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[2014] ZALAC 30
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George and Another v South African Police Service and Others (JA45/13) [2014] ZALAC 30 (16 May 2014)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO
: JA45/13
DATE
: 2014-05-16
In
the matter between
GEORGE,
MOHLALA MAKGAU AND ONE
OTHER
Appellant
and
SOUTH
AFRICAN POLICE SERVICE AND
OTHERS
Respondent
CORAM:
TLALETSI DJP, MOLEMELA AJA, COPPIN AJA
J
U D G M E N T
MOLEMELA,
AJA
:
This
is an appeal against the judgment of the Labour Court, Rabkin-Naicker
J, dismissing an application for review with costs.
The
appellants were dismissed from the services of the second
respondent. They referred an unfair labour practice dispute
to
the Safety Security Sectoral Bargaining Council. Conciliation
having been unsuccessful, that he dispute was arbitrated
by
Commissioner Boyce, the third respondent, who found that the
dismissal was fair.
The appellants then
approached a firm of attorneys, known as Maringa Attorneys, and
instructed them to review the third respondent’s
award.
When there was no progress regarding their matter. The
appellants lodged a complaint against Maringa Attorneys
at the Law
Society. The Law Society subsequently advised the appellants to
give instructions to Mashego Attorneys.
In the meantime, the
appellants’ erstwhile attorney, Mr Maringa, was struck off the
roll. The record shows that he had
up to that stage only filed
an application for review and had not taken any further steps in the
matter.
After taking the matter
over, Mashego Attorneys filed a Notice of Motion, dated 12 May 2011.
In terms of which they applied
for the granting of condonation for
the late filing of the review application and leave for the filing of
supplementary affidavits.
On 20
March 2012, the matter served before the Labour Court. The
record of what transpired during the proceedings has not
been
attached, but the text of the Labour Court judgment makes reference
to the application for condonation.
The
crisp issues in this appeal are: one, whether the Labour Court erred
in dismissing the review application on the basis that
it was fatally
flawed; and two, whether the Labour Court erred in ordering the
appellants’ present attorney, Mr Mashego,
to pay costs
de
bonis propriis
.
The
Labour Court delivered an
ex tempore
judgment which was subsequently
transcribed. In delivering its judgment, the Labour Court
inter
alia
stated as follow:
“
The
application for condonation must be dismissed because the application
for review is fatally defective. On perusing the
file, what
came to my attention is the extraordinary circumstance that a review
application has been launched without a copy of
the award in question
annexed to the application. Without the award the review
application is fatally defective.”
Section
145(1) of the Labour Relations Act provides that a party that alleges
that there is a defect in arbitration proceedings
may bring an
application for review of such proceedings within six weeks from the
date of service of the arbitration award.
In terms of section
145(2), the Labour Court may, on good cause shown, condone the late
filing of the review application.
It is clear from Rule
7(A)(5) of the rules for the conduct of proceedings in the Labour
Court that the party that it is responsible
to see to it that a
proper record of the proceedings sought to be set aside is before the
review in court is the applicant.
It is evident that in any
application for review of an award, the award itself is the very
foundation of the application as the
review application is directed
at determining the reasonableness of the award.
It is common cause that
when the Labour Court in this matter considered the application, the
arbitration award did not form part
of the record that served before
the Labour Court, and as such the record of the arbitration
proceedings was incomplete yet the
application for condonation that
served before the Labour Court was directed only at the failure to
review the award within six
weeks.
The
Labour Court correctly took into account that the appellants had
filed an application for condonation and that that application
ought
to fail also. It is trite that an application for condonation
entails the consideration of prospects of success on
the merits. It
is also trite that an applicant in an application for condonation
must establish facts that show that there is sufficient
cause for
condoning non-compliance with the rules. The Founding Affidavit in
respect of the condonation application was bare in
respect of vital
element of prospects of success. The appellants failed to set out any
facts demonstrating that they had reasonable
prospects of success and
merely said the folowing:
“
We
have excellent prospects of success in the application as the
arbitrating commissioner failed to apply his mind correctly to
the
facts and evidence properly placed before him, thereby committing a
reviewable irregularity when conducting the arbitration
hearing.”
In
this matter, the determination of prospects of success was very
crucial especially because the degree of lateness was severe.
Without the award being part of the record, the Labour Court would
not have been in a position to properly consider whether there
were
good prospects for setting the award aside on the basis that the
decision that was made was not one that a, reasonable decision
maker
could reach. Clearly then, the appellant’s application
for condonation failed to adequately deal with the prospects
of
success, was ill-conceived and thus fell to be dismissed.
Instead
of dismissing the application for condonation, the Labour Court
dismissed the review application. This means that
a wrong order
was granted. The wrong order granted by the Labour Court thus
stands to be set aside. I now turn to the
cost order granted by
the Labour Court, that is
de bonis
propriis
. It is trite that the
determination of the cost order constitutes an exercise of a
discretion and such discretion must be
exercised judicially. It
is undisputed that on the day of the hearing of the matter the
appellants’ attorney of record
was not at court. The
appellants were represented by counsel.
The unfortunate history
of the matter regarding the appellants’ legal representation
has already been canvassed earlier in
the judgment. It is clear
that the attorneys that represented the appellants at that stage were
not the ones that had drafted
the review application. The
attorney that drafted the review application was subsequently struck
off the roll of attorneys
and Mr Mashego became involved in the
matter after the intervention of the Law Society.
On
the day of the hearing, counsel was instructed on a
pro
bono
basis. Mr Mashego evidently
tried to right the wrongs that were committed by the erstwhile legal
representative of the appellants
and his efforts were apparently
seriously hampered by the fact that he was unable to obtain the
appellants’ file from those
attorneys.
In
the end, the matter was placed on the roll even though the record was
incomplete. Fairness dictates that all these factors
should be
taken into account when determining whether a cost order
de
bonis propriis
is appropriate. I
am of the view that the discretion exercised in respect of the cost
order was not exercised judicially as
the circumstances of the case
did not warrant such a drastic court order. Having considered
all these factors, I am of the
view that the circumstances of the
matter were such that no order of costs ought to have been made.
In view of all of that,
the following order is given:
[1]
The appeal is upheld.
[2]
The order granted by the Labour Court is set aside and replaced with
the following order:
“
The
application for condonation is dismissed.”
[3]
No order is made as to costs.
_______________
Molemela
AJA
Acting
Judge of Labour Appeal Court
Tlaletsi
DJP and Coppin AJA concurred
APPEARANCES
:
For
the Appellants: Mr R.K Mashego from Mashego
Attorneys Inc
For
the Respondent: Advocate M. Zondo
Instructed
by:
The State Attorney