IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT PORT ELIZABETH

NOT REPORTABLE
Case Number P578/17
In the matter between: 
NOMZINGISI TUKELA						  APPLICANT

and 

MINISTER OF PUBLIC WORKS				 First Respondent

DIRECTOR GENERAL: NATIONAL
DEPARTMENT OF PUBLIC WORKS			Second Respondent

Heard: 19 December 2017
Delivered: 19 December 2017

JUDGMENT

POTGIETER, AJ

[1]	This is an urgent application for an order –

(i)	condoning the applicant’s non-compliance with the time frames set by the rules directing that the application is urgent; 
(ii)	declaring that the First Respondent’s decision to permanently transfer the Applicant from her place of work in Mthatha to the Second Respondent’s offices in Pretoria to be unlawfull, void, unfair and of no force or effect.
(iii)	declaring the First Respondent’s instruction pursuant to the purported decision to transfer the Applicant permanently to Pretoria unlawful, void, unfair and of no force and effect; 
(iv)	interdicting and restraining the Respondents from taking any action, disciplinary or otherwise, arising from her refusal to accept transfer to Pretoria which will prejudice the Applicant in her employment for so long as she tenders service as Chief Director: Regional Head of the Mthatha Regional Office in terms of her contract of employment 
(v)	interdicting and restraining the Respondents from appointing anyone else to the position of Chief Director: Regional Head for the Mthatha Office unless and until the applicant is lawfully removed from the post.
(vi)	Directing that the order sought in prayers i, ii. iii, iv and v to be final in effect. 
[2]	Alternatively hereto, the Applicant also sought an order that the prayers ii to v operate as an interim order pending a return date for the Respondents to show cause why the orders should not be made final
[3]	The respondents opposed the applicant’s application on the basis that the applicant did not show urgency; This Court does not have the required jurisdiction and the application for the relief sought had no merit.

BACKGROUND TO THIS DISPUTE

[4]	I do not intend referring to the background to this dispute in much detail in light of my conclusion that the matter is not urgent and that it should accordingly be struck of the roll. Suffice to briefly point out that the applicant’s special leave she was placed on was uplifted on 18 February 2016 subsequent to her horizontal transfer (placement) from Mthatha to Head Office with a choice of two positions on 6 January 2016. The applicant failed to make a selection

[5]	Further correspondence ensued relating to the applicant’s conduct and the decision to transfer the applicant and the procedure followed with final confirmation of the transfer to the applicant’s attorney on 15 August 2017. 

[6]	The notice of a disciplinary hearing is dated 18 August 2017.

URGENCY

[7]	From the afore going it is clear that the administrative action the applicant is complaining about was confirmed to the applicant’s representative, (Mr. Vlok) on 15 August 2017 and notice of the disciplinary enquiry was given in August 2017.  What is, however, also clear is that the present urgent application was only filed with this Court on 12 December 2017 which is approximately four months after the administrative decision was confirmed and disciplinary steps instituted.

[8]	It is trite that an applicant who approaches this Court on an urgent basis must make out a case for urgent relief on the papers in sufficient particularity. This much is clear from Rule 8 of the Rules of the Labour Court which expressly states that a party that applies for urgent relief must file an application that complies with the requirements of Rule 7(1); 7(2); 7(3) and if applicable 7(7) of the Rules.  Rule 7(2) expressly requires that the affidavit in support of the application must contain the following: 

(a) the reasons for urgency and why urgent relief is necessary; and
(b) the reasons why the requirements of the rules were not complied with, if that is the case.

[9]	It is also trite that administrative action stands until reviewed and set aside.

[10]	Urgency in itself does not relieve a party from this obligation and an Applicant should, in as much detail as possible, place such facts that are necessary before the Court and which will enable this Court to decide whether the forms and service provided for in the rules should be dispensed with. Only once an applicant has persuaded the Court that sufficient grounds exist which necessitate a relaxation of the Rules and ordinary practice, will the Court proceed to consider the matter as one of urgency. The extent to which the Court will allow parties to dispense with the Rules relating to time periods will depend on the degree of urgency in the matter. 

[11]	The applicant states that the matter is self-evidently urgent. This contention is not supported by the facts. It is clear from the correspondence relied on by the applicant that there could not be any doubt that the Respondents had made up their minds that the applicant will be transferred in the letter dated 15 August 2017. This administrative action was not taken on review then or now.

[12]	The threats complained of existed for approximately four months before the applicant decided to bring this application
[13]	It is also not sufficient to rely on an argument based upon implications and deductions which may be made from allegations contained in the affidavit that the matter is urgent. In fact, the founding affidavit does not properly address the question of urgency at all: Apart from prayer 1 of the Notice of Motion in terms of which condonation is sought for the Applicant’s non-compliance with the relevant provisions of the Rules of this Court, no case has been made out on the papers as to why there should be a departure from the normal rules. It does not suffice to say the matter is self-evidently urgent.  More in particular the Applicant does not even attempt to explain why this application was not brought to this Court shortly after the events in August 2017. She in fact says on 18 August 2017 that she will seek legal advice to challenge the transfer in court. It is clear to my mind that she at that stage contemplated if not decided to take legal action to challenge her transfer (and disciplinary action)

[14]	It is trite that an Applicant cannot create his or her own urgency by delaying bringing an application. This Court will not come to the assistance of an applicant who has delayed approaching the Court. See National Police Services Union & Others v National Negotiating Forum & Others (1999) 20 ILJ 1081 (LC) at 1092 paragraph [39] where Van Niekerk, AJ (as he then was) stated the following: 

“The latitude extended to parties to dispense with the rules of this court in circumstances of urgency is an integral part of a balance that the rules attempt to strike between time-limits that afford parties a considered opportunity to place their respective cases before the court and a recognition that in some instances, the application of the prescribed time-limits or any time-limits at all, might occasion injustice. For that reason, rule 8 permits a departure from the provisions of rule 7, which would otherwise govern an application such as this. But this exception to the norm should not be 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 in this court. For these reasons, I find that the union has failed to satisfy the requirements relating to urgency.”

[15]	I am in light of the afore going of the view that the Applicant has created her own urgency by the substantial delay. I am of the view that the application falls to be struck of the role.

COSTS

[16]	In respect of costs it was argued by the Respondent that costs should be awarded including the costs of senior counsel. The applicant argued that costs should follow the result

[17]	In the event the following order is made:
Order:

1.	The application is struck off the role with costs (including the costs of senior counsel).

-----------------------------------
POTGIETER, A J

Appearances
For the Applicant: Advocate Grogan
Instructed by Nosindwa Attoneys Inc.
For the Respondent: Advocate Sassim SC
Instructed by the State Attorney