Article 24/2022

With reference to Mogalakwena Local Municipality v The Provincial Executive Council, Limpopo and Others (2014) JOL 32103, what were the principles recently endorsed by the labour court in Munthali v PRASA (2021) 32 SALLR 22 (LC) when considering whether or not an applicant has established the required urgency when demanding re-employment on an urgent basis?

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The labour court endorsed the following principles:

  • the labour court enjoys a discretion in according a matter urgency. In the exercise of its discretion, the labour court examined whether the applicant had, in the founding papers, set out circumstances which justified that the application be heard as one of urgency, and the basis upon which it was said that substantial redress would not be obtained at a hearing in due course. Whether an applicant is able to obtain substantial redress in due course is dependent on the facts and particular circumstances of each case (see East Rock Trading 7 (Pty) Limited and another v Eagle Valley Granite (Pty) Limited and Others (2012) JOL 28244 (GSJ), at paragraphs [6] and [7] and see also Export Development Canada and Another v Westdawn Investments Proprietary and Others [2018] 2 All SA 783 (GJ), at paragraph [11] and Mogalakwena Local Municipality v The Provincial Executive Council, Limpopo and Others (2014) JOL 32103 (GP), at paragraphs [63] to [64])
  • of equal importance is that urgent relief will be denied in circumstances where the applicant has failed to act with the necessary haste in approaching the court, as the primary objective of approaching a court on an urgent basis is to prevent harm or prejudice from occurring (see Golding v HCI Managerial Services (Pty) Ltd and Others [2015] 1 BLLR 91 (LC), at paragraph [24]; Ntozini and Others v African National Congress and Others (18798/2018) [2018] ZAGPJHC 415 (25 June 2018), at paragraph [11])
  • the starting point was whether the applicant had approached the labour court with the necessary haste, which it agreed she had done. The public announcement of the termination had taken place on 30 January 2021, and she had received written confirmation of the termination on 1 February 2021. It is accepted that she had taken a further four days prior to putting PRASA on terms, but that delay, in the light of the circumstances of the case, had been negligible, in view of PRASA’s response of 9 February 2021 to her letter of demand
  • the issue of whether financial hardship is a basis of seeking urgent relief has received attention in the labour and other courts. In other decisions, it has been held that, as a general principle, financial hardship does not establish a basis for urgency (see Hultzer v Standard Bank of South Africa (Pty) Limited (J 469/99) [1999] ZALC 46 (25 March 1999), at paragraph [13]; Jonker v Wireless Payment Systems CC (2010) 31 ILJ 381 (LC), at paragraph [16])
  • it has been held that the mere fact that irreparable financial losses have been suffered or would be suffered by the applicant was not, by itself, sufficient ground to acquire the requisite urgency necessary to justify a departure from the ordinary court rules (Ntefe J Ledimo and Others v Minister of Safety and Security and Others (2242/2003) [2003] ZAFSHC 16 (28 August 2003), at paragraph [32])
  • in Harley v Bacarac Trading 39 (Pty) Ltd (2009) 30 ILJ 2085 (LC), it was held that the general principle may be departed from if exceptional circumstances are established, depending on the merits of each case, and the labour court in casu followed this approach
  • in casu, it was found that the exceptional circumstances were created by the reputational damage and slim prospects of securing alternative employment, seeing that the termination of employment took place publicly, entailed a misrepresentation of facts and had the consequences of potential or actual public humiliation

Often employment contracts contain a clause to the effect that the agreement is the sole record of the terms existing between the parties and that any variation or amendment thereof will only be valid if reduced to writing and signed by both parties.

When appearing in the labour court in motion proceedings and there are material disputes of fact, should the matter be referred for oral evidence?

Motion proceedings (including applications in terms of rule 31 of the CCMA rules) are not designed to resolve disputes of fact, but indeed disputes of law.