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[2012] ZALCJHB 65
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Public Servants Association of South Africa obo Sehularo and Others v National Department of Water Affairs and Others (J2084/10) [2012] ZALCJHB 65 (11 July 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
Reportable
case
no: J2084/10
In the matter between:
PUBLIC SERVANTS ASSOCIATION
OF SOUTH AFRICA obo N A SEHULARO & OTHERS
Applicant
and
NATIONAL DEPARTMENT OF WATER
AFFAIRS
First
Respondent
DIRECTOR-GENERAL, NATIONAL
DEPARTMENT OF WATER AFFAIRS
Second
Respondent
MINISTER OF WATER AFFAIRS &
FORESTRY
Third
Respondent
Heard
:
10 July 2012
Delivered
:
11 July 2012
Summary:
(s 158(1)(c) application – pending application
to review and application to dismiss review application – Rule
7A(8)
not complied with after 21 months).
JUDGMENT
LAGRANGE, J
Background
This is an application to make an arbitration award, dated 22
January 2010 and issued under case number GPBC 250/2009 under the
auspices of the General Public Bargaining Council, an order of
court. It was launched on 17 November 2011. The award, which was
varied on 28 March 2010, required the respondents to upgrade or
alternatively promote the five individual applicants to level
11
salary levels with effect from various dates between 30 August 2007
and 2 September 2008.
On 8 September 2010, approximately five months late, the respondents
filed a review application to set aside the award, under
case number
JR 2534/10. Some twenty-one months since then, the respondents have
yet to comply with Rule 7A (8) of the Labour
Court rules by filing a
record and supplementary papers, if any.
On 27 March 2012, the applicants in this matter filed a
counter-application to dismiss the review application. Mr Mtsweni,
who appeared for the respondents, advised the court that he was
instructed that they were opposing this application, but there
was
no evidence before the court of any notice of opposition, let alone
an answering affidavit, having been filed in that matter.
Mr Mtsweni
also said he was instructed that the state attorney was attending at
the transcribers’ office at the time this
application was
being heard trying to determine what had happened to the
transcription of the record.
Merits
At the start of proceedings, the respondents raised a preliminary
objection to the s 158(1)(c) application being granted, on
the basis
that the review application to set the award aside was pending. Mr
Mtsweni pointed out that if the award was made an
order of court,
the review application could not proceed and therefore the court
should not entertain this application while
the review application
is pending.
Mr Van der Merwe, for the applicants also pointed out that nothing
prevents a party bringing an application to make an award
an order
of court when a review application is pending. In this regard, it
must be mentioned that in the much delayed review
application the
respondents are seeking an order suspending the award pending the
outcome of the review application.
The crisp question which arises, is whether the court should grant
the order sought in circumstances where a review application
and an
application to dismiss the application have been launched, where no
further steps have been taken by the respondents to
prosecute that
review since it was launched over twenty-one months ago and where
they have not even filed opposing papers in
the dismissal
application.
To compound matters, the respondents only filed their notice of
opposition to the s158 (1) (c) application on 8 March 2011 and
their
opposing affidavit was only filed on 27 June 2011, whereas both
these documents should have been filed by 1 December 2010.
Accordingly, they have applied for condonation for their belated
opposition in this matter.
In keeping with the tardiness of the respondents in finalising the
review application, their delay in opposing this application
is
extensive. In the case of the notice of opposition it was filed over
two months late and in the case of the answering affidavit
it was
nearly seven months late.
The explanation proffered for the delay may be summarised as
follows:
When the application was received on 30 November 2010 it was not
put in the normal pigeon hole of the assistant state attorney,
Mr T
Letageng, for reasons he or anyone else, cannot explain.
He was very busy and in and out of the office between then and when
he went on leave on 15 December 2010.
It only came to his attention on 23 February 2011 when it appeared
with files scheduled for his attention that day. He says
he
immediately filed a notice of intention to oppose the matter,
though in fact it took him more than a week to do this.
An unnamed legal officer of the respondent who had handled the
matter had been transferred to the Department of Agriculture
and it
was difficult to get hold of anyone who could assist and make the
arrangements for a consultation with the respondents’
deponent to the founding affidavit in the review application, a
director of the first respondent, Mr Holby. Counsel in the
review
application could not assist on short notice but she was issued
with a brief to draft an opposing affidavit in late
March 2011.
It was difficult to make an arrangement with Holby to look at
counsel’s draft, which was apparently available from
mid-April, and to make comments on it. No explanation was made why
Holby could not simply have been sent the draft and asked
to return
it with his comments. The state attorney also said he had other
pressing, but unspecified matters, to attend to.
The explanation for the delay is sketched in the broadest terms,
lacking any of the detail that should be contained in such an
explanation. Although Mr Holby deposed to the opposing affidavit on
23 June 2011, he did not even allude to the delay nor did
he depose
to a confirmatory affidavit on the contents of the state attorney’s
affidavit in support of the condonation application,
which the state
attorney completed the next day.
One striking feature about this vague and casual attempt to justify
the delay is that, it took two and a half month’s for
it to be
settled, after the draft affidavit had supposedly being prepared by
mid-April 2011. The court is expected to simply
accept that the
state attorney and Holby, a senior official, were unable to
communicate effectively with each other on the issue
for the whole
of this period and is left to imagine what might have made their
communications so difficult.
In the circumstances, it appears that the first portion of the delay
must be attributed to the inefficiencies of the state attorney’s
office in monitoring court process served on it and the bulk of the
rest of the delay must be attributed to a failure between
the state
attorney and the client to communicate effectively on finalising an
overdue response in a matter that should have occupied
their urgent
attention. The level of detail in this explanation is more akin to
what one might expect in pleadings, and does
not meet the standard
of detail required in an affidavit which must provide evidence of
what transpired.
In the circumstances, I cannot accept the explanation for the bulk
of the four month delay in filing a response from the time
the state
attorney alleges he became aware of the application on 23 February
2011. He must have been aware a response was overdue
by then. Yet no
attempt was made to contact the applicants to ask them for an
indulgence in filing opposing papers, or at least
that they would
not oppose a condonation application if the opposing papers were
filed by a certain date. Further, the explanation
why it took over
six weeks to finalise a draft answering affidavit is simply
inadequate. It is not sufficient simply to say that
counsel could
not attend to it on short notice. Just because the respondent’s
counsel of first choice was not available
does not mean no other
counsel could have been briefed. Given that the initial review
papers were available it should not to
have been that difficult for
another counsel to draft an answering affidavit.
The dilatoriness of the respondent’s handling of the matter
also takes place against the backdrop of its manifest failure
to
finalise its prosecution of the review application within a
reasonable time. Without attempting to demonstrate that it had
in
fact done anything in that matter since the founding papers in that
matter were filed, it raised that very application as
a
justification for the s 158(1) (c) application not being entertained
at this stage. On the papers as they stand the review
application
appears to be pending only in the formal sense that it has not been
finalised, and not that it is a matter that is
being constantly
worked on by the applicant.
At the very least, since the respondents wish to rely on that
pending application as the reason for not considering this one,
it
is reasonable to expect that it would have anticipated that they
ought to have tried to demonstrate to this court that it
was not
sitting on its hands, but that it was diligently pursuing the
matter. Even if the late filing of the opposing affidavit
was
condoned, it does not contain a scintilla of evidence of any action
on its part to finalise the review.
It should have been readily apparent to it that the delay in
finalising the review application would be pertinent to any
consideration
of whether that application justified staying this
one. At the very least, given that approximately a year and a half
has passed
since it was aware of the s 158(1)(c ) application, some
evidence of the steps it had taken to comply with rule 7A(8) ought
to
have been placed before the court if it wanted its opposition to
this application on account of the pending review application
to be
taken seriously.
In
Ntshangane
v Speciality Metals CC
[1998]
3 BLLR 305
(LC)
, which was also concerned an application
to make an award an order of court when a review application was
pending, Mlambo, J
(as he then was) noted that the respondent’s
argument in that case was similar to a stay application:
“
He [the respondent’s
representative] argued that this application should be stayed pending
the finalisation of the review.
To succeed in stay proceedings the
applicant must satisfy the Court that there are good prospects of
success in the pending matter,
that the balance of convenience is in
his favour and that it would be fair to stay the present proceedings.
See Kerbel v Kerbel 1987 (1) SA 562 (W); and Osman
v Hector
1933 CPD 507.
Indeed it is so that the mere fact of a pending review is not a
bar to this Court making an award an order of Court. It is for
whoever
relies on the pending review argument to instil a
well-grounded conviction in the mind of the Court that the prospects
of success
of the review are reasonably good.
See Dickinson v South African General Electric Co (Pty) Ltd
1973 (2) SA 620 (A) at 630F–H.”
1
In a later judgment, which endorsed the approach of the court in
Ntshangase
, Murphy J stated:
“
[24] ...
The power
to make an award an order of court under
section
158(1)(c)
of
the LRA (or concomitantly to stay enforcement of an award under
section
145(3)
is
a discretionary power to be exercised judicially, and in general
should be applied in favour of lending enforceability to an
award in
the interests of bringing finality to labour disputes. The prospects
of success are therefore only one consideration.
Equally important
are the balance of convenience and the requirements of fairness.
[25] In Khoza v Sasol Ltd
[2002]
9 BLLR 868
(LC) Ntsebeza AJ for instance gave particular
consideration to the prejudice likely to be suffered by each of the
parties if the
award were made an order. In Professional Security
Enforcement v Namusi
[1999]
6 BLLR 610
(LC) Grogan AJ held that where a party had not
protected its interests for six months and only sought to oppose it
on hearing that
the other party was pursuing its application to have
the award made an order of court (much like the respondent in this
case),
the conduct was so tardy that it did not warrant further
frustrating the other party’s bona fide attempts to have the
award
made an order of court. As he put it:
“
The object of expeditiously resolving
labour disputes would certainly be compromised were employers to be
permitted with impunity
to ignore awards indefinitely without taking
action under
section
144
or
145
,
and then block the employee when he
ultimately seeks to have the award enforced under
section 158(1)(c)
.”
In other words, the discretion of the court
under
section
158(1)(c)
when faced with a pending review application, which has
not been conscientiously prosecuted, must be exercised taking account
of
the prospects of success, the balance of convenience, the parties,
conduct in litigation, the policy of the Act, the interests of
the
administration of justice and the general tenets of fairness.”
2
In the light of the weakness of the respondents’ condonation
application, I am strongly inclined to refuse it and decide
this
application on an unopposed basis. If I did so and found, after
considering the factors mentioned in the judgments above,
that the
award should be made an order of court then, that would prevent the
consideration of its review application as Mr Mtswene
rightly points
out.
3
His instructions were in effect that the transcribers should have
already been busy with preparing a transcription of the arbitration
hearing. If so, the respondent should have no difficulty in
finalising the filing of a record and any supplementary submissions
in terms of Rule 7A (8) within a few weeks of yesterday’s
hearing. A full assessment of the merits of the review application,
the application to dismiss it and this application could then be
made on the best available information. The set down of the
matter
can be expedited. Given the long period of delay to date, a further
relatively short delay would not be unduly prejudicial
to the
applicants.
Mr Mtswene himself suggested as an alternative to determining this
application now, a consolidation of this matter and the applications
in the review matter and an expedited timetable for the respondents
to finalise their review could be ordered. In the exercise
of my
discretion, I think this would be more desirable to deal with this
application along those lines, provided the matter is
handled
expeditiously.
Nevertheless, there is no reason why the applicant should bear the
wasted costs of yesterday’s appearance given the respondents’
conduct of the matter.
Order
In the circumstances, the following order is made:
The application to make the arbitration award dated 22 January 2010
issued under case number GPBC 250/2009 an order of court
is
postponed to the hearing of the consolidated matter referred to
below.
This application is consolidated with the review application and
the counter application to dismiss the review application
filed
under case number JR 2534/10.
The respondents in this matter are ordered to comply with Rule 7A
(8) of this court’s rules by no later than 9 August
2012.
In the event that the respondents wish to oppose the application to
dismiss the review application they must file any notice
of
opposition and answering affidavit together with a condonation
application for the late filing thereof within 10 days of
this
order.
The registrar is directed to enrol the consolidated application as
soon as possible after 16 August 2012, irrespective of whether
the
respondents have complied with the steps above.
The respondents must pay the wasted costs of the applicants’
appearance and representation on 10 July 2012.
R LAGRANGE, J
Judge of the Labour Court of South
Africa
APPEARANCES
APPLICANTS:
F Van der Merwe instructed by Bouwers Inc
FIRST RESPONDENT:
D V Mtswene instructed by the State Attorney
1
At
304-5,[13]-[14]
2
NEHAWU
obo Vermeulen v Director General: Department of Labour
[2005] 8 BLLR 840
(C)
at
840.
3
See
Blue Marine (Pty) Ltd v Commission for
Conciliation, Mediation & Arbitration & others
(2003) 24
ILJ
1528
(LC)
at 1532,[15]-[16]
and
Dartprops (Pty) Ltd
v CCMA & others
[1999] 2 BLLR 137
(LC)
at
137,[8] - [10]