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[2015] ZALCPE 29
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Gezu v South African Local Government Bargaining Council and Others (PR 177/13) [2015] ZALCPE 29 (29 April 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case no: PR 177/13
DATE: 29 APRIL 2015
Not Reportable
Of Interest to Other
Judges
In the matter between:
PAMELA
GEZU
.................................................................................................................
APPLICANT
And
THE SOUTH AFRICAN LOCAL GOVERNEMNT
BARGAINING
COUNCIL
...............................................................................
FIRST
RESPONDENT
MARTIN KOORTS
NO
...............................................................................
SECOND
RESPONDENT
MAKANA
MUNICIPALITY
...........................................................................
THIRD
RESPONDENT
Heard:24 April 2015
Delivered:29 April 2015
JUDGMENT
VAN NIEKERK J
[1] This is an application to review
and set aside a ruling made by the second respondent, to whom I shall
refer as ‘the arbitrator’.
In his ruling, issued on 22
October 2013, the arbitrator condoned the failure by the third
respondent to institute disciplinary
proceedings against the
applicant within the time limits established by clause 6.3 of the
SALGBC disciplinary code and procedure.
[2] The material facts giving rise to
this application are not in dispute. The disciplinary code in
question provides:
6.3 The employer shall proceed
forthwith or as soon as reasonably possible with a Disciplinary
Hearing but in any event not later
than 3 (three) months from the
date upon which the Employer became aware of the alleged misconduct.
Should the employer fail to
proceed within the period stipulated
above and still wish to pursue the matter, it shall apply for
condonation to the relevant
Division of the SALGBC.
[3] The form in which an application
for condonation is to be made is prescribed by the main collective
agreement that regulates
the municipal sector. The agreement requires
that applications (which include an application for condonation) must
be supported
by an affidavit.
[4] The arbitrator’s ruling
(correctly) records the factors that are to be taken into account in
an application for condonation.
The arbitrator found that for the
purposes of the disciplinary code, it was probable that the third
respondent became aware of
the allegations of misconduct against the
applicant on 23 October 2012. Disciplinary action was instituted
against the applicant
on 4 April 2013. period of the delay was 73
days, described as ‘fairly serious’ but ‘not
substantial’.
The reasons for the delay are canvassed in the
ruling: in essence, the third respondent contended that in the
absence of the applicant,
there was no other person with the
requisite knowledge of the applicable procedure and that it was only
after advice was sought
from another municipality that the third
respondent became aware of the time limits and acted promptly to
institute the proceedings.
In relation to the prospects of success,
the arbitrator recorded that he was satisfied that the third
respondent had established
a prima facie case against the applicant.
With regard to the issue of prejudice, the arbitrator concluded that
the applicant would
suffer no prejudice if the disciplinary enquiry
were to go ahead (at least in the sense that she would be afforded a
fair disciplinary
hearing) whereas if condonation were to be refused,
the third respondent would be seen to have condoned serious
misconduct. On
this basis, the arbitrator concluded that the third
respondent had shown good cause for the late institution of
disciplinary proceedings
against the applicant, and ordered the third
respondent to institute disciplinary proceedings against the
applicant within 30 days.
[4] The applicant seeks to review the
ruling on a number of grounds. In her founding affidavit, the
applicant seeks to attack the
merits of the disciplinary charges
brought against her, and limits her attack on the condonation ruling
itself to averments made,
in respect of each of the factors
considered by the arbitrator, that he erred in coming to the
conclusions that he did. There is
nothing in the founding affidavit
that discloses a legal basis for a review of the ruling, given the
reasonableness test that applies.
It is not sufficient for an
applicant to simply aver, as the applicant has done in the present
proceedings, that the arbitrator
erred in a number of respects.
Arbitrators are allowed to err. It is well-established that this
court is empowered to intervene
if and only if the decision to which
the arbitrator came was so unreasonable that no reasonable decision
maker could come to that
decision. It is equally well-established
that a case to this effect must necessarily be made in the founding
papers; it cannot
be made by way of reply or in heads of argument.
[5] The only point with any potential
merit that arises from the founding papers (and the only point
pursued with any vigour at
the hearing of this application) is made
in the applicant’s supplementary affidavit (referred to as an
‘amended founding
affidavit’). Here, the applicant
contends that the document filed by the third respondent in support
of the application
for condonation was not an affidavit, and that the
application that served before the arbitrator was therefore fatally
defective.
[6] Adv. Grogan, who appeared for the
applicant, submitted that the arbitrator was required to make a
ruling on the basis of evidence,
and that since the document before
him did not comprise a proper affidavit there was no ‘evidence’
before him upon
which to make a ruling. In the absence of a ruling
made on any the basis of any evidence, the decision to grant
condonation for
the failure to institute disciplinary proceedings
timeously falls to be reviewed and set aside.
[7] The application that served before
the arbitrator was submitted on a pro forma document, headed
‘Affidavit’. It
purports to be an affidavit deposed to by
Mzukisi Madlavu, who describes himself as the third respondent’s
director of corporate
services. In the document, in respect of each
of the factors that the third respondent was required to address, the
document states
‘See annexure “A” attached hereto’.
Page 3 of the pro forma, the last, indicates that the document was
served on 3 October 2013. On the same page, the document reflects
that it was commissioned on 2 October 2013 by Etienne W Mager,
who is
described as an ex officio commissioner of oaths. There is no
signature on page 3 which is clearly identifiable as that
of the
deponent. Attached to the affidavit, as I have indicated, is an
annexure, some 10 pages long, in which the substantive averments
in
support of the application have been set out. The annexure is signed,
at its foot, by Mr. Madlavu. (This much is apparent from
the annexed
letter of suspension – on the face of it, an identical
signature appears in that document on a line below which
is recorded
“Signature : Director Corporate Services M Madlavu’).
[8] It is immediately apparent that the
document does not clearly provide for a signature by the deponent to
the pro forma affidavit.
Below paragraph 8 on page 3 (that which
provides for acknowledgment of receipt of the application) is a line
for signature following
the word “signed”. Whether the
deponent to the affidavit is meant to sign on that line, or whether
that is reserved
for the signature of the person acknowledging
receipt of the document, is unclear. In the present instance, there
is what might
be described as an initial in the space provided. It is
not clear who affixed this initial; it may well have been that of
Siphiwo
Mthini, the person on whom the document was served on 2
October 2013.
[9] While the signature of the deponent
and the commissioner of oaths ought ideally to have appeared on the
same page, and while
it cannot be said that the signatures of Madlavu
and the commissioner do so appear, it seems to me that the
applicant’s objections
to the format of the application for
condonation elevate form over substance. The pro forma, as I have
indicated, is crafted in
the form of an affidavit. The annexure is
clearly an integral part of that affidavit. The annexure is signed,
at its foot, by the
deponent. It is not disputed that the signature
on page 3 of the pro forma is that of a commissioner of oaths, nor
can it be disputed
that the signature at the foot of the affidavit is
that of Madlavu. It would be overly technical, in my view, in the
present circumstances,
to find that the affidavit is of no value or
effect, and that the ruling on which it is based ought for that
reason to be set aside
only because the deponent’s signature
appears on the annexure and not immediately above that of the
commissioner of oaths.
[10] The pro forma affidavit, together
with the annexure, set out the third respondent’s grounds for
review in a comprehensive
manner; the applicant’s union filed a
notice of intention to oppose after receiving the document and filed
an answering affidavit
in opposition to the application. Neither the
applicant nor her trade union made any objection to the form of the
application at
that stage. The arbitrator made a ruling on the basis
of the documents before him, in circumstances where he had both the
case
of the third respondent and that of the applicant fully
articulated. As I have indicated, the founding affidavit does not
make
out a case for the unreasonableness of any of the conclusions to
which the arbitrator came in respect of any of the factors that
the
arbitrator was required to consider, even less does it challenge the
reasonableness of the decision to which he ultimately
came. For these
reasons, the application stands to fail. There is no reason why costs
ought not to follow the result.
I make the following order:
1. The application is dismissed, with
costs.
Andre van Niekerk
Judge
REPRESENTATION
For the applicant: Adv. J Grogan,
instructed by Leon Keyter Attorneys
For the third respondent: Adv. F le
Roux, instructed by Smith Tabata Inc