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[2017] ZALCPE 24
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Department of Home Affairs v Public Service Co-ordinating Bargaining Council and Others (PR164/16) [2017] ZALCPE 24; (2018) 39 ILJ 823 (LC) (24 November 2017)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Reportable
CASE
NO: PR 164/16
In
the matter between:
DEPARTMENT
OF HOME AFFAIRS
Applicant
and
PUBLIC
SERVICE CO-ORDINATING
BARGAINING
COUNCIL
First Respondent
K
KAYSTER
N.O
.
Second Respondent
PSA
obo VK NAIDOO
Third Respondent
Application
heard: 15 November 2017
Judgment
delivered: 24 November 2017
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the second respondent (the arbitrator). In the
award,
issued on 7 March 2016, the arbitrator ordered the applicant to
upgrade the salary of the third respondent (the employee)
from level
9 to level 10, with effect from 1 August 2012. Prior to the hearing
of the application, it was agreed with the parties’
respective
representatives that a preliminary issue raised by the employee
relating to the status of the review application given
orders granted
by this court on 3 March 2017 and 3 November 2017 respectively, would
be determined. The nature and ambit of the
point raised by the
employee will become apparent from the background recorded below.
[2]
The material facts are briefly the following. On 17 May 2016, on
application by the employee, the CCMA certified the award in
terms of
s 143 of the Labour Relations Act (LRA). On 23 August 2016, the
applicant filed an application to review and set aside
the award. On
2 September 2016, the employee filed an application seeking to hold
the minister in contempt on account of a failure
to comply with the
award. The court ordered that the minister appear either in person or
by counsel on 4 November 2016 to show
cause why he should not be
found guilty of contempt. On 4 November 2016 the matter was argued
and judgment reserved. On 3 March
2017, the court (per Lallie J) made
the following order:
1.
The respondent is not guilty of contempt of court.
2.
The respondent is ordered to comply with the certified arbitration
award under
case number PSCBC 747-14/15.
3.
The respondent pay the applicant’s costs on the attorney and
client scale.
Costs include the costs reserved on 14 October 2016.
[3]
A perusal of the judgment indicates that the applicant had
acknowledged receipt of the arbitration award on 9 March 2016, but
denied that it had any knowledge that the award had been certified.
The court concluded that the applicant had genuinely believed
that in
the face of the pending review, it was entitled not to comply with
the award and thus not
mala fide
. In relation to enforcement
of the award, the court noted that s 143(1) provided that the
certified arbitration award was final
and binding, and enforceable as
if it were an order of this court. The court continued: ‘
A
certified award therefore has the same effect as an arbitration award
which has been made an order of court in terms of section
158 (1) (c)
of the LRA’
.
[4]
On 12 October 2017, the matter again came before the court, again in
the form of a contempt application. This time, the employee
sought in
order to hold the minister in contempt for a failure to comply with
the order granted on 3 March 2017. The applicant
opposed the
application, and sought a stay of the order, pending the outcome of
the review application. The court again found that
the element of
male fides
had not been satisfied, on the basis of the
proffered explanation that the exercise of the right of review
entitled the applicant
to refuse to comply with the order. In
relation to the application to stay, the court held as follows:
[8]
The applicant conceded that the enforcement order 3 March 2017 falls
within the purview
of the enforcement orders referred to in the above
dictum. It was however argued on behalf of the applicant that an
order granting
a stay of the certified award could not be granted
because there was no award to be stayed as in the order of 3 March
2017, the
respondent was ordered to comply with the certified
arbitration award. It was further argued that as the award did not
exist any
longer, the order of 3 March 2017 could also not be stayed
pending the review of a non-existent arbitration award. The remedy
open
to the respondent, so went the argument, was to appeal against
the order of 3 March 2017.
[9]
Counsel for the respondent eventually conceded that the certified
award no longer
exists. Its enforcement could therefore not be
stayed. He insisted that the enforcement order of 3 March 2017 should
be stayed
pending the review application. I accept the respondent’s
argument that it is possible to stay the enforcement order of 3
March
2017. However each case is decided on its merits. In the enforcement
order the respondent is ordered to comply with the certified
arbitration award. In the review application the respondent seeks an
order to have the very same certified award reviewed and set
aside.
Effectively, the respondent seeks the Labour Court to review its own
judgment. The order is incompetent as the Labour Court
lacks
jurisdiction to review its own judgments. An order of this court may
not be stayed to afford the respondent an opportunity
to seek an
incompetent order. The respondent’s application can, in the
circumstances, not succeed.
[5]
The court went on to dismiss the application to stay, and ordered the
applicant in the present proceedings to comply with order
dated 3
March 2017.
[6]
In these proceedings, the employee submits that for the reasons
reflected in this court’s judgment delivered on 3 November
2017, the arbitration award is no longer capable of being reviewed.
[7]
The relevant principles are well-established. This court has long
held that the fact of a pending review is not a bar to the
court
making any arbitration award that is sought to be reviewed and set
aside an order of court (see
Ntshangana v Specialty Metal CC
[1998] 3 BLLR 305
(LC)). It is equally well-established though that
where an arbitration award is made an order of court, that order is
fatal to
any pending application to review the award, if only because
the arbitration award ceases to exist. In
Blue Marine (Pty) Ltd v
CCMA & others
[2003] 9 BLLR 853
(LC) Ndlovu AJ (as he then
was) said the following:
[15]
It is important to realise that once the award is made an order of
the court the award, from
which such order was made, falls away. In
other words, the two instruments cannot co-exist alongside each
other. Therefore, upon
the award being made an order of the court,
there can be no question again of an application for review, aimed at
reviewing and
setting aside the same award. By then, the award no
longer exists. Any party who feels aggrieved by the award, can then
only look
for remedy to challenge the court order (derived from the
award) and not the award.
[8]
More recently, in
Gauteng Department of Education v Saunders: In
re Saunders v Gauteng Department of Education and others
[2015]
12 BLLR 1187
(LAC), the Labour Appeal Court observed:
[32]
It is trite that once an arbitration award has been made an order of
court, it is no longer reviewable.
The order is of final effect and
is, therefore, appealable
.
[9]
In the present instance, the applicant submits that the existence of
the compliance order does not preclude the court from proceeding
to
hear the review application, whatever its merits. The applicants
contends that to hold otherwise would have the effect that
the doors
of the court would be closed to it, and that it would be denied the
rights it has under s 145 to review the arbitration
award. To resolve
what it describes as the ‘conundrum’ posed by the orders
granted by Lallie J, the applicant proposes
an application to vary
the orders made by Lallie J insofar as the period of compliance is
concerned, at least while the review
application remains pending,
alternatively, that the employee could provide a written undertaking
not to seek enforcement of the
award pending the outcome of the
review. The applicant goes so far as to suggest that but for the
‘marathon of contempt of
court applications’ the matter
could well have been resolved by this time.
[10]
While the applicant’s submissions have the ring of pragmatism
to them, they fail to address the substantive issue –
whether
the effect of the orders granted by Lallie J renders the review
application moot. The wording of the order granted on 3
March is
clear and unambiguous – the applicant was ordered to comply
with the award. Similarly, the order granted on 3 November
2017
states that the applicant is required to comply with the order made
on 3 March 2017. I fail to appreciate how under these
circumstances
it can be said that it remains open to the applicant to contest the
award by way of review. The fact remains that
there are two orders by
this court which, on the authorities referred to above, have had the
effect that the award no longer exists
and is therefore incapable of
review. Put another way, the application for review is moot, at least
in the sense expressed in
National Coalition of Gay and Lesbian
and others v Minister of Home Affairs and others
2000 (2) SA 1
(CC) where the court said that a case is moot and therefore not
justiciable if it no longer presents an existing or live controversy
(at para 21, footnote 8), or where, in the words of
Rand Water
Board v Rotek Industries (Pty) Ltd
2003 (4) SA 58
(SCA), making a
determination will have no practical effect. (See
Tecmed Africa
(Pty) Ltd v Minister of Health and another
[2012] 4 All SA 149
(SCA.)
[11]
In so far as the applicant complains that a finding to the contrary
would deny it the statutory right of review, this is a
situation of
its own making. It was open to the applicant to seek leave to appeal
against both the order of 3 March 2016 and that
of 3 November 2017 –
it failed to do so, for reasons that are not apparent. It does not
assist the applicant now to suggest
that it ought to be entitled to
exercise its right of appeal against either or both orders made by
Lallie J. The consequence, of
course, is that the applicant remains
bound by no less than two orders of this court both of which require
compliance with the
award.
[12]
In relation to costs, the court as a broad discretion in terms of s
162 to make orders for costs according to the requirements
of the law
and fairness. In my view, those interests are best satisfied by an
order that the applicant pays the costs of these
proceedings. The
history of this matter is a sorry one. The employee has for more than
18 months sought to enforce the award issued
in her favour. The
review application on which the applicant has so heavily relied to
avoid or delay the enforcement of the award
was filed on 15 July
2016, some 85 days late. While there is an application for
condonation for the late filing of the review,
it would appear that
the prosecution of the review application was conducted at a
pedestrian pace in circumstances where all of
the applicant’s
advisers must have been aware of the applicable time limits. This is
so in circumstances where the statutory
purpose of expeditious
dispute resolution in relation to reviews has been underlined in a
number of recent judgments by this court
that emphasise the tighter
approach to be adopted to applications to condone the late filing of
reviews, and also by an amendment
to the LRA which requires parties
to a review application to seek a hearing date within six months of
filing the application. In
her efforts to secure the enforcement of
the arbitration award, the employee was within her rights to seek to
hold the minister
in contempt - it is rich for the applicant now to
suggest that these efforts are the reason for the delay in finalising
this matter.
In short, the requirements of the law and fairness
dictate that the employee should not be out of pocket in relation to
the costs
of her opposition to the review application.
I
make the following order:
1.
The application is dismissed, with costs.
André
van Niekerk
Judge
REPRESENTATION:
For
the applicant: Adv. M Zondo, instructed by the state attorney
(Att
Ms. Govender fax 041 585 2687)
For
the respondent: Adv. Dyke, instructed by Brown Braude & Vlok Inc.
(Att
Mr C Jessop fax 041 365 3681)