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[2012] ZALAC 3
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National Commissioner of the South African Police Service and Another v Mfeketo (PA 02/10) [2012] ZALAC 3; [2012] 7 BLLR 682 (LAC); (2012) 33 ILJ 1412 (LAC) (28 February 2012)
7
IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
HELD AT PORT ELIZABETH
Reportable
Case No: PA 02/10
In the matter between:
NATIONAL COMMISSIONER, SAPS
…................................................
First
Appellant
PROVINCIAL COMMISSIONER, SAPS
….......................................
Second
Appellant
and
MBULELO EMMANUEL MFEKETO
…......................................................
Respondent
Heard : 17 May 2011
Delivered: 28 February 2012
Summary : Labour Law –
transitional provisions of the
Labour Relations Act no 66 of 1995
–
dispute arose before establishment of the Labour Court and bargaining
council having jurisdiction – not prosecuted
in terms of 1956
procedures – CCMA lacked jurisdiction as well as Labour Court –
appeal dismissed.
JUDGMENT
___________________________________________________________________
MLAMBO JP and MOCUMIE AJA
[1] This is an
appeal against the judgment of the Labour Court (Mthembu AJ) leave
having been granted by this Court. The matter
has a long history
dating back to 1995 and I sketch this in what follows. As I will
demonstrate, the matter should have been laid
to rest very early in
its journey through the dispute resolution institutions and the
Labour Court.
[2] The
respondent whilst in exile was a member of the African National
Congress (ANC) armed wing UMkhonto Wesizwe (Umkhonto). Upon
the
attainment of democracy, some members of Umkhonto, including
respondent, were integrated into the South African Police Service
(SAPS) in 1996. It is common cause that his colleagues, who, like him
held the rank of Lieutenant in Umkhonto, were appointed as
Commissioned Officers in SAPS. The respondent however, was appointed
to the rank of Sergeant in the VIP Unit, Bisho during July
1996. This
was after a criminal case that was pending against him was disposed
of. It appears that even though the disparity in
their appointments
in SAPS was a concern to the respondent, he started making enquiries
only in August 1998, alleging that he was
being discriminated
against.
[3]
On 25 January 1999, in response to his persistent enquiries about the
matter, he was advised that his appeal could not be considered
due to
insufficient documents. He was also advised that the Appeals
Committee which would have entertained his matter was at that
time no
longer in existence and that he was to follow the procedures
prescribed for the lodging of grievances and for applications
for
promotion. This is the same communication that was directed to the
respondent in December 2000 in response to his further enquiries
about his appointment. He continued with the enquiries until he was
notified on 11 December 2001 by the second appellant confirming
the
rank he was placed in initially. In January 2002, he lodged a
grievance regarding what he termed his non promotion. He subsequently
referred a dispute to the Safety and Security Bargaining Council
(SSBC) in East London which is the institution responsible for
the
resolution of disputes within the safety and security forces in terms
of the
Labour Relations Act (LRA
)
1
.
He characterised his dispute as a failure to promote him when his
colleagues were promoted. It is unclear on what date the referral
was
made.
[4]
It appears that, upon receipt of the dispute referral, the SSBC
scheduled an
in
limine
hearing
on 28 March 2002 to determine if it had the necessary jurisdiction to
entertain the dispute. That did not take place and
arguments were
made that the parties file representations on 3 and 10 April 2002
respectively. The Commissioner
2
appointed
to determine the
in
limine
point
issued
an award on 8 may 2002. She found that the SSBC lacked the necessary
jurisdiction to entertain the dispute. She reasoned
that the dispute
arose on 25 July 1996, when the respondent was appointed to the rank
of Sergeant. In view of this, the Commissioner
found that as the SSBC
had not been established at that time it lacked the necessary
jurisdiction. This should have been the end
of the matter as the
award was neither taken on review nor set aside.
[5] Respondent
however took further action. On 22 May 2002, he referred the same
dispute to the Commission for Conciliation Mediation
and Arbitration
(CCMA) but the dispute remained unresolved and an outcome certificate
to that effect was issued on 28 June 2002.
The respondent then
referred his case to the Labour Court for an order directing the
appellants to enlist him as a Captain, amongst
others. On 18 October
2002, the Labour Court (Ngcamu AJ) granted the following order in the
absence of the appellants:
‘
1.
The respondents are ordered to show cause on 01/11/2002 why an order
should not be made in the following terms:
The
applicant was discriminated against in not being enlisted as a
Captain.
The
applicant should not be given a rank of a Senior Superintendent.
The
order should be served on both Respondents by hand or registered
post. ‘
[6] On 31
October 2002, the appellants filed an answering affidavit in
opposition to the confirmation of the aforesaid
rule nisi
. The
matter came before Pakade AJ on 2 March 2004
.
He postponed it
‘to a date still to be arranged with the Registrar.’ For
the next seven years, none of the parties
took any action to
prosecute the matter. On 19 May 2009, the matter came before Mthembu
AJ for hearing and on that day, Mthembu
AJ made an order, per
agreement between the parties, in the following terms:
‘
1.
The matter is postponed sine die.
2.
The respondents are ordered to apply for rescission of the order made
by Mr Acting Justice Ngcamu in October 2002.’
[7] It is not
clear if Mthembu AJ prepared a reasoned judgment as none was included
in the record. It is this order that is on appeal
before us. The
appellants argue that the court
a quo
erred in granting the
order; that the learned judge was misdirected in ordering that the
appellants should bring an application
for rescission within 30 days
against the order of Ngcamu AJ; and that he erred by ordering that
the matter be postponed and the
appellants pay the costs of the
proceedings. The basis of the appeal in essence is that the Labour
Court did not have jurisdiction
to deal with the matter.
[8] That is the
issue we have to unravel. The SSBC reasoned as pointed out earlier
that the dispute arose on 25 July 1996 and that
as a result, it had
no jurisdiction to entertain the dispute. The respondent then went
next door, so to speak, to the CCMA, referring
the same dispute. That
referral is not in the record before us and as such, we are unaware
as to when, in that referral, the respondent
alleges the dispute
arose. He however used the dispute resolution procedures contained in
the LRA. Based on the reasoning of the
SSBC, Commissioner took the
view that the dispute arose in July 1996, we must consider the matter
in terms of the transitional
provisions of the LRA.
[9] Schedule 7
Part E of the LRA provides:
‘
21
.
Disputes
arising before commencement of this Act
Any
dispute contemplated in the labour relations laws that arose before
the commencement of this Act must be dealt with as if
those laws had
not been repealed
.’
Clearly
therefore, on the basis of the SSBC
in limine
ruling, the
matter fell to be handled in terms of the pre 1996 LRA regime.
[10] The act
applicable before the current regime is the Labour Relations Act 28
of 1956 (The 1956 LRA). In terms of that Act, disputes
regarding
unfair labour practices had to be referred either to an industrial
council having jurisdiction or in the absence of such
a council, an
application for the establishment of a conciliation board had to be
made. This had to happen no later than 180 days
from the date when
the act complained of arose. Section 27 A(1) of that Act provides:
‘
27A
Settlement of Dispute by industrial council
No
dispute shall be referred to an industrial council-
unless,
in the case of a dispute concerning an unfair labour practice, the
reference is made within 180 days from the date on
which the unfair
labour practice has commenced or ceased, as the case may be, or such
later date upon which the parties to the
dispute may agree or which
is fixed by the Director-General, on good cause shown for such late
referral.’
Insofar
as conciliation boards are concerned, the situation is regulated by
Section 35(1)(d).
3
[11] Clearly, in
terms of section 27A (and/or section 35(1)(d)) of the 1956 LRA read
with Schedule 7 of the current LRA, the respondent
should have lodged
his dispute within 180 days from the date of notification of his
non-promotion i.e. 25 July 1996 to an industrial
council having
jurisdiction, in the absence of which he should have applied for the
establishment of a conciliation board. This
did not happen. That
means that the matter should have ended there as no one had
jurisdiction to deal with it afterwards, including
the Labour Court.
It is unclear on what basis the CCMA entertained the matter but on
the record before us, it also had no jurisdiction
over the matter.
The reality is that by the time the respondent lodged his referral
for the first time in 2002 with the SSBC, his
180 days had long
lapsed and he at no stage applied for condonation for that late
referral. My view is based on the SSBC
in limine
award, which
has not been challenged or overturned as pointed out earlier.
[12] Counsel for
the respondent argued that the legislature could not have intended
such dire consequences such as to close the
door in this manner on
litigants such as the respondent to access the court in order to
pursue his claim. He sought an indulgence
to submit further heads of
argument to advance his point that the mere fact that the SSBC did
not have jurisdiction to adjudicate
this matter did not bar the
Labour Court or this Court from hearing the matter. The indulgence
was granted. Counsel has however
not taken the matter any further.
[13] Assuming
that the respondent is correct that the dispute arose on 11 December
2001 when he received confirmation of his rank,
he still has an
insurmountable hurdle. At that time, the SSBC was in existence and it
is the bargaining council that has jurisdiction
over the matter.
Conciliation is a jurisdiction pre-condition for a dispute to be
entertained by the Labour Court in terms of the
LRA. This dispute
failed in the SSBC, which has jurisdiction but went through the CCMA,
which had none. Clearly the Labour Court
on this basis lacked
jurisdiction to deal with the matter. The appeal is clearly a non
starter and it is unfortunate that the matter
has travelled this far.
[14]
The last aspect relates to costs. In considering whether to grant
costs I’m guided by the provisions of section 162(1)
of the LRA
to the effect: ‘(1) The Labour Court may make an order for the
payment of costs, according to the requirements
of law and fairness.’
In terms of
this
section, costs in the Labour Court do not always and automatically
follow the result. (See
Callguard
Security Services (Pty) Ltd v Transport and General Workers Union and
Others,
4
where
the court stated that: ‘costs in this court do not
automatically follow the results because of the provisions of section
162 of the LRA.’
5
I am satisfied
that both parties could have done more within their means to expedite
the finalisation of this matter. Whatever delays
referred to in this
judgment are equally attributable to both parties. In other words it
is only fair that each party bear its
own costs.
[15]
Consequently, I make the following order:
15.1 The appeal
is upheld.
15.2 The order
of the Labour court dated 19 May 2009 is set aside.
15.3 The order
of the Labour court dated 18 October 2002 is set aside and
substituted with the following:
‘
1.
The matter is struck off the roll.
There
is no order as to costs.’
15.4 Each party
to pay their own costs.
____________________________
MLAMBO JP and
MOCUMIE AJA
Sandi AJA concurs in the judgment of
Mlambo JP and Mocumie AJA
APPEARANCES:
FOR THE APPELLANT: Advocate Ngcamane
Instructed by State Attorney, Port
Elizabeth
FOR THE RESPONDENT: Advocate DC Mpofu
Instructed by Mzwai Mqanto &
Associate, Port Elizabeth
1
Act
no. 66 of 1995 as amended.
2
The
Commissioner is Mhlantla NZ, who has since been appointed to the
Eastern Cape High Court and thereafter to the Supreme Court
of
Appeal.
3
‘
No
conciliation board shall be established – (i) unless, in the
case of a dispute concerning unfair labour practice, the
application
is lodged within 180 days from the date on which the unfair labour
practice has commenced or ceased, as the case
may be, or such later
date upon which the parties to the dispute may agree which is fixed
by the Director-General, on food cause
shown for the late lodging of
such application’ LRA Section 35(1)(d).
4
(1997)18
ILJ 380 (LC).See also
SAMWU and Another v SA Local Government
Association
,unreported judgment case number C229/07 and
City
of Cape Town v SAMWU
[2008] ZALC 30
;
[2008] 7 BLLR 618
(LC) also reported as
[2008] JOL 21770
(LC).
5