1iti1 ACHPR lLx ~ ' / African Commission on • ,i:xn,{ • Human and Peoplfls' Ri~Jhts Human Rights our Collective Responsib ility Respondent State contends that the Complainants did exhaust local remedies because they prematurely and unsuccessfully approached the Constitutional Court before exhausting the remedies in the lower courts, in accordance with the procedural law of South Africa. 53. The Respondent State argues that the Complainant ought to have (i) re-enlisted her application in High Court Case number 2628/2021 under the normal roll after it was struck off the urgent roll; (ii) sought an order from the Labour Court for the Limpopo Health Department to cease monthly deductions on her salary in terms of the Basic Conditions of Employment Act; and (iii) lodged an .unfair labour practice proceedings against the Limpopo Department of Health at the Bargaining Council. 54. The Commission will now turn to examine whether the -litigation that happened in Labour Court case No. J1231/20; High Court case number 2628/2021; and CCT Case 134/21 exhausted local remedies. 55. The Commission notes from the judgment of the Labour Court Which found firstly that the Complainant had no grounds for declaratory relief because she was in no imminent risk of unilateral salary deductions given that the Limpopo Health Department had committed to consulting with her on the modus of such deductions; 45 secondly that the Complainant had wrongfully relied on a Constitutional Provision to challenge a matter regulated by legislation, to the detriment of the principle of subsidiarity; 46 and thirdly that the Court had no jurisdiction to deciqe her case given that it was a dispute between her and her employer, lawfully governed by the Bargaining Agreement and under the jurisdiction of the Bargaining Council; 47 and fina-11y that ought to have approached the Bargaining Council for conciliation of the matter and in the event that it is not resolved, refer it to arbitration. 48 56. Following the Handing down of the Labo,w Court Judgment on the 17th of November 2020, the Complainant then on the 19th of April 2021 approached the High Court by Notice of Motion seeking urgent relief to halt the salary deductions, which application was struck off the roll for lack of urgency on the 23 rd of April 2021. Following her Strikeout at the High Court, the Complainant the approached the Constitutional Court on an urgent basis seeking direct access to challenge the decision of the High Court, which application was dismissed on the 3rd of May 2021. 57. The Commission takes the view that the present Communication did not exhaust local remedies because •it is quite clear that not only did the Complainant go on a frolic of ~ her own much to the breach of the procedure of the Respondent StaJ • ta , <:JS' C lil' ,v explained by the Labour Court, but also, and as a consequence, ornilt~a fm.1 111 ~~-1}1,,o , O ... -0 '-. remedies which were at her disposal. -1;., ri)-~ -. I'"'~'r · • uq- 'r ~ ;, O ~ ~ ,i, 45 Case No. J1231/20, para 26-33 46 Labour Court Case No. J1231/20, para 37-50 47 Labour Court Case No. J1231/20, para 56 48 Labour Court Case No . J1231/20, para 51-56 -. r\ rn • aUJ ~ - ! ~ f ' ' " " '·,;;;;, ::- ~-~ < _ 01,, ' ,- ,,o,,,_ "l,'R,c ,1N" o'c-<:, '•,, '71,, ~ L The African Commission on Human and Peoples' Rights 31 Bijilo Annex Layout, Kombo North District, West Coast Region Gambia Phone: (220) 230 4361 Fax: (220) 441 05 04 Email: £l.!l:"_Q_9.D.llil@africa-union.org hllns:/achor.:au.int/0 0 a · Go • c.. 'l.,'(;J ·•-,,;•,, I: £ r DES pf:U~ ' • ;;--..--- O''( -v'<' ----~ --~ ,,