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IN THE HIGH COURT OF SOUTH AFRICA

(IN THE NORTH GAUTENG HIGH COURT)

(REPUBLIC OF SOUTH AFRICA)

CASE NO: 58602/13

DATE: 21 NOVEMBER 2013

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between:

NTOMBOXOLO TAHO.............................................................................................APPLICANT

AND

PUBLIC SERVICES SECTOR EDUCATION AND TRAINING............. 1^st RESPONDENT

VUSI MOKOENA N.O..................................................................................2^nd RESPONDENT

NORMAN MALULEKE N.O.......................................................................3^rd RESPONDENT

JUDGMENT

PHATUDI AJ

Introduction

[1] The inquiry before the court is an urgent application for an interdict pendente life. The applicant in the matter seeks to restore the status quo ante pending the final determination of the main application, which application contains prayers ranging from declaratory orders pertaining to the unlawful appointment of the Second Respondent, and a disguised mandamus against the Third Respondent in the main application, to an interdict against the Second Respondent. The main application was launched on 31 October 2013. The respondents oppose the application.

[2] According to the applicant, the second relief sought in the main application falls within the ambit of the provisions of the skills Development Act^[1](“SDA”)

[3] The present interlocutory application was brought on an urgent basis, as the applicant thought has a reasonable apprehension that the disciplinary enquiry which is likely to curtail drastically, the status quo she intends to preserve as an employee at her work place, was imminent. The scheduled date was on Friday, 15 November 2013.

[4] Counsel for Applicant, on the one hand, submitted that because of the looming disciplinary enquiry in the horizon, whose legitimacy was at any rate, brought into question, the applicants’ rights to a fair, open transparent disciplinary process, which it seeks to restrain in the interim, will bring about irreparable harm or prejudice on her part. The status quo she is willing to preserve pending the outcome of the main application, would practically whittle down and ultimately be obliterated.

[5] Counsel for the Respondents, on the other hand, argued vehemently against the granting of the application for interim relief sought. He predicated his case on a few preliminary points of law, which can be summarised as follows:

5.1.That, on the conspectus of the relief claimed in the present application, read in conjunction with the application, applicant must establish at least a prima facie right, although open to some doubt, that the appointment of the Second Respondent by the First Respondent be declared unlawful.

5.2. it is the second point in limine as raised that requires a closer scrutiny. It was submitted on behalf of the respondents that in terms of Section 31 of the SDA, the Labour court has exclusive jurisdiction in respect of all matters arising from this Act, and that in terms of section 31 (2) of the Act, it may review any act or omission of any person in connection with this Act, on any grounds permissible in law.

5.3. It was also submitted that the applicant’s cause of action stems from the Act, and accordingly, the jurisdiction of this court is outsted.

5.4.Counsel for the applicant submitted that the main application was not premised on the provisions of the SDA per se , as it is only the secondary relief pertaining to the minister, (3^rd Respondent) that touches on the SDA.

5.5.The issue of concurrent jurisdiction of this court with the Labour court in terms of the provisions of section 157 (2) of the Labour Relations Act,[2] (“LRA”), is one of the controversial morass engulfing the courts in the adjudication of labour matters and disputes.

[6] The question whether the labour court enjoys concurrent jurisdiction with the high court is strictly speaking, to be answered with reference to the provisions of sections 157(2) of the LRA, which provides that the labour court has concurrent jurisdiction with the high court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Republic of South Africa Constitution Act, 1996, which arises from “ employment and from labour relations, disputes over constitutionality of any executive or administrative act or conduct, or as an employer, and over the application of any law of administration of which the Minister is the employer. Because of the thin line of demarcation between the two, there is constant overlap of jurisdiction. I must remark that, as of today, parliament has not yet provided a mechanism to develop a coherent legal framework within which labour disputes may be speedily resolved, seeing that there exists a great deal of overlap between the LRA and PAJA, both of which provide public sector employees with remedies for labour related issues. This was the view expressed by Skweyiya J in the Chirwa ‘s case which I shall immediately turn to for reference. Section 157 (2) of the LRA and its validity or otherwise has not yet been pronounced upon by the Constitutional Court.

[7] The question whether there is concurrency of jurisdiction between the labour court and this court, has been settled in the landmark judgement of the Constitutional Court of CHIRWA V TRANSNET LTD AND OTHERS[3])

[8] After this seminal judgement of the Constitutional Court, high courts have been reluctant to entertain labour matters. In GCABA V MINISTER OF SAFETY AND SECURITY^[4]), the Constitutional Court stated that:

“if litigants are at liberty to relegate the finely tuned dispute resolution structures created by the LRA, a dual system of law could fester in cases of dismissal of employees. Forum shopping by litigants is not desirable. Once a litigant has chosen a particular course of action, and systems of remedies (CCMA, Labour court) he or she should not be allowed to abandon that cause as soon as negative decision or event is encountered. After all, the LRA structures were created for the very purpose of dealing with labour matters”

[9] I must of course, remark in passing that the facts in the CHIRWA judgement and the relief Ms. Chirwa sought, differ materially from the interim relief sought herein, and as well as in the main application.

[10] Consequently, I propose that the question whether the provisions of section 31 of the SDA, which confer exclusive jurisdiction on the labour court in respect of “all matters arising from this Act”, should be left to the court hearing the main application, to test whether the jurisdiction of this court to determine the issues prayed for therein, are excluded by the provisions of Section 31 of the SDA.

[11] Put, differently, seeing that the Chirwa’s case has removed the uncertainty on the issue of concurrent jurisdiction of the labour court, which is a court of equivalent jurisdiction with this court on labour matters, what, however, has not yet been settled is the question whether this jurisdictional power extends to the provisions of Section 31 of the SDA, which is part of the secondary dispute of the subject matter before this court. The moot point raised is, therefore, res nova in our constitutional jurisprudence after 1994, and accordingly requires a robust interrogation by our courts. Such interrogation, however, can in my opinion, not be conducted in an urgent court.

[12] For the purposes of deciding whether or not to grant the interim relief sought pendente lite, I am of the view, that the court ought to investigate and take into consideration, not only the issues of urgency, which is a cardinal requirement for the purposes of Rule 6 (12) of the Uniform Rules of Court (“the Rules”), but also  consider all the circumstances, particularly, upon considerations of the probabilities of success of the main application, and the nature of the injury the respondents, on the one hand will suffer, if the application is granted, and should he/she ultimately turn to be right, and that which applicant, on the other hand, might sustain if the application is declined, and he/she finally turns out to be right. In that sense, it might be appropriate in some instances, that though there may be no balance of probabilities, that applicant will succeed, in the ordinary course, it may still be proper to lend interim relief where the balance of convenience is the over-riding consideration, and vice versa.

[13] The preferred approach would be to grant interim relief where the damage or prejudice to the applicant by the refusal of the relief sought may be irreparable, and irreversible, even though the preponderance of success on the merits might be slim, and should ordinarily be granted where no harm would befall the respondents, and if it does, would be innocuous.

[14] In the present instance, I hold the view that argument around the issue of jurisdiction during interim relief application, is somewhat premature and ought not arise at all. That argument, which is purely procedural, could best be left to the court hearing the merits in due course.

[15] Turning to the applicant’s locus standi , it was submitted on behalf of the respondents that applicant lacks standing to launch proceedings seeking relief of this nature at prayers (a), (b) and (c) of the notice of application, it being contended that the Minister (third respondent) is not a party to the present application.

[16] I must point out that although the respondents took issue on the aspect of locus standi, it remains obscure as to whether such contention was directed at the principal application or in the present interlocutory matter. If indeed it was focused on the main application, it follows logically, therefore, that such contention was prematurely raised before this court. To do so, would be to put the cart before the horse.

[17] If, on the other hand, the point was directed at the current proceedings, then consideration ought to be placed whether, ex facie the interim relief application, did the petitioner set out explicitly, the ingredients necessary to found a prima facie right to its claim.

[18] As to what is meant by a prima facie case, the notion was dealt with and set out in Melteno Brothers^[5]. However, in the case law prior to Molteno’s, supra, the courts of the land had come to the conclusion that the concept meant preponderance of probabilities. In other words, the applicant must show probability of success in the main application or action, and that the balance of convenience is only to be considered after the court has been satisfied that a prima facie case has been made out.

[19] Be that as it may, the general principle, as I understand it is, that any person can bring an application to vindicate a right which he/she possesses, (interesse) whatever right may be, and whether he suffers special damages or not, provided he/she can show that he/she has a direct interest in the matter, and not merely the interest which all citizens have. This principle was enunciated in Roodepoort Maraisburq Town Council v Eastern Properties (prop) Ltd^[6].

[20] For the purposes of the present application, I am of the opinion that the applicant has a direct and substantial interest in the main application, as she has the perception or a reasonable apprehension that the relief sought is aimed at preserving not only the status quo, but also asserting her right not being subjected to a disciplinary process she sees irregular, unlawful and otherwise trembling on her rights to fair labour practices.

[21] Furthermore, the issue of locus standi is not a prerequisite for purposes of determining whether interim relief should or should not be granted on an urgent basis. Rule 6(12) of the Uniform Rules of Court set out squarely, the requirements of urgency, and what applicant is required to aver to set out explicitly, the circumstances giving rise to urgency. I need not recite the provisions of the rule in this instance. Counsel for respondents was not heard arguing forcefully the question of urgency in his submissions. If he did, then his submissions were planted in sandy soil, it could not germinate or it was simply not argument sufficiently persuasive to guide the court to a contrary view.

[22] This then brings us to the next leg of the inquiry, whether the present application, not in its form, but substance was set out so meticulously as to enable the court to decide whether or not to grant the interim relief sought.

[23] It is trite that one of the fundamental requirements for an interdict pendent lite is to asset a right which is the subject matter of the main action (application) and which the applicant seeks to protect by means of interim relief^[7].

[24] Applicant has set out a few issues in the main application which she challenged as against the respondents. The interest she desires to protect if left unabated, and the disciplinary hearing already in progress if left to reach its logical conclusion, whether with or without a favourable outcome, might be nugatory by the time the main application is disposed of in the ordinary course.

[25] It is also well documented in our case law that our law recognises that even unlawful administrative actions are capable of producing legally valid consequences for so long as the unlawful acts are not yet set aside by judicial review^[8].

[26] That being said, it is appreciable that applicant seeks to pre-empt the mischief where Second Respondent who was empowered to initiate the disciplinary process by the first respondent on the basis that he, Second Respondent, was “lawfully” appointed as an employee or as so called “independent contractor” under the aegis of the First Respondent, is something applicant thought she cannot leave unchallenged in order to preserve her rights to fair disciplinary processes, and only to challenge later in the labour law structures by which time she would have suffered irreparable harm.

[27] Having had regard to the aforegoing considerations, and bearing in mind the facts of this case, I come to the conclusion that, the interim relief sought pendente lite ought to succeed, and is granted subject to the following terms:

COURT ORDER

(a) That prayer 1 of the notice of motion is hereby granted.

(b) That, pending the final determination and outcome of the main application launched in this Court under case no: 58602/2013 on 31 October 2013, the disciplinary proceedings initiated or conducted by either the First, Second and Third respondents, and/or any other party against the Applicant since the 09 October 2013, be and are hereby stayed with immediate effect.

(c) That, pending the determination and outcome of the main application herein, the first, Second and Third respondents, and/or any other third party, be and is hereby interdicted and restrained forthwith from taking any further disciplinary steps against the Applicant.

(d) Further that the costs of this application, including the costs of counsel, be the costs in the main application.

M.G PHATUDI, AJ

ACTING JUDGE OF THE NORTH AND

SOUTH GAUTENG HIGH COURT

1. COUNSEL FOR THE APPLICANT: ADV D.Z. KELA

INSTRUCTED BY: NDUMISO VOYI INCORPORATED

TEL: (012) 342 3058

2.COUNSEL FOR THE FIRST, SECOND & ADV M COHEN SC

THIRD RESPONDENTS: ADV MTHETHWA

INSTRUCTED BY: SEKATI MONYANE INCORPORATED

TEL :(012) 003 0213

DATE OF HEARING: 12 NOVEMBER 2013

DATE OF JUDGEMENT: 21 NOVEMBER 2013

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