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FLYNOTES: LABOUR – Urgency – Abuse of urgent roll – Seeking to stop recruitment process – Requirements for urgency discussed – Failed to bring application at first available opportunity – Should have approached court at time when advertisements arose – Waited three months – Application cannot be entertained on an urgent basis as any urgency that may exist is self-created – Failed to act diligently and with urgency as required – Application struck off roll – Labour Court Rule 8.

 

THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

 

Reportable

Case no: C 662/2023

 

In the matter between:

 

SIBONGELENN RADEBE AND 16 OTHERS                           Applicant

 

And

 

THE AURUM INSTITUTE                                                          Respondent

 

Heard: 21 December 2023

Delivered: 22 December 2023

 

This judgment was handed down electronically by consent of the parties’ representatives by circulation to them by email. The date for hand-down is deemed to be 22 December 2023.

 

JUDGEMENT

 

PRINSLOO, J

 

Introduction:

 

[1]             The Applicants approached this Court on an urgent basis for the following relief:

Declaring that the Respondent must with immediate effect stop with the recruitment under bid reference number NDOH13-2021/2022, until the case under no C237/2023 has been finalised.

 

[2]             The Respondent filed an opposing affidavit wherein the issue of urgency was disputed. When the matter was argued, the only aspect argued was the issue of urgency.

 

[3]             The Applicants did not file a replying affidavit to dispute the averments made by the Respondent in its answering affidavit. The proper approach to determining the facts was authoritatively set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd[1]. The issue to be decided at this point is whether the Applicants’ case is urgent and it will be decided by applying the Plascon-Evans rule.

 

Material facts:

 

[4]             In deciding the issue of urgency, it is prudent to set out the chronological sequence of events relevant to this application.

 

[5]             The Applicants were employed by TB HIV CARE and on 26 October 2022 TB HIV CARE made an announcement that it was not going ahead with the implementation of the Global Fund supported TB activities in Cape Town, under bid reference number NDOH 13/2021 – 2022.

 

[6]             The Respondent was allocated a grant by the Global Fund for the period 1 April 2022 to 31 March 2025 to serve as a NDOH Global Fund TB/HIV sub-recipient and in February 2023, it was appointed as the partner for the City of Cape Town metro district. During April 2023 the Respondent commenced with a recruitment process to recruit and employ persons to fulfil its contractual obligation in terms of the grant allocated to it by the Global Fund.

 

[7]             On the Applicants’ version they became aware of the fact that the Respondent commenced with the process of recruiting new employees on 11 April 2023 and correspondence was subsequently sent to the Respondent to take transfer of the Applicants’ contracts in terms of section 197 of the Labour Relations Act[2] (LRA). The Respondent replied on 17 April 2023 and denied that section 197 was applicable.

 

[8]             On 16 May 2023 the Applicants filed an application under case number C237/2023 in terms of the provisions of section 197 of the LRA. The matter was set down for hearing on 8 August 2023, but was postponed sine die due to the taxi strike. The Applicants only requested another Court date for the hearing of the said matter on 11 December 2023.

 

[9]             The deponent to the urgent application stated that “on 12 December 2023 the Applicants’ legal representative was instructed that the Respondent has resumed the recruitment process.” On 13 December 2023 Mr Ntloko, the Applicants’ legal representative addressed correspondence to the Respondent’s attorneys of record and it was recorded that the Respondent’s recruitment process was ‘intended to evade the application of section 197’ of the LRA and the Respondent was requested to give an undertaking that it would with immediate effect, take transfer of all the Applicants’ contracts, failing which an urgent application would be launched.

 

[10]         On 14 December 2023 the Respondent’s attorneys responded and denied that it was undermining the operation of section 197 of the LRA and it was confirmed that the Respondent would proceed with the recruitment process to fulfil its contractual obligation.

 

[11]         On 18 December 2023 the Applicants filed an urgent application, which was enrolled for hearing on 21 December 2023.

 

Applicable legal principles: Urgency

 

[12]         Rule 8 of the Rules for the Conduct of Proceedings in the Labour Court provides for urgent applications. An applicant that approaches the court on an urgent basis essentially seeks an indulgence and to be afforded preference, in order to prevent the prejudice and harm that may materialise or persist, if the conduct complained of continues. Central to a determination of whether a matter is urgent is whether the applicant has in the founding affidavit, set forth explicitly, the circumstances which render the matter urgent, and the reason why substantial relief cannot be attained at a hearing in due course. Thus, it is required of an applicant adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary[3].

 

[13]         What would an applicant who seeks to make out a case of urgency then have to show? In Mojaki v Ngaka Modiri Molema District Municipality and others[4] the court referred with approval to the following dictum from East Rock Trading 7 (Pty) Ltd & another v Eagle Valley Granite (Pty) Ltd & others[5]: 

An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant must state the reasons why he claims that he cannot be afforded substantial redress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in an application in due course. The rules allow the court to come to the assistance of a litigant because if the latter were to wait for the normal course laid down by the rules it will not obtain substantial redress.'

 

[14]         In all instances where urgency is alleged, the applicant must satisfy the court that indeed the application is urgent. In Vermaak v Taung Local Municipality[6] this Court has held that:

The consideration of the first requirement being why is the relief necessary today and not tomorrow, requires a court to be placed in a position where the court must appreciate that if it does not issue a relief as a matter of urgency, something is likely to happen. By way of an example if the court were not to issue an injunction, some unlawful act is likely to happen at a particular stage and at a particular date.

 

[15]         The principles around urgency had been developed and considered by the courts and on numerous occasions have the courts made it clear that self-created urgency is not to be entertained by an urgent Court.  

 

[16]         In considering Rule 8, the Court in Jiba v Minister: Department of Justice & Constitutional Development & others[7] held that:

Rule 8 of the rules of this court requires a party seeking urgent relief to set out the reasons for urgency, and why urgent relief is necessary. It is trite law that there are degrees of urgency, and the degree to which the ordinarily applicable rules should be relaxed is dependent on the degree of urgency. It is equally trite that an applicant is not entitled to rely on urgency that is self-created when seeking a deviation from the rules.' 

 

[17]         In National Union of Metalworkers of SA v Bumatech Calcium Aluminates[8] the Court held that:

Urgency must not be self-created by an applicant, as a consequence of the applicant not having brought the application at the first available opportunity.  In other words, the more immediate the reaction by the litigant to remedy the situation by way of instituting litigation, the better it is for establishing urgency.  But the longer it takes from the date of the event giving rise to the proceedings, the more urgency is diminished. In short, the applicant must come to court immediately, or risk failing on urgency. In Collins t/a Waterkloof Farm v Bernickow NO & another the court held that:

'if the applicants seeks this court to come to its assistance it must come to the court at the very first opportunity, it cannot stand back and do nothing and some days later seek the court's assistance as a matter of urgency'.

 

[18]         In National Police Services Union and others v National Negotiating Forum and others[9] this Court held the view that the latitude extended to parties to dispense with the rules of the court in circumstances of urgency is not available to parties who are dilatory to the point where their very inactivity is the cause of the harm on which they rely to seek relief.

 

[19]         In Soobedar and another v Minister of International Relations and Cooperation and another[10] the Court restated the principles applicable to urgent applications and held that:

 

[19]     The principles applicable to urgency are trite as can be gleaned from various decisions of this and other courts.  An applicant that approaches the court on an urgent basis essentially seeks an indulgence, and to be afforded preference in order to prevent prejudice and harm that may materialise or persist, if the conduct complained of continues. Central to a determination of whether a matter is urgent is whether the applicant has in the founding affidavit set forth explicitly the circumstances which render the matter urgent, and the reason why substantial relief cannot be attained at a hearing in due course.

 

[20]     It is trite that urgent relief will not be granted in circumstances where it is apparent that the urgency claimed is self-created. Self-created urgency is apparent in circumstances where an applicant failed to bring the application at the first available opportunity. Thus, it is expected of litigants to react immediately to remedy or prevent harm and/or prejudice, rather than standing back and doing nothing until it is too late.

 

[20]         In Sihlali and others v City of Tshwane Metropolitan Municipality and another[11](Shihlali)  the Court dealt  with an urgent application to interdict and restrain the city from taking further steps in recruiting, interviewing and appointing candidates to the advertised posts, pending the final determination of another dispute between the parties, relating to a determination whether there had been a transfer of a business as an going concern in terms of section 197 of the LRA 1995. The Court held that although it has the power to enforce the terms of employment contracts, it is not empowered to prevent the conclusion of private employment contracts and it is not empowered to interdict a process which might lead to the conclusion of an employment contract. Therefore, the court should refuse to entertain applications seeking to prevent recruitment processes unless exceptional circumstances are shown to exist, and it held that:

 

[21]     That being the case, how does advertising positions, as routinely done out of necessity, thwart their expectations is beyond me. There is what is termed self- created urgency. The situation herein is a classic case of such. By the time the advertisements arose, the applicants had a gripe already, which gripe they expressed in no uncertain terms to the mayor on 8 November 2016. The applicants should have, if there was any urgency, approached this court then. Why they did not do so, is not explained. Instead, what is apparent is that they sat back, took their time until they obtained a legal opinion after almost three months.

 

Analysis

 

[21]         Emanating from the provisions of Rule 8 and the principles set out in the authorities referred to, it is evident that urgency is not there for taking, and an applicant seeking urgent relief must adequately and in detail, set out in the founding affidavit, the reasons why the matter before the court should be treated with urgency.

 

[22]         The reasons proffered for urgency must be considered with due consideration of the respondent’s challenge to urgency. For any argument on urgency to be sustained, the applicant must have acted with due haste, when knowledge of the respondent's prejudicial behaviour or actions is gained, as it is trite that an applicant is not entitled to rely on urgency that is self-created.

 

[23]         The Applicants submitted that the matter is urgent because the continuation of the recruitment process will circumvent the court proceedings pending under C237/2023 and the application of the provisions of section 197 of the LRA. The Respondent will also escape the consequences of ‘the fraudulent misrepresentation as the case has been opened and the matter is still under investigation.’ The Respondent is aware that a court date had been requested and is ‘bound by the rules of the court to avoid self-help.’ It must emphasized that in the notice of motion the relief sought by the Applicants is limited to an order to the effect that the recruitment be stopped, until case no C237/2023 has been finalised.

 

[24]         Applying the above principles relating to urgency to the facts of this matter, I cannot but find that the application cannot be entertained on an urgent basis as any urgency that may exist, is self-created. I say so for the following reasons:

 

[25]         The facts placed before me show that there has been an inordinate delay and a laxity on the part of the Applicants in the bringing of this application, which is destructive of any consideration of urgency.

 

[26]         The Applicants, on their own version, became aware in April 2023 that the Respondent commenced with a recruitment process, and they filed an application in terms of section 197 of the LRA in May 2023. When the application under case C237/2023 was filed in May 2023, the Applicants were aware that the Respondent was recruiting employees, but the notice of motion in the main application did not include a prayer for an order staying the recruitment process, pending the finalisation of the main application, nor was an urgent application brough at that stage.  

 

[27]         April or May 2023 was the very first opportunity for the Applicants to come to Court to seek its assistance, but they failed to do so. They also failed to provide an explanation as to why they did not approach this Court at the earliest and first opportunity to do so, but instead they stood back and did nothing since April 2023 to stop a recruitment process, they were very well aware of and which they allege would prejudice them. The applicable authorities referred to supra confirmed that an applicant cannot stand back and do nothing and later seek the court's assistance as a matter of urgency.

 

[28]         The Respondent’s undisputed version is that it never stopped or ceased with its recruitment process and that it has been ongoing since April 2023. The Respondent’s version is that it is a necessary requirement to recruit persons as and when necessary, in order to fulfil its obligations under the grant allocated to it. Recruitment is an ongoing process and positions are generally advertised.

 

[29]         The Applicant must set forth explicitly the circumstances which render the matter urgent, and the reason why substantial relief cannot be attained at a hearing in due course. The Applicants failed to do so.

 

[30]         The Applicants stated that they would suffer irreparable harm in that they would lose their back pay from July 2022 to date, if the Respondent continues to secure the services of new employees. The Applicants will ‘never recover if that cannot be reinstated.’

 

[31]         This submission holds no water. If the Applicants were to succeed in the main application, the Respondent’s ongoing recruitment process will have no bearing on their entitlement to backpay or the relief of reinstatement. In Mashaba v SA Football Association[12] the Court dealt with an urgent application to interdict the appointment of a new head coach, pending the finalisation of CCMA proceedings, challenging the fairness of the applicant’s dismissal. It was held that:

[10]     An employer may not thwart a dismissed employee’s bid for reinstatement by replacing him and then arguing that it cannot reinstate the dismissed employee because there is someone occupying his former position.  That is an eventuality the employer must take into account when it replaces a dismissed employee who is challenging their dismissal. In other words, if the employer does not take suitable steps in its contract with the replacement, it ought to realise that it runs the risk that it will be faced with the possibility of terminating that relationship or of trying to renegotiate the replacement’s contract if the former incumbent is reinstated. 

[11]     Thus, on a proper interpretation of s 193(2)(c), if SAFA does appoint a replacement head coach before learning of the outcome of Mr Mashaba’s case, that appointment cannot protect it against an order of reinstatement. Consequently, Mr Mashaba will not be deprived of his right to reinstatement, if the only consideration which might stand in its way is the employment of a replacement coach before his CCMA case was decided. That is not a factor which should influence any arbitrator deciding if there is anything which prevents his reinstatement, if he decides that Mr Mashaba’s dismissal was substantively unfair. 

[12]     In the light of the above, if SAFA takes the risk of employing a replacement coach there is no reason to believe that this factor will cause Mr Mashaba irreparable harm in his bid for reinstatement. It is the arbitrator exercising his or her powers under s 193(2)(c) who is given the power of reinstatement under the LRA, which is the right which Mr Mashaba seeks to preserve by bringing this application. The arbitration proceedings provide not merely a suitable alternative remedy but the primary remedy for any dismissed employee seeking reinstatement who has been dismissed for misconduct. There was no need to bring this application in order to preserve that remedy for the reasons already discussed. Thus the potential harm Mr Mashaba may suffer as a result of the appointment of a replacement before the CCMA decides his case is not irreparable and the remedy of reinstatement remains available as an alternative remedy notwithstanding such an appointment.

 

[32]         The Applicants did not approach this Court for urgent relief when it was necessary to do so, notwithstanding the fact that they are aware since April 2023 that the Respondent has embarked on a recruitment process. Instead, they waited until December 2023, after the Court was in recess, to bring this urgent application.

 

[33]         The Applicants provided absolutely no explanation as to why they did not approach this Court earlier and more urgently and their conduct shows that they took a laid-back approach to the litigation they now want to pursue on an urgent basis.

 

[34]         The issue giving rise to this urgent application was known to the Applicants and ongoing since April 2023. This can hardly be regarded as urgent, more so, as this application could have and should have been brought as far back as April 2023.

 

[35]         An applicant that is well aware of the harm he or she alleges to suffer, who takes no steps over a protracted period of time, and then launches an urgent application, is likely to have his or her application struck from the urgent roll. Thus, to the extent that an applicant wishes its matter to be accorded urgency, in the same token it is expected of such an applicant to have acted with the same urgency that the matter deserves, failing which the invariable conclusion to be reached is that any urgency claimed is self-created.

 

[36]         This application is a prime example of self-created urgency. It took more than eight months to bring this application, and the Applicants simply offered no explanation as to why no urgent legal proceedings were instituted immediately after they became aware of the Respondent’s recruitment process, the very process they now seek to stop with immediate effect. They did not explain why an application was not brought at the very first opportunity.

 

[37]         It is not sufficient for a party when approaching a court on an urgent basis to adopt the approach that it is of right entitled to preferential treatment failing which it would suffer prejudice in the event that its urgent application is not granted. A party needs to demonstrate that it had also in asserting its rights, acted diligently and with the urgency that the matter it seeks to pursue requires. The Applicants failed dismally in this regard.

 

[38]         In essence, the Applicants waited too long to bring this application and by the time they had approached this Court for relief, it became a matter of self-created urgency. Even if there is urgency, such urgency is self-created. This Court does not entertain self-created urgency and for this reason alone, the application falls to be struck from the roll.

 

Costs

 

[39]         The last issue to be decided is the issue of costs. This Court has a wide discretion in respect of costs, considering the requirements of law and fairness.

 

[40]         In Zungu v Premier of Kwa Zulu-Natal and Others[13] the Constitutional Court confirmed the rule that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand allowing those parties to bring to this Court cases that should not have been brought to Court in the first place.

 

[41]         This is a case where the Court has to strike a balance, considering the requirements of law and fairness. The general accepted purpose of awarding costs is to indemnify the successful litigant for the expense he or she has been put through by having been unjustly compelled to initiate or defend litigation. In Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others[14] it was emphasized that:‘…unless there are sound reasons which dictate a different approach, it is fair that the successful party be awarded its costs. The successful party has been compelled to engage in litigation and incur legal costs. An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in the Labour Court, whether as applicant in launching proceedings or as respondent opposing proceedings.’

 

[42]         Mr Bosch for the Respondent argued that the Applicants should be ordered to pay the costs of this application as there was no reason to bring this application on extreme short notice, during the Court’s recess. He submitted that if the Applicants are out of pocket, a cost order de bonis propriis should be made.

 

[43]         Mr Ntloko for the Applicants submitted that there is no basis for a cost order as the Applicants were not unreasonable in bringing this application, but instead they were ‘provoked’ by the Respondent.

 

[44]         In my view this is a case where it is appropriate to make a cost order. A cost order is a method of ensuring that decisions to litigate in this Court are taken with due consideration of the law and the prospects of success, more so where an application is filed on an urgent basis during recess.

 

[45]         In Sihlali the Court also considered the issue of cost and held that:

[29]    I take this opportunity to warn practitioners approaching the urgent court with such matters to ensure that such exceptional circumstances as contemplated in the Booysen’s case do exist. Otherwise they run the risk of punitive costs being made against their clients. It is good practice for practitioners practicing in this court to keep themselves abreast with the judgments of this court particularly those arising from the urgent court. There is a developing trend that points to the fact that the urgent court is being abused. Might I state, an urgent court is meant for urgent matters. This court should not be detained to use its scarce, valuable time entertaining self-created urgent matters. Practitioners should exercise greater care when considering approaching this court on urgency in matters where substantial redress is obtainable in due course.

 

[46]         The Applicants brought an urgent application at a time when any urgency that might have existed, was self-created. Their conduct in approaching this Court on extreme short notice to the Respondent, to stop a process that is ongoing since April 2023, is unreasonable and abusive. They did not come to Court as unrepresented laypersons, but they were assisted and represented by Mr Ntloko, who failed to consider the applicable principles and who failed to advise them properly before bringing this urgent application.

 

[47]         Fairness dictates that the Respondent cannot be expected to endure enormous costs defending litigation where more thought and consideration had to be put in before approaching this Court on an urgent basis. The Applicants did not come to Court as unrepresented laypersons, they were legally represented and therefore in a position to consider the consequences of instituting urgent litigation where the urgent ship has left the harbour long ago.

 

[48]         Although this is a case where a cost order is warranted and where I am inclined to make a cost order against the Applicants, I am alive to the fact that they are individuals who would in all probability not be able to afford a cost order and the Respondent would not be able to enforce any cost order in its favour. But let this be clear: the Applicants and their legal representative should be careful in instituting litigation, they should put some thought and consideration in before approaching the court as a cost order against them or cost de bonis propriis is not prohibited and if warranted, might follow in future.

 

Order

 

In the premises, I make the following order:

 

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

 

2.               There is no order as to costs.

 

Connie Prinsloo

Judge of the Labour Court of South Africa

 

Appearances:

For the Applicant:                       Mr Ntloko from MP Ntloko Attorneys                                    

For the Respondent:                  Advocate C S Bosch

Instructed by:                             Van Zyl’s Incorporated Attorneys

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