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[2017] ZALCJHB 448
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Kgoahla v MEC: Education and Sports Development North West and Another (J2040/16) [2017] ZALCJHB 448 (6 December 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
C
ase
no: J 2040/16
In
the matter between:
KGOAHLA
LS
Applicant
and
MEC;
EDUCATION AND SPORTS
DEVELOPMENT
NORTH WEST
First Respondent
DEPARTMENT
OF EDUCATION AND
SPORT
DEVELOPMENT: NORTH WEST
Second Respondent
Heard:
In Chambers
Date
of judgment: 6 December 2017
JUDGMENT
VAN
NIEKERK J
[1]
On 1 August 2017, this matter was enrolled for hearing on the
unopposed motion roll. The applicant seeks an order in terms of
s 158
(1) (h), reviewing and setting aside his transfer from one school to
another. The application was filed late. The applicant’s
attorneys had withdrawn before the hearing, and he was represented by
a union official. The official sought an opportunity to explain
further the delay in filing the application, and the applicant was
accordingly granted an opportunity to file a supplementary affidavit.
That affidavit has been filed, and this is the court’s ruling
in the application for condonation.
[2]
It is not disputed that on 17 April 2015, the applicant (who was then
the principal of the MM Sebitloane Special School) received
notice of
a transfer to the Walter Lestsi High School. He disputed the
lawfulness of the transfer. On 1 March 2016, the applicant
was placed
at the Baisitse Primary School, after the retirement of that school’s
principal. On 2 March 2016 the applicant
disputed the lawfulness of
that transfer. The dispute culminated in the filing of this
application, in which the applicant seeks
to have the transfer
reversed and to return to the post of principal of the MM Sebitloane
Special School, without loss of benefits.
[3]
The application was filed on 20 October 2016, some 6 months and three
weeks after receipt of the letter of transfer. The
applicant
concedes that the application was filed late, but it is not clear on
how late it was filed, probably because the LRA
does not prescribe
any particular period within which an application in terms of s 158
(1) (h) must be filed. The explanation in
the condonation application
is predicated on an assumption that the application to have been
filed within three months. The explanation
for the delay, especially
that incorporated into the supplementary affidavit, concerns the
handling of the matter by the applicant’s
previous attorneys
and attempts by the applicant’s union to obtain the file from
the attorneys. The application was ultimately
filed in October 2016
by the attorneys, with the assistance of the union. There is no
explanation however the fact that founding
affidavit to the
application was signed and commissioned on 30 August 2016 more than
six weeks before the application was filed.
In most circumstances, it
is clear that both the applicant’s attorneys were aware that
the application was already late,
but there is no explanation from
them as to this period the delay.
[4]
However, even if I were to accept that the filing of the application
was pursued with due diligence after the union’s
involvement,
I’m not satisfied that the applicant has any prospects of
success in the main application. The founding affidavit,
as I have
indicated, suggest that the application is brought in terms of s 158
(1) (h). That section permits an applicant to review
any decision
taken with any act performed by the state in its capacity as
employer, on such grounds as permissible. It is incumbent
on an
applicant to articulate precisely the grounds on which the review is
sought. Specifically, the applicant would at least indicate
whether
he or she relies on the Promotion of Administrative Justice Act, what
is come to be called a ‘legality review’
or a review at
common law. The closest that the applicant comes to articulating any
proper ground for review is the assertion that
in effecting the
applicant transfer, the respondents acted in breach of s 14 of the
Public Service Act. While it is correct that
s 14 regulates transfers
within the public service, s2 of the Act provides that where
educators are not excluded from the provisions
of the act, those
provisions apply only in so far as they are not contrary to the laws
governing the employment. In effect, the
applicants terms and
conditions of employment or regulated by the Employment of Educators
Act, 76 of 98. Section 8 of that Act
regulates the transfer of
educators and affords the director-general of the head of Department
rights to transfer educators to
other posts. These rights are subject
to recommendations by the governing body of the school concerned. It
would appear therefore,
on the face of it, that there is a separate
regulatory regime that applies to the transfer of educators and that
it is not sufficient
simply to allege that the respondents acted in
breach of s 14 of the Public Service Act.
[5]
In short, given that the founding affidavit fails to disclose a
properly formulated ground for review, the applicant’s
prospects of success in the review application are minimal if they
exist at all.
[6]
In the light of an incomplete explanation for the delay that is not
insubstantial, and the absence of any significant prospects
of
success, in my view, the application for condonation stands to be
dismissed.
I
make the following order:
1.
Condonation for the late
filing of the review application is refused.
2.
The review application is
dismissed.
André
van Niekerk
Judge