SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: PR57/22
In the matter between:
GEORGE TERENCE KLAASEN Applicant
and
DEPARTMENT OF EDUCATION
NORTHERN CAPE PROVINCE First Respondent
KENNETH DLAMINI NO Second Respondent
EDUCATION LABOUR RELATIONS COUNCIL Third Respondent
Heard: 11 0ctober 2023
Delivered: 29 January 2024
JUDGMENT
MAHALELO, AJ
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Introduction
[1] This is an application to review and set aside the second respondent’s
(Arbitrator) ruling under case number ELRC 382-21/22 NW, delivered on 11
October 2021, wherein the applicant’s condonation application was dismissed.
Background facts
[2] The applicant commenced employment with the first respondent as an educator
on or about 1 January 1985. The applicant was promoted to the position of
Senior Education Specialist in Mathematics on 1 July 1996. From the period
April 2011 up until about 2016, the applicant and the first respondent were
embroiled in various litigation. During 2016 the applicant returned to work after
an award was made in his favour that the respondent should retrospectively
reinstate him.
[3] The first respondent refused to reinstate the applicant to the same position as
the one which he occupied before his dismissal. The applicant was later
diagnosed with major depression. O n or a bout 23 April 2019, the first
respondent informed inter alia, the applicant, that the application form for early
retirement without penalisation of pension benefit was available and that
interested employees may apply for the benefit. The applicant completed the
application for early retirement which was received by the first respondent on 5
July 2019.
[4] On 13 November 2019, the applicant received an e -mail from the first
respondent which e-mail was accompanied by a letter dated 2 October 2019 ,
wherein the applicant was informed that his services would be terminated on
the grounds of continuous ill health with effect from 1 January 2020 with his last
working day being 31 December 2019.
[5] The applicant contends that he did not understand the said letter in the context
of his application for retirement and he on the same day, forwarded the letter to
his trade union PSA. The trade union official advised him that he was boarded
and as such his benefits would be better than early retirement without the
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reduction of pension benefits. The trade union official further advised that the
applicant had no option but to accept the ill health retirement.
[6] In the period from 21 January 2021 to 19 May 2021, the applicant attempted to
obtain his pension benefit from the Government Employees Pension Fund
(GEPF). The applicant alleges that at this stage he had been without a salary
for approximately 20 months and he had severe financial constraints. It was
only on 7 June 2021 that he attended the offices of the G EPF and became
aware that according to their records, he was never boarded due to ill health.
[7] The applicant states that on 11 July 2021, he received a recommendation from
his doctor to obtain legal advice in respect of his employment relationship with
the first respondent. On 2 August 2021, he scheduled an appointment with his
attorney. It was during consultation with his attorney that he became aware that
he was in fact dismissed by the first respondent due to incapacity as a result of
ill health. It was then that the applicant referred an unfair dismissal dispute to
the third respondent.
[8] The applicant’s referral of an unfair dismissal dispute to the third respondent
was days outside of the prescribed 30-day period and the applicant sought
condonation. The applicant’s explanation for the delay offered in the
condonation application aligns with the facts recorded above as the applicant
contended that the union official might have misled him . The first respondent
did not oppose the applicant’s condonation application and the arbitrator
adjudicated the application on the papers that were served before him, thus the
evidence was presented by the applicant only. The arbitrator issued a ruling on
11 October 2021, refusing condonation to the applicant. It is this ruling which is
the subject of these proceedings.
[9] In its answering affidavit, the respondent raised two preliminary points, which I
deal with below. The first preliminary point is a jurisdictional point because the
review application was allegedly launched outside of the six-weeks prescribed
period. The second preliminary point has much to do with the merits of the
matter therefore, the respondent agreed at the hearing of the application that
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she will address the second point when she deals with the merits of the
application.
[10] It is accepted that if a review application is filed outside the statutory prescribed
period, the Labour Court does not have jurisdiction to entertain the application
until such time that condonation is sought and granted.
[11] On the applicant’s version having received the arbitrator’s ruling on 11 February
2021, the last day to file his review application would have been 25 March 2021.
On the respondent’s version, the applicant received the ruling on 2 November
2020, whereafter he ought to have filed his review application on 14 December
2020, yet he only filed it on 24 March 2021. According to the respondent the
review application was 14 weeks late.
[12] In Ellerine Holdings Ltd v Commission for Conciliation, Mediation and
Arbitration and others,1 the court has held that:
‘Where the non-compliance relates to a statutory provision, ie as set out in an
Act, then failure to comply with those provisions goes to jurisdiction. In such
cases (for example where time-limits relate to jurisdiction) an application must
be made to court to condone the non-compliance. In circumstances where the
time-limit is prescribed by the rules, this court would be prepared to entertain a
matter in spite of the fact that the pleadings were not filed within the prescribed
time-limits, as long as there is no objection thereto by the party who stands in
opposition to the party who has failed to comply with the time-limits prescribed
by the rules of this court.’
[13] The first respondent argued that the commissioner issued his ruling on 11
October 2021. However, it was delivered to the parties by the General
Secretary of the ELRC (fourth respondent) on 2 November 2021. The first
respondent says that a copy of the aforementioned letter together with the ruling
was emailed to the applicant on the same day 2 November 2021. It was emailed
to the applicant ’s e -mail address, namely g[...]@gmail.com. The first
respondent attached a copy of the e -mail with the ruling that was sent to the
applicant on 2 November 2021 by Mr Phokojoe of the ELRC as Annexure
1 (2002) 23 ILJ 1282 (LC) at para 13.
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“OGM2”. The respondent also indicates that on 11 August 2022 Mr P hokojoe
confirmed via e-mail to the department's instructing attorney that the ruling was
served on the parties on 2 November 2021. A copy of such confirmation is
attached as An nexure “OGM3”. The first respondent alleges that the e -mail
address that was used is the e -mail address that is contained in the ELRC’s
referral form E1, which was completed by the applicant when he referred his
dispute to the ELRC. A copy of the applicant’s ELRC Referral form is annexed
as “OGM4”. The respondent further stated that when the applicant
communicated with the department via e-mail he used the same e-mail address
as contained in FA7. FA7 is an e -mail which was addressed by Ms Justin de
Wee, who is employed by the Department of Education as a Human Resource
Practitioner to the applicant informing the applicant of the department's decision
to terminate his services on the grounds of continued ill health with effect from
1 January 2022. The respondent therefore argued that there can be no question
that the ELRC sent the e -mail to the e -mail address which the applicant
furnished, which is also an e-mail address ordinarily used by the applicant.
[14] On the other hand, the applicant, in his replying affidavit responded to the
respondent in the following manner: “I append as annexure RA1 the only
correspondence received from the third respondent and which was received on
3 November 2021 to which no annexures were appended and more specifically,
not the condonation ruling. After numerous follow-ups with my previous attorney
of record and the third respondent I elected to appoint Lovius Block Inc who
obtained the condonation ruling from the third respondent on 11 February 2022.
A copy of the proof of receipt is appended as annexure RA2”.
[15] It is clear from annexure “OGM2” that the arbitrator’s ruling was sent to the
applicant on 2 November 2021 by Mr Phokojoe from ELRC. It is also clear from
annexure “RA1” that the applicant was made aware of the condonation ruling
on 3 November 2021. The applicant simply alleges that he had made numerous
follow-ups with his previous attorney to obtain the ruling, without attaching any
proof to that effect. It is strange that the applicant could have just received “RA1”
without the attached ruling. The evidence before me shows that the applicant
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received the ruling at least on 3 November 2021 and had to file his review
application before the expiry of six weeks from that date.
[16] The late filing of a review application constitutes a failure to comply with a
statutory provision and not a time limit prescribed by the Rules. The applicant
had to apply for condonation for the late filing of the review application. The
review application in casu was filed with the Registrar on 24 March 202 1,
evidently outside the prescribed six -weeks period. There is no application for
condonation for the late filing of the review application.
[17] The Labour Appeal Court (LAC) in SA Transport and Allied Workers Union and
another v Tokiso Dispute Settlement and others,2 held that when an applicant
files its review application outside the statutory period, even by one day; the
Labour Court cannot assist that party without first addressing the issue of
condonation.
[18] Absent an application for condonation, this court does not have jurisdiction to
hear the applicant’s review application.
[19] On the issue of costs , this court acknowledges the rule that costs do not
automatically follow the result in the labour court. For consideration of issues of
fairness and the law, I make no order as to costs.
[20] In the premises, I make the following order:
Order
1. The review is struck off the roll.
2. No order as to costs.
________________
MB Mahalelo
Acting Judge of the Labour Court of South Africa
2 (2015) 36 ILJ 1841 (LAC); [2015] 8 BLLR 818 (LAC).
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Appearances
For the Applicant: Adv GC Steenkamp
Instructed by: Lovius Block Attorneys
For the Respondent: Adv G Appels
Instructed by: Mkhokeli Pino Incorporated