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[2021] ZAGPPHC 52
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Jabari and Others v Telkom Limited and Others (81163/17) [2021] ZAGPPHC 52 (29 January 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
29
January 2021
CASE NO: 81163/17
In
the matter between:
MPHO
JABARI
FIRST
APPLICANT
CYRIL
BALOYI
SECOND APPLICANT
FRANK
MOGALE
THIRD APPLICANT
REABETSWE
NTSIE
FOURTH APPLICANT
GARETH
RITTLES
FIFTH APPLICANT
PAUL
SCOTT
SIXTH APPLICANT
MARIA
MAGDALENA PRETORIUS
SEVENTH APPLICANT
and
TELKOM
LIMITED
FIRST RESPONDENT
WAYNE
LARRY VINCENT LOUIS
SECOND RESPONDENT
COMBINE
PRIVATE INVESTIGATORS
(PTY)
LTD
THIRD RESPONDENT
IMVULA
SECURITY SERVICES (PTY) LTD
FOURTH RESPONDENT
SMADA
SECURITY, A DIVISION OF THE
SMADA
GROUP (PTY) LTD
FIFTH
RESPONDENT
This
judgment is issued by the Judge whose name is reflected herein and is
submitted electronically to the parties/their legal representatives
by email. The judgment is further uploaded to the electronic file of
this matter on Caselines by the Judge or his/her secretary.
The date
of this judgment is deemed to be 29 January 2021.
JUDGMENT
COLLIS
J
INTRODUCTION
(1)
This
is an opposed review application, wherein the applicants as per the
amended Notice of Motion, seek the following relief:
[1]
1.1
Reviewing and setting aside the appointment made
by the first respondent of the second respondent as Senior Manager,
which appointment
occurred during 2003;
1.2
Directing the first respondent to take
appropriate disciplinary action against the second respondent;
1.3
Directing the second respondent to appoint the
first applicant in the position of Senior Manager;
1.4
Setting aside the ‘section 197 procedure’
in terms of which the first respondent outsourced the work of its
Network
Protection Service Unit and Guest Relations Unit, to the
third, fourth and fifth respondent;
1.5
Reviewing and setting aside the contracts entered
into between the first respondent and the third, fourth and fifth
respondents
in terms of which the third, fourth and fifth respondents
were to take over the work and employees of the fifth respondents
Network
Protection Services Unit;
1.6
That the first respondent be and hereby ordered
to pay each applicant damages which is equal to the period of (60)
sixty months’
salary and reinstatement with no loss of benefit
1.7
For costs of suit as against any respondent(s)
entering opposition to this application, jointly and severally, the
one paying the
other to be absolved;
1.8
Further and or alternative relief.
(2)
Having regard to the relief sought as per the
notice of motion, the case for the applicants can be formulated as
follows:
2.1
Firstly, Mr Jabari is aggrieved at the
appointment of Mr Louis, in 2003 into the position of Senior Manager:
Security and Investigations
on the basis that this appointment was
fraudulent. As part of his relief, he seeks that this appointment of
Mr Louis be set aside,
that he be disciplined by Telkom and that he
should be appointed into the said position on the basis that he was
next in line.
2.2
Secondly, Mr. Jabari’s case is that the
section 197 transfers of former Telkom employees in terms of the
provisions of the
Labour Relations Act, Act 66 of 1995 to the third,
fourth and fifth respondents as well as a tender that was awarded to
them, should
be set aside.
BACKGROUND
(3)
On 31
January 2003, Telkom advertised two positions for Senior Manager. Mr
Mpho Jabari (
first
applicant
)
was among the persons shortlisted for the position.
[2]
(4)
He was
subsequently interviewed, was unsuccessful and Mr Wayne Louis (
second
respondent
)
ultimately appointed in the position of Senior Manager Security and
Investigations. This appointment took effect on 1 April 2003.
[3]
(5)
The
applicant being aggrieved by having lost out on the position then
proceeded to lodged grievance against the appointment of the
second
respondent on the grounds that he had falsified his
qualifications.
[4]
A hearing was
then conducted and he was offered a without prejudice settlement to
part ways with the first respondent. This offer
he ultimately
refused.
[5]
(6)
On the
basis of him challenging the unlawfulness and fraudulent appointment
of the second respondent he was then dismissed by Telkom
on 31 August
2004 and subsequently reinstated by the Labour Court in 2006, this
after him successfully challenged his dismissal.
[6]
Mr Jabari
thereafter continue to work at the first respondent.
(7)
In
September 2016, Telkom commenced a procurement process for its
network and physical securing guarding contracts.
[7]
(8)
After
a market analysis was conducted by KPMG during October 2016, ten
bidders were invited to participate in a closed tender process.
[8]
(9)
On 18 October 2016, the tender was published.
(10)
After
interviews were conducted with shortlisted service providers, Telkom,
during April 2017 decided to enter into contracts with
the third,
fourth and fifth respondents. These contracts all commenced on 1 June
2017.
[9]
(11)
During
May 2017 applicants were informed that Telkom’s Network
Protection Services Division would as consequence of these
contracts
being concluded all be transferred in terms of section 197 of the
Labour Relations Act to Imvula, SMADA and CPI on 1
June 2017.
[10]
The
applicants were given less than a weeks’ notice of the intended
transfers.
(12)
In
total the ‘section 197 procedure’ affected 29 Telkom
employees, including the applicants.
[11]
(13)
What
followed thereafter was the conducting of information sharing
sessions in respect of the outsourcing on the 17
th
and 30
th
March 2017 with organised labour. During this these sessions, Telkom
informed labour of the impending tender for security and guest
relations and during this session the option of the section 197
transfers to the successful bidders was first proposed.
[12]
(14)
Subsequent
thereto engagement sessions were held with all effected parties
during May 2017, and on 31 May 2017. Certain of the transferring
employees were introduced to their respective new employees and were
issued with welcome/induction letters. This had transpired
after the
tender process was concluded and after all engagements had taken
place.
[13]
LITIGATION
HISTORY
(15)
On 29 November 2017, the applicants proceeded to
launch their review application.
(16)
On 1
February 2018, Telkom filed its Answering Affidavit, which was
deposed to by Praven Naidoo,
[14]
and was filed
together with a supporting affidavit deposed to by Wayne Louis.
[15]
On 26
February 2018, the first applicant proceeded to file a replying
affidavit.
[16]
(17)
Telkom
proceeded to conduct further investigations into the circumstances
leading to the award of the three contracts and following
on from
these findings, it no longer was able to rely on the allegations made
by Mr Naidoo in his affidavit defending the awarding
of the three
contracts.
[17]
Its
investigations further revealed that Mr. Louis and Mr Naidoo
committed misconduct during the process of awarding the
contracts.
[18]
This brought
about the need to file a supplementary answering affidavit.
(18)
Both
Mr Naidoo and Mr Louis have since resigned from Telkom. This
transpired on the 31 August 2018 and 8 September 2018 respectively
and it occurred at a time when disciplinary proceedings were pending
against them.
[19]
(19)
Between February 2018, the date when the replying
affidavit was filed and 15 January 2020 (the date when the
applicant’s filed
their heads of argument and paginated their
pleadings) nothing further was done by them to enrol their
application.
(20)
During February 2020, a case management meeting
was then held with the Acting Deputy Judge President and all the
parties concerned
where after the first respondent was permitted to
file a supplementary answering affidavit. This affidavit was
eventually filed
on 31 March 2020 and the matter was thereafter
enrolled as a special motion for 29 and 30 July 2020.
GROUNDS
IN OPPOSITION
(21)
As mentioned, both the first respondent and fifth
respondent opposes the granting of the relief as sought by the
applicants. In
respect of both of them they have mounted a challenge
against the unreasonable delay by the applicants in having approached
this
court for a review and in addition by prosecuting the review
application. As such this will be a convenient point of departure for
this court.
(22)
As a starting point a court called upon to
adjudicate a review application can either be approached in terms of
the Promotion of
Administrative Justice Act 3 of 2000 (the PAJA) or
at common law in accordance with the provisions of rule 53 of the
Uniform Rules
of court. The present review is brought in terms of
PAJA.
(23)
Where a review application is launched in terms
of PAJA, such application in terms of section 7 of the enabling
legislation, should
be filed within 180 days, failing which there
must be an application for condonation.
(24)
In this application as mentioned, the issue of a
delay in launching a review application is pre-eminently a point
raised by the
respondents, not only in their respective affidavits
but also in their heads of arguments.
(25)
Section
7(1) provides that any proceedings for judicial review in terms of
section 6(1) must be instituted without unreasonable
delay and not
later than 180 days after the date on which the person concerned was
informed about the administrative action, became
aware of the action
and the reasons for it or might reasonably have been expected to have
become aware of the action and the reasons.
[20]
(26)
In terms of section 9 of PAJA the period of 180
days may be extended for a fixed period by agreement between the
parties or, failing
such agreement, by a court on application by a
person or administrator concerned. Such an application may be granted
where the
interest of justice so requires.
(27)
At the outset it is worth mentioning that the
present application is not accompanied by a substantive application
for condonation,
nor is such a prayer requested as part of the relief
in the notice of motion.
ARGUMENTS
ON CONDONATION ADVANCED BY THE FIRST RESPONDENT
(28)
On behalf of the first respondent it was
contended that the applicants are precluded from bringing this review
application due to
their unreasonable delay both in instituting their
application and in prosecuting it.
(29)
As far as the relief which the applicants seek to
set aside the appointment of Mr Louis, this decision was taken as
mentioned during
2003, some 17 years ago.
(30)
The second prayer seeks to direct Telkom to take
appropriate disciplinary action against Mr Louis, who as previously
mentioned left
the employ of Telkom on 8 September 2018.
(31)
The third prayer seeks to direct Telkom to
appoint Mr Jabari to the position of Senior Manager: Security &
Investigations previously
occupied by Mr Louis. This position no
longer exists within Telkom as the organizational structure and
service delivery model of
the company has since evolved.
(32)
In relation to the fourth payer (to set aside the
section 197 procedure) and fifth prayer (to review and set aside the
contracts
entered into between the first respondent and the third,
fourth and fifth respondents), both prayers have become moot as the
said
contracts will have terminated to the effluxion of time, by the
time that the application is enrolled for hearing.
(33)
As per
the answering affidavit deposed to by Mr Naidoo, the decision to
award the contracts to SMADA, CPI and Imvula was taken on
3 April
2017.
[21]
A decision to
challenge same placing reliance on section 7 of PAJA, should thus
have been launched within 180 days i.e. by 30 September
2017, and
where it was not, condonation should have been sought from the court.
It is common cause that the applicant’s application
was
launched on 28 November 2017.
(34)
In the absence of an extension in terms of
section 9 of PAJA, counsel had argued the applicants are barred from
pursuing a review
because of its unreasonable delay.
ARGUMENTS
ADVANCED ON CONDONATION BY THE FIFTH RESPONDENT
(35)
On behalf of the fifth respondent, a similar
argument is advanced, i.e. that the applicants have approached this
court outside of
the 180-day time prescript as set out in section
7(1) of PAJA, and in circumstances such as the present, they should
have requested
an extension in terms of section 9.
(36)
Their failure to have asked this court for
condonation has the effect of their application being procedurally
flawed which this
court simply cannot overlook.
(37)
In addition to the above, it was further
submitted, that the applicants failed to make any allegation in their
affidavits that they
have exhausted all internal remedies available
to them, or that they ought to be exempted from exhausting such
internal remedies.
In as far as the ‘section 197-procedure’
is concerned, in circumstances where the applicants had issues with
the transfer
itself, or if they contended that they were prejudiced
thereby, they ought to have followed the remedies, provided for in
the Labour
Relations Act.
(38)
Similarly, where the applicants felt aggrieved by
the tender process and the subsequent awarding of the contracts
between the first,
third, fourth and fifth respondents, then the
applicants ought to have taken steps in terms of the remedies set out
in various
legislation such as the Criminal Procedure Act, Prevention
and Combating of Corrupt Activities Act and the Public Finance
Management
Act, and it is for this reason that the fifth respondent
had argued, that failure to seek condonation should result in the
application
to be dismissed with costs.
ARGUMENTS
ADVANCED ON CONDONATION BY THE APPLICANTS
(39)
On behalf of the applicants it was conceded that
this review is sought in terms of the Promotion of the Administrative
Justice Act.
(40)
As per the founding affidavit, more specifically
paragraphs 29 and 58, this much was conceded. The paragraphs are
quoted hereunder
for ease of reference:
Paragraph 29 “For
reasons as set out above, I submit that the appointment of the Second
Respondent as a Senior Manager by
the first respondent was unlawful,
irregular and falls to be set aside by the above Honourable Court and
that I should have been
appointed in his stead.”
Paragraph 58 “For
the reasons set out above. I submit that the section 197 of the
Labour Relations Act, transfers were unlawful,
irrational and
irregular and fall to be set aside by this Honourable Court.”
(41)
The
attack by the respondents on the unreasonable delay by the applicants
in approaching this court and their failure to seek condonation
from
this court, was not only raised in heads of arguments prepared by
counsel for the respondents but this attack was first raised
in the
respective answering affidavits.
[22]
(42)
Mr Jabari in his replying affidavit admitted that
the application is brought out of time and sets out the reason for
this was on
the advice, pressure and threats which he received from a
Telkom official specifically, Mr Thami Msubo, the then Chief of Human
Resources who advised him not to proceed to challenge the appointment
of Mr Louis.
(43)
Furthermore,
that the delay was not intentional on his part, and that the interest
of justice requires that this matter be finalised
and ventilated in
court.
[23]
(44)
The reasons as to why Mr Jabari acted on this
advice so received and as to why he deemed it unnecessary to seek
legal advice earlier
on, his affidavit is evidently silent on. His
affidavit is also silent as to exactly when he had received this
advice from Mr Msubo
not to pursue legal action in relation to the
appointment of Mr Louis.
(45)
It is also to be noted, that his replying
affidavit is further not accompanied by a confirmatory affidavit by
Mr Msubo, confirming
that he advised Mr Jabari accordingly and the
extent of his advice.
(46)
Even, if this court was to accept that he indeed
had received this advice from Mr Msobu, it still does not explain why
his review
application is not supported by an application seeking
condonation or at the very least containing a prayer for condonation.
(47)
The SCA in the decision in Opposition to Urban
Tolling Alliance and Others v The South African National Roads Agency
Ltd and Others
[2013] 4 All SA 639
(SCA) at para [26] summarised the
principles that apply to unreasonable delay under PAJA as follows:
‘
At common
law application of the undue delay rule required a two stage enquiry.
First, whether there was an unreasonable delay and
second, if so,
whether the delay should in all circumstances be condoned. Up to a
point, I think, section 7(1) of PAJA requires
the same two stage
approach. The difference lies, as I see it, in the legislature’s
determination of a delay exceeding 180
days as per se unreasonable.
Before, the effluxion of 180 days, the first enquiry in applying s
7(1) is still whether the delay
(if any) was unreasonable. BUT after
the 180 day, period the issue of unreasonableness is pre-determined
by the legislature; it
is unreasonable per se. It follows that the
court is only empowered to entertain the review application if the
interest of justice
dictates an extension in terms of s 9. Absent
such extension the court has no authority to entertain the review
application at
all. Whether or not the decision was unlawful no
longer matters. The decision has been ‘validated’ by the
delay. That
of course does not mean that, after the 180 day, period
an enquiry into the reasonableness of the applicant’s conduct
becomes
entirely irrelevant. Whether or not the delay was
unreasonable and if so the extent of that unreasonableness is still a
factor
to be taken into account in determining whether an extension
should be granted or not.’
(48)
In the present application not only did the
respondents raise the point of the delay in launching this review
application on affidavits,
but counsel for the respondents had also
raised the points in arguments.
(49)
It is significant, that on behalf of counsel for
the applicant, it was contended that no need existed for condonation
in terms of
section 9 of PAJA, as this was a material misdirection on
the part of the respondents. In this regard, counsel had argued, that
as the appointment of Mr Louis was fraudulently made and fraud is a
criminal offence which prescribes after considerable many years,
there existed no need to have complied with the provisions of section
7(1) and s 9 of PAJA.
(50)
This argument with respect is not only flawed but
it is also misplaced. It is flawed, not only because, Mr Jabari
himself conceded
that this review is brought in terms of the
provisions of PAJA, but more so that this court is approached on
review proceedings,
which is civil proceedings in nature and not
criminal proceedings.
(51)
In casu
, further, the
appointment of Mr Louis occurred in 2003 (some 17 years ago) and the
awarding of contracts and ‘section 197
procedures’ all
occurred as from 1 June 2017. The present application for review was
only launched as mentioned, on 28 November
2017.
(52)
Furthermore, and in the present instance, the
applicants have also delayed in prosecuting this review.
(53)
In its
Supplementary Answering Affidavit
[24]
deposed to by
one Sifiso Mazibuko on behalf of Telkom, the deponent also sets out,
that the applicants had unreasonably delayed
the prosecuting of this
review. Specifically, it is sets out that when the matter became ripe
for hearing in March 2018, it took
the applicants two years before
they applied for a date from the Registrar.
(54)
In
answer the applicants explain that the delay was occasioned by them
appointing a new attorney of record during July 2019 and
an
interlocutory joinder application which had to be enrolled. It is
further explained that an investigation report was obtained
by
Telkom, which revealed that Mr Louis and Mr Naidoo had committed
fraud.
[25]
(55)
This explanation as tendered by the applicants do
not explain the reason as to why it took so long for them to apply
for a date
from the Registrar to enrol the application for
adjudication. As such I cannot but conclude that no adequate
explanation is given
for this inordinate delay.
(56)
Therefore, having regard to the authoritative
decision of Opposition to Urban Tolling Alliance and Others v South
African National
Roads Agency Ltd and Others quoted above, and in the
absence of condonation being sought, I can only but conclude that the
applicants
are precluded from bringing their review due to their
unreasonable delay in not only instituting their review application,
but
also in prosecuting their review application.
(57)
This conclusion so reached by this court to my
mind is dispositive of the entire application.
COSTS
(58)
As to the appropriate costs order to be awarded,
the first applicant contended that in the event of him being
unsuccessful, that
this court should not order costs against him as
he is an individual who took on the first respondent, which he
alleges is a state
owned entity.
(59)
On behalf of the first respondent it was
submitted, that Telkom is listed on the Johannesburg Stock Exchange,
is a major public
entity and it is not an organ of state.
(60)
In addition to the above, the review application
has not only been launched against the first respondent only but also
against other
respondents, some of whom are private owned companies.
(61)
The first applicant, in the present instance, is
the only applicant who have deposed to affidavits throughout and him
being the
unsuccessful party, I could find no basis to deprive the
respondents of their costs.
(62)
I do not however believe costs on the attorney
and client scale would be warranted under the circumstances.
ORDER
(63)
In the premises the following order is made:
63.1
The application is dismissed with costs on the
basis of an unreasonable delay both in instituting and prosecuting
the application.
63.2
The respondents are awarded costs on a party and
party scale, including the costs of two counsel, where so employed.
C.J.
COLLIS
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the Applicant :
Adv. D.Z. KELA
Attorney
for the Applicant
: Blessed Mongwe Attorneys
Counsel
for the First Respondent : Adv. N. H. MAENTJE SC &
Adv. N. FERREIRA
Attorney
for the First Respondent : Adams & Adams
Counsel
for the Fifth Respondent : Adv L. Keijser
Attorney
for the Fifth Respondent : Waldick Jansen Van Rensburg
Inc.
Date
of Hearing
:
29 & 30 July 2020
Date
of Judgment
:
29 January 2021
Judgment
transmitted electronically.
[1]
Index 004-7
[2]
Founding Affidavit para 12 Index 004-23
[3]
Founding Affidavit para 22 Index 004-24
[4]
Founding Affidavit para 22 Index 004-25
[5]
Founding Affidavit para 23 Index 004-25
[6]
Founding Affidavit para 24 Index 004-26
[7]
Answering Affidavit- Telkom para 27 Index 005-20
[8]
Answering Affidavit-Telkom para 27-33 Index 005-20 to 005-22
[9]
Answering Affidavit-Telkom para 41 Index 005-25
[10]
Founding Affidavit para 34 Index 004-29
[11]
Answering Affidavit para 46 Index 005-26
[12]
Answering Affidavit para 48 Index 005-27
[13]
Answering Affidavit para 54 Index 005-29
[14]
Answering Affidavit Index 005-
104
[15]
Answering Affidavit-Louis Index 006-
141
[16]
Applicant’s Replying Affidavit Index 007-6
[17]
Applicant’s Supplementary Answering Affidavit para 12 Index
011-10
[18]
Applicant’s Supplementary Answering Affidavit para 13 Index
011-11
[19]
Applicant’s Supplementary Answering Affidavit para 14 Index
011-11
[21]
Answering Affidavit para 41 Index 005-25
[22]
Answering Affidavit para 6.1 & 6.4 Index 005-10 to Index 005-11,
Fifth Respondent’s Answering Affidavit
para
7.1 to 7.4 Index 009-39
[23]
Replying Affidavit para 6.1 Index 007-11
[24]
Supplementary Answering Affidavit para 4 Index 011-5
[25]
Applicant’s Replying Affidavit para 16 Index 011-102