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[2008] ZALCJHB 19
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Ndlovu v Commision for Conciliation Mediation And Arbitration and Others (JR1253/2007) [2008] ZALCJHB 19 (21 October 2008)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE NO. JR 1253/2007
NOT
REPORTABLE
In
the matter between:
MUZIKAYISE
CECIL NDLOVU
Applicant
and
COMMISION FOR
CONCILIATION
MEDIATION
AND ARBITRATION
1
st
Respondent
COMMISSIONER
THEMBEKILE NSIBANYONI
2
nd
Respondent
INTERNATIONAL
MARKETING COUNCIL
OF
SOUTH AFRICA
3
rd
Respondent
GOVERNMENT
COMMUNICATION
AND
INFORMATION SYSTEMS
4
th
Respondent
THE
GENERAL PUBLIC SERVICE
SECTORAL
BARGAINING COUNCIL
5
th
Respondent
JUDGMENT
BY:
C.J. MUSI, AJ
REASONS
ON:
21 October 2008
[1]
On 22 May 2008 I dismissed this application and ordered the applicant
to pay the third and fourth respondent’s costs.
On 4 June
2008 the applicant requested my full reasons for doing so.
These are those.
[2]
I want to mention at the outset that this application is ill
conceived, misplaced and totally flawed. The mere restatement
of the relief sought is a clear manifestation of the very dim
prospects of success this application has.
[3]
The applicant sought the following relief.
“
BE
PLEASED TO TAKE NOTICE
that the
abovementioned Applicant, Ndlovu Muzikaise Cecil intends to apply to
the honourable Court mentioned above on a date to
be arranged with
the honourable Registrar for an order in the following terms:
1.
An Ordering condoning non-compliance on the part of the Applicant
with the procedure
provisioned:
1.1.
in the rules of practice, is condoned and
1.2.
LRA in particular sub-section 145(1)(a) and/or Schedule 7 Part B
sub-Item 3(4)(a) of LRA.
2.
Ordering, in terms of Rule 22:
2.1.
That the fourth Respondent be joined as a party to these proceedings.
2.2.
That the fifth Respondent be joined as a party to these proceedings.
2.3.
That the Applicant shall serve the pleadings that has hitherto been
delivered (by the Applicant and
third Respondent in these proceeding)
to the fourth and the fifth Respondents.
3.
Authorizing the Applicant to amend the notice of motion dated 25 May
2007 within
10 day of this order, by deleting the whole contents of
paragraph 1 thereof and substituting such with the following prayers:
1.
1.1.
Ordering that the award made by the first Respondent, which is dated
12 April 2007, be set aside.
1.2.
Ordering that the award made by the first Respondent, which is dated
29 May 2006 be set aside.
1.3.
Ordering that the award made by the fifth Respondent which is dated
20 September 2005 be set
aside.
1.4.
Ordering that the decision made on the 19 June 2007 by the first
Respondent dismissing application
for rescission of the award dated
29 May 2006 be set aside.
1.5.
Hearing and determining the dispute of alleged unfair dismissal
and/or unfair labour practice
on the grounds contemplated Schedule 7
part B sub-Item 3(4)(a) read with sub-Item 4(1) of the said schedule
of LRA, and Ordering
that awards and/or rulings that are set aside by
sub-paragraph 1.1. to 1.4. hereabove are to be substituted with the
following
Order:
1.5.1.
Declaring that the Applicant was dismissed by the third Respondent.
1.5.2.
Declaring that the aforesaid dismissal of the Applicant is
procedurally unfair, (in that the third Respondent failed
to comply
the provisions of item 9 of Schedule 8 of the code of good practice
of LRA).
1.5.3.
Declaring that the aforesaid dismissal of the Applicant is
substantively unfair, (in that the third Respondent had
not
established any act of misconduct).
1.6.
Alternatively to paragraph 1.5.1. to 1.5.3. hereof and in the event
of the honourable Court finding
and/or concluding that the Applicant
has at all time relevant hereto, has been the employee of the fourth
Respondent then, in that
event:
1.6.1.
Declaring that the removal of the Applicant from the post of
Corporate Communications Manager to the post of
Assistant Director
with consequent reduction in his remunerations constitutes unfair
labour practice (unfair demotion) as contemplated
in Schedule 7 Part
B sub-Item 2(1)(b) of LRA.
1.6.2.
Declaring that the actions on the part of the third and/or fourth
Respondent to change the terms of contract
of employment of the
Applicant without the consent of the Applicant constitutes
automatically unfair dismissal as contemplated
in subsection
187(1)(c) and (d) of LRA.
1.6.3.
Declaring that the actions on the part of the fourth Respondent to
demote the Applicant without first giving
the Applicant an
opportunity to respond to the allegations of misconduct (against him)
constitutes unfair labour practice.
1.6.4.
Ordering the third Respondent and/or fourth Respondent to reinstate
the Applicant in his then occupation as Corporate
Communications
Manager.
1.6.5.
Ordering that the reinstatement of the Applicant referred to in the
preceding paragraph shall be deemed to be
operating with
retrospective effect from 01 July 2004.
1.6.6.
Ordering the third and fourth Respondent to pay unpaid amount of
remunerations within 15 days of this order.
1.6.7.
Alternatively to prayer 1.6.4. to 1.6.6. hereof, and in the event the
honourable Court not being inclined to
grant prayer 1.6.4 hereof,
then, in that event ordering the third and/or fourth Respondent to
jointly and severally pay compensation
to the Applicant in the sum of
money the honourable Court deem reasonable.
4.
Order authorizing the amendment of the grounds of review (set out in
paragraph
41 of the founding affidavit
25 May 2007,)
by
deleting the contents thereof and substituting such with the grounds
of review set out in paragraph 6 of the supporting affidavit
that is
dated
30 November 2007
, which supporting affidavit is attached
hereto.
5.
In terms of Rule 11(4) of the Labour Court, Ordering the first and/or
Respondents
to deliver the records of the the proceedings that were
held on the 23 February 2007 before the first Respondent.
6.
An Ordering that:
6.1.
the dispute between is referred to trial before this honourable
Court.
6.2.
the founding affidavit and the answering affidavit delivered by
parties shall be treated as statement
of case and opposing statement
respectively.
6.3.
the Respondents are authorized to amend or deliver additional
pleadings within 10 days.
7.
Alternatively to prayer 4 hereof and in the
event the honourable Court finding and/or concluding that the
Applicant erred in bringing
review application in that he ought to
have instituted the referral to this honourable Court in terms of
Schedule 7 Part B sub-Item
4(1) of LRA and not in terms of rule 7A,
then in that event condoning the error on the part of the Applicant
and directing the
procedure to be followed in determining the dispute
as the honourable Court deems it reasonable.
8.
In the event of opposition of any of the
relief herewith sought by one or more of the Respondent(s) hereto,
then, in that event
an Order directing such Respondent(s) opposing to
pay the costs of this application.
9.
Granting the Applicant further and/or
alternative relief the honourable deems fit.”
[4]
During September 1999 the applicant was employed by the Government
Communication and Information Systems Department (GCIS),
fourth
respondent, headed by the Minister in the Presidency.
[5]
In mid 2000 the applicant was assigned by the GCIS as the secretary
of the Project Manager of the International Marketing Mobilisation
(IMM). The project Manager of the IMM was tasked by Cabinet to
establish the International Marketing Council of South Africa
(IMC),
the third respondent. The third respondent was formed during
2001.
[6]
In October 2001 the applicant was appointed as the Corporate
Communications Manager of the third respondent. The third
respondent avers that the applicant was seconded by the fourth
respondent to it whereas the applicant alleges that he was appointed
by the third respondent independently from the fourth respondent.
I do not deem it necessary to decide this issue. I must
however
mention that on 18 January 2002 the Director Human Resources of the
fourth respondent wrote to the applicant to inform
him about a salary
increase and added that:
“
This
package is offered to you by the IMC as per their attached
appointment letter
and when you return
to GCIS you will revert to your current salary position and rank
”
(my
underlining).
[7]
The applicant negotiated a salary increase with the Chief Executive
Officer of the third respondent which culminated in an agreement
being reached on 30 April 2004. The CEO wrote to the applicant
and informed him that she is pleased to increase his salary
to R324
000 per annum.
[8]
The CEO of the third respondent requested the CEO of the fourth
respondent to terminate the applicant’s secondment.
On 1
July 2004 the applicant’s secondment was withdrawn. The
applicant was requested to report at the fourth respondent.
This heralded the start of the protracted dispute between the
applicant and the third and fourth respondents.
[9]
On 10 April 2004 the applicant, represented by Webber Wentzel,
referred the dispute between himself and both the third and fourth
respondents to the CCMA (the first respondent) alleging that he was
unfairly dismissed on 1 July 2004 by the third and or the fourth
respondent. The first respondent informed the applicant that
the dispute must be referred to the General Public Services
Sectoral
Bargaining Council (GPSSBC), the fifth respondent.
[10]
On 9 January 2005 the applicant, represented by Mr Jiyane of NEHAWU,
referred the dispute to the fifth respondent but cited
the fourth
respondent only. During the arbitration proceedings the
applicant insisted that the fourth respondent was not
his employer
and that he was employed by the third respondent. On 20
September 2005 the Commissioner, Denga Mulima, ruled
that the GPSSBC
had no jurisdiction to adjudicate a dispute between the applicant and
the third respondent because the third respondent
is a parastatal and
not a government department.
[11]
On November 2005 the applicant then referred the dispute to the
GPSSBC citing only the third respondent. On 16 November 2005
he was
advised that the GPSSBC does not have jurisdiction to adjudicate the
dispute because the third respondent is a parastatal.
[12]
The applicant represented by Mr Jiyane of NEHAWU, again, referred the
dispute to the first respondent, but this time citing
the third
respondent only. On 29 May 2006 Commissioner Raffee ruled that
the first respondent has no jurisdiction to adjudicate
the dispute
between the applicant and the third respondent in essence because the
applicant was at all times before 1 July 2001
employed by the fourth
respondent. The applicant unsuccessfully applied for the
rescission of Raffee’s award.
[13]
The applicant then referred an unfair labour practice dispute against
the third respondent to the first respondent, alleging
that he has
been unfairly demoted by the third respondent. During the
arbitration hearing before Thembekile Nsibanyoni (2
nd
respondent) the third respondent argued that the first respondent
lacked jurisdiction because the matter ought to be dealt with
by the
GPSSBC and further that the first respondent was
functus
officio
in view of Raffee’s
ruling that the first respondent lacked jurisdiction. The
second respondent found that the first
respondent is
functus
officio
and may not deal with the
matter until the ruling of Raffee has been set aside by this court.
The matter was dismissed and
the applicant was advised to approach
the GPSSBC or this court.
[14]
The applicant then lodged a review application to set aside the
second respondent’s order. It is this application
that
the applicant now seeks to amend.
[15]
I will for the purposes of this part of the judgment disregard the
unacceptable manner in which the application for amendment
has been
brought. As has correctly been pointed out by the third and
fourth respondents, the notice of an intention to amend
serves in
this case both as a notice to amend and an amended version of the
original review application.
[16]
The application for amendment
inter alia
seeks an order that the awards of Mulima (dated 20 September 2005),
Raffee (dated 29 May 2006) and the award of 19 June 2007 (dismissal
of the rescission application?) be reviewed and set aside.
[17]
Accepting that I may deal with all three reviews in this application,
it is clear that the review applications are lodged way
out of time.
The applicant also seeks an order condoning his non-compliance with
the rules.
[18]
The test for granting condonation was enunciated in
Melane
v Santam Insurance Co. Ltd
1962 (4) SA 531
9A) at 532 B – D where Holmes JA stated:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are
the degree of lateness, the explanation therefore, the prospects of
success, and the importance of the case. Ordinarily
these facts
are interrelated: they are not individually decisive for that
would be a piecemeal approach incompatible with
a true discretion,
save of course that if there are no prospects of success there would
be no point in granting condonation.”
On
the other hand it must be remembered that “
an
unsatisfactory and unacceptable explanation remains so, whatever the
prospects of success on the merits”
per
Miller JA in Chetty v Law
Society, Transvaal
1985 (2) SA 756
at 768 B – C. Condonation is not a mere formality.
Where there has been non-observance of the Rules of Court
the
applicant should give a satisfactory explanation for the delay in
filing the review application as well as a satisfactory explanation
for the delay in seeking condonation. See
Darries
v Sheriff; Magistrate Court, Wynberg and Another
1998 (3) SA 34
at 40H to 41 D.
[19]
The nearest that the applicant, in this matter, comes to giving an
explanation is at paragraphs 3.8.8 to 3.8.9 of the supporting
affidavit in the interlocutory application. In the
aforementioned paragraphs, the applicant states the following:
“
3.8.8
At all proceedings that were held in respect of the aforesaid
dispute, I was acting in
person. The reason why I have been
acting in person is that I had financial difficulties. I have
made arrangement (sic)
in respect of payment of legal fees.
3.8.9
I submit that I being a lay person, and having personally framed the
papers delivered,
my case require to be placed in proper light by my
legal representative, accordingly it is essential that I seek
authorisation
from the honourable Court to have the provisions of the
notice of motion and the grounds of review amended in the terms set
out
in the notice of motion read with paragraph 6 hereof.”
[20]
The applicant is economical with the truth. The proceedings
which he now seeks to set aside where dealt with on 20 September
2006, 29 May 2006 and 19 June 2007 respectively.
[21]
It goes without saying that the lateness is by any stretch of the
imagination inordinately long.
[22]
The applicant does not even come near to stating any grounds upon
which the award of Mulima (20 September 2005) should be set
aside.
He therefore shows no prospects of success.
[23]
The applicant has given no details in his affidavit in respect of the
award of 19 June 2007 although he requests that it be
set aside.
[24]
The applicant was initially represented by Webber Wentzel.
During the proceedings before Mulima on 20 September 2005
he was
represented by Mr Jiyane of NEHAWU. During the proceedings
before Raffee he was represented by the same Jiyane.
Because he
gave no explanation or details in respect of the award of 19 June
2007 it is not clear whether he was represented then.
His bold
and sweeping statement that he was acting in person is therefore only
applicable to the proceedings before the second
respondent.
Ironically, his review application in respect of those proceedings
was lodged timeously. The applicant has in
my view not given any
explanation, let alone a satisfactory one, in relation to the delay
in filing the review applications.
There are in my view also no
prospects of success in those matters. The applications for
condonation ought to be dismissed.
[25]
The applicant also seeks an order that the fourth and fifth
respondents be joined as parties to these proceedings.
[26]
The relevant parts if
Rule 22 of this
Court’s Rules
reads as
follows:
“
22
(1)
The court
may join any number of persons, whether jointly or
severally, separately, or if the right to relief depends on the
determination
of substantially the same question of law or facts.
(2)
(a) The court may, of its own
motion or on application
and on notice to every other party, make an
order joining any person as a party in the proceedings if the party
to be joined has
a substantial interest in the subject matter of the
proceedings…”
[27]
The applicant has to show that there are inter alia grounds of
equity, convenience, the saving of costs and the avoidance of
multiplicity of actions in order to succeed in an application for
joinder. See
Gemeenskapsontwikkelingsraad
v Williams and Others
(2)
1977 (3)
SA 955
(W) at 971 H. The applicant must also show that the right to
relief depends on the determination of substantially the same
question
of law or facts.
[28]
My conclusion in relation to condonation would ordinarily put paid to
this application for joinder. I propose however
to deal
shortly, for the benefit of the applicant, with the joinder issue.
[29]
The applicant’s case has always been that he seeks no relief
against the fourth respondent. During the proceedings
before
Mulima under the auspices of the fifth respondent, the applicant
stated that the fourth respondent is not his employer and
that there
is no employment relationship between him and the fourth respondent.
The applicant sought relief against the third
respondent only, before
the fifth respondent. The applicant did not apply to have
Mulima – whose award he now seeks
to set aside – joined.
[30]
The third respondent is an independent entity. It is not the
fourth respondent. The fourth respondent was not a
party at the
arbitration proceedings before Raffee and Nsibanyoni. It was
also not a party to the rescission application
of 19 June 2007.
The fourth respondent has no interest in the orders sought by the
applicant against the third respondent.
The granting of any
order against the third respondent does not in anyway affect the
interest of the fourth respondent. I
can see no considerations
of equity, convenience, cost saving or avoidance of multiplicity of
actions militating in favour of joinder
in this matter. This
application is misguided and ill conceived. It ought to be
dismissed.
[31]
Likewise the joinder of the fifth respondent is totally misplaced.
The fifth respondent was approached by the applicant
to adjudicate a
dispute between the applicant and the fourth respondent. Mulima
under the auspices of the fifth respondent
was the Commissioner.
During those proceedings – as pointed out above – the
applicant in essence agreed that the fifth
respondent does not have
jurisdiction to adjudicate the dispute because he is employed by the
third respondent. The fifth
respondent has no interest in the
orders sought by the applicant against the third respondent. My
finding in relation to
condonation also reinforces the point that the
fifth respondent has no interest in these proceedings. The
applicant failed
to set out any grounds on which Mulima’s award
should be reviewed and set aside. The application to join the
fifth
respondent should also be refused.
[32]
The applicant also requests that the first respondent be ordered to
deliver the records of the proceedings that were held on
23 February
2007 before the first respondent. The applicant does not
allege, in his affidavit, that evidence was adduced
during the
arbitration proceedings before Commissioner Nsibanyoni. In
paragraph 6 of his affidavit, the applicant states
that:
“
The
learned Commissioner who presided on the 23 February 2007 committed
gross misconduct in relation to the duties of the Commission
in that
the learned Commissioner:
6.1.1
violated the peremptory provisions of subrule 36 (1) and (2) of the
CCMA in that the learned Commissioner failed
to keep records of the
proceedings in any form whatsoever as she ought to have done.
In particular the Commissioner erred
in failing to record the
testimony that I canvassed and/or submissions that I made during
argument on the relevant date.”
[33]
It is clear from the Commissioners ruling that no evidence was
adduced during the arbitration proceedings. The Commissioner
states that:
“
At
the onset; the respondent raised a
point
in limine
stating that the CCMA did not
have jurisdiction to hear the matter, since the matter should be
referred to the CPSSBC.”
The
ruling then deals with this issue only. Clearly no evidence was
led. The contention of the applicant that the “Commissioner
erred in failing to record the testimony that I canvassed” is
clearly false.
[34]
The applicant also requested me to refer the dispute between the
parties to trial. This prayer is also totally misplaced
and ill
conceived. It exhibits a gross misunderstanding of what review
proceedings are and the scope and powers of this court
in review
proceedings. In
Northern
Province
Local
Government Association v CCMA & 4 Others
(2001) BLLR 539
(LC) at paragraph 12 it was correctly stated that:
“
In
my view, the ambit of section 145 is confined to the particular
proceedings and award handed down by a commissioner who has presided
over arbitration proceedings.”
[35]
In exercising its review powers this court must have regard to what
was before the Commissioner during the proceedings.
The Court
cannot in my view during review proceedings refer the matter for
trial in this Court and then sit as a Court of first
instance.
This would be totally incompetent. The Labour Court is a
creature of stature. Its powers are inter
alia contained in the
Act. The Act also ousts its jurisdiction in certain instances.
For instance, the question whether
the failure to promote or the
demotion of the applicant is an unfair labour practice falls outside
the jurisdiction of the Labour
Court. It is an issue that has
to be settled at CCMA level. If the matter is before this Court
by way of review, the
Court will be guided by the proceedings before
the Commissioner. This application should also be dismissed.
[36]
The whole application to amend ought therefore to be dismissed.
[37]
I have deliberately closed my eyes to the glaring inadequacies of
this application and decided to deal with the substantive
issues so
that form should not trump substance.
[38]
The applicant was reprimanded by Mr Howard Freese of the fourth
respondent that this protracted litigation is straining the
employer
– employee relationship. Freese was at pains to point out
that it is the applicants’ right to proceed
with any legal
proceedings that he may want to pursue. The applicant however
continued with his vexatious litigation.
I considered making a
punitive costs order but decided against it. It is clear that
the applicant does not know who his employer
is or he deliberately
does not want to recognise his employer. The course for the
applicant would then be to bring a substantive
application, wherein
he cites both third and fourth respondent, requesting an order
declaring the one or the other as his employer.
Armed with that
order he can then decide which course to take. It is my view
that a cost order in favour of the third and
fourth respondents would
be just and equitable under the circumstances. They opposed the
application. The other respondents
did not.
[39]
It is for the above reasons that I made the order as set out in
paragraph one of this judgment.
__________________
CAGNEY
J. MUSI, AJ
On
behalf of the Applicant:
Adv. RPA Ramaweli
Instructed
by:
Mabuela Inc.
On
behalf of the Respondent:
Adv. TJ Magano
Instructed
by:
Nishlan Moodley & Associates