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[2015] ZALCJHB 150
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Department of Correctional Services v Public Servants Association of South Africa and Another (JR 1074/13) [2015] ZALCJHB 150 (13 May 2015)
The
Labour Court of South Africa, JOHANNESBURG
Judgment
Case
No: JR 1074/13
DATE:
13 MAY 2015
Not
reportable
Of
interest to other judges
In
the matter between:
DEPARTMENT
OF CORRECTIONAL
SERVICES
............................................................
Applicant
And
PUBLIC
SERVANTS ASSOCIATION OF SOUTH
AFRICA
.................................
First
Respondent
COMMISSIONER
KERRY DRISCOLL
N.O
.......................................................
Second
Respondent
Heard:
29 April 2015
Delivered:
13 May 2015
Summary:
Application for condonation and review of jurisdictional ruling.
Lengthy delay, poor explanation, no prospects of success.
Application
dismissed.
Judgment
STEENKAMP
J
Introduction
[1]
The applicant, the Minister of Correctional
Services, seeks to have a jurisdictional ruling of the second
respondent, an arbitrator
acting under the auspices of the Public
Service Co-ordinating Bargaining Council (PSCBC), reviewed and set
aside. But first, it
seeks condonation for the late filing of the
review application.
Background
facts
[2]
The first respondent, a trade union,
referred a dispute to the PSCBC concerning the interpretation and
application of a collective
agreement entered into between the
parties to that bargaining council and styled “Resolution 1 of
2007”. Conciliation
was unsuccessful. The parties held a
pre-arbitration meeting. After that meeting, for the first time, the
Department raised a jurisdictional
point. It argued that the General
Public Service Sectoral Bargaining Council (GPSSBC), and not the
PSCBC, had jurisdiction. The
arbitrator ruled that the PSCBC did have
jurisdiction. She directed that the matter be set down for
arbitration. The Department
now seeks to review that jurisdictional
ruling.
Condonation
[3]
I
shall deal with the application for condonation with reference to the
well-known principles set out in
Melane
v Santam Insurance Co Ltd.
[1]
That will include a discussion of the merits of the review
application under the heading of prospects of success.
Extent
of the delay
[4]
The applicant was particularly coy about
the extent of the delay. The deponent to the founding affidavit, Mr
Madimetja Frans Chaba,
does not address it. And Mr
Masuku
,
who appeared for the applicant, insisted on dealing with the
condonation application only after addressing the Court on the merits
of the review application itself. But to his credit, he readily
conceded in oral argument that the application was two months late
and that it is an excessive delay. I have to consider that coupled
with the explanation therefor.
Explanation
for the delay
[5]
Mr
Masuku
also
conceded that the explanation for the delay is inadequate. I will
nevertheless consider the explanation, such as it is.
[6]
The
ruling was handed down on 24 February 2013. In terms of s 145 of the
Labour Relations Act
[2]
the
applicant had to deliver its review application within six weeks,
i.e. by 1 April 2013. It only did so on 7 June 2013, more
than two
months later.
[7]
Mr Chaba says that, “on receipt of
the ruling” – presumably in February – the
Department’s legal department
“examined it for purposes
of advising the Department on the matter”. One advocate Cronjé
-- presumably employed in the legal department –
then wrote a letter to the Head of Legal Services “for
guidance”.
He only did so some three weeks later, on 13 March
2013. And all that he says, is: “It would be appreciated if the
consultation
in respect of this matter could be scheduled for 8, 9 or
10 April 2013 please”. By that time, the legislated and
prescribed
period of six weeks would already have lapsed; yet the
Department exhibits no urgency. And what is more, the email from
Cronjé
attached to Chaba’s
affidavit is in response to an email from Chaba to one Reuben Mbuli
dated 6 March 2013 that reads as follows:
“
Subject:
REQUEST FOR THE SERVICE OF COUNCIL
[
sic
]
MASUKU THABANI” [
sic
].
Good
day Dr Mbuli,
As
per our standing arrangements, we would like to request that you
request the Office of the state attorney to appoint Council
[
sic
]
Masuku to represent us
during an arbitration
[
my
underlining
]. The matter in dispute is payment of backdated
overtime as per GPSSBC Resolution 2 of 2009, but the matter will be
heard at PSCBC.
We are still awaiting the Council (GPSSBC) to inform
us about the date. I will appreciate your assistance and progress
report.”
[8]
It is immediately apparent that this email
has nothing to do with the current review application. In fact, it is
a request to appoint
counsel to represent the Department in the
arbitration that was to commence after the jurisdictional ruling.
[9]
Officials of the Department consulted
counsel on 23 April 2013 – well after the time for delivering
the review application
had already expired. Yet they did not act with
any sense of urgency.
[10]
Chaba says that “counsel had not
received a brief from the State Attorney although the latter was
instructed on 12 March 2013
to brief counsel”. He purports to
back up that statement with reference to a letter to the state
attorney of that date; but
once again, that letter has nothing to do
with a review application. Instead, it is an instruction to brief the
Department’s
current counsel, Adv Thabani Masuku, “to
handle the arbitration in this matter”.
[11]
Chaba then goes on to say that “a
dispute en suite [
sic
– presumably ‘ensued’] between Counsel and the
State Attorney relating fees that Counsel was entitled to charge
in
the matter”. But the accompanying correspondence that he
attaches relates to Adv M Khoza SC and is headed “
NON-JOINDER:
BACKDATED BACKPAY
”. There is no
reference to this review application. And Adv Khoza’s emailed
response does not refer to this application
at all. It reads:
“
Dear
Sir, I take extreme umbrage when an impression is created that I
agreed to a fee when no discussion was entered into with me.
I’ve
been on [redacted] for the past two years and did matters also from
your office. I don’t expect that you wull st
[
sic
] this
stage feign ignorance when your records are there to show. To
me this is down right [
sic
] silly and meant to undermine me. I
will not accept that. My rate, for the time being, is [redacted]. I
have done work for thus
[
sic
] client at this rate before about
two years ago I will not accept anything less. Currently for your
information my commercial rate
is [redacted].”
[12]
Eventually, on 10 May, the Department
agreed to a fee with Adv Khoza SC. Chaba does not explain why the
state attorney or its current
counsel – who, according to
Chaba, had consulted with the Department on 23 April – had done
nothing to expedite the
review application, already out of time, in
the interim. And to make matters worse, Chaba says that “at the
time that the
letter [i.e. the email] was dispatched to counsel [i.e.
Adv Khoza SC], he was involved in an arbitration and out of town.
[It]
thus only came to his attention on 20 May 2013 when he returned
to chambers”. Chaba does not explain why the email didn’t
come to counsel’s attention while he was away, given the ease
of communication by email in this electronic era, and Adv Khoza
did
not depose to an affidavit. (It is noteworthy that the email from Adv
Khoza dated 30 April 2013 was “sent from Samsung
Mobile”).
[13]
Chaba further says that “our Deputy
Commissioner, Lucky Lempiditse Thekisho tried on a number of
occasions to contact the
State Attorney and/or Counsel to find out
about progress in the matter. That was all in vain.” He does
not say whether “counsel”
refers to Adv Masuku, who had
consulted with him as long ago as 23 April and who appeared in this
application, or Adv Khoza SC.
Neither Thekisho nor either counsel
deposed to a confirmatory affidavit.
[14]
Chaba then blithely says that “the
delay has been adequately explained”, without any explanation
at all for the further
delay of a month from the time senior
counsel’s fee had ostensibly been agreed and the review
application was eventually
delivered on 7 June 2013.
[15]
The “explanation” amounts to no
explanation at all. At best for the Department, it exposes
dilatoriness, tardiness and
negligence on its side and on the side of
its legal representatives. And, to add insult to injury, the
Department’s replying
affidavit was also delivered late.
[16]
Despite the lengthy delay and the poor
explanation therefor, I will deal with the Department’s
prospects of success in the
review application.
Prospects
of success
[17]
The
ruling under review goes to the question of jurisdiction. The test on
review is therefore whether the ruling was right or wrong.
[3]
[18]
The ruling sets out the reasons for the
arbitrator’s finding, the relevant legal principles and the
reasoning process leading
to her conclusion succinctly and clearly.
It is, as Mr
Orr
submitted, a model award.
[19]
The arbitrator starts off by correctly
identifying the dispute she needs to resolve, as Mr
Masuku
conceded. She makes it clear that she
needs to determine whether the PSCBC has the necessary jurisdiction
to deal with the dispute:
“It is important to bear in mind that
the dispute before me is whether the PSCBC or the GPSSBC has the
necessary jurisdiction
to deal with the dispute and not what the
correct interpretation of the Resolutions are.”
[20]
Framing
the dispute in this way, the arbitrator correctly followed the
guidance of the Constitutional Court and the Supreme Court
of Appeal.
As Nugent JA stated in
Makhanya
[4]
,
cited by the arbitrator:
“
[T]he
power of a court to answer a question (the question whether a claim
is good or bad) cannot be dependent upon the answer to
the question.
To express it another way, its power to consider a claim cannot be
dependent upon whether the claim is a good claim
or a bad claim. The
Chief Justice, writing for the minority in
Chirwa
[5]
,
expressed it as follows:
‘
It
seems to me axiomatic that the substantive merits of a claim cannot
determine whether a court has jurisdiction to hear it.’”
[21]
The
same holds true for arbitrations, as the arbitrator correctly
decided. She also correctly followed the
dictum
of the Constutional Court in
Gcaba
[6]
that:
“
Jurisdiction
is determined on the basis of the pleadings, as Langa CJ held in
Chirwa
,
and not the substantive merits of the case”.
[22]
That is exactly what the arbitrator
proceeded to do. She considered the referral by the union. The
dispute that it referred was
a dispute relating to the interpretation
and application of PSCBC Resolution 1 of 2007. That is a dispute over
which that Bargaining
Council has jurisdiction. It may be a good
claim or it may be a bad claim. That is irrelevant.
[23]
Despite this clear and correct exposition
of binding legal precedent, the Department persisted with this
application. It is only
when pressed in oralk argument that Mr
Masuku
offered what he called a “guarded concession” that the
PSCBC does have jurisdiction to arbitrate the dispute that the
union
referred to it, i.e. a dispute about the interpretation and
application of PSCBC Resolution 1 of 2007.
[24]
Given this concession, and the concessions
with regard to the lengthy delay and the poor explanation in the
condonation application,
it is difficult to fathom why the Department
has persisted with this application. The applicant had no prospects
of success and
it was evident that the condonation application would
fail. That brings me to the question of costs.
Costs
[25]
The Department’s counsel has conceded
on essentially every point argued that its application was doomed to
fail. Yet the Department
persisted with every step of this
application, including the late filing of a review application and a
replying affidavit; the
application for condonation; and briefing
(initially) both senior and junior counsel. At the hearing, only
junior counsel appeared,
although the Department’s heads of
argument were drafted by senior and junior counsel. And to this must
be added the cost
of flying counsel from Cape Town to argue a matter
originating and enrolled in Johannesburg. In law and fairness, taking
into account
that the Department has been unsuccessful and its
conduct in pursuing the application, it must pay the union’s
costs. The
only concern is that, as is so often the case, it will be
the taxpayer that has to foot the bill.
Order
The
application for condonation – and thus the application for
review -- is dismissed with costs.
Steenkamp
J
APPEARANCES
APPLICANT:
Thabani Masuku
Instructed by
the State Attorney.
FIRST
RESPONDENT: Chris Orr
Instructed by
Bowman Gilfillan Inc.
[1]
1962 (4) SA 531 (A).
[2]
Act 66 of 1995 (the LRA).
[3]
SARPA
v SA Rugby (Pty) Ltd
(2008) 29
ILJ
2218 (LAC); [2008] 9 BLLR 845 (LAC).
[4]
Makhanya
v University
of
Zululand
[2009] 4 All SA 146
(SCA);
2010 (1) SA 62
(SA) para 54.
[5]
Chirwa
v Tr
ansnet
Ltd
[2007] ZACC 23
;
2008 (4) SA 367
(CC) para 155.
[6]
Gcaba
v Minister for Safety & Security
(2010)
31
ILJ
(CC) para 75.