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[2017] ZALAC 46
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Ramadiba v Limpopo Legislature and Others (JA25/15) [2017] ZALAC 46 (1 August 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JA 25/15
In
the matter between:
RAMADIBA
MOTLATSO
ANGELINA
Appellant
and
LIMPOPO
LEGISLATURE
First Respondent
MAAKE
JOSIAS SELLO
N.O
Second Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
Third Respondent
NGOBENI
EVA
N.O
Fourth Respondent
Heard:
23 March 2017
Delivered:
01 August 2017
Summary:
Appeal- against the order of the Labour Court refusing to grant the
appellant certain declaratory
orders- whether the Labour Court made
an incompetent order when reviewing the arbitration award in
circumstances where at the time
of the hearing of the review
application the review application which had been the reason the main
consideration whether the Labour
Court had jurisdiction to entertain
a referral of an alleged unfair dismissal – Held that the
review court is to consider
the record as it was before the
commissioner when the award was made although another court may have
decided not to grant the review
order but to refer the matter back to
the CCMA for the arbitration of the unfair dismissal dispute, failure
to do so does not render
the order granting the review incompetent.
Application
in terms of section 175 of the LRA for the Labour Appeal Court to sit
as a court of first instance and determine an
application for the
rescission of an order which would be an impediment to the success of
the appeal- such an application conditional
and to be considered only
when the Labour Appeal Court decides not to grant the appeal- the
applicant/ appellant failing to make
out a case for such an order –
the application refused.
Coram:
Tlaletsi DJP, Davis and Landman JJA
JUDGMENT
TLALETSI
DJP,
Introduction
[1]
The appellant appeals
against the whole judgment and order of the Labour Court (per
Lagrange J) granted on 12 December 2014 in which
her application for
declaratory relief was dismissed with no order as to costs. She is in
this Court with leave of the Labour Court.
The dispute dates back 14
years ago. For a better understanding of the issues, a brief history
of the matter is apposite.
Historical
background and chronology of events
[2]
The appellant was
employed by the Limpopo Provincial Legislature, the respondent. She
was suspended on 25 August 2004 pending investigation
of allegations
of misconduct by a chairperson of a disciplinary enquiry. On 13
December 2004, the chairperson, after finding her
guilty of certain
allegations misconduct, recommended a sanction of demotion to be
accepted by the appellant within five days,
failing which she be
summarily dismissed.
[3]
On 22 December 2004,
the appellant instituted review proceedings against the decision of
the chairperson in the Labour Court under
Case No: JR 3166/04. On 5
January 2005, the respondent imposed a sanction of dismissal on the
appellant. Two days thereafter, on
7 January 2005, the appellant
lodged an urgent application in the Labour Court seeking relief
pending the final determination of
the review application under case
No: JR 3166/04.
[4]
The urgent application
was heard by Ngcamu AJ on 11 January 2005. Ngcamu AJ dismissed the
urgent application on the basis that,
among others, the appellant had
first to exhaust internal processes available at the respondent. On
the same date, the appellant
lodged an internal appeal against the
decision and sanction of the chairperson of the disciplinary enquiry.
The internal appeal
was heard and dismissed on 4 March 2005.
[5]
On 10 March 2005, the
appellant referred an unfair dismissal dispute to the Commission for
Conciliation Mediation and Arbitration
(the CCMA). Case No: LP
1170/05 was allocated to the referral.
[6]
Commissioner Ramotshela
conciliated the dispute. On 20 May 2005, the respondent raised a
point in
limine
challenging the jurisdiction of the CCMA conciliating the dispute on
the basis that there was already a pending referral under
Case No: JR
3166/04 in the Labour Court. The commissioner held that the CCMA had
jurisdiction to entertain the dispute and dismissed
the point in
limine
.
[7]
On 4 July 2005, the
appellant filed a notice of withdrawal of her referral under Case No:
JR 3166/04 in the Labour Court. On 23
June 2005, the respondent
lodged a review application under Case No: 8/05 to review
Commissioner Ramotshela’s ruling that
the CCMA had jurisdiction
to entertain the dispute referred by the appellant.
[8]
The review application
served before Broster AJ on 8 November 2005 on the unopposed roll.
Broster AJ postponed the application in
order to give the appellant
an opportunity to present written reasons for not opposing the
application. Appellant filed her reasons
on 30 November 2005 in which
she stated in the main that she had already withdrawn her review
application under Case No: 3166/04.
[9]
On 7 November 2006,
Broster AJ issued an order under Case No: JR 1398/05, reviewing and
setting aside the ruling of Commissioner
Ramotshela of 20 May 2005 to
the effect that the CCMA had jurisdiction to entertain the dispute
referred by the appellant under
Case No: LP 1170/05. According to the
appellant, she sent a letter on the same day of the order requesting
reasons for the order.
However, the letter which is marked annexure
“D6” is addressed to the Judge President and the date on
the Court’s
date stamp is not legible. It is however
significant that in the letter she alleged that “
I
have tried for over a year to access the file to get a full
understanding of this order to no avail. I therefore humbly request
reasons behind this order that will empower myself to set...
appropriate cause of action with full understanding of issues.
”
The impression created herein is that she has been aware of the order
for some time, and that she could not gain access
to the court file
for over a year.
[10]
On 7 December 2007,
appellant’s then attorneys of record addressed a letter to the
CCMA for the attention of the senior case
management officer setting
out the history of the matter relating, inter
alia,
to the ruling of Commissioner Ramotshela and the subsequent order of
Broster AJ reviewing and setting aside that award. They further
advised that the proceedings in the Labour Court which formed the
basis of the objection raised by the respondent had been withdrawn
and requested the CCMA to refer the dispute under Case No: LP 1170/05
to arbitration.
[11]
The Senior Case
Management Officer, (Eva Ngobeni) replied to the request by stating
that they are unable to process the matter because
they are in
receipt of an order from the Labour Court which set aside the ruling
made by Commissioner Ramotshela and, as such,
the “
CCMA
lacks jurisdiction to determine the dispute further and you are
therefore advised to re-refer the matter”
.
For unexplained reasons, this letter is dated 4 December 2000.
[12]
On 10 October 2008, the
appellant heeded the advice of the senior case management officer of
the CCMA and made a second referral
of her dispute to the CCMA and
was allocated Case No: LP6471/08. This referral was accompanied by a
condonation application for
the late referral of the dispute.
[13]
The condonation
application for the second referral of the dispute was heard by
Commissioner S Maake on 2 December 2008. He reserved
the ruling and
subsequently dismissed the condonation application on 15 December
2008.
[14]
Aggrieved by this
decision, the appellant instituted review proceedings in the Labour
Court. On 21 July 2010, the Labour Court (per
Van Niekerk J)
dismissed the appellant’s review application. The appellant
sought leave to appeal the decision of Van Niekerk
J which leave to
appeal was refused. On 4 May 2011, the appellant’s petition for
leave to the Labour Appeal Court under Case
No: JA 90/10 was
dismissed. It is common cause that the refusal to grant the appellant
leave to appeal by the Labour Appeal Court
was not pursued further.
[15]
In the meantime, the
appellant had not withdrawn her first referral to the CCMA under Case
No: LP 1170/05. To recap on this referral,
the last formal decision
was Broster AJ’s order setting aside Commissioner Ramotshela’s
jurisdiction decision and the
subsequent refusal by the senior case
management officer refusing to refer the dispute to arbitration. On
20 December 2010, the
appellant launched Motion proceedings on urgent
basis, to be heard on 18 January 2011 in which she sought declaratory
relief on
the following terms:
1.
Declaring that the Fourth Respondent was
not competent nor empowered to make the decision or directive or
advise as contained in
her fax message of 4 December 2007 (sic),
being Annexure “D5”.
2.
Declaring that the appellant is entitled to
prosecute the referral of the dispute of unfair dismissal to the
Third Respondent under
case number: LP1170/05.
3.
Declaring that the decision or directive by
the Third Respondent represented by the Fourth Respondent refusing to
refer the dispute
under CCMA case number LP1170/05 to arbitration on
10 December 2007 on the grounds that the CCMA lacks jurisdiction to
determine
the dispute further and then that the Applicant should
re-refer the matter, was not legally competently sanctioned by the
Court
Order of Broster AJ of 7 November 2006 and is
ultra
vires
. Section 191, read with
Sections
135
and
136
of the
Labour Relations Act, No, 66 of 1995
, as amended
(“the LRA”) and
Rule 10
of the Rules of the CCMA, and
therefore invalid and/or null and void
ab
initio
.
4.
Declaring that the order of Broster AJ did
not set aside the referral of dispute by the Applicant on 10 March
2005 under case: LP1170/05
and that the said referral is still extant
and pending before the Third Respondent.
5.
Declaring that the defence of
lis
pendens
as raised by First Respondent
on 20 May 2005 was merely to stay the conciliation process and did
not dispose of the dispute as
referred by the Applicant to the Third
Respondent on 10 March 2005 under case number: LP1170/05.
6.
Declaring that the withdrawal of the review
application under case number: JR3166/04 in the Labour Court by the
Applicant on 5 June
2005 effectively lifted the stay of the
conciliation process and disposed of the First Respondent’s
defence of
lis pendens
.
7.
Declaring that the dispute under case
number: LP1170/05 was conciliated upon by Commissioner Mathews
Ramotshela on 20 May 2005,
and that the relevant certificate of
non-conciliation is still extant and binding on the parties.
8.
Declaring that the referral process on 10
October 2008 following on the Fourth Respondent’s decision or
directive or advise
under CCMA case number: LP6471/08 was not
competent nor sanctioned by the Court Order of Broster AJ and
ultra
vires
the provisions of Sec 191, read
with Sections 135 and 136 of the LRA and Rule 10 of the CCMA rules
and thus invalid and/or null
and void
ab
initio
.
9.
Granting the Applicant further and/or
alternative relief.’
[16]
On 18 January 2011,
Molahlehi J dismissed the application. On 21 January 2011, the matter
came before Molahlehi J under case no:
J2568/10. He handed down his
judgment on 2 February 2011 in which he stated that on 18 January
2011 the application was dismissed
essentially because the appellant
did not appear when the matter was heard and further that the court
accepted the argument of
the respondent that the appellant did not
make out a case on the papers. The application was dismissed with
costs on an attorney
and own client scale. On this occasion,
Molahlehi J granted leave to appeal to the Labour Appeal Court
against the whole of the
judgment and order handed down by him on 2
February 2011.
[17]
On 22 March 2012, the
very application that had been dismissed by Molahlehi J in which he
had granted leave to appeal, was set down
before Rabkin-Naicker J.
She was concerned about the way the matter had been conducted and the
service provided to the appellant
by her legal team. She made an
order striking the matter of the roll and directed inter
alia,
that the contents
of the file be referred to the Judge President and/or Deputy Judge
President for perusal and to consider whether
the conduct of the
appellant’s legal representatives should be referred to the Law
Society and the bar Council. The appellant’s
attorneys were
ordered to pay costs of the application
de
bonis propriis.
[18]
The
appellant proceeded to prosecute her appeal to this Court. This Court
set aside the order and judgment of Molahlehi J, but did
not deal
with the merits of the application which were referred to the Labour
Court.
[1]
[19]
The application was
ultimately heard by Lagrange J who handed down his judgment on 12
December 2014. This judgment is the subject
of this appeal.
Judgment
of the Court a quo
[20]
The Labour Court
recorded the merits of the dispute as the appellant seeking a number
of declaratory orders requiring the court
to make determinations
concerning the previous judgment of Broster AJ. The central issue
underlying the appellant’s claim
was identified as whether it
would be competent for the CCMA to resume processing the original
referral, which was halted when
Commissioner Ramotshela’s
ruling of 20 May 2005 was reviewed and set aside by Broster AJ’s
order. The issue is whether
the jurisdictional ruling of Commissioner
Ramotshela that the CCMA had jurisdiction to entertain the dispute
had been nullified.
[21]
In the court
a
quo,
the appellant
presented the following contentions: Firstly, that the setting aside
of the jurisdictional ruling of Commissioner
Ramotshela only affected
the power of the CCMA to conciliate the dispute and did not set aside
the referral as such. Secondly,
that since the objection raised by
the respondent before Commissioner Ramotshela was based on a plea of
lis pendens
,
namely that there were pending proceedings between the same parties
on the same dispute in the Labour Court, Broster AJ’s
order
could only nullify the jurisdictional ruling of the CCMA only for as
long as the review application was still pending. However,
since at
the time the order of Broster AJ was made, the appellant had already
withdrawn the proceedings in the Labour Court, with
the result that
the temporary impediment to the CCMA’s jurisdiction vanished
and the matter could proceed.
[22]
The third contention on
behalf of the appellant was that, notwithstanding the fresh or second
referral of the dispute under case
no: LP647/08, the appellant had
never withdrawn the original referral under case no: LP1170/05 and as
such was still alive. Fourthly,
the senior case management officer
(Eva Ngobeni) had no authority to make a finding on the CCMA’s
jurisdiction to determine
whether the first referral of the dispute
should continue to be processed. Regarding the refusal to grant
condonation for the late
referral of the second referral of the
dispute, the appellant contended that the refusal had no bearing on
the first referral of
the dispute. Further by making a second
referral of the dispute, the appellant did not abandon the first
referral.
[23]
The respondent
contended that the order of Broster AJ setting aside Commissioner
Ramotshela’s award stands as an insuperable
obstacle in the way
of reviving the first referral. In the absence of it being set aside,
the court is
functus
officio
in respect
of the first referral and cannot revisit or interpret that decision
by way of making declaratory orders; that the appellant
could not
keep the first referral alive once she filed the second referral;
when she filed the second referral she made an election
which is
binding upon her; that the refusal of the senior case management
officer to entertain the original referral was merely
a reflection of
and an adherence to the effect of the court order; that for other
prayers in the notice of motion the appellant
is seeking legal advice
from court.
[24]
The appeal was
initially set down on 22 March 2016. On that day, during the
exchanges with counsel for the appellant, a view was
expressed that
the existence of Broster AJ’s judgment could be an impediment
to having the real dispute adjudicated at the
CCMA. An appeal or any
appropriate process to have that order set aside would open the way
to the real dismissal dispute being
dealt with. The appellant was
thereafter granted an opportunity to reconsider her position in that
regard. The appeal was postponed
sine
die
and the parties
were granted an opportunity to file a note on who should be
responsible for the costs of the appeal. This was on
the
understanding that the appellant would withdraw the current appeal
and embark on a process of having the order of Broster AJ
being set
aside.
[25]
Subsequently, the
appellant has not withdrawn the appeal and has since filed an
application for the variation and or rescission
of Broster AJ order
in the Labour Court on 5 April 2016. The appellant also sought a
directive by the Judge President in terms
of s175 of the Labour
Relations Act 66 of 1995 (LRA) that the rescission application be
determined by this Court sitting as a court
of first instance.
However, the application for rescission should only be determined by
this Court in the event this Court finds
that Broster AJ’s
order is a bar to the arbitration of the appellant’s unfair
dismissal dispute at the CCMA. In other
words, the appellant would
pursue the appeal against the judgment of LaGrange J. However, should
the appeal fail, then this Court
should sit as a court of first
instance and determine the rescission application against the order
of Broster AJ. For now, the
directive in terms of s175 of the LRA has
not been granted by the Judge President.
[26]
In this Court, Mr
Ntsebeza SC, who appeared on behalf of the appellant, made two main
submissions. Firstly, Broster AJ made an incompetent
order when he
reviewed the ruling of Commissioner Ramotshela because at the time
the review application that had been instituted
to review the
decision of the chairperson of the disciplinary inquiry that the
appellant should either accept a demotion within
five days or be
dismissed, the application had already been withdrawn by the
appellant. He submitted that Broster AJ knew about
the withdrawal
because he was informed by the appellant in response to the unusual
request for reasons from the appellant as to
why she was not opposing
the review application. The objection that was raised by the
respondent based on
lis
pedens
had already
fallen away. This point was referred to as “the nullity point.”
[27]
Secondly,
Mr Ntsebeza submitted that the fact that the review application was
opposed and Broster AJ heard it on the unopposed basis
amounts to a
judgment given in the absence of a party and should therefore be
rescinded. Counsel relied on the decision in
The
Master of the High Court Northern Gauteng High Court, Pretoria v
Motala
NO
and Others
[2]
as authority for his submission.
[28]
The answer to the first
question is simply that Broster AJ dealt with the review application
based on the facts, circumstances and
the record as it was before
Commissioner Ramotshela. At the time the latter presided over the
conciliation proceedings, the review
application directed at
reviewing the decision of the chairperson of the disciplinary inquiry
was not yet withdrawn.
[29]
Another Judge hearing
that the review application had been withdrawn would have been loath
to review the decision of the commissioner,
and would have referred
the parties back to the CCMA to deal with the merits of the dispute.
However, it cannot be said that Broster
AJ should be faulted in his
approach. The decision of the Supreme Court of Appeal in
The
Master of the High Court Northern Gauteng High Court, Pretoria v
Motala NO and Others
(supra) is distinguishable from the facts of this case. In that
decision, it was held that only the Master of the High Court was
empowered by s429 of the Companies Act to appoint a judicial manager.
The order of a Judge of the High Court appointing other persons
as
judicial managers who were not appointed by the Master of the High
Court was regarded a nullity and of no force and effect.
The Supreme
Court of Appeal held further that a pronouncement of a nullity was
not even necessary, so was a need to have it set
aside by a court of
equal standing. The main reason was that it was only the Master of
the High Court who was empowered to appoint
a judicial manager.
However, in this case, the order made by Broster AJ was competent
because he was entitled to consider the review
on the record as it
was before the commissioner. At the time the application to review
the decision of the chairperson of the disciplinary
inquiry was still
pending in the Labour Court.
[30]
One is sympathetic with
the fact that the appellant had to involve herself in such a long and
protracted litigation without her
actual unfair dismissal dispute
being determined. She has been failed by the system and the advices
received along her way. The
situation is regrettable that it is
almost 13 years that the dispute has been dragging.
[31]
I am not satisfied that
this is a case where this Court should sit as a court of first
instance in terms of s 175 of the LRA and
entertain an application
for rescission. It is not insignificant that the second referral has
been unsuccessfully pursued by the
appellant up to appeal stage.
Those proceedings cannot be ignored or wished away because they
concerned the very unfair dismissal
dispute between the appellant and
the respondent.
[32]
In conclusion, the
Labour Court committed no misdirection in dismissing the application.
The appeal falls to be dismissed with costs.
[33]
In the result, the
following order is made.
“
The
Appeal is dismissed with costs such costs to include the employment
of two counsel.”
___________
Tlaletsi
DJP
Davis
JA and Landman AJA concurred
APPEARANCES
:
For
the Appellant: Advocates D
Ntsebeza SC; G Shakoane SC; M Ramoshaba
Instructed
by Ndekwe Attorneys
For
the Respondent: Advocates N Cassim SC; S Tilly
Instructed
by:
Lokwe Attorneys
[1]
The reference to the judgment of this Court is
Ramadiba
v Limpopo Legislature and Others
JA 37.2011 dated 01 June 2012 (Unreported).
[2]
2012 (3) SA
325
(SCA).