’s employment. There is simply no act that the NYDA will engage in to bring the Applicant’s fixed term contract to an end and there are no actions taken by the Respondents that she

could be defending herself against.

[56] This averment is made without any consideration of the facts or the reality. In any event, the Applicant dismally failed to tell this Court what actions she needed an opportunity to defend herself or what the relevance or non- compliance with the code of NYDA is. To the extent that she claims that the Respondents failed to comply with her contract, I have already found that there is no merit in that.

[57] The Applicant has not made out a case to show that she will suffer irreparable harm if the relief she seeks in this application is not granted.

Alternative remedy

[58] The Applicant stated that she has no alternative remedy as she sought to engage the Respondents, but that it was in vain and that she has no alternative but to seek relief from this Court.

[59] The Applicant’s alternative remedy is not limited to an engagement with the Respondents and she has other remedies available to her.

[60] The Applicant has not made out a case that she has no alternative remedy.

[61] In summary: The Applicant failed to satisfy the requirements of the interdict that she seeks and it follows that her application has to fail.

Costs

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

[63] Insofar as costs are concerned, this Court has a broad discretion in terms of section 162 of the Labour Relations Act[4] to make orders for costs according to the requirements of the law and fairness.

[64] In Zungu v Premier of Kwa Zulu-Natal and Others[5] the Constitutional Court confirmed the rule of practice 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.

[65] 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.

[66] In Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others[6] 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.‟

[67] This is a case where the Court has to strike a balance.

[68] In casu, both parties sought a cost order against the other, with the Respondent seeking a punitive cost order against the Applicant.

[69] In my view, this is a matter where a cost order would be appropriate. This application was drafted without due consideration of the provisions of the Applicant’s contract and some averments made were not only unsubstantiated, but also not sustainable in law.

[70] An appropriate award of costs is a method of ensuring that much earnest thought and consideration goes into decisions to litigate in the Labour Court. 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.

[71] I am alive to the fact that the Applicant is an individual, but I cannot ignore the fact that she approached this Court on an urgent basis with an opportunistic and meritless application. Fairness dictates that the Respondent cannot be expected to endure the costs of defending litigation on an urgent basis that ought not to have been instituted in the first place.

[72] In the present circumstances, the interests of justice require that the Applicant pays at least a portion of the Respondent's costs. In my view, a sum equivalent to 50% of the costs will best serve those interests.

[73] In the premises, I make the following order: Order:

1. The urgent application is dismissed.

2. The Applicant is ordered to pay the costs of the application, limited to 50% of the First Respondent’s taxed costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate J J Mabaso

Instructed by:

Fran Mashele Inc Attorneys

For the First Respondent: Mr Mkwibiso of DM5 Inc Attorneys

[1] Transport and Allied Workers Union of SA vs Algoa Bus Company (Pty) Ltd (2015) 36 ILJ 2148 (LC).

[2] The Civil Practice of the High Courts of South Africa, Herbstein & Van Winsen, 5th edition, page 1457– 1463.

[3] In Ouwehand v Hout Bay Fishing Industries (2004 25 ILJ 731 (LC)) it was held that: “It is accordingly incumbent upon an employee to establish on a balance of probabilities, where that employee claims to have been dismissed in terms of s 186(a), some overt act by the employer that is the proximate cause of the termination of employment”.

[3] In Ouwehand v Hout Bay Fishing Industries (2004 25 ILJ 731 (LC)) it was held that:

“It is accordingly incumbent upon an employee to establish on a balance of probabilities, where that employee claims to have been dismissed in terms of s 186(a), some overt act by the employer that is the proximate cause of the termination of employment”.

[4] Act 66 of 1995, as amended.

[5] (2018) 39 ILJ 523 (CC) at para 24.

[6] (2012) 33 ILJ 2117 (LC) at para p 2119 I-J.