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Tlohohelo Junior Primary School v Rastela and Others (JR1309/12) [2017] ZALCJHB 294 (11 August 2017)

80 Reportability
Labour Law
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Brief Summary

Labour Law — Unfair dismissal — Employment relationship — The First Respondent, a grade R teacher, claimed unfair dismissal after her engagement with the Applicant school was terminated in 2011. The Applicant contended there was no dismissal as the First Respondent was employed under a fixed-term contract with the School Governing Body (SGB), not the school itself. The Commissioner found that the First Respondent was an employee of the Applicant and had been unfairly dismissed, ordering her reinstatement with back pay. The Applicant's subsequent application to rescind the order and review the award was dismissed due to failure to comply with procedural requirements and lack of satisfactory explanation for delays.

Comprehensive Summary

Summary of Judgment


Introduction


This matter concerned an application in the Labour Court to obtain procedural relief that would, if successful, have reopened an earlier challenge to an arbitration award issued under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA). The proceedings ultimately comprised three interlinked applications brought by Tlohohelo Junior Primary School (the Applicant) against Matsie Ratsela (the First Respondent), the CCMA (the Second Respondent), and the commissioner who issued the award (the Third Respondent).


The dispute originated in the termination of Ms Ratsela’s engagement at the school in 2011 and her referral of an unfair dismissal dispute to the CCMA. The commissioner issued an award on 11 April 2012 finding that Ms Ratsela was an employee and that she had been unfairly dismissed, ordering reinstatement and back-pay. The Applicant launched a review application on 30 May 2012, but significant delays and non-compliance followed.


Thereafter, the matter took a procedural turn. The First Respondent pursued a Rule 11 process aimed at advancing the review. A ruling issued in November 2013 required the Applicant to file papers by a fixed deadline, which it missed. On 29 April 2014, the review application was dismissed with costs. On 12 June 2014, at the First Respondent’s instance and in the Applicant’s absence, the arbitration award was made an order of court. The Applicant later sought to rescind that order, together with condonation for the lateness of its step, and sought again to review the arbitration award.


The general subject-matter of the dispute therefore combined (i) the substantive question whether Ms Ratsela was an employee and had been unfairly dismissed, with (ii) the procedural question whether the Applicant should be permitted—despite its defaults and delay—to reopen the litigation to pursue a review under the Labour Relations Act 66 of 1995 (LRA).


Material Facts


Ms Ratsela was engaged at the Applicant school in 2002 as a Grade R teacher. Her engagement ended on 30 September 2011, after which she referred an unfair dismissal dispute to the CCMA. The Applicant’s position at arbitration and in subsequent litigation was that no dismissal had occurred because there was no employment relationship between the school and Ms Ratsela; it contended that she had been engaged on a fixed-term basis in a training programme and that the contract expired. Ms Ratsela’s position was that she was an employee, her engagement had been renewed repeatedly, and that the termination occurred without proper notice or process.


The commissioner’s award recorded the employment history as involving annual renewals of fixed-term contracts and treated those renewals as material to Ms Ratsela’s contention that she had a legitimate expectation of continued employment. The award also recorded features of the working relationship relied on by the commissioner to characterise it as an employment relationship rather than an independent contractor or other arrangement.


The procedural chronology was material to the outcome in the Labour Court. The Applicant filed a review application in May 2012. In September 2012, the First Respondent issued a Rule 11 notice calling for the filing of the record. After further delay, a ruling in November 2013 directed the Applicant to file opposing papers by 3 December 2013, failing which the matter could be enrolled as unopposed. It was common cause that the Applicant filed its opposing papers seven days late, on 11 December 2013, without a contemporaneous application for condonation and without an adequate explanation for missing the court-imposed deadline.


On 29 April 2014, the review application was dismissed with costs. On 12 June 2014, the award was made an order of court in the Applicant’s absence. The Applicant later sought rescission of that order and condonation, attributing the delays and non-appearance largely to failures or miscommunication involving its previous legal representatives.


A further fact relevant to relief was that Ms Ratsela died on 21 April 2017. The litigation was continued by her son in a representative capacity for her estate, and the court treated any monetary benefits as accruing to the deceased estate rather than through actual reinstatement in employment.


Legal Issues


The central legal questions before the court were procedural and consequential in nature, but they depended materially on the viability of the underlying review. The court was required to determine whether the Applicant had shown good cause for condonation of its procedural default(s), including late filings and failure to comply with a prior ruling. This required an evaluative assessment of delay, explanation, prospects, and prejudice.


A second question was whether, if condonation were granted, the Applicant had met the requirements for rescission of the order that made the arbitration award an order of court, in circumstances where the order had been granted in the Applicant’s absence after earlier procedural failures.


A third question, reached only if the preliminary hurdles were overcome, was whether the arbitration award was reviewable under section 145 of the LRA, applying the constitutional reasonableness standard. That inquiry involved the application of law to fact: whether the commissioner’s findings on the existence of an employment relationship (including application of section 200A of the LRA) and on dismissal and unfairness were decisions that a reasonable decision-maker could reach on the evidence and legal issues.


Finally, given the dismissal of the preliminary applications and the confirmation of the order making the award an order of court, the court addressed implementation questions relating to the practical consequences of reinstatement and arrear remuneration, as well as whether interest could be ordered on the amounts due and what costs order was appropriate.


Court’s Reasoning


The court approached the matter sequentially. It held that the Applicant could not reach the merits of the review unless it first succeeded in condonation, and thereafter in rescission of the prior order. The court emphasised that failure at either preliminary stage would mean there was no basis to entertain the review, with the result that the review would be dismissed.


On condonation, the court applied the “good cause” enquiry, considering the degree of lateness, the explanation, prospects of success, and prejudice. Although the immediate delay in filing the opposing papers was seven days, the court assessed that delay in the context of a prolonged procedural history marked by repeated tardiness and non-compliance. The prior ruling had placed a clear obligation on the Applicant to comply with the deadline, and the Applicant’s non-compliance, coupled with an absence of a proper contemporaneous condonation request, weighed against the Applicant.


In relation to the explanation for delay, the Applicant’s primary justification was to attribute the procedural failures and the non-appearance at the hearing where the award was made an order of court to mishandling or miscommunication by its attorneys and counsel. The court treated this as insufficient. It relied on established Labour Court authority that delay attributable to legal representatives’ tardiness is generally not an acceptable reason for condonation, and it found that the Applicant had failed to provide a satisfactory explanation.


The court then considered prospects of success because they were relevant both to condonation and rescission. The Applicant’s principal substantive contention was that the commissioner failed to appreciate a distinction between the Department and the school governing body (SGB) and therefore incorrectly concluded that an employment relationship existed between the school and Ms Ratsela. The court noted that this contention sat uneasily with the way the evidence appeared in the award, including the principal’s testimony as recorded by the commissioner, and the absence of a clear basis in the award indicating that the alleged distinction had been central or overlooked in the manner now asserted.


Turning to the review standard, the court applied the reasonableness test associated with section 145 of the LRA, namely whether the commissioner arrived at a conclusion that a reasonable decision-maker could not reach on the evidence and issues. The court found that the commissioner had considered the evidence of repeated renewals of fixed-term contracts and had treated that pattern as giving rise to a legitimate expectation of continued employment. The court further found that the commissioner had applied section 200A of the LRA, identifying multiple indicators consistent with an employment relationship, including control, direction, and the nature of the work performed.


On that basis, the court held that there was no basis to conclude that the commissioner’s determination that Ms Ratsela was an employee and had been dismissed unfairly was unreasonable or irregular. Because the Applicant lacked reasonable prospects of success in the intended review, condonation could not be granted. The failure of condonation was dispositive and meant that rescission and review necessarily failed as well.


After dismissing those applications, the court addressed implementation of the award, given that it remained effective and had been made an order of court. In considering the monetary consequences of reinstatement in circumstances where implementation had been delayed by litigation, the court referred to Constitutional Court authority confirming that reinstatement entails restoration to the position on the same terms and conditions, which includes remuneration for the period between the reinstatement date and actual reinstatement. The court accepted that, although Ms Ratsela had died and could not practically be reinstated, the monetary consequences would accrue to her estate due to her demonstrated intention during her lifetime to pursue the matter and the continuation of the proceedings for the estate.


The court also dealt with interest, holding that interest could not be awarded because the amount due was not a liquidated judgment debt capable of accurate calculation at that stage, given variables such as annual increases and statutory deductions. On costs, the court acknowledged the dilatory conduct of the Applicant and the length of delay. Although punitive costs were sought, the court declined to grant attorney-and-client costs, reasoning that such an order risked punishing the wrong party where the Applicant may have relied on advice from its legal representatives. Nonetheless, the court considered an ordinary costs order appropriate and ordered costs on the party-and-party scale.


Outcome and Relief


The Labour Court dismissed the Applicant’s applications for condonation, rescission, and review. The court confirmed the earlier order that had made the arbitration award an order of court.


The court ordered the Applicant to pay Ms Ratsela’s estate the amounts described in the judgment, comprising the seven months’ back-pay of R46 900.00 specified in the award, together with remuneration calculated at R6 700.00 per month for the period from the award’s reinstatement date (2 May 2012) to Ms Ratsela’s date of death (21 April 2017), including annual increases and subject to statutory deductions.


The court refused to order interest on the arrear amounts for the reasons given. The Applicant was ordered to pay the First Respondent’s taxed costs on the party-and-party scale.


Cases Cited


Melane v Santam Insurance Company Limited 1962 (4) SA 531 (A).


Sidumo and Another v Rustenburg Platinum Mines [2007] 12 BLLR 1097 (CC).


National Union of Mineworkers of South Africa obo M Fohlisa and 41 Others v Hendor Mining Supplies (A Division of Marschalk Beleggings (Pty) Ltd) [2017] 6 BLLR 539 (CC).


Legislation Cited


Labour Relations Act 66 of 1995 (sections 145 and 200A).


Prescribed Rate of Interest Act 55 of 1975.


Rules of Court Cited


Labour Court Rule 7A(6); Labour Court Rule 11; Labour Court Rule 12.


Held


The court held that the Applicant failed to show good cause for condonation of its non-compliance and lateness, particularly in light of an inadequate explanation and the broader pattern of delay. The court further held that the Applicant lacked reasonable prospects of success on review because the commissioner’s finding of an employment relationship and unfair dismissal, including the application of section 200A of the LRA, was not shown to be unreasonable under the applicable review standard.


Because condonation failed, rescission and review were dismissed as a necessary consequence. The court confirmed that the arbitration award, already made an order of court, had to be implemented, with the monetary benefits accruing to the deceased employee’s estate. Interest was refused because the amount was not shown to be a liquidated debt capable of precise calculation at that stage. Costs were awarded against the Applicant on the party-and-party scale.


LEGAL PRINCIPLES


Condonation in the Labour Court requires the applicant to show good cause, assessed with reference to factors that include the degree of lateness, the explanation for the delay, prospects of success, and prejudice. A clear court-imposed deadline increases the weight of compliance, and repeated procedural default may aggravate the assessment even where a particular period of lateness is not lengthy in isolation.


Delays primarily attributed to the tardiness or mishandling of a party’s legal representatives do not, without more, provide a satisfactory explanation justifying condonation, particularly where the litigant has persistently failed to comply with rules and court directives.


A review under section 145 of the LRA requires establishing that the commissioner’s outcome is one that a reasonable decision-maker could not reach on the evidence and relevant legal issues. Where the commissioner applies the statutory indicators in section 200A of the LRA to determine whether an employment relationship exists and reaches a conclusion supported by multiple relevant factors, a reviewing court will not interfere absent unreasonableness or material irregularity.


Reinstatement as a remedy ordinarily entails restoring the employee to the same position on the same terms and conditions, which includes remuneration consequences for the period between the reinstatement date and actual reinstatement where implementation is delayed. Where reinstatement is rendered impossible by the employee’s death, monetary consequences may nonetheless accrue to the employee’s estate insofar as the award remains enforceable.


Interest on arrear remuneration will not be ordered where the amount is not shown to be a liquidated judgment debt capable of accurate calculation, particularly where it depends on variables such as annual increases and statutory deductions.

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[2017] ZALCJHB 294
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Tlohohelo Junior Primary School v Rastela and Others (JR1309/12) [2017] ZALCJHB 294 (11 August 2017)

IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 1309/12
TLOHOHELO JUNIOR
PRIMARY SCHOOL
Applicant
AND
MATSIE RATSELA
First Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Second Respondent
COMMISSIONER
J.S.C NKOSI
N.O
Third Respondent
Heard:
11 July 2017
Delivered:
10 August 2017
JUDGMENT
DEALE AJ
Background
[1]
In 2002,
the First Respondent was engaged by the Applicant as a grade R
teacher. Her engagement was terminated in 2011. She then
referred an
unfair dismissal dispute to the Second Respondent. She claimed she
was an employee and was dismissed unfairly.
[2]
The
Applicant’s version was that there was no dismissal because
there was no employment relationship between the Applicant
and the
First Respondent. It asserted that the First Respondent, together
with others was attending a training programme at the
Applicant’s
school in terms of a fixed term contract. The contract was not with
the Applicant, but with the School Governing
Body (the SGB) of the
Applicant. The SGB is a separate entity. Her engagement terminated
when her fixed term contract expired.
[3]
On 11 April
2012, the Third Respondent (Commissioner) found that the First
Respondent was an employee of the Applicant and that
she had been
unfairly dismissed, both procedurally and substantively. The
Commissioner made an award under case number GAJB 28276-11(the

“Award”) in the following terms
“
6.
AWARD
6.1
That the dismissal is substantively unfair.
6.2
That the Respondent Tlholohelo JP Schoool re-instates the applicant
Matsie Ratsela on the
same terms and conditions as those that
obtained prior to her dismissal with back –pay in the sum of
R46 900.00 calculated
at the rate of R6 700.00pm equivalent
to the applicant’s seven month’s salary.
6.3
That the applicant resumes duties no later than the 2
nd
of
May 2012 and is allowed to do so by the respondent.
6.4
That payment is made no l
a
ter
than fourteen days from date of receipt of this award.
6.5
No order as to costs.”
[4]
On 30 May
2012 the Applicant served its Notice of Motion and Founding Affidavit
to review and set the Award aside.
[5]
On 8 June
2012, the First Respondent filed and served its Notice to Oppose.
[6]
On 26
September 2012, the First Respondent served a Notice in terms of Rule
11. It called on the Applicant to file the record in
terms of Rule
7A(6) of the Rules of the Labour Court within 10 days.
[7]
On
19 November 2013, the Rule 11 application came before this Court on
an unopposed basis. The matter became opposed and Prinsloo
AJ (as she
then was) made a Ruling (the “Ruling”) in the following
terms –
“
1.
….
2.
The Applicant (
Tlholohelo
Junior Primary School) is to file opposing papers by no later than 3
December 2013, failing which the matter must be
enrolled on the
unopposed roll.
3.
Costs are reserved”.
[8]
On 29 April
2014 the First Respondent’s Rule 11 application came before
this Court. Molahlehi J ordered that the Applicant’s
Review
application be dismissed with costs.
[9]
On 12 June
2014 the matter again came before this Court at the First
Respondent’s instance to have the Award made an order
of Court.
There was no appearance for the Applicant. Van Niekerk J granted the
application and the Award was made an order of Court.
[10]
The
Applicant now applies to rescind the Order made by van Niekerk J on
12 June 2014
(the
“Order”). The Applicant further applies to review and set
the Award aside. The Applicant also filed an application
for
condonation for the late filing of its application to rescind.
[11]
The
Applicant must first overcome the two preliminary hurdles to acquire
the right to challenge the Award by way of an application
for review
in terms of section 145 of the LRA. It must first succeed in its
application to condone the late filing of its opposing
papers. If it
succeeds, it must   then succeed in its application to
rescind the Order.
[12]
The First
Respondent opposes the applications for condonation, to rescind and
to review.
Condonation
[13]
I will
first deal with the application for condonation. If it succeeds, it
will then be necessary to deal with the application to
rescind. If
the application to rescind succeeds, it will only then be necessary
to deal with the application for review. If either
of the
applications to condone or to rescind were to fail, there would be no
basis to hear the application for review. In that
event, the
Applicant’s application for review would be dismissed.
[14]
Rule 12
requires an applicant to show that there is good cause for a court to
grant condonation. The factors to consider if there
is good cause are
the degree of lateness, the reason for the delay, the prospects of
success in the main application, in this case
for review, and the
potential prejudice to the other parties
[1]
.
[15]
The Ruling
clearly put the duty squarely on the Applicant and its
representatives to comply strictly with the 3 December 2013 deadline

specified in the Ruling. If it failed to do so for no good reason, it
would effectively forfeit its right to proceed with the application

for review.
[16]
It is
common cause that the Applicant failed to comply with the Ruling. It
filed its opposing answering papers late on 11 December
2013. There
was no application for condonation for the late filing - nor was
there an adequate explanation for the failure to comply
with the
Ruling by the due date.
Degree of Lateness
[17]
The
Applicant filed its opposing papers 7 days late. At first glance,
this may not seem an inordinately long delay. However, in
the context
of the long history of this case, it was a significant delay. By its
own admission, the Applicant conceded in its Founding
Affidavit that
-
“
18. The answering affidavit was
extremely late and there was no request for condonation.”
[18]
It will
also be evident from the Background described earlier that all the
prior interlocutory applications and counter-applications
had been
necessitated by the consistent tardiness of the Applicant’s
several sets of attorneys to take pro-active steps to
comply with the
Rules and time periods prescribed by this Court. The delay in filing
the opposing papers on or before 3 December
2013 as stipulated by the
Order was yet another example of the tardiness.
Reasons for the Delay
[19]
The
Applicant’s current attorneys essentially attribute the blame
for the procession of delays on the Applicant’s previous

attorneys (Founding Affidavit paras 39 – 47). In particular, it
attributes the reason for their non-appearance at the hearing
in
court before van Niekerk J on 12 June 2014 to a “miscommunication”
between attorneys and counsel.
[20]
The
Applicant’s counsel who appeared at the hearing of this
application confirmed this was the main reason for the delays
and he
had nothing further of substance to add to provide a plausible
reason.
[21]
It has been
well established in numerous judgements of this Court that delays
caused by the tardiness of legal representatives is
not an acceptable
reason for granting condonation. This case should be no exception.
[22]
It follows,
that the applicant has failed to provide a satisfactory explanation
for the delay.
Prospects of Success
[23]
The
Applicant must show for both the applications for condonation and for
rescission that there are reasonable prospects of success
in the main
application for review. If it fails to do so, the preliminary
applications must necessarily fail and, as a consequence,
the
application for review must be dismissed.
[24]
The
circumstances leading to the termination of the First Respondent’s
employment are recorded in the Award and appear to
have been common
cause between the parties in the arbitration.
[25]
On 30
September 2011, the First Respondent’s employment with the
Applicant terminated. The Applicant’s version was that
there
was no permanent employment because the First Respondent had been
engaged on a fixed term contract which had expired. For
this reason,
there was no dismissal.
[26]
The
Founding Affidavit in support of the application for condonation and
rescission of the Order is made by Legotlho Makgale. He
is the former
Deputy Chairperson of the Tlholohelo Junior Primary School Governing
Body (SGB).
[27]
He asserts
in his affidavit
[2]
that there
was no employment relationship between the First Respondent and the
Applicant school. This was because the true employer
was in fact the
SGB, not the Department. There was only a fixed-term contractual
relationship between the First Respondent and
the SBG to provide a
teacher training programme for the First Respondent. She and several
others like her were not qualified teachers
but aspired to qualify
before the deadline of 2014.
[28]
On this
basis the Applicant asserted as its primary ground for review of the
Award that the Commissioner failed to make the distinction
between
the Department and the SGB. This is expressed in the Founding
affidavit in paragraph 31 page 18 of the bundle as follows
–
“
Perhaps the commissioner failed
to appreciate the glaring distinction between the Department and the
SGB and this resulted in him
arriving at a fundamentally flawed
conclusion.”
[29]
This
assertion is different from the evidence which the Applicant’s
Principal, Ms Raisetja Mavusa appeared to have given in
the
arbitration. In her testimony she said when she arrived at the school
she noted that there were no contracts for some of the
GB teachers.
She approached the Department of Education for specimen contracts and
the First Respondent signed one. As the Commissioner
noted in the
Award, she further testified that –
4.2.
“The Department appointed them on the basis that they were
required to pass their exams
by no later than 2014.” (Award
page 2)
[30]
It is
curious that there is no reference made in this excerpt of the Award
or elsewhere in the Award which refers to the distinction
between the
SBG and the Department as claimed in the Founding Affidavit. Neither
is there any cross-reference to the record where
the Applicant’s
witness may have given evidence in the arbitration on the point which
the Commissioner may have failed to
identify as central to the
Applicant’s case.
[31]
The First
Respondent’s version was that she had first been employed by
the Applicant in 2002 without a written contract as
a Grade R
teacher. Then in 2005, she was given a contract which was renewed
annually. The Applicant told her without prior notice
or consultation
that they had decided to terminate her last contract which was due to
expire at the end of September 2011.
[32]
The
Commissioner dismissed this claim. He analysed several
characteristics of the working relationship and observed as follows -
“
5.1
The facts of this case reveal all the hallmarks of an employer
employee relationship. The applicant
reported daily. She had no other
source of income. She was subject to payee (sic). She offered a
service she did not present a
finished product. She was subject to
direction and control of the GB and its functionaries. The employee
could not have contracted
out of the LRA anchored by the constitution
of the RSA to give the effect to the fundamental right not to be
unfairly treated.
The applicant is therefore and employee”.
(Award at page 3.)
[33]
The
Commissioner further found that –
“
[7.1]    the
First Respondent had a legitimate expectation to be employed at least
until 2014 on the same terms and
conditions. (Award para 5.2); and
[7.2]     The
First Respondent was dismissed without being given a reason for the
termination.”
[34]
It was for
these reasons that the Commissioner concluded that there was a
dismissal and that it had been substantively and procedurally
unfair.
[35]
To succeed
in a review application, the applicant must show that the
Commissioner made findings and an award which a reasonable

decision-maker would not have made on consideration of the evidence
and relevant legal issues in the arbitration
[3]
.
[36]
It is
clearly evident from the Award that the Commissioner indeed
considered the undisputed evidence of repeated annual renewals
of the
First Respondent’s fixed term contracts which gave rise to the
legitimate expectation of permanent employment.
[37]
He also
applied his mind to whether one or more of the factors referred to in
section 200A of the Labour Relations Act
[4]
(LRA) applied to the First Respondent’s working relationship
with the Applicant. This section deals with the presumptions
as to
who is an employee. It provides  a set of guidelines to assist a
decision-maker to assess whether a person is an independent

contractor or an employee. A person is deemed to be an employee if
one or more of the factors is found to exist in the particular

working relationship.
[38]
The
Commissioner noted that not just one, but several factors relating to
the Applicant’s control over the First respondent
applied to
the First Respondent’s working relationship. It was on this
basis that he came to the conclusion as recorded in
paragraph 5.1 of
the Award that an employment relationship did in fact exist between
the Applicant and the First Respondent. For
these reasons, there is
no basis to conclude that the Commissioner’s conclusion was
unreasonable or irregular.
[39]
The
Commissioner’s reasoning and conclusions must prevail over the
Applicant’s version that there was no employment
relationship
with the Applicant and that the “true employer was the SGB”
who had engaged the First Respondent on a
fixed term contract which
had expired.
[40]
The very
purpose of section 200A of the LRA is to provide a set of objective
guidelines to assess the existence or otherwise of
an employment
relationship. The guidelines evolved because the legal nature of a
working relationship may either be unclear and
or be an employment
relationship by another name. The Commissioner applied the guidelines
and correctly concluded on the evidence
presented that an employment
relationship existed between the Applicant and the First Respondent.
[41]
I conclude
from these considerations, that there are no reasonable prospects of
success for the Applicant’s intended review
of the Award.
[42]
It follows
that the application for condonation must fail and be dismissed. This
is because the Applicant has failed to show good
cause to grant the
application.
Rescission and Review
[43]
It also
follows from the decision to deny the condonation that the
applications for rescission and review must also be dismissed
as a
necessary consequence.
Implementation of the
Award
[44]
The effect
of dismissing the applications for the rescission of the Order and
the review is that the Award must now be implemented.
[45]
Mr Crous
has made submissions on the manner in which the Award should be
implemented. He referred in particular to the recent Constitutional

Court judgment on the issue of back-pay in circumstances such as this
case in which the implementation of an award has been considerably

delayed pending the outcome of a review application. In
National
Union of Mineworkers of South Africa OBO M Fohlisa and 41 Others vs
Hendor Mining Supplies (A Division of Marschalk Beleggings
(Pty)
Ltd
[5]
the
Court confirmed that “reinstatement” means that the court
orders that –
“
[48]     the
employee must be “put back into the same job or position he or
she occupied before the dismissal,
on the same terms and conditions.
This means that the court is ordering that the employee not only be
taken back to his or her
job, but that he or she be afforded her or
his benefits under the contract. The benefits include payment of
remuneration. Surely
that covers the date of the reinstatement and
the date on which the reinstatement actually takes place.”
[46]
In this
case, the First Respondent was dismissed on 30 September 2011. It is
regrettable to note that the First Respondent died
on 21 April 2017
and thus will not benefit from reinstatement into her job as a result
of this judgment. However, during her post
dismissal life it is
evident that she demonstrated a consistent and determined intention
to seek justice in this Court. Her son
has continued to pursue the
case for her estate in his capacity as appointed Trustee. The
benefits will accordingly accrue to the
First Respondent’s
deceased estate.
Calculation of back
pay
[47]
The First
Respondent was and her estate is now entitled to payment by the
Applicant as follows -
47.1.
Seven (7)
months back-pay of R46 900.00 specified in the Award; plus
47.2.
The
remuneration calculated at R6 700.0 per month;
47.3.
For the
period from the date of reinstatement on 2 May 2012 as specified in
the Award and her date of death on 21 April 2017; plus
47.4.
Annual
increases; less
47.5.
Statutory
deductions.
Costs
[48]
The First
Respondent’s attorneys have applied for a punitive costs order
against the Applicant. There is some merit in the
submissions given
the dilatory conduct of the Applicant which has delayed the
finalisation of this case for some 5 years.
[49]
As
indicated, there were never any reasonable prospects of success in
the review yet the Applicant persisted regardless to pursue
the
matter. This came at great cost and hardship for the First Respondent
who went without an income without good reason.
[50]
The
difficulty in considering a punitive costs order is that it may serve
to punish the wrong party. There is reason to believe
the Applicant
was advised and relied on its various attorneys to persist with the
case against the odds. For this reason, it is
not appropriate to
order a punitive cost order on the attorney and client scale against
the Applicant. Nor would it be practical
to shift let alone apportion
degrees of the blame onto the current and past attorneys.
[51]
However
this is a case in which it is most certainly appropriate to make an
order of costs against the Applicant on the party and
party scale.
Interest
[52]
The
Applicant applied for interest on the arrear salaries for the period.
However, the capital must a liquidated judgement debt
to attract
interest in terms of the Prescribed Rate of Interest Act. The
calculation of the arrear salaries for the purpose of
this case was
not capable of accurate calculation taking account of annual
increases, statutory deductions and other factors to
qualify as a
liquidated amount. For this reason, it is not competent for this
court to make an order for the payment of interest.
Order
[53]
In the
premise, I make the following order:
1.
The
applications for condonation, rescission and review are dismissed.
2.
The Order
of Van Niekerk J dated 12 June 2014 is confirmed.
3.
The
Applicant is ordered to make payment to the First Respondent’s
estate as calculated in paragraph 47 of this judgement.
4.
The
Applicant is ordered to pay the First Respondent’s taxed costs.
___________________
P. Deale
Acting Judge of the
Labour Court of South Africa
Appearances:
For the Applicant:

K Molemoeng
Instructed by:

Msikinya Attorneys & Associates
For the Respondent:

M Crous of Du Randt Du Toit Pelser Attorneys
[1]
See
Melane
v Santam Insurance Company Limited
1962
(4) SA 531 (A)
[2]
(paragraph 26 page 31)
[3]
See
Sidumo
and Another v Rustenburg Platinum Mines
[2007]
12 BLLR 1097
(CC)
[5]
[2017] 6 BLLR 539
(CC),

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