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[2014] ZALAC 132
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KHIPHA V MINISTER OF HOME AFFAIRS AND ANOTHER (JA 37/2013Â ) [2014] ZALAC 132 (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)].”