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[2017] ZALCJHB 71
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Member of the Executive Committee, Department of Education, Free State Province v Education Labour Relations Bargaining Council and Others (JR1110/15) [2017] ZALCJHB 71 (3 March 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JR1110/15
In
the matter between:
MEMBER
OF THE EXECUTIVE COMMITTEE,
DEPARTMENT
OF EDUCATION, FREE STATE
PROVINCE
Applicant
and
EDUCATION LABOUR
RELATIONS BARGAINING
COUNCIL
First Respondent
COMMISSIONER JEROME
MTHEMBU
Second Respondent
M S MOKOMA
Third Respondent
Heard:
15 February 2017
Delivered:
03 March 2017
JUDGMENT
TLHOTLHALEMAJE,
J
[1]
This
matter was set-down for pre-enrolment hearing. The Applicant had on 3
July 2015, launched an application in terms of the provisions
of
section 145 (3) of the Labour Relations Act to stay the enforcement
of an award issued by the Second Respondent under case number
PSES389-13/14 dated 9 March 2015 pending the determination of a
review application launched under the above case number.
[2]
The
sole issue for determination at these proceedings was whether the
review application was launched on time for the purposes of
obtaining
relief under section 145 (3) of the LRA. The award having been issued
on 9 March 2015, the review application was also
launched on 03 July
2015. In its application for condonation, it was submitted on behalf
of the Applicant that the award was only
received on 30 March 2015,
and that the application for a review was therefore about 14 days out
of time.
[3]
The
principles applicable where condonation is sought are well-known.
Thus, the court enjoys a discretion in determining whether
good cause
has been shown, having considered factors such as the degree of
lateness, the explanation therefor, the prospects of
success and the
importance of the case. These factors are ordinarily interrelated,
and are not individually decisive, except to
the extent that
inter
alia
,
where there are no prospects of success there would be no point in
granting condonation
[1]
.
Of
equal importance in such applications in accordance with
Brummer
v Gorfil Brothers Investments (Pty) Ltd
[2]
,
is whether the interests of justice would be served by the granting
or refusal of condonation.
[4]
The
Third Respondent in opposing the condonation application did not take
issue with the date upon which a copy of the award was
sent to or
received by the Applicant. The Third Respondent nevertheless further
submitted in this regard that no reasons were advanced
for the delay,
and that in any event, the review application was doomed.
[5]
In
the absence of any other contention on the part of the Third
Respondent in regards to the receipt of the award as submitted on
behalf of the Applicant, I will accept that the delay in filing the
review application is indeed about 14 days. In my view, this
delay is
not excessive.
[6]
I
have further had regard to the explanation proffered for the delay,
i.e., that the decision to review the award went through a
chain of
command, resulting in further instructions being issued to the office
of the State Attorney to proceed with the matter
and to brief Senior
Counsel. The reasons in this regard may not be detailed in regards to
accounting for each period of the delay.
Be that as it may, I am
satisfied that in the light of the Third Respondent’s failure
to address these reasons with any particularity,
they ought to be
accepted as reasonable.
[7]
In
regards to the Applicant’s prospects of success, the award
sought to be reviewed and set was issued in circumstances where
the
principal issue before the Second Respondent was whether the
dismissal of the Third Respondent was procedurally and substantively
fair or not. It was common cause that the Applicant had invoked the
provisions of
section 14
(1) (a) of the
Employment of Educators Act
76 of 1998
in terminating the services of the Third Respondent.
[8]
The
dispute having been referred to the First Respondent, the Second
Respondent had found that the dismissal of the Third Respondent
was
procedurally and substantively unfair, and had ordered that he be
reinstated with retrospective effect. The Third Respondent
was also
awarded back-pay equal to 18 months and 17 days for the period
between 20 August 2013 and 9 March 2015. The total amount
payable in
terms of the award is R627 820.00.
[9]
The
Applicant seeks an order reviewing and setting aside the award on a
variety of grounds which I do not deem necessary to repeat
for the
purposes of this judgment. I have further had regard to the Third
Respondent’s answering affidavit and submissions
made in
regards to the main application. In my view, given the circumstances
of this case and the grounds upon which the review
of the award is
sought, I am satisfied that the interest of justice would better be
served with the granting of condonation.
[10]
It
is not clear on the papers as to the reason that the Applicant had
further launched an application in terms of section 145 (3)
of the
Labour Relations Act. There is nothing in its pleadings that
indicates that the Third Respondent had taken steps to enforce
that
award to necessitate the bringing of that application. As at the
hearing of this matter, the application to stay the enforcement
of
the award remained unopposed and correctly so, as it was superfluous
in the absence of any steps to enforce the award.
[11]
A
further issue however which appears not to have been taken up by the
Third Respondent is the Applicant’s non-compliance
with the
provisions of section 145 (7) and (8) of the LRA. There is equally no
application by the Applicant to be exempt from those
provisions. In
the light of these considerations, this matter cannot be said to be
ripe for hearing. In the circumstances, the
order that follows is
deemed to be appropriate;
Order:
1.
The
late filing of the review application is condoned.
2.
The
Applicant is directed to comply with the provisions of section 145
(7) and (8) of the Labour Relations Act within 21 days of
the date of
this order, or in the alternative, to file and serve an application
within the same period to show cause why it should
be exempt from
those provisions. Such an application must also be served on the
Third Respondent for its response.
3.
There
is no order as to costs
__________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Adv. LT Manye
Instructed
by:
State Attorney, Bloemfontein
On
behalf of the Third Respondent: Adv. S Grobler
Instructed
by:
Phatsoane Henney Attorneys
[1]
Melane v
Santam Insurance Co. Ltd
1962 (4) SA 531
(A) at 532B-E
[2]
[2000] ZACC 3
;
[2000] (2) SA 837
(CC) at 839 F