the labour court of South Africa,
held AT CAPE town

Case: C356/2022

Of Interest to other judges/Reportable

In the matter between:
 
DR KWAZI NDLOVU	Applicant

and

THE MEC FOR THE DEPARTMENT 
OF HEALTH, WESTERN CAPE	Respondent

Date of Hearing: 4 August 2022

Date of Judgment:  This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 10 August 2022

Summary: (Urgent application for relief pending outcome of unfair dismissal arbitration – Insufficiency grounds for degree of urgency demonstrated – Importance of following clause 12 of Labour Court Practice Manual in urgent applications – ability of parties and court to deal with the merits cannot rescue application brought with insufficient notice) 

JUDGMENT

LAGRANGE J 

Introduction

[1]	This is an opposed urgent application. The substantive relief sought is to interdict the respondent (‘the department’), pending the finalisation of unfair dismissal legal proceedings between the applicant (Dr Ndlovu) and the department from:

1.1	considering any applications for the job advertised by the department for the appointment of Head of Clinic Unit in the Division of Nephrology and Hypertension (‘the clinical unit’) at Groote Schuur Hospital (‘the hospital’), or alternatively

1.2	to interdict the department from appointing anyone to the position.

[2]	At the end of the hearing, the department undertook not to take any further steps pursuant to appointing a head of the clinical unit, pending judgment being handed down on 10 August 2022.

Factual background

[3]	On or about 26 March 2020, Dr Ndlovu was appointed as the head of the clinical unit and held this position until 11 May 2022 when he was dismissed on a number of charges of misconduct after a lengthy internal enquiry. His internal appeal was dismissed on 3 June 2022. On 14 July 2022 he referred an unfair dismissal dispute to the Public Health and Welfare Sector Bargaining Council (‘the council’) where it is currently subject to arbitration, which is due to resume on 25 August 2022.

[4]	On about 16 July 2022, it came to Dr Ndlovu’s attention that the department had advertised the position he formerly held. His attorneys wrote to the department on 20 July 2022 complaining that it was premature to advertise the post when Dr Ndlovu’s prospects of success in his unfair dismissal claim were strong and filling the position would make it unlikely he would be able to obtain reinstatement as a form of relief if he was successful. They called on the department to withdraw the advertisement by midday the following day and giving a written undertaking that it would not advertise the post or consider any applications submitted pending the finalisation of the litigation between Dr Ndlovu and the department. The letter warned that if the department did not take such steps he would proceed to bring an urgent application for such relief. The department did not respond.

Urgency

[5]	The application was launched on 1 August and enrolled for hearing on 4 August 2022, giving the respondent until 2 August to file its answering affidavit. As it happened, despite the extremely short notice the department managed to file an answering affidavit by 3 August and Dr Ndlovu filed a replying affidavit by the time the matter was heard on 4 August. 

[6]	The department contended that no basis had been made in the founding affidavit for bringing the application on such short notice. Indeed, the sole basis for any degree of urgency pleaded in the founding affidavit is based entirely on the department failing to respond to the letter from Dr Ndlovu’s attorneys on 20 July 2022.  

[7]	When the court enquired why the application had been launched and enrolled on such short notice, the answer given was that 4 August was the date the Registrar had provided for the hearing. In the circumstances, it ought to have been obvious to Dr Ndlovu’s legal representatives that a later date should have been requested, such as the following Thursday, given that the following Tuesday was a public holiday, unless there was sound justification for believing that would be too late. 

[8]	A party cannot simply rely on the first available Tuesday or Thursday, which are the normal days for enrolling urgent applications, as an  indication that it would be reasonable to launch an application 3 court days before that.  Parties wishing to launch urgent proceedings need pay heed to clause 12 of the Labour Court Practice Manual dealing with urgent applications and in particular clauses 12.9 to 12.11.

[9]	In his replying affidavit, no doubt in an effort to provide some justification for the extremely short time period afforded the department, Dr Ndlovu argues that because the application was forwarded electronically on 29 July, the respondent had an opportunity to peruse and draft papers over the weekend. He does not state when the application was transmitted that Friday so the court does not even know if the department would have been aware of it until the following Monday. In any event, this should have been pleaded in the founding affidavit in support of the application so the department could have dealt with it.

[10]	Quite apart from the short time afforded for opposing the application, the need for the matter to be heard on 4 August was not explained. In his founding affidavit, Dr Ndlovu sets out no basis for believing the appointment of a new head of the clinical unit was likely to take place within the next week or even ten days. Solely because the department did not respond to his attorney’s letter of 20 July 2022, he avers that ‘it would appear that the Respondent is forging ahead with the process to advertise and appoint someone to that particular post’.  Doubtless, it was reasonable to believe that the department was not willing to stop the recruitment process it had embarked on, but that was not sufficient to justify bringing the application on such short notice. There was no other averment made suggesting that if the matter was not heard on 4 August, an appointment might be made soon thereafter.

[11]	Moreover, in the department’s answering affidavit, deposed to by the Deputy Director of Labour Relations, he estimates that the appointment process would take two months to finalise. Dr Ndlovu does not take issue with this in his replying affidavit. 

Merits

[12]	At the hearing both the urgency and the merits were argued and, in the event of the merits being considered, the parties were asked to make additional submissions on certain jurisprudence pertinent to the merits. However, the ability of the court and the parties to deal with merits when the application was heard does not sweep under the carpet the requirement that the requisite degree of urgency must first be met.

[13]	For the reasons discussed above, the application fails for lack of urgency and the merits cannot be entertained.

Costs

[14]	Whilst there was no justification for launching the application on such an urgent basis, I accept that Dr Ndlovu and his legal advisor’s might bona fide believe that he has a right to prevent a permanent appointment to preserve his remedies for a substantively unfair dismissal, even if that belief might prove to be wrong. Taking that into account and the fact that there might be a prospect of the employment relationship being restored, I believe the requirements of law and fairness do not warrant a cost award in this instance.

Order

[1]	The application is struck off the roll for lack of urgency.

[2]	Each party is to pay their own costs.

Lagrange J
Judge of the Labour Court of South Africa

Appearances/Representatives

For the Applicant	T Mayosi instructed by Mvana Inc.

For the Respondent	R Nyman instructed by the State Attorney