Labour Law cases decided in the South African Courts (Highlights and updated 1997 to December 2022 [Copyright: Marius Scheepers/10.8.1])

Urgent interdict, Urgent relief.

Urgent Interdict

sec 197

(i) the applicant had to show either a clear right or a prima facie right in the case of interim relief; (ii) a well-grounded apprehension of irreparable harm existed if the relief was not granted on an urgent bass; (iii) the balance of convenience favored the granting of the relief on an urgent basis; and (iv) the applicant had no other satisfactory relief available.

P683/10

Independent Municipal & Allied Trade Union & Another v Department of Health: Eastern Cape Province & Others

Restraint of trade

Authority challenged, but irrelevant if authorized to depose to affidavit

Not urgent

J1333/12

Staar Surgical (Pty) Ltd v Lodder

recruitment

State: ito 38 of Constitution; join all candidates

J1516/12

SA Municipal Workers Union v Mopani District Municipality

semi-urgency

Alleged semi-urgency. A matter was either urgent or it was not and there was no reference in the legislation to semi-urgent interim relief.

(PA 1/12) [2013] ZALAC 17

De Beer v Minister of Safety and Security and Another

Disciplinary enquiry

Employee withdrawing from disciplinary enquiry after his application for a presiding officers recusal was refused. Failed to demonstrate that no suitable alternative remedy was available to him or that he would suffer irreparable harm if he could not obtain immediate relief. the applicant was not seeking to rectify an ongoing wrong but to rectify a past infringement of his alleged right not to be dismissed in the absence of compliance with the SMS Handbook.

(J 1603/14) [2014] ZALCJHB 240

Ngobeni v Minister of Communications and Others

Urgency

J1671/16

AMCU and Others v Northam Platinum Ltd and Another (J1671/16) [2016] ZALCJHB 309; [2016] 11 BLLR 1151 (LC); (2016) 37 ILJ 2840 (LC) (19 August 2016)

20] As stated above, urgent applications are governed by Rule 8. In considering Rule 8, the Court in Jiba v Minister: Department of Justice and Constitutional Development and Others(2010) 31 ILJ 112 (LC) at para 18. See also Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's Furniture Manufacturers) 1977 (4) SA 135 (W) said: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.[21] 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[(2015) 36 ILJ 1331 (LC) at para 17.] the Court referred with approval to the following dictum from the judgment in East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others:[2012] JOL 28244 (GSJ) at para 6.]. 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.[22] Similarly, and in Maqubela v SA Graduates Development Association and Others[ (2014) 35 ILJ 2479 (LC) at para 32. See also Transport and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others (2015) 36 ILJ 2148 (LC) at para 11.] dealt with the consideration of urgency as follows:Whether a matter is urgent involves two considerations. 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. Thus, it is required of the applicant adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary. As Moshoana AJ aptly put it in Vermaak v Taung Local Municipality:'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.'[23] Where an applicant seeks final relief, the Court must be even more circumspect when deciding whether or not urgency has been established.[10] In simple terms, the applicant must make out an even better case of urgency. In Tshwaedi v Greater Louis Trichardt Transitional Council[11] the Court said: An applicant who comes to court on an urgent basis for final relief bears an even greater burden to establish his right to urgent relief than an applicant who comes to court for interim relief. .[24] But it is not just about the applicant. Another consideration is possible prejudice the respondent might suffer as a result of the abridgement of the prescribed time periods and an early hearing.[12][25] Also, urgency must not be self created been self-created by an applicant, as a consequence of the applicant not having brought the application at the first available opportunity.[13][26] A final consideration where it comes to urgency is expedition when taking action. 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.[14] 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 Valerie Collins t/a Waterkloof Farm v Bernickow NO and Another the Court held: 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 Courts assistance as a matter of urgency.

irreparable harm

CWIU v Sasol Fibres(1999) 20 ILJ 1222 (LC) at 1227B C.

The general rule that financial hardship and loss of income are not considered to be grounds for urgent relief was upheld inMalatji v University of the North[2003] ZALC 32(LC) andNasionale Sorghum Bierbrouery (Edms) Bpk (Rantoria Divisie) v John NO en Andere(1990) 11 ILJ 971 (T).

Harley v Bacarac Trading 39 (Pty) Ltd (2009) 30 ILJ 2085 (LC) at para 8.

If an applicant is able to demonstrate detrimental consequences that may not be capable of being addressed in due course and if an applicant is able to demonstrate that he or she will suffer undue hardship if the court were to refuse to come to his or her assistance on an urgent basis, I fail to appreciate why this court should not be entitled to exercise a discretion and grant urgent relief in appropriate circumstances. Each case must of course be assessed on its own merits.

Pending disciplinary hearing

J1876/17

Magoda v Director-General of Rural Development and Land Reform and Another (J1876/17) [2017] ZALCJHB 305; [2017] 12 BLLR 1267 (LC); (2017) 38 ILJ 2795 (LC) (28 August 2017)

interim relief interdicting continuation of disciplinary enquiry pending review of procedural rulings made by disciplinary chairperson prima facieright to review not established application for interim relief dismissed

Rstraint of trade

J2761/17

Shoprite Checkers (Pty) v Jansen and Another (J2761/17) [2017] ZALCJHB 503 (13 December 2017)

Magna Alloys and Research SA (Pty) Ltd v Ellis (Magna Alloys) 1984 (4) SA 874 (A)

The effect of Magna Alloys was to reverse this position, by placing an onus on the party sought to be restrained, to prove on a balance of probabilities, that the restraint was unreasonable. Since then the position has been that restraints of trade are enforceable unless they are proved, by the party sought to be restrained, to be unreasonable.

Ball v Bambalela Bolts (Pty) Ltd [2013] 9 BLR 843 (LAC).

Because the right of a citizen to freely choose a trade, occupation or profession is protected in terms of section 22 of the Constitution and a restraint constitutes a limitation of that right, the onus may well be on the party who seeks to enforce the restraint to prove that it is a reasonable or justifiable limitation of that right of the party sought to be restrained. (see Fidelity Guards Holdings (Pty) Ltd t/a Fidelity Guards v Pearmain 2001 (2) SA 853 (SE) at 862; Canon KwaZulu Natal (Pty) Ltd t/s Canon Office Automation v Booth and another 2005 (3) SA 205 (N). Also compare Affordable Medicines Trust and others v Minister of Health of RSA and another 2005 (6) BCLR 529 (CC))[4]

Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA).

the Supreme Court of Appeal held that the question of the reasonableness or unreasonableness of a restraint is always a value judgment which involves the weighing up of two policy considerations: the public interest which requires that parties to a contract comply with their contractual obligations (pacta servanda sunt) and the principle that a citizen should be free to follow a trade, occupation or profession of her choice.

Plascon Evans Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A). The rule is applicable in labour matters; see Frys Metals (Pty) Ltd v NUMSA and Others [2003] 2 BLLR 140 (LAC)

28.] The value judgment must be based on factual findings, after any disputes have been resolved in the respondents favour by the application of the Plascon Evans rule.[7] Thus the Supreme Court of Appeal held in Reddy v Siemens Telecommunications that if the facts, assessed in this way, disclose that the restraint is reasonable then the party seeking the restraint order must succeed. If on the other hand, those facts show that the restraint is unreasonable, then the party sought to be restrained must succeed. What this calls for is a value judgment, rather than a determination of what facts have been proved, and the incidence of the onus accordingly plays no role.[8]

Basson v Chilwan and others 1993 (3) SA 742 (A).

following questions:(a) Is there an interest of the one party which is deserving of protection at the termination of the agreement?(b) Is such interest being prejudiced by the other party?(c) If so, does such interest so weigh up qualitatively and quantitatively against the interest of the other party that the latter should not be economically inactive and unproductive?(d) Is there any other facet of public policy having nothing to do with the relationship between the parties but which requires that the restraint be maintained or rejected?[10]

Kwik Kopy (SA) (Pty) Ltd v Van Haarlem and another 1999 (1) SA 472 (W).

court added a further consideration, namely whether the restraint is wider than what is necessary in order to protect the protectable interest.

[37.] The first question for determination in terms of the Basson v Chilwan test is whether the applicant has an interest worthy of protection after the termination of the agreement, that is, a protectable interest. It is by now well established that a protectable interest may be of two broad kinds:The first kind consists of the relationships with customers, potential customers, suppliers and others that go to make up what is compendiously referred to as the trade connections of the business, being an important part of its incorporeal property known as goodwill.The second kind consists of all confidential matter which is useful for the carrying on of the business and which could therefore be used by a competitor, if disclosed to him, to gain a relative competitive advantage.[14]...[38.] As far as trade connections are concerned, it is well established that a protectable customer or supplier relationship exists where an employee has personal knowledge of, and influence over, the customers (or suppliers) of her employer so as to enable her, if the competition was allowed, to induce the customer or supplier to follow her to the new employer.[15]

[39.] In relation to confidential information, there is no closed list of the type of information that may be confidential. However, certain requirements must be satisfied in order for information to properly qualify as confidential in this context. These are the following:(a) The information must involve and be capable of application in trade or industry, that is, it must be useful.(b) The information must not be public knowledge and public property, that is, objectively determined, it must be known only to a restricted number of people or to a closed circle.(c) The information objectively determined must be of economic value to the person seeking to protect it[16] and be objectively useful to a competitor.[17]

Urgency

JR122/2017

Majola v Member of the Executive Council for Roads and Transport: Gauteng Provincial Government and Others (JR122/2017) [2017] ZALCJHB 54 (21 February 2017)

Gallagher v Norman's Transport Lines (Pty) Ltd 1992 (3) SA 500 at 502E-503 D.

[19] Urgency is further dictated upon by the exigency and circumstances of the particular case, and it is trite that a matter cannot be regarded as urgent simply on the say-so of the Applicant. In equal measure, a kneejerk approach in truncating the time periods will not be tolerated[7], nor will the courts countenance a belated approach for relief. Thus, it is expected that 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.

National Union of Metalworkers of South Africa & others v Bumatech Calcium Aluminates (2016) 37 ILJ 2862 (LC) at paragraphs 22 to 26, and in particular, at para 26 where Snyman AJ 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 Valerie Collins t/a Waterkloof Farm v Bernickow NO and Another the Court held: 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 Courts assistance as a matter of urgency. (Authorities and citations omitted)

The court, in further exercising its discretion, will also consider whether the interest of justice supports the stay of execution pending the finalization of the review or rescission application

Road Accident Fund v Stydom 2001 (1) SA 292

Thus where an injustice would otherwise be done, the Court would be inclined to grant such a stay

Stay writ of execution

J62/2017

Ekurhuleni Metropolitan Municipality v SAMWU obo Ngawe and Another (J62/2017) [2017] ZALCJHB 31 (7 February 2017)

In exercising its discretion to grant a stay of execution, a court is not required to take the merits of the underlying attack on thecausaof the writ into account.

Goist/aShakespeares Pub v van Zyl & Others (2003) 24ILJ2302 (LC) at paragraphs 32 - 36

In the light of the above, an applicant is accordingly not required to satisfy the court of the existence of prospects of success in the principal dispute, as an application for a rescission, review or variation of an award qualifies as an attack on thecausaunderlying the award

Chillibush Communications (Pty) Ltd v Michelle Gericke & others (2010) 31 ILJ 1350 (LC) at para 18

return day: urgency

J3455/17

Sun International Limited and Another v SACCAWU and Others (J3455/17) [2018] ZALCJHB 71 (2 March 2018)

return day of an interim strike interdict requires the court on the return day to revisit whether or not the application was urgent when making a final order.

Polyoak (Pty) Ltd v Chemical Workers Industrial Union & others (1999) 20 ILJ 392 (LC)

stay writ of execution

J4002/2018

Fidelity Security Services (Pty) Ltd v The Sheriff: Roodepoort and Another (J4002/2018) [2018] ZALCJHB 387 (22 November 2018)

[11] This Court may, in terms of section 145(3) of the LRA, stay the enforcement of the arbitration award pending its decision. It is common cause that a rescission application has since been launched in respect of the court order, although this was done some four months after the court order was granted. To an extent that the underlying causa for the writ is still the subject matter of an ongoing dispute between the parties and further that the applicant has no alternative remedy that will provide the similar relief it seeks in this application and that it requires to protect its rights, I am of the view that the interests of justice combined with quest for finality on this matter requires that a discretion be exercised in favour of the applicant.

stay writ of execution

C1230/2018

Passenger Rail Agency of South Africa SOC Ltd (PRASA) v Sheriff for the District of Goodwood and Others (C1230/2018) [2018] ZALCJHB 423 (27 December 2018)

Gois t/a Shakespeares Pub v van Zyl & Others 2011 (1) SA 148 (LC) At para 37

(a) A court will grant a stay of execution where real and substantial justice requires it or where injustice would otherwise result.(b) The court will be guided by considering the factors usually applicable to interim interdicts, except where the applicant is not asserting a right, but attempting to avert injustice.(c) The court must be satisfied that:i. the applicant has a well-grounded apprehension that the execution is taking place at the instance of the respondent(s); andii. irreparable harm will result if execution is not stayed and the applicant ultimately succeeds in establishing a clear right.(d) Irreparable harm will invariably result if there is a possibility that the underlying causa may ultimately be removed, i.e. where the underlying causa is the subject-matter of an ongoing dispute between the parties.(e) The court is not concerned with the merits of the underlying dispute-the sole enquiry is simply whether the causa is in dispute.

[18] The requirement to consult is even more applicable when the transfer constitutes a demotion. Although the fact that the third respondent could elect the store to which he wished to go indicate that there was limited consultation, but this did not extend to the decision to transfer. It was thus unfair for the applicant not to consult with the third respondent prior to taking the decision to transfer him.

Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Services and Others (2008) 29 ILJ 2708 (LAC) at para 88

largely uncontradicted evidence that the appellant has adduced in regard to the status, prestige and responsibilities of his position

jurisdictional basis for the courts interference in the incomplete discipliary hearing

J1309/21

Futshane v Millard NO and Others (J1309/21) [2021] ZALCJHB 432 (3 November 2021)

[18] In Booysen v Minister of Safety and Security & Others[(2011) 32 ILJ 112 (LAC).] the Labour Appeal Court (LAC) held that the Labour Court has jurisdiction to interdict any unfair conduct including disciplinary action, but it should do so only in exceptional circumstances. In Lieutenant Shezi v SAPS and Others[Unreported case no. J8521/20, dated 15 September 2020.] (Shezi) this Court held that an applicant seeking intervention in incomplete disciplinary hearings must establish first that the application embodies a proper cause of action on the intervention sought, and secondly, that the circumstances warranting intervention are exceptional. The Court made it clear that it lacks jurisdiction to determine claims based on an alleged unlawful or unfair conduct during the course of disciplinary proceedings.

[19] In Shezi, this Court stated the following at paragraphs [8] to [10]: -[8] There is however a more fundamental objection to jurisdiction, one that the court is obliged to raise, and which relates to the nature of the relief sought by the applicant. The issue is whether the court has jurisdiction to entertain a claim for final relief applicant seeks relief on the basis of what is alleged to be unlawful on the part of the employer, without locating the claim in a cause of action justiciable by this court. (see Phahlane v SAPS and others J736/2020, 11 August 2020).[9] This court is a creature of statute is inherent powers authority and standing equal to that of the division of the High Court but only in relation to matters and his jurisdiction see section 951 two of the LRA there is a misconception that the court has jurisdiction over war 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 employment relations disputes and urged the legislature to remedy this shortcoming regrettably the legislation did not respond to the squalid import terms the jurisdiction of the squad remains to be determined in terms of the act as well as it was drafted in 1996.[10] Section 157(1) provides that subject to the Constitution and s 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 the 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. It is thus incumbent on an applicant referring a matter to this court for adjudication to identify the provision in the LRA, or any other law, which confers jurisdiction on this court to entertain the claim. Jurisdiction, of course, is to be determined strictly on the basis of the applicants pleadings; the merits of the claim are not material at this point. What is required is the determination of the legal basis for the claim, and then an assessment with the court has jurisdiction over (see Chirwa v Transnet Limited [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).[20] The Court went on to state the following at paragraphs [13] and [14]:[13] Further, this court has no jurisdiction to determine the fairness of employer action where the nature of the dispute is one that requires it to be determined by arbitration. Section 157(5) provides as follows:Except as provided for in section 158(2), the Labour Court does not have jurisdiction to adjudicate an unresolved dispute of this Act or any employment law requires the dispute to be resolved through arbitration.[14] Where disputes concern the fairness of any procedure adopted by the employer in the course of disciplinary action, it will be record the section 188 of the LRA provides that an employer must prove that any dismissal was effected in accordance with a fair procedure. Any dispute about the existence or otherwise of a fair procedure must be referred to arbitration in determined in terms of section 191 by the CCMA bargaining council have jurisdiction. It follows that this court has no jurisdiction, at least not in the first instance, to make any decisions about the fairness otherwise of the procedure adopted by the employer in the course of exercising disciplinary action.

[22] In Ngobeni v PRASA Cres and Others[[2016] JOL 36588 (LC) at paras [13] and [14].] (Ngobeni) this Court observed that urgent applications where it is asked to intervene in disciplinary hearings, run the risk of bypassing the statutory dispute resolution mechanisms of the LRA and this should be discouraged.

[27]The applicants pleaded case does not, in my view, form a jurisdictional ground for this courts interference. The cause of action is premised on an unfair labour practice. This court lacks jurisdiction as a Court of first instance. No exceptional circumstances are pleaded for this courts interference in an incomplete hearing.

jurisdiction to intervene in incomplete disciplinary proceedings

J 1476/2021

Phaahla v Minister of Justice and Correctional Services and Others (J 1476/2021) [2022] ZALCJHB 9 (7 February 2022)

[16] It is trite that this Court has jurisdiction to intervene in incomplete disciplinary proceedings, but only in exceptional circumstances. Thus, this Court does not lightly intervene in an internal disciplinary process.[Booysen v Minister of Safety and Security and others (2011) 32 ILJ 112 (LAC) at para 17.] The principle was enunciated as set out below in Jiba v Minister: Department of Justice and Constitutional Development[(2010) 31 ILJ 112 (LC) at para 17.]:Although the court has jurisdiction to entertain an application to intervene in uncompleted disciplinary proceedings, it ought not to do so unless the circumstances are truly exceptional. Urgent applications to review and set aside preliminary rulings made during the course of a disciplinary enquiry or to challenge the validity of the institution of the proceedings ought to be discouraged. These are matters best dealt with in arbitration proceedings consequent on any allegation of unfair dismissal, and if necessary, by this court in review proceedings under s 145.[17] There is a policy rational to this approach and in Trustees, National Bioinformatics Network Trust v Jacobson and Others[(2009) 30 ILJ 2513 (LC) at para 4.], this Court noted that there were at least two reasons why it ought not routinely to intervene in incomplete arbitration proceedings. It observed that the same considerations applied to incomplete disciplinary hearings and held:The first is a policy -related reason for this court to routinely intervene in incomplete arbitration proceedings would undermine the informal nature of the system of dispute resolution established by the Act. The second (related) reason is that to permit applications for review on a piecemeal basis would frustrate the expeditious resolution of labour disputes. In other words, in general terms, justice would be advanced rather than frustrated by permitting CCMA arbitration proceedings to run the course without intervention by this court.[18] Much later in in Ngobeni v Prasa Cres and Others[[2016] 8 BLLR 799 (LC) at para 14.] the Court said the following in the reasons for judgment:The urgent roll in this court has become increasingly and regrettably populated by applications in which intervention is sought, in one way or another, in workplace disciplinary hearings. The present application is a prime example and is exacerbated by the preceding application to review and set aside Advocate Cassims ruling on recusal.... The abuse goes further what the applicant effectively seeks to do is to bypass the statutory dispute resolution structures in the form of the CCMA and bargaining councils. One of the primary functions of the structures is to determine the substantive and procedural fairness of unfair dismissal disputes. Applicants who move applications on an urgent basis in this court for orders that effectively constitute findings of procedural unfairness, bypass and undermine the statutory dispute resolution system. The courts proper role as one of supervision over the statutory dispute resolution body; it is not a court of first instance in respect of the conduct of a disciplinary hearing, nor is its function to micromanage discipline in workplaces.

Urgent relief

jurisdiction to intervene in incomplete disciplinary proceedings

J 1476/2021

Phaahla v Minister of Justice and Correctional Services and Others (J 1476/2021) [2022] ZALCJHB 9 (7 February 2022)

a prima facie right; a well-grounded apprehension of irreparable harm if the interim relief was not granted; the balance of convenience should favour the granting of an interim interdict; and there was no other satisfactory remedy satisfy the requirements in relation to urgency.

disputes had not been referred to the CCMA yet

J684/09

SACCAWU v Ellerine Holdings (Pty) Ltd t/a Ellerine Furnitures (Pty) Ltd and Ellerine Trading (Pty) Ltd

the right which the applicant seeks to protect by means of interim relief has to be clear, or if not clear, is at least prima facie established, although open to some doubtin the case of an established prima facie right, there has to be a well-grounded apprehension of irreparable harm to the applicant, if the interim relief is not granted and the applicant ultimately succeeds in establishing the rightthe balance of convenience has to favor the granting of interim relief, andthe applicant has no other satisfactory remedy available to it.

J1809/10

Sonqoba Security Services MP (Pty) Ltd v Motor Transport Workers Union

decleratory order interdicting: suspension

(J1113/17

Thibini v Merafong City local Municipality and Others (J1113/17) [2017] ZALCJHB 235 (26 May 2017)

Member of the Executive Council for Education, North West Provincial Government v Gradwell [2012] 8 BLLR 747 (LAC) at para 46.

Disputes concerning alleged unfair labour practices must be referred to the CCMA or bargaining council for conciliation and arbitration in accordance with the mandatory provisions of section 191(1) of the LRA. The respondent in this case instead sought a declaratory order from the Labour Court in terms of section 158(1)(a)(iv) of the LRA to the effect that the suspension was unfair, unlawful and unconstitutional. A declaratory order will normally be regarded as inappropriate where the applicant has access to alternative remedies, such as those available under the unfair labour practice jurisdiction. The final declaration of unlawfulness on the grounds of unfairness will rarely be easy or prudent in motion proceedings. The determination of unfairness of a suspension will usually be better accomplished in arbitration proceedings, except perhaps in extraordinary or compellingly urgent circumstances. When the suspension carries with it a reasonable apprehension of irreparable harm, then, more often than not, the appropriate remedy for an applicant will be to seek an order granting urgent interim relief pending the outcome of unfair labour practice proceedings

Steenkamp and Others v Edcon Limited [2016] ZACC 1; (2016) 37 ILJ 564 (CC); 2016 (3) BCLR 311 (CC); [2016] 4 BLLR 335 (CC); 2016 (3) SA 251 (CC).

[18] Recently the Constitutional Court had to deal with the matter whereby parties had approached the Court asking it to declare their dismissal unlawful, in accordance with the provisions of the LRA. The Constitutional Court held that it could not have been the intention of the legislature that a dismissal could be declared unlawful, instead of fairness.[21] I, therefore, conclude that relying on the provisions of the LRA, asking the Court to declare a suspension unlawful is misplaced under these circumstances.

Urgency

Mojaki v Ngaka Modiri Molema District Municipality and Others [2014] ZALCJHB 433; (2015) 36 ILJ 1331 (LC) at para 17.

The import thereof is that the procedure set out in rule 6(12) is not there for taking. 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.It is important to note that the rules require absence of substantial redress. This is not equivalent to the irreparable harm that is required before the granting of an interim relief. It is something less. He may still obtain redress in an application in due course but it may not be substantial. Whether an applicant will not be able to obtain substantial redress in an application in due course will be determined by the facts of each case. An applicant must make out his case in that regard.

Suspension

P05/17

Pietersen v Dr Beyers Naude Local Municipality (P05/17) [2017] ZALCJHB 47 (14 February 2017)

Member of the Executive Council for Education, North West Provincial Government v Gradwell (2012) 33 ILJ 2033 (LAC); See also Booysen v Minister of Safety and Security and Others (2011) 32 ILJ 112 (LAC) at para 54

he Labour Court has the necessary jurisdiction to entertain urgent applications pertaining to the uplifting of suspensions. However, the Labour Courts intervention should only be in circumstances that are urgent, extraordinary or compellingly.

[26]To conclude then, the Applicant has not established nor demonstrated a clear, let alone aprima facieright to the relief that he seeks. As also pointed out on behalf of the Respondent, he has alternative remedies available under the provisions of the LRA to seek redress in respect of his suspension. Significantly though, having had regard to the circumstances of this case, issues surrounding alleged financial ruin in circumstances where the Applicant has been placed on suspension with full pay, or protection of integrity in the face of a criminal conviction, can hardly qualify as urgent, extraordinary or compellingly factors, requiring the courts intervention. On the contrary, it is the very circumstances that the Applicant finds himself in as a result of his criminal conviction that militates against any inclination to place him back in his position. To the extent that this is the case, there would be no need to consider other requirements pertinent to such applications.

unfair dismissal: if he succeeds in his unfair dismissal claim and is entitled to reinstatement as part of his relief, he might already have been replaced

J122/17

Mashaba v South African Football Association ("SAFA") (J122/17) [2017] ZALCJHB 53; [2017] 6 BLLR 621 (LC); (2017) 38 ILJ 1668 (LC) (21 February 2017)

[19]The application is dismissed.

Khumalo & another v MEC for Education, KwaZulu-Natal(2013) 34ILJ296 (LAC)

The Labour Court, certainly has the power to enforce the terms of employment contracts,[5] but I know of no provision in any of the statutes which empowers the court to prevent the conclusion of private employment contracts. Likewise, the fact that Mr Mashaba may acquire a right to reinstatement once he is able to establish that his dismissal was substantively unfair, does not translate into a right to keep his position vacant merely on the assumption that he might be able to do so.

urgency

J3093/18

Maluleke v Greater Giyani Local Municipality and Others (J3093/18) [2018] ZALCJHB 456; (2019) 40 ILJ 1061 (LC) (4 October 2018)

Maqubela v SA Graduates Development Association and Others (2014) 35 ILJ 2479 (LC) at para 32. (Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's Furniture Manufacturers) 1977 (4) SA 135 (W).)

Whether a matter is urgent involves two considerations. 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. Thus, it is required of the applicant adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary.

Tshwaedi v Greater Louis Trichardt Transitional Council [2000] 4 BLLR 469 (LC) at para 11.

An applicant who comes to court on an urgent basis for final relief bears an even greater burden to establish his right to urgent relief than an applicant who comes to court for interim relief

urgency: requirements

J2400/18

Vumatel (Pty) Ltd v Majra and Others (J2400/18) [2018] ZALCJHB 335; (2018) 39 ILJ 2771 (LC) (9 October 2018)

Association of Mineworkers and Construction Union and Others vNorthamPlatinum Ltd and Another (2016) 37 ILJ 2840 (LC) at paras 20 26, and all the authorities cited there.

These are: (a) the applicant has to set out explicitly the circumstances which renders the matter urgent with full and proper particularity; (b) the applicant must set out the reasons why the applicant cannot be afforded substantial redress at a hearing in due course; (c) where an applicant seeks final relief, the court must be even more circumspect when deciding whether or not urgency has been established; (d) 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; (e) the possible prejudice the respondent might suffer as a result of the abridgement of the prescribed time periods and an early hearing must be considered; and (f) the more immediate the reaction by the litigant to remedy the situation by way of instituting litigation, the better it is for establishing urgency.

Irreparable financial loss

J1387/19

Bogoshi v Servest Security (J1387/19) [2019] ZALCJHB 154 (19 June 2019)

Ledimo and Others v Minister of Safety and Security and Another (2242/2003) [2003] ZAFSHC 16 (28 August 2003) at para 32

mere fact that irreparable financial losses have been suffered or would be suffered by the applicant was not, by itself, sufficient to ground the requisite urgency necessary to justify a departure from the ordinary court rules.

the facts of this case exceptional: breach of the applicants contract of employment.

J 143/21

Munthali v Passenger Rail Agency of South Africa (PRASA) (J 143/21) [2021] ZALCJHB 3; [2021] 5 BLLR 507 (LC); (2021) 42 ILJ 1245 (LC) (24 February 2021)

[20] It is not even necessary to address issues surrounding whether the applicant has an alternative remedy in the light of the facts that led to the termination of her contract and the legal basis of her claim. The irreparable harm to her should urgent relief not be granted is apparent from the consequences of the circumstances and manner surrounding the termination of the contract as already dealt with. It follows therefore that her urgent applicant should succeed.

[9] I agree with the proposition in Ntefe J Ledimo & others v Minister of Safety and Security & Others[ (2242/2003) [2003] ZAFSHC 16 (28 August 2003)] that there is no immutable rule that financial exigencies cannot be invoked to lay a basis for urgency. This is so in that Courts in any event enjoy a discretion in the overall determination of whether a matter should be accorded urgency or not. Inasmuch as factors surrounding financial hardship on their own are not a basis for according a matter urgency, these have to be determined together with other facts and circumstances pleaded in the founding papers, which points to a conclusion that those facts and circumstances are exceptional, thus necessitating that the matter should be treated as urgent.

Ntefe J Ledimo & others v Minister of Safety and Security & Others (2242/2003) [2003] ZAFSHC 16 (28 August 2003) at paragraph 32, where Rampai J) held that:In the three cases I have quoted above the courts have held that the mere fact that irreparable financial losses have been suffered or would be suffered by the applicant was not, by itself, sufficient ground to ground the requisite urgency necessary to justify a departure from the ordinary court rules. In applying this principle, a judge will do well to keep the words of wisdom which were expressed through the lips of Kroon J on p 15 in CALEDON STREET RESTAURANTS CC (supra). I find it apposite to echo those sentiments here by quoting him verbatim:However, the following comments fall to be made. First, to the extent that these cases may be interpreted as laying down that financial exigencies cannot be invoked to lay a basis for urgency, I consider that no general rule to that effect can be laid down. Much would depend on the nature of such exigencies and the extent to which they weigh up against other considerations such as the interests of the other party and its lawyers and any inconvenience occasioned to the court by having to entertain an application on an urgent basis. Second, whatever the extent of the indulgence, the sanction of the court thereof that an application be heard as a matter of urgency, would not in general, in this Division, accord the matter precedence over other matters and result in the disposal of the latter being prejudiced by being delayed.

[11] To the extent that PRASA had contended that the applicants financial hardship was hardly a consideration when determining urgency, it was held in South African Informal Traders Forum and Others v City of Johannesburg and Others; South African National Traders Retail Association v City of Johannesburg and Others[2014 (6) BCLR 726 (CC) at paras [31] and [36]] that the ability of people to earn money and support themselves and their families is an important component of the right to human dignity, and that without that ability, they faced humiliation and degradation.

Urgency

J111/21

Ngoye and Others v Passenger Rail Agency of South Africa and Others (J111/21) [2021] ZALCJHB 21; (2021) 42 ILJ 1267 (LC) (2 March 2021)

[22] When a final order is sought, as it is the position in this matter, the bar remains high for the applicants to establish a clear right, that they stand to suffer irreparable harm, they do not have alternative remedy and that balance of convenience favours the granting of the relief sought. In Hultzer v Standard Bank of South Africa (Pty) Ltd[[1999) 8 BLLR 809 (LC).] the Court held at paragraph 13 as follows:"[13] Financial hardship or loss of income is not regarded as a ground for urgency. Mlambo J in the University of Western Cape matter (supra) found that loss of income cannot establish a ground for_ urgency in an attempt to obtain urgent interim relief from this court. The applicant, in its founding papers, has not put forward any evidencery detail with regard to injury to his reputation if he is not reinstated in his former position, by way of urgent interim relief."

[25] In Mthembu v Mpumalanga Economic Growth Agency[[2015] ZALCJHB 184.] the Court held as follows at paragraph 22, per Tlhotlhalemaje AJ (As then he was):"[22] As already indicated, it is not always that this court should regard financial hardship and loss of income as grounds for urgency, but in this case the applicant has adduced sufficient evidence to support these grounds, which invariably extends beyond pure financial considerations. In conclusion on this issue, I am willing to further accept that the lack of diligence was not unreasonable given the circumstances of this case, and even if a contrary view was to be held, there are other factors in this case that are indeed compelling and exceptional to call for the court's intervention as illustrated below."

[26] In Ngqeleni v Member of the Executive Council for Department of Health, Eastern Cape[[2018] ZAECMHC 77 (22 November 2018).] the High Court found financial hardship to be sufficient reason for urgency based on the circumstances which the applicant found himself in due to termination of employment which its unlawfulness was subject matter of the application.

[29] What happened in this matter is that on 29 January 2021, the first and second applicants woke up as employees of PRASA, when they went to bed later in the day, they formed part of the unemployment statistics, and so was the case in respect of the third applicant on 01 February 2021. I am under these circumstances compelled to consider the abrupt manner in which the termination of employment contracts was effected, that is with immediate effect. There appeared no prior word or sign of caution that their contracts were facing termination. I find this on its own to raise exceptional circumstance

interim relief: section 76. Replacement labour.

J398/21

Airline Pilots Association of South Africa (ALPA-SA), as represented by the South African Airways Pilots Association (SAAPA), a branch of ALPA-SA obo Members v South African Airways (SOC) Limited and Others (J398/21) [2021] ZALCJHB 57 (23 May 2021)

[12] The requirements for granting interim relief are well known. Other than establishing urgency, the applicant is required to establish that it is entitled to interim relief on the grounds that; (a) the right which is the subject-matter of the main application and which the applicant seeks to protect by means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt; (b) if such case is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim interdict is not granted and the applicant ultimately succeeds in establishing his or her right; (c) there is no other satisfactory remedy; and (d) the balance of convenience favours the granting of interim relief.[4]

In Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and Another[1973 (3) SA 685 (A) at 691C-G], it was held that the granting of interim relief pending an action is an extraordinary remedy within the discretion of the Court, and that the discretion would be exercised with due regard to the requirements to be met and the facts of the case.

[20] Earlier in SACTWU v Coats[SACTWU v Coats 2001 22 ILJ 1413 (LC)], this Court had held that an employer does not contravene the provisions of section 76(1)(b) of the LRA by using its employees who are not locked out to perform their own work as well as the work of their co-workers who are locked out. The Court appreciated that non-striking employees and employees who have not been locked out, may refuse to do the work of their co-workers who are either on strike or locked out. Flowing from this decision, it is apparent that section 76(1)(b) does not prohibit an employer from implementing a lock-out in response to a strike and then sourcing replacement labour, to perform the work of the locked out employees.

[42] The policy is one that also says to unions and employees: Do not lightly resort to a strike when a dispute has arisen because, in the absence of a strike, the employer may not employ replacement labour even if it institutes a lock-out but, if you strike, the employer will be able to employ replacement labour - with or without a lock-out. The sum total of all this is that the policy is to encourage parties to disputes to try to reach agreement on their disputes and a strike or lock-out should be the last resort, when all reasonable attempts to reach agreement have failed.

[24] In line with what was stated in Technikon SA v National Union of Technikon Employees,[] SAA is thus permitted to employ replacement labour even if it had initially instituted a lock-out. This is so in that the individuals who would ordinarily have performed the work in question, were not initially locked-out, but had refused to perform those duties. When the applicant commenced its strike action and SAA confirmed the continuation of its lock-out in response to that strike, this significantly diminished the applicants protection under the proviso set out in section 76(1)(b) of the LRA, thus entitling SAA to engage replacement labour.

[30] To conclude therefore, there was no need for this application to be before the Court some 17 court days before the Main application was to be heard, where the parties were to fully ventilate the issues raised in the same application.

Urgency

J 539/21

Du Toit v Erudite Projects (Pty) Ltd (J 539/21) [2021] ZALCJHB 74 (2 June 2021)

Maqubela v SA Graduates Development Association and Others (2014) 35 ILJ 2479 (LC) at para 32.

Whether a matter is urgent involves two considerations. 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. Thus, it is required of the applicant to adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary.

Urgency

J 571/2021

Tsekedi v Masilonyana Local Municipality (J 571/2021) [2021] ZALCJHB 96 (4 June 2021)

[17] The principles to be applied are well-established. Whether or not a matter is urgent involves two considerations. The first is whether the applicant has set out cogent reasons in the founding affidavit and secondly, whether the applicant will not obtain substantial relief at some later stage. Where an applicant seeks final relief on an urgent basis, as the applicant does in these proceedings, the court must be particularly circumspect in deciding whether or not urgency has been established. Further, 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.

[18]...What weighs particularly heavily with me is the fact that it will not be possible, in present circumstances, for the applicant to obtain relief in the normal course. The applicants contract of employment, as I have indicated, expires on 31 December 2022. It is highly unlikely, given the backlog in the opposed motion court, that this matter would be finalised prior to that date. Insofar as the applicant contends that any urgency is self-created, this is simply not the case.

[23]...The termination of the applicants employment in these circumstances constituted a material breach of his contract. While the remedy of specific performance may constitute a primary remedy at the election of an aggrieved employee, it is not there for the taking (Mpane v Passenger Rail Agency of SA & others (2021) 42 ILJ 546 (LC)). In the present instance, in the absence of any evidence proffered by the respondents as to why specific performance ought not to be granted, the applicant is entitled to the order that he seeks.

Specific performance: dismissal due to "repudiation of contract"

J742/2022

Mahonono v National Heritage Council and Others (J742/2022) [2022] ZALCJHB 188; (2022) 43 ILJ 2335 (LC) (18 July 2022)

[39] There are a number of instances where the courts have intervened and ordered specific performance, where an employer has decided to abandon disciplinary proceedings which are underway or otherwise disregarded contractual provisions governing an employees termination, and taken the decision to dismiss the employee without waiting for the outcome of the inquiry[16]. However, as mentioned, a finding that a dismissal was in fundamental breach of the employees contract of employment does not automatically result in the court granting relief in the form of specific performance.[See: Mntambo v Piotrans (Pty) Ltd (2021) 42 ILJ 2298 (GJ) and Botes v City of Johannesburg Property Co SOC Ltd and another (2021) 42 ILJ 530 (LC), though the latter was decided on account of the courts finding that it had no jurisdiction to make such an order, which is at odds with the approach taken by the Labour Appeal Court.]

[40] It is clear from the jurisprudence that specific enforcement of employment contracts is now firmly established as common practice, subject only to serious concerns about the practical consequences of restoring the status quo ante. The courts are understandably reluctant to allow parties to the employment relationship to just sidestep their binding obligations relating to the termination of employment. A common stratagem is to claim the employee has committed some other conduct tantamount to a repudiation of the contract of employment, which the employer accepts.[Wereley v Productivity SA & another (2020) 41 ILJ 997 (LC) at para [42]; ]

[1] The application is dealt with as one of urgency in terms of Rule 8(2) of the Labour Court Rules, and any non-compliance with the provisions of service and time periods is condoned.[2] The termination of the Applicants service in a letter dated 13 June 2022, was a fundamental breach of her contract of employment and the dismissal was unlawful and void ab initio.[3] The First Respondent must reinstate the Applicant without delay, with retrospective effect to 13 June 2022, and must pay the Applicant any unpaid remuneration and benefits due to her from that date.

Contempt of court order

J 1066/2020

Association Mineworkers and Construction Union obo the AMCU Members v T.W. Civils and Earthmoving (PTY) Ltd and Another (J 1066/2020) [2022] ZALCJHB 223 (8 August 2022)

[16] It follows that any claim in respect of remuneration consequent on the reinstatement ordered by the court on 21 October 2021 is a contractual claim sounding in money. It is thus not competent for the applicants to seek to hold the respondents in contempt. Their remedy is to quantify their claim and seek to execute by way of a writ of execution.

payment of remuneration

J 859/2022

Van Wyk v Khewija Engineering and Construction (J 859/2022) [2022] ZALCJHB 238 (23 August 2022)

[38] In Mthembu v Mpumalanga Economic Growth Agency[Unreported judgment under case no: J991/15 delivered on 17 June 2015 at para 19.] (Mthembu), the applicant approached the Court on an urgent basis seeking an order declaring that the agreement of employment concluded between herself and the respondent to be extant and further ordering that the respondent abides by the terms of the agreement. The applicant, in setting out the grounds for urgency, alleged that inter alia the loss of employment would result in severe irreparable financial harm, her ability to financially support her family and future career opportunities and financial commitments. The Court referred to The Democratic Nursing Organisation of South Africa and Another v Director General of Health and Others,[(2009) 30 ILJ 1845 (LC).] and Harley and stated that I nevertheless align myself with the view that the court should not as a rule of thumb, throw out urgent applications brought mainly on the grounds of financial hardship or loss of income, and should rather look at the merits of each case, ascertain whether compelling or exceptional circumstances exist for it to intervene on an urgent basis, and then exercise its discretion accordingly. In line with this approach, I further accept that an employee should be entitled to urgent relief if she can demonstrate detrimental consequences that may not be capable of being addressed in due course and if she is able to show that she will suffer irreparable hardship if the Court did not intervene on an urgent basis.[39] Further, the Court considered the right to fair labour practices (section 23) read together with the right to administrative action which is lawful, reasonable and procedurally fair (section 33)[9] and held that these rights are further amplified by section 185 of the Labour Relations Act[10]. The Court stated that [i]t therefore follows that if the employer in circumstances that appear grossly unfair or unlawful infringes these rights, the subsequent consequences of financial hardship and loss of income are factors that ordinarily arise from the infringement of these rights, and these factors should persuade the court to intervene on an urgent basis.[11]

[40] In Munthali v Passenger Rail Agency of SA[(2021) 42 ILJ 1245 (LC).] (Munthali), the applicant sought urgent relief declaring her employment contract with the respondent as extant and ordering the respondent to comply with the terms of their agreement by retrospectively reinstating her in its employ. Tlhotlhalemaje, J agreed with the position taken in Ledimo and others v Minister of Safety and Security and Others,[Unreported judgment under case no 2242/2003 delivered on 28 August 2003.] and held that there is no immutable rule that financial exigencies cannot be invoked to lay a basis for urgency.[14]

[41] In my view, a claim for payment of salary and benefits brought by an applicant, still employed and still rendering services, is different from a similar claim by a dismissed employee. The fact that the employment relationship remains intact, is a factor that weighs in favour of the employee in considering whether the matter should be heard on an urgent basis. This was alluded to in Police and Prisons Civil Rights Union on behalf of Sephanda and another v Provincial Commissioner: South African Police Services, Gauteng Province and another,[(2012) 33 ILJ 2110 (LC) at paras 5 6.] where it was held that:[5] The respondent cited a number of cases in which financial or pressures were deemed insufficient to justify urgency, on the basis that alternative mechanisms existed for a party to recover financial loss and financial pressure, as such, was not deemed to be a valid reason for treating the matter as urgent, such as Hultzer v Standard Bank of SA (Pty) Ltd (1999) 20 ILJ 1806 (LC) and Democratic Nursing Organisation of SA & Another v Director-General, Department of Health & Others (2009) 30 ILJ1845 (LC). In those cases the employees claiming payment of remuneration or continuation of benefits had already been dismissed when they initiated urgent proceedings. It stands to reason that granting relief in the form of remuneration or other benefits of employment when the very employment status of the individual is in issue, would be an extraordinary remedy.[6] However, the circumstances in this case are not strictly comparable. The applicants currently remain employees of the respondent. The drastic measure taken by the employer of stopping the applicants salaries whilst they remained employed is the exercise of an extraordinary power which makes a serious inroad into an employee's common-law employment right to be remunerated so long as one remains in employment and tenders ones services. To my mind, this is the type of situation in which a claim for payment of salary can be raised on an urgent basis, in the same way that any failure to pay wages to an employee who remains in service could give rise to an urgent application for specific performance. An employers obligation to remunerate an employee is a fundamental component of the reciprocally rendered obligations of the employment contract.

[42] The second requirement to consider is whether the applicant seeking relief will not obtain substantial relief at a later stage.

[43] The Applicant explained that he is unable to afford his medical aid contributions in the absence of receiving his full salary, which resulted in the suspension of his medical aid and which leaves him at severe risk. He further stated that the Respondents failure to pay him his salary and benefits left him unable to service his monthly financial obligations, which difficulty will only escalate further. He had to use his credit card facilities, utilised funds accessible from his universal loan and had to withdraw money from his access bond in order to stay afloat and make ends meet, awaiting the payment of his salary. He is no longer able to withdraw money from his loans as he had withdrawn all the available funds and his funds are completely depleted.[44] The Applicant is required to make payments on the bond over his primary residence and should he fail to make such payments, Absa Bank will be able to call up the entire amount and take action against him, which places him at risk to lose his primary residence and to be sequestrated.[45] In my view, the Applicant was able to demonstrate detrimental consequences that may not be capable of being addressed in due course. The Applicant made it clear that he had depleted the funds he had access to, he has no medical aid cover, and he will not be able to honour his obligations in respect of his two minor children, which is an obligation in terms of a Court order, he faces the risk of losing his primary residence and the risk of being sequestrated. These are consequences so severe and detrimental that this Court cannot expect the Applicant to suffer them and wait for redress in due course.

[46] The alternative is for the Applicant to issue summons based on a breach of contract. Such litigation will take a long time to be finalised, by when the Applicant could have already been sequestrated, lost his primary residence and was unable to provide for his family. Those consequences would not be reversed if he successfully claims his money from the Respondent in future litigation.

[53] It is trite that where an employee has rendered his or her full time services, he or she is entitled to a full salary. To withhold an employees salary makes inroad into an employee's common-law employment right to be remunerated so long as one remains in employment and tenders ones services. The fact that the Respondent is unable to pay salaries due to financial constraints, is a different issue with different remedies and is not a defence in a case such as the present.

postponeent of urgent application for 7 months no longer urgent

J221/22

Isaac and Others v Tswaing Local Municipality and Others (J221/22) [2022] ZALCJHB 323 (21 November 2022)

[8] I struggle to understand why this matter is still urgent when the applicants themselves squandered the meagrely pleaded urgency consequent to Tlhotlhalemaje Js munificent order. There is no merit in the applicants contention that the issue of urgency is res judicata. A party that seeks urgent intervention by the Court is enjoined to proffer an explanation for urgency. The fact that urgency was upheld seven months ago does not necessarily support the contention that the matter is still urgent, especially since the applicants claim pertains to a breach of contract.

[9] It is a trite principle that an enquiry on urgency involves two considerations. Firstly, whether the reasons that make the matter urgent have been adequately set out in the founding affidavit; and secondly, whether the applicant would not get substantial redress in the normal course.[Association of Mineworkers and Construction Union and others v Northam Platinum Ltd and another (2016) 37 ILJ 2840 (LC) at paras [20] [26]; National Education Health & Allied Workers Union & others v University of SA & another (2022) 43 ILJ 2351 (LC) at paras [7] - [9].] Put otherwise, as observed by the court in East Rock Trading 7 (Pty) Ltd & another v Eagle Valley Granite (Pty) Ltd & others[2011 JDR 1832 (GSJ) at para [6].], referred to with approval in Mojaki v Ngaka Modiri Molema District Municipality & others[(2015) 36 ILJ 1331 (LC) at para [17].]:'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.'

[10] The applicants failed to show that they would not get substantial redress in the normal course. In fact, their conduct in postponing the matter for a period of four months in order to engage in a settlement discussion is fatal to their claim for an urgent relief. This is the conduct that was decried by this Court, per Snyman AJ, in Association of Mineworkers and Construction Union and others v Northam Platinum Ltd and another,[Reportable judgment under case number JA 12/21 delivered on 27 September 2022 (Tswaing).] the observations therein are succinctly reprised in his recent judgment in Maphalle v National Heritage Council and Others[Unreported judgment under case no J 929/2022, delivered on 30 August 2022 at para [1] [5]];

[3] It is my view that breach of contract claims seldomly warrant being dealt with on the basis of urgency. Ordinarily, this Court should be reluctant to entertain these kinds of urgent applications, considering the fact that there is no reason, in general, why a dispute concerning the breach of a contract of employment cannot be pursued in the ordinary course, as would the case where an ordinary civil court is seized with such a contract dispute. If every breach of a contract of employment was per se urgent, then this Court would be flooded with urgent applications to overturn terminations of employment, which is simply not the kind of process fit for purpose.[4] All considered, the termination of an employment contract on notice is nothing else but a dismissal as defined in section 186(1)(a) of the LRA. Challenging such a dismissal under the LRA follows a prescribed dispute resolution process, and this does not include approaching this Court directly on an urgent basis to effect such a challenge. Whilst it is true that an employee has the election to challenge a termination of his or her employment contract either as an unfair dismissal under the LRA, or on the basis of a breach of contract, it must always be remembered that the preferred method to challenge such a termination of employment, from a general policy perspective, would be unfair dismissal proceedings under the LRA. The simple reality is that urgent applications based on alleged unlawfulness or breach of contract are often abused by litigants who seek to bypass these prescribed dispute resolution processes. As the Court held Northam Platinum supra:Whilst it may be so that a dismissal could in particular circumstances, and where the LRA is not relied upon, be considered to be unlawful and consequently invalid because of a specific provision in a contract of employment which has been breached, this cannot per se serve to jump the queue of all other dismissed employees relying on the provisions of the LRA waiting for their turn in court. This kind of situation is merely another cause of action upon which the termination of a contract of employment can be challenged in the Labour Court. But other than that it holds no particular magic.[5] It must follow that any application to approach this Court directly to challenge a dismissal on the basis of a breach of contract, as a matter of urgency, would only be competent in truly exceptional circumstances. If there are no such exceptional circumstances, then this Court should decline to step in. As to what exceptional circumstances may be, there are of course no specific hard and fast rules. But it has been said that amongst the factors to be considered would be whether it would be impossible that justice be attained by other means, or if material irremediable prejudice or injustice is shown to exist. (Own emphasis)