South Africa: North Gauteng High Court, Pretoria Support SAFLII

You are here:  SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2019 >> [2019] ZAGPPHC 965

| Noteup | LawCite

Masinga and Others v Chief of the South African National Defence Force and Others (27234/19) [2019] ZAGPPHC 965 (5 December 2019)

Download original files

PDF format

RTF format

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)     REPORTABLE: NO

(2)     OF INTEREST TO OTHER JUDGES: NO

(3)     REVISED.

 

Case NO: 27234/19

5/12/2019

 

In the matter between:

 

WILLIAM FRANCE MASINGA                                                  1st  APPLICANT

RIRHANDZU JOY KHOSA AND 33 OTHERS                          2nd  to 35th APPLICANTS

 

and

 

CHIEF OF THE SOUTH AFRICAN NATIONAL

DEFENCE FORCE                                                                         1st  RESPONDENT

THE MINISTER OF DEFENCE AND MILITARY

VETERANS                                                                                      2nd RESPONDENT

THE SURGEON GENERAL OF THE NATIONAL

DEFENCE FORCE                                                                         3rd  RESPONDENT

THE SECRETARY OF DEFENCE                                               4th  RESPONDENT




JUDGMENT: SECTION 18(3) APPLICATION

BASSON J

[1]          On 19 July 2019 the following order was made:

" ORDER

[34]              In the event, the following order is made:

1.        Condonation is granted for the non-compliance with the Rules of Court in respect of the time, form and service of this application and it is ordered that the application be heard as an urgent application.

2.        It is declared that the first respondent's decision to terminate the first to 35th  applicants' service with the South African National Defence Force ('SANDF') is unlawful and invalid.

3.        The first respondent's decision to terminate the first to 35th  applicants' service is reviewed and set aside.

4.        The first to 35th  applicants are reinstated within seven days from the date of this order in the service of the SANDF with full retrospective effect, with retention of all salaries and benefits as from the date of the unlawful termination of their service.

5.        The respondents, jointly and severally the one paying the other to be absolved, are ordered to pay the cost of this application."

 

[2]          On 13 September 2019, the respondents were granted leave to appeal to the Full Court of this division. The applicants launched an application in terms of section 18(3) of the Superior Courts Act[1] ("the Act") seeking an order, on an urgent basis, that the above order of this Court be put into effect pending the appeal or any future appeal processes. Although initially placed in issue, urgency was no longer in dispute when the matter was argued.

 

SECTION 18 OF THE SUPERIOR COURTS ACT

[3]          Section 18(1); (2) and (3) of the Act reads as follows:

“18 Suspension of decision pending appeal

[1]   Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.

[2]   Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision that is an interlocutory order not having the effect of a final judgment, which is the subject of an application for leave to appeal or of an appeal, is not suspended pending the decision of the application or appeal.

[3]   A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders."

 

[4]          The effect of section 18(1) of the Act is that an order is suspended pending an appeal. A party requiring the operation and execution of a decision (subject to an appeal) to be implemented, must therefore apply to the court for relief that the order be made operational and to enforce the execution thereof pending the outcome of the appeal process.

[5]          In lncubeta Holdings (Pty) Ltd and Another v Ellis and Another,[2] upon evaluating the text of section 18, the court confirmed that the following requirements must be met before an order, which is subject to an application for leave to appeal or an appeal, can be enforced:

"[16] It seems to me that there is indeed a new dimension introduced to the test by the provisions of s 18. The test is twofold. The requirements are:

•     First, whether or not 'exceptional circumstances' exist; and

•     Second, proof on a balance of probabilities by the applicant of -

o        the presence of irreparable harm to the applicant/victor, who wants to put into operation and execute the order; and

o       the absence of irreparable harm to the respondent/loser, who seeks leave to appeal."

 

[6]          The first leg of the enquiry entails that an applicant must prove (as a sine qua non) on a balance of probabilities, that it will suffer irreparable harm should the order not be implemented and that the other party will not suffer irreparable harm if execution of the order is allowed (the enquiry as to irreparable harm). A court will only proceed to the second leg of the enquiry once the applicant has established the first legal of the enquiry in the affirmative. In terms of the second leg of the enquiry, the court will consider the question of exceptional circumstances (the enquiry as to exceptional circumstances).[3] Whether exceptional circumstances exist is a question of fact. To be exceptional means "a deviation  from the norm".[4]  Prospects  of success  in the application  for leave to appeal or the appeal itself are also relevant considerations. For example, if the prospects of success are so poor it may create "a sufficient degree of exceptionality to justify an order in terms of section 18 of the Act'.[5]

 

IRREPARABLE HARM

[7]          By way of introduction, the applicant submitted that it should be taken into account that, like everyone else, they have the right to fair labour practices.[6] Consequently it was submitted that this application should be considered in its proper context, which is the employment context.

[8]          The irreparable harm that the applicants contend they will suffer is somewhat intertwined with the submissions pertaining to the second leg of the enquiry namely the exceptional circumstances within which these applicants find themselves, which is the employment context. Although I am mindful of the fact that the enquiry into exceptional circumstances only arises once the enquiry into irreparable harm has been determined in the affirmative, I will in the course of considering whether or not the applicants have satisfied the requirement of irreparable harm, refer to the exceptional circumstances within which these applicants (as employees) found themselves.

[9]          The applicants, unlike employees in the public and private sector, do not have the benefit of the expedited dispute resolution measures provided for in the Labour Relations Act[7] ("the LRA"). One of the main objectives of the LRA is to have labour disputes resolved speedily. The LRA echoes the constitutionally recognised principle of fair labour practices for everyone which includes a speedy resolution of labour disputes. Although the applicants (as members of the SANDF) are excluded from the ambit of the LRA, it was submitted that the principle of a speedy resolution of labour disputes should equally apply to members of the SANDF, particularly insofar as section 23 of the Constitution provides for the right to fair labour practices. Consequently, because the High Court (and not the Commission for Conciliation and Arbitration and/or the Labour Court) is the primary forum which members of the SANDF must approach for relief, the High Court should likewise consider the need to speedily resolve disputes of this nature as a persuasive consideration to such an extent that it, in itself, creates exceptional circumstances which should persuade the High Court to grant relief in terms of section 18(3) of the Act.

[10]      More specific to the first leg of the enquiry, it was submitted that it is clear that, because the applicants are now, as a result of the suspension of this Court's order, without employment and an income, their livelihood is threatened. Not only is their own livelihood being threated, but also that of their next-of-kin, wives, children, parents and/or other relatives that are dependent on the financial support provided for by the applicants. Moreover, as a result of their unemployment status, the applicants are at risk of losing their houses, motor vehicles and other assets.

[11]       The Labour Court has recognised that dire personal financial circumstances are sufficient to create exceptional circumstances justifying an order in terms of section 18(3) of the Act.[8] On behalf of the applicants it was further submitted that it is highly unlikely, if not impossible, that the applicants will find alternative employment, temporary or otherwise, enabling them to make a living and to survive financially and otherwise, until the conclusion of the appeal in this matter and that they will therefore suffer irreparable harm as a result thereof.

[12]       On behalf of the respondents it was submitted that it will be an administrative nightmare, in the event of the respondents succeeding on appeal, to reverse the benefits resulting from their temporary reinstatement particularly in respect of the Government Pensions Fund. It was also submitted that the applicants in this case are in no position to furnish adequate security or any security at all.

[13]       The applicants disputed the respondents' claim of (irreparable) financial harm particularly in light of the fact that the respondents will have the benefit and fruits of the applicants' labour if they are reinstated. Considering this, and even in the event that the appeal succeeds, the respondents will therefore not be able to claim that the SANDF has been impoverished as the applicants would be rendering their full service pending the outcome of the appeal.

[14]       The respondents also raised an issue regarding the positions which were previously occupied by the applicants (prior to the termination of their employment) and submitted that these positions no longer exist. They also submitted that some of the posts were fixed term contracts which would expire in due course.

[15]      In respect of the first issue, the applicants submitted that there no claim was made on behalf of the respondents that it will be impossible to comply with the contracts. There are, so it was submitted, still posts for the applicants to fill.  In respect of the fixed term contracts it is submitted that it is not in dispute that some of these contracts will only expire from on or about 2023. The respondents therefore will not suffer irreparable harm.

[16]      Regarding the prospects of success, it was submitted on behalf of the applicants that the respondents' prospects of success are so poor that it in itself creates exceptional reasons why the court should grant relief in terms of the provisions of section 18(3) of the Act. This is a difficult consideration for a court that has already granted leave to appeal. I have nonetheless taken this consideration into account. Given the circumstances of this matter, I am not persuaded that the mere fact that leave to appeal was granted should stand in the way of this court granting an order enforcing the order pending the outcome of the appeal.

 

CONCLUSION

[17]       Having regard to the circumstances of these applicants, I am persuaded that they have, on a balance of probabilities, established that if the order is not put into operation, they will suffer irreparable harm. They will effectively become unemployed with the resultant financial hardship that will not only befall them, but also those who are financially dependent on them. They are also at risk of losing their houses, motor vehicles and other assets. On the other hand, I am not persuaded that the respondents will suffer irreparable harm. Although there may be some administrative challenges in implementing the order, this should not stand in the way of granting the application. Moreover, given the fact that the respondents will be benefitting from the fruits of the applicants' labour pending the outcome of the appeal, I am persuaded that the respondents will indeed not suffer irreparable harm should the order be granted.

[18]       I am also persuaded that exceptional circumstances exist for the granting of the order. The applicants are already in a disadvantageous position compared to other employees in that they are excluded from the LRA's speedy dispute resolution procedures. The fact that they have been excluded from the dispute resolution processes places them at a disadvantaged position in that they have to wait a considerably long time for the outcome of an appeal process. This, in my view, constitutes exceptional circumstances warranting the order to be enforced pending the outcome of the appeal process.

[19]       Lastly, as to the submission regarding existing fixed term contracts, this Court's order does not interfere with the contractual relationship between the parties once it has been restored. A fixed term contract that is about to expire will run its course.

[20]       I am therefore satisfied that the applicants are entitled to the order sought in terms of section 18(3) of the Act.

[21]       In the event the following order is made:

(i)            The application in terms of section 18(3) of the Superior Courts Act, 2013 is granted.

(ii)           The respondents are ordered, jointly and severally, the one paying the other to be absolved, to pay the costs of this application.

 

 

 



A.C. BASSON

JUDGE OF THE GAUTENG

DIVISION, PRETORIA

 

 

 

 

APPEARANCES

For the applicants:              Adv GL Van Der Westhuizen

Instructed by:                     Griesel & Breytenbach Attorneys

For the respondents:          Adv OT Skosana

                                          SC Adv T Lupuwana

Instructed by:                     State Attorney




[1] 10 of 2013.

[2] 2014 (3) SA 189 (GJ).  See also University of the Free State v Afriforum and Another 2018 (3) SA 428 (SCA) at paras [13] - ]14].

[3] Or as stated in Autumn Skies Resources and Logistics (Pty) Ltd v Genet Manganese (Pty) Ltd (Full Bench of the North Gauteng High Court). Case number: A264/2019. Delivered on 25 October 2019: "[24] It seems to me that the words in section 18 (3) - "A court may only order otherwise as contemplated in subsection (1) or (2) " (my emphasis) indicate that it is a sine qua non for the granting of an order allowing execution, that the applicant must prove that it will suffer irreparable harm should the order not be implemented, and in addition, it must prove that the other party will not suffer irreparable harm if execution is allowed . This is the first leg of the enquiry. If either question is answered in the negative, the existence or not of exceptional circumstances is moot. Only once those questions have been determined in the affirmative can the question of 'exceptional circumstances' be addressed as a second leg of the enquiry." And further para [26] the court held as follows: " Once the 'irreparable harm' hurdle is crossed, a wider consideration is necessary, to determine whether 'exceptional circumstances ' exist that justify the deviation from the default position that the appeal suspends execution."

[1]           [4] lncubeta supra n 2 at para [22]. And at para [27], the court in Genet supra n 2 with reference to MV Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas, and  Another 2002 (6) SA 150 (C)   considered the meaning of "exceptional circumstances" and concluded as follows: "[27] The meaning of "exceptional circumstances" was considered in Mv Ais Mamas Seatrans Maritime v Owners, Mv Ais Mamas, and another4 (referred to with approval in lncubeta Holdings). The approach in this matter can be summarized as follows: (27.1] The words "exceptional circumstances" contemplate something out of the ordinary or of an unusual nature; (27.2] The circumstances must arise from, or be incidental to, the case; (27.3] The determination whether exceptional circumstances exist does not depend on the exercise of a judicial discretion, but is a fact-based exercise;[27.4] Depending on the context of its use, the phrase 'exceptional circumstances' has a primary meaning of 'unusual' or 'different', or in its secondary meaning, 'markedly unusual' or 'specially different'; [27.5] Where in a statute it is directed that a fixed rule shall be departed from only in exceptional circumstances, a strict rather than liberal meaning should be given to the phrase." See also University of the Free State v Afriforum and Another supra n 2 at para [10] where the SCA held: "[10] It is further apparent that the requirements introduced by s 18(1) and (3) are more onerous than those of the common law. Apart from the requirement of 'exceptional circumstances' in s 18(1), s 18(3) requires the applicant 'in addition' to prove on a balance of probabilities that he or she 'will' suffer irreparable harm if the order is not made, and that the other party 'will not' suffer irreparable harm if the order is made. The application of rule 49(11) required a weighing-up of the potentiality of irreparable harm or prejudice being sustained by the respective parties and, where there was a potentiality of harm or prejudice to both of the parties, a weighing-up of the balance of hardship or convenience, as the case may be, was required. Section 18(3), however, has introduced a higher threshold, namely proof on a balance of probabilities that the applicant will suffer irreparable harm if the order is not granted, and conversely that the respondent will not if the order is granted."

[5] University of the Free State v Afriforum and Another supra n 2 at para [15].

[6] Section 23(1) of the Constitution of the Republic of South Africa, 1996.

[7] 66 of 1995.

[8] See Wenum v Maquassi Hills Local Municipality [2017] 7 BLLR 736 (LC) where the court, stated as follows: "[13] As Van Niekerk J pointed out in Harley v Bacarac Trading 39 (Pty) Ltd: '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."' Similarly, in lncubeta Holdings supra n 2 at para [24], it was recognised that the hardship a party may suffer is a relevant consideration in section 18(3) matters.