FORM A
	  FILING SHEET FOR EASTERN CAPE JUDGMENT

								ECJ no:  191 

PARTIES:  PHUMLA DWANE-ALPMAN v THE PREMIER, EASTERN CAPE

REFERENCE NUMBERS –
•	Registrar: 485/2007
•	Magistrate:
•	Supreme Court of appeal/Constitutional Court: BHISHO HIGH COURT

DATE OF HEARING:  26 July 2007   
DATE DELIVERED:    July 2007

JUDGE(S): Kroon J

LEGAL REPRESENTATIVES –
Appearances:

•	for the State/Applicant(s)Appellant(s): I J Smuts S C and P N Kroon
•	for the accused/respondent(s): J W Eksteen S C and G H Bloem

Instructing attorneys:
•	Applicant(s)/Appellant(s):  Hutton & Cook
•	Respondent(s):    State Attorney

CASE INFORMATION –
•	Topic:
•	Keywords:

IN THE HIGH COURT OF SOUTH AFRICA

(BHISHO)						      Case No.  485/2007

In the matter between:

PHUMLA DWANE-ALPMAN						Applicant

and

THE PREMIER, EASTERN CAPE					           Respondent			
________________________________________________________________________

JUDGMENT
________________________________________________________________________
	
Kroon, J:

INTRODUCTION

[1]   The applicant instituted proceedings as a matter of urgency.  The substantive relief sought by her as formulated by counsel at the conclusion of argument may be restated as follows:	

an order reinstating the applicant forthwith and with retrospective effect to 7 July 2007, to her position as special advisor to the office of the Premier, Eastern Cape, with full benefits, pending the determination of mediation and  arbitration proceedings as provided for in the contract, annexure PN1 to the applicant’s founding affidavit.

[2]	I will deal later with the disputed issue of whether the application was properly brought on the basis of urgency.  At this stage I record the trite statement that the requirements for the grant of interim relief are those applicable to the adjudication of applications for interim interdicts, viz:

(a)	a clear right or a right prima facieestablished though open to some doubt;
(b)	a well established apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is granted;
(c)	a balance of convenience in favour of the grant of interim relief;
(d)	the absence of any other satisfactory remedy.

[3]	For the sake of convenience the respondent will be referred to as the Premier.  

BACKGROUND

[4]	During an informal discussion between the parties during July 2006 the applicant, who was then employed by the National Prosecuting Authority as a Senior State Advocate in Pretoria, enquired of the Premier whether there were not any government posts available for her in the Eastern Cape.  The Premier intimated that there was indeed a need for the appointment, in terms of s12A of the Public Service Act, 1994 (“the Act”), of a specialist legal advisor in her office.  At the Premier’s request the applicant submitted her curriculum vitaeto her.  The Premier decided to appoint the applicant  to the post in question and, after securing the necessary approval therefor of the Minister of Public Service and Administration and of the Eastern Cape Executive Council, instructed her Personal Assistant, Mr Rich, to address the letter, annexure NB4, dated 21 September 2006 to the applicant.  Therein the applicant  was advised of the aforesaid approval, that her appointment was subject to her resigning from her position with the National Prosecuting Authority, that the position would be contractually linked to the term of office of the Premier, that the applicant would be contacted by certain officials for the necessary documentation and the finalisation of the terms of the contract for her signature and that the applicant should advise the intended date of her assumption of duties for the agreement of the Premier.  Pursuant thereto the applicant resigned her position with the National Prosecuting Authority, attended on the Premier on 5 December 2006 for her assumption of duties, and commenced work in the office of the Premier.

[5]	A draft contract of employment was presented to the applicant by an official in the Premier’s legal department and, after certain amendments had been effected thereto, the final version of the contract, styled “SPECIAL  ADVISER’S  CONTRACT”, entered into between the Eastern Cape Provincial Government (“the Employer”), represented by the Premier, and the applicant (“the Special Adviser”) (annexure PN1), was signed by the parties on 14 December 2006.

[6]	The agreement provided inter aliaas follows:

	“2.	DURATION AND TERMS OF APPOINTMENT

2.1	The Employer hereby appoints the Special Adviser, who agrees and accepts appointment as Special Adviser to the Premier, Mrs. N Balindlela, in terms of Section 12A of the Public Service Act, 1994 (Act No. 103 of 1994) as amended.

2.2	The appointment will further be in accordance with a Performance Agreement to be concluded between the Honourable Premier and the Special Adviser subsequent to the signing of this contract.

2.3	This appointment is for a period which co-incides with the term of office of the current Premier, Mrs N Balindlela, commencing on the 5th day of December 2006.  

2.4	The Employer reserves the right not to renew this contract on extension of the Premiers term of office.

2.5	The appointment of the Special Adviser is subject to a 12 (twelve) month probation period.

3.	REMUNERATION

3.1	The remuneration that the Special Adviser will receive as from the date of assumption of duty is a salary package of R558 306 (five hundred and fifty eight thousand three hundred and six rand) per annum.

……

3.3	    The salary package as indicated above is an all inclusive package and includes the employees contribution in terms of medical aid, a car and housing allowance.

……

4.	TERMINATION

4.1	The term of office of the Special Adviser may be terminated in the following ways:

4.1.1.	On expiry of the Premiers term of office or extended term of office;

4.1.2.	Discharge in terms of any of the subsections of section 17 of the Public Service Act (the Act).

4.1.3.	Voluntary resignation

4.1.4.	Death

4.2	Either party may, after consultation and agreement, terminate the Contract before the expiry of an original term of office or an extended term of office, by giving the other party one months’ notice of termination,  which notice shall –

4.2.1	be given in writing; and

4.2.2	be given on or  before the last day of the month and take effect on the first day of the succeeding month.

……

7.	PERFORMANCE

The Special Adviser shall render the services as set out in the Performance Agreement to be concluded subsequent to the signing of this agreement.

7.1	The Honourable Premier or her authorised representative shall be the supervisor and the reporting officer of the Special Adviser.

7.2	The Special Adviser will enter into a performance agreement with the Honourable Premier within one month from date of the parties to this agreement having appended their respective signatures thereto. 

13.	APPLICABILITY OF THE CONTRACT

Any matters arising from this Contract, which are not specifically provided for herein, shall be dealt with in accordance with the provisions of the Public Service Act, 1994, as amended, the aforesaid Public Service Regulations, applicable collective agreements, cabinet resolutions and other relevant legislation.

Notwithstanding the date of the signing of this contract, this contract will commence as of the 5 December 2006.

               ……
15.	(This clause provided that in the event of any disputes or differences arising between the parties concerning, in short, the subject matter of the agreement, either party could refer same for mediation by a single mediator and, in the event of either party being dissatisfied with the mediator’s opinion, such party could refer the dispute to arbitration by a single arbitrator, whose decision would be final).”

[7]	The work performed by the applicant during her tenure of office was in accordance with instructions received from the Premier, either personally or viaher Director-General, her Chief of Staff or her Personal Assistant.

[8]	The Premier gave instructions to the Director-General to facilitate the completion by the applicant  of the performance agreement to be signed by her and the Premier, and the applicant was requested by the Premier to liase with the Director-General to “flesh out her duties” with a view to preparing a performance agreement for the Premier’s consideration. 

	However, as will appear below, contact between the Director-General and the applicant only ensued at a later date.

[9]	The Premier makes the allegation that the applicant refused to meet with the Director-General and, given the importance of this process in shaping the applicant’s role as her special adviser, she considered the applicant’s failure a material breach of her obligations and a repudiation of the contract in terms of s12A of the Act.

	Two comments fall to be made:

	(a)	As will appear below, the applicant (notwithstanding her comment in her founding affidavit to the effect that she considered that the performance management agreement could only be finalised after direct consultation and discussion with the Premier, and not one of her subordinates, and her at the time voicing reservations about consulting with the Director-General thereanent) did not in fact refuse to meet with the Director-General; the Premier’s allegation is in any event no more than an inference drawn by her.

	(b)	In fact, despite any complaint alleged by the Premier concerning the applicant’s alleged conduct, her answering affidavit makes it clear that in notifying the applicant of the termination of her employment, the Premier did not purport to found the termination on any alleged breach or repudiation on the part of the applicant, but instead the Premier sought to invoke what she perceived to be a power accorded to her in terms of s13 (5)(a) of the Act, viz, without anything more, to terminate the employment of a probationer on thirty day’s notice.  (That section provides, in short, that an officer who is serving on probation may be discharged from the public service by the person having the power of discharge, whether during or at the expiry of the period of probation, by the giving of one month’s written notice to the officer.  Subparagraph (b) of s13 (5) by contrast provides for a discharge forthwith, but subject to the provisions of the Labour Relations Act, 1995, if the officer’s conduct or performance is unsatisfactory).  The Premier in fact adds in terms that the termination of the applicant’s services was not a disciplinary measure.

[10]	(a)	On 8 March 2007 the applicant received a letter from the Director-General (annexure PN2) in which she was advised that at the direction of the Premier she, the Director-General, as Accounting Officer, had been delegated the responsibility to manage the applicant’s performance, that “the institutional arrangements supporting performance management require that an initial session is held during which performance contracting occurs” and that the applicant should liase with a Ms Shushu to  arrange an appointment for such initial session.

(b)	On 23 March 2007 the applicant responded thereto (annexure NB5) by advising the Director-General that she would first need to discuss the matter with the Premier.

(c)	The applicant alleges that she then telephoned the Premier and indicated to her that there would be what she referred to as a conflict of interest if the Director-General dealt with the performance management contract, that the Premier undertook to meet with her and the Director-General to discuss her concerns and finalise the performance agreement, that the Premier did not arrange such meeting nor revert to the applicant, that she, the applicant, made various further attempts through the Premier’s Personal Assistant to meet her, but without success.

(d)	These allegations are denied by the Premier.

(e)	While I am prima facieof the view that the probabilities favour the applicant’s version it is not necessary for present purposes to resolve this dispute.

(f)	On 24 May 2007 the applicant received a further letter from the Director-General (annexure PN3) which read as follows: 
“1.	Further to my correspondence 08/03/2007, and your response thereto:

2.	I wish to take forward the issue of your Performance Agreement for the 2007/08 financial year, at the reminder of the Hon. Premier, that she has delegated responsibility for your performance management to my portfolio.

3.	I believe it may be helpful for us to meet to sketch the parameters of your performance, to enable you to draft your proposed Performance Agreement for our mutual consideration.  I attach the standardized format for performance contracting, to assist in this process.

4.	I have requested Ms Babalwa Shushu to arrange such an appointment, so that contracting can be completed by 14 June 2007.  
	
(g)	It should be stressed, firstly, that a copy of the letter was forwarded to the Premier and, secondly, that in terms of the letter 14 June 2007 was proposed as the date by which finalization of the performance agreement should take place.

(h)	In response to the applicant’s further allegation in her founding affidavit that the document enclosed with annexure PN3 was “essentially a template for State employees which had very little, if nothing, to do with my role as special adviser”, the Premier stated as follows:

“ I am informed and verily believe that the Applicant was provided with a template and invited to meet the Director-General to finalise her performance agreement.  She was invited to draft a proposed agreement herself for consideration.  I am further advised that she failed to meet the Director-General, a situation that I found untenable for the reasons set out elsewhere in my affidavit.”  

	I am constrained to comment that the response is not understood.  Suffice it to state that, as reflected in annexure PN3, it was Ms Shushu who, at the Director-General’s request, was to arrange a meeting with the applicant, and there is no suggestion in the papers of any endeavour by her to do so.  

(i)	On 29 May 2007 the applicant addressed a letter to the Premier (annexure PN4) in which she referred to the Director-General’s letter, her response that she would want first to discuss it with the Premier, the inability of the two of them to meet, the reservations she had, on advice received (a copy of which was enclosed), to the effect that there was no relationship of authority between a Special Adviser and the Head of Department, and concluded as follows:

“6.	The situation is such that I have not entered into any performance agreement as to date and I would appreciate that this matter be resolved forthwith.
7.	Please do not interpret this as being deliberately difficult, you can be assured of my loyalty and commitment at all times.”

The applicant forwarded (annexure PN5) a copy of this letter to the Director-General and advised her that she would revert to her on receipt of a response.

(j)	No further communication was received by the applicant from either the Premier or the Director-General.

(k)	 The Premier’s comment on annexure PN4 was inter aliaas follows: 

“The Director-General was requested to negotiate, on my behalf, a performance agreement with the Applicant.  Upon completion thereof I would enter into the agreement with the Respondent.  I further entrusted to the Director General the responsibility to manage the performance of the Applicant.   This does not create a relationship of authority between the Director General and the Applicant.  In any event, even if it is held that such a relationship is thereby established, which is denied, I draw this Honourable Court’s attention to Clause 7.1 of the contract of employment, Annexure “PN1” wherein the Applicant expressly agreed to such delegation.”
	
	The fact remains that whatever criticism, if any, may be levelled at the stance adopted by the applicant, she pertinently expressed her desire to achieve finalization of the performance agreement, but neither the Premier nor the Director-General reverted to her. 

THE TERMINATION OF THE APPLICANT’S EMPLOYMENT

[11]	On 7 June 2007 the Premier addressed annexure PN6 to the applicant, which read as follows:

“I refer to the above matter and to your appointment on 5 December 2006 as one of my special advisers in terms of section 12A of the Public Service Act, 1994.

You will recall that clause 7 of the written contract that we concluded contained a mutual agreement mechanism governing your performance that in particular:

(a)	obliged you to enter into a performance agreement with me within one (1) month of the conclusion of this contract; and

(b)	allowed me to authorize a representative to manage your performance in terms of the contract”

The fact of the matter is that you have failed to comply with your obligations in terms of clause 7 of the contract, and have furthermore refused to accede to reasonable requests to remedy your breach made by my Director-General, Dr Muthwa, who I have authorized to manage the performance of your obligations under our agreement. 

In the circumstances, and given that you are a monthly paid employee currently serving a 12 month probationary period in terms of our agreement, I have decided to give you one (1) months’ written notice of the termination of your contract as my special adviser.  

Accordingly, your last day of work will be Friday 6 July 2007, and I have asked Mr Rich of my office to ensure a proper hand-over including the return of all government property in your possession.

Finally, I wish to thank you for the assistance provided during your time as my special adviser and wish you well for the future.”

[12]	On 18 June 2007 the applicant’s attorneys addressed a communication to the Premier (annexure PN7) in which, in short,

(a)	it was contended that the termination of the applicant’s employment was unlawful;

(b)	it was recorded that the applicant tendered to perform her services as the Premier’s Special Adviser in terms of the contract and the provisions of the Act and to enter into a performance agreement;

(c)	attention was drawn to the mediation and arbitration  provisions contained in clause 15 of the contract and it was stated that persistence in the purported dismissal of the applicant would oblige recourse to those provisions, with an approach to the High Court for interim relief.

[13]	By letter dated 21 June 2007 (annexure PN7A) the Premier’s Chief State Law Adviser responded to the letter of demand and recorded

(a)	that it was noted that the applicant had declared a dispute in terms of clause 15;

(b)	a request for a full written statement of the details thereof as required by the clause;

(c)	the contention that the letter of dismissal evidenced no more than a lawful and proper acceptance by the Premier of the applicant’s repudiation of the agreement;

(d)	a refusal of the applicant’s tender.

[14]	Finally, it should be noted that in her answering affidavit the Premier admits that the applicant was not afforded a hearing, the contention being that in terms of S 13 (5) the Premier was (simply) entitled to give the applicant 30 days’ notice of the termination of her services at any time during the period of probation. 

POINT IN LIMINE

[16]	Mr Eksteen, who with Mr Bloemappeared for the Premier, raised what he termed was a point in limine.  On analysis, it embraced the contention that, on the basis elucidated below, the applicant had failed to establish the first requirement for the grant of interim relief, a clear right or a prima facie right though open to some doubt.

[17]	The essence of the submission was that in fact no contract of employment valid in law had ever been concluded between the parties.

[18]	Mr Smuts, who with Mr Kroonappeared for the applicant, raised a two-fold objection to the Premier’s entitlement to place reliance on the point.

(a)	Firstly, it was submitted that the point should have been raised on the papers and that, having failed to do so, the Premier was not entitled to invoke same in argument.

	In my judgment, however, the point, one of law based on facts which on the papers are common cause between the parties, was properly raised.

(b)	Secondly, the decision in Awumey and Another v Fort Cox Agricultural College and Others2003 (8) BCLR 861 (Ck) was invoked in support of the contention that it had been incumbent on the Premier to have filed a substantive counter-application for an order declaring that the applicant’s appointment had been invalid in law.
	
	I do not find it necessary to decide whether the approach in Awumey’s case is capable of being applied to the present matter and I will proceed on the basis that such a substantive application was not necessary.
	
[19]	With regard to the circumstance that the papers on both sides had proceeded on the basis that annexure PN1 had constituted an employment contract valid in law, it was submitted that this common view was wrong in law and that this court was not bound thereby;  it would otherwise give a judgment the foundation of which was in law erroneous.  In support of the argument counsel referred inter alia to van Rensburg v van Rensburg en Andere (1) SA 505 (A) the headnote of which reads in part as follows:

“A construction of a Rule of Court which would prevent the Court from deciding an application on a point of law which arises out of the alleged facts merely because the applicant has not relied thereon in his application, can and must be avoided, otherwise it could lead to the intolerable position that the Court could be bound by a mistake of law on the part of the applicant.”

	See, too, Paddock Motors (Pty) Ltd v Igesund1976 (3) SA16(A).

	The legal principle is clear.  The question is whether the further submission is valid, that on the facts no valid contract of employment came into being.

[20]	It is common cause on the papers that the applicant  was appointed in terms of s 12A of the Act.  Subsections 1 and 3 thereof read as follows:
(1)	Subject to the provisions of this section, an executing authority may appoint one or more persons under a special contract, whether in a full-time or part-time capacity – 

(a)	to advise the executing authority on the exercise or performance of the executing authority’s powers and duties;

(b)	to advise the executing authority on the development of policy that will promote the relevant department’s objectives; or

(c)	to perform such other tasks as may be appropriate in respect of the exercise or performance of the executing authority’s powers and duties.

	……………………..

(3)	The special contract contemplated in subsection (1) shall include any term and condition agreed upon between the relevant executing authority and the person concerned, including -

(a)	the contractual period, which period shall not exceed the term of office of the executing authority;

(b)	the particular duties for which the person concerned is appointed; and

(c)	the remuneration and other conditions of service of the person concerned.”

[21]	Counsel sought to lay stress on the provision in clause 7 of the agreement to the effect that the applicant  was to render the services set out in the performance agreement to be concluded between the parties, and the fact that as at the date of termination of her services, no such agreement had been concluded (with which was to be read the applicant’s averment in her founding affidavit that her job description and role was never discussed with her nor was she ever informed what role she would play as special adviser).  In short, the argument was that until and unless the performance agreement was concluded, the agreement was inchoate and had no enforceability.

[22]	There was some debate at the Bar, initiated by a query by me, as to what the position would have been had the parties’ special agreement not said anything about the duties the applicant would have to perform.  Mr Smutssubmitted that the applicant would then have had to perform duties embraced within the provisions of subparagraphs (a) to (c) of subsection (1).  Mr Eksteen, fastening on the word “or”at the end of subparagraph (b), countered with the submission that unless one or more of the provisions of the subparagraphs were incorporated in the special agreement, it would remain inchoate and no vinculum iuriswould have come into being.  I do not think, however, that this question requires resolution.

[23]	In my judgment, the matter may be approached along the following lines.  The agreement was signed on 9 December 2006, and was to be effective from 5 December 2006.  Provision was made for the conclusion of a performance agreement, which would set out the duties of the applicant, within one month of the signing of the agreement.  From the history set out above the parties impliedly extended the period in which the performance agreement was to be concluded, at least until 14 June 2006.   The question that arises, what was to happen in the interim?  There can only be one answer:  It was an implied term of the agreement that, as in fact happened, until the performance agreement was finalised, the applicant would perform such duties as were assigned to her by the Premier, either personally or on her behalf viaother officials in her office, and would in respect of such performance receive the remuneration stipulated for in the agreement, provided that such duties fell within the ambit of one or more of the subparagraphs of subsection (1).  On that basis a valid and binding agreement was in existence as at the date when the Premier addressed the letter of termination to the applicant. 

[24]	The decision in Khanyile v Minister of Education and Culture, KZN and another2004 (4) All SA 442 (N), invoked by Mr Eksteen, is distinguishable.  In that case the applicant was appointed in terms of the Act, and the applicable regulations thereunder (as opposed to S 12 A) provided inter aliathat an executing authority:

	“(a)	may appoint employees on a permanent basis, either full time or part-  time;
	 …….
	(g)	shall ensure that each employee upon employment, is provided with a written contract of employment, including the terms and conditions of her or his service”.

	It was held that on the grounds, inter alia, that no contract of service had been concluded, the purported appointment of the applicant to a post in the public service was flawed in a major respect and was therefore of no force and effect.

	The ratioof the decision finds no application in the present case.

[25]	The point in liminemust accordingly fail.

URGENCY

[26]	In paragraph 58 of her founding affidavit the applicant sets out a variety of bases for the contention that the application was one of urgency.  The factual correctness of a number of these bases is questioned by the Premier.  I do not consider it necessary to enter into that debate.  Nor do I propose to deal with all the bases invoked by the applicant.  What is not to be gainsaid is that the applicant inter alia paints a picture, validly in my judgment, of substantial and severe financial stress, extremely prejudicial to her and her two minor children who are solely dependent on her, should the relief she seeks not be granted as a matter of urgency.   

[27]	In Caledon Street Restaurants CC v D’Aviera (unreported, SECLD, 7 November 1997) I had occasion to consider the approach in certain previous decisions where it was held that financial exigencies could not be invoked to lay a basis for urgency.  I concluded that no general rule to that effect could be laid down; much would depend on the nature of such exigencies and the extent to which they weigh up against other relevant considerations.  I did not understand Mr Eksteento question the validity of that approach, but, citing further authorities which did not accept financial exigencies as a basis for urgent proceedings, he did submit that the financial exigencies would have to be very special to found a plea of urgency.  He did not suggest that there were other considerations against which the applicant’s financial exigencies should be weighed.  In the result, I am persuaded that the financial exigencies deposed to by the applicant sufficiently found her contention of urgency.

THE REQUIREMENTS FOR THE GRANT OF INTERIM RELIEF

A CLEAR OR PRIMA FACIERIGHT

[28]	In terms of my earlier finding dismissing the point in limineraised on behalf of the Premier a valid contract in respect of the applicant’s employment in the office of the Premier was in existence at the time the Premier addressed the notification of termination to her.

[29]	The Premier seeks to found the validity of her dismissal of the applicant on one month’s notice without a hearing on a two-fold basis: 

	(a)	the stipulation in clause 13 of the agreement  that in respect of any matter not regulated by the contract the provisions of the Act were to apply, read with the provision in s 13 (5) (a) of the Act that a probationer may be discharged on such notice;

	(b)	the stipulation in clause 4.2 of the agreement that either party may terminate the contract on one month’s notice to the other.

[30]	The contention cannot be sustained.

(a)	The reliance on the provisions of clause 4.2 may be given short shrift.  The clause in terms stipulates the requirement of consultation and agreement.  That did not occur.

(b)	The simple reliance on s 13 (5) (a) loses sight of other applicable statutory provisions.  Part G.5 of Chapter 1 of the regulations made under the Act provides as follows:

“When the services of an employee on probation are terminated in terms of s 13 of the Act, due regard must be had to item 8 of Schedule 8 to the Labour Relations Act”.

	In terms of item 8 (1)(h) of Schedule 8 to the Labour Relations Act an employee may only decide to dismiss an employee after the employer has invited the employee to make representations and has considered the representations.

	In casu, the Premier, on her own admission, did not comply with this prescription in that she terminated the applicant’s services without affording her a hearing.

[31]	Accordingly, the applicant’s dismissal was, at least prima facie, procedurally unfair.  In the light of the history of the matter, as set out earlier, the dismissal was also, at least prima facie, substantially unfair.  At least prima facietherefore the applicant has a right to reinstatement.

[32]	Further in respect of the aspect of relief in the form of reinstatement it may for the sake of completeness be mentioned that it has not been suggested by the Premier that a bar to such relief exists by virtue of a breakdown in the employer-employee relationship.

[33]	The alternative cause of action invoked on behalf of the applicant is founded on the provisions of the Promotion of Administrative Justice Act, 3 of 2000 (PAJA).   It is not strictly necessary to consider this issue in view of the conclusions reached above.  However, I would align myself with authority the effect of which is that in the circumstances obtaining in this matter the Premier’s action in terminating the applicant’s services constituted administrative action.  

	The conclusions reached in respect of the cause of action based on contract, as recorded earlier, would mutatis mutandisfollow on an application of administrative law. 

APPREHENSION OF IRREPARABLE HARM, BALANCE OF CONVENIENCE AND ABSENCE OF A SATISFACTORY ALTERNATIVE REMEDY.

[34]	These three elements may conveniently be considered together.  

	It was submitted on behalf of the Premier that a satisfactory alternative remedy is available to the applicant, viz. the mediation and arbitration process referred to earlier, which, if the applicant secures success therein, with retrospective effect, would repair any harm suffered by her consequent upon the termination of her services.  Implicit in the argument was the further submission that the applicant had not established a balance of convenience in her favour.

[35]	The argument cannot be upheld.  While it is so that, approaching the matter with regard only to purely monetary considerations, retrospective success in the mediation and arbitration proceedings, would place the applicant in the same position as that in which she would be were the interim relief sought by her to be granted to her.  However, as a matter of practical sense, it is not to be gainsaid that the probabilities are that a considerable period will elapse before those proceedings are finalised.    The monetary success achieved by the applicant at that stage would, firstly, not undo the substantial financial distress that the applicant will experience in the interim, and, secondly, would not undo the prejudice flowing from two further features mentioned by the applicant, viz., the deprivation of her right to work and the inability to make decisions regarding her future.    In these respects the alternative remedy would not be satisfactory.  It has further not been suggested that, as against the features referred to above, the Premier would suffer any inconvenience.  

	In this regard it is repeated that a breakdown in the employer-employee relationship has not been alleged, to which may be added that in the interim the Premier would have the benefit of the applicant’s services.

COSTS

[36]	It was not in dispute that the matter was one in which it was proper for the applicant to employ the services of two counsel.

ORDER

[37]	In the result, the following order will issue:  

	(a)	The respondent is directed forthwith to reinstate the applicant, with retrospective effect to 7 July 2007, in her position as special adviser to the office of the Premier, Eastern Cape, with full benefits, pending the determination of mediation and arbitration proceedings as provided for in the contract, annexure PN1 to the applicant’s founding affidavit. 

	(b)	The costs of the application will be paid by the respondent, such costs to include the costs attendant on the employment of two counsel.

__________________
F. KROON
Judge of the High Court

Date of hearing:		26 July 2007   

Date of Judgment:	31 July 2007 

For applicant:	I J Smuts S C and P N Kroon, instructed by Hutton & Cook.

For respondent:	J W Eksteen S C and G H Bloem instructed by the State Attorney.