Tsibani v Estate Agency Affairs Board and Others (J642/2021) [2021] ZALCJHB 150 (24 June 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: J 642/2021

In the matter between:

LINDOKUHLE TSIBANI Applicant

and

THE ESTATE AGENCY AFFAIRS BOARD

First Respondent

JUSTICE LEBEA

Second Respondent

BALDWIN NDOU

Third Respondent

MINISTER IF HUMAN SETTLEMENTS WATER

AND SANITATION

Fourth Respondent

Heard: 18 June 2021

Delivered: 24 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 24 June 2021.

JUDGMENT

Introduction:

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

[2] The matter was enrolled for hearing on 18 June 2021 and due to the Covid-19 measures, the parties presented argument via Zoom.

[3] The First Respondent (the Respondent) filed an answering affidavit, wherein a number of relevant points in opposition to the relief sought, were raised. The Respondent also took issue with urgency.

[4] As the Applicant came knocking on the door of the urgent Court, she has to show that her application is indeed urgent and that it should be entertained by this Court. The issue of urgency is to be decided first.

Background facts:

[5] In deciding the issue of urgency, it is prudent to set out the chronological sequence of events relevant to this application.

[6] The Applicant is employed by the Respondent as a management accountant, reporting to the manager of finance, who in turn reports to the chief financial officer (CFO).

[7] In September 2019 the Applicant submitted a report containing serious allegations of impropriety, irregularities with regard to the recruitment of staff and appointment of service providers, corruption, maladministration and running the institution to the ground and ruin against the CFO and five other staff members. A copy of the aforesaid report was submitted to the Respondent’s

Board. The urgent intervention of the Board was requested.

[8] The Applicant’s case is that she made the aforesaid disclosure in terms of the provisions of the Protected Disclosures Act[1] (PDA). The Respondent disputes that the Applicant made a protected disclosure or that the holding of an internal disciplinary enquiry is in breach of the PDA.

[9] The Board, upon receipt of the Applicant’s report, delegated the function of investigating the Applicant’s allegations to the Social and Ethics Committee (the committee), who investigated the allegations and made recommendations to the Board. The said committee submitted a report with findings and recommendations to the Board, wherein the allegations made by the Applicant were found to be baseless. The Board resolved to accept those findings and recommendations and in a round robin resolution of the Board, dated 13 November 2019, part of the resolutions was that the Board found that the Applicant failed to follow protocol in that she escalated the matter to the media and to the Department of Human Settlements, thereby undermining the internal processes. It was resolved that disciplinary measures be instituted against the Applicant.

[10] On 14 November 2019 a copy of the Applicant’s report, the Social and Ethics Committee’s report and the Board’s round robin resolution of 13 November 2019 were submitted to the Fourth Respondent (the Minister).

[11] On 27 November 2019 the Applicant was given written feedback about the outcome of the investigation into her allegations of impropriety against the CFO and other officials. The Applicant was informed that the committee found that she had brought the Respondent into disrepute by submitting the document to the media and that she had breached protocol by reporting on human resource matters, which are confidential. She was informed that disciplinary action would be taken against her.

[12] During 2020 the committee and delegated members of the Respondent’s management made attempt and took some effort in order to implement the Board’s decision to take disciplinary action against the Applicant. Due to the effect of the Covid-19 pandemic, the Respondent was only able to institute disciplinary action against the Applicant at the beginning of 2021.

[13] On 23 February 2021 the Applicant was served with the charge sheet, which contained the charges of misconduct levelled against her.

[14] On 16 March 2021 the Respondent issued a notice of the disciplinary hearing, which was received by the Applicant on 17 March 2021. The disciplinary hearing was scheduled to take place on 23 March 2021.

[15] On 23 March 2021 the Applicant attended the disciplinary hearing and she was accompanied by her husband, who was allowed to attend the first sitting of the hearing as an observer. At this sitting, the Applicant was allowed to raise preliminary issues, which were inter alia that the Third Respondent (chairperson) had previously presided in several disciplinary hearings and should therefore recuse himself and that the disciplinary hearing should be conducted under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA), as provided for in section 188A of the Labour Relations Act[2] (LRA).

[16] The Second Respondent (the initiator) responded to the preliminary points raised by the Applicant and the chairperson dealt with the issues. Ultimately the hearing was postponed in order to afford the Applicant an opportunity to obtain legal representation and time frames were agreed upon by the parties with regard to the provisions of documents and for the Applicant to access her work laptop. Evidently the request to conduct the hearing in terms of the provisions of section 188A of the LRA was not acceded

to.

[17] The disciplinary hearing was postponed to 13 – 15 April 2021, however it only proceeded on 14 and 15 April 2021. On 14 April 2021 the Applicant raised a further point in limine for the recusal of the chairperson and the initiator and requested the postponement of the hearing, based on two grounds. Those were that she needed an opportunity to obtain legal representation and that she was not furnished with all the documents that she had requested. The chairperson rejected the request for postponement to obtain legal representation on the basis that the Applicant was already granted that opportunity when the disciplinary hearing was postponed on 23 March 2021. The Respondent was ordered to furnish the Applicant with the outstanding documents before the resumption of the disciplinary hearing the following day.

[18] On 14 April 2021 the charge sheet was read and the charges were formally put to the Applicant. She pleaded not guilty to the charges and the disciplinary hearing was adjourned to 15 April 2021 for oral evidence by the Respondent’s witnesses.

[19] On 15 April 2021 the Respondent commenced adducing the evidence of its first witness, Ms Mamodupi Mohlala, the Respondent’s CFO. She testified in chief on 15 and 16 April 2021, but her evidence in chief was not finalised. The disciplinary hearing was adjourned to 28 April 2021 when Ms Mohlala continued her evidence in chief.

[20] On 29 April 2021 the disciplinary hearing resumed, but Ms Mohlala was unavailable to attend the proceedings. Her evidence was not completed, but the initiator requested leave to call the Respondent’s second witness, Ms Happy Moroamohwebedu, which request was granted. Ms Moroamohwebedu adduced evidence in chief on 29 April 2021, but when the hearing adjourned, her evidence was not completed.

[21] By agreement the disciplinary hearing was postponed to 3 and 4 May 2021 and when it resumed on 3 May 2021, Ms Moroamohwebedu proceeded with her evidence in chief, which was concluded on that day.

[22] On 4 May 2021 Ms Moroamohwebedu was cross-examined until the end of the day, but her cross-examination was not finalised. On adjournment of the disciplinary hearing on 4 May 2021, the Applicant indicated that she would be represented by a legal practitioner in the next session of the disciplinary hearing. The disciplinary hearing was by agreement postponed to 14 May 2021.

[23] On 14 May 2021 the Applicant arrived at the disciplinary hearing, accompanied by her legal representatives, Mr Tjale and Advocate Mannya. Instead of cross-examining Ms Moroamowebedu, Mr Mannya indicated that he had preliminary issues he wanted to raise. Those related to the issue of legal representation which was allowed, the fact that the disciplinary hearing constituted an occupational detriment as it pertained to a protected disclosure, the fact that the whistle blower policy was not produced. A bundle of documents was submitted by the Applicant.

[24] Mr Mannya requested an opportunity to submit written submission on the contentions he had made and the chairperson granted Mr Mannya’s request. The Applicant had to deliver his written submissions by 19 May 2021, the initiator had to deliver his written submissions by 26 May 2021 and Mr Mannya to deliver his written submission in reply by 28 May 2021.The disciplinary hearing was adjourned on 14 May 2021 and it was postponed to 3 and 4 June 2021.

[25] The Applicant’s legal representatives never delivered the written submissions, but instead they served a copy of the Applicant’s request (made on 19 May 2021) to the CCMA for a section 188A inquiry.

[26] On resumption of the disciplinary hearing on 3 June 2021 Mr Mannya requested that the disciplinary hearing be postponed because the Applicant had made a referral in terms of the Protected Disclosures Act (PDA) to the CCMA on 19 May 2021. Mr Mannya relied on the provisions of section 188A(11) of the LRA. The disciplinary hearing was not postponed.

[27] Neither Ms Mohlala nor Ms Moroamohwebedu was available to testify on 3 or 4 June 2021 and a further witness, Mr Mfundo Daki, was called to testify. His testimony was not concluded and the parties agreed to postpone the disciplinary hearing to 5 and 6 July 2021 and 26 – 30 July 2021.

[28] On 10 June 2021 the Applicant filed an urgent application with this Court, seeking inter alia that her disciplinary hearing be stayed, pending the conclusion of the CCMA proceedings in terms of section 188A(11) of the LRA, which is pending under case number GAJB9663/2021.

Grounds for urgency

[29] In her founding affidavit the Applicant stated that this matter is inherently urgent because her disciplinary hearing is to continue and the Respondent refused to stay the disciplinary hearing pending the determination in terms of section 188A(11).

[30] The Applicant stated that owing to financial constraints she could not consult a legal representative and that it was only after she was able to consult, that she was advised of the section 188A(11) procedure.

[31] She explained that until 3 June 2021, she could not obtain the letters from the Minister, which was formal communication of the Minister’s decision regarding the status of her disclosure and that she indeed qualified for protection in terms of the PDA.

The arguments

The Applicant

[32] Mr Mannya for the Applicant submitted that the Applicant used the process of the disciplinary hearing and internal procedures to raise all her issues of concern and to require the chairperson to make a ruling thereon. It was only when these processes were exhausted that the Applicant approached this Court, wherefore the Applicant did not delay in bringing this application.

[33] The disciplinary hearing is to proceed and the chairperson refused to grant a postponement to enable the completion of the process in terms of section 188A(11) of the LRA. If the disciplinary hearing is to proceed, the Applicant will not have a fair and impartial hearing.

[34] If the internal disciplinary hearing proceeds and the Applicant is dismissed, the procedure provided for in section 188A(11) of the LRA will become moot and will serve no purpose. The same is to be said of the forensic investigation which may vindicate the Applicant.

The Respondent

[35] The Respondent stated in its answering affidavit that the Applicant has not shown the existence of urgency. She has not shown why her application was not brought shortly after or within a reasonable time after she was furnished with the notice of the disciplinary hearing dated 16 March 2021.

[36] The Respondent submitted that the Applicant was served with the notice of the disciplinary hearing on 17 March 2021 and she ought to have taken appropriate steps to enforce her rights in terms of section 188A(11) of the LRA as soon as possible thereafter. On 23 March 2021 she requested for an inquiry in terms of section 188A of the LRA, which request was rejected. This rejection should have caused her to realize that she had to do something expeditiously in order to enforce her rights in terms of section 188A(11) of the LRA. It is simply not explained why this application was not brought much earlier.

[37] The Applicant was aware of the Respondent’s stance since 23 March 2021 and her legal representatives became aware of the Respondent’s position on 13 May 2021, when they received a letter from the Respondent’s attorneys, disputing that the hearing should be conducted in terms of section 188A(11) of the LRA. The Respondent submitted that this application should have been brought soon after that, yet the Applicant waited almost another month to bring this application. Urgency has passed.

[38] The current disciplinary hearing has made significant progress and the parties as well as their legal representatives have committed more days to the disciplinary hearing in order to finalise it expeditiously and promptly.

[39] Mr Cassim for the Respondent submitted that this matter is not urgent and that the Applicant has failed to demonstrate or set out facts and circumstances that render the application urgent and justify the curtailment of the time periods in the Rules of this Court.

[40] Mr Cassim further submitted that the Applicant is not acting in good faith and that her conduct in invoking the section 188A(11) process at such a late stage of the disciplinary enquiry, demonstrates that her referral is nothing more than a stratagem to delay and frustrate the internal process. The Applicant had the opportunity to invoke such a process well before the internal hearing started, but failed to do so.

Applicable legal principles

[41] Urgency

[42] 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;

[43] 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 to adequately set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary[3].

[44] What would an applicant who seeks to make out a case of urgency then have to show? In Mojaki v Ngaka Modiri Molema District Municipality and others[4] the court referred with approval to the following dictum from East Rock Trading 7 (Pty) Ltd & another v Eagle Valley Granite (Pty) Ltd & others[5]:

‘An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant

must state the reasons why he claims that he cannot be afforded substantial redress at a hearing in due course. The question of

whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in an application in due course. The rules allow the court to come to the assistance of a litigant because if the latter were to wait for the normal course laid down by the rules it will not obtain substantial redress.'

[45] In deciding whether a matter is urgent, two considerations are involved. The first is whether the reasons that make the matter urgent have been set out and secondly whether the applicant seeking relief will not obtain substantial relief at a later stage. In all instances where urgency is alleged, the applicant must satisfy the court that indeed the application is urgent.

[46] In Vermaak v Taung Local Municipality[6] this Court has held that:

The consideration of the first requirement being why is the relief necessary today and not tomorrow, requires a court to be placed in a position where the court must appreciate that if it does not issue a relief as a matter of urgency, something is likely to happen. By way of an example if the court were not to issue an injunction, some unlawful act is likely to happen at a particular stage and at a particular date.

[47] The principles around urgency had been developed and considered by the courts and on numerous occasions have the courts made it clear that self-created urgency is not to be entertained by an urgent Court.

[48] In considering Rule 8, the Court in Jiba v Minister: Department of Justice & Constitutional Development & others[7] held that:

Rule 8 of the rules of this court requires a party seeking urgent relief to set out the reasons for urgency, and why urgent relief is necessary. It is trite law that there are degrees of urgency, and the degree to which the ordinarily applicable rules should be relaxed is dependent on the degree of urgency. It is equally trite that an applicant is not entitled to rely on urgency that is self-created when seeking a deviation from the rules.'

[49] In National Union of Metalworkers of SA v Bumatech Calcium Aluminates[8] the Court held that:

Urgency must not be self-created by an applicant, as a consequence of the applicant not having brought the application at the first

available opportunity. In other words, the more immediate the reaction by the litigant to remedy the situation by way of instituting litigation, the better it is for establishing urgency. But the longer it takes from the date of the event giving rise to the proceedings, the more urgency is diminished. In short, the applicant must come to court immediately, or risk failing on urgency. In Collins t/a Waterkloof Farm v Bernickow NO & another the court held that:

'if the applicants seeks this court to come to its assistance it must come to the court at the very first opportunity, it cannot stand back and do nothing and some days later seek the court's assistance as a matter of urgency'.

[50] In National Police Services Union and others v National Negotiating Forum and others[9] this Court held the view that the latitude extended to parties to dispense with the rules of the court in circumstances of urgency is not available to parties who are dilatory to the point where their very inactivity is the cause of the harm on which they rely to seek relief.

Analysis

[51] Emanating from the provisions of Rule 8 and the principles set out in the authorities referred to, it is evident that urgency is not there for taking, and an applicant seeking urgent relief must adequately and in detail, set out in the founding affidavit, the reasons the matter before the court should be treated with urgency.

[52] In order for any arguments on urgency to be sustained, the applicant must have acted with due haste, when knowledge of the respondent's

prejudicial behaviour or actions is gained. It is trite that an applicant is not entitled to rely on urgency that is self-created when seeking a deviation from the rules[10].

[53] The explanation for urgency tendered by the Applicant has to be considered with due consideration of the Respondent’s challenge to urgency.

[54] The Applicant’s explanation in the main as to why she did not approach this Court earlier and more urgently is twofold. Firstly, she stated that owing to financial constraints she could not consult a legal representative and that it was only after she was able to consult, that she was advised of the section 188A(11) procedure.

[55] This explanation does not accord with the chronological sequence of events. It is evident that the Applicant raised the desire to invoke the provisions of section 188A of the LRA as far back as 23 March 2021 and at the commencement of the disciplinary hearing. On 23 March 2021 and without legal representation she requested for her hearing to be conducted in terms of section 188A of the LRA. This request was refused and the disciplinary hearing proceeded. I am not convinced, based on the sequence of events, that the Applicant was not aware of the section 188A process until such a time that she had consulted her lawyers. The undisputed facts show that she was aware of the fact that her hearing could be conducted in terms of section 188A of the LRA when she raised it on 23 March 2021.

[56] After her request to conduct her hearing in terms of section 188A of the LRA was refused, she did nothing to pursue that until 19 May 2021, at which point the disciplinary enquiry has not only commenced, but she had actively participated in it by raising points in limine, she requested postponements, agreed to further dates for the continuation of the hearing, requested and was granted access to documents, she submitted her own bundle of documents, entered a plea to the charges levelled against her, heard the evidence of three witnesses and participated in the cross-examination of one of the Respondent’s witnesses.

[57] The second explanation tendered by the Applicant is that until 3 June 2021, she could not obtain the letters from the Minister, which was formal communication of the Minister’s decision regarding the status of her disclosure and that she indeed qualified for protection in terms of the PDA.

[58] In my view the letters from the Minister are of no assistance to the Applicant in her explanation. It is evident from the sequence of events that she knew that she wanted to invoke the provisions of section 188A and in fact referred a section 188A(11) referral to the CCMA on 17 May 2021, prior to the date she alleges she obtained the letters of the Minister. Furthermore, the Applicant did not need to wait for the Minister to pronounce on the status of her disclosure before she could seek protection in terms of

the PDA, as the Minister’s view as to whether it is indeed a protected disclosure or not, is interesting at best and of no legal consequence.

[59] The explanation tendered cannot rescue the Applicant’s case on urgency.

[60] There is however another factor that militates against granting relief to the Applicant. The applicant must show the absence of substantial redress in due course. The Rules allow the Court to come to the assistance of a litigant if to wait for the normal course, such litigant will not obtain substantial redress.

[61] The Applicant dismally failed to show the absence of substantial redress in due course or that she has no alternative remedies.

[62] It is evident that the Applicant’s referral in terms of section 188A(11) of the LRA is not only late in the day, but it is premised on an incorrect understanding as to what would be achieved by a process conducted in terms of section 188A(11).

[63] Section 188A(11) is to be understood in the specific context within which it was enacted and is to be applied. Section 188A provides for the appointment of an arbitrator to conduct an inquiry into allegations about the conduct or capacity of an employee. Such a process is on request by an employer, with the consent of the employee, or in accordance with a collective agreement and is to be made in the prescribed form and a prescribed fee is payable. Section 188A(11) provides that if an employee alleges in good faith that the holding of an inquiry contravenes the PDA, that employee or the employer, may require that an inquiry be conducted in terms of section 188A, into the allegations by the employer into the conduct or capacity of the employee. The holding of such an inquiry does not constitute an occupational detriment, as contemplated in the PDA.

[64] Section 188A(11) entitles an employee, who is about to be subjected to an internal disciplinary process and who alleges in good faith that the intended disciplinary hearing contravenes the PDA, to instead request an inquiry be conducted in terms of section 188A. I see no reason why, if an employer , under circumstances where the employee complies with the requirements of section 188A(11), refuses to have the inquiry into the conduct or capacity of the employee conducted in terms of section 188A, the employee would not be entitled to approach this Court for an order interdicting the impending internal disciplinary hearing and an order directing that the inquiry pertaining to the employee’s conduct or capacity be conducted in terms of section 188A of the LRA.

[65] In casu the Applicant however seeks an order to the effect that her current disciplinary hearing be stayed, pending the conclusion of the CCMA proceedings in terms of section 188A(11). This cannot be.

[66] The Applicant’s request to the CCMA for the appointment of an arbitrator to conduct the inquiry, was not made before the commencement of the internal disciplinary hearing, but was only made on 19 May 2021, almost three months after the Applicant was notified of the charges levelled against her and almost two months after the disciplinary hearing commenced. The Applicant already entered a plea in respect of the charges, three witnesses have testified and a number of days were already spent on the proceedings.

[67] Section 188A(11) does not envisage the holding of two parallel hearings. Section 188A provides for an inquiry into allegations relating to an employee’s conduct or capacity and for such an inquiry to be conducted by an arbitrator, in accordance with the provisions of the said section. If the inquiry relates to allegations relating to an employee’s conduct, the section 188A inquiry will happen instead of an internal disciplinary hearing. The arbitrator conducting the inquiry, will make findings on the conduct of the employee and must, in light of the evidence presented and considering the criteria of fairness, rule as to what action, if any may be taken against the employee.

[68] The provisions of section 188A(11) of the LRA are not intended or designed to compel an employer or an employee to subject him or her or itself to two simultaneous and parallel disciplinary processes.

[69] It is evident from the Applicant’s founding affidavit that her understanding of the purpose of section 188A(11) is incorrect and the relief sought to the extent that her disciplinary hearing be stayed pending the conclusion of the CCMA proceedings, is premised on the wrong interpretation of the said section. The Applicant stated that “I am advised that the balance of convenience favours the granting of an interim order. The procedure in terms of section 188A(11) does not prejudice any party, but ensures the fairness and independent (sic) of the process. I am advised that should the independent arbitrator determine that my matter does not constitute a protected disclosure, the disciplinary hearing will proceed.”

[70] After the Respondent raised the issue that the relief sought by the Applicant was incompetent, she filed a replying affidavit, wherein her incorrect understanding of the purpose of section 188A(11) is confirmed. The Applicant stated that it was common cause “That there is a dispute whether my disclosure constitute a protected closure. (See paragraph 10.2 of the answering affidavit) For this reason alone, it is necessary that a determination be made regarding whether my disclosure constitutes a protected disclosure. I am advised that the process available in law for that purpose is section 188A(11) of the Labour Relations Act. The relief sought in this application to achieve that objective and resolve the dispute whether my disclosure is a protected disclosure or not.”

[71] It is evident from the heads of argument prepared by Mr Mannya that his understanding of section 188A(11) of the LRA accords with the advice given to the Applicant and her understanding of what is to be achieved by a process instituted under section 188A(11). Mr Mannya submitted that “The purpose of section 188A(11) is to enable an independent determination of whether the disclosure constitutes a protected disclosure. The Applicant has referred a dispute for determination. The First Respondent has the right to participate in the process. The referral

of the dispute does not divest the First Respondent of the power to later take any disciplinary action if it is found that the disclosure was not a protected one.”

[72] Section 188A(11) is not designed or intended to determine whether the facts constitute a protected disclosure as contemplated by the PDA or not, and if not, for an internal disciplinary hearing to proceed. The section provides for an inquiry into allegations pertaining to the conduct or capacity of an employee.

[73] The advice the Applicant received was ill advice and the objective she seeks to achieve, cannot be achieved in the manner she seeks or was advised to seek.

[74] The LRA provides for other remedies (section 186 (2) (d), 191(1)(a) or 191(13) of the LRA) in the event an employee alleges that he or she has made a protected disclosure and is subjected to an occupational detriment as a result of that. The Applicant has not invoked these remedies available to her and any determination of the question whether she had made a protected disclosure or not, cannot be answered by way of a section 188A(11) process.

[75] The holding of the inquiry pertaining to the allegations of misconduct levelled against the Applicant under the auspices of the CCMA in terms of section 188A of the LRA is no longer possible or practicable as the same charges are already the subject matter of the current internal disciplinary enquiry. The stay of the disciplinary enquiry pending the section 188A process, as prayed for by the Applicant, is effectively seeking that two processes of the exact same nature, namely to test the allegations against the Applicant, be conducted. To allow for a parallel process to be conducted in respect of the same charges, would not only be contrary to the provisions of section 188A, but it will be highly undesirable and also prejudicial to the parties.

[76] In summary: The Applicant offered no convincing explanation as to why no urgent legal proceedings were instituted immediately after her request to conduct her hearing in terms of the provisions of section 188A of the LRA was refused and the internal disciplinary proceedings proceeded with.

[77] It is not sufficient for a party when approaching a court on an urgent basis to adopt the approach that it is of right entitled to preferential treatment, failing which it would suffer prejudice in the event that its urgent application is not granted. A party needs to demonstrate that it had also in asserting its rights, acted diligently and with the urgency that the matter it seeks to pursue requires. The Applicant has failed in this regard.

[78] For this the application fails for the lack of urgency.

Costs

[79] The last issue to be decided is the issue of costs. This Court has a wide discretion in respect of costs, considering the requirements of law and fairness.

[80] Both parties sought costs against the other.

[81] In Zungu v Premier of Kwa Zulu-Natal and Others[11] the Constitutional Court confirmed 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 cases that should not have been brought to Court in the first place.

[82] 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. In Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others[12] 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.’

[83] 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, more so where an application is filed on an urgent basis.

[84] This Court is ordinarily reluctant to make orders for costs against individual employees, 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.

[85] In casu, the Applicant brought an urgent application at a time when urgency has passed. Furthermore, the application was premised on an incorrect

interpretation of the provisions of section 188A (11) of the LRA and the goal the Applicant sought to achieve by invoking section 188A, was unachievable and no longer feasible when this application was eventually filed. To make matters worse for the Applicant, she was legally represented and did not approach this Court as an unrepresented layperson.

[86] Fairness dictates that the Respondent, and ultimately the taxpayers 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 on an urgent basis.

[87] I am alive to the fact that the Applicant is an individual, but I cannot ignore the fact that she ultimately initiated this application in circumstances when she should not have done so. The Applicant is the author of her own misfortune.

[88] In the present circumstances, the interests of justice require that the Applicant pays at least a portion of the First Respondent’s costs. In my view, a sum equivalent to 20% of the Respondent’s 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 urgency;

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

______________

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate M Mannya

Instructed by: Tjale

Attorneys

For the First Respondent: Advocate N Cassim SC with Advocate S Tilly

Instructed by: Lebea

and Associates Attorneys

[1] Act 26 of 2000.

[2] Act 66 of 1995, as amended.

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

[4] (2015) 36 ILJ 1331 (LC) at para 17.

[5] [2011] ZAGPJHC 196; [2012] JOL 28244 (GSJ) at para 6.

[6] (JR315/13) [2013] ZALCJHB 43 (12 March 2013) at para 12.

[7] (2010) 31 ILJ 112 (LC) at para 18.

[8] (2016) 37 ILJ 2862 (LC).

[9] (1999) 20 ILJ 1081 (LC).

[10] Jiba v Minister: Department of Justice and Constitutional Development and others (2010) 31 ILJ 112 (LC).

[11] (2018) 39 ILJ 523 (CC) at para 24.

[12] (2012) 33 ILJ 2117 (LC) at para p 2119 I-J.