MEC of the Department of Education, Eastern Cape v Gqebe (PA6/06) [2009] ZALAC 2; [2009] 9 BLLR 896 (LAC); (2009) 30 ILJ 2388 (LAC) (8 May 2009)

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[2009] ZALAC 2
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MEC of the Department of Education, Eastern Cape v Gqebe (PA6/06) [2009] ZALAC 2; [2009] 9 BLLR 896 (LAC); (2009) 30 ILJ 2388 (LAC) (8 May 2009)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE NO.: PA6/06
THE
MEMBER OF THE EXECUTIVE COUNCIL
Appellant
OF
THE DEPARTMENT OF EDUCATION,
EASTERN
CAPE PROVINCE
and
NATASHA
GQEBE
Respondent
J U D G M E N T
Khampepe
ADJP:
INTRODUCTION
[1] This an appeal against the
judgment and order of the Labour Court in terms of which that court
set aside the arbitration award
issued by the arbitrator in the
Education Labour Relations Council.
[2] The Respondent had applied to the
Labour Court for an order that the arbitration award be made an order
of court in terms of
section 158(1) (c) of the Labour Relations Act
and also prayed for further and or alternative relief.
[3] Section 158(1)(c) of the LRA
confers upon the Labour Court the power to make an arbitration award
an order of court. The pivotal
issue raised in the appeal relates to
whether it was competent for the Labour Court to set aside the
arbitration award in circumstances
where it was not sought or
canvassed by the parties and the arbitrator and the Council as
interested parties were not joined as
parties to the proceedings
before the Labour Court.
FACTUAL BACKGROUND
[4] The respondent to whom I
shall refer by her surname, “Gqebe”, is a high school teacher at
Khutliso Secondary School.
She teaches Grade 12 learners. She is
employed as such by the appellant. The appellant is the political
head and executive head
of the department responsible for the acts
and omissions of all functionaries employed by the department.
[5] During the year 2000, Gqebe
was bitten by a dog and was pursuant thereto unable to perform her
teaching functions for
almost two academic years. As a result of her
prolonged absence, Grade 12 learners were without a teacher for
almost the entire
academic year in 2002. Ineluctably, her prolonged
absence caused substantial prejudice not only to the learners but to
the department
itself. Not unexpected and quite commendable, the
school’s governing board lodged a complaint with the authorities
against Gqebe’s
prolonged absent. Following those complaints,
several delegations led by the principal made numerous attempts to
ascertain the
whereabouts of Gqebe without success.
[6]
Section 14
of the
Employment of
Educators Act 76 of 1998
provides that:
“
14.
Certain educators deemed to be discharged
(1) An
educator appointed in a permanent capacity who –
(a) is
absent from work for a period exceeding 14 consecutive days without
permission of the employer;
(b) while
the educator is absent from work without permission of the employer,
assumes employment in another position;
(c) while
suspended from duty, resigns or without permission of the employer
assumes employment in another position; or
(d) while
disciplinary steps taken against the educator have not yet been
disposed of, resigns or without permission of the employer
assumes
employment in another position,
shall,
unless the employer directs otherwise, be deemed to have been
discharged from service on account of misconduct, in the

circumstances where –
(i) paragraph
(a) or (b) is applicable, with effect from the day following
immediately after the last day on which the educator
was present at
work; or
(ii) paragraph
(c) or (d) is applicable, with effect from the day on which the
educator resigns or assumes employment in another
position, as the
case may be.
(2) If
an educator who is deemed to have been discharged under paragraph (a)
or (b) of subsection (1) at any time reports for duty,
the employer
may, on good cause shown and notwithstanding anything to the contrary
contained in this Act, approve the re-instatement
of the educator in
the educator’s former post or in any other post on such conditions
relating to the period of the educator’s
absence from duty or
otherwise as the employer may determine.
[7] Following her injury Gqebe
submitted leave forms and medical certificates to the school covering
the period of her absence
from 2000 until 30 October 2002.
[8] During 1-15 November 2002,
Gqebe furtively changed the procedure for the submission of her leave
forms and medical certificate
ostensibly because she was aggrieved by
the fact the school principal had caused a letter to be written and
delivered to her in
which she was informed that unless reasons were
furnished for her absence, her services would be terminated in terms
of Section
14 (1) (a) of the Employment Educators Act.
[9] During January 2003 Gqebe was
subsequently dismissed in terms of section 14(1) of the relevant Act.
The basis of her dismissal
was that she had failed to submit leave
forms for the period covering November 2002 until the date of her
dismissal in January
2003.
[10] She was not satisfied with her
dismissal and referred the dispute for arbitration at the Labour
Bargaining Council. The
arbitrator found her dismissal to have been
substantively unfair but procedurally fair. In this regard the
arbitrator held that:
“
The
applicant has been the architect of her own misfortune in this
dispute. Up to a point she followed the correct procedure in

submitting her sick leave application and the necessary supporting
documentation. Thereafter she only submitted leave applications
after
protracted efforts by Mcuba-he should be commended for the patience
he exhibited. On the last occasion the applicant only
submitted her
forms after receiving the letter of intended termination from the
department. The applicant’s actions caused major
inconvenience to
the ability learners to receive proper preparations for examinations.
Further, substitute teachers have also been
severely inconvenienced.
The
applicant has not demonstrated that she is fit to resume her duties
at Khutliso Daniels Secondary School. In response to a question
from
the arbitration the applicant stated that she is currently still
under treatment. She will have to submit documentary evidence
to
substantiate any claim of fitness to resume duty
.”
[11] In the result the arbitrator made
an award in terms of which:
11.1 The dismissal of Ms Gqebe was
found to be substantially unfair.
11.2 The department was ordered to
reinstate her with non-retrospective effect from 1
st
January 2004.
11.3 The reinstatement was subject to
Ms Gqebe submitting medical proof that she is fit to resume her
teaching duties. In the event
of Ms Gqebe not being fit for duty her
services were to be terminated for reasons of medical incapacity.
Ms Gqebe was to report for duty at
Khutliso Daniels Secondary School on 19
th
January 2004.
Proceedings at the Labour Court
[12] Gqebe launched an application
in the Labour Court for an order that the award should be made an
order of court in terms of
section 158(1) (c) of the Labour Relations
Act and for further or alternative relief.
[13] The application was not served
on the arbitrator or the Bargaining Council nor were these entities
made parties to the proceedings.
It is quite evident on the mere
reading of the application that the basis, upon which the order was
sought, was that the Department
had allegedly refused to pay her
salary in compliance with the award. The appellant was therefore
alleged to have failed to comply
with the terms of the award, and in
making it an order of court the respondent would be able to enforce
the terms thereof. That
application was opposed by the appellant.
Nature of the application
[14] It is common cause that the only
order sought by the respondent at the Labour Court was that the award
should be made an order
of court. In her founding papers Gqebe
categorically stated that she was unable to comply with the terms of
the order in that she
was unable to resume her teaching duties on
medical grounds: in support of her alleged medical incapacity, she
relied upon the
medical report compiled by Dr Ngam which cryptically
stated that:
“
I
Dr Z Ngam feel that she is not fit to go back to work
.”
[15] The Labour Court found that as
Gqebe was not fit to resume her duties, she had not complied with the
terms of the award by
the arbitrator. Her application to make the
award an order of court was accordingly refused. The findings of the
court are in my
view cogent and the concomitant order made in this
regard cannot be faulted.
[16] Having refused the application
before it, the Labour Court proceeded to further find that the
arbitrator had exceeded her
powers when he gave direction relating to
the process to be followed in the event of the respondent not being
able to resume her
duties on account of medical incapacity. In this
regard it found that:
“
The
commissioner sought, through the award to create an exit mechanism
for the applicant in the event she would not be medically
fit. In my
mind the commissioner had for a moment lost sight of the fact the
applicant as she stood in front of him was no longer
an educator and
therefore no exit mechanism needed to be created for her. To say in
the event of applicant being fit for duty,
her services should be
terminated for reasons of medical incapacity, was clearly beyond the
powers given to the commissioner
.
”
[17] Following this finding, the
Labour Court set aside the award and remitted the matter to the
arbitrator for reconsideration.
As authority for its powers to grant
the aforementioned relief, the court
a
quo
placed reliance
firstly, on the prayer for alternative relief cited in Gqebe’s
notice of motion, secondly, the case of
Mzulwini
v Fidelity Cleaning
2000
(21) ILJ 1382, thirdly, on section 158(i)(a)(iii) of the Act.
[18] Arising from these findings, the
pivotal issues for determination in this appeal is whether it was
competent for the Labour
Court to set aside the award where an
application was made in terms of section 158(1)(c). Mr Kroon who
appeared on behalf of the
appellant submitted that it was
impermissible for the Labour Court to do so because there was no
prayer for the setting aside of
the order and no basis was laid in
the applicant’s papers for an order setting aside the award. He
further contended that the
Labour Court was enjoined to afford the
interested parties (namely the arbitrator and the Bargaining Council)
an opportunity to
be heard prior to making an order since they were
not joined as parties to the proceedings as they should have been.
[19] As correctly argued by Mr Kroon,
the reinstatement order was conditional upon Gqebe submitting medical
proof that she was
fit to resume her duties.
[20] What loomed large at the Labour
Court was the interpretation to be accorded to the words “
subject
to”
as alluded to in the award. The appellant’s argument at the Labour
Court in this regard, was that since Gqebe was not fit to
resume her
duties, she had not complied with the terms of the award.
[21] The appellant’s argument
appears to have prevailed before the Labour Court. That it did is
evident from the terms of the
order it gave in this regard.
“
1.
The reinstatement of the Applicant was conditional.
2.
She is the agent upon whom the activation of the condition depends.
3.
She had to submit a medical certificate as proof of her fitness to
‘resume her duties’.
4.
She had to report for duty.
”
[22] In my view the findings of the
court
a quo
in this regard cannot be faulted. This is so because Qgebe was on her
version, still medically unfit to resume her duties and was
therefore
unable to produce the requisite medical proof of her fitness to
resume duties in terms of the award.
[23] Having refused the application,
the Labour Court, inexplicably, proceeded to set aside the award.
[24] As stated herein above, Mr
Kroon has submitted, quite correctly so in my view, that the setting
aside of the award was
neither sought nor on Gqebe’s own version,
arose for consideration at all.
[25] In
Kauesa
v Minister of Home Affairs and Others
1996 (4) SA 965
, referred with approval in
Groenewald
NO and Another v Swanepoel
2002 (6) SA 724
(ECD), the court took a dim view on the practice
which is often adopted by judicial officers of relying for their
decisions, on
matters not canvassed in papers or in argument for
their decisions. In Kauesa at 973I-974A the court said:
“
It
would be wrong for judicial officers to rely for their decision on
matters not put before them by litigants either in evidence
or in
oral or written submissions. Now and again a Judge comes across a
point not argued before him by counsel but which he thinks
material
to the resolution of the case. It is his duty in such a circumstance
to inform counsel on both sides and to invite them
to submit
arguments either for or against the Judge’s point. It is
undesirable for a Court to deliver a judgment with a substantial

portion containing issues never canvassed or relied on by counsel.
”
[26] In granting this relief, the
Labour Court relied on Gqebe’s prayer in his Notice of Motion for
“
such further and/or
alternative relief as this court may seem meet
”
I hereunder deal in
seriatim
with the submissions made on behalf of the appellant.
Setting aside not sought by
Gqebe / Alternative Relief
[27] The principles relating to the
granting of alternative or further relief are cogently and
authoritatively enunciated in
Queensland
Insurance Co Ltd v Banque Commerciale Africaine Co Ltd
(1946 AD 272
at 286) as follows:
“It
is unnecessary to consider whether the practice of including such a
prayer is derived from the Roman-Dutch or the English
practice. In
the Roman Dutch practice, according Van Leeuwen (R.D.L 5.15.8), this
prayer (the so-called clausule saluitare asking
for such other relief
as the court may deem best for the plaintiff) is of such effect that
every right, to which the plaintiff
may in anyway be entitled upon
the allegations in his claim, is thereby considered to be included in
a prayer. See also Voet 2.13.13)and
Van der Linden,Jud
Pract(2.3.7,Vol 1,p 147). The effect of the prayer for such further
or other relief as the nature of of the
case might require in the
English practice seems to be the same. See Cargil v Bower (10
ch.D.502, at p.508) in which FRY,LJ ..pointed
out that the prayer for
alternative relief is limited by the statement of fact in the
declaration and by the terms of the express
claim, and that a
plaintiff cannot get, under the prayer for alternatief relief,
anything that is inconsistent with those two things”
See also
Tsosane
v Minister of Prisons and Others
1982 (2) SA 55
( C ) at 63,
where the courted stated:
“
Relief
may be granted under this prayer where what is sought is not
consistent with the substantive relief claimed and where further
the
basis for such relief has been laid in the supporting papers and
dealt with in the answer of the respondent
.”
[28] In
Mgoqi
v City of Cape Town and Another
2006 (4) SA 355
(C),
the principles are broadly stated in
similar terms. In
Port
Nolloth Municipality v Xhalisa
1991 (3) SA 98
(C) at 112C-E it was held that:
“
Finally,
there remains the question of Municipality’s right to an order in
the limited form as sought by Mr Barnard on its behalf
by way of the
prayer for ‘further and/or alternative relief’. Such a prayer
can be invoked to justify or entitle a party to
an order in terms
other than that set out in the notice of motion (or summons or
declaration) where that order is clearly indicated
in the founding
(and other) affidavits (or in the pleadings) and is established by
satisfactory evidence on the papers (or is given),
cf
Trustees
of the Orange River Land and Asbestos Co v King and Others
6 HCG 260 at 296-297. Relief under this prayer cannot be granted
which is substantially different to that specifically claimed,
unless
the basis therefor has been fully canvassed, viz the party against
whom such relief is to be granted has been fully apprised
that relief
in this particular form is being sought and has had the fullest
opportunity of dealing with the claim for relief being
pressed under
the head of ‘further and/or alternative relief
.”
[29]
What is crystal clear from the cited authorities is that
alternative relief will not be granted where:
29.1 No basis has been laid for such a
relief in the supporting papers.
29.2 The order granted is inconsistent
with the substantive relief claimed.
[30] It is indubitable that Gqebe’s
substantive relief was for the award to be made an order of court.
She therefore in her
papers only set out in detail the basis for her
relief in that regard. In doing so, she inevitably accepted in her
papers that
the terms of the award were valid. There is no shred of
evidence on the founding papers of Qgebe which seeks to lay a basis
for
any other relief or the kind that the Labour Court granted.
Moreover there was no suggestion what so ever in her papers that the

arbitrator had exceeded his powers or acted improperly when making
the award.
[31] Furthermore, no allegation was
made in the papers that the order was reviewable or bad in law, nor
was there any factual basis
laid either directly or obliquely in this
regard. The Labour Court simply went on a frolic of its own when
setting aside the award
and by so doing, misdirected itself.
[32] The case of
Mzulwini
relied upon by the Labour Court as authority for the setting aside of
the award is inimical to the decision taken by the Labour
Court. In
that matter, Wallus J only held that if the arbitrator fails to
formulate an order properly this could lead to material
inconvenience
to a party in whose favour the award was made and any application to
enforce that award accordingly fell to be dismissed.
I am persuaded
by Mr Kroon’s submission that in this case the Labour Court should
have followed the same approach adopted by
Wallus J by merely
dismissing the application of Gqebe.
Failure
to join interested parties to the proceedings
[33] It is settled law that where a
person or entity has a direct and substantial interest in the outcome
of the proceedings such
a person and/or entity should be joined in
the proceedings (
Public
Service Association v Department v of Justice
2004 (2) BLLR 118
(LAC). In review applications, it is necessary to
cite the arbitrator and/or CCMA or the relevant Bargaining Council.
(
Cf
Dlala v Commissioner for
CCMA and another
[1999] 7
BLLR 670
(LC) at para [19];
Johnson
v CCMA & Others
[2005]
8 BLLR 796
(LC) at para [6];
Duda
v MEC for Gauteng Department of Education & Others
(2001) 22 ILJ 1637 (LC) at para [23];
De
Beers Consolidated Mines Ltd v CCMA & Others
[2009] 9 BLLR 995
(LAC) at para [15]; see also
Cloete
v Evander Gold Mines Ltd
[2001] 4 BLLR 433
(LC) at para [36].
[34]
In casu
the Labour Court should have afforded both the arbitrator and the
relevant Bargaining Council an opportunity to make representations
on
the issue relating to whether the award fell to be set aside or not.
[35] Given that the Labour Court
found that the reinstatement of Gqebe was conditional, on that
finding alone it ought to have
dismissed the application.
[36]
In the premises I make the following order:
1.
The appeal is upheld.
2. The order of the Labour Court
setting aside the award is hereby set aside and is substituted with
the following:
“
The
application is dismissed. There is no order as to costs
.
”
Considerations of law and equity
do not permit that the order of costs should be granted. There is
therefore no order as to
costs.
____________________________
S S V KHAMPEPE ADJP
I
agree:
____________________________
S PATEL JA
I
agree:
____________________________
P
TLATETSI AJA
COUNSEL
FOR APPELLANT ADV P N KROON SC
ADV
E SKEPE
INSTRUCTED
BY STATE ATTORNEY
COUNSEL
FOR RESPONDENT No appearance
INSTRUCTED
BY RANDELL-OSWALD INC
DATE
OF JUDGMENT 8 May 2009