TODAY'S ALERTS

Facts and issue: The applicant, Naledi Local Municipality, has listed five respondents in its application. This is just one amongst a plethora of similar cases that have seen the inside of courtrooms, where an organ of the State is seeking to review and set aside its own decisions allegedly taken and actioned unlawfully. In this case, the main impugned decision is the selling of land in the town of Vryburg in a manner that the Municipality contends was in contravention of procurement laws (as well as the sanctioning of the sale), procedurally and substantively. Naledi also wants the court to review and set aside a number of related decisions.

Discussion: There are two important considerations. The first is that the sale transaction was conducted through an unsolicited bid, and the agreement reached which was not advertised publicly. There is also the question of regulation 37(2) which applies to the Municipality, and which requires that goods or services to be procured must be demonstrably or proven to be unique or innovative. It also states that the product or service procured should have exceptional cost benefits for the municipality. Then, it says that the person who approaches a municipality with an unsolicited bid must be the sole provider of the product or service. The second consideration concerns the fact, which is common cause amongst the parties, that the sale price was vitiated by an error that was committed during the land’s valuation. An error occurred which influenced the setting of purchase price when the sale transaction was finalised between the Municipality and Reitum. The result is that the land property was sold for an equivalent of 10% of its then true value, part of which purchase price was used to finance the rezoning costs.

Findings: Based on the failure to follow procedures when concluding the impugned sale transaction, and the error that was admitted by KLS which vitiated the setting of the purchase price, the sale transaction cannot withstand scrutiny. It was concluded unlawfully. The valuation report did not correctly provide the true value for the property. According to the Municipality the valuation report stands to be declared unlawful and, consequently, set aside for that reason. It has already been established that the Municipality relied on the valuation report to conclude the impugned sale agreement with Reitum. It would not be just and equitable to deny Reitum contractual rights that accrued a long time ago. The Municipality had been aware of the unlawfulness of the agreement since 2018 and only took decisive action in 2022. Reitum should be allowed to retain the property, subject to payment of the sum of R1,850,000 to the Municipality.

Order: The valuation and the sale of the Municipality’s property are declared unlawful and therefore invalid. The respondent is ordered to pay an amount of R1,875,000 to Naledi Local Municipality to retain ownership of the property, which amount shall be paid to the Municipality in full within 60 days of the date of the order, failing which the sale transaction shall cease automatically.

Facts and issue: This application is for an order for costs against the respondent for removal of a contempt of court application from the urgent roll without tendering cost thereto. The respondent issued an urgent application against the applicants for contempt of an order of court. The applicants failed to file their Notice of Intention to Oppose with the Office of the Registrar, however the Notice was served on the respondent’s Attorneys per email of 09 September 2022 instead of 05 September 2022 in accordance with the Notice of Motion. On 14 September 2022, the respondent unilaterally removed the matter from the roll without tendering costs. This is the essence of the issues underlying the application for costs.

Discussion: According to the Notice of Removal, the respondent removed the matter from the urgent roll because the application had become opposed. It is a fallacy for the respondent in an urgent application to unilaterally remove the application from the urgent roll on the eleventh hour on the basis that since the Answering Affidavit has been filed, the matter has become opposed and thus qualifies to be re-enrolled on the opposed motion roll without justifying this line of reasoning with the Practice Directives of this Division and/or the Rules of Court. The reasoning of the respondent that she removed the matter from the urgent roll because it became opposed is a misunderstanding of the Rules. As at the time of removing the matter from the urgent roll, the matter seized to be urgent meaning that the opponent is left on the ledge with serious financial implications as far as payment of legal fees are concerned.

Findings: The words removal or withdrawal may be used interchangeably to mean withdrawal of the matter in terms of Rule 41. Rule 41 is specific that a party may not withdraw the matter after it has been set down for hearing without the consent of the other party and without tendering costs thereto failing which the affected party may apply to court for an order for such costs. The issue of tendering costs is at the centre of administration of justice to curb the apparent prejudice that the affected party may suffer in the form of legal costs after having been dragged to court by the applicant as dominis litis in the proceedings.

Order: The respondent is ordered to pay the applicants' taxed costs on an attorney and client scale.

Facts and issue: This is an appeal against the judgment and order of the Magistrates’ Court, dismissing an application by the appellants for the eviction of the first and second respondents and all those occupying the property through them. The first respondent is a 66-year-old woman and the second respondent is referred to in the papers as her partner or common-law husband. They live together, and the second respondent is the breadwinner and cares for the first respondent. The central issue is whether Section 5 (5) of the Rental  Housing Act 50 of 1999, applies to a notice terminating a months-to-month lease, for breach.

Discussion: The appellants submit that there is no genuine concern that the respondents will be left homeless if an eviction order were to be granted. They submit that on the respondents’ own version they can afford alternative accommodation. These propositions were supported by evidence of the financial position of the first respondent and of property rentals in the same area as the subject property. They were not contested on behalf of the respondents and can therefore be accepted. Regarding the personal circumstances of the first respondent, a report by a psychiatrist, Dr van Zyl, was submitted pursuant to an application. In his report, Dr van Zyl states that he has been treating the first respondent as an outpatient since November 2022. She suffers from a long-standing major depressive disorder. He has tested her cognitive function twice, in June 2023 and February 2024. The results indicate advanced dementia. It is a condition which is likely to worsen over the next few years even with the use of medication. Dr van Zyl believes that due to her clinical condition she should access residential care as soon as possible.

Findings: Weighing up the equities, none of this can be laid at the door of the applicants, who are under no constitutional or other obligation to provide housing to the respondents, who have been in occupation without the consent of the applicants since October 2019. These eviction proceedings commenced more than three years ago. Justice and equity weigh substantially in favour of granting an eviction order against the first and second respondents, and anyone that might be occupying the property through them. Having considered the vulnerability of the first respondent, both as an older person and with regard to her health, it is necessary for an order that would advance and protect her interests.

Order: The respondents, and anyone occupying the property through them, are evicted from the property. The respondents and anyone occupying the property through them, must vacate the property by no later than 28 February 2025. The issue of the first respondent is referred for the attention of the Director-General, Dept of Social Development, Western Cape.

Facts and issue: The employees (applicants) of the respondent embarked on a protected strike. Two days prior to the commencement of the strike, the respondent informed the applicants that the “no-work-no-pay” principle would apply. The strike commenced as scheduled. The applicants reported for duty and accessed their payslips on the same day. Surprisingly, according to them, the respondent had made “deductions” from their salaries, which were labelled as “no-work-no-pay”. Aggrieved by the “deductions” and the respondent’s rejection of their demands, the applicants launched these proceedings, on an urgent basis, seeking a final declaratory relief that the “deductions” are unlawful.

Discussion: The applicants’ contentions are vague, speculative and unsubstantiated. They have not explicitly set out the facts that render the application urgent and why they cannot be afforded substantial redress at a hearing in the normal course. That the proceedings in the normal course may be protracted does not on its own render the application urgent. The contention that there may not be able to initiate legal proceedings in the normal course is absurd because the applicants are still employed, and they were able to bring these proceedings on an urgent basis. They are also members of a trade union, which could assist them in funding the application. The applicants have failed to show why this matter deserves the Court’s attention urgently. The application falls to be struck off the roll.

Findings: That the respondent is entitled to apply or implement the no-work-no-pay principle for December 2024 is not in dispute. The applicants cannot therefore claim to have established a clear right. The applicants have no right to demand that the respondent should not implement the no-work-no-pay principle. On this basis alone, the application for an interdict would fail. Even if they were able to establish a clear right which was or is or may be threatened, they have not established a lack of satisfactory remedy, and the application would also fail on this ground. The employees embarked on a protected strike, as they were entitled to. However, they knew or ought to have known that the strike comes with its price, the application of the no-work-no-pay principle. From the papers, they understand this principle and they claim not to challenge it. However, their application directly challenged the respondent’s decision to apply and implement the very same principle they claimed not to challenge. They approached the court on an urgent basis where there was no urgency.

Order: The application is struck off the roll for lack of urgency. The 134 applicants are ordered to pay the costs of the first and second respondents, jointly and severally the one paying the other to be absolved.

Facts and issue: This appeal concerns the proper interpretation of a specific clause of a collective agreement in respect of employees in the public sector who are members of the appellant. The genesis of the demand for promotion and the dispute between the parties is the interpretation of clause 3.6.3.2 of the Public Service Coordinating Bargaining Council (PSCBC) Resolution 3 of 2009. The appellant contends that five employees had their posts upgraded to salary levels 10 and 12 on coming into effect of Resolution 1 of 2012 on 31 July 2012. However, due to directives issued by the Department of Public Service and Administration the upgrades were made subject to the approval of the Minister and after a process of evaluation by the Department of Public Service and Administration. Their salary levels were, as a result, not upgraded to levels 10 and 12 respectively.

Discussion: The case sought to be made by the appellant is that the posts to which its members had been promoted had been graded to salary levels 10 and 12 respectively. For that reason, the grading by the provincial department of health entitled them to be remunerated at the applicable salary levels. The difficulty with the appellant’s case in this regard is that it is not its case that the Minister was not empowered to issue the directive that he or she issued. This is not even a case in which the directive is sought to be set aside. The appellant’s members’ posts being transversal across the public service, a regulatory mechanism for the implementation of the resolution is absolutely necessary and in fact rational to ensure consistency. This is not only so that all employees occupying similar posts and appointed on or after the 1 August 2012 are remunerated equally or at least equitably across all national and provincial government departments for generic and transversal jobs. There is also section 3(5)(b) which requires consultation with the Minister of Finance for determinations that involve expenditure from the fiscus.

Findings: There was no misconduct by the arbitrator in interpreting the collective agreement read with the determination by the Minister which is contained in the directive nor is there any irregularity in the arbitrator determining the matter in the manner he did. In fact, the arbitrator correctly interpreted the resolution read with the circular. The suggestion that the arbitrator never interpreted the resolution is difficult to understand. When one looks at the whole Resolution 3 of 2009 together with the relevant provisions of the PSA and the 2016 Regulations, it is almost difficult to understand how it could be correct for any collective agreement to be interpreted and applied totally independently of ministerial circulars when issued. Therefore, the arbitrator did not commit any misconduct or misdirection in dealing with this matter and reaching the conclusion she did.

Order: The appeal is dismissed.

Facts and issue: This is a review application in terms of section 145 of the Labour Relations Act 66 of 1995. The applicant seeks to have the award issued by the commissioner in her unfair labour practice dispute with the third respondent (SFF) reviewed and set aside and substituted with an order that her suspension by SFF constituted an unfair labour practice, and as a result she is entitled to six month’s compensation.

Discussion: In a report, Gobodo found that the applicant played no role in the disposal of the strategic stock. Two years after the Gobodo report, SFF placed the applicant on precautionary suspension pending disciplinary proceedings. SFF dispatched a notice to the applicant notifying that SFF intends to place the applicant on precautionary suspension pending finalisation of a disciplinary hearing against her for the alleged involvement in the unlawful sale of South Africa’s strategic stock. The second charge related to the applicant’s alleged failure to inform the Board about the transactions, as set out in the Gobodo report. The applicant in her review application took issue with only the commissioner’s findings in respect of SFF, in failing to take any disciplinary action against her from the time the Board became aware of the transactions in 2016 and/or from the date of the second Gobodo report in February 2021 to the date of her suspension coupled with their failure in those time periods to indicate an intention to take disciplinary action against her, waived its right to take any disciplinary action against her; the alleged unreasonable delay in disciplining her also automatically meant that her suspension was unfair; and her suspension served no rational and fair purpose because she posed no threat to the investigations, which were concluded two years before she was suspended.

Findings: The commissioner considered that SFF explained the delay following the Gobodo report, albeit at the disciplinary enquiry and that the applicant had been aware that SFF in that time was conducting disciplinary enquiries against the other Exco members implicated by the High Court. As to the applicant’s claim that her precautionary suspension was unnecessary and thus unfair, the commissioner found that the “matter was not a run of the mill matter.” It involved high profile individuals, huge amounts of money and had received public attention. In these circumstances, it was not unreasonable for SFF to adopt a cautious approach and put contingencies in place to protect the integrity of the disciplinary hearing. The applicant failed to demonstrate that the Commissioner failed to consider material evidence, as alleged, and that his conclusions are untenable. In fact, the award is soundly reasoned.

Order: The application is dismissed.

Facts and issue: This is an appeal with the leave of the court a quo, brought against its judgment and order where it found that the respondent’s business was transferred to the appellant in terms of section 197 of the Labour Relations Act 66 of 1995. The appellant is a local government and district municipality. The appellant submits that the causa for the transfer was at best the termination of the service level agreement (SLA) and at worst for the respondent, the termination of an unlawfully extended contract. The main contention is whether the return of assets owned by the appellant municipality to it by the respondent, can constitute a transfer for the purposes of section 197.

Discussion: The respondent submits that the Key Labour Principles clause of the tender makes it clear that on termination, the employees would either be transferred to the appellant or whichever service provider succeeds it in providing the bulk water services. Its main contention is that this was not a mere cancellation of a service contract. The respondent submits that the employees were not the main component of the business, and thus their lack of transfer to the appellant is of no consequence to the application of section 197. It further submits that the consequences for employees cannot depend on an agreement between the new and old employers outside of section 197. The causa potentially giving rise to section 197 was the termination of the SLA. The nature of the supply of the bulk water services in this matter fits into the wide definition given to the terms business or service. Clearly, the business or service was the provision of the bulk water supply and the related services.

Findings: The business of supplying the bulk water services was indeed a going concern because in substance, there is virtually no difference in how it was conducted before and after the expiry of the SLA. The appellant’s residents had the same water supply before and after the expiry of the SLA. The appellant’s claim that the termination or end of all government tenders would be transfers as going concerns in terms of section 197 of the LRA is not sustainable. Such an approach places form over substance. All three requirements for a section 197 transfer to the appellant were met and there was a transfer of the business as a going concern from the respondent to the appellant. Section 197 was clearly implicated as the business of providing bulk water supply was transferred to the appellant when the service agreement was terminated.

Order: The appeal is dismissed.

Facts and issue: The appeal, with the leave of the court a quo, turns on a question of law of whether an arbitration award is a debt and if certified, whether it becomes a judgment prescribing after 30 years, as defined in the Prescription Act. The court a quo found that the award was a debt, and that certification does not affect this fact. However, it dismissed the application having found that it had already prescribed by the time it was certified.

Discussion: The appellant’s main contention is that arbitration awards are not debts prescribing after three years for the purposes of the Prescription Act 68 of 1969. Instead, once certified, their prescription period is 30 years, the same as court judgments. The respondent argued that the appellant had failed to show that prescription had been interrupted and that, by the time the award was certified, it had already prescribed as certification does not change its status. Further, the respondent argued that the appellant had also failed to tender his services in line with the award, so contempt did not arise. A fundamental tenet of the employer-employee relationship is that the employee must tender their services, and the employer must remunerate them in return. When an employee is dismissed, it follows that he no longer has the obligation to tender his services. If such dismissal is found to be unfair by an arbitrator or a court and the employer is ordered to reinstate or re-employ him, then the employee once again has a duty to tender his services.

Findings: The appellant’s counsel conceded that there was no tender of services by Mr Koopman. Even if it were to be found in the appellants’ favour on prescription, the failure to tender services is fatal to their cause. Once an employee has an award or order granted in his favour, reinstating or re-employing him, the duty falls on the employee, not the employer to ensure that services are tendered. The right to fair labour practices also extends to employers. It would be unfair and unreasonable to expect them to wait for an employee who was unfairly dismissed and subsequently reinstated, to decide for themselves when they feel it appropriate to return to work and to tender their services, whenever they deem this appropriate at their own time. The appeal must therefore fail.

Order: The appeal is dismissed.

Facts and issue: The first applicant is the CCMA. The second applicant is Commissioner Aphane, of the CCMA. The applicants referred a contempt ruling made by Commissioner Aphane to the court in terms of section 142(9)(b) of the Labour Relations Act 66 of 1995 (CCMA contempt referral). Commissioner Aphane’s contempt ruling relates to a ruling made by another commissioner in dispute in which the first respondent (the company) is appearing in its capacity as the former employer of Mr Pillay. Mr Pillay alleges constructive dismissal. Commissioner Havenga who is presiding in the constructive dismissal case issued a disclosure ruling.

Discussion: The company only complied in providing the former employee with one of the listed recordings of an MS Teams meetings, and so its compliance with this aspect of the disclosure ruling was markedly limited. Mr Pillay applied for the company to be held in contempt of the disclosure ruling. Commissioner Aphane found the company to be in contempt of the CCMA in terms of section 142(9)(a) of the LRA and exercised his discretions to make the CCMA contempt referral. This is a case of alleged contempt in terms of section 142(8)(e), and section 142(8)(f) read with section 142(1)(b). The applicants’ first prayer is that the court subpoena the company, and as alternatives, the IR manager and/or the IR consultant to appear in court to show cause why Commissioner Aphane’s contempt ruling should not be confirmed by the court.

Findings: In terms of section 142(10)(a) of the LRA, the court “must subpoena any person found in contempt to appear before it on a date to be determined by the court”. The company was found in contempt by Commissioner Aphane, and the court must therefore subpoena it. The other persons who the applicants seek to have subpoenaed are the IR Manager and the IR Consultant. The IR Manager informed the former employee that the company did not believe that it was its duty to provide transcripts of recordings, and who appeared on behalf of the company in the CCMA contempt proceedings. He therefore has insight into the company’s change of heart regarding compliance and why the company sees fit to have the CCMA approach the court in terms of section 142(9)(b) of the LRA. The IR Consultant was present as an observer at the contempt proceedings, and was the company’s representative at the disclosure proceedings, making the submissions that resulted in the terms of the disclosure ruling. The court agreed I with the applicants that they are both best placed to explain the company’s non-compliance with the disclosure ruling and ought to be subpoenaed to assist the court in exercising its powers under section 142(11) of the LRA.

Order: The first respondent is subpoenaed to appear before the court to show cause, if any, why the second applicant’s contempt ruling in respect of the first applicant, should not be confirmed, alternatively, whether it should be varied or set aside. The second and/or third respondent are subpoenaed to appear before the court to show cause, if any, why the second applicant’s contempt ruling in respect of the first applicant, should not be confirmed, alternatively, whether it should be varied or set aside.

Facts and issue: The question whether a particular forklift is a ‘motor vehicle’ as defined in section 1 of the Road Accident Fund Act 56 of 1996 has received some considerable attention by the courts. The forklift in question in this matter is a Toyota 8 series 8FD25 (insured vehicle) which collided with the plaintiff. At the time of the collision, the insured vehicle was being driven by Mr Meiring (the insured driver). The plaintiff has instituted this action claiming compensation for damages that he suffered because of the aforesaid collision. The defendant has denied liability pleading that the plaintiff’s claim is not competent because the insured vehicle is not a motor vehicle as defined in section 1 of the RAF Act, and the collision was not caused by the negligence of the insured driver.

Discussion: The first and the third requirements are not controversial as the defendant conceded that the insured vehicle is propelled by diesel. The parties are also in agreement about the meaning of the road as not limited to a public road. The dispute is whether the insured vehicle was designed for propulsion on a road. Mr. Grobbelaar had prepared a report detailing some of the features of a Toyota 8 series 8FD25 forklift. Mr Grobbelaar stated in his report that the forklift was designed primarily to lift and move heavy loads in and around warehouses, stock yards or construction site situations where relatively smooth surfaces and slower speeds for the operation of the forklift are applicable. He also confirmed that the forklift’s main function is therefore to lift, or lift and move, the heavy loads into or from stacked positions, or to lift the loads into, on to, and from trucks which would then transport the loads over longer distances on public roads.

Findings: Mr Grobbelaar described one of the problems with the forklift as the absence of suspension system, the implication of which he stated was that the forklift was designed for relatively low speed operation. The evidence was also that the forklift in question was used to transport goods over short distances and there was no suggestion that it was suitable to transport goods over long distances. Despite the improvements in the design of the forklift, these improvements appear to be directed at enhancing its safety when fulfilling its primary purpose and not for the purposes of making it suitable to travel on a road. The result is that the court is not satisfied that the Toyota 8 series 8FD25 forklift is a ‘motor vehicle’ as defined in the RAF Act.

Order: The plaintiff’s claim is dismissed with costs.

* See also Strydom v Road Accident Fund [2024] ZAMPMHC 62.