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[2014] ZALCJHB 219
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NEHAWU obo Motlanthe v MEC For Health Northern Cape and Others (JR2195/08) [2014] ZALCJHB 219 (23 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE NO: JR2195/08
In
the matter between:
NEHAWU
obo
MOTLANTHE Applicant
and
MEC
FOR HEALTH NORTHERN
CAPE First
Respondent
COMMISSIONER
CHARLTON
REX Second
Respondent
PUBLIC
HEALTH AND SOCIAL DEVELOPMENT
SECTORAL
BARGAINING
COUNCIL Third
Respondent
Heard:
14 January 2014
Delivered:
23 June 2014
Summary:
Application in terms of section 158(1)(C)for an arbitration award to
be made an order of court. Dilatory
conduct on the part of the First
Respondent. Review application not staying application in terms of
section 158(1)(C)
of the
Labour Relations Act 66 of 1995
as amended.
Award made an order of court in terms of
section 158(1)(C)
of the
Labour Relations Act 66 of 1995
as amended.
JUDGMENT
SNIDER,
AJ
[1]
In this matter the Applicant seeks that an award (“the
award”)
[1]
made by the
Second Respondent, acting under the auspices the Third Respondent be
made an order of this court.
[2]
This matter has its genesis in March 2005 when the Applicant appears
to have been absent from his place of employment from 9
March 2005
until 8 or 9 April 2005
[2]
.
[3]
In terms of the award the Second Respondent found the dismissal of
the Applicant to be substantively unfair, ordered his reinstatement,
with benefits, with effect from 4 February 2008 and further ordered
the First Respondent to pay the Applicant his outstanding salary
equivalent to eleven (11) months’ remuneration. The time for
compliance with the award was by no later than 29 February 2008.
[4]
The First Respondent launched a review application on 23 October
2008, according to the date of the notice of motion on the
application, however, the stamp on the notice of motion reflects 12
November 2008.
[5]
A courier document which follows the notice of motion in the review
application reflects the date 7 November 2008 and I am accordingly,
inclined to belief that the date reflected on the stamp is the
correct date of the filing of the application with this court.
[6]
The review application was thus launched some seven months late. The
explanation for the delay tendered by one Nolukhanyiso
Gcilitshana of
the State Attorneys, being the First Respondent’s attorneys, is
woefully inadequate. Even if one accepts the
rather strange
allegation that the instruction given to the state attorney was not
as voluminous as documents usually received
by the State Attorney and
that accordingly it is possible that from 15 February 2008 until 26
august 2008 the matter could have
gone, it is completely
incomprehensible why it would not be possible, shortly after 26
August 2008, bearing in mind how delayed
the matter already was, to
arrange for an interview with the relevant witnesses very swiftly.
[7]
The review application is essentially based on one point only, the
interpretation of section 17(5)(a) of the Public Service
Act
[3]
and this would have taken little consultation to achieve. There is
then absolutely no explanation whatsoever as to what happened
between
12 September 2008 and 12 November 2008, a period of two months,
before the review application was launched.
[8]
There is also no explanation at all as to why the First Respondent
did not follow up with its attorneys during the period from
15
February 2008 until 26 august 2008. This in itself militates against
the granting of condonation.
[4]
[9]
Although I am not adjudicating the condonation application in the
review application, if it is ever adjudicated, it is doomed
to
failure given the principles surrounding condonation applications. It
is trite that in an application for condonation a proper
explanation
for the delay must be given by the Applicant. There is clearly no
such explanation in the relevant affidavit.
[10]
The conduct of the Third Respondent continued in an extremely
dilatory fashion. It launched its review application on 12 November
2008 and, launched an application to compel the production of the
record against the First Respondent only on 29 June 2010.
[5]
[11]
It does not appear that the procedure to compel production of the
record commenced with the notice in terms of rule 7A(4) was
ever
pursued by the First Respondent and, in terms of the affidavits filed
in this application, nothing has been done since 29
June 2010 to
procure the record. The affidavit opposing this application is
materially lacking in this regard.
[12]
Even in respect of its answer in this matter the First Respondent
requires condonation for the late filing of its answering
affidavit.
[13]
Again the explanation given by the deponent to the First Respondent
answering affidavit, Felix Mlungiseleli Mbeki, again an
attorney
practicing in the office of the State Attorney gives an explanation
which is simply unsatisfactory. He alleges that he
instructed his
secretary to send copies of the application by courier to counsel on
6 October 2011 but only enquired as to the
progress of the matter on
30 November 2011 allegedly only to find that his secretary had
“inadvertently failed to dispatch
the application as
instructed”. The papers were then apparently dispatched to
counsel on 2 December 2011 and yet the affidavit
still took until the
13 February 2012 to be deposed to. Again this application for
condonation simply does not pass muster. In
principle, I should not
have regard to the allegations set out in the answering affidavit.
Once again the
dictum
in
Saloojee
(
supra
) is
apposite.
[14]
The only purpose which the answering affidavit serves is to further
illustrate the unacceptable conduct of the First Respondent
in this
matter.
[15]
In the premises, I see no reason why I should not grant the Applicant
the relief sought.
[16]
Accordingly, I make the following order -
1.
The arbitration award dated 24 January 2008
handed down by Commissioner Charlton Rex, under case number
PSH486-06/07 is made an
order of court in terms of section 158(1)(C)
of the LRA;
2.
The costs of this application are to be
paid by the First Respondent.
___________________________
Snider, A J
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For
the Applicant:
Nkopane Thaanyane
of Thaanyane Attorneys.
For
the Respondents:
Advocate Rathaga Ramawele
Instructed
by: the
State Attorney.
[1]
A
copy of the award appears at pages 9 to 13 of the papers.
[2]
The
award is contradictory in this regard. It refers to the period of
absenteeism being 9 March 2005 until 8 April 2005 at (page
10
paragraph 70) and also refers to a return to work on 9 June 2005
which must be an error. The Second Respondent probably intended
to
reflect 9 April 2005.
[3]
Act
103 of 1934 as amended
[4]
Saloojee
and Another NNO v Minister of Community Development
1965
(2) SA 135
(A)
dictum
at 141B – H.
[5]
Record
at pages 35 to 36.