TODAY'S ALERTS

Facts and issue: The applicants seek to vindicate the right of the learners of the schools to basic education in a safe and appropriate learning environment. They allege that the ECDOE has failed to address the pervading problem of overcrowding in classrooms utilizing its Infrastructure Norms and Plans and by proving adequate infrastructure, thus making the learning environment at the applicant schools inconducive. The applicants seek review and systemic relief against the respondents.

Discussion: While admitting the overcrowding of classrooms at not only the schools identified by the applicants but many other schools across the Eastern Cape Province together with their appalling effects, the ECDOE opposes the grant of the systemic relief. The ECDOE provides an outline of the progress it had made in addressing and providing appropriate infrastructure at the applicant schools. In keeping with its acknowledgment of the fact that the problem of overcrowding in the already mentioned schools across the four education districts still persists, Mr Quinn submitted that the ECDOE is amenable to submitting to the Legal Resources Centre, a report on schools that do not form part of the ECDOE’s Infrastructural Delivery Plan and the steps the ECDOE intends taking in addressing the overcrowding at the schools contained in the list is provided.

Findings: The concessions that the ECDOE has made indicate that there is no misconception on the part of its responsible actors pertaining to what the society of the schools in the Eastern Cape Province requires of the ECDOE. The ECDOE would, through the report that it offered to provide to the applicants’ legal representatives, make known to the affected public which the applicant schools represent, its ongoing plans in implementing its Infrastructure Delivery Plan pertaining to the schools contained in the list which are still overcrowded. The applicant schools and those other schools in whose interest they act will, in turn, be able to raise their concerns with the ECDOE’s report, when provided, at the government level and, if necessary, assert their rights through litigation. The court is not persuaded that it is necessary to retain supervisory jurisdiction over the matter as contemplated by the applicants in the remaining portion of the systemic relief.

Order: The court’s supervisory jurisdiction over the Eastern Cape Department of Education’s implementation of its Infrastructure Delivery Plan is refused.

Facts and issue: The appellant, who was convicted and sentenced for raping his two minor daughters as well as sentenced for the sexual assault of his niece, is appealing both conviction and sentence. On the two counts of rape, he was sentenced to life imprisonment per count, and 10 years imprisonment for sexual assault. The facts giving rise to the sentencing of the appellant relate to incidents that happened over a period of time. In all the counts, the complainants were single witnesses.

Discussion: The appellant summonsed the complainant who was 11 years old at the time to the shack known as the laundry room. The appellant instructed her to sit on his lap, she obliged, and the appellant touched her buttocks. She felt uncomfortable and decided to run away. Whilst running she met her aunt and reported the incident to her. The second witness, AT, corroborated the complainant’s evidence, that she witnessed the appellant’s misdemeanour. Her testimony was that she met the complainant on her way from the laundry room and she immediately reported to her. In respect of counts 2 and 3, that of raping his daughters the appellant complains that the trial court should not have accepted their evidence because they were single witnesses. His daughter, the complainant in count 2 testified that the appellant raped her over time since she was young. In respect of the complainant in count 3 (the appellant’s daughter), the trial court accepted her evidence and the medical evidence pointing to the long-term sexual assault. The complainant testified that the appellant started raping her when she was 8 years old.

Findings: When the appellant attempted to rape her again, she drank poison to kill herself because she could not endure being raped again. She was taken to hospital where she spilled the beans about the multiple rapes she suffered in the hands of her father. The appellant was later arrested. The complainant in count 1 and 2 also got the courage to report the appellant. The trial court did not misdirect itself in convicting the appellant for the rapes. A just sentence would require no deviation from the prescribed minimum sentences. The appellant betrayed the father-daughter and uncle-niece trust in a family setting. The trial court did not misdirect itself in convicting and sentencing the appellant.

Order: The appeal is dismissed.

Facts and issue: The applicant and respondent were married out of community of property with the inclusion of the accrual system. A minor girl child was born in 2022. The parties are separated and are going through a divorce process. The applicant seeks the respondent to increase his maintenance contribution in relation to the minor child and the applicant and that the respondent should contribute to the applicant’s legal fees in the pending divorce action. The respondent seeks equitable access to the minor child pending finalization of the divorce action and rejects the applicant’s claim for a contribution to legal fees.

Discussion: The main bone of contention between the parties are the need for equitable access to the minor on the part of the respondent and maintenance and contribution to applicant’s legal fees by the respondent. Whilst the applicant seeks R10,000 per month as respondent’s contribution to the maintenance for the minor child, the respondent tenders R1,500 per month. The inequality between the parties is starkly displayed by the fact that the respondent earns slightly more than the applicant, and then over and above that he earns rental income for his own benefit. The respondent has not been contributing in any meaningful way towards the maintenance of his minor child since the separation and/or launching of the divorce by the applicant. The applicant has now incurred further expenses pertaining to accommodation for which she is solely responsible.

Findings: The court has considered the amount of the contribution and the maintenance the applicant is seeking as well as the application in its totality, it is indubitable that she has established an equitable, unexaggerated need for the maintenance and contribution. The respondent in turn has an undeniable need and entitlement to have access to his minor daughter.

Order: The respondent be ordered to pay maintenance to the applicant in the amount of R10,000 per month for the minor child. The respondent be ordered to pay an initial contribution to the legal fees of the applicant in the amount of R30,000. Both parties retain their parental rights and responsibilities and guardianship of the minor children.

Facts and issue: Appeal against the judgment and order of the Labour Court in terms of which the dismissals of 29 employees who are members of the appellant, SACCAWU, on grounds of operational requirements by the respondent were found to be substantively fair. The appeal turns on whether alternatives existed to the retrenchment of the employees, on whose behalf SACCAWU acts in the matter.

Discussion: During the consultation process, the parties agreed that those employees not placed into positions in the credit division during the restructuring exercise would risk retrenchment unless they were successful in an application for appointment into a vacancy within the group. After the employees were retrenched, the appellants approached the Labour Court seeking relief on the basis that the respondent had not complied with a fair procedure. Mahosi J dismissed the application, finding that it had been agreed by the parties during the consultation process that unlike in the credit division where no applications were required for placement, there would be no automatic placement into vacancies outside of the credit division and that the employees were therefore required to apply for positions outside of the credit division to be assessed for possible placement. The claim that the respondent had not complied with a fair procedure was therefore rejected and the application dismissed.

Findings: In terms of the agreement reached between the parties, employees not placed within the credit division were not automatically considered for appointment into vacancies outside of the credit division. Instead, it was agreed that they should apply for any available vacancies within the group to be assessed for appointment. If not appointed, the employees would then risk retrenchment. There is no dispute that the appellants were informed of the vacancies once these were available, with the employees invited to apply for such positions. They elected not to do so. The respondent, given the agreement reached between the parties, was not obliged to consult on or automatically place the employees into the call centre or any other vacancies which existed. In finding the dismissal of the employees substantively fair, the Labour Court did not err.

Order: The appeal is dismissed.

Facts and issue: Lusiphi was employed by the applicant. The applicant received a complaint from a client that copper had been stolen from its premises while its employees were working. Booi and Gqozo confessed that they stole the copper and sold it at a scrap metal dealer. They implicated Lusiphi. Booi and Gqozo were dismissed for their participation in the misconduct. Lusiphi denied any involvement in the theft of the copper. A disciplinary enquiry culminated in the Lusiphi’s dismissal. At the CCMA, the commissioner found the dismissal substantively and procedurally unfair. The applicant seeks to review and set aside the commissioner’s award.

Discussion: The applicant argued that the commissioner committed a gross irregularity in not invoking the provisions of section 142(9) of the Labour Relations Act and find Booi in contempt of the CCMA for his failure to appear at the CCMA in terms of commissioner Redlicffe’s ruling. It was argued that when Booi failed to appear at the arbitration, the commissioner should have found him in contempt of the CCMA and referred the finding and the record of the proceedings to the Labour Court in terms of section 142(9)(b) of the LRA. The Labour Court would have finalised the issue of Booi’s alleged contempt. The commissioner provided no reasons for not invoking the provisions of section 142(9) of the LRA. The omission is material because the dispute before the commissioner was the fairness of the third respondent’s dismissal for misconduct. In determining whether the applicant’s conduct of dismissing the third respondent was fair, the commissioner had to be satisfied that the applicant had discharged the onus of proving the fairness of the dismissal.

Findings: The applicant proved that the commissioner’s omission to make a finding in terms of section 142(9)(a) against Booi and to refer the matter to this court in terms of section 142(9)(b) had a distorting effect on his decision. It resulted in the commissioner proceeding with the arbitration knowing that the applicant’s material witnesses would not be present at arbitration to assist the applicant prove its case. It is the absence of the evidence that would have been led by the absent witnesses that led the commissioner to find the third respondent’s dismissal substantively unfair. The commissioner’s omission therefore is in violation of section 138(1) of the LRA and rendered the decision on the substantive fairness of the third respondent’s dismissal unreasonable.

Order: The arbitration award is reviewed and set aside. The matter is remitted to the second respondent to be arbitrated de novo by a commissioner other than the first respondent.

Facts and issue: The applicant seeks an order that the resolution adopted by the Council at its special Council meeting, in terms of which she was placed on special leave, be declared unlawful and to be set aside. She seeks that the Council be directed to reinstate her in the position of Chief Financial Officer (CFO) forthwith. The applicant received a letter from the Municipal Manager confirming that the resolution was adopted to place her on ‘special leave’ to allow the investigations into the allegations of misconduct against her.

Discussion: The applicant’s case is grounded on the unlawfulness and legality of the resolution to place her on special leave. She relies on section 157(2)(b) and 158(2) of the Labour Relations Act and challenges the foundation of the legal authority and conduct of the Council to have placed her on special leave. She questions the legality of an exercise of public power by the Council. The resolution of Council leading to the placement of the applicant on special leave is said to have been adopted pursuant to a report prepared by the Municipal Manager in terms of regulation 5 of the disciplinary code and procedure. A plain reading of all the regulations indicates that special leave can only be granted at the behest of an employee, and there is nothing such as ‘forced special leave’. Clause 32 of the Appointment and Conditions of Employment of Senior Managers Regulations, requires a Municipality to adopt a special leave policy which defines the circumstances and conditions under which such leave may be granted. The court was not referred to any such policy adopted by the Council in this case to justify the forced special leave.

Findings: The Disciplinary Regulations for Senior Managers under the Systems Act does not make provision for an employer to place an employee on forced special leave. Adopting a resolution placing employees under suspension based on ‘wisdom’ as contended for by the respondents, is not a legal basis for a failure to comply with applicable legal prescripts, nor does it justify unlawfulness or illegality. On the opposite scale, decisions based on ‘wisdom’ evinces, lack of rationality and clear circumvention of the rule of law. Such decisions borders on self-help and abuse of power. In the absence of any legal basis that entitles the Council to adopt a resolution to place the applicant on special leave, the Council as an executive authority has circumvented legal prescripts or acted unlawfully. The impugned resolution cannot stand either on account of legality or lawfulness.

Order: The resolution is declared unlawful and is set aside.

Facts and issue: The applicant instituted an urgent application for final relief seeking an order interdicting the respondent from breaching the terms of the employment agreement between the applicant and the respondent. The employment agreement restrains the respondent to take up employment with a competitor and restrict the respondent to divulge confidential information. The respondent resigned from the applicants employ and commenced new employment with a competitor to the applicant.

Discussion: The applicant contends that it was brought to the attention of its CEO that the respondent has provided one of its established customers, SUN RG, a quotation for services or products. The applicant contended that the respondent’s positions whilst in the employ of the with the applicant allowed him access to customers including his role in the preparation of the catalogue of products. The applicant contended that the respondent has attempted to solicit business from its customers by sending a quotation to SUN G and this was in contravention of the employment contract which prohibited dealings with applicant’s customers. The respondent does not deny that the employment agreement signed between both parties contains a restraint of trade clause prohibiting him to take up employment with a competitor. He further conceded that the second respondent is a competitor but contends that the restraint is unreasonable as the applicant has a smaller segment of solar business whereas second respondent is mainly into solar business.

Findings: The respondent has failed to put forward authority supporting the argument that the enforcement of a restraint of clause is dependent on the determination of whether the competitor has a bigger segment in contrast with the business of the previous employer. The applicant demonstrated that it has protectable interest which is the subject of restraint of trade. The taking of employment with a competitor amounts to the breach of the restraint in trade clause agreed to by the parties. This would satisfy the requirement that the applicant’s rights are breached.

Order: The interdict against the respondent is granted in favour of the applicant.

Facts and issue: The vexed question the judgment intends to answer is what is the effect of a reinstatement application on contempt proceedings? The applicant, Raubenheimer, instituted contempt proceedings against the respondents for non-compliance with an arbitration award made in the applicant’s favour. The commissioner found Raubenheimer's dismissal to have been procedurally fair but substantively unfair and ordered the Red Ants (respondent) to reinstate him on the same terms and conditions. The Red Ants failed to comply with the arbitration award.

Discussion: A reinstatement application once revived, renders the review proceedings compliant with the Labour Relations Act and the rules of the court. A review application does not suspend the enforcement of an arbitration award. And if a review application does not suspend the enforcement of an arbitration award, then an application to reinstate the review must by necessary implication, suffer the same fate. It is only when security is provided, that a review application suspends the enforcement of an arbitration award. Where a review application is deemed withdrawn, even where security has been posted, the basis for staying the enforcement of an arbitration award axiomatically, falls away. And if there is no basis to stay the award, then the enforcement process in respect thereof, must proceed unhindered.

Findings: The impediment that the respondents raise against being held in contempt, is the fact that the reinstatement application is pending. The LRA does not recognise such a process as a basis to stay the enforcement of an award, and it cannot equally be a basis to oppose contempt proceedings. The applicant has proved the existence of the order, and the fact that the respondents have knowledge thereof. The reason for the respondents' non-compliance as stated is that there is a reinstatement application pending. Such an application does not suspend the enforcement of the award. In the absence of a justifiable reason for non-compliance, the respondents are guilty of contempt of court.

Order: The respondents are guilty of contempt of court. The respondents are ordered to effect payment of the arbitration award.

Facts and issue: The applicant seeks to review and set aside the arbitration award issued by the commissioner. In addition, she seeks an order of substitution in the form of a declaration that her dismissal by the third respondent (Arena Holdings) was substantively unfair and the relief of retrospective reinstatement, alternatively that the unfair dismissal dispute be remitted to the CCMA for a de novo hearing. The applicant was charged with two counts of misconduct, namely financial misconduct and negligence and dereliction of duty.

Discussion: Arena Holdings complaint is that the applicant allowed Petu to be given money in contravention of the policy that requires only permanent employees to apply or claim for the expense advance. The question then is how did the applicant allow Petu, the temporary employee, to be given the funds? Arena Holdings evidence through Kleynhans was that the applicant instructed Dlelengana to pay or give the money to Petu and therefore she felt that the applicant should have taken responsibility for the unaccounted amount. In the absence of Dlelengana’s evidence and an application for admission of hearsay evidence, Kleynhans’ testimony remained inadmissible evidence. Kleynhans’ three versions cannot all be true. Her evidence was not only inadmissible, but it was also contradictory, extremely poor and not credible.

Findings: The commissioner’s finding that the applicant issued an instruction to Dlelengana and consequently allowed Petu to be given the expense funds is not supported by the documentary and oral evidence led at arbitration proceedings. It is disconnected from the evidence and is irrational and untenable. Arena Holdings woefully failed to establish a prima facie case against the applicant and the only reasonable and inevitable finding should have been that there was no evidence to establish the first charge. There is no basis to deny the applicant the primary remedy and to put her at the position she would have been but for the unfair dismissal.

Order: The arbitration is reviewed and set aside. The dismissal of the applicant is declared substantively unfair. The applicant is to be reinstated retrospectively with full backpay.

Facts and issue: In dealing with the requirement that the Applicant must be a fit and proper person to be admitted as a legal practitioner, the applicant disclosed in her founding affidavit that while she was employed by the National Health Laboratory Services as a medical technologist, she faced disciplinary charges because she fell asleep during the night shift and she was dismissed for dereliction of her duties. During her fourth year at University, she was charged with plagiarism. The LPC raised concerns that the applicant’s misconduct involved dishonesty and that there appeared to be a lack of remorse on her part.

Discussion: The applicant was required to provide a psychological report for further consideration to the LPC. The applicant complied with this requirement. Having considered the psychological report, the LPC noted that it was not favourable, in that the psychologist expressed the view that although the applicant was indeed a fit and proper person who could be admitted to practice, she should be monitored for a period of 12 months. In the circumstances the Council did not support the applicant’s admission application and decided to oppose the application should the applicant proceed with it. Although the LPC characterized the psychological report as being unfavourable to the applicant, the court is of the view that, reasonably interpreted, the report is in fact to a very large extent favourable to the applicant.

Findings: The positive aspects of the report substantially outweigh the few negative aspects highlighted by the LPC. The applicant appeared relaxed throughout the session with the expert, was well groomed and kept and maintained appropriate eye contact throughout. She displayed appropriate emotional expressions based on the context. Her thought processes appeared appropriate, and no suicidal or homicidal ideations were noted. The court is satisfied that the applicant is a fit and proper person to be admitted as a legal practitioner.

Order: The applicant is admitted as a legal practitioner of the High Court of South Africa in terms of section 24(2) of the Legal Practice Act 28 of 2014.