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IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Not Reportable

Case No: J 616/2023

In the matter between:
NELLY LETSHOLONYANE	Applicant
And
MINISTER OF THE DEPARTMENT OF HUMAN
SETTLEMENTS	First Respondent
ACTING DIRECTOR-GENERAL OF THE
DEPARTMENT OF HUMAN SETTLEMENTS	Second Respondent

 

Heard:             8 August 2023

Delivered:           This judgment was handed down electronically by circulation to the parties' legal representatives by email, and publication on the Labour Court’s website. The date and time for the hand-down is deemed to be on 14 August 2023

 

JUDGMENT

 

TLHOTLHALEMAJE, J

Introduction

[1]             This urgent application is brought before the Court in terms of Section 18(3) of the Superior Courts Act[1]. The applicant seeks an order that the operation and execution of an order issued by Makhura AJ on 15 May 2023[2], read with the judgment on application for leave to appeal handed down on 25 July 2023 under the present case number, not be suspended pending applications by the respondents for leave to appeal to the Labour Appeal Court or any other subsequent applications or appeals.

Background

[2]             The factual background to the application is succinctly set out in the main judgment of Makhura AJ, and I do not intent to repeat same other than to highlight pertinent common cause facts.

[3]             The applicant is 62 years old and intended to retire at the mandatory age of 65. She was until her dismissal on 20 April 2023, employed by the Department of Human Settlements as Deputy Director General: Corporate Services. She had 18 years of service in the Department.

[4]             On 14 March 2023 at about 19h53, the first respondent (Minister) posted a message on a WhatsApp group to inform that she was stuck in an elevator at the premises of the Department of Human Settlements. It appears that the Minister was stuck in the malfunctioning lift for about an hour before she was rescued.

[5]             A series of events took place from the morning of 15 March 2023 after the Minister had summoned the applicant to her office, and issued her with a letter of intention to summarily dismiss her for negligence related to her (Minister) being stuck in the lift. Having been informed of the allegations against her and being afforded an opportunity to show cause why she should not be dismissed, the applicant made representations.

[6]             A further meeting took place on 3 April 2023 between the applicant, the Minister and the second respondent, Acting Director General. The Minister gave the applicant three options, viz, to be dismissed; to be suspended and face a disciplinary enquiry; or to take early retirement. The applicant had opted for early retirement but had made certain proposals since that option had financial implications for her.

[7]             The Minister’s response on 14 April 2023 was to place the applicant on precautionary suspension, and further suggested that the parties should meet on 20 April 2023 to discuss the applicant’s proposals. At that meeting which the Minister did not attend, the applicant met with the Minister’s advisor, Chief Directors of Legal Services and Human Resources, and a Union official, where the proposals she had made in respect of early retirement were discussed. It appears that nothing of substance came out of that meeting. However, after that meeting, and as the applicant was driving home, she received a call from the Minister who informed her that she was dismissed with immediate effect and that a letter in that regard would follow. Indeed, such a letter was sent to her on the same day. The Acting DG also on the same day circulated a letter to staff informing them that the applicant was no longer in the employ of the Department.

[8]             The applicant then approached this Court on an urgent basis to seek a declaratory order. She had disavowed any reliance on the provisions of the Labour Relations Act^[3] (LRA) and alleged that her summary dismissal was in breach of her contract of employment read with the provisions of the SMS Handbook, and thus unlawful. She sought reinstatement and for the Minister not to terminate her services until the provisions of clause 27(2) of the SMS Handbook were complied with.

[9]             When the matter came before Makhura AJ on 3 May 2023, the respondents opposed the application for relief based on lack of urgency and the contention that the Court lacked jurisdiction to determine the application. In a judgment delivered on 15 May 2023, Makhura AJ issued an order in the following terms

1.               The respondents’ jurisdictional point is dismissed, and it is declared that this Court has jurisdiction to entertain the application.

2.               The matter is heard as one of urgency in terms of Rule 8 of the Rules for the conduct of the proceedings in the Labour Court.

3.               The decision of the first respondent to summarily dismiss the applicant from her employment on 20 April 2023 is hereby declared to be in breach of the contract of employment and chapter 7 of the SMS Handbook, and unlawful.

4.               The applicant is reinstated to her employment with effect from 20 April 2023.

5.               The first respondent or her delegate is prohibited from summarily dismissing the applicant without complying with the procedure set out in chapter 7 of the SMS Handbook 

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

[10]         Two days after the delivery of the judgment, the respondents on 17 May 2023, lodged their application for leave to appeal, which Makhura AJ dismissed on 25 July 2023. On 27 July 2023, the respondents advised the applicant of their intention to petition the Judge President for leave to appeal. Before the petition could be filed, the applicant on 01 August 2023 brought this application.

Urgency:

[11]         As was the case before Makhura AJ, the respondents again opposed the application on the grounds that the matter is not urgent. It was contended that against the time frames set out above since the delivery of the main judgment on 15 May 2023, it took the applicant about 77 days to approach the Court with this application, when at the very least, she ought to have done so as early as 17 May 2023 upon the respondents having lodged their application for leave to appeal. The respondents contend that the applicant has not proffered any explanation for the delay, nor did she make out a case for urgent relief.

[12]         I do not intent to rehash the applicable principles when an applicant seeks urgent relief. It nonetheless ought to be reiterated based on an abundance of authorities[4] that it is trite that an applicant is not entitled to rely on the urgency that is self-created when seeking a deviation from the rules, and that the more immediate the reaction by the litigant to remedy the situation by way of instituting litigation, the better it is for establishing urgency. Urgent applications by their nature are effectively a request for an indulgence from the Court to be given preference in order to prevent prejudice and/or harm that may materialise or persist, should the conduct complained of occur or persist. The Court exercises a discretion as to whether a matter ought to be accorded any urgency having had regard to a variety of factors[5]. Rule 8 of the Rules of this Court regulates the bringing of such applications and requires inter alia, that the applicant should explicitly state the reasons for urgency, why urgent relief is necessary, and the reason why it is said that substantial relief cannot be attained at a hearing in due course[6].

[13]         The applicant contends that applications in terms of section 18(3) of the SCA are inherently urgent. She further contended that the urgency was triggered on 27 July 2023 after the respondents indicated their intention to petition the Judge President for leave to appeal.

[14]         Inasmuch as it is accepted in this case that with this application, the applicant seeks to protect rights arising from a favourable Court order which fact in itself might create some urgency, I am in agreement with the approach of Wilson J set out recently in Volvo Financial Services Southern Africa (Pty) Ltd v Adamas Tkolose Trading CC[7], that the concept of ‘inherent urgency’ as contended for by the applicant is a misnomer, and that a matter is urgent because of the imminence and depth of harm that the applicant will suffer if relief is not given, not because of the category of right the applicant asserts[8]. Equally so, an applicant is still required to satisfy the requirements of urgency and those of the nature of the relief that she seeks.

[15]         The main judgment having been delivered on 15 May 2023, the respondents had as the timeline has demonstrated, lodged their application for leave to appeal within two days of that judgment. Thus, no purpose would have been achieved by the applicant filing this or any application in enforcing or executing the order pending a ruling on the leave to appeal.

[16]         Equally so, since the ruling on the leave to appeal was delivered on 25 July 2023, two days later, the respondents had given their intention to petition the Judge President for leave to appeal. Of course the suspension of the enforcement of the order of Makhura AJ fell away when the application for leave to appeal was dismissed. As at the filing of the application in terms of section 18(3) of the SCA on 01 August 2023, the respondents had not filed the petition since the dies in that regard fell on 08 August 2023. The applicant had however not waited for the respondents to file their petition and had set down this matter for a hearing on 08 August 2023. In these circumstances, given the timeline and events since the main judgment and order, one cannot speak of the urgency in this case having been self-created or that the applicant was supine.

[17]         The imminence and depth of harm that the applicant will suffer if urgent relief is not granted; whether she has demonstrated that she is without substantial redress in due course, and whether the requirements of interim relief have been satisfied, are issues which for the sake of expediency, I intend to deal with within the context of the nature of the application before the Court.

The section 18 of the SCA application:

[18]         The relevant portions of section 18 of the SCA provides that;

'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)             …

(3)             A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the 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)             …

[19]         The Supreme Court of Appeal recently in City of Tshwane Metropolitan Municipality v Vresthena (Pty) Ltd and Others[9] reiterated that an order issued in terms of section 18(3) is an extraordinary remedy reserved for exceptional circumstances[10]. This is so in that such an order empowers a high court to deviate from the general principle that pending an appeal, a judgment and attendant orders are suspended if the party requesting the court to do so can prove, on a balance of probabilities, two things, viz, that the applicant must demonstrate that she will suffer irreparable harm if the court does not issue the requested order. Secondly, she must show that the other party involved will not suffer irreparable harm if the court grants the requested order. The SCA further reiterated that the provision allows the court to consider the potential harm to both parties and make a decision that aims to prevent irreparable harm to the party seeking the order because of the extreme nature of the remedy.

Exceptional circumstances:

[20]         The issue is whether the applicant in this case has demonstrated exceptional circumstances, in terms of section 18(2), to justify reversing the ordinary rule of the suspension of the order pending an appeal. As to what constitutes exceptional circumstances was set out in Ntlemeza v Helen Suzman Foundation and Another[11], with particular reference to Incubeta Holdings & another v Ellis & another[12]. Arising from the latter authority is that exceptionality is fact-specific, and that the circumstances deemed exceptional must be derived from the actual predicaments the applicant finds herself in[13].

[21]         The applicant alleges that the exceptional circumstances arise from the judgment of Makhura AJ to the extent that her dismissal was declared to be in breach of the employment contract and SMS Handbook and thus unlawful; that she is 62 years with 18 years of service and left with less than three years before she retires; and that she is deprived of a salary which has a negative impact on her monthly financial obligations. She laments the prospects of this matter being protracted as there was a likelihood of it being a subject of appeals by the respondents ending up in the apex court. She contends that pending a series of anticipated appeals, she will in the meanwhile, remain without an income until her retirement age. The consequences thereof are that any victory even if at the finalisation of all appeals would be pyrrhic, as she would no longer be in a position to be reinstated into her position.

[22]         The respondents submit that the applicant’s assertions are not supported by any proof; that they are not fact specific and that she had essentially failed to demonstrate exceptional circumstances to satisfy the requisites of section 18 of the SCA.

[23]         As stated in Incubeta, whether “exceptional circumstances” exist or not is a fact-specific enquiry, with “circumstances which are or may be ‘exceptional’ must be derived from the actual predicaments in which the applicant finds herself in. Against this principle, it is my view that there is indeed merit in the applicant’s submissions that her exceptional circumstances arise out of the conduct of the Minister upon being stuck in the lift, and the conclusions reached in the main judgment in respect of that conduct by Makhura AJ.

[24]         Makhura AJ had found that the applicant in approaching the Court in the manner she did, had disavowed any reliance on the provisions of the LRA, and had pleaded her case based on a breach of contract, hence reliance on the provisions of sections 77(3) and 77A(e) of the Basic Conditions of Employment Act[14] (BCEA). It was on this ground that it was found that the jurisdiction of the Court was engaged[15]. Having made that determination, Makhura AJ had appreciated that the merits of the dismissal of the applicant were not an issue before him, but that in the light of the common cause fact that she was dismissed, the issue was whether it was effected in compliance with the contract and/or the SMS Handbook.

[25]         Makhura AJ having considered the applicant’s contention that the Minister had acted as the victim or complainant, witness, initiator, and had pronounced on the sanction of a dismissal, her (Minister’s) conduct was unacceptable, particularly since the applicant was denied an opportunity to present her case on the merits of the allegations and to make any submissions in mitigation. It was concluded that the Minister disregarded the provisions of the SMS Handbook, and assumed powers she did not have by pronouncing a sanction. Her conduct concluded Makhura AJ, was unlawful, and ought not be condoned by courts of law.

[26]         In the light of those conclusions, and further it being common cause that the services of the applicant were terminated in the manner described, it is my view that allowing the suspension of the implementation of the order of Makhura AJ to stand consequent the petition for leave to appeal and/or any other further applications for leave to appeal, would clearly amount to countenancing the unlawful conduct of the Minister to continue unabated. Without being bogged down with the merits or otherwise of the reasons for dismissal, the respondents clearly adopted a deplorable and gung-ho posture in dismissing the applicant, irrespective of the nature of the trauma the Minister may have endured whilst stuck in the elevator. Clearly as found by Makhura AJ, the Minister had acted as a ‘victim’, prosecutor, and executioner in summarily dismissing the applicant. This Court will be failing in its constitutional obligations in permitting such conduct to continue in that based on the facts, it represents the very antithesis of what is expected in a constitutional democracy. Surely the respondents in their positions ought to have known better.

[27]         The applicant’s other submissions related to being deprived of an income and consequently being unable to meet her financial obligations, were for some reason, downplayed by the respondents to the extent that they were not supported by any documentary evidence. It can however not be disputed that the applicant since 20 April 2023 remains unemployed and without an income, which has clearly placed her in a predicament based on the respondents’ conduct. Based on her case before Makhura AJ, it cannot be said that the applicant enjoys any remedy bar an immediate reinstatement, to address that predicament. Of course it is not suggested that the applicant is of right entitled to reinstatement irrespective of the merits of the facts that led to her dismissal. It is however the conduct of the respondents and the manner of the applicant’s dismissal that placed her in that predicament.

[28]         Thus, even if the predicament she finds herself in is an ordinary consequence of a loss of a job, that predicament derives from the exceptionally peculiar and unlawful conduct of the respondents which as I have already indicated, ought not be countenanced. Within a constitutional democracy, it is not common for an employer or let alone a Cabinet Minister, to summarily dismiss an employee without any due process being followed, irrespective of the nature of the misconduct complained of. Accordingly, for reasons given as considered either individually or cumulatively, these constitute exceptional circumstances, and I therefor agree with the applicant that she is entitled to the relief she seeks.

Irreparable harm:

[29]         The applicant is required to demonstrate on a balance of probabilities that she will suffer irreparable harm if the operation and execution of the order is not given interim effect; and further that the respondents will not suffer irreparable harm if the order is immediately put into operation. The irreparable harm requirement in such applications is met if a reasonable person, confronted by the facts, would apprehend the probability of harm. Thus, actual harm need not be established upon a balance of probabilities and thus on the face of it, the test seems less stringent[16].

[30]         The applicant again relies on a loss of salary since her dismissal and a further period as a consequence of anticipated leaves to appeal. The respondents on the other hand contend that the department stands to suffer far more harm than the applicant in the event that she came back to work, and that her presence will cause disruption which cannot be undone. The respondents further submit that the applicant’s reinstatement will entail that she be placed on paid suspension, and that the department would be unable to recoup such payments should she not succeed on appeal. It was submitted that the applicant on the other hand will be able to recoup all of her salaries and benefits in the event that the respondents’ appeal fails.

[31]         It is my view that my conclusions in regards to the applicant having demonstrated exceptional circumstances should be dispositive of whether she had equally demonstrated on a balance of probabilities, that she stands to suffer irreparable harm. The harm complained of ought to be considered within the context of the respondents’ continued unlawful conduct as concluded by Makhura AJ. It would be remiss of the Court not to appreciate that such conduct had resulted in an irreparable harm to the applicant, in view of the circumstances she now finds herself in. Inasmuch as the applicant had not placed supporting documents regarding the financial prejudice, she would continue to suffer pending any appeals, this in my view ought not to be the basis for a conclusion to be reached that she will not suffer irreparable harm. As already indicated, the test in this regard is less stringent, but what is apparent in the light of the conduct of the respondents and the detrimental consequences thereof on the applicant, is that these consequences, even if remedied some years later, will indeed be small comfort to her.

[32]         On the opposite scale, the respondents cannot speak of any discernible irreparable harm in circumstances where the order of Makhura AJ had specifically considered their right to proceed to discipline the applicant, albeit in accordance with the provisions of Chapter 7 of the SMS Handbook. This is what the respondents ought to have done in the first place, and it is inexplicable that they would persist under the wrong impression that it was legally permissible for them to dismiss the applicant in the manner they did. The issue of the applicant having to return to work and being placed on paid suspension is neither here nor there. This is so in that nothing prevents the respondents from completing the disciplinary enquiry timeously and in accordance with the standing prescripts.

Prospects of success on appeal:

[33]         The respondents implored the Court to have regard to their prospects of success on appeal, it being contended that once the applicant had failed to satisfy the requisites of section 18(3), her prospects should not count. The Court need not say more on this issue in the light of its conclusions on these requisites having been met. Central to the contentions before Makhura AJ was whether this Court had jurisdiction. Whether the respondents have prospects of success on appeal in that regard is an issue which this Court ought to recede into the background, in the light of the pending petition before the Judge President. In any event, a determination on the prospects of success would not have had any bearing on the conclusions I have already reached.

Conclusions:

[34]         I am satisfied that the applicant has met the requirements of urgency and of the relief that she seeks. As evident from  the nature of her primary case before Makhura AJ, she is without substantial redress in due course should the matter not be accorded urgency.

[35]         I am further satisfied that the applicant has demonstrated exceptional circumstances, and had further on a balance of probabilities, demonstrated that she will suffer irreparable harm if the relief sought in this application is not granted. On the other hand, in the light of the respondents’ conduct in dismissing the applicant, and further in the light of the nature of orders issued by Makhura AJ upon a finding of unlawfulness, it cannot be said that the respondents will suffer any irreparable harm.

[36]         Given the nature of the application before the Court, and the circumstances that the applicant had complained of as a result of the respondents’ conduct, it further follows that the Court ought to exercise its discretion in her favour in regards to costs. Accordingly, the respondents ought to be burdened with the costs of this application.

[37]         Accordingly, the following order is made;

Order:

1.               The applicant’s application is accorded urgency.

2.               The operation and execution of the order granted in favour of the applicant on 15 May 2023 under the present case number by Makhura AJ is not suspended in terms of section 18(1) read with 18(3) of the Superior Court Act 10 of 2013, pending the application and petition for leave to appeal, or any subsequent applications or appeals.

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

 

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

 

APPEARANCES:
For the Applicant:	V.J. Chabane,
	instructed by Z & Z Ngogodo Attorneys Inc
For the 1st - 2nd Respondents:	Professor T. Madima SC with M. Makwela,
	instructed by State Attorney: Pretoria

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