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[2014] ZALAC 17
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Khipha v Minister of Home Affairs And Others (JA 37/2013) [2014] ZALAC 17 (27 March 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case no: JA 37/2013
In the appeal
between
KHIPHA,
NKAMBULE
PETRUS
.........................................................................................
Appellant
and
MINISTER
OF HOME AFFAIRS AND
OTHERS
..................................................
First
Respondent
DIRECTOR-GENERAL:
DEPARTMENT
OF
HOME
AFFAIRS
.............................................................................................
Second Respondent
Date
of judgment: 27 March 2014
Date
edited: 20 May 2014
CORAM:
DAVIS JA, NDLOVU JA, SUTHERLAND AJA
JUDGMENT
DAVIS, JA
[1]
The background to this case can be sketched
thus. The appellant was employed by the 1
st
respondent as the Chief Financial Officer. He was charged with a
number of acts of misconduct, found guilty and dismissed. The
dismissal was made effective from 31 December 2008. It transpired
that the appellant challenged the fairness of the dismissal and
referred the matter for adjudication in the Labour Court. The Labour
Court ruled that the referral to it was premature and it lacked
jurisdiction. Finally, the matter was referred by the appellant to
the Bargaining Council for conciliation.
[2]
It was at this point that the question of
an application for condonation was raised. The appellant applied for
condonation, and
it was granted. It was against this ruling that the
respondents applied to the Court
a quo
for review thereof.
[3]
I turn to deal with the condonation ruling
of the arbitrator sitting within the framework of the General Public
Service Sectoral
Bargaining Council. The arbitrator noted that the
dispute had arisen, as I have already noted, on 31 December 2008. It
was only
referred to the Bargaining Council on 01 February 2012. The
appellant contended that this application was in effect only four
days
late because the order of the Labour Court with regard to the
question of jurisdiction had only been issued on 9 December 2011.
[4]
The arbitrator then summarised the reasons
that had been given for the late submission of the application by the
appellant. In effect,
the main point was that the delay had been
caused by the matter having been referred to the Labour Court which
found that it had
no jurisdiction to deal with the matter as at
December 2011.
[5]
The arbitrator then summarised, albeit it
briefly, the respondent’s submissions. The respondent had taken
the approach that
the application for referral was more than three
years late, making:
“
The
delay excessive
.”
[6] The respondent
submitted further that the appellants’ reasons which were
proffered for the late application were not acceptable.
Reference was
made to the correspondence generated by the respondent’s
attorneys to the attorneys of the appellant warning
the latter that
the matter could not be dealt with by the Labour Court and that the
only legal course of action open to the appellant
was to refer to the
Bargaining Council, unless the appellant chose to ignore this advice
and only found out how correct it was
when the ruling from the Labour
Court was delivered. According to the respondent, this meant that the
reason for the delay was
placed squarely at the door of the
appellant. There is insufficient justification for the late
application, and accordingly, condonation
should be refused.
[7] The Arbitrator
having summarised this set of arguments, said:
“
I
am baffled by the applicant’s rationale on deciding to refer
his matter to the Labour Court when he could have simply referred
it
to the GPSSBC and saved himself time and money. That being said, I
believe that the applicant has given reasonable explanation
for the
delay.”
[8] Accordingly,
condonation was granted. When the matter was heard before Bhoola J,
she found to the contrary, that the application
for review by the
respondent should succeed. Briefly, her reasons were thus:
“
In
regard to the grounds of review and applying the applicable legal
principles, it is clear that the Arbitrator did have regard
correctly
to the test on review but made a number of contradictory findings.
And therefore, in finding as she did above committed
a gross
irregularity and exceeded her powers. This resulted in an award that
is unreasonable and falls to be set aside.”
[9] Accordingly,
the Court
a quo
found in favour of the respondent, namely that
condonation had to be refused, although no costs were awarded .
[10]
On appeal, the respondents relied to a considerable extent on the
decision in
Metz
Transport
(
Pty
)
Ltd
v
Furniture
Bedding and Upholstery Industry Bargaining Council Greater Northern
Regions
and
Others
[1]
,
where Jammy AJ held:
“
Whilst
it is correct that the granting of condonation and the issue of the
non-resolution certificate by the 4
th
respondent occurred in the course of the dispute resolution procedure
invoked by the third respondent and may, in the strict sense
be
defined as interlocutory, it seems to me that this is a semantic
issue rather than a pragmatic one. The fourth respondent’s
finding determined the entitlement of the third respondent to pursue
the process. Had condonation been refused, that as the third
respondent submits would have aborted the process, and in a proper
case, been subject to review. It does not however follow, in
my
opinion, the contrary decision, allowing condonation and thereby the
further pursuit of the process can be validly and differently
categorised. The issue whether or not the late referral of the
dispute for conciliation should or should not be allowed, stands
alone as an independent matter for adjudication. In that context, the
4
th
respondent’s determination, is in a proper case, reviewable.”
[12] By contrast,
the appellant contends that matters of this particular interlocutory
kind, namely the granting of a condonation
represents a classic case
of midstream review which would be pursued by Courts. In short, there
is considerable amount of authority
to the effect that Courts will
hesitate to intervene during a process which has already been
launched, but will allow the process
to culminate before granting an
application for review.
[13] For this
reason, it was contended that there was no basis by which the Court
a
quo
should have interfered with the decision of an arbitrator in
the course of arbitration proceedings and thereby adopt a different
approach to that which had been taken by the arbitrator at the very
commencement of proceedings, the merits of which still had
to run
their course.
[14]
As a counter to this argument the Respondents referred to a judgment
of van Niekerk J in
Trustees
for the Time Being of the National Bioinformatics Network Trust v
Jacobson and Others
[2]
,
where he, the learned Judge said this:
“
This
Court has jurisdiction in terms of section 158 (1) (g) to review
interlocutory rulings made by Commissioners, and is empowered
generally by section 158(1)(a)(i) to grant urgent interim relief. In
criminal and civil proceedings, intervention by way of interdict
in
uncompleted proceedings is exceptional – the exercise of this
power has been held to be confined to those rare cases where
a grave
injustice might otherwise result or where justice might not be
otherwise be attained. In general the court will hesitate
to
intervene, having regard to the effect on the continuity of the
proceedings in the Court below and to the fact that redressed
review
or appeal will ordinarily be available [see
Wahlhaus
and Others v Additional Magistrate, Wynberg and Another
[3]
.
[15] Suffice it to
say that, in my view van Niekerk J is correct that section 158(1)
bears the weight of the argument of respondent
that Court would have
jurisdiction to conduct a review of this kind of decision. The
question remaining in what circumstances such
a review application be
appropriately entertained. Van Niekerk J provides helpful further
insight at para 4:
“
There
are at least two reasons why the limited basis for intervention in
criminal and civil proceedings ought to extend to uncompleted
arbitration proceedings conducted under the auspices of the CCMA, and
why this Court ought to be slow to intervene in those proceedings.
[16] The first is a
policy-related reason. For the Court to routinely intervene in
uncompleted arbitration proceedings would undermine
the informal
nature of the system of dispute resolution established by the Act.
“
The
second (related) reason is that to permit applications to the review
on a piecemeal basis would frustrate the expeditious resolution
of
labour disputes. In other words, in general terms, justice
would be advanced rather than frustrated by permitting CCMA
arbitration proceedings to run their course without intervention by
this Court.”
[17] I should add
that in the case in which Judge van Niekerk was concerned to deal
with, the question before the Court was whether
the Commissioner was
entitled to refuse legal representation in the proceedings. In my
view, this is a very different set of circumstances
from the question
of condonation thereof, which render the cases distinguishable. The
fact that van Niekerk J was so cautious and
fastidious in his
formulation of whether it would be appropriate to intervene, given
the circumstances of the case only compounds
the importance of this
decision for the present dispute.
[18] The question,
which must be asked, is what grave injustice would follow if
condonation was granted and the arbitrator’s
decision had been
allowed to stand, contrary to the approach which was adopted by
Bhoola J? In short, what is the grave injustice?
[19] The grave
injustice cannot be the fact that the matter proceeded to fruition
and the appellant was successful in the proceedings,
reinstatement
would inevitably follow which would prejudice an employer who may
already have filled the post given the length of
time between the
dismissal and the proceedings. But that problem is cured by
section
193
of the
Labour Relations Act 66 of 1995
which affords the court
flexibility in the tailoring of appropriate relief and does not make
reinstatement inevitable.
[20] Secondly, the
question arises as to whether delay on its own is sufficient to
justify the conclusion that it is in the interests
of justice to
permit a review. Given the fact that there is a delay in the first
place which gave rise to the condonation, something
more than mere
delay, even of an extended kind, is surely required to justify the
extraordinary approach, namely that a midstream
review of a
condonation decision be permitted.
[21] What then did
the respondent provide to the Court in order to justify that there
would be a grave injustice perpetuated if
the decision of the
Arbitrator was allowed to stand?
[22] In a review
application, it behaves a party such as the respondent to show why
there would be a grave injustice which would
follow in the event that
the condonation decision was allowed to stand, grave injustice which
would be sufficient to allow a Court
clothed with the jurisdiction to
exercise a power to set aside the condonation decision.
[23] This Court
invited, respondents’ counsel to provide evidence from the
papers to the case that was made out by the respondent
as to the
grave injustice was concerned. In effect, the only relevant passage
from the answering affidavit of Mr Oppelt, who deposed
to an
affidavit on behalf of the respondents, is the following:
“
It
is denied that the applicant stands to be prejudiced in the event
that his application for condonation is not granted in this
matter.
The applicant elected to refer his dispute to the Labour Court at his
own peril. He was informed in his letter
of dismissal that he
should refer any dispute to the GPSSBC. And thereafter, the
respondents repeatedly informed the applicant’s
attorneys that
there existed no basis on which to justify the bypassing of the
GPSSBC. And the referral of the matter to
the Labour Court was
accordingly inappropriate given that the Labour Court lacked
jurisdiction to determine the matter prematurely
referred to
Accordingly, any prejudice which may be suffered is as a result of
the applicant’s own election to not
refer the dispute to the
GPSSBC timeously.”
[24] There is
nothing in the affidavit by Mr Oppelt which would suggest, for
example, that the respondent would be gravely prejudiced
because of
the length of time which had resulted, in the relevant documentation
not being available so that the case could not
be properly prosecuted
or that relevant witnesses had died, left the country or disappeared,
which again would add to the prejudice
of a proper hearing. In short,
there is not a scintillo of evidence of the kind which would justify
a Court taking, what in my
view, is an exceptional step, to engage in
a form of midstream review, and set aside the decision taken by an
Arbitrator to grant
condonation.
[25] For all of
these reasons, this is a case in which the decision of the arbitrator
should have been allowed to stand. In my view
the Court
a quo
erred in its decision.
[26]
For this reason, the appeal is upheld and the Court
a
quo
’s order is substituted with
an order condoning the late filing for conciliation and arbitration
by the appellant. The dispute
is referred back to the Bargaining
Council for final determination. Given the nature of this case, there
is no order as to costs.
____________________
Davis
Judge
of Appeal
Ndlovu JA and
Sutherland AJA concurred
Appearances:
For the Appellant:
A.P Laka SC
Instructed by: Msiza
& Associates
For the First
Respondent: W.R Mkhari SC
Instructed by:
Bowman Gilfillan Inc
[1]
[2009]
10 BLLR 1137
(LC) at para 21
[2]
[2009]
8 BLLR 833
(LC) at para 3
[3]
see
Wahlhaus
and Others v Additional Magistrate, Wynberg and Another
[3]
,
1959 (3) SA 113
(A)].”