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[2024] ZALCJHB 169
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Communications Workers Union and Another v Mobile Telephone Networks (Pty) Ltd (JS696/19) [2024] ZALCJHB 169; (2024) 45 ILJ 1831 (LC) (24 April 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
No: JS696/19
In
the matter between:
COMMUNICATIONS
WORKERS’
UNION First
Applicant
NOSIPHO
MAGAZI AND 18
OTHERS Second
Applicant
and
MOBILE
TELEPHONE NETWORKS (PTY)
LTD
Respondent
Heard:
23 April 2024
Delivered:
24 April 2024
This
judgment was handed down electronically by circulation to the parties
and/or the parties’ legal representatives by email.
The date
for hand-down is deemed to be 24 April 2024.
JUDGMENT
MAKHURA,
J
Introduction
[1]
This
is an application in terms of item 16.2 of the Practice Manual of the
Labour Court of South Africa
[1]
(Practice Manual), read with Rule 7 of the Rules for the Conduct of
Proceedings in the Labour Court
[2]
,
for the retrieval of the archived file.
Material
facts
[2]
Following
an agreed facilitated retrenchment process, the second applicants
(individual applicants or employees) were dismissed
by the respondent
with effect from 31 May 2019.
[3]
Aggrieved
by the respondent’s decision, the first applicant, the
Communications Workers Union (CWU) and the employees referred
an
unfair dismissal dispute to this Court on 23 August 2019. The
respondent filed its statement of response on 6 September 2019.
[4]
Despite
the parties conducting a pre-trial conference on 27 November 2019,
the pre-trial minutes were never finalised nor were there
any steps
taken to prosecute the matter for a period of 11 months.
[5]
During
October 2020, further attempts to finalise the pre-trial minutes were
made. On 4 November 2020, the respondent submitted
an amended draft
of the pre-trial minutes to CWU.
[6]
On
18 January 2021, the respondent acknowledged receipt of CWU’s
comments on the draft pre-trial minutes. On 13 May 2021,
the
respondent submitted a further amended pre-trial minutes to CWU. On
the same day, the official of CWU, Booysen Mashego (Mashego),
informed the respondent that he was no longer employed by CWU and
directed the respondent to correspond with Aubrey Tshabalala
(Tshabalala), the CWU President.
[7]
On
17 May 2021, Mashego forwarded a copy of the email he sent to the
respondent on 13 May 2021 to Tshabalala and Nosipho Magazi,
one of
the individual applicants in this matter. The email attached the
draft pre-trial minutes.
[8]
On
1 April 2022, the applicants’ current attorneys of record
placed themselves on record, after being instructed by CWU in
March
2022. On the same day, the attorneys addressed a letter to the
respondent’s attorneys of record enquiring whether the
pre-trial minutes had been signed, alternatively requesting the
latest version of the draft pre-trial minutes for their client’s
consideration.
[9]
On
12 April 2022, the respondent’s attorneys responded to the
applicants’ attorneys’ letter. They recorded that
the
last action by the applicants in this matter was on 23 August 2021
and that the file is therefore archived in terms of item
16 of the
Practice Manual. The applicants then brought these proceedings.
Evaluation
[10]
It
is now well-established that an application for retrieval of the file
is effectively an application for condonation.
[3]
The provisions of the Practice Manual are binding.
[4]
The legal principle applicable to condonation applications is trite –
condonation should be granted if it is in the interest
of justice and
refused if it is not.
[5]
[11]
Item
16.1 of the Practice Manual provides that the Registrar will archive
the file “
in the case of
referrals in terms of Rule 6 when a period of six months has elapsed
from the date of delivery of a statement of
case without any steps
taken by the referring party from the date on which the statement of
claim was filed, or the date on which
the last process was filed
”.
The
extent of the delay
[12]
The
statement of claim was filed on 23 August 2019. The last process,
which is the statement of response, was filed on 6 September
2019.
The six months period expired on 23 February 2020 or 6 March 2020.
The next process filed was the application for retrieval
on 20 May
2022. The delay is 27 months.
[13]
The
applicants contend that the delay is not exorbitant and that it has
provided a reasonable and acceptable explanation for it.
How the
applicants argue that the 27-month delay is not exorbitant is beyond
comprehension. This period of delay is excessive.
The
explanation for the delay
[14]
The
explanation for the delay is based on (1) the Covid-19 pandemic, (2)
the reduction of employees and officials within the CWU
and (3) the
internal procedures.
[15]
The
applicants’ explanation is as follows:
‘
On
or about 27 November 2019, the parties duly held a pre-trial
conference and it was agreed that the pre-trial minute would be
completed and signed thereafter, via correspondence between the
parties. Regrettably, despite the parties exchanging several items
of
correspondence in relation to the pre-trial minute and due to several
disputes regarding same, the pre-trial minute was never
finalised or
signed by the parties.’
[16]
The
applicants then attempt to provide specific details of their
explanation. They continue:
‘
With
regard to 2020, the CWU was negatively affected by the advent of the
Covid-19 global pandemic. The CWU was forced to reduce
its workforce
and, ultimately, it lost several staff members, including Booysen
Mashego who was handling this matter.
Therefore,
in truth, the Covid-19 pandemic derailed the CWU and, consequently,
this matter along with other matters handled by CWU.
During
2020 and the early part of 2021, the CWU then sought to hire new
employees to replace the former ones (including Booysen
Mashego), in
order to have competent and qualified personnel to handle this
matter, along with other employment matters.
Unfortunately,
this search did not yield any positive of (sic) fruitful results. As
a result, during 2021, the CWU then decided
to rather appoint and
instruct external legal offices to represent the applicants in this
matter and bring it to finality.
The
internal process for CWU to appoint external legal offices (i.e.
attorney firms) is rather cumbersome and prolonged. I explain
this
process below.
The
CWU is required to obtain approval from its head office to brief
external attorneys to proceed with the matter. However, in
order for
CWU to formally instruct external legal representatives to assist, it
is necessary for CWU to obtain a written mandate
for its President to
allow the matter to be transferred to an attorney. In order for the
President of CWU to obtain and provide
this mandate, he must obtain
the Deputy General’s approval for the matter to be transferred
to an attorney. The Deputy General
sits in the CWU’s National
Office and the board only sits on specific date throughout the year.
The
National Office had to convene a special National Executive Committee
meeting in order to consider and approve the request.
Once this
meeting was convened, the Committee had to consider and deliberate on
the matter and ultimately make an informed decision
as to whether or
not the matter should be transferred to an external third-party legal
office.
Eventually,
in the early part of 2022, CWU instructed the office of Eversheds
Sutherland to represent the applicants and continue
with this
matter.’
[17]
The
Covid-19 regulations and lockdown came into effect on 26 March
2020.
[6]
The six months period
had already expired. After the pre-trial meeting held on 27 November
2019, the applicants failed to act on
their matter for the next four
months. Even if I were to consider the Covid-19 pandemic, the
applicants have not pleaded how this
hampered or derailed their
efforts to conclude, sign and file the pre-trial minutes.
[18]
The
applicants then state that in 2020, CWU was forced to reduce its
personnel, including Mashego. Then, again in 2020 and early
2021, it
sought to appoint new employees to fill the vacant positions,
including that of Mashego. In 2021, CWU abandoned its recruitment
process and decided to rather “
appoint
and instruct external legal offices
”
to deal with their matters.
[19]
After
CWU took the decision to appoint and use external legal
practitioners, it then complains that its internal process to appoint
external legal practitioners are cumbersome and prolonged. This
explanation is contrived. The union decided to shed jobs in 2020,
within the same year it decided to recruit to fill the positions left
vacant as a result of its decision and within a year or less,
it
decided to abandon the recruitment process in favour of appointing
external legal practitioners. Such decisions cannot and are
not taken
by some lower structures within the union. Inexplicably, the union,
which already took the decision to appoint external
legal
practitioners, contends that the President must then obtain a written
approval and mandate from the Deputy General Secretary
(DGS), and the
DGS must first convene a special NEC meeting, which must consider and
deliberate on the matter before deciding to
refer it to the external
legal practitioner. No specific dates are attached to any of the
events explained.
[20]
Not
a single period of delay has been reasonably or sufficiently
explained. Even if I were to generously overlook and condone the
period until 13 May 2021, the period from May 2021 to 1 April 2022 is
unexplained or very poorly explained. Therefore, the explanation
for
the delay is non-existent alternatively is unreasonable and
insufficient. The explanation provided on the alleged impact of
Covid-19 regulations, the recruitment of employees and the decision
to appoint an external legal practitioner is woeful, unhelpful
and
unsustainable.
[21]
Ill-discipline
and complacency on the part of the practitioners and their clients
are unacceptable and undermine the purpose of
the LRA to resolve
labour disputes speedily and expeditiously. The employees in this
matter did not provide any explanation on
what they have done to
attempt to have their dispute finally determined. They have either
abandoned the claim or lost interest
in the outcome of the matter.
They cannot therefore complain about any prejudice if they showed no
interest in the finalisation
of the matter. Their personal
circumstances are unknown to this Court.
[22]
I
am unable to find any reason how the interest of justice would be
best served by granting this application and retrieving the
file. The
delay is excessive, the explanation is not only extremely weak but is
contrived and the employees have shown no interest
in the outcome of
the matter. The prospects of success are immaterial, but in any
event, as it will be apparent below, they are
weak. The application
stands to be dismissed.
[23]
Whilst
this application falls to be dismissed on this basis alone, I find it
necessary to comment on the issue raised by the respondent
relating
to the jurisdiction of this Court to entertain the claim. The
prospects of success are dependent on a successful opposition
by the
applicant to the respondent’s jurisdictional point.
Jurisdiction
[24]
The
respondent has raised a point in
limine
that this Court has no jurisdiction to adjudicate this dispute. This
point was pertinently raised in the respondent’s statement
of
response and persisted with in opposition of this application.
[25]
The
point is crisp. The applicants agreed to the facilitation of the
retrenchment process. Therefore, section 189A of the Labour
Relations
Act
[7]
(LRA) applies to the
dispute. Section 189A(7) of the LRA provides that:
‘
(7) If
a facilitator is appointed in terms of subsection (3) or (4), and 60
days have elapsed from the date
on which notice was given in terms of
section 189(3) –
(a)
the
employer may give notice to terminate the contracts of employment in
accordance with section 37(1) of the
Basic
Conditions of Employment Act
; and
(b)
a
registered
trade union
or the
employees
who
have received notice of termination may either –
(i)
give
notice of a
strike
in terms of section 64(1)(b) or (d); or
(ii)
refer
a
dispute
concerning whether there is a fair reason for the
dismissal
to the Labour Court in terms of section 191(11).’
[26]
Section
191(11) of the LRA provides that:
‘
(11)(a) The
referral, in terms of subsection (5)(b), of a
dispute
to the
Labour Court for adjudication, must be made within 90 days after the
council
or (as the case may be) the commissioner has certified
that the
dispute
remains unresolved.’
[27]
Subsection
5(b) provides that if a “
council
or a commissioner has certified that the dispute remains unresolved,
or if 30 days or any further period as agreed between
the parties
have expired since the council or the Commission received the
referral and the dispute remains unresolved
”,
the employee may refer the dispute to this Court.
[28]
The
respondent contends that the applicants were required to refer the
dispute for conciliation, that they failed to do so and therefore
this Court lacks jurisdiction to adjudicate the claim.
[29]
The
applicants have avoided dealing with the issue in reply and in their
heads of argument. However, during the hearing, Mr Anestidis,
appearing on behalf of the applicants, relied on two judgments of
this Court - the
National
Union of Metalworkers of South Africa (NUMSA) obo Members and Others
v Bell Equipment Company SA (Pty) Ltd
[8]
and
NUMSA
and others v Industrial Oleo Chemical Products
[9]
(Industrial Oleo Chemical)
.
Both judgments found that a dismissal dispute pursuant to a
facilitated retrenchment process need not be referred for
conciliation.
They found that employees are entitled to refer the
dispute directly to the Labour Court for adjudication.
[30]
In
Industrial
Oleo Chemical
,
reliance was placed first on the
Facilitation
Regulations
[10]
which provides that “
a
dispute in terms of section 189A(7)(b)(ii) must be referred to the
Labour Court within 90 days of the notice of termination or,
if no
notice is given, within 90 days of the dismissal
”.
[11]
Secondly, the Court relied on the Labour Appeal Court (LAC) decision
in
Edcon
v Steenkamp and others
[12]
where the Court held that:
‘
The
notice given by the employer in terms of section 189A(7)(a) of the
LRA, after the 60-day period allowed for facilitation has
elapsed,
triggers the right of the employees or their representatives to
resort to either strike action in terms of s 189A(7)(b)(i)
of the LRA
or litigation in terms of section 189A(7)(b)(ii) of the LRA. There
are two notable features of the right to strike conferred
by s
189A(7)(b)(i) of the LRA. The first is that the dispute does not have
to be referred to a bargaining council or the CCMA for
conciliation
over a 30-day cooling-off period, as is normally required in terms of
s 64 of the LRA.
Where there has been a facilitation process, it
would be unnecessary duplication to require an additional 30-day
conciliation process
at the end of the 60-day period allowed for
facilitation
– bearing in mind that the parties may agree
to extend the facilitation period in terms of section 189A(2)(c) of
the LRA.
Likewise, the envisioned referral to the Labour Court in
terms of section 191(11) of the LRA does not require a prior referral
to
conciliation…
’ (Own emphasis)
[31]
The
above
dictum
is unambiguous. It is not a precondition for the referral of the
retrenchment dispute pursuant to a facilitation process to be
referred to conciliation.
[32]
However,
the Constitutional Court in
National
Union of Metalworkers of SA v Intervalve (Pty) Ltd and others
[13]
(Intervalve)
,
referring with approval to the majority decision of the LAC in
National
Union of Metalworkers of SA and others v Driveline Technologies (Pty)
Ltd & another
[14]
(Driveline)
,
held that:
‘
[31]
On the point crucial to this case, the majority firmly rejected the
proposition that the Labour Court has
jurisdiction to adjudicate a
dispute not referred to conciliation at all. It said that it was —
'as
clear as daylight that the wording of s 191(5) imposes the referral
of a dismissal dispute to conciliation before such dispute
can either
be arbitrated or referred to the Labour Court for adjudication'.
[32]
The
reasoning of the
Driveline
majority is, in my view, convincing. Section 191(5) stipulates one of
two preconditions before the dispute can be referred to the
Labour
Court for adjudication: there must be a certificate of
non-resolution, or 30 days must have passed.
If
neither condition is fulfilled, the statute provides no avenue
through which the employee may bring the dispute to the Labour
Court
for adjudication
.
As Zondo J shows in his judgment, with which I concur, this
requirement has been deeply rooted in South African labour-law
history
for nearly a century. We should not tamper with it now.’
[15]
[33]
Addressing
the notion that where retrenchment is facilitated, the unfair
dismissal dispute may be referred to the Labour Court without
first
being conciliated, Prinsloo J in
National
Union of Metalworkers of SA on behalf of Members v SAA Technical
(Pty) Ltd
[16]
(SAA
Technical)
,
found this contention meritless. The Court found that the purpose
served by facilitation and conciliation processes are distinct.
The
learned Judge found further that the facilitated retrenchment process
is a pre-dismissal process focused on compliance with
and serving the
requirements of section 189(3) of the LRA, whereas conciliation is a
post dismissal process aimed at resolving
the alleged unfair
dismissal dispute. The Court concluded:
‘
In
short: facilitation and conciliation are two different processes.
Facilitation happens pre-dismissal, as part of the consultation
process with a view to avoid retrenchment and to ensure compliance
with the provisions of s 189(3) of the LRA. When the facilitation
process happens, there exists no dispute, but rather a contemplation
of dismissal based on the employer’s operational
requirements.’
[17]
[34]
Section
189A(7)(b)(ii) of the LRA requires that a substantively unfair
dismissal dispute pursuant to a facilitation process be referred
to
this Court in terms of section 191(11) of the LRA. Section 191(11)(a)
of the LRA states that the referral to this Court of the
dispute in
terms of subsection (5)(b), including dismissal based on operational
requirements without qualification, must be made
within 90 days after
the dispute has been certified unresolved. Subsection 5(b) makes it
clear that an employee may refer a dismissal
dispute based on
operational requirements after either a certificate of non-resolution
issued by the CCMA or bargaining council,
or after 30 days or any
agreed period have elapsed since the referral to the CCMA or
bargaining council was made.
[35]
Driveline
was decided before the promulgation of section 189A of the LRA and
the
Facilitation
Regulations
.
Intervalve
and
SAA
Technical
are silent on the meaning and impact of the
Facilitation
Regulations
.
However, Prinsloo J in SAA Technical considered the meaning of
sections 189A(7) and (8), and 191(11), with reference to the
principles
set out in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[18]
.
She concluded that if the legislature intended to allow direct
referral to the Labour Court of an unfair dismissal dispute following
a facilitation process, they would not have made reference to section
191(11) of the LRA. Put differently, if the legislature intended
to
allow direct referral of unfair dismissal disputes following
facilitated retrenchment process, this would have been expressly
stipulated.
[36]
During
facilitation process, there is no dismissal dispute between the
parties. The focus at that stage is on the provisions of
section
189(3) of the LRA. After the termination notices are issued, the
employees declare a dispute. That dispute had, at that
stage, not
been conciliated. The preconditions for the dispute to be referred to
the Labour Court for adjudication are - a certificate
of
non-resolution must have been issued, or 30 days must have passed
since the dispute was referred to the CCMA or council.
[37]
Considering
the LRA provisions and the
Intervalve
judgment,
it is my view that there is force in Prinsloo J’s judgment. The
provisions dealing with referrals of unfair dismissal
disputes for
operational requirements make no distinction between sections 189 and
189A of the LRA. The
Facilitation
Regulations
cannot triumph over the provisions of the LRA.
[19]
[38]
Accordingly,
condoning the non-compliance, retrieving the file and reinstating a
claim that is likely to be dismissed for lack of
jurisdiction will
serve no purpose and cannot be in the interest of justice.
Costs
[39]
The
parties are
ad idem
that there should be no costs order awarded against each other. I
agree.
[40]
In
the premises, the following order is made:
Order
1.
The
application is dismissed.
2.
There
is no order as to costs.
M.
Makhura
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants:
Mr. T. Anestidis of Eversheds Sutherland (SA)
Inc.
For
the Respondent : Adv. Z.
Ngwenya
Instructed
by :
Webber Wentzel
[1]
Practice Manual of the Labour Court of South Africa, effective 2
April 2013.
[2]
GN 1665 of 14 October 1996: Rules for the conduct of proceedings in
the Labour Court.
[3]
Samuels
v Old Mutual Bank
(2017)
38 ILJ 1790 (LAC);
[2017] 7 BLLR 681
(LAC) at para 17.
[4]
Ibid
at
para 15.
[5]
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531 (A); [1962] 4 All SA 442 (A) at 532;
NUM
v Council for Mineral Technology
[1999] 3 BLLR 209 (LAC); (1998) 3 LLD 448 (LAC) at 211;
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
2000 (2) SA 837 (CC); 2000 (5) BCLR 465 (CC) at para 3, where the
Constitutional Court held that the interest of justice must
be
determined by reference to all relevant factors, including the
“
nature
of relief sought, the extent and cause of the delay, the nature and
cause of any other defect in respect of which condonation
is sought,
the effect of the administration of justice, prejudice and the
reasonableness of the applicant’s explanation
for the delay or
defect.”; Grootboom v National Prosecuting Authority and
another
(2014)
35 ILJ 121 (CC); [2014] 1 BLLR 1 (CC).
[6]
These Directions are issued in terms of
section 27(2)
of the
Disaster Management Act, 2002
following the Declaration of a
National State of Disaster and published in Government Gazette No.
43096 on 15 March 2020 and
must be read together with the COVID-19
Regulations published under Government Notice No.318 on 18 March
2020, and COVID-19 Regulations
on the 21-day lockdown period
published on 25 March 2020.
[7]
Act 66 of 1995, as amended.
[8]
[2010] ZALC 27
at paras 24 – 27.
[9]
[2022]
JOL 56702
(LC); [2022] ZALCD 14.
[10]
Regulations for the Conduct of Facilitations in terms of Section
189A, GNR. 1445 of 10 October 2003: Facilitation regulations.
[11]
Item 9 of the Facilitation Regulations.
[12]
(2015) 36 ILJ 1469 (LAC);
[2015] 6 BLLR 549
(LAC) at para 15.
[13]
(2015)
36 ILJ 363 (CC); 2015 (2) BCLR 182 (CC).
[14]
2000
(4) SA 645
(LAC); (2000) 21 ILJ 142 (LAC).
[15]
Ibid
at paras 31 - 32.
[16]
(2023) 44 ILJ 2000 (LC); [2023] ZALCJHB 154.
[17]
Ibid
at para 50.
[18]
2012 (4) SA 593
(SCA) at para 26.
[19]
Section 210 of the LRA.