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Louw v Oostenberg Municipality (C55/97) [1998] ZALC 1 (26 February 1998)

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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG Case no. C 55/98

In the matter between:

ANDRE STEPHANUS LOUW Applicant

AND

OOSTENBERG MUNICIPALITY Respondent

JUDGMENT

MLAMBO J:

1. In this matter the applicant wishes to obtain certain interdictory relief on an urgent basis. The facts are that he has progressed through the ranks and he is now apparently holding the rank of acting chief traffic officer. It appears, however, that his employer, the respondent has discovered that some regulations were not complied with in his progression and it wishes to take him back, if one can use that language, to the rank of Traffic Officer, Grade I.

2. The applicant is aggrieved by this conduct and has come to this court to ask for urgent relief to stop the respondent from demoting him, so to speak.

3. In this application it is not clear whether the applicant seeks final or interim relief but it appears to be final. There are certain requirements for urgent applications; these are set out in Rule 8, which I do not seek to cite verbatim. The essence of rule 8 is that a basis has to be laid why the matter is brought as an urgent one.

4. As applicant seeks a final interdict he must show:

(a) a clear right;

(b) an actual or threatened invasion of that right, and

(c) the absence of an alternative remedy.

See Callguard Security Services (Pty) Ltd v Transport & General Workers Union & Others (1997) 4 BLLR 392 (CC) and Setlogelo vSetlogelo 1914 AD 221.

5. In his in the founding affidavit the applicant sets out a background that spans a number of years to date. The applicant stops short of taking the court further into what Rule 8 requires.

6. Without commenting on the fairness or legality of the respondent’s conduct, this court is of the view that whatever harm that will be suffered by the applicant if he complies with the instruction to assume the position of Traffic Officer, Grade I, is not irreparable in that it is open to him to take his dispute through to the Bargaining Council with jurisdiction, and if conciliation fails to take the matter to arbitration. An award in his favour will have the effect of restoring the status quo he wishes to maintain. To this court, in any way, that is an alternative that is more than adequate under the circumstances.

7. My view is that the applicant has not made a case in his founding affidavit to justify him coming to this court on an urgent basis. What he has done is to pay lip service to the requirements of Rule 8. The Court is loath to allow such conduct because of the undesirable consequences that would ensue. Parties would simply rush to this Court on any basis to demand the audience of the Court. This would be very disruptive to the normal functioning of the Courts and would involve great expense to opponents of such applications.

8. The application therefore stands to be dismissed.

9. Dealing with the issue of costs, it is true that the respondent has requested the Court to order costs against the applicant should it fail. This Court has a discretion when it comes to the issue of costs. What has influenced me in the exercise of my discretion today in this matter is the policy considerations underlying the functioning of this Court in applying the provisions of the Labour Relations Act no. 66 of 1995. The main policy consideration is that this Court should be user-friendly and in that sense the Court understands that parties can sometimes be misguided, especially when they are not legally represented. This is so because this is a new Act and parties are still finding their feet. There will, however, come a time when this honeymoon will be over.

10. With that policy consideration in mind I do not deem it appropriate to order costs against the applicant.

11. I therefore make the following order :

The application is dismissed and there shall be no order as to costs.

______________________________________

MLAMBO J

Date of hearing : 26 February 1998

Date of judgement : 26 February 1998

For applicant : Mr Andre Swart from the Independent Municipal and Allied Trade Union

For respondent : Mr Oosthuizen