Acting Judge Essie Schimming-Chase yesterday dismissed an urgent application by the former permanent secretaries of Gender Equality and Woman Affairs, and Agriculture, Water and Forestry, Erastus Negonga and Joseph Iita.
Negonga and Iita wanted the Labour Court to order the Secretary to Cabinet to re-instate them in their previous positions, but Judge Schimming-Chase dismissed their application for lack of jurisdiction.
She said the Labour Court does not have jurisdiction to grant urgent interdictory relief on an urgent basis except when a dispute has been lodged in terms of Chapter 8 of the Labour Act.
She further stated that even if the Labour Court has jurisdiction to hear the review, that jurisdiction relates to review proceedings launched in the normal course.
Judge Schimming-Chase further said the Act created a specific forum for the resolution of labour disputes for all employees, whether employed by the State or not and parties are bound by the restrictions contained in their choice of forum.
According to Judge Schimming-Chase, considering the objectives of the Labour Act and the express provisions regarding jurisdiction, the legislators did not intend for urgent relief to be granted outside the ambits of Section 117(1)(e), and the applicants’ argument regarding the ancillary relief the court could grant in terms of Section 117(1)(i) in particular was unpersuasive, because it called for the granting of additional jurisdiction not legislated for or specifically addressed in the Act.
Section 117 (1)(e) gives the Labour Court the power to grant urgent relief including an urgent interdict, but only pending resolution of a dispute in terms of Chapter 8 while Section 117(1)(i) allows the Labour Court to “generally deal with all matters necessary or incidental to its functions under this Act concerning any labour matter, whether or not governed by the provisions of this Act, any other law or the common law”.
The judge further stated if an applicant chooses the Labour Court as the court of first Instance for urgent relief ancillary to its review proceedings launched in the normal cause, it is bound by the restrictions contained in Section 117(1)(e) with regard to the urgent interim relief.
This is because an applicant can eventually obtain reinstatement, as well as compensation as a result of the failure to comply with the relevant legislation via an arbitrator, she said.
The judge went on to say an applicant can even obtain an interdict, an order directing the performance of any Act that will remedy a wrong and an order for costs.
She noted that in the event she was wrong in her interpretation of the provisions of Section 117(1)(e), she also held the view that the application was not urgent.
This, she explained, “specifically when one considers the applicants’ responsibility to set forth explicitly, as part of their urgency, the circumstances which they aver to render the matter urgent, and the reasons why they cannot be afforded substantial redress at a hearing in due course”.
The substantial redress that applicants may be able to obtain in arbitration is reinstatement and compensation or alternatively compensation. She further said she was inclined to accept that the applicants’ fears regarding their livelihoods as a result of the termination of their employment are “akin to that of every other employee in a similar position”.
Both Negonga and Iita were relieved of their duties at the beginning of April this year.
They were represented by Advocate Theo Frank instructed by Sisa Namandje, while Nixon Marcus appeared on behalf of the respondents, instructed by the Government Attorney.