Mashishi v Riverview Body Corporate

Labour court regarded application as hopeless and baseless after stating that it ‘appears that the applicants were employed as security guards. During August 2017 the first respondent took a decision to outsource the security services to the second respondent. Effective 1 October 2017, the security business was outsourced to the second respondent. As required by law, the employments contracts of the applicants were transferred to the second respondent. Apparently, the second respondent attempted to negotiate, with a view to agree, on new terms of employment. The applicants offered resistance towards this move. As a result, on 4 October 2017, they referred a dispute to the CCMA alleging automatically unfair dismissal’.

Essence

Labour regarded  unopposed application as hopeless and baseless and refused to grant any relief for the reasons mentioned in the judgment.

Decision

(J2829/17) [2020] ZALCJHB 38 : [2020] JOL 46887 (LC) (14 February 2020)

Order:

Refused application.

Judges

GN Moshoana J

Heard: 30 January 2020
Delivered: 14 February 2020

Related books

Darcy du Toit et al Labour Relations Law: A Comprehensive Guide 6ed 925 pages (LexisNexis 2015) at

Darcy du Toit et al Labour Law Through The Cases – loose-leaf service updated 6 monthly (LexisNexis 2021)

Van Niekerk and Smit (Managing editors) et al [email protected] 5ed (LexisNexis 2019) at 

Reasons

“[5] Dealing with jumbled up applications is the most painful exercise for a judge, whose constitutional duty is to exercise judicial authority over legal disputes. The pain becomes even more excruciating if counsel moving such an application is of no assistance to a court. The application before me is one such application. This application is one of those hopelessly baseless applications. . . . “

Quotations from judgment

Note: Footnotes omitted and emphasis added

Introduction

[1] For reasons not altogether clear from the papers, the applicants brought this application in two parts.

  • Part A seeks to declare a retrenchment and a transfer to be irregular, improper and procedurally unfair. In addition, the applicants seek payment of monthly salaries lost as a result of the “interruption ” of employment.
  • Part B seeks an order to compel the Body Corporate to negotiate in good faith regarding outstanding overtime claims and an order converting an employment contract into an indefinite one within the contemplation of section 198B(5) of the LRA.

[2] This application was initially opposed by the first and second respondents. However for reasons not absolutely clear, the respondents withdrew their answering affidavits. On 23 October 2018, my brother Cele J ordered the removal of the matter from the unopposed roll and directed its enrolment on the opposed roll. On 30 January 2020, the matter appeared on my opposed roll. There was no appearance on behalf of the respondents. Owing to that, the applicants’ counsel sought to move the application in the absence of the respondents. After hearing submission, this court reserved its judgment.

Background facts

[3] The relevant facts pertaining to this matter were not succinctly and logically narrated in the founding papers . With great difficulty, this Court was able to decipher the following material facts. It appears that the applicants were employed as security guards. During August 2017 the first respondent took a decision to outsource the security services to the second respondent. Effective 1 October 2017, the security business was outsourced to the second respondent.

As required by law, the employments contracts of the applicants were transferred to the second respondent. Apparently, the second respondent attempted to negotiate, with a view to agree, on new terms of employment. The applicants offered resistance towards this move.

As a result, on 4 October 2017, they referred a dispute to the CCMA alleging automatically unfair dismissal. It remains unclear as to what ultimately happened to this referral. Ultimately, on or about 26 October 2017, the applicants launched the present application.

Basis of the application

[4] As pointed out above, the facts of this matter are jumbled up and difficult to comprehend. In that regard, it remains difficult to follow the legal basis of the present application. However, regard being had to the notice of motion, the applicants seek a declarator to effectively declare their alleged dismissal to be irregular and unfair and to order payment of salaries and overtime. Even during oral argument, the Court struggled to follow any of the submissions by the applicants’ counsel pertaining to the legal basis of this application. The unsigned heads or argument, with no indication of who prepared them, simply added salt to the wound.

Evaluation

[5] Dealing with jumbled up applications is the most painful exercise for a judge, whose constitutional duty is to exercise judicial authority over legal disputes. The pain becomes even more excruciating if counsel moving such an application is of no assistance to a court. The application before me is one such application. This application is one of those hopelessly baseless applications.

Corbett CJ in Shoba v OC Temporary Police Camp, Wagendrift Dam , laid the following principle with regard to declaratory reliefs: –

“An existing or concrete dispute between persons is not a prerequisite for the exercise by the Court of its jurisdiction under this subsection, though the absence of such may, depending on the circumstances cause the Court to refuse to exercise its jurisdiction in a particular case … But because it is not the function of the Court to act as an advisor, it is a requirement of the exercise of jurisdiction under this subsection that there should be interested parties upon whom the declaratory order would be binding …”

[6] In Proxi Smart Services (Pty) Ltd v The Law Society of SA and others , the High Court, correctly, in my view, held that a Court will not grant a declaratory order where the issue raised before it is hypothetical, abstract and academic, or where the legal position is clearly defined by statute.

[7] In casu, the LRA does clearly provide that dismissals are to be dealt with in a particular manner. The argument that parties are in dispute as to the relevant applicable sections (section 197 and 189A of the LRA) is of no consequences and is lacking in merit. The Court’s powers cannot simply be invoked to resolve interpretative misunderstanding between parties who are legally represented.

[8] Turning to the salaries issue. Yet again, the LRA clearly provides that if a dismissal of an employee is unfair, the primary remedy is that of reinstatement, which may be ordered with retrospectivity. Thus, this court refuses to give a legal advice to the applicants.

That is what they seek to do at this stage. A dismissal dispute is pending at the CCMA. A bizarre relief to compel negotiations with legal representatives is not one that this Court is willing to dignify with an order.

With regard to allegations around section 198B(5), the provisions of section 198D (3) of the LRA are clear, this Court lacks jurisdiction to entertain these allegations.

The dispute around overtime pay may be entertained in this court through section 77(3) of the BCEA referral. Owing to the dispute of fact around it, motion proceedings are inappropriate.

[9] For all the above reasons, the application must fail.

[10] In the results I make the following order:

Order

1. The application is dismissed.

2. There is no order as to costs.

Court summary

“An opposed application –declaratory relief refused – application baseless and hopeless. Held: (1) Application dismissed. Held: (2) There is no order as to costs.”