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[2014] ZALCCT 32
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Department Of Health v Fortuin and Others (C747/2012) [2014] ZALCCT 32 (8 May 2014)
IN THE LABOUR COURT OF
SOUTH AFRICA
(
HELD
IN CAPE TOWN
)
CASE
NUMBER
: C747/2012
DATE
:
8 MAY 2014
In the matter between:
DEPARTMENT
OF HEALTH
Applicant
and
K
FORTUIN
First
Respondent
C S
MBILENI N.O.
Second
Respondent
PHSDSBC
Third
Respondent
DENOSA
Fourth
Respondent
J
U D G M E N T
STEENKAMP,
J
:
What served before the
Court today is –
an
application for condonation in respect of the late filing of an
application for review by the applicant, the Department of
Health,
Western Cape;
a
counter-application from the first and fourth respondents, that is
the employee, Nurse K Fortuin, and her trade union, DENOSA,
to make
the award under attack an order of Court; and
an
incidental application to join DENOSA as the fourth respondent.
Although
I will revert to it at the end, I may as well note at the outset that
the application to join DENOSA as the fourth respondent
is granted.
It is not opposed and it appears in any event that the Department of
Health in its application for condonation
accepted that DENOSA is a
respondent in the matter.
The
Court dealt earlier today, after the lunch adjournment, with two
preliminary issues and made two preliminary rulings in respect
of the
conduct of the State Attorney in this matter. I gave
ex
tempore
reasons for those orders at the
time.
Unfortunately,
the history of this matter, leading to the present application for
condonation, has been exacerbated by the further
conduct of the
Department, of the State Attorney and its counsel, as evidenced by
the history leading up to the application for
condonation. I
will deal with that application shortly at the hands of the well
known principles set out in
Melane v
Santam Insurance Company Limited
1962
(4) SA 531
(A) and further authorities.
The
application is almost two years out of time. Mr
Van
der Schyff
, who appeared for the
Department, conceded quite properly that it is an excessive delay.
With regard to the reasons for delay,
he also conceded that there is
no proper explanation. That should have been the end of the
matter. I will nevertheless
deal with those issues briefly.
The
parties received the award on 19 August 2010. The Department
only filed the review application on 13 September 2012 and
only filed
its application for condonation more than a month later. The
State Attorney was instructed as long ago as December
2010.
There was then a period during which the parties discussed a possible
“super arbitration”. However, the
case of this nurse, Ms
Fortuin, was not part of that process. Nevertheless, even after
those negotiations had concluded the
State Attorney did nothing else
for more than a year.
It
is trite that an applicant for condonation is required to explain not
only the chronology of events but also to account for each
period of
time that lapsed between those events. Insofar as any further
authority is necessary, Ms
Harvey
referred in that regard for example to
Imatu
obo Zungu v South African Local Governing Bargaining Council
(2010) 31
ILJ
1413 (LC) at paragraph 13.
In
brief, there is no good reason for the 14 week delay between
receiving the award and instructing the Department’s legal
services to review it. There is no good further reason for the
two week delay before legal services sent the matter to the
office of
the State Attorney. There then follows the possible super
arbitration that I had alluded to. There is then
a 7 week delay
before the State Attorney consulted with counsel.
Firstly, the State Attorney does not explain why it
was necessary to
consult with counsel; but in any event is there is no proper
explanation for that delay other than that the deponent
to the
founding affidavit, Mr Liebenberg, was involved in training in the
Southern Cape. There is no explanation why he somehow
was
uncontactable in the far reaches of the Southern Cape.
Most
alarmingly, Ms Melapi, who deposes to the application for condonation
on behalf of the State Attorney, says that the matter
“fell by
the wayside” for a period of 9 months. That is a shocking
concession to be made by an attorney.
Unfortunately not only
this Court, but the Constitutional Court has had occasion far too
often to remark on the lax approach that
the State Attorney, and
specifically this office in Cape Town of the State Attorney, takes in
dealing with matters.
In
the recent case of
Grootboom v National
Prosecuting Authority
[2014] 1 BLLR 1
(CC) Bosielo AJ dealt at some length with the conduct of this office
of the State Attorney in the matter before the Constitutional
Court.
In the course of so doing he made some remarks that have gone
unheeded. It has become necessary, it appears,
for this Court
to quote from that judgment at some length. At paragraph 21 the
Constitutional Court says:
“
The
failure by parties to comply with the rules of Court or directions is
not of recent origin. Non-compliance has bedevilled
our courts
at various levels for a long time. Even this Court [i.e. the
Constitutional Court] has not been spared the irritation
and
inconvenience flowing from a failure by parties to abide by the rules
of this Court.”
Bosielo
AJ then goes on to say at paragraph 23:
“
It
is now trite that condonation cannot be had for the mere asking.
A party seeking condonation must make out a case entitling
it to the
court’s indulgence. It must show sufficient cause.
This requires a party to give a full explanation
for the
non-compliance with the rules or Court’s directions. Of
great significance, the explanation must be reasonable
enough to
excuse the default.”
I
pause there to note that the Constitutional Court refers not only to
the rules, but also to the Court’s directions, with
which
neither the State Attorney nor its counsel has complied in the case
before me today. I return to the
Grootboom
judgment at paragraph 25 where the Court refers to the explanation
proffered by the State Attorney in that case. Bosielo
AJ notes
that Ms Bailey in the State Attorney’s office was aware of the
date of set down, but that she had not even furnished
counsel with a
copy of the directions. It appears that the same happened in
this case. The Constitutional Court then
says at paragraph 27:
“
This
points to some laxity in the office. However, as the official
in charge of the office, she [that is Ms Luter] has offered
her
apologies to this Court for the inconvenience. This evinces her
appreciation for her duty and responsibility to the Court,
her
clients and other parties to the litigation. This should be
seen in the light of her responsibility to assist the Courts
to
maintain their ‘independence, impartiality, dignity,
accessibility and effectiveness’. One can only hope that
she will inculcate the same sense of conscientiousness in her
subordinates to avoid a recurrence of such an embarrassing
situation.”
Sadly
it appears that that word of caution from the highest Court in the
land, directed specifically to the office of the State
Attorney in
Cape Town, has gone unheeded. The Constitutional Court goes on
to say at paragraph 29:
“
During
the hearing counsel for the respondents could offer no acceptable
explanation. Confronted with this quandary he had
to concede
that the lapses are inexcusable. Ordinarily this concession
will have sounded the death knell of the respondents’
case.”
Again,
this is depressingly similar to the case before me. Bosielo AJ
goes on to say at paragraph 30:
“
There
is another important dimension to be considered. The
respondents are not ordinary litigants. They constitute an
essential part of government. In fact, together with the office
of the State Attorney, the respondents sit at the heart of
the
administration of justice. As organs of State, the constitution
obliges them to ‘assist and protect the courts’
to ensure
the independence, impartiality, dignity, accessibility and
effectiveness of the courts.”
And
I then quote further from paragraph 31:
“
The
primary duty of the office of the State Attorney is to serve the
interests of the government by initiating proceedings on behalf
of or
defending any proceedings against the state. I need to remind
practitioners and litigants that the rules and Court’s
directions serve a necessary purpose. Their primary aim is to
ensure that the business of our courts is to run effectively
and
efficiently. Invariably this will lead to the orderly
management of our courts’ rolls which in turn will bring
about
the expeditious disposal of cases in the most cost effective manner.
This is particularly important given the ever
increasing costs of
litigation which, if left unchecked, will make access to justice too
expensive.”
I
need not go any further other than to point out that the state,
including the office of the State Attorney, appears to be impervious
to those ever increasing costs of litigation because those costs are
invariably borne by the taxpayer when the State Attorney and
its
clients do not adhere to the rules and directions of this Court and
other courts.
In
the absence of a compelling explanation it is not necessary to
consider the applicant’s prospects of success on review.
That much again has been held in a number of cases including
Moila
v Shai N.O.
[2007] 5 BLLR 432
(LAC) and
National Union of Mineworkers v Council
for Mineral Technology
[1993] 3 BLLR
209
(LAC).
I
will nevertheless deal briefly with the prospects of success as
well. In his submissions before the Court this morning,
Mr
Van
der Schyff
confined himself to one
ground raised belatedly for the first time before Court today and not
foreshadowed by the Department’s
initial review application.
He did not persist with any of the grounds of review raised in the
application for review.
His only submission was that the award
that his client seeks to review and set aside is in fact not an award
at all.
As
Ms
Harvey
pointed out, the absurdity of that argument is self-evident. It
would mean that the Department seeks to review something
that is
non-existent. Mr
Van
der Schyff
goes further to say that the award is a “misnomer”,
whatever that may mean in law; that in law an award has not
yet been
handed down; and that the award is null and void. He appears to
base that argument on an unreported
ex
tempore
judgment by the Labour Appeal Court. He has not bothered to
make that judgment available to the Court and it is quite obvious
that the Court simply cannot consider such a judgment, if it exists.
And in any event, an arbitration award – like any
administrative
decision -- is valid and enforceable until properly
set aside by a Court.
[1]
Insofar
as the Department’s argument today can be dealt with in terms
of its initial grounds of review, the Court has to consider
whether
those grounds have any merit.
The
award stems from a collective agreement known as an occupational
specific dispensation or OSD that took effect on 1 July 2007.
It relates to the so-called translation of nurses from the positions
they held on 30 June 2007.
Its
common cause that the OSD is a collective agreement and that it
enjoys the special status afforded to collective agreements
in terms
of section 23 of the Labour Relations Act, as recently confirmed by
the Constitutional Court in
CUSA v Tao
Ying Metal Industries
[2009] 1 BLLR 1
(CC) at paragraphs 55 to 56.
Mr
Van der Schyff
appeared to argue that, despite the fact that the Department told the
arbitrator that the facts before him were common cause and
that there
was no need to hear evidence, the arbitrator should nevertheless have
insisted upon evidence by way of either oral evidence
or affidavits.
He
says that it appears from the award that the facts were actually not
common cause. However, on the evidence before this
Court that
largely encompasses the evidence that served before the arbitrator,
it appears that the facts were in fact common cause,
as set out in
the trade union’s submissions before the arbitrator and in the
answering affidavit of Mr Bongane Lose.
Firstly,
it needs to be noted that the Department has not placed its
submissions that served before the arbitrator before the Court,
despite having had more than two years to do so. From Mr Lose’s
affidavit one gleans the following: He says at paragraph
7:
“
Our
member, Ms Fortuin, was the nursing manager in overall charge of the
clinic at Wolseley. She did not share the post with
anybody
else. She did not rotate with another employee in this
function. There was no rotation system in place affecting
the
Wolseley clinic.”
He
goes further to say in paragraph 27:
“
The
Breede Valley sub-district followed a rotational policy and this
appears to be the reason for the Department’s decision
to
advertise the post of operational manager for all the clinics,
despite the Wolseley Clinic not following a rotational system.
The Court is referred to my written argument which was submitted to
the arbitrator, reproduced as attached, marked BL1”.
When
the Court then turns to BL1 as Mr Lose enjoins it to do, it finds
that Mr Lose says:
“
In
explaining the reason why they did not translate it to the
operational manager’s post, they [that is the Department] said,
‘in the case where more than one person acted as PHC Clinic
Manager on rotational basis before or on 30 June 2007, the post
had
to be advertised’”.
Lose
then goes on to say:
“
As
stated before and undisputed by the Department, she [Ms Fortuin] was
the only PHC Clinic Manager for Wolseley Clinic.”
And
he adds that in many clinics neighbouring the Wolseley Clinic there
was a rotation system, but not at the Wolseley Clinic itself.
Those submissions are not replied to by the Department and in terms
of the rules set out in
Plascon Evans
Paints v Van Riebeeck Paints
it has to
be accepted by the court. That was also the undisputed evidence
before the arbitrator. In applying the OSD
he properly and
reasonably found that the Department wrongly translated Ms Fortuin to
the lower post of clinical nurse practitioner
instead of the post to
which she ought to have been translated, that is the post of
Operational Manager Nursing (Primary Health
Care) at level PMB3 with
a salary of R235 659,00 per annum.
The
arbitrator’s award clearly is a reasonable one.
Even though Mr
Van der Schyff
did not persist with the other grounds of review raised in the
initial application, I shall deal with them very shortly.
Firstly, the nurse did not waive her rights under the OSD and in any
event, as Ms
Harvey
pointed out with reference to
SA Co-op
Citrus Exchange v Director General Trade and Industry
[1997] ZASCA 6
;
1997 (3) SA 236
(A), rights conferred in the public interest cannot
be waived.
The
arbitrator also did not exceed his powers by granting substantive
relief. I have already referred to
Tao
Ying,
stating that collective
agreements are binding and enforceable; and the power and the duty to
determine a dispute over the interpretation
and application of a
collective agreement is clearly bestowed upon the arbitrator by
legislation in terms of section 24 of the
LRA.
In
short, the review grounds are without merit and the Department has no
prospects of success. However, as I have said earlier,
the
delay in this application is so excessive and the explanation so
poor, as Mr
Van der Schyff
himself conceded, that the Court need not even have considered the
prospects of success. It stands to reason that the applicant
should bear the costs of this application. My only concern is that,
once again, it will be the taxpayer that bears those costs.
In
conclusion, I make the following order, and for the sake of
completeness I will repeat the orders I made earlier today:
(1)
CONDONATION IS GRANTED FOR THE
LATE FILING OF THE APPLICANT’S HEADS OF ARGUMENT.
(2)
THE STATE ATTORNEY IS ORDERED TO
PAY THE COSTS ATTENDANT UPON ITS FAILURE TO FILE A PRACTICE NOTE
DE
BONIS PROPRIIS
.
(3)
DENOSA IS JOINED AS THE FOURTH
RESPONDENT.
(4)
THE APPLICATION FOR CONDONATION,
AND THUS THE APPLICATION FOR REVIEW, IS DISMISSED WITH COSTS.
(5)
THE ARBITRATION AWARD UNDER CASE
NUMBER: PSHS577-09/2010 IS MADE AN ORDER OF COURT.
(6)
THE FIRST AND FOURTH RESPONDENTS
ARE GIVEN LEAVE TO ENFORCE THE AWARD AS AN ORDER OF COURT IF THE
APPLICANT HAS NOT COMPLIED WITH
IT WITHIN NINETY DAYS.
______________________
STEENKAMP, J
For the
applicant: Jerome
van der Schyff
Instructed
by: The
State Attorney, Cape Town.
For first and fourth
respondents: Suzanna
Harvey
Instructed
by: Chennels
Albertyn, Rondebosch.
[1]
Oudkraal
Estates (Pty) Ltd v City of Cape Town
2004 (6) SA 222
(SCA) para [26];
MEC
for Health, Eastern Cape v Kirland Investments (Pty) Ltd t/a Eye &
Lazer Institute
[2014]
ZACC 6
para [100].