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[2017] ZALCD 19
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National Health Laboratory Service v Turzyniecka (D1245/16) [2017] ZALCD 19 (15 September 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not
reportable
Case
no: D1245/16
In
the matter between:
NATIONAL
HEALTH LABORATORY
SERVICE
Applicant
and
MAGDELENA
TURZYNIECKA
Respondent
Heard:
26 April 2017
Delivered:
15 September 2017
Summary:
[Doctrine of res judicata-Application to strike out-(Rule 6(15) of
the Uniform Rules-Power of attorney signed o
utside the
Republic of South Africa (Rule 63 of the Uniform Rules-Condonation
application (inordinate delay and poor explanation
may lead to
condonation not being granted)-Section 158(1)(h) of the LRA-Principle
of legality-Reasonable time].
JUDGMENT
MABASO
AJ
Introduction
[1]
The applicant and the respondent entered into an employment contract
in July 2013 wherein the latter was employed as a medical
practitioner. The respondent is a foreign national and based on her
nationality, on 28 September 2016, the applicant brought this
application, and its notice of motion is couched in the following:
“
1.
Condoning the late filing of this application.
2.
Declaring that no valid and enforceable contract of employment came
into existence
between the applicant and the respondent in July 2013.
3.
In the event that it is found that a valid and enforceable contract
of employment
came into existence between the applicant and the
respondent in July 2013 declaring the contract of employment
concluded between
the applicant and the respondent on 22 July 2013 is
invalid, unlawful and enforceable.
4.
Setting aside the aforesaid contract of employment.
…”
[2]
In its heads of argument, the applicant submitted that this
application is in terms of section 158(1)(a)(iv)
[1]
of the Labour Relations Act
[2]
(the LRA).
[3]
The Counsel for the Applicant, confirmed during argument that indeed
this application, prayer 3, is similar to the one of
Khumalo
(Constitutional Court matter). It is apparent to me that the
applicant is challenging the legality of the contract entered into
between the parties. Therefore, it requires that such
application must be made within a reasonable time. This application
is accompanied by a condonation application, as per prayer 1. I deal
with the issue of condonation below.
[3]
The applicant is the National Health Laboratory Services (NHLS) which
is established in terms of the National Health Laboratory
Service
Act
[4]
.
(Hereinafter referred to as the applicant) The respondent is Ms
Magdelena Turzyniecka (hereinafter referred to as the respondent).
The respondent is opposing this application.
Issues
[4]
The following points
in limine
are raised by the parties
against each other, in this application:
(a)
the applicant submitted that a power of attorney and the confirmatory
affidavit delivered
by the respondent are defective therefore the
answering affidavit be struck out;
(b)
whereas the respondent submitted that the matter is
res judicata
because it was finalised in terms of the provisions of section 138(7)
of the LRA; and
(c)
the respondent raised the point of prescription.
[5]
If point (a) succeeds, the matter will proceed unopposed, on the
other hand, if point (b) or (c) succeeds the entire application
will
have to be dismissed. In respect of point (c), I am of the view that
there is no proper case that has been presented before
me, as the
respondent’s assertion is a vague one which reads thus “…The
applicant seeks to pursue this Honourable
Court pronounce upon the
validity of a contract concluded in July 2013, the applicant’s
right to do so has become prescribed…´
Factual
background
[6]
The respondent is a foreign national who holds dual citizenship of
Poland and the United Kingdom. At the beginning of 2011,
the
applicant and the Nelson R Mandela School of Medicine at the
University KwaZulu-Natal jointly appointed the respondent in the
capacity of lecturer. Taking into account the nationality of the
respondent, her appointment to this position was based on “the
basis that she had a valid work permit which foreign nationals are
required to possess to enable them to lawfully work within the
Republic of South Africa . The type of visa which the respondent
produced was one in terms of which she was entitled to reside
within
the Republic of South Africa with a spouse and to work for the
applicant on the basis that she was residing with a spouse
in the
Republic of South Africa.”
[5]
[7]
In 2013 the respondent was successfully interviewed for the position
of head of Department of Chemical Pathology at the Inkosi
Albert
Luthuli Complex Hospital in Kwa-Zulu Natal. Subsequently, she was
offered the position on the basis that she was entitled
to stay and
work in this country as she had a South African spouse with whom she
was living with. The offer of employment (the
offer) was transmitted
to the respondent by way of an email dated 5 July 2013, wherein it is
stated that the interviews were successful,
and therefore she was
offered a position with effect from “01 July 2013”, and
it indicates that the contract of employment
and “offer letter
of employment” were attached therein. This email further states
that “Please read and initial each page and sign on the last
page, if and when you concede with the terms and July(sic) conditions
of the appointment, then send it back to me
”.
[8]
According to the letter of appointment, at the tail of it the
respondent was advised that “
Kindly
confirm your acceptance of the offer of employment and the attached
contract , by signing and returning to the Human resources
department
within 7 days of
receipt of this offer
.
[6]
The
applicant’s basis for prayer 2 is that the respondent
failed to accept the offer within seven days thereafter.
[9]
On 10 July 2013, two days before the expiry of the 7 day period, the
respondent sent an email to the applicant stating
inter
alia
that she found some
discrepancies regarding working hours between the letter dated 24
June 2013 and the employment contract: In
that the letter provides
that “
[she] required
to work minimum 56 hours per week (40 hours basic and 16 hours
committed over time)…
with regards to a periods of
notice –see point .5 of the contract –am I treated
as a new employee or an old employee
who changes the position , that
is would my period of notice be one month or a one week for the next
six months(sic)?
The
Respondent requested the applicant to “address and clarify”
these points.
[7]
[10]
In the papers it is not indicated as to whether the aforestated
questions by the respondent were addressed or not, and if indeed
when? However, that on 22 July 2013 the respondent “purported
to accept the offer of employment”, and according to
the
applicant, this offer had already lapsed and was no longer capable of
being accepted as the period of 7 days had passed from
the date of
receipt of the offer of a letter of employment. It further avers that
the acceptance was supposed to be accepted by
no later than 14 July
2013. Based on this, the applicant says:
“
Unbeknown to the applicant and
the respondent that the offer of employment in the contract was no
longer acceptable on 22 July 2013,
the parties conducted themselves
as if there was a valid acceptance of the offer of employment and
contract when in fact there
was not. Similarly, the applicant and the
respondent conducted themselves as if a valid and enforceable
contract of employment
came into existence when in fact and in law
that was not so.”
[8]
And
“
The fact that the applicant and
the respondent conducted themselves as if a valid and enforceable
contract of employment came into
existence does not mean that the
contract of employment did in fact and in law came into existence.
Their conduct is in fact irrelevant
in that determination”
[9]
[11]
The applicant further states that, should this Court dismiss this
prayer(prayer 2) , it should at least make an order that
the contract
that was entered into by the parties is unlawful as it was invalid
and unenforceable, as it is against clause 9.3
of the recruitment
policy of the applicant, made in contravention of the Department of
Health policy dealing with employment of
foreign health professionals
which requires that a foreign national should be employed on a fixed
term contract of not more than
5 years. The condonation application
(prayer 1) relates to prayer 3 of the notice of motion.
[10]
Therefore, no explanation is given for the bringing of prayer 2 after
a period of more than 3 years following the conclusion of
the
contract.
[12]
The third ground is that when the applicant appointed the respondent,
it relied on the visitor’s visa and that she was
to reside with
the South African spouse. Therefore, according to it, the respondent
was not a party to the marriage, which would
have qualified her to be
a spouse. Therefore, if this information was at the applicant’s
attention, the respondent
would not have been appointed to this
position.
[13]
The deponent to the founding affidavit is one Mr Bheki Templton
Hlatshwayo (Mr Hlatshwayo) who has not stated his position,
save to
say he is employed by the applicant and authorised to bring this
application on its behalf. On behalf of the respondent,
the deponent
to the answering affidavit is Mr Dean Macbeth Caro (Mr Caro) who
avers that he is the current attorney of record for
the respondent
and he is “duly authorised by the respondent to depose to this
affidavit on her behalf”. It needs to
be mentioned from the
beginning that one does not need the authorization to depose to an
affidavit, however, but to bring
and/or oppose an application
on behalf of another.
[11]
The
power of attorney and confirmatory affidavit
[14]
Following the delivery of Mr Caro’s affidavit, on 21 February
2017 the applicant delivered a notice challenging the authority
of Mr
Caro in acting on behalf of the respondent, and calling upon Dean
Caro & Associates to deliver a power of attorney confirming
their
instruction. On 3 March 2017, the attorneys complied with this
request by delivering such document. The applicant delivered
the
replying affidavit wherein it avers that the answering affidavit
should be struck out as the attorneys for the respondent have
failed
to submit a power of attorney despite being asked to do so,
alternatively that there was no condonation application for
the late
delivery of the answering affidavit. The condonation point was not
pursued further during argument.
[15]
Therefore, the only point that remained was the one on failure to
deliver a power of attorney and confirmatory affidavit, Counsel
for
the applicant acknowledged that both were delivered, however,
according to him they were defective because they had no seal
of
office taking into account that were signed outside the Republic of
South Africa, meaning the answering affidavit should be
struck out.
[16]
The court may strike out any part of an affidavit, whereby it is
called upon to do so, if such affidavit or its part is
scandalous, vexatious or irrelevant and this cannot be done
when the opponent is not being prejudiced. The applicable
rule
is Rule 6(15) of the Uniform Rules which provides that:
“
The court may on application
order to be struck out from any affidavit any matter which is
scandalous, vexatious or irrelevant,
with an appropriate order as to
costs, including costs as between attorney and client.
The
court shall not grant the application unless it is satisfied that the
applicant will be prejudiced in his case if it be not
granted
.”(Own
emphasis)
[17]
As the argument for the applicant is that the answering affidavit
should be struck out because despite a power of attorney
and
confirmatory affidavit being submitted they do not comply with the
provisions of Rule 63 of uniform rules.
[18]
It is important to quote part of the applicable Rule 63, which reads
thus:
“
In this rule, unless
inconsistent with the context—
‘
document’ means any
deed, contract, power of attorney, affidavit or other writing, but
does not include an affidavit or solemn
or attested declaration
purporting to have been made before an officer prescribed by section
eight of the Justices of the Peace
and Commissioners of Oaths Act,
1963 (Act No. 16 of 1963);
‘
authentication’ means,
when applied to a document, the verification of any signature
thereon.
(2)Any document executed in any place
outside the Republic shall be deemed to be sufficiently authenticated
for the purpose of use
in the Republic if it be duly authenticated at
such foreign place by the signature and seal of office—
(a)of the head of a South African
diplomatic or consular mission or a person in the administrative or
professional division of the
public service serving at a South
African diplomatic, consular or trade office abroad; or
(2A)Notwithstanding anything in this
rule contained, any document authenticated in accordance with the
provisions of the Hague Covention
Abolishing the Requirement of
Legislation for Foreign Public Documents shall be deemed to be
sufficiently authenticated for the
purpose of use in the Republic
where such document emanates from a country that is a party to the
Convention.
[Sub-r. (2A) inserted by r. 2 of GNR.
89 of 12 February 2010.]
(3)If any person authenticating a
document in terms of sub-rule (2) has no seal of office, he shall
certify thereon under his signature
to that effect.”
[19]
In observing the Rules, this court has to remind itself that the
rules exist for the court not that the court exists for the
rules.
Therefore, in interpreting the rules some flexibility has to be taken
into account and look at the circumstances under which
such document
had to be delivered, and most importantly the interests of justice.
For example, in
Brown’s
[12]
case, the court held that:
“
It is in the interests of
the administration of justice that the well-known and well
established general rules regarding the number
of sets and the proper
sequence of affidavits in motion proceedings should ordinarily be
observed.
That is not to say that those general rules
must always be rigidly applied: some flexibility, controlled by the
presiding Judge
exercising his discretion in relation to the facts of
the case before him, must necessarily also be permitted
.
Where, as in the present case, an affidavit is tendered in motion
proceedings both late and out of its ordinary sequence, the
party
tendering it is seeking, not a right, but an indulgence from the
Court: he must both advance his explanation of why the affidavit
is
out of time and satisfy the Court that, although the affidavit is
late, it should, having regard to all the circumstances of
the case,
nevertheless be received. Attempted definition of the ambit of a
discretion is neither easy nor desirable. In any event,
I do not find
it necessary to... It is sufficient for the purposes of this appeal
to say that, on any approach to the problem,
the adequacy or
otherwise of the explanation for the late tendering of the affidavit
will always be an important factor in the
enquiry.”
[20]
Taking into account that the applicant and the respondent are
involved in another litigation represented by the same sets of
attorneys and that the respondent attorneys have delivered the
answering affidavit on behalf of the respondent and deals with an
arbitration award which is a public document and the existence of
such arbitration award is not disputed by the applicant. I have
also
taken into account, what the then Cape Division said in respect of
authentication of documents executed outside the Republic
of South
Africa, where van Reeven J emphasised that:
“
The rules relating to the
authentication of a document executed in foreign countries have been
designed to ensure that such documents
are genuine before use can be
made thereof in the Republic of South Africa.
The
prescribed formalities are not mandatory
,
and the genuineness of such documents may be proved on Page 458 of
[2003] 1 All SA 453
(C)a balance of probabilities by means of direct
or circumstantial evidence or both. (See: Chopra v Sparks Cinemas
(Pty) Ltd and
another 1973 (2) SA 352 (D) at 358B–D;
see also Ex parte Holmes and Co (Pty) Ltd
1939 NPD 301
; Friend v
Friend 1962 (4) SA 115 (E)
).”
[13]
[21]
Mr Caro as an officer of Court, who represented the respondent during
the arbitration and his affidavit deals principally with
the issues
relating to the point
in limine
that was raised on behalf of
the respondent-the arbitration award, in respect of further averments
by the applicant in the founding
affidavit Mr Caro’s affidavit
are just bald averments. Therefore, I am not convinced that there
would be any prejudice on
the part of the applicant if both the
confirmatory affidavit and power of attorney by the respondent are
accepted, as they are,
in confirming what is contained in Mr Caro’s
affidavit. And there is no averments of scandalous, vexatious or
irrelevant
that has been made. Based on all of the above, I cannot
disregard the answering affidavit. I need to mention that the
application
to strike out is misplaced in this application.
Doctrin
e
of res judicata
[22]
In the answering affidavit the respondent raises the
res judicata
point
in limine
in that the same parties before the CCMA were
involved in the same cause of action whereby the same relief which is
being sought
was dealt with at that forum. The respondent did not
submit the same arbitration award however both parties confirm that
the same
arbitration award is the subject of the review before this
Court under case number D 737/16. As an arbitration award is an
administrative
act and the review documents are also public
documents, therefore this Court had to retrieve the file to look at
what is contained
in such arbitration award, to determine as to
whether this point of
res judicata
is valid or not.
[23]
The SCA in
Prinsloo NO and
others v Goldex 15 (Pty) Ltd and another
[14]
summarised this principle as follows:
“
The expression "res
iudicata" literally means that the matter has already been
decided. The gist of the plea is that the
matter or question raised
by the other side had been finally adjudicated upon in proceedings
between the parties and that it therefore
cannot be raised again.
According to Voet 42.1.1, the exceptio was available at common law if
it were shown that the judgment in
the earlier case was given in a
dispute between the same parties, for the same relief on the same
ground or on the same cause
.”
[15]
Arbitration award:
[24]
The arbitration award under the CCMA’s case number KNDB
8399/15, was about an unfair dismissal dispute which had been
referred to the CCMA in terms of the provisions of the LRA, where the
respondent claimed that she was unfairly dismissed. During
the
arbitration, the applicant did not tender any
viva voca
evidence and relied on documentary evidence. It was presented before
the commissioner that the respondent was issued with a letter
terminating her employment advising her that failure to provide the
applicant with a “new” work permit their employment
relationship was terminated with effect from 12 June 2015. [This
application, before me, sought to challenge the legality of the
same
contract of employment which was terminated in June 2015]
[25]
The applicant, during the arbitration, submitted that it was
disputing that there was a dismissal instead their employment
relationship terminated by the affluxion of time. However, the
Commissioner rejected this explanation.
[26]
In deciding this application I need to remember that the
Constitutional Court in the case of
Molaudzi
v S
[16]
,
in expanding on the
res
judicata
doctrine said that
each case has to be decided on its facts before one can conclude that
indeed the matter is
res
judicata
[17]
.
Moreover, such facts have to be scrutinised, as the court held
as follows:
“
In the context of a criminal
appeal there is, strictly speaking, no "cause of action"
but rather grounds of appeal against
a particular conviction or
sentence. It is arguable that this may be akin to a "cause of
action" for the purposes of
res judicata. It could be reasoned
that in the first application this Court was not called upon to
adjudicate the substantive merits
of the constitutional challenges
now raised. By analogy this is a different "cause of action",
and therefore this Court
is not precluded from hearing the second
application under the res judicata rule
.”
[18]
[27]
Taking into account that the applicant wants the contract between the
parties that was entered into in July 2013 be declared
“ no
valid and enforceable contract of employment came into existence
between the applicant and the respondent in July 2013”,
clearly
this was not the case before the commissioner at the CCMA which the
commissioner was called upon to decide on the
termination of contract
on 11 June 2015. I am of the view that before me there is a “new
cause of action” which I have
been called to decide upon. Under
those circumstances, I agree with the Applicant that the validity of
the contract of employment
was not adjudicated at the CCMA.
Therefore, the
res judicata
point
in limine
fails.
Prayer
1, 2,3 and 4: Is there a convincing case? (Two reasons why this
application cannot succeed)
A.
The award
[28]
It is prudent to mention that Mr Hlatshwayo, the deponent to the
founding and replying affidavits, does not state his position
within
the applicant and further does not indicate as to when did the
applicant become aware of this alleged invalidity.Be that
as it may,
the basis for the applicant's contention that the contract entered in
July 2013 is invalid is because it was accepted
on 22 July 2013,
instead of 14 July 2013.
[29]
Every matter has to be decided based on its circumstances and
applicable principles. The applicant’s basis for this
application is one of the validity of the contract-which the
applicant terminated in June 2015. In my view, it cannot be
decided in isolation taking into account that the relationship
between the parties herein is the employment relationship which in
this country is governed by its legislations(such as the LRA and
Basic Conditions of Emplyment Act), and these legislations are
the
supreme law in employment matters as compared to the general common
law principles. For example, section 210 of the LRA provides
that,
“
Application of Act when in
conflict with other laws-If any conflict, relating to the matters
dealt with in this Act, arises between
this Act and the provisions of
any other law save the Constitution or any Act expressly amending
this Act, the provisions of this
Act will prevail”.
[30]
The applicant did not put this Court in its confidence, in that in
its founding papers it did not mention that there is an
arbitration
award issued against it in terms of section 138 of the LRA, and if
the respondent did not mention this, it means that
this Court was not
going to be aware of the arbitration award, as not all arbitration
awards issued by CCMA are published. The
applicant in its replying
affidavit where it answers what has been raised by the respondent in
respect of what the commissioner
decided, the relevant excerpt from
it reads thus:
“
Insofar as the arbitrating
commissioner has concluded that the respondent was a permanent
employee of the applicant,
it
is for this reason that the applicant now seeks an order declaring
that such employment is invalid for the reasons set out in
the
applicant’s founding affidavit
”
[19]
[31]
This shows that the arbitration award, in this matter, is a crucial
document. Hence I have to look at it. It is common cause
between the
parties that the arbitration award is the subject of the review
application before this Court under case number D737/2016.
[32]
The arbitration award is an administrative action
[20]
,
and this arbitration award has not been reviewed and set aside,
meaning it is binding, as the Supreme Court of Appeal put it ,in
the
matter of
Oudekraal Estates
(Pty) Ltd v City of Cape Town and others
[21]
in that:
“…
Until the
Administrator’s approval (and thus also the consequences of the
approval) is set aside by a court in proceedings
for judicial review
it exists in fact and it has legal consequences that cannot simply be
overlooked. The proper functioning of
a modern state would be
considerably compromised if all administrative acts could be given
effect to or ignored depending upon
the view the subject takes of the
validity of the act in question. No doubt it is for this reason that
our law has always recognised
that even an unlawful administrative
act is capable of producing legally valid consequences for so long as
the unlawful act is
not set aside
.”
[22]
[33]
The same contract of employment which I have been asked to declare
invalid and unenforceable as, according to the arbitration
award, was
terminated by the applicant when it issued a letter to the
respondent on 11 June 2015 which partly reads as follows
“
we
regrettable inform you that your employment agreement with [the
applicant] In now terminated from the 12
th
June 2015”
. Evidently, the commissioner decided on the
fairness of dismissal following the termination of the same contract
of employment.
Moreover, he concluded that the dismissal was
substantively unfair. It is common cause between the parties that the
arbitration
award is the subject of the review as mentioned above.
[34]
If I were to decide as to the validity of the contract that was
entered into between the parties, the question would be what
would be
the status of the arbitration award. The answer to this question is
that indirectly I would be saying the arbitration
award is not
enforceable. I, therefore, conclude that the review application,
under case number D 737/16 and this application cannot
run parallel.
Instead, the arbitration award supersedes this process whereby the
applicant is relying on the legality. Based on
the aforementioned
reasons, I conclude that I lack jurisdiction to make a pronouncement
on the validity of the contract between
the parties which was
terminated by the applicant in June 2015.
[35]
Consequently, in respect of prayer 2 this Court cannot decide on
something that was terminated by the applicant.
B.
The condonation
[36]
But even if my conclusion above, paragraph 28 to 35, is wrong, I
still believe that this application cannot succeed based on
the
following.
[37]
The applicant is reviewing its decision in respect of appointing the
respondent on a permanent basis, according to it, instead
of a fixed
term contract as per paragraph 7 of its policy. The applicant is
challenging the lawfulness of its own decision and
is expected to act
expeditiously so.
[23]
The applicant has brought condonation application, which I have to
use judicial discretion as to whether I grant it or not.
[38]
In explaining the reason for the delay in the delivery of this
application, the applicant asserts that it became aware of the
non-compliance of its policy of employment of foreign nationals in
August 2013. It then took steps to unilaterally amend the contract
of
employment in a letter dated 30 August 2013 and acknowledged that it
was legally incorrect in taking such approach. It is stated
that the
respondent resisted the nature of the amendment of the contract.
Subsequently, there was a misunderstanding between the
senior
officials and junior staff members of the applicant in respect to the
approach to be taken. It is not explained as to how
long this
confusion took place.
[39]
This application was delivered in September 2016, and there is no
explanation as to what happened between August 2013 and 9
June 2015,
a period of 21 months. Moreover, between 9 June 2015 and
September 2016 a period of a further 15 months. In essence,
there is
no complete explanation for the period of 3 years as to what steps
were taken by the applicant to correct the alleged
unlawful act.
There is an excessive delay in bringing this application. In the
matter of
Khumalo
above, Skweyiya J , for the majority, in
respect of reasonable time in the context of LRA held that,
“
the importance of resolving
labour dispute in time is thus central to the LRA framework. It is
generally understood that proceedings
under section 158(1)(h) must be
lodged within a reasonable time. In some instances, in the contents
of the LRA, the courts have
held a reasonable time to be about six
weeks”
[24]
[40]
It is a requirement that a delay, especially if it is an unreasonable
delay, an applicant in a condonation application has
to explain the
entire period. The Constitutional Court in the matter of
Van
Wyk v Unitrans Hospital
and
others
[25]
in rejecting a condonation based on an unreasonable delay had
the following to say:
“
An applicant for
condonation must give a full explanation for the delay. In
addition, the explanation must cover the entire
period of delay.
And, what is more, the explanation given must be reasonable.
The explanation given by the applicant
falls far short of these
requirements. Her explanation for the inordinate delay is
superficial and unconvincing. It
amounts to this.
During the entire period of
approximately eleven months she was considering whether or not to
appeal the decision of the Supreme
Court of Appeal. During this
period she sought advice from a number of individuals whom she has
not disclosed. In addition
she alleges that she does not have
unlimited funds although she admits that this is not a compelling
reason for the delay.
She has not furnished any explanation as
to why it took approximately eleven months for her to decide whether
or not to appeal.
Nor has she furnished any explanation how she
overcame her funding difficulty.”
[26]
[41]
Based on the above, I am not satisfied that the delays should be
overlooked.Even if one were to look at the prejudice that
will be
suffered by the respondent, clearly the respondent will suffer
prejudice and that for the mere fact that she is waiting
for the
outcome of this case and the other case is still pending before this
Court, delay itself can be a prejudice and “
weaken
the ability of a court to consider the merits of a [case]”.
[27]
I am of the view that this is a matter which requires the prospects
of success not to be looked at taking into account the length
of
delay and that no plausable explanation for the delay has been
proferred. I have further taken into account that there is no
explanation as to when did the applicant realised that it entered
into a contract of employment with the respondent after the expiry
of
the seven-day period, as per its assertion, therefore without such
explanation I am of the view that this application was delivered
far
beyond a reasonable time.
[42]
In the circumstances, the following order is made:
Order
1.
The Application is dismissed.
2.
There is no order as to costs.
—————————————
S.
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
Adv KT Tsatsawane
Instructed
by:
Gildenhuys Malatji Inc,
For
the Respondent:
Adv P Schumann
Instructed
by:
Dean Caro Attorneys
[1]
this section provides that “Labour Court may make any
appropriate order, including a declaratory order”.
[2]
Act 66 of 1995 as amended.
[3]
I have taken note that the manner in which prayers 2 and 3 are
framed, they are similar to the matter which the Constitutional
Court had to deal with,
Khumalo
and Another v Member of the Executive Council for Education: KwaZulu
Natal
2014 (3) BCLR 333
(CC)
,
(2014) 35 ILJ 613 (CC);
2014 (5) SA 579
(CC) (
Khumalo
)
where it said even if an applicant may submit that its application
is in terms of section 158(1)(a)(iv) of the LRA, taking into
account
the nature of the application before a court, it can be concluded
that the application was in terms of section 158(1)(h)
of the LRA,
which is a
principle of
legality
. It concluded
that:
“
[32]
In this matter, the constitutional and legislative framework must
inform an approach which
does not undermine the hard-won protections
afforded to public sector employees whilst understanding the
uniqueness of public-sector
employment. Of importance is the demand
that decisions are made and executed lawfully,
fairly and
expeditiously
. We are confronted with the rather unusual
situation of a state functionary seeking to establish the
unlawfulness of its own
institution’s actions. The MEC’s
standing to bring the challenge is established in a number of
previous decisions
of the Supreme Court of Appeal. It is
nevertheless of relevance here to outline and particularise this
principle.
[42] There is no
prescribed time limit for launching a review under section 158(1)(h)
of the LRA. The Labour
Court Rules further prescribe no time limits
for bringing review applications. Under other provisions of the LRA,
the time limits
in which litigants or complainants are required to
bring their disputes are strictly circumscribed. The importance of
resolving
labour disputes in good time is thus central to the LRA
framework. It is generally understood that proceedings under section
158(1)(h)
must be launched within a reasonable time. In
some instances, in the context of the LRA, the courts have held a
reasonable time
to be about six weeks
” (Own
emphasis)
[4]
Act 37 of
2000.
[5]
Founding affidavit, at para 3.3.
[6]
(own emphasis). The “attached contract” is not part of
the papers before me.
[7]
The email from the respondent is part of the founding affidavit.
[8]
Founding affidavit, at para 4.3
[9]
Founding affidavit, at para 4.4.
[10]
Founding affidavit, at para 4.11.
[11]
Ganes and Another v Telecom
Namibia Ltd
2004 (3) SA 615
(SCA)
at para 19. The respondent in the confirmatory affidavit says “…
Dean
Caro, my attorney duly appointed in these proceedings to act on my
behalf. In respect of Caro’s affidavit I confirm
the
correctness thereof.”
[12]
James Brown and Hamer (Pty)
v Simmons NO
1963 (4) SA
656
(A) at 660D-H. See laso
Anglo
Operations Ltd v Sandhurst
Estates (Pty) Ltd
2007 (2)
SA 363
(SCA), at para 32.
[13]
Maschinen Frommer GmbH and
Co KG v Trisave Engineering and Machinery Supplies (Pty) Ltd
[2003]
1 All SA 453
(C). [Own underlining and bolding].
[14]
[2012] JOL 28866 (SCA).
[15]
Ibid, at para 10 .[Footnotes omitted].
[16]
2015 (8) BCLR 904
(CC) at para 18.
[17]
Ibid, para 23.
[18]
Ibid, para 18.
[19]
Replying affidavit.at page 94.(Own emphasis)
[20]
Sidumo and Another v Rustenburg Platinum Mines and Others 2008 (2)
BCLR 158 (CC).
[21]
[2004] 3 All SA 1 (SCA)
[22]
Ibid, para 26.
[23]
Khumalo’s matter,
note 3 above
.
[24]
Footnote 3 above, at para 42.
[25]
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC)
[26]
Ibid, at para 22.
[27]
Department of Transport v
Tasima (Pty) Ltd
2017(1)
BCLR 1 (CC), at para 160.