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[2012] ZALCJHB 191
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Jansen v General Public Service Sectoral Bargaining Council and Others (JR1470/08) [2012] ZALCJHB 191 (15 March 2012)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO. JR1470/08
IN
THE MATTER BETWEEN:-
T
C
JANSEN APPLICANT
AND
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
1
ST
RESPONDENT
I
M SHONGWE
NO
2
ND
RESPONDENT
AND
NATIONAL
PROSECUTING AUTHORITY
3
RD
RESPONDENT
Date of hearing:
13 December 2011
Date of Judgment:
15 March 2012
Summary:
Dismissal and
Review Application. Condonation for the delay in
prosecuting the matter.
JUDGMENT
SESELE AJ
Introduction
[1] There
are two applications in this matter. The first one is the
application for
dismissal of the review application and the second
one is the application to review and set aside the award dated 25
March 2008
issued by the second respondent under case number
PSGA1024-06/07.
Background facts
[2]
The following are common cause in both applications:-
·
that application for
dismissal was filed on 4 June 2009. The third respondent
filed its notice of intention to oppose
on 16 September 2009 followed
by its answering affidavit on 4 November 2009.
·
that the application
for review was filed on 30 July 2008 after the award was issued on 25
March 2008;
·
that the application
was filed outside the six week prescribed in terms of section 145
of the LRA;
·
that the first
respondent filed the notice in terms of Rule 7A(2)(b) on 9 February
2009 and the explanatory affidavit confirming
having dispatched the
conciliation referral form; arbitration referral form; outcome
certificate, notices of set-down, reports,
the award and 1XCD;
·
that on 20 January 2009
a letter was sent on behalf of the third respondent to the first
respondent advising that the contents of
the CD were transcribed and
part thereof was missing and that the exhibits handed in at the
arbitration hearing were also missing;
·
that the first
respondent filed the supplementary affidavit on 9 February 2009
confirming that the exhibits and the second respondent’s
hand-written notes could not be found;
·
that the second
respondent filed his explanatory affidavit confirming that the second
respondent could not trace the hand-written
notes or the annexures
used in the arbitration hearing; and that second respondent further
advised that the documents handed in
at the arbitration hearing were
common cause to both parties.
Condonation
Applications
[3]
There are applications for condonation in both the application to
dismiss the review application
and the application for review itself.
Both parties basically rely on similar background for and against
both applications for
condonation. They further refer to more or less
similar authorities to advance their respective cases. For
convenience both applications
for condonation are dealt with under
this heading.
[4]
The third respondent concedes that it is twenty one weeks late in
filing its answering
affidavit in opposition to the application
to dismiss the review application. The third respondent refers to the
background that
I outlined in paragraph 2 above and I shall
accordingly not repeat same at this stage. The third respondent’s
explanation
for the delay is that the notice of intention to oppose
was drafted upon receipt of the application to dismiss on 3 June 2009
but
that its file was subsequently misfiled and placed in a pile
marked “Closed files”. The notice of intention to
oppose was only filed on 12 August 2009 when the file was found.
The deponent deals with many files and oversees ten Assistant
State
Attorneys and three Candidate Attorneys. As a result of his
work load it was an oversight not to take immediate steps
to instruct
Counsel to file the opposing papers. This was therefore a
bona
fide
error.
[5] Even
if it is found that the explanation does not constitute a reasonable
and acceptable
explanation it will not be necessarily regarded as an
absolute bar to condonation. (PPWAWUN & Others v AF Dreyer
&
Co (Pty) Ltd
[1]
) .
[6]
In terms of Rule 7(A) and (7) the applicant in the review application
has to file a record
of the proceedings. The purpose hereof is
to ensure the Court has all the evidence and documentation which were
used before
the Commissioner to enable proper adjudication of the
matter (JDG Trading (Pty) Ltd t/a Russels v Whitcher NO &
Others
[2]
).
[7] The
first respondent convened a reconstruction hearing on 4 March 2010 at
the request
of the third respondent. The second respondent
issued the reconstruction report on 24 June 2010. The second
respondent
reports as follows regarding the reconstruction hearing:-
“
The
applicant’s advocate indicated that he was no longer going to
be available for the reconstruction of the record, though
he was
prepared to consider documentation exchanges between the parties.
The applicant himself indicated a similar position
but I cautioned
him against this as this approach may negatively affect him in the
final analysis when a determination has to be
made if adequate effort
was made to reconstruct the record.”
[8]
The applicant did not attend the reconstruction hearing which the
parties agreed to
hold on 3 December 2010. The second
respondent issued the Cost Ruling against the applicant for failure
to attend the reconstruction
hearing.
[9] The
third respondent thus took all necessary steps to comply with Rule
7(A)(6) and
(7) of the Rules of Court but the applicant did not
co-operate. The third respondent’s attorneys further sent
to the
applicant the letter dated 29 July 2010 to which the paginated
bundle of the reconstructed record of the arbitration proceedings
was
attached. In the letter which seems to be incorrectly dated 10
July 2010 the applicant indicated disagreement to the
reconstructed
bundle. The applicant further concluded in the letter that “…
it is the applicant’s submission that the record cannot be
reconstructed
”
[10] The
third respondent took necessary steps in an attempt to reconstruct
the record. It is
not prudent for the applicant to argue that
notwithstanding the failure of the various reconstruction hearings
this Honourable
Court will be capable of adjudicating the application
for review. Lifecare Special Health Services (Pty) Ltd t/a
Ekuhlengeni
Care Centre v CCMA & Other
[3]
.
[11] The
applicant argues that Rule 12(2) entitles a party to compel another
where there has been no
compliance with the Rules. The
applicant did not compel the third respondent. (Bezuidenhout v
Johnston & others
[4]
)The
applicant submits he did not compel the third respondent to comply in
terms of Rule 12(2) because of lack of financial resources.
The
third respondent should be penalized for failure to timeously
prosecute the application for no acceptable reasons.
(
NEHAWU
obo Vermeulen v Director-General: Department of Labour
[5]
and Bezuidenhout v Johnston NO & Others
[6]
)
[12] The
applicant submits that the third respondent did not expeditiously
prosecute the application
for review. The Court has authority
to dismiss the review application. (Solidarity obo Botha v CCM
& Others
[7]
)
[13] The
applicant submits that the third respondent did nothing to
reconstruct the record even though
the first respondent so advised
during 2009. The applicant’s application to dismiss the
review application is what
prompted the third respondent to file the
notice to oppose. The third respondent only started the
reconstruction process
two years after the award was made.
Three reconstruction meetings were held. The applicant
subsequently expressed his
frustrations with the process relating
Counsel’s costs. The applicant did assist in the
reconstruction process
in line with Lifecare Special Health Services
t/a Ekuhlengeni Case Centre v CCM & Others
[8]
.
If the record could not be reconstructed notwithstanding efforts to
his effect certain material evidence could be dealt with as
in
Nathaniel v Northern Cleaners Kya Sands (Pty) Ltd
[9]
.
[14] The
third respondent’s explanation for non-compliance is vague and
lack substance.
The third respondent showed gross
non-compliance with the Rules of Court. The delay of five months to
launch the review application
in terms of section 158(1) (g) was
found excessive and no reasonable explanation could be given.
(Rustenburg Gearbox Centre v Geldmaak
Motors CC t/a MEJ Motors
[10]
,
Weltevrede Kwekery (Pt) Ltd v CCMA & Others
[11]
,
Shoprite Checkers (Pty) Ltd v CCMA & Others
[12]
,
Moila v Shai & others
[13]
)
Prejudice
[15] The
third respondent submits that the second respondent award pays no
regard to the third respondent’s
constitutional duty to uphold
the rule of law. The award does not reasonably appreciate the
caliber of prosecutors required.
The delay to prosecute the
review application, however, long cannot outweigh the harm to the
public arising from the applicant’s
continued employment as
public prosecutor. The third respondent can simply not continue to
employ the applicant as a result of
the allegations against the
applicant.
[16] The
third respondent feels duty bound to pursue this matter as it
involves serious misconduct
of fraud and corruption for which the
applicant was dismissed. The second respondent’s award
was mainly based on the
insufficiency of the evidence which the third
respondent presented at the arbitration hearing. A witness
whose evidence was
crucial was not brought to the hearing.
Instead, the police officer who was tasked with this responsibility
brought a different
person sharing the same surname with the intended
witness. When realising the mistake an application for
postponement was
made on behalf of the third respondent but the
second respondent refused the application. The second
respondent further refused
to admit the transcript of the
disciplinary hearing where the intended witness testified same.
[17] The
factors to be considered in the application for condonation are set
out in the Melane v Santam Insurance
Co Ltd
[14]
are the degree of lateness, the explanation thereof, prospects of
success and the importance of the case. The Court said:-
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence, it is matter of
fairness to both sides.
Among the factors
usually relevant are the degree of lateness, their explanation
thereof, the prospects of success and the importance
of the case.
Ordinarily these facts
are inter-related: they are not individually decisive, for that
would be a piece-meal approach incompatible
with the true discretion,
save of course that if there are no prospects of success there would
be no point in granting condonation.
What
is needed is an objective conspectus of all the facts. Thus a
slight delay in a good explanation may help to compensate
for
prospects of success which are not strong. The importance of
the issue and strong prospects of success may tend to compensate
for
a long delay
.”
[18] In
Brummer v Gorfield Bros Investments (Pty) Ltd & Others
[15]
,
the Constitutional Court said “Ultimately condonation should be
granted if it is in the interest of justice to do so”
The
Labour Court in Toyota SA Marketing v Shemzer
[16]
said the decision whether or not to grand condonation is “to be
based on fairness having regard to all the relevant facts”
[19] In
Gqwetha v Transkei Development Corporation Ltd & Others
[17]
,
the court said this which is particularly apposite to the present
matter:-
“
In
the present case, it cannot be assumed that if the challenged
decision were to be set aside the Appellant’s further
employment
is assured. The first respondent would not be
obliged to sweep under the carpet the serious allegations that led to
the applicant’s
dismissal and permit her employment to continue
as before. It will be entitled to pursue its enquiry de novo
(indeed, it
might be duty bound to do so before again permitting the
Appellant to assume her position of trust) provided that the enquiry
is
not conducted irregularly. I see no reason for confidence that the
setting aside of the decision to dismiss the Appellant on the
grounds
that there were procedural irregularities which were necessarily
having a meaningful result …”
[20] The
applicant suffered emotionally and financially due to the unwarranted
delay including the
reconstruction hearings.
Prospects of success
[21] The
third respondent states that the matter was not being pursued until
certain information came
to light pertaining to the alleged agreement
to have used the transcript of Mthombeni’s evidence which
agreement the applicant
reneged from. Reneging from this
agreement precipitated the application for a postponement which the
second respondent did
not grant. The importance of the matter,
so the third respondent submits, lies in the fact that the
allegations of fraud
and corruption against the applicant are a
matter of public interest since the applicant was a prosecutor.
[22] The
applicant opposes this application on the grounds that the
explanation for lateness is unacceptable,
there are no prospects of
success and that the application is frivolous and vexatious.
[23] The
third respondent filed unattested affidavit of Derrick Mahlangu and
has not been able to locate
its witness Mr Mthombeni. Inspector
Mtsweni denied having brought Mr. Mthombeni to the disciplinary
hearing as alleged by
the third respondent.
[24] It
is irresponsible, misleading and defaming to allege that the
applicant conducted his prosecutorial
duties in a corrupt fashion.
The second respondent found no evidence in this regard hence the
award went in favour of the
applicant.
[25] The
second respondent did not commit gross irregularity by refusing to
grant a postponement since
a postponement is not a right
(Madzivhndila v Law Society of the Northern Provinces
[18]
).
Analysis of
applications for condonation
[26] The
third respondent conceeded that the delay to file its answering
affidavit in opposition the
application for dismissal was long.
In fact all other processes filed on behalf of the third respondent
were way out of time.
The question is whether the delay should
be condoned.
[27] The
factors for consideration in this application were formulated in
Melane v Santam Insurance
Co Ltd
[19]
as the degree of lateness, the explanation thereof, prospect of
success and the importance of the case. The explanation
pertaining to administrative problems are not necessarily decisive.
These should however also be seen in the light of
the conduct of both
parties regarding the reconstruction of the record. This
process might have been undertaken after some
delay but the
applicant’s approach to it is not entirely without blame.
In this regard the second respondent
made a cost ruling against the
applicant and has indeed expressed unfavourable findings against the
applicant in the Way forward
Report.
[28] The
applicant was dismissed for serious misconduct involving corruption.
It obviously speaks
for itself that this allegation, given the
applicant’s position as public prosecutor, ultimately affects
the administration
of justice. It is apparent from the third
respondent’s intention to pursue this matter that it is one
which will not
just be “swept under the carpet” as it was
remarked in Gqwetha v Transkei Development Corp Ltd & Others
[20]
.
[29]
The third respondent has shown good cause why its application for
condonation to oppose the application
to dismiss the review
application should be condoned. The application to dismiss
therefore fails.
[30]
The arguments in respect of the condonation application in the
application to dismiss apply with
equal effect to the condonation
application for the late filing of the review application. I
accordingly find that the third
respondent’s application for
condonation should succeed.
Grounds for review
[31] The
third respondent contends that the second respondent found in favour
of the third respondent based
on insufficient evidence presented.
The second respondent refused to grant the application for a
postponement to secure the
attendance of the correct witness called
Mthombeni. The police officer had brought a different Mthombeni
to the arbitration
hearing. The refusal to grant the
postponement was therefore prejudicial to the applicant’s case.
Submissions
[32] The
applicant concedes that the part of record pertaining to the
application for a postponement
and exhibits thereto cannot be traced
thus rendering it impossible for the applicant to answer the third
respondent’s allegations.
[33] The
applicant contends that the granting of a postponement is not a right
but involves the exercise
of discretion by the Court.
(Madzivhandila v Law Society of the Northern Provinces
[21]
)
[34] The
applicant submits the test for review requires that the
administrative action must be lawful, reasonable
and procedurally
fair (Sidumo & another v Rustenburg Platinum Mines Ltd &
Others
[22]
. The review
court’s task is to pronounce on the correctness or otherwise of
the administrative decision maker.
(MEC for Public Works, Roads
and Transport, Free State & Another v Morning Star Minibus Hiring
Service (Pty) Ltd & Others
[23]
).
[35] It
cannot be contended that the award is not rationally justifiable
because evidence could not
be placed before the Commissioner
(Nathaniel v Northern Cleaners Kya Sands (Pty) Ltd & Others
[24]
).
[36] The
courts should be slow to intervene with arbitration awards unless
there is a clear case for
interference. (Lefumo Mphadluli &
Associates (Pty) Ltd v Andrews
[25]
).
Analysis
[37] The
crux of the third respondent’s case is that it was denied a
postponement to secure attendance
of the witness called Mthombeni.
This witness had apparently testified at the disciplinary hearing
hence the applicant requested
to hand in the transcript of the record
of the disciplinary hearing which request was refused. The
reasoning of the second
respondent is that the disciplinary hearing
proceeded in the absence of the applicant and Mthombeni was therefore
not subjected
to cross-examination.
[38] The
application for a postponement in this case is not captured in the
award. There s thus
no indication that the second respondent
applied her mind to the application for postponement. The third
respondent’s
case is that the witness it intended to call had
the postponement been granted is material to its case. The
second respondent
seems to have been alive to this fact because
second respondent’s records as follows in paragraph 15 of the
award: -
The evidence is clear in a number of respects as
testified by the respondent’s witnesses, and to some extent the
applicant.
Had a witness called Mthombeni attended the hearing
to confirm what van Heerden said, there is a chance that applicant’s
case was going to be done a severe blow.
[39] The
law on postponement is restated in the Bargaining Council for the
Building Industry v Mabalane
NO & Others
[26]
where the court said:-
“
It
is trite that the granting of an application for postponement is not
a right but an indulgence granted by the CCMA or the Court
in the
exercise of judicial discretion see Real Estate Services (Pty) Ltd v
Smith (1999) 20 ILJ 196 (LC). It is also trite
that an
application for a postponement must be bona fide and not used simply
as a technical maneuver for the purpose of obtaining
an unfair
advantage over the opposing party. In considering an
application for a postponement, the Court or the CCMA must
also weigh
up whether any prejudice caused by a postponement can fairly be
compensated by an appropriate cost order. The
CCMA must also
weigh up the balance of convenience or inconvenience to both parties
which will be caused by a postponement against
the prejudice or
inconvenience which will be caused to the applicant for a
postponement if the application is not granted”.
[40] In
the Mabalane decision the commissioner relied on the prior decision
of the senior commissioner
in his refusal to grant the postponement.
This is similar to the approach of the second respondent to the
applicant’s
application for a postponement. In the
absence of the record or some indication in the award of what
transpired on this aspect
the inescapable conclusion is that the
second respondent did not apply her mind to the application for the
postponement.
The result hereof is therefore that the third
respondent was prejudiced in its case.
[41] On
reconstruction of the record the court said in in Lifecare Special
Health Services (Pty) Ltd
t/a Ekuhlengeni Care Centre v CCMA &
others
[27]
the court said:-
“
A
reconstruction of a record (or part thereof) is usually undertaken in
the following way: The tribunal (in this case the
commissioner)
and the representatives (in this case and Ms Reddy for the employee
and Mr. Mbelengwa for the employer) come together,
bringing their
exact notes and such other documentation as to the best of their
ability and recollection to reconstruct as full
and accurate a record
of the proceedings as the circumstances allow. This is then
placed before the relevant court with such
reservations as the
participant may endeavors is adequate for the purpose of the appeal
or review is for the court hearing same
to decide, after listening to
argument in the event of a dispute as to accuracy or completeness.
[42] In
the present case three reconstruction hearings were held. The
second respondent found
that no progress was made to reconstruct the
record. Both the applicant and the third respondent concede
that the process
was not successful for one or other reason.
Even the bundle of documents could not be reconstructed. These
suggest
that nothing can be placed before this court to decide.
The Lifecare Special Health Services approach can therefore not be
followed in the present case.
[43] The
third respondent has been tardy in filing the review application, the
notice to oppose the
application to dismiss and the answering
affidavit thereto. On the other hand the applicant was found by
the second respondent
to have been obstructive to the reconstruction
process. The conduct of both parties in these applications is
such that each
party should bear own costs.
Order
I
therefore make the following order:-
1.
The application for
condonation in the application to dismiss the application for review
is granted.
2.
The application to
dismiss the application for review is dismissed.
3.
The application for
condonation of the late filing of the review application is granted.
4.
The arbitration award
dated 25 March 2008 under case number PSGA1024-06/07 is reviewed and
set aside
5.
The matter is remitted
to the first respondent for hearing before a commissioner other than
the second respondent; and
6.
There is no order as to
costs.
____________________
SESELE AJ
Appearances:
For the applicant Mr. S
Hardie, Stephen Hardie Attorneys
For the respondent Adv A
Mosam, instructed by the State Attorney
[1]
(1997)
9 BLLR 1141
(LAC)
[2]
[2005] ZALC 1
;
[2001]
3 BLLR 300
(LAC) at 304
[3]
[2003] 5
BLLR 417 (LAC)
[4]
[
2006]
12 BLLR 1131
(LC)
[5]
[2005] 8
BLLR 840 (LC)
[6]
[2006] 27
ILJ 2337 (LC).
[7]
[2009]
3 BLLR 257 (LC).
[8]
[2003] 5
BLLR 16(LAC)
[9]
[2004]
2 BLLR 157 (LC).
[10]
[2003]
5 SA 468 (T)
[11]
[2006]
7 BLLR
[12]
[2009]
39A 493 (SCA)
[13]
[2007] 5
BLLR 432 (LAC)
[14]
1962(4) SA
531(A) at 532 C-F
[15]
2000 (2) SA
837 (CC)
[16]
2002 (12)
BLLR 1164 (LAC)
[17]
2006 (2) SA
603
SCA
[18]
[200] 1 ALC
129 (SCA)
[19]
1962(4) SA
531 A
[20]
2006 (2) SA
603 (SCA)
[21]
[2009] 1
ALL SA 124 (SCA)
[22]
[2007] 28
ILJ 2405 (CC)
[23]
2003(4) SA
429(O)
[24]
[2004] 2
BLLR 157 (LC)
[25]
2009(4)
SA 529 CC
[26]
JR 1546/02
[2007] ZAL (55)
[27]
[2007] ZALC 89
;
[2003] 5
BLLR 417
(LAC)