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[2008] ZALCJHB 43
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Minister of Correctional Services v General Public Services Sectoral Bargaining Council and Others (JR770/06) [2008] ZALCJHB 43 (19 September 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
CASE
NO: JR770/06
In
the matter between:
MINISTER
OF CORRECTIONAL
SERVICES Applicant
and
GENERAL
PUBLIC SERVICES SECTORAL
BARGAINING
COUNCIL 1st
Respondent
COMMISSIONER
P KIRSTEIN N.O.
2nd
Respondent
PUBLIC
SERVICE ASSOCIATION obo AC DU PREEZ
3rd
Respondent
JUDGMENT
FRANCIS
J
1.
This is an application to review and set aside an arbitration award
made by the
second respondent (the commissioner), in terms of which
he had found that the third respondent’s member, AC Du Preez
was
entitled to be paid a special danger allowance in an amount of R3
900.00.
2.
The application was opposed by the third respondent.
3.
The applicant had received a copy of the award on 12 January 2006.
The
review application was filed on 5 April 2006. It
should have been filed on or before 22 February 2006. It was
therefore filed 45 days late.
4.
The applicant’s notice of motion did not contain a prayer for
condonation.
However, in the founding affidavit, it has dealt
with the delay and prospects of success. Mr Pio who appeared
for the applicant,
sought from the bar an order to amend the notice
of motion to include a prayer for condonation. The application
to amend
the notice of motion to include a prayer for condonation is
granted. The application for condonation was not opposed by the
third respondent.
5.
The applicant’s legal administration officer deposed to the
founding affidavit.
The reason given for the delay is that
after the award was received on 12 January 2006 by the applicant, an
instruction to investigate
the possibility of bringing a review
application was transmitted per telephonic fax transmission to the
offices of the state attorney
on 30 January 2006. The
instruction was received by an attorney at the state attorney’s
office on 2 February 2006.
The attorney attempted unsuccessfully to
contact the legal administration officer of the applicant on 3rd and
6th February 2006.
She was on both these dates busy
representing the applicant in other arbitration hearings and could
not be reached telephonically.
The attorney had also
unsuccessfully attempted to transmit a letter to her by facsimile on
9, 10 and 16 February 2006 respectively.
On 16 February
2006 she received a telephone call from the attorney who informed her
that he was unable to get through on the fax
number provided to him
in the instruction letter. She then gave him an alternative fax
number and he undertook to fax the
letter to that number. After
she did not receive the letter from the attorney she telephoned his
office to enquire about
it on several occasions but was not able to
make contact with him. She was able to contact him on 20
February 2006.
He informed her that he could also not get
through on the alternative fax number that she had provided to him.
She then provided
a further alternative fax number to him. The
attorney transmitted the letter on 21 February 2006. She
replied to the
letter on the same day and sent the attorney the
relevant documentation and arbitration award as requested by him.
6.
The applicant stated that in terms of the internal procedure of the
state attorney’s
office, authority must be obtained before
counsel could be instructed. He was only able to obtain this
authority from the
deputy state attorney on 24 February 2006.
The brief instructing counsel to advise on the feasibility of
bringing a review
application was delivered at his chambers on 28
February 2006. On 10 March 2006 she was advised by the attorney
that counsel
informed him that he could not furnish an informed
opinion without a consultation with officials of the applicant to
obtain further
instructions. As a result it was agreed that a
consultation would be held on 14 March 2006. However, on 13
March 2006
she was telephonically informed by the attorney that
counsel was unexpectedly tied up in a matter that was to proceed on
14 March
2006 and that the consultation would have to be postponed to
17 March 2006. During the consultation on 17 March 2006,
counsel
informed that two matters, similar to the matters at hand,
are currently pending in this Court. Counsel then requested
that
the documents pertaining to those matter be provided to him
before a final decision to bring a review application was made.
On 20 March 2006 it was decided to proceed with this review
application, after documentation pertaining to the other matters was
provided to counsel. The applicant apologised for any
inconvenience the delay may have caused to this Court or any of the
respondents and that it was not wilful and did not cause prejudice to
any of the respondents.
7.
The applicant contended that it has excellent prospects of success.
The
applicant contended that it will be noted from the award that the
dispute related to the interpretation and application of resolution
78/96 of a collective agreement concluded in the chamber of the
Public Service Bargaining Council for the Department of Correctional
Services. Resolution 78/96 regulates when members are entitled
to receive a special danger allowance. It provides as
follows:
“
All
parties agree that the special danger allowance will be payable with
effect from 1 July 1995 to
i)
all personnel of the disciplinary occupational class who are
physically
involved with the safe custody, detention, training and
rehabilitation of persons classified as maximum security and
prisoners....”.
8.
Mr and Mrs du Preez testified on behalf of the third respondent.
Mr Du
Preez is the spouse of Mrs du Preez and employed at Zonderwater
Medium A Correctional Centre. Mr du Preez testified on the
classification process of a maximum security prisoner and on the
strength of the period through which they are kept there.
9.
Two deputy directors, namely Messrs D S van der Merwe and M Mthimunye
testified
on behalf of the applicant. Van der Merwe testified
that the third respondent’s contact with maximum security
prisoners
was only “accidental” and that she was never
exposed to any special dangers. As a consequence it would not
make
any sense to pay this danger allowance to her. This
testimony was corroborated by Mthimunye. The commissioner said
in his award that:
“
The
key to interpretation of a collective agreement is in the first
instance to ascertain the intention of the parties from the
words
which they use to express their agreement.”
It
was contended that although the evidence presented to the
commissioner showed that the third respondent was not exposed to any
special danger, this was not properly taken into account by the
commissioner when making his award. In making the award,
the
commissioner committed misconduct in relation to his duties as a
commissioner; and/or committed a gross irregularity in the
conduct of
the arbitration proceedings and/or exceeded his powers and his award
should be reviewed and set aside.
10.
It was contended by the applicant that the commissioner had ordered
the applicant to pay
compensation to the third respondent in an
amount of R3 900.00. The commissioner was not competent to
award compensation
in a dispute pertaining to the interpretation of
an application of a collective agreement. In doing so, the
commissioner
exceeded his powers and as a consequence the award
should be reviewed and set aside.
11.
It is clear from the condonation application that the applicant was
served with a copy of
the award on 12 January 2006 and that the
review application was only filed with this Court on 5 April 2006.
As stated above
it is 45 days late. The period is lengthy.
12.
It is apparent from the explanation given for the delay that there is
no explanation for
some of the periods. First there is no
explanation given about why the applicant waited up to 30 January
2006 to instruct
the state attorney to investigate the possibility of
a review application. An explanation is then given
about
what happened between 2 February and 21 February 2008 when the
attorney was able to send a letter to the legal administrator who
responded on the same day. This was at the end of the six-week
period. There is simply no explanation given why after
authorisation was obtained to brief counsel on 24 February 2006, he
was only briefed on 28 February 2006. By this time the
applicant knew that the six-week period had expired. There is
no explanation given about what happened between 28 February
and 10
March 2006 after counsel had said to the attorney that a consultation
meeting should be arranged with the applicant.
There is no
explanation why the consultation could not be arranged for the 10 or
11 March 2006 and why only for 14 March 2006.
The consultation
meeting then had to be postponed to 17 March 2006 because counsel was
unexpectedly tied up in a matter that was
to proceed on 14 March 2006
and that the consultation would have to be postponed to 17 March
2006. There were clearly some
delays on the part of the
applicant’s counsel. No explanation was given why another
counsel could not be briefed.
There are surely other labour law
counsels available in Pretoria. There is further no explanation
given why, after it was
decided on 20 March 2006 to proceed with the
review application, that it was only filed with this Court on 5 April
2006.
13.
The applicant counsel informed this Court from the bar that there
were certain internal
difficulties at the state attorney’s
office in briefing counsel. Those internal difficulties were
not spelt out in
the application. Even if there were, these
would only have been for the period 21 and 24 February 2006 when the
attorney
obtained authorisation to brief counsel. There was
simply no sense of urgency on the part of counsel, the applicant and
its
attorney. They paid more attention to other matters and
adopted the approach that they would simply apply for condonation
on
some flimsy basis and that this Court will grant condonation.
14.
I am satisfied that the applicant has failed to explain the delay
adequately as stated above.
The explanation why this matter
could not be dealt with the necessary urgency is clearly not
adequate. It was not good enough
only to leave messages and not
follow this up seriously. In some instances there is no
explanation and in others the explanation
is weak. It then
becomes unnecessary to consider the question of prospects of
success. In this regard see
Moila
v Shai N.O. and Others
(2007) 28 ILJ
1028 (LAC);
Mgobhozi v Naidoo NO &
Others
(2006) 27 ILJ 786 (LAC) at
paragraph 34;
A Hardrodt (SA) (Pty) Ltd
v Behardien & Others
(2002) 23 ILJ
1229 (LAC) at 1233;
LIBRAPAC CC V
Fedcraw & Others
(1999 (20) ILJ
1510 (LAC) at paragraph 12.
15.
The application for condonation stands to be dismissed. It
follows that the review
application stands to be dismissed.
16.
There is no reason why costs should not follow the result.
17.
In the circumstances I make the following order:
17.1
The condonation and review application is dismissed with costs.
_____________________
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
THE APPLICANT
: P PIO
INSTRUCTED BY STATE ATTORNEY
FOR THIRD
RESPONDENT
:
F J VAN
DER MERWE
DATE
OF HEARING
: 16
SEPTEMBER 2008
DATE OF
JUDGMENT
: 19
SEPTEMBER 2008