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[2016] ZALCPE 2
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Minister of Police v Security Sectoral Bargaining Council and Others (PR106/14) [2016] ZALCPE 2 (24 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
reportable
Case
no.: PR 106/14
In the matter between
MINISTER OF POLICE
Applicant
and
SECURITY SECTORAL BARGAINING
COUNCIL
First Respondent
JOHN ROBERTSON N.O
SAPU OBO CAPTAIN T VAN GRAAN
AND 26 OTHERS
Second Respondent
Third
Respondent
Heard:
1 June 2015
Delivered:
1 June 2015
Edited:
24 February 2016
EX-TEMPORE
JUDGEMENT
VAN
NIEKERK, J
[1] This
is an application to review and set aside an arbitration award dated
20
January 2014, under case number PSSS737-12/13. At issue
before the Arbitrator was a dispute concerning the application and
interpretation
of the SSSBC Agreement 1 of 2010, with regard
particularly to a special overtime allowance of R700.00 per day. The
dispute concerned
the Applicant’s obligation, if any, to pay
the allowance to the Third Respondent, for 18 and 19 May 2011.
[2] The
Applicants in the arbitration submitted that they performed special
overtime duties from 04h45 on 18
May 2011, to 03h00 on 19
May 2011 and that they had accordingly performed overtime over
two consecutive days and were thus entitled to payment of the
overtime
allowance of seven hundred Rand for each day.
[3] The
Respondent in the arbitration proceedings, the Applicant in the
present proceedings, submitted that in effect, that the
Third
Respondent had worked one continuous shift and that there was no
overtime worked for effectively three hours of work performed
on 19
May 2011. The submission, as I understand it, was that
the Third and Further Respondents had completed their shift which
commenced
on 18 May 2011 and that they were accordingly not entitled
to payment of the overtime allowance for the additional day.
[4] The
Arbitrator made reference to the wording of the agreement and in
effect, decided in paragraph 10.5 of his award that the
word ‘day’
is not defined but that it was generally accepted that the meaning of
‘day’ is a period of twenty-four
hours that commences on
the expiry of the previous day at 00h00. He concluded the
following at 10.6:
“
Although
the employees worked one continuous shift, this shift extended from
one day into another day. In other words, the
employees
performed special overtime duties on two days, i.e.18 May 2010 and 19
May 2010 and are accordingly entitled to the special
duty overtime
allowance for two days”.
[5] The
application for review was filed late. The Applicant has
applied for condonation. The Applicant states that
the award
was received on 13 February 2014, despite the fact that the award was
dated 20
January 2014. The date on which the award
was received is not in dispute and I accept for present purposes,
that it was indeed
reviwed on 13 February 2014.
[6] The
deponent to the Founding Affidavit, who provides the explanation for
the delay, is one Colonel Lunga Mkalipe, who describes
himself as
being, “in charge of arbitration matters within the entire
Eastern Cape Province”. Thus described, one might
expect that
Colonel Mkalipe has an intimate knowledge of the procedures regarding
the filing of Review applications and that he
is aware of the
six-week time limit established by Section 145 of the Labour
Relations Act. What he says is that after receipt
of the award
on 13
February 2014, he perused it and discussed same with
the Head Provincial Legal Services, one General Billet. It is
not apparent
from the Founding Affidavit precisely when this
discussion took place.
[7] The
next intimation of any activity in this matter is the averment to the
effect that on 24 March 2014, almost six weeks later,
Colonel Mkalipe
forwarded a letter to the SAPS Head Office, seeking authority to
instruct the State Attorney to review the award.
That authority
was obtained two days later, on 26
March 2014. He
then says that he instructed the State attorney to act on behalf of
the applicant and to prepare the review
application.
[8] The
deponent says that on 27
March 2014, the very next day, he
received a letter from the State Attorney, seeking a mandate to brief
Counsel. He responded to
that letter on 2
April 2014 and
advised the State Attorney to go ahead and appoint Counsel.
There is then an averment to the effect that before
the brief was
forwarded to Counsel, the parties attempted to resolve the matter
without resorting to litigation. The averment
is as follows:
“
The
Third Respondent’s members undertook to provide necessary proof
that they had worked the two-day shift and therefore they
were
entitled to payments for two days in terms of the collective
agreement. No positive results were achieved. The
brief
was then forwarded to Counsel on 22 April 2014”.
[9] In
the Answering Affidavit filed by the Third Respondent, the contents
of this paragraph are specifically denied. The
Respondents go
on to say that the Applicant in his Founding affidavit, did not
dispute the fact that members of the Third Respondent
performed
duties on 18 and 19 May 2011, therefore this reason cited as a reason
for lateness of the Applicant’s review application
does not
make sense”. In the face of the denial that there was an
attempt to resolve the matter without resort to litigation
and that
this somehow contributed to the delay in filing the review
application, the Replying Affidavit is completely silent.
It
makes absolutely no reference to paragraph 7.4.1 at all.
[10] In
accordance with the applicable legal principles, this Court must
therefore accept the terms of the Answering Affidavit as
correct,
they being undisputed in the Replying Affidavit. On that basis,
I cannot accept the content of paragraph 16, in
other words, that
this matter was delayed by some attempt to resolve the matter between
the parties without resort to litigation.
[11] What
follows after that is an averment to the effect that the deponent to
the Founding Affidavit, was out of the office and
involved in
National and Provincial elections. The period during which the
deponent was out of the office, and why he was
unavailable to consult
with Counsel, full knowing, it would seem to me that this matter was
already out of time, is not explained.
What he does say is that
he returned to the office on the 12
th
of May and that he
noted that there was correspondence from the State Attorney,
requesting a consultation and that this consultation
was held in Port
Elizabeth on 15
May 2014. He goes on to say that this was
the first suitable and available date on his return from the election
period. But what
is not clear and what is not explained is what
appears to be an absence from the office from sometime after 22
April 2014, through to 12
May 2014.
[12] The
application was thereafter prepared; the papers were signed and
ultimately this application, as I have indicated, was filed
only on
30
May 2014.
[13] In
regard to the prospects of success, the deponent does not elaborate
on these except to say that the Applicant has “great
prospects
of success”, and that these are set out in the review
application, which is the subject, of course, of the bulk
of the
Founding Affidavit. What he submits is that the Arbitrator’s
award is unreasonable and stands to be reviewed
and set aside for
that reason. It is worth observing that in the affidavit where the
deponent deals with the grounds for review,
the case made out is one
to the effect that the Arbitrator’s award is one that is so
unreasonable that no reasonable decision-maker
could have arrived at
the decision. In other words, the Applicant has treated the
application as one in which the standard
of reasonableness applies
and in particular the threshold established by
Sidumo & Others
v Rustenburg Platinum Mines & Another
2012 BLLR 109
(7) C.C.
[14] The
test that the Court must apply in regard to the application for
condonation is well-established. It is one that has
its roots
in
Melane v
Santam Insurance Company
1964(4) SA 531 AD,
where the Court indicated that the Court in exercising a discretion
in regard to any application for condonation,
must take into account,
the degree of lateness, the explanation for the delay, the prospects
of success and the relative prejudice
that would be suffered by
either party. What the Court did indicate is that none of these
factors are individually decisive, the
Court must take a conspectus
of all of them and come to a decision which is just in the
circumstances.
[15] The
Melane v Santam Insurance Company
test has been refined by the
Labour Appeal Court, in
National Union of Mine Workers v Mintech
.
The Labour Appeal Court stated that in the absence of a reasonable
explanation for an unacceptable delay, the prospects
of success are
irrelevant. In other words, the Court is not required to have
regard to an applicant’s prospects of
success, where it fails
to meet the hurdle of proffering an acceptable explanation for or a
reasonable explanation for an unacceptable
period of delay.
[16] In
the present matter, the delay is some sixty-two days. That is
not insignificant and here I must have specific regard
to the
provisions of the Act, which stipulate a six-week time period within
which an application for review is to be filed.
I must also
have regard to the Practice Manual which applies in this Court, in
which the view is expressed that an application
for review is not
unlike an urgent application and that the parties are required to
pursue a review application with due diligence.
[17] The
Courts have also required, that a party seeking
condonation must set out a full explanation for the whole period
of
the delay; that condonation is not there for the taking; that an
applicant must take the Court into his or her confidence and
set out
the fullest possible explanation, as I have indicated, for every
period of the delay.
[18] In
the present instance, as I have indicated, the deponent who must
necessarily have been aware of the statutory time limit.
The
applicant received the award on 13 February 2014 but did nothing
until 24
March, almost six weeks later, except for a
discussion with the Head, Provincial Services, General Billet, on
some undisclosed date.
It was only after the 24
th
that
authority was sought to instruct the State Attorney. I must indicate
that when that authority was obtained and once the State
Attorney was
instructed, this matter appeared to be dealt with, with the required
degree of diligence. My views on any unacceptable
delay in this
matter cannot be ascribed to the office of the State Attorney. It
seems to me that the delays here were occasioned
entirely by Colonel
Mkalipe. The State Attorney has obviously responded with the
required degree of diligence in regard to
every stage at which it was
instructed.
[19] The
two periods that concern me are the ones to which I have already
alluded, this almost six week period between 13 February
2014 and 24
March 2014, where there is simply no explanation for a delay that
equates to the period of six weeks prescribed by
Section 145.
There is a further delay, which is after the State Attorney was
authorised to brief Counsel, on 2
April 2014, and the
return to office on the part of the deponent on 12 May 2014, when he
then noticed correspondence from the State
Attorney. That is a
period of some five weeks and as I have indicated and given the view
I have taken of the content of paragraph
16 of the Founding
Affidavit, is a period that in effect is unexplained. What is also
unexplained is the period between the consultation
held with Counsel
on 15
May 2014 and the filing of the present application
only on 30 May 2014, some two weeks later.
[20]
Given that there is a failure properly, in my view, to explain a
delay of almost six weeks between 13 February 2014 and 24
March 2014;
a period of some five weeks between 2 April 2014 and 12 May 2014; and
then two weeks following the 15
May 2014, when Counsel was
consulted, in my view the deponent to the Founding Affidavit has
failed to provide an acceptable explanation
for a period of delay
that is significant.
[21]
Given the test that the Labour Appeal Court has established in
National
Union of Mine Workers v Mintech
, the
prospects of success then become irrelevant and it is not necessary
for the Court to canvass those. I would only mention
in that
regard however, that the case made out in the Founding Affidavit,
stands completely at odds with the case made out in the
Heads of
Argument. The Constitutional Court has indicated that a party
to a review application must set out its grounds for
review in a
founding affidavit and a supplementary affidavit provided for in
terms of Rule 7A(8) and that an applicant is bound
by the grounds for
review so articulated.
[22] I
have said, the case in the founding papers is one which relies on the
threshold of reasonableness. The case made out
in the Heads of
Argument is entirely different. It is one which relies on
correctness and submits that the award made by
the Arbitrator for the
reasons proffered there was incorrect.
[23] As I
have said, it is not necessary for me to make any decision in regard
to the prospects of success. I would simply
observe that the
two cases made out by the Applicants are mutually exclusive.
[24] That
leaves the question of costs. This Court has a broad discretion
in terms of Section 162, to make orders for costs
according to the
requirements of the law and fairness. The Court is reluctant,
ordinarily, to make orders for costs in circumstances
where the
parties are party themselves to a collective bargaining relationship,
which appears to be the case in the present instance,
where an order
for costs might serve to prejudice that relationship. I must
necessarily take that factor into account.
I must
also take into account, the fact that Mr Gerber, who appeared on
behalf of the Third Respondent, is an official of the South
African
Police Union, the Third Respondent, acting on behalf of Captain van
Graan and twenty-six others, in this matter.
This is not
therefore a matter in which the Third Respondent has incurred the
costs of briefing outside attorneys or Counsel.
I appreciate
obviously, that there is a cost involved in securing the services of
in-house Counsel, but where that Counsel is provided
on that basis,
it seems to me that that is a factor that ought, appropriately, to be
taken into account. So for that reason,
I intend to make no
order as to costs.
The order
I make then is the following:-
1.
The application for the condonation of the late filing of the review
application is dismissed;
2.
There is no order as to costs.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For the
applicant: Adv. Mark Thys instructed by the State Attorney
For the
third respondent: Andre Gerber, Union Official