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IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

CASE NO: J 426/23

In the matter between:

LESLEY NTSWANE	First Applicant
ZWELIBANZI DLAMINI	Second Applicant
and
PULENG LENKABULA, IN HER CAPACITY AS VICE CHANCELLOR (UNISA)	First Respondent
UNIVERSITY OF SOUTH AFRICA (UNISA)	Second Respondent
NOTOKOZA KONA (Nominee Officee)	Third Respondent
MOSA MF MODIBA (Nominee Officee)	Fourth Respondent
CHAIRPERSON LEGAL PRACTICE COUNCIL	Fifth Respondent
THE LEGAL PRACTICE COUNCIL	Sixth Respondent

IN RE:

Case Number JR 93/2023

In the matter between:

PULENG LENKABULA, IN HER CAPACITY AS VICE CHANCELLOR (UNISA)	First Respondent
UNIVERSITY OF SOUTH AFRICA (UNISA)	Second Respondent

Heard : 28 March 2023

Delivered   : 31 March 2023

 

Delivered: This judgment was handed down electronically by circulation to the Applicant’s and the Second Respondent’s legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing - down is deemed to be 15h00 on 31 March 2023.

JUDGMENT

LALLIE, J

[1] The applicants are employees of the second respondent. The first is the Executive Director for Study Material Production and Delivery and the second is the Executive Director for Human Resource. Both are currently under precautionary suspension owing to allegations of misconduct against them. Having launched an urgent application against the first and second respondent, the applicants obtained an order on 26 January 2023, the salient points of which are the following:

“1. The rule nisi issued on 26 January 2023 is extended to 02 May 2023.

2.  The costs of today are reserved.

3.  In the event that the parties return with a settlement agreement, they would be entitled to approach the Registrar to have a consent order granted in chambers in terms of the Rules.”

Prayer 2 of the notice of motion referred to in the order reads as follows:

“2.    That pending the appointment of the Arbitrator in accordance with clause 13 read with clause 12.4 of the contract of employment entered into by the Applicants and the Respondents:

(a)  The Respondents are interdicted and restrained from instituting an internal (in-house) disciplinary hearing against the Applicants.

(b)  The notice or letter dated 11 January 2023 inviting the Applicants to attend the internal disciplinary proceeding on 26^th January 2023 at UNISA (OR Tambo building 11^th floor) is declared to be of no force and effect and thereby set aside.

(c)   That the Respondents are ordered and directed to immediately halt the threatening and impending disciplinary hearing against the Applicants scheduled for the 26^th of January 2023.”

 

[2] The rule nisi was extended in an order dated 09 March 2023, paragraph 3 of the order reads as follows:

“3. In the event that the parties return with a settlement agreement, they would be entitled to approach the Registrar to have a consent order granted in chambers in terms of the Rules.”

[3] The settlement agreement referred to in paragraph 3 of the order of 09 March 2023 did not materialize, instead the applicants launched the present urgent application. The application is opposed by the first and second respondent. The applicants divided the relief they are seeking into three parts, namely, part A, B and C. It was submitted on their behalf that only part A of the application had to be adjudicated. In part A the applicants seek, on an urgent basis, an order interdicting the first and second respondent from setting their disciplinary hearings down for hearing pending the hearing of the rule nisi that was extended to 02 May 2023 and the finalization of the matter in which that rule nisi was issued. They also sought an order declaring the notices summoning them to disciplinary hearings on 28 March 2023 and 13 and 14 April 2023 to be declared of no force and effect and set aside.

 

[4] In their opposition, the first and second respondent challenged the urgency of this application. They submitted that the applicants have failed to comply with provisions of Rule 8 of the Labour Court Rules by not disclosing reasons for urgency and why urgent relief is necessary. I accept the argument on behalf of the first and second respondent that the applicants did not use the actual wording in Rule 8. I, however, reject their contention of non-compliance with the rule. The applicants have made it abundantly clear that in light of the rule nisi that was extended on 09 March 2023, the second respondent’s conduct of setting their disciplinary hearings down for hearing before, in their view, the court orders which have been granted have been complied with justifies the hearing of this matter on an urgent basis. The first and second respondents’ defence that they have complied with the order of 26 January 2023 cannot assist them as the validity of their defence has not been determined yet. The imminent threat if the violation of the right contained in the order of 26 January 2023 constitutes reason for seeking urgent relief. The point in limine that this application is not urgent must, in the circumstances, be dismissed.

 

[5] It is common cause that in a letter dated 15 March 2023 the second respondent through its attorneys, informed the applicants, through theirs that they had complied with paragraph 2 of the order of 26 January 2023. Consequently, the second respondent advised the applicants that their disciplinary enquiries would be held on 13 and 14 April and 28 March 2023 respectively. The applicants’ reasons for filing this application is that their disciplinary enquiries have been scheduled in violation of the court order. It is common cause that allegations of misconduct against the applicants are governed by the following provisions of their contract of employment:

“12.4   Misconduct

Misconduct will be dealt with in terms of the Arbitration clause provided for in clause 13 hereunder.

  Clause 13 provides that:

  “13. ARBITRATION

  …

13.5 The arbitrator shall be a practicing attorney or advocate of no less than 10 (ten) years standing appointed by the parties or, failing agreement by the parties within 10 (ten) days after the arbitration has been demanded, shall be nominated the President for the time of the Law Society of the Northern Provinces.

…”

[6] The applicants submitted that on the return date, the 09 March 2023, the first and second respondents were already in possession of the letters in which the fifth and sixth respondents appointed the third and fourth respondents to arbitrate the applicants’ disciplinary enquiries. The applicants further submitted that in terms of clause 13.5 of their contracts of employment the arbitrators must be appointed by the second respondent and themselves as parties to the contracts. It is in the event of their failure to reach an agreement on the appointment that the chairperson of the Legal Practice Council which is the successor of the Law Society of the Northern Provinces, will nominate the arbitrators. The applicants expressed the view that clause 13.5 of the contracts of employment empowers the fifth and sixth respondents to only nominate the arbitrators and that the appointment of the nominated arbitrators remains the prerogative of the parties. They further submitted that on 09 March 2023 the respondents agreed to their proposal that as parties they each nominate and furnish two names from whom arbitrators would be appointed.

 

[7] The issue for adjudication is crisp. It is whether the second respondent should be interdicted from acting in violation of the applicants’ contracts of employment pending the return date in their dispute under case number J 93/23. In the rule nisi granted under JR 93/23 on 26 January 2023 whose return date has been extended to 02 May 2023 the first and second respondent are interdicted from instituting disciplinary hearings against the applicants pending the appointment of arbitrators in accordance with clause 13 read with clause 12.4 of their contracts of employment. An interim finding has therefore been made that as at 26 January 2023 the first and second respondent had not complied with clause 13.5 of the applicant’s contracts of employment. Clause 13.5 of the contracts of employment provides a two-step process in the appointment of an arbitrator. The first is to have the arbitrator appointed by agreement between the parties failing which the arbitrator will be nominated by the Chairperson of the Legal Practice Council. The applicants insist that the first respondent failed to comply with clause 13.5. In all their attempts to prove compliance with clause 13.5 the first and second respondent made no averments proving the attempts made from 26 January 2023 to agree with the applicants on the names of the arbitrators.

 

[8] The first and second respondent sought to rely on a letter dated 21 February 2023 in which the fifth respondent appointed the fourth as an arbitrator in the first applicant’s disciplinary enquiry. A further document they sought to rely on is a letter dated 31 January 2023 in which the fifth respondent appoints the third respondent as an arbitrator in the mater between the second respondent and the second applicant and confirms the appointment as a commercial mediator for the matter.

 

[9] I have taken into account the authorities the parties sought to rely on. In South African Broadcasting Corporation SOC Limited v Democratic Alliance and others[1], authority the first and second respondents sought to rely on piecemeal litigation and hiding behind small issues is discouraged. While I accept the legal position expressed in the judgment I am not convinced that denying the applicants their right to appoint the arbitrators by agreement is small or insignificant. When rights are created in a contract of employment no party has the residual right to unilaterally deny the other the opportunity to exercise them.

 

[10]   I have also considered the decision in TG Manyasha v The Minister of Law and Order[2], which forms part of the authorities which the first and second respondent sought to rely on. In that matter the court dealt with the interpretation of Rules 10 and 60(5) of the Magistrates’ Court Rules. In that judgment the court confirmed that the primary rule of interpreting statutory provisions is to ascertain the intention of the legislature by firstly giving words under consideration their ordinary grammatical meaning which their context dictates unless doing so would lead to an absurdity not intended by the legislature. That is trite. The language used in clause 13.5 of the contracts of employment is clear and unambiguous. There is therefore no reason not to give clause 13.5 its literal meaning. The parties should have agreed on the arbitrators failing to reach an agreement the chairperson of the Legal Practice Council had to nominate the arbitrators. An attempt by the parties to reach an agreement was not made. Had it been made the order of 09 March 2023 would not have read as it stands particularly because the first and second respondents were in possession of the letter appointing the third and fourth respondents as arbitrators. The omission is in violation of clause 13.5.

 

[11]   The fifth respondent’s power to appoint arbitrators is activated by the failure of the parties to reach agreement on the arbitrators. The appointment of the third and fourth respondents was therefore pre-mature and invalid. What exacerbates matters in the appointment of the third respondent is that she was appointed as a commercial mediator. I cannot accept the argument advanced on behalf of the first and second respondent that the purpose for which she was appointed does not matter. As she was appointed to arbitrate a misconduct dispute, the relationship between the reason for her appointment and the role she was going to play had to be consistent.

 

[12]   The applicants sought to take issue with the use of the word disciplinary hearing as opposed to arbitration proceedings when reference is made to the procedure that will be followed in dealing with the allegations of misconduct against them. I accept the argument advanced on behalf of the first and second respondent that referring to the process as a disciplinary hearing is immaterial. The reason is that even the applicants themselves refer to it as a disciplinary enquiry. The fact that their contracts of employment refers to it as an arbitration is, for present purposes, immaterial.   

 

[13]   I am satisfied that the applicants fulfilled the requirements for an interim interdict because they had no other alternative effective remedy against the imminent violation of their rights.

 

[14]   The first and second respondent forced the applicants to launch this application by their failure to fulfil the necessary requirements before setting the disciplinary enquiries down for hearing. Fairness requires that the applicants should not be out of pocket as a result of the first and second respondents’ omission. It is therefore appropriate to order the second respondent to pay the applicants’ costs of this application.

 

[15]   In the premises, the following order is made:

 

Order:

1.  The form, notices, and period of service are dispensed with and this application is heard as one that is urgent in terms of Rules 8(1) and (2) of the Rules of the above Honourable Court.

2.  Pending the hearing of the rule nisi extended and returnable on the 2^nd May 2023 and the finalization of the matter under case number JR93/2023 which is before this Honourable Court:

a. The first and second respondents are interdicted and restrained from setting down the date of the disciplinary hearing against the applicants.

b. The notice or letter dated 15 March 2023 which scheduled the date 28^th March 2023 in respect of the second applicant and 13^th and 14^th April 2023 in respect of the first applicant and inviting the applicants to attend the internal disciplinary hearings on the said dates is declared to be of no force and effect and is hereby set aside.

c. The first and second respondents are ordered and directed to halt the scheduled disciplinary hearings against the applicants with immediate effect.

6.  The second respondent is ordered to pay the costs of part A of the application.

Z. Lallie

Judge of the Labour Court of South Africa

 

APPEARANCES

 

For the Applicant:	Advocate MPT Maluleke
Instructed by:	Tisana Madimetja Attorneys
For the First and Second Respondents:	Advocate Motebano Ramali SC with Advocate Modisa Selala
Instructed by:	S Pearl Ndaba Attorneys

 

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