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[2011] ZALCJHB 191
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Mabirimisa v General Public Service Sectoral Bargaining Council and Others (JR 481/08) [2011] ZALCJHB 191 (20 December 2011)
REPUBLIC OF SOUTH AFRICA
Not reportable
Of interest to
other judges
the labour court of South Africa, JOHANNESBURG
judgment
c
ase
no
:
jr481/08
In
the matter between:
MABIRIMISA
NKHANEDZENI EWERT aPPLICANT
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL 1
st
respondent
denga
mulima 2
nd
respondent
mec
for public works 3
rd
respondent
government
employees’ pension
fund 4
th
respondent
Heard
:
20 December 2011
Delivered
:
20 December 2011
Summary: Applicant disputing pensionable period as certified by
4
th
Respondent, thereby detrimentally
affecting his pension emoluments payable by the 4
th
Respondent. Challenges this in the 1
st
Respondent some 34 months after he had been discharged arising from
his application for ill- health in terms of section 17(2)(a)
of the
Public Service Act 103 of 1994 on the basis of it being a dispute of
mutual interest/ severance. Condonation refused by
2
nd
Respondent on basis of the length of delay and incomplete explanation
for it. Applicant seeks to review condonation ruling. Held
that not
reviewable and even if the prospects of success were to have been
weighed in the conspectus of factors in exercising the
discretion
whether or not to grant condonation, there were none, as the
Applicant was in the wrong forum. The 1
st
Respondent had no jurisdiction to resolve such a pension dispute.
Application dismissed, each party to bear its own costs.
judgment
HARDIE
AJ
This is
an opposed application to review the ruling of the 2
nd
Respondent made on 12 February 2008, not to grant the Applicant
condonation for the late referral of his alleged dispute to the
1
st
Respondent under case number PSGA1088-07/08.
It is
common cause that the Applicant’s services with the 3
rd
Respondent were terminated on 31 March 2005 due to ill- health in
terms of section 17(2)(a) of the Public Service Act 103 of
1994, and
arising from an application by the Applicant to be discharged on
this basis. This is commonly known as boarding on
the basis of ill-
health.
Subsequent
thereto, and on 19 May 2007 (more than two years after the
Applicant’s discharge), the 3
rd
Respondent received
correspondence from the Applicant in the form of a facsimile from
Adv Sekhwari alleging that as the Applicant
had been contributing to
the 4
th
Respondent with effect from 1 March 1992, which
is for more than 10 years prior to the termination of his employment
on 31 March
2005, he qualified for a monthly pension annuity. Adv
Sekhwari called on the 3
rd
Respondent to correct the date
of commencement and recalculate Applicant’s pension benefits,
failing which an appropriate
High Court would be approached to
enforce the Applicant’s rights.
On 5
July 2007, the 3
rd
Respondent responded to Adv Sekhwari’s
facsimile, alleging that according to 3
rd
Respondent’s
records and those of the National Treasury (Pension Administration),
the Applicant’s pension contributions
commenced on 1 June
2005, and that as he had only contributed for 9 years and 9 months,
his pensionable service disqualified
him from receiving a pension
annuity. He thus received only a gratuity and forfeited his
annuity. In addition, that the Applicant
had been informed by
officials in both the benefits section and those at the pension
office on several occasions about the forfeiture
of his annuity
benefits should he terminate his services before the completion of
the ten years pensionable period.
No
response was received to the 3
rd
Respondent’s
letter dated 5 July 2007 from the Applicant. Instead, the Applicant
with the assistance of Adv Sekhwari,
made a referral to the 1
st
Respondent on 21 January 2008. In the referral form, the nature of
the dispute is characterised both as a matter of mutual interest
and
severance. The date upon which the dispute is alleged to have
arisen is indicated as July 2007. Together with the referral,
the
Applicant deposed to a founding affidavit in support of his
application for condonation. He states under oath that the dispute
arose on 10 July 2007 and that it is about six months late, he
having sought legal advice on 19 May 2007. He alleges that he
previously took the matter up with the 3
rd
Respondent as
well as the Labour Department, but that there was no progress; hence
he sought legal advice from Adv Sekwari in
May 2007.
On 6
February 2008, the 3
rd
Respondent served and filed an
opposing affidavit, in which it set out the history of the matter.
It alleged
inter alia
that prior to the termination of his
employment, the Applicant had not raised any formal grievance with
either the 3
rd
or 4
th
Respondents. He had also
been issued with a certificate of membership of the 4
th
Respondent as at 4 November 2002 and did not object to the date of
admission to the 4
th
Respondent on the certificate,
namely 1 June 2005. Also, prior to being discharged on 31 March
2005, the Applicant had been
advised by 3
rd
Respondent’s
officials that he was going to be disadvantaged if he left the 3
rd
Respondent’s employ before the elapse of ten years and that he
should stay another four months so as to complete ten years
pensionable service.
In his
replying affidavit, the Applicant alleged
inter alia
that the
delay was occasioned by the conduct of the 3
rd
Respondent’s officers who kept on promising him that they were
attending to his complaints whereas they were doing nothing,
without
specifying who the officials were and when the promises were made.
Further, that he had been to the Labour Department
on two occasions,
as well as attended upon the offices of the 3
rd
Respondent’s finance department’s Ms Mampwe Malema who
had undertaken to locate his file and revert to him. This
never
happened. He also denied that any advice was given to him by any of
the 3
rd
Respondent’s officials that he should wait
to complete ten years of pensionable service. He however, admitted
that the
degree of delay is two years.
The 2
nd
Respondent in declining to grant the Applicant applicant’s
application for condonation, held that the Applicant had failed
to
provide a comprehensive explanation for the lengthy delay, and thus
it was not necessary for him to consider Applicant’s
prospects
of success. He found also that the Applicant had attempted to fudge
the length of delay by concocting the date of
dispute as being July
2007.
Whilst
2
nd
Respondent’s reasoning may not show a full
appreciation for the principles enunciated in Melane v Santam
Insurance Co Ltd
1962 (4) SA531 (A) at 532C-F, in that excellent
prospects of success may perhaps compensate for a lengthy delay and
lack of a
comprehensive explanation for the lengthy delay when
exercising a discretion whether or not grant condonation, the ruling
under
review is not so unreasonable that no reasonable decision
maker could come to it. In fact, the Applicant did not seek the
indulgence
of condonation with clean hands, attempting to roll back
the clock only to July 2007, yet admitting in her replying affidavit
that the length of delay was two years.
The
fact
is
,
that the referral to the 1
st
Respondent was ill- conceived, and therefore has no prospects of
success. The Applicant’s alleged dispute is not one regarding
severance nor of mutual interest, and should therefore never have
been pursued in the 1
st
Respondent in the first place.
This is a dispute concerning his pension emoluments. As the
Applicant is precluded from approaching
the Pension Fund Adjudicator
in terms of
section 30A
of the
Pensions Fund Act No 24 of 1956
for
resolution of his pension dispute for reason that the 3
rd
Respondent as an organ of state is a contributor to the 4
th
Respondent, his remedy was as threatened in Adv Sekhwari’s
facsimile dated 19 May 2007, to have approached the High Court
for a
declaratory order that the date of commencement of his pensionable
service was 1 March 1995 and not 1 June 1995.
As
regards the costs in this matter, I am disinclined to order that the
Applicant pay the 3
rd
Respondent’s costs. It is
apparent from the 3
rd
Respondent’s affidavit
opposing condonation before the 1
st
Respondent, that it
had obtained legal advice at that time, by the case law quoted
therein. Also that it has been advised by
the state attorney in
this review application. Had the 3
rd
Respondent have
raised the issue that the Applicant was pursuing its pension dispute
in the incorrect forum, it would have in
all likelihood nipped this
review application in the bud.
I therefore make the following order:
The
Applicant’s review application is dismissed.
Each
party is to bear its own costs.
_______________________
S B Hardie
Acting Judge
APPEARANCES
APPLICANT: Adv MS Sikhwari
Instructed by AR Maidia Attorneys, Thohoyandou
THIRD RESPONDENT: Adv BM Lecoge
Instructed by the State Attorney, Johannesburg.