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[2024] ZALCJHB 158
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Minister of Justice and Constitutional Development v DS Panza and Others (JR2449/13 & J2080/16) [2024] ZALCJHB 158 (25 March 2024)
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IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR2449/13 &
J2080/16
In
the matter between:
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Applicant
And
DS
PANZA
First
Respondent
B
MATSHELO
Second
Respondent
P
SUCHRAJ-ELLY
Third
Respondent
J
MATSHIDISO
Fourth Respondent
T
BODIBA
Fifth Respondent
D
PHAHLANE
Sixth Respondent
S
DLWATHI
Seventh Respondent
S
MDZEKE
Eight Respondent
D
SEOPA
Ninth Respondent
M
D
MOTADI
Tenth Respondent
L
C MQUSHULU
Eleventh Respondent
MSHORO
JAMES MATHALA
N.O
Twelfth Respondent
GENERAL
SERVICE SECTORAL
BARGAINING
COUNCIL
Thirteenth Respondent
L
TSHIDZUMBA
Fourteen Respondent
S
MTHIMUNYE
Fifteen Respondent
MINISTER
OF PUBLIC SERVICE
AND
ADMINISTRATION
Sixteen Respondent
PUBLIC
SERVANTS ASSOCIATION
OF
SOUTH AFRICA
Seventeen Respondent
THE
POLICE AND PRISONS
CIVIL
RIGHTS
UNION
Eighteen Respondent
THE
NATIONAL EDUCATION AND HEALTH
ALLIED
WORKERS
UNION
Nineteen Respondent
And
CASE
NO. J 2080/16
In
the matter between:
D
S
MPANZA
First Applicant
P
MATSHELO
Second Applicant
P
SUCHRAJ-ELLY
Third Applicant
J
MATSHIDISO
Fourth Applicant
T
BODIBA
Fifth Applicant
D
PHAHLANE
Sixth Applicant
S
DLWATHI
Seventh Applicant
S
MDZEKE
Eight Applicant
D
SEOPA
Ninth Applicant
M
D
MOTADI
Tenth Applicant
L
C MQUSHULU
Eleventh Applicant
L
TSHIDZUMBA
Twelve Applicant
S
MTHIMUNYE
Thirteenth Applicant
And
THE
MINISTER OF JUSTICE &
CONSTITUTIONAL
DEVELOPMENT
Respondent
Heard:
30 June 2023
Delivered:
25 March 2024
JUDGMENT
SONO,
AJ
Introduction
[1]
The
matter before this court relates to three (3) interlinked
applications being (i) a review application, (ii) a rescission
application, both brought by the Minister of Justice and
Constitutional Development (the Applicant), and (iii) a section
158(1)(c) application brought by the Respondents.
[1]
[2]
The
dispute concerns the interpretation and application of a
collective agreement,
[2]
more specifically Resolution 1 of the GPSSBC (the Resolution).
Essentially the Respondents are seeking relief to be translated
into
the Occupational Specific Dispensation (OSD) in accordance with the
Resolution.
[3]
The
dispute was arbitrated upon by the twelfth respondent (the
Arbitrator) under the auspices of the General Public Sectoral
Bargaining
Council (the GPSSBC), the thirteenth respondent in this
matter. The Arbitrator rendered an award dated 10 September 2023 (the
Award),
which is the subject matter of this review application,
concluding that the Respondents are to be translated into the OSD in
accordance
with the Resolution.
[4]
Dissatisfied
with the Award, the Applicant has brought the present review
application seeking to have the Award reviewed and set
aside. Before
dealing with the merits of the review application, I must set out the
circumstances under which this review application
came before me.
Background
fact
[5]
The
Department of Justice and Constitutional Development (the Department)
created the Civil Litigation Unit the purpose of which
was to recruit
and retain advocates to conduct civil litigation on behalf of the
State. On 25 January 2008, the Department advertised
12 posts for the
role of State Advocates. On 3 October 2008, the Department advertised
a further 3 posts for Senior State Advocates.
[6]
It
is common cause that the Respondents were employed in the
aforementioned posts as either State Advocates or Senior State
Advocates.
[7]
Prior
to the Respondents employment with the Applicant, the Resolution was
concluded between the State, the Department and the participating
unions. Paragraph 1 of the Resolution provides that:
‘
[t]his
agreement gives effect to PSBC Resolution 1 of 2007 in providing for
the development and implementation of Occupational Specific
Dispensation ("OSD") for qualified legal professionals with
effect from 01 July 2007
[and]
3.
Scope
3.1
[t]his
agreement binds -
3.1.1
the
Employer
3.1.2
the
Employees of the Employer who are members of trade union parties to
this agreement; and the employees of the Employer who are
not members
of any trade union party to this agreement, but who fall within the
registered scope of [the Council]; and
3.1.3
who
fall within the following categories:
·
State
Attorney
·
Family
Advocate
·
State
Law Advisor
·
Legal
Administration Office
·
Master
·
Registrar
·
Maintenance
Officer
·
Estate
Controller.’
[8]
On
or about 22 August 2012, aggrieved employees of the Department, cited
herein as the first to twelve respondents, lodged a grievance
contending that they should be included in the OSD. In essence,
the Respondents contended that their exclusion from participating
in
the OSD amounted to an unfair labour practice, unfair discrimination
and that their exclusion was unlawful and unconstitutional.
[9]
On
or about 16 October 2012, the Department responded to the grievance.
The Department stated that it could not entertain the
grievance
because it is bound by the OSD, as a collective agreement.
Essentially, the Department's argument was that the Respondents
are
not included in the OSD and including them would be tantamount to
amending the collective agreement unilaterally but the Department
would engage the Department of Public Service and Administration (the
DPSA) with a view to including those who qualify.
[10]
On
9 November 2012, the aggrieved Respondents referred a dispute to the
GPSSBC. The dispute related to the interpretation and/or
application
of the collective agreement. The matter remained unresolved as of 14
December 2012 and the Respondents referred the
dispute for
arbitration. The arbitration was held on 20 August 2013 and the Award
was handed down on 10 September 2013.
[11]
The
Respondents then brought the current review application. Since then
the matter has travelled a long journey seeking to be resolved.
Labour
Court proceedings
[12]
This
review application first came before this court on 15 October 2015
before Basson J. Basson J ordered, by consent of the parties,
that
the matter be postponed
sine
die
and
directed that the Applicant approach the Minister of Public Service
and Administration with a view to request the GPSSBC to
convene a
meeting of all interested parties to the collective agreement
including the respondent. The purpose of that meeting was
for all
involved to discuss the inclusion of the Respondents in the
Resolution.
[13]
Basson
J's view was that setting aside the award and remitting the matter to
the Thirteenth Respondent will not resolve the issue
and the dispute
between them will still remain, being, that the Respondents are not
included in the Resolution and including them
like the Twelfth
Respondent did, will mean that the court has to read into the
collective agreement entered into by the relevant
trade unions that
the First to Fifteenth Respondents are included in the Resolution.
[14]
The
parties before court reached an agreement which was made an order of
court.
[15]
On
2 August 2016, the matter came before Van Niekerk J. When there was a
no show by the parties, Van Niekerk J
"dismissed"
the review application. I will return to the effect of the dismissal
order by my brother, Van Niekerk J. Backed by the order
dismissing the review application, the Respondents filed the section
158 (1)(c) application seeking to make the Award an order
of the
court. The merits of this application will also be dealt with later
on in this judgement.
[16]
On
2 June 2017, the review application and the section 158 application
came before Le Grange J who ordered that the Applicant file
a
recission application and seek condonation for the late filing
thereof. Further, Le Grange J ordered that the Applicant has to
file
a condonation application for the late filing of the recission
application. It is common cause that the Applicant failed to
file the
condonation application as ordered.
[17]
On
25 April 2018 the 3 interlinked applications came before
Nkhutha-Nkontwana who remitted the matter back to the GPSSBC. She
further
directed that parties were to convene at the GPSSBC chambers
to discuss the possible inclusion of the Respondents in the
Resolution.
The parties to this discussion were directed to report
the decision emanating from the directed sitting.
[18]
On
10 July 2018, and in compliance with order of Nkutha-Nkontwana J's
order
supra
[3]
,
Ms Oodit (the secretary to the GPSSBC) reported to this court that a
meeting was held on 18 June 2018. The nub of her "
report
"
was that the matter would need to be tabled before the GPSSBC's
Council for consideration.
[19]
On
29 August 2018, the Respondents instituted contempt proceedings
against Ms Oodit. On 30 November 2018 the parties entered into
a
settlement agreement which was made an order of court in terms of
which -
18.1
The
Respondents withdrew the contempt proceedings against Ms Oodit;
18.2
The
GPSSBC would use its best endeavours to convene a meeting before the
end of February between all parties including the trade
unions and
the DPSA. The meeting would be convened outside the provisions of the
GPSSBC constitution and its objective would be
to resolve the dispute
between the Department and the Respondents by identifying a process
that will allow the dispute between
the Department and the
Respondents to get on the agenda of the GPSSBC.
[20]
Following
the above order, Ms Oodit reported to this court that a meeting on
25 February 2019 was convened pursuant to the
aforementioned
order. Further, that the issue of placing the dispute between the
Respondents and the Applicant on the GPSSBC agenda
was discussed
however no consensus could be reached. Moreover, it was agreed that
the Respondents would approach the PSCBC.
[21]
The
Respondents approached the PSCBC. Commissioner Minnette Van der Merwe
ruled that the PSCBC does not have jurisdiction to resolve
the
dispute before it as a party to the PSCBC resolution 3 of 2010 did
not refer this dispute for interpretation and application.
[22]
Unresolved,
this matter has since come back to this court. On 30 June 2023, the
matter came before me.
The
award
[23]
The
Arbitrator identified that the main issue before him was "
whether
the [Respondents] are entitled to be translated to OSD in terms of
[the Resolution]"
.
Before he could make a conclusion on this main question, the
Arbitrator was of the view that he first had to determine whether
or
not the Applicants and the Respondents were bound by the collective
agreement. The Arbitrator found that the parties are bound
by the
collective agreement. He found that the Resolution makes provision
for three categories of employees who are bound by it.
In his
analysis of clause 3 of the Resolution, the Respondents fit into the
second category of employees.
[24]
Having
found that the Applicant and the Respondents were bound by the
Resolution, in approaching the main issue before him the Arbitrator
relied primarily on the case law in
National
Commissioner for the South African Police Service v Mokoena and
Others
[4]
particularly
paragraph 11 of that judgement. On that basis, the Arbitrator
concluded that the Respondents were entitled to be translated
in the
OSD and therefore by implication, that they are entitled to benefit
in terms of the Resolution.
Grounds
of review
[25]
The
Applicant contends that the Arbitrator committed a gross irregularity
in the conduct of the proceedings and/or failed to apply
his mind
which, according to the Applicant, is evinced by the lack of
rationality between the Award and the reasons. As a further
ground
the Applicant contends that the Award is so unreasonable that no
reasonable Arbitrator would have reached as he misinterpreted
paragraph 3 of the Resolution in that the Arbitrator applied the
clauses therein disjunctively instead of conjunctively, that parties
with a substantial and direct interest in the matter were not cited
and that when the Resolution came about, the Respondents were
not
even employed at that time.
Condonation
and rescission
[26]
The
Applicant was ordered to file a recission application together with a
condonation application by Le Grange J. This was to rescind
the order
of Van Niekerk J.
[27]
It
is common cause that the rescission application was filed with this
court however the condonation application which had to accompany
it
was not filed. Before I pronounce on the merits of the rescission
application I will first have to deal with the condonation
application.
[28]
It
is trite that condonation is not for the taking. A litigant seeking
condonation has to request this court for indulgence and
show good
cause for his/her or its failure to comply with any prescribed time
frames. The discretion to grant or refuse the condonation
(as the
case may be) lies solely with the presiding officer and is a
discretion that must be exercised judiciously.
[29]
The
Constitutional Court confirmed that granting a party condonation for
failure to comply with the prescribed time frames must
be in the
interest of justice.
[5]
The
standard I am called upon to apply is therefore the interest of
justice standard. In other words, I have to determine whether
or not
it will be in the interest of justice that the condonation be granted
or refused.
[30]
It
is unacceptable that having been ordered by this court to file a
condonation application the Applicant has not even bothered
to do so.
There is simply no excuse whatsoever for not complying with a court
order. This is strictly contemptuous conduct. The
court normally
would therefore lack jurisdiction to deal with this matter in the
absence of the condonation application
[31]
Nonetheless
looking at the facts of this case, the importance of the issue at
hand, the parties involved and the fact that this
dispute, primarily
the review application, has been so protracted, the interests of
justice dictate that the Applicant's non-compliance
be condoned in
the first place and secondly condone the late filing of the
rescission application.
[32]
Dismissing
the matter on the basis that the court has no jurisdiction at this
stage, will not be in the interest of justice. This
is so in that the
matter served before my sister Nkhutha-Nkontwana J before coming
before me. Nkhutha-Nkontwana J dealt with the
matter and in so doing,
made orders which were complied with by the parties. Accordingly, the
issue of non-compliance has become
moot before me having been
overtaken by events.
[33]
Furthermore,
the Applicant has reasonable prospects of success in this review as
will be shown later. In considering the matter
and remitting it to
the GPSSCBC, my sister Nkhutha-Nkontwana J had, in my opinion,
effectively condoned the Applicant's failure
to file a condonation
application as the matter moved forward, this court granted the
parties a hearing and made an order. It will
be unfair and illogical
that now being saddled with this matter again the court goes and
revisits the Applicant's non-compliance
with the rules of this court.
[34]
Moreover,
it goes without saying that labour matters have to be resolved
expeditiously. This is one of the primary objectives of
the Labour
Relations Act
[6]
(the LRA).
[7]
Striking this matter off the roll (or even dismissing it) will mean
this matter will in future be back before this court. The same
issue(s) will be before this court again. This course of action is
certainly not in keeping with the spirit and purport of the
LRA nor
will it be in any of the parties' interest. It will however be a
factor I will consider in determining whether to grant
an order as to
costs.
[35]
This
should however not mean that litigants are at liberty to elect
whether or not to file condonation applications when there is
a need
to do so. The decision to grant condonation, in this instance when no
application for condonation was even filed, must be
understood within
the context of this matter. The Respondents have moved post to pillar
seeking the resolution of their dispute.
They deserve finality.
[36]
I
now turn to dealing with the rescission application. The Applicant's
case is that the order of Van Niekerk J was erroneously granted
in
that he ought to have struck the matter from the roll instead of
dismissing it. Furthermore, so contends the Applicant, Van
Niekerk
J's order is tantamount to a striking off order and should be
regarded as such. In support of this submission, the Applicant
relies
on Rule 15 of this court's rules
[8]
read with clause 14.4 of this court's practice manual
[9]
which provide that in the case of non-appearance by both parties the
matter ought to have been struck off the roll.
[37]
In
explaining the Applicant's non-attendance on 2 August 2016, Mr Thabo
Victor Letageng (Mr Letageng) averred that -
36.1
He
is a Senior State Attorney and has been handing this matter, on the
Applicant's behalf, since its inception;
36.2
From
17 to 29 June 2016 he was on leave and during that time there was no
one who took charge of his office. Moreover, his secretary
had not
returned from 24 May 2016;
36.3
He
came back from leave on 29 June 2016;
36.4
He
only became aware of the status of the matter (i.e. that the
application had been dismissed by Van Niekerk J) after receiving
a
call from Ms Motadi on 6 September 2016.
[38]
Importantly,
Mr Letageng does not deny that he received the notice of set down,
only that he
"missed
it"
as his inbox was inundated.
[39]
Mr
Letageng concedes that the telefax number 0[…] is his telefax
number. The broadcast report attached to his affidavit reveals
that
the telefax was transmitted on 27 June 2016, two days before Mr
Letageng returned to work after his leave.
[40]
The
Respondents oppose the Applicant's rescission application.
The Respondents aver that they were not served with the notice
of set down and were therefore not aware that the matter was set down
on 2 August 2016. This explains why they were absent in court
on the
said date. The Respondents however oppose the rescission application
brought by the Application on the basis that Applicant
has not made a
proper case for recession.
[41]
In
order to resolve this issue, the question is whether there was a need
in the first place for the Applicant to file an application
for
rescission. In my view the effect of Van Niekerk J's order was to
strike the matter off the roll. In this event, there is therefore
no
need to consider the requirements as set out in Rule 16A of this
court’s rules. However, La Grange J on 1 June 2017 made
an
order that the Applicant (the Respondent in that matter) should file
an application to rescind the order made by Van Niekerk
on 21 August
2016 and apply for condonation for the late filing of the rescission
application. I have already dealt with the issue
of condonation.
Thus, the Applicant was obliged if not by the rules but the specific
order of La Grange J to file both the rescission
and condonation for
the late filing of same.
[42]
Rule
16A of the Rules of this Court empowers the court to rescind or vary
any order or judgement made in the absence of that party.
In its
heads of argument titled, "Applicant's Second Supplementary
Heads of Argument', dated 23 November 2016, the Applicant
contends
that there was no need for a formal rescission application of the
order made by Van Niekerk J. They contend that the order
made by Van
Niekerk J on 2 August 2016 is tantamount to a striking off and
therefore does not require a formal rescission application.
[43]
Be
that as it may, the Applicant had filed an explanatory affidavit
explaining the Applicant's absence from court when the matter
came
before Van Niekerk J. The reasons are dealt with above.
[44]
The
Applicant has proffered an explanation for its absence in court.
Before the matter came before me, it served before Nkutha-Nkontwana
J. As stated above, Nkutha-Nkontwana J dealt with the matter and made
various orders which were implemented by the parties. The
Respondents
were similarly absent. I therefore find that the matter is properly
before court.
[45]
Whereas
it may be that both Basson J and Nkutha-Nkontwana J tried to find a
practical resolution of the matter for the reasons more
fully dealt
with by Basson J, the question that arises is what is the effect of
the orders made by my learned sisters. It is easy
for this court to
deal with the matter simplistically as suggested by the Applicant and
find that the Award issued by the Twelfth
Respondent no longer exists
having been over taken by the orders of the Basson and
Nkhutha-Nkontwana J. That approach will however
not be helpful to the
parties. This is so because, whereas she dealt with the application
to review and set aside the award of
the Twelfth Respondent, the
parties reached an agreement which was then made an order of court by
consent. In this order, the award
was not set aside in terms of
section 145 (1). Her Ladyship Basson J postponed the matter
sine
die
for
the parties to find resolution in terms of the order. Similarly,
Nkhutha-Nkontwana J did not set the Award aside. She did
however
in terms of the first order remit the matter to the
Thirteenth Respondent. Importantly, she ordered the Thirteenth
Respondent to "report" back to the court the decisions
taken in terms of the measures directed by the court per
Nkhutha-Nkontwana
J.
[46]
Thus,
the above, in my view renders to review application on the one hand
and the section 158(1)(c) applications alive.
[47]
The
interest of justice dictate that rescission should be granted and the
matter be brought to finality. It is for this reason that
this court
will determine the matter and grant rescission of the order of Van
Niekerk J in order to deal with the substantive applications
for
review and section 158, respectively. The court has also considered
the prospects of success in the review application to come
to the
conclusion that this matter deserves a hearing.
[48]
Moreover,
as already stated the issue of rescission has, in my view, been
overtaken by subsequent events, which is when my sister
Nkhutha-Nkontwana J adjudicated the matter on 14 September 2018.
[49]
I
will now turn to deal with the issue before this court, which is the
review application.
Applicable
legal principles
[50]
This
court is called upon to determine whether the Award should be
reviewed and set aside.
[51]
In
order to answer the question as to whether whether the Award should
be set aside, this court has to grapple with the question
whether or
not the decision reached by the Arbitrator, that the Respondents are
included in the OSD and Resolution, is one that
a reasonable decision
maker could reach.
[52]
I
am guided by the following passages of the Labour Appeal Court
decision in
Herbert
v Head of Education: Western Cape Education Department and others
[10]
-
‘
[21]
In
Herholdt v
Nedbank Ltd
(Congress
of SA Trade Unions as Amicus Curiae
),
the Court made it clear that:
“
A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2)
(a)
of the LRA. For a defect in the conduct of the proceedings to amount
to a gross irregularity as contemplated by s 145(2)
(a)
(ii),
the arbitrator must have misconceived the nature of the enquiry or
arrived at an unreasonable result. A result will only be
unreasonable
if it is one that a reasonable arbitrator could not reach on all the
material that was before the arbitrator. Material
errors of fact, as
well as the weight and relevance to be attached to particular facts,
are not in and of themselves sufficient
for an award to be set aside,
but are only of any consequence if their effect is to render the
outcome unreasonable.”
[22]
In
DENOSA,
it
was suggested that
–
“…
the
concept of the error of law is relevant to the review of an
arbitrator’s decision within the context of the factual matrix
as presented …; that is a material error of law committed by
an arbitrator may, on its own without having to apply the exact
formulation set out in
Sidumo
,
justify a review and setting aside of the award depending on the
facts as established in the particular case.”
[23]
This
Court, in
MacDonald’s Transport,
had regard to the
different context in which private arbitration occurs. In
Telcordia
Technologies v Telkom
it was
made clear that the review of material errors of law in a private
arbitration are prevented because the arbitrator is, in
accordance
with the limitations which arise from the Arbitration Act, intended
to have exclusive jurisdiction over questions of
fact and law. In a
different context, in
Hira v Booysen,
it was stated
that:
“…
Where
the complaint is that the tribunal has committed a material error of
law, then the reviewability of the decision will depend,
basically,
upon whether or not the Legislature intended the tribunal to have
exclusive authority to decide the question of law
concerned. This is
a matter of construction of the statute conferring the power of
decision
.”
[24]
In
MacDonald’s Transport
it was found that the
Labour Relations Act (“the LRA”) did not contemplate that
a
CCMA or
bargaining council arbitrator
, both statutory
roles,
would have the last word on the proper interpretation of an
instrument as this would mean that
a
patently wrong interpretation would be left intact, which “would
be absurd
”.
The
wrong interpretation of an instrument by an arbitrator could
therefore constitute a reviewable irregularity as
envisaged by section 145 of the LRA
, in the sense that
a
reasonable arbitrator does not get a legal point wrong
. The Court
concluded that either “the reasonableness test is appropriate
to both value judgments and legal interpretations.
If not,
‘correctness’ as a distinct test is necessary to address
such matters”. This view was echoed
in
NUMSA,
in
which it was stated that
an
incorrect interpretation of the law by a commissioner constitutes a
material error of law
which “will result in both an incorrect and unreasonable
award”, which “can either be attacked on the basis of
its
correctness or for being unreasonable”.
’ (own
emphasis)
[53]
In
light of the above, I have to consider whether the Arbitrator
correctly interpreted the Resolution.
In
interpreting the Resolution the Arbitrator “
was
required to have regard to the aim and purpose of the collective
agreement, the words and language used”
therein “
having
regard to ordinary rules of grammar and syntax, and the context
within which”
the Resolution came about.
[11]
[54]
Applying
the aforementioned principles, I am of the view that the Arbitrator
incorrectly interpreted and applied the Resolution
to include the
Respondents for the following reasons -
47.1
Textually,
the Respondents are not included in the category of persons bound by
the Resolution. The Resolution has an exhaustive
list of occupational
categories (i.e. a list of persons) to whom the Resolution applies.
What the Arbitrator did, in his analysis
and interpretation is
tantamount to altering the clear provision of the Resolution which is
not allowed.
47.2
Contextually,
when the collective agreement was negotiated and concluded the
positions the Respondents held in the Department were
not even
created yet. Meaning, the parties who negotiated and concluded the
collective agreement could not have foreseen that the
Respondents
would be included in the category of persons bound by the Resolution.
In other words, it could never have been the
intention of the
negotiating parties that the categories of persons the Respondents
fall under would be included in the Resolution.
47.3
A
further indicator that the Respondents are not included in the
Resolution lies in the fact that the GPSSBC itself refused to absorb
the Respondents into the Resolution. After this refusal, the PSCBC
similarly refused to absorb them in the Resolution.
[55]
In
addition, the interpretation given by the Arbitrator as to who is
bound by the Resolution is unreasonable and incorrect. When
one looks
at clause 3 of the Resolution, it is clear that the Resolution makes
scope for only 2 categories of employees who are
bound by the
Resolution, who -
48.1
Are employees of the Department who are members of a trade union
party to the collective agreement; and
48.2
Are employees who are not members of a trade union party to the
agreement but who fall within the registered
scope of the GPSSBC.
[56]
Once
an employee falls within the aforementioned categories, then they
have to fall within the closed list of occupational categories
set
out in clause 3.1.3. It then follows that clauses 3.1.1, 3.1.2 and
3.1.3 are to be read conjunctively. This view is further
fortified by
the use of the “and” instead of “or” in
clause 3 of the Resolution. Therefore, the Arbitrator's
approach that
clause 3 has to be interpreted disjunctively was incorrect in my
view.
[57]
Moreover,
the Arbitrator could not even start to interpret and apply the
collective agreement in the absence of the unions who negotiated
and
concluded the collective agreement. The unions (and by extension
their constituents) had a direct and substantial interest
in the
proceedings before the Arbitrator and ought to have been joined.
Further, the process, including this court, would have
benefitted
from the submissions of the parties who actually concluded the
Resolution forming the subject matter of these proceedings.
In this
regard, I fully align myself with the views of my sister Basson J
that this was tantamount to a misjoinder. It follows
that the review
application should then be upheld.
[58]
This
leads me to the authority of this court
in
the matter of
South
African Police Services v Du Preez and Others In Re: Du Preez v South
African Police Services
[12]
wherein
this court, per Moshoana J, in explaining who is to be considered a
“party” in terms of section 24 of the LRA,
held as
follows -
‘
[10]
In
the matter of
Arends
v SALGBC and others
,
I had an
occasion to say the following:
[16]
It
must follow axiomatically that
an individual employee cannot be a
party to a collective agreement
.
A party can either be a
registered trade union or an employer or employer’s
organisation…The issue of who a party is,
is distinct from the
binding nature of the agreement
. Alive to the concept of
stipulatio alteri,
the legislature introduced section
23(1)(c)-(d). Employees can derive benefits from a collective
agreement even if not parties.
To my mind employees only derive
benefits from a collective agreement and are not parties to the
agreement…
[17]
…
I conclude by saying that a non-party cannot refer a dispute in
terms of section 24 of the Act. Since employees are generally
non-parties
but beneficiaries, they cannot in my view refer a dispute
in terms of section 24
.
[11]
The
matter of Arends was taken on appeal. On appeal, the LAC did not
upset the above finding. By necessary implication, the findings
were
approved by the LAC. It must therefore follow that Du Preez had no
locus standi
to refer a dispute to the Bargaining Council.
Also, the third respondent had no jurisdiction to entertain the
dispute. An award
issued without the necessary jurisdiction is a
nullity. On this basis alone, the award is susceptible to review.’
(own emphasis
added)
[59]
I
agree with the above sentiments. It is common cause that the
Respondents were not a party to the collective agreement and
therefore
the Resolution. It therefore stands to reason that
they did not have the
locus
standi
to
refer a section 24 dispute
[13]
and neither did the Arbitrator and the GPSSBC have the jurisdiction
to determine the dispute before it. Because, in my view, the
Award
was issued without the necessary jurisdiction and the Respondents did
not have
locus
standi
as they were not parties to the Resolution, the Award is a nullity
and therefore stands to be reviewed and set aside.
[60]
In
any event, the law in relation to reviews is that such a
misinterpretation and application of a collective agreement
constitutes
a reviewable error. This is a material error of law and
this court can certainly not be expected to uphold such an error. The
Award
is therefore reviewed and set aside.
[61]
It
is my view that it will serve no purpose to remit the matter to the
GPSSBC as it will not promote the effective resolution of
the dispute
between the parties, which is whether or not the Respondents ought to
be included in the OSD.
[62]
Therefore,
in conclusion what the Respondents seek is to be included in the
Resolution so that they can benefit in terms of it.
However, the
manner in which they are attempting to do so is not legally competent
as it is tantamount to gate crashing their way
into a collective
agreement that they are not parties to and/or bound by.
[63]
The
most sensible approach is for the Applicant and Respondent to meet
and carve out their own bilateral dispensation, outside the
Resolution, but on terms similar to the Resolution. This should, in
my view, effectively resolve the dispute between the parties.
Section
158(1)(c) application
[64]
Having
granted the review application, there is thus no need for this court
to consider the section 158(1)(c) application.
Costs
[65]
I
now turn to deal with the issue of costs. Section 162 of the LRA
gives me the discretion to make an order of costs subject to
the
requirements of law and fairness.
[66]
I
am of the view that law and fairness dictate a cost order is not
warranted in this matter. This matter has travelled far to come
to
this point. The Applicant, which is ultimately successful in the
matter, also did not conduct itself fittingly in proceeding
with the
present matter in that they failed to comply with the order of this
court per Le Grange J. The non-compliance was however
not
unreasonable in light of the conflicting judgments regarding the
status of the order dismissing as opposed to striking off
the matter.
It would be wholly unfair that the Applicant be mulcted with the
costs of this matter. Similarly, it will be unfair
for the
Respondents to be saddled with a cost order in circumstances where
they are unable to benefit from the Resolution like
other from other
employees who are covered by the Resolution.
[67]
Accordingly,
the following is ordered –
Order
1.
The
late filing of the rescission application is condoned;
2.
The
rescission application is granted and the order of Van Niekerk J is
rescinded;
3.
The
application to review and set aside the award made by the twelfth
respondent acting under the auspices of the thirteenth respondent
is
granted;
4.
There
is no order as to cost.
B
Sono
Acting
Judge of the Labour Court South Africa
Appearances:
For
the Applicant: Adv DT Skosana SC with Adv M Kgatla
Instructed
by: State
Attorney
For
the Respondent: D S Mpanza
[1]
In
this Judgement Respondents means the
First
to Eleventh Respondents together with Fourteenth and Fifteenth
Respondents.
[2]
In
HOSPERSA
obo Tshambi v Department of Health, KwaZulu-Natal
[2016] ZALAC 10
; (2016) 37 ILJ 1839 (LAC)
the
Labour Appeal Court stated the following:
‘
[17]
What then, can possibly be the dispute about the application of the
collective agreement?
…
[25]
In my view, the phrase “interpretation or application”
are not disjunctive terms,
and ought to be read as being related;
i.e.,
disputes about what the agreement means and what it is
applicable to
.’ (own emphasis)
[3]
The
GPSSBC was "
directed
to report the decision emanating from the sitting referred to in
paragraph 2 [of the relevant order]"
wherein the court ordered that "[
t]he
parties… are directed to sit at the Bargaining Chamber of the
thirteenth respondent with a view to discuss, consider
and decide
the inclusion of the [Respondents] in the collective agreement
(GPSSBC Resolution 1 of 2008)
".
[4]
[2013]
ZALCJHB 142 at para 11.
[5]
See
Brummer
v Gorfil Brother Investments (Pty) Ltd
and
Others
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
Steenkamp
and Others v Edcon Limited
[2019] ZACC 17; [2019] 11 BLLR 1189 (CC).
[6]
Act
66 of 1995, as amended.
[7]
See
Steenkamp
and Others v Edcon Limited
Limited
[2019] ZACC 17
;
[2019] 11 BLLR 1189
(CC) at paras 38 – 41.
[8]
GN
1665 of 14 October 1996: Rules for the conduct of proceedings in the
Labour Court.
[9]
Practice
Manual of the Labour Court of South Africa, effective 1 April 2013.
[10]
[2022]
ZALAC 9; (2022) 43 ILJ 1618 (LAC) at paras 21-24.
[11]
Herbert
v Head of Education: Western Cape Education Department and Others
[2022]
ZALAC 9
; (2002) 43 ILJ 1618 at para 16.
[12]
[2019]
ZALCPE 3.
[13]
See
section 24 of the LRA which deals with "
Disputes
about collective agreements" and provides that -
(1)
Every collective agreement excluding an agency shop agreement
concluded in terms
of section 25 or a closed shop agreement
concluded in terms of section 26 or a settlement agreement
contemplated in either section
142A or 158(1)(c), must provide for a
procedure to resolve any dispute about the interpretation or
application of the collective
agreement. The procedure must first
require the parties to attempt to resolve the dispute through
conciliation and, if the dispute
remains unresolved, to resolve it
through arbitration.
(2)
If there is a dispute about the interpretation or application of a
collective agreement,
any party to the dispute
may refer the
dispute in writing to the Commission if—
(a)
the collective agreement does not provide for a procedure as
required by subsection
(1);
(b)
the procedure provided for in the collective agreement is not
operative; or
(c)
any party to the collective agreement has frustrated the resolution
of the dispute
in terms of the collective agreement.
(3)
The party who refers the dispute to the Commission must satisfy it
that a copy of
the referral has been served on all the other parties
to the dispute.
(4)
The Commission must attempt to resolve the dispute through
conciliation.
(7)
Any person bound by an arbitration award about the interpretation or
application
of section 25(3)(c) and (d) or section 26(3)(d) may
appeal against that award to the Labour Court.