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[2020] ZALAC 67
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SAMWU obo Shongwe and Others v Commissioner Moloi NO and Others (JA81/19) [2020] ZALAC 67 (7 December 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA81/19
In
the matter between:
SAMWU
obo K SHONGWE & 45
Others Appellant
and
COMMISSIONER
L MOLOI N.O. First
Respondent
CCMA Second
Respondent
CITY
OF
JOHANNESBURG Third
Respondent
Heard
(via Zoom):
19 November and 7 December 2020
Delivered:
Deemed to be the date on which the judgment is e-mailed to the
parties.
CORAM:
Phatshoane ADJP, Coppin JA
et
Kathree-Setiloane AJA
JUDGMENT
COPPIN
JA
[1] This
is an appeal against an order of the Labour Court (Lagrange J), with
the leave of that court, dismissing
both, an application for
condonation of the late filing of a notice in terms of (Labour Court)
Rule 7A(8)
(b)
and the related application to review a
jurisdictional ruling of the first respondent, acting under the
auspices of the second respondent,
and made in favour of the third
respondent.
[2] The
third respondent is the only party opposing the appeal. A
cross-appeal noted by it, and in respect of which
it has also filed
an application for the condonation of its lateness, was expressly
abandoned by counsel on its behalf at the hearing
on 7 December 2020
and was not proceeded with.
Background
[3] The
appellant union, SAMWU, acting on behalf of its members, Mrs. K
Shongwe and 45 others, employed or formerly
employed in the
Johannesburg Metropolitan Police Department of the third
respondent(“JMPD”) and then assigned to its
Corporate and
Shared Services Department, and the third respondent are in dispute
about whether the said individual members are
entitled to payment in
terms of a collective agreement concluded between the appellant union
and the third respondent on 28 June
2008 in respect of minimum
salaries payable to Metro police officers (”the settlement
agreement”). The third respondent
has denied that the
settlement agreement applies to Mrs K Shongwe and the 45 others.
[4] On
17 July 2013, the appellant referred the dispute, concerning the
interpretation and application of the settlement
agreement, to the
second respondent, the Commission for Conciliation, Mediation and
Arbitration (CCMA). The referral form is dated
28 June 2013.
[5] Following
an unsuccessful conciliation, on 2 August 2013, the dispute was
referred for arbitration that was
to commence on 4 February 2014 and
to be presided over by the first respondent. At the arbitration, the
third respondent raised
a technical point at the outset to the effect
that the claims of the individual employees (presumably arising from
the settlement
agreement) had prescribed and that the arbitrator,
consequently, did not have jurisdiction to entertain the matter.
[6] On
6 February 2014, the arbitrator handed down a written jurisdictional
ruling upholding the point (‘the
ruling”). In the ruling,
the arbitrator describes the issue that had to be determined as one
which required him to “establish
whether the claim had
prescribed in terms of the Prescription Act and if so, whether the
CCMA has jurisdiction to hear the matter”.
The arbitrator
ruled, in particular, the following: (a) Even if he were to rule that
the employees in question were employed by
the JMPD, as conceded by
the third respondent’s representative, the claim had prescribed
and the CCMA lacked jurisdiction
to deal with the application of the
settlement agreement “as per section 15 of the Prescription
Act”; and (b) that
the application was dismissed.
[7] Unaccepting
of that ruling, the appellant launched proceedings in the Labour
Court on 25 March 2014 to review
and set it aside. The third
respondent opposed that application.
[8] According
to the appellant, the CCMA delivered the record of the arbitration
proceedings, subsequently found
to be defective, to the Registrar of
the Labour Court on 2 April 2014. After the Registrar had notified
the appellant’s erstwhile
attorneys (CHSM attorneys, Mr Sicelo
Mngomezulu) that the record had been filed, those attorneys had
communicated with the third
respondent by letter dated 30 May 2014
informing it,
inter alia
, that the record was defective in
that the compact disc (CD) that had been filed was empty, and had
requested an indulgence to
afford the CCMA a further opportunity to
release complete records. The third respondent replied by letter
dated 17 June 2014,
inter alia
, urging that the review
application be expedited.
[9] During
June 2014, the appellant terminated the mandate of their former
attorneys and engaged new attorneys
(Maenetja Attorneys) who
requested the previous attorneys to hand over the appellant’s
files by July 2014. The former attorneys
advised that the hand over
could only occur upon settlement of their account.
[10] According
to the appellant, the account was settled on 15 July 2014. The new
attorneys (particularly, Mr Happy
Magoma) then arranged a
consultation with counsel for 18 July 2014.
[11] On
22 July 2014, allegedly acting on counsel’s advice, the
appellant, now assisted by new attorneys
(Maenetja Attorneys) caused
a letter of demand to be served on the third respondent in which
payment of monies was claimed, alleged
to be owing to its members in
terms of the settlement agreement and totalling more than R22
million.
[12] On
28 August 2014, supposedly in pursuit of that demand, the appellant
filed a statement of claim in the Labour
Court in which those monies
were claimed from the third respondent.
[13] The
third respondent defended the claim and successfully raised a plea of
lis alibi pendens
, resulting in the claim being dismissed by
the Labour Court on that basis on 22 February 2016. An application
for leave to appeal
against that dismissal was refused on 11 August
2016.
[14] Shortly
thereafter the appellant filed the record of the CCMA arbitration in
the review proceedings that it
had instituted earlier. The third
respondent, in response, filed an application in terms of rule 11 of
the Labour Court Rules in
which it sought dismissal of the review
application because of the delay in its prosecution. The appellant
opposed that application
and filed answering papers.
[15] As
the review application the appellant had brought was late, and
because the record and supplementary affidavit,
and particularly the
notice in terms of rule 7A(8)(b) of the Labour Court’s Rules,
had also been filed late, the appellant
also brought an
application(s) for condonation of the same.
Hearing
in the court a quo
[16] The
condonation applications, i.e., for the late bringing of the review,
and for the late filing of the rule
7A(8)
(b)
notice, the rule
11 application, the application to dismiss it, and the appellant’s
review application were set down to be
heard and disposed of by the
Labour Court in the same sitting.
[17] In
respect of the condonation for the late filing of the review, the
Labour Court concluded the following:
the ruling of the arbitrator
was issued on 6 February 2014, but was only received by the appellant
on 10 February 2014; the review
application, which was launched on 26
March 2014, was only two days late; the delay of two days was trivial
and the late filing
of the review ought to be condoned.
[18] The
Labour Court reasoned that the rule 11 application for the dismissal
of the review application and the
second condonation application
(i.e. essentially to condone the delay in the prosecution of the
review) were “inextricably
linked”. Having considered the
chronology of events, the Labour Court concluded that the record had
been filed about seven
months beyond the 60-day deadline and the rule
7A(8)
(b)
notice was served “four times later than it
should have been “. The Labour Court regarded this as
“extremely late”.
[19] Taking
into account that the appellant had also delayed in filing the
condonation application; that the appellant
did not pursue the review
application in the time pending the outcome of the enforcement
application (i.e. the claim for the actual
payment of monies); and
that “it is only when their hopes were dashed by the outcome of
that application that they took steps
to review the application”,
the Labour Court concluded that “ordinarily” it would
have been “inclined to
dismiss the review application with
costs in view of the extraordinarily lackadaisical approach to the
delay and the length of
time taken to pursue the review application”.
[20] Notwithstanding
that remark, and significantly, the Labour Court, with reference to
the ruling of the arbitrator,
concluded: “However, the effects
of leaving a manifestly wrong ruling intact, in my view, outweigh
these considerations.”
The Labour Court then proceeded to
consider the merits of the appellant’s review application.
[21]
As
the Labour Court correctly stated, the test on review of such a
jurisdictional ruling is not reasonableness, but whether it is
correct in light of the objective facts
[1]
.
In that regard, the Labour Court held the following:
‘
[42] Although the
applicants cast the dispute as an interpretation dispute,
interpreting who is covered by the agreement obviously
has
implications for invoking it. The applicants sought a determination
that the settlement agreement applied to the individual
applicants in
question. They carefully cast the dispute in the narrowest terms. The
municipality conceded that the agreement did
cover the individuals in
question, albeit for the purpose of hoping to get rid of the dispute
by relying on prescription. In terms
of the narrow dispute that was
before the arbitrator, the concession should have resolved the
dispute. Indeed, the arbitrator partly
recognised this when he
correctly noted that the municipalities concession rendered the
interpretation question moot.
[43] However, because the
concession was made in the context of simultaneously raising the
prescription plea, the arbitrator was
enticed to entertain the
prescription issue. By following the municipalities lead, the
arbitrator misdirected his inquiry by believing
he was then required
to deal with the issue of application. Though the practical
implications of the applicants succeeding with
the review are
doubtful because the prescription issue would still arise either in
relation to the life of the agreement itself
or the periods for which
any remuneration might have been claimed by the individual
applicants, the applicant ought to have succeeded
in the
arbitration.’
[22] Thus,
until that point the Labour Court had decided to deal with the merits
of the review despite the delays,
and in fact had dealt with the
merits and had concluded that the review ought to succeed.
[23] Paradoxically
though, as appears from the succeeding paragraphs of the judgment,
and without any explanation,
the Labour Court reached a second,
contrary, conclusion. It refused to condone the delay and dismissed
the review application.
Paragraph 44 of the judgment states:
‘
Although the
merits of the review appear strong albeit on the narrow issue to be
decided I am of the view that the dilatory prosecution
of the review
cannot be condoned’.
and
further paragraph 45 states:
‘…
This is
not the case where the merits of the case can outweigh the
indifferent attitude with which they approached the matter.’
[24] Having
concluded that the appellant (i.e. the union, SAMWU, and the 46
employees) should be mulcted with the
costs, the Labour Court then
went on to make the (impugned) order: (a) condoning the late bringing
of the review application by
the appellant; (b) dismissing the
application to condone the filing of the rule 7A(8)(b) notice and,
consequently, the review application;
and (c) ordering the appellant
union and employees to jointly and severally pay the third
respondent’s costs of opposing
the review application, as well
as the costs of the two condonation applications.
On
Appeal
[25]
Even
though the Labour Court’s rationale for eventually dismissing
the review application was essentially because of the delay
in
prosecuting it, it did not refer to this Court’s decision in
City of
Johannesburg Metropolitan Municipality and others v Independent
Municipal and Allied Workers Union and others
[2]
[”IMATU”)
,
which deals with the approach to the issue of delay in the
prosecution of reviews under the Labour Relations Act 66 of 1995
(LRA).
Similarly, no reference was made to the decision in the heads
of argument filed by the respective parties in this appeal. They seem
to have been unaware of the decision all along and also not to have
made the Labour Court aware of it. This was pointed out to
the
participating parties on the first hearing date. In compliance with a
request from this Court, the parties filed supplementary
heads of
argument, addressing the issue of the delay in the prosecution of the
review, in light of that decision.
[26]
In
IMATU,
this
Court held in respect of the delay in the prosecution of a review
brought in terms of the LRA, essentially, that the Labour
Court has
the discretionary power to dismiss a review for that reason, but it
was a power that had to be exercised with circumspection
and in
exceptional circumstances, because of a litigant’s rights in
terms of section 34 of the Constitution
[3]
to have any dispute that can be resolved by the application of law
decided in a fair public hearing before a court. It was held
further
there, that in the exercise of that discretion, the delay must not be
considered in a vacuum, but must be evaluated in
light of all the
relevant facts, including the prejudice to the parties, the possible
consequences of granting, or of not granting
the relief sought in
respect of the merits, and the prospects of success, although there
is no closed list. This Court also held
that, ultimately, the
interests of justice were paramount.
[27] It
is apparent that in dealing with this matter, the Labour Court was
not aware of the
IMATU
decision and, consequently, did not
apply it, even though the Labour Court concluded (initially),
seemingly consistent with aspects
of that decision, that
notwithstanding the delay, the wrong ruling could not be left to
stand, and then went on to consider and
decide the merits of the
review. However, the Labour Court clearly erred in then contradicting
itself, as pointed out earlier,
in that immediately after deciding
that the review should succeed, it concluded that the review ought
not to be dealt with because
of the delay in its prosecution. For
those reasons interference by this Court is justified. As much was
conceded by counsel for
the third respondent.
[28] Counsel
for the third respondent however still maintained that the appeal
ought to be dismissed because of
the extreme delay in the filing of
the 7A(8)
(b)
notice (‘the notice”), and because
the appellant had abandoned the review only to try and revive it
again when it failed
in its monetary claim. Ultimately, according to
this argument, upholding the appeal, would be of no practical value
because the
claims of the individual employees in terms of the
settlement agreement had already prescribed in terms of the
Prescription Act.
[29] The
appellant’s counsel submitted that: (a) the Labour Court erred
in not granting the condonation pertaining
to the filing of the
notice and in dismissing the review application; (b) the delay in the
prosecution of the review was satisfactorily
explained and that, in
any event, it was not in the interest of justice to allow the wrong
ruling of the arbitrator to stand; (c)
the referral to the CCMA did
not and could not prescribe; (d) the monetary claims, in respect of
which the issue of prescription
was raised by the third respondent,
were not before the arbitrator and his ruling in respect thereof was
materially irregular;
(e) that as payments in terms of the settlement
were to be periodic, the claims in respect thereof could not have
prescribed, at
once, entirely, or at all; and (f) the Labour Court
erred in initially resolving that the review had to succeed, but
subsequently
coming to an inconsistent conclusion, which effectively
negated its initial resolution.
Discussion
[30] The
Labour Court was correct in its initial resolve to deal with the
merits of the review notwithstanding
the delay in its prosecution.
Applying the decision of this Court in
IMATU
, in terms of
which all the relevant facts have to be taken into account, including
the factors that have been mentioned above,
it is clearly in the
interest of justice that the merits of the review be dealt with,
otherwise the doors of the court would effectively
and unjustifiably
be closed to the appellant employees.
The
delay
[31] The
delay in the filing of the notice was principally due to the delay in
the receipt, preparation and filing
of the record. In terms of the
rule, the notice had to be delivered within 10 days of receipt of the
record. Following the debacle
where an empty CD had been submitted by
the CCMA to the appellant’s (then) attorneys, CHSM Attorneys,
and after a delay that
related to the payment of the fees of the
transcribers of the record, the transcribed record had eventually
been received by Maenetja
Attorneys on behalf of the appellant during
February 2015 and was filed in the Labour Court on 16 February 2015.
The sixty-day
period for the filing of the record would have expired
in about August 2014. The notice was delivered to the third
respondent for
the first time on 14 April 2014. It was thus about 38
days late. It was again served out of precaution on 3 March 2016 when
a response
from the third respondent’s attorneys had not been
received and in circumstances where the first notice could not be
located.
[32] The
appellant explained that these delays had been caused by certain of
the various attorneys that they had
engaged over the course of this
matter. The appellant was not satisfied with the services rendered by
CHSM Attorneys and terminated
their mandate in July 2014. Maenetja
Attorneys were then appointed to act on behalf of the appellant. The
attorney at Maenetja
Attorneys, who had been unsatisfactorily
handling the matter, unexpectedly and without notice resigned,
resulting in further prejudice
of the appellant. The mandate of those
attorneys had also been terminated subsequently during November 2016.
Mkize Attorneys were
then appointed. Difficulties also ensued each
time these changes occurred resulting in a lack of communication or
miscommunication
and a litany of other unfortunate setbacks and
delays.
[33]
Even
though, generally, a party is not absolved from blame where its legal
representative, through negligence, or otherwise, has
not complied
with time periods, an exception is made, generally, in circumstances
where the party has not remained passive in the
face of such
non-compliance and has done something about it.
[4]
[34] The
appellant was not supine. They took measures to ensure that the
review application is heard in the Labour
Court. They not only
engaged the Registrar and their attorneys regularly about progress in
the matter, but also terminated the
services of attorneys and
promptly engaged new attorneys where they were not satisfied with the
services they received.
[35] The
third respondent did not suffer any serious or significant prejudice
as a result of the delay. At the
time it raised the plea of
lis
pendens
in response to the claim brought by the appellant in the
Labour Court, it had no misgivings about the status of the review. It
must
have regarded that application as being alive and pending, hence
that plea. In its application in terms of rule 11 to dismiss the
review, Mr Phillip Mmampou Lebelo, on behalf of the third respondent,
avers that the respondent “has already suffered prejudice”
in opposing the review “as it believes that there are no proper
grounds for the review application”. He does not articulate
what exactly that prejudice is.
[36] Contrary
to what the third respondent contends regarding the merits of the
review, it has valid grounds and
its prospects of success are
unquestionable, as is elaborated upon below. If those merits are not
dealt with it would effectively
mean that the ruling of the
arbitrator is left intact and the appellant is precluded from having
their interpretation/application
dispute determined by the CCMA,
which has its ramifications, including unresolved discontent in the
workplace. The interest of
justice would not be served.
The
merits of the review
[37] Even
though the Labour Court was correct in its (initial) conclusion that
the review was to succeed, it erred
in so far as its reasons for that
conclusion is concerned. As pointed out earlier, according to the
Labour Court, the review had
to succeed because there had been a
concession on behalf of the third respondent at the arbitration that
the settlement agreement
applied to, or covered, the (appellant)
employees in question, and that the concession ought to have resolved
the interpretation/application
dispute.
[38] As
correctly submitted by counsel for the third respondent, the record
shows that the concession was only
made for the purpose of arguing
the prescription point and was not intended to be a concession of the
main dispute, if it had to
be dealt with.
[39]
Given
the context in which the prescription point was made, it was bad. The
actual monetary claims emanating from the settlement
agreement, in
which according to the third respondent’s point, had
prescribed, were not before the arbitrator. His ruling,
in effect, on
an issue that was not properly before him, was materially irregular.
Further, the referral, or the actual dispute
before him, which
related to whether the settlement agreement covered the employees in
question, could not have prescribed as it
is not a “debt”
as contemplated in the Prescription Act, such a debt being confined
only to services to be rendered,
monies to be paid, or something to
be delivered.
[5]
[40] The
CCMA clearly had jurisdiction to deal with the
interpretation/application dispute on its merits and the
arbitrator’s
conclusion to the contrary, is wrong. For those reasons, the ruling
of the arbitrator cannot stand.
[41] The
Labour Court erred in its subsequent, contradictory resolve, that
condonation should not be granted in
respect of the filing of the
notice and that the review ought to be dismissed for the delay in its
prosecution.
[42]
This
Court, like the Labour Court, cannot, in effect, decide the issue of
prescription of claims that were not before the arbitrator
(or the
Labour Court) and cannot, in fairness to the parties, anticipate and
determine such an issue. In any event, the third respondent
has not
made out a proper case of prescription of those (anticipated) claims.
Since those claims relate to the payment of salaries
that fell and
fall due on a monthly basis, and prescription only commences to run
in respect of a debt from the time the debt is
due
[6]
,
it was incumbent upon the third respondent to establish when each
salary in respect of each affected employee became due and when
the
three-year period (supposedly the period applicable to such debts)
had expired. Further, and in any event, it is by no means
proved that
prescription would have extinguished the entire claim of each of the
affected employees whom the agreement may have
covered.
[43] In
the circumstances, the Labour Court ought to have found that the
review should succeed and ought to have
referred the parties back to
the CCMA for another arbitrator of that body to resolve the merits of
the interpretation/application
dispute that had been referred to it
by the appellant.
[44] In
light of the ongoing relationship between the appellant and the third
respondent, and taking into account
all the other facts, including
the law and fairness, there should be no costs order.
[45] In
the result, the following is ordered:
45.1.
The appeal is upheld.
45.2.
The order of the Labour Court, refusing to condone the late filing of
the rule 7A(8)
(b)
notice, dismissing the review, and ordering
the appellant to pay the costs of the third respondent, is set aside
and is substituted
with the following order:
‘
1.
The application brought by the City of Johannesburg in terms of rule
11(1)(b) and (4) to dismiss the
review application brought by the
applicant’s, is dismissed;
2. The
late filing of the application to condone the late bringing of the
review is condoned;
3. The
late filing of the rule 7A(8)(b) notice and the delay in the
prosecution of the review
are condoned;
4. The
ruling of the arbitrator in the award dated 6 February 2014 relating
to jurisdiction of
the CCMA, is reviewed and set aside and is
substituted with the following: ‘The point
in limine
raised
by the respondent, that the applicant’s claim has prescribed
and that the CCMA has no jurisdiction to hear the matter,
is
dismissed.’
5. The
parties are referred back to the CCMA for the resolution before a
different arbitrator
of the dispute concerning the interpretation and
application of the settlement agreement;
6. There
is no costs order.’
P
Coppin
Judge
of the Labour Appeal Court
Phatshoane
ADJP and Kathree-Setiloane AJA concur in the judgment of Coppin JA.
APPEARANCES:
FOR
THE APPELLANT: LM
Mkize; and AM Mafisa
Instructed
by Mkize Attorneys
FOR
THE THIRD RESPONDENT: AIS Redding SC; and XD Matyolo
Instructed
by Werksmans Attorneys
[1]
See, inter alia,
Zeuna-Starker
BOP (Pty) Ltd v NUMSA
[1998]
11 BLLR 1110
(LAC) para 6;
South
African Municipal Workers Union obo Manentza v Ngwathe Local
Municipality and others
[2015]
9 BLLR 894
(LAC) para 20.
[2]
[2017] ZALAC 43
; (2017) 38 ILJ 2695 (LAC) (28 June 2017).
[3]
The Constitution of the Republic of South Africa, 1996.
[4]
See, inter alia,
Regal
v African Superslate
1962
(3) SA 18
(A) at 23 C-H;
Saloojee
& another v Minister of Community Development
1965
(2) SA135 (A) at 141 B-H.
[5]
See, inter alia,
Makate
v Vodacom (Pty) Ltd
2016
(4) SA 121
(CC) paras 92-93.
[6]
See
Makate
(above)
para 188.