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[2021] ZALAC 2
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SAMWU obo Shongwe and Others v Moloi N.O and Others (JA81/19) [2021] ZALAC 2; [2021] 5 BLLR 464 (LAC); (2021) 42 ILJ 1061 (LAC) (26 February 2021)
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.