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[2018] ZALCJHB 29
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NUPSAW obo Lengs v General Secretary of the General Public Service Sectoral Bargaining Council and Others (JR2494/16) [2018] ZALCJHB 29 (1 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 2494/16
In
the matter between:
NUPSAW OBO NOLUTHANDO LENGS
Applicant
and
GENERAL
SECRETARY OF THE GENERAL PUBLIC
SERVICE
SECTORAL BARGAINING COUNCIL
First Respondent
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
Second Respondent
MINISTER OF JUSTICE &
CORRECTIONAL SERVICES
Third Respondent
Heard:
1 September 2017
Delivered:
1 February 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The applicant, National Union of Public Service and Allied Workers
(NUPSAW) acting on behalf of its member, Ms Noluthando Lengs
(Lengs)
approached the Court for an order compelling the first respondent
(the General Secretary of the General Public Service
Sectoral
Bargaining) and the third respondent (GPSSBC), to enrol the unfair
dismissal dispute referred under case number GPBC 3273/2012
for
arbitration.
[2]
The first and second respondent in their answering affidavit merely
indicated that they would abide by the Court’s decision
in
respect of the primary relief. They only oppose the costs order
sought against them by the applicants.
[3]
The third respondent, (the Department) did not file papers opposing
the application. Counsel for the third respondent however,
made oral
submissions from the bar for the purpose of assisting this Court.
Background:
[4]
The facts of this matter are to a large extent common cause. Lengs
was employed by the Department of Justice. On the applicants’
version, Lengs was dismissed in July 2009. The third respondent’s
contention was that she was dismissed in February 2010.
[5]
On 27 July 2012, some
two (2) years and three (months) after the dismissal, and clearly
outside the timeframes as prescribed
by the Labour Relations Act
(LRA)
[1]
,
Lengs `with the assistance NUPSAW referred an unfair dismissal
dispute to the second respondent.
[6]
The referral was accompanied by an application for condonation, which
came before Commissioner Mello. On 6 November 2012,
a
ruling (the first ruling) was issued in terms of which the
application for condonation for the late referral of the unfair
dismissal
dispute was granted.
[7]
The dispute was thereafter scheduled for conciliation on
3 December 2012 before Commissioner T. Nhliziyo. At the
conciliation proceedings, the Department raised a point
in limine
,
contending that the Council lacked jurisdiction to conciliate the
matter on grounds that the dispute was referred late. Commissioner
Nhliziyo issued a ruling (the second ruling) in the following terms:
“…
2.1
In view of the
point in limine
raised by the [Department of
Justice] on jurisdiction, the condonation application needs to be
dealt with again and the [Department
of Justice] must be afforded the
opportunity to respond to the said application.
2.2
Council is directed to write a letter to the department requesting
them to respond
to the application for condonation.”
[8]
As a consequence of the second ruling, the Department filed an
affidavit opposing Lengs’ application for condonation.
The
re-determination of the application for condonation came before
Commissioner P. Pundu who issued a ruling in terms of which
condonation was refused on 15 April 2013 (the third
ruling).
[9]
NUPSAW aggrieved by the third ruling, on 3 June 2013, filed
an application under case number JR 1160/13 to review
and set it
aside The matter came before Mosime AJ on 14 December 2015,
who had dismissed the review application.
[10]
NUPSAW avers that it obtained legal advice, which contended that it
was not necessary to review and set aside the ruling by
[Commissioner
P Pundu] as the first ruling by Commissioner Mello was enforceable
and binding as it was neither rescinded nor set
aside. On
10 February 2016, NUPSAW petitioned the first and second
respondent to schedule the dispute for arbitration
in view of the
first ruling issued by Commissioner Mello.
[11]
On 16 April 2016, the parties convened a preliminary
hearing before Commissioner Nhliziyo. In that hearing, NUPSAW
sought
a ruling referring the matter for arbitration. The allegations are
that there Commissioner Nhliziyo did not issued any ruling
in respect
of the preliminary hearing and that the Commissioner was ultimately
dismissed from the employ of the second respondent
without having
issued any ruling in respect of the enrolment of the dispute.
[12]
On 22 August 2016, the parties convened a meeting to
discuss progress with the matter. In that meeting, NUPSAW alleges
that the first and second respondents were of the view that the first
ruling was rescinded by the second ruling of Commissioner
Nhliziyo
and therefore they (the first and second respondent) were not
competent to enrol the dispute for arbitration.
[13]
At the commencement of these proceedings, the respondents handed up
an advisory ruling issued by Commissioner D.P van Tonder
on
1 August 2016. The ruling in its nature is advisory and not
binding on the parties. However for the sake of completeness,
the
advisory ruling records
inter alia
the following:
“…
[41]
… As I have explained earlier in this ruling, even though the
ruling of Mr Pundu
may technically be invalid, our Courts have held
that even invalid decisions can remain valid until set aside by a
Court of law,
and that Courts have a discretion to refuse to set
aside such “invalid” decisions notwithstanding the
existence of
substantive grounds for setting it aside. The existence
of this Court order, which applicant has not referred the GPPSBC to,
is
further reason why the issue is not straightforward as suggested
by applicant’s representative.
…
In the premises, I make the following
advisory, non-bindin
g ruling:
1.
Neither I, nor any
panellist of the GPSSBC has jurisdiction to make a binding ruling,
determining which of the conflicting condonation
ruling issued in
this matter must be followed and relied on by the General Secretary
of the GPSSBC.
2.
Neither I, nor any
panellist of the GPSSBC has the jurisdiction to determine whether the
General Secretary of the GPSSBC must to
set this matter down for
arbitration.
3.
Assuming that the first
condonation ruling issued on 6 November 2012 (granting
condonation) was never rescinded or varied,
the GPSSBC had no
authority to issue a second condonation ruling on 15 April 2013,
in which condonation was refused.
4.
In applying her mind as
to whether or not she may ignore the condonation ruling of Mr Pundu,
dated 15 April 2013 (in which
condonation is refused) and
set the matter down for arbitration, the General Secretary is advised
to take into account that:
4.1
In
Master
of the High Court v Motala N.O
[2]
the SCA held that judicial decisions made by Judges without
jurisdiction to do so are nullities that a later Court may refuse to
enforce in contempt proceedings (without the need for a formal
setting-aside by a court of equal standing).
4.2
There are cases in which
the High Court has held that the Motala principle is not confined to
Courts of law and that others (such
as administrative bodies) may
also ignore invalid decisions.
4.3
In terms of the
Oudekraal
,
which has been endorsed by the Constitutional Court, the Supreme
Court of Appeal has held that invalid administrative action may
not
be simply ignored, but may be valid and effectual, and may continue
to have consequences, until set aside by a court of law.”
The
submissions by the parties:
[14]
NUPSAW contends that the first ruling by Commissioner Mello is
enforceable, valid and binding until it is rescinded and/ or
set
aside by a competent authority. NUPSAW substantiate its contention in
the following manner:
14.1.
The first ruling by Commissioner Mello was neither rescinded nor set
aside. The only act
that occurred was that the second ruling was an
addition to the first ruling, and the third ruling contradicted the
first ruling.
14.2.
The second and third rulings were not only legally incompetent but
they were also null
and void
ab initio
.
14.3.
It is trite that a Commissioner may not set aside the decision of
another Commissioner.
An earlier decision may only be reversed
through an application for rescission and the provisions of section
144 of the LRA determine
the form and manner of an application for
rescission. There is no evidence of any rescission application having
been brought.
[15]
The first and second respondent do not provide a substantive
opposition to the application to compel, however they hold the
view
that the third ruling is valid, enforceable and binding. They say so
because in their view, the second ruling by Commissioner
Nhliziyo
rescinded the first ruling by Commissioner Mello. They further
contend that even if NUPSAW is correct in their assertion
that the
third ruling is invalid, such invalidity must be confirmed by an
order of Court.
Evaluation:
[16]
The parties were in agreement
agreed that the CCMA or Bargaining Councils performed administrative
action when issuing arbitration
awards and/or rulings.
[3]
They further agreed that an administrative decision remained binding,
even if on the face of it, it appeared invalid, and may only
be set
aside by an order of court.
[4]
[17]
Notwithstanding the above common understanding, NUPSAW contends that
because the first ruling was not rescinded or set aside
it remains
valid and enforceable. The respondents on the other hand contends
that the second ruling rescinded the first condonation
ruling and
therefore the third ruling is valid and binding unless set
aside on review. The issues therefore are:
17.1.
Does the second ruling have the effect of rescinding the first
condonation ruling?
17.2.
If the second ruling does not constitute a rescission ruling, which
condonation ruling
is valid and enforceable?
17.3.
If either the first or the third ruling is valid, is this Court
competent to issue an
order directing the first and second respondent
to enrol the dispute for arbitration?
Purported
rescission:
[18]
Commissioners are empowered to
rescind and/ or vary award or rulings under certain limited
circumstances and only in terms of the
grounds provided for in
section 144 of the LRA
.
[5]
The provisions of
section 144(a) are a procedural step intended to expeditiously
correct an obviously wrong decision.
[19]
In
PT
Operational Services (Pty) Ltd v RAWU obo Ngwetsana
[6]
the Labour Appeal Court in determining whether the
functus
officio
doctrine was
applicable applied to the CCMA held that:
“…
In
my view, the Court a
quo
was correct in its conclusion that the
functus
officio
doctrine
applies to the CCMA commissioners. They may therefore only revisit
their decisions to the extent that it is permitted by
the provisions
of section 144 of the LRA. They may not do so whenever they like but
also do so if the jurisdictional facts in section
144 are present.
They may also do so, as I will show presently, when they have
performed an allied function but not yet performed
the power or duty
bestowed on them by the legislation.”
[7]
[20]
From the record, it is apparent that when the matter came before
Commissioner Nhliziyo after it had been set down for conciliation,
the Department had not formally sought to rescind the first ruling in
terms of which condonation was granted. That ruling remained
legal
and binding until such time that it was either rescinded or set aside
by a court order.
[21]
It is apparent from the record
that the issue of rescission was raised from the bar by the
Department at the conciliation proceedings.
There is clearly
everything irregular with the conduct of Commissioner Nhliziyo
insofar as she had purported to issue the second
ruling. Rule
30 and 31 of Resolution 4 of 2004 govern the conduct of proceedings
of the bargaining council in respect of
rescission applications
[8]
.
At most, to the extent that the Department was aggrieved by the first
condonation ruling on the basis that it was not afforded
an
opportunity to oppose the application in that regard as Commissioner
Nhliziyo had established, she ought to simply have postponed
the
matter, and afforded the Department to file a proper application for
rescission. She instead chose to effectively ‘rescind’
the first ruling when there was no proper application before her and
when clearly she had no jurisdiction to do so. The third respondent
was thus
functus officio
in respect of the condonation application and ruling unless formally
rescinded. It therefore cannot be said that Commissioner Nhliziyo
exercised her discretion in terms of the provisions of section 144(a)
in essentially ‘rescinding’ the first ruling.
[22]
The issue however in this case
is not whether Commissioner Nhliziyo’s ruling should be set
aside. That is not the relief that
the applicants seek. They merely
seek an order compelling the second and third respondents to set the
matter down for arbitration,
in circumstances where there are two
standing rulings,
albeit
Commissioner Nhliziyo’s ruling was issued in irregular
circumstances. It is acknowledged that it might be argued that the
thirty days period had long lapsed and therefore the third respondent
ought to set the matter down for arbitration if there is
a
request
[9]
.
This however is not the issue.
[23]
In regard to the status of the third ruling by Commissioner Pundu, it
has already been stated that the applicants’ review
application
in that regard was dismissed. It would therefore not be necessary to
dwell much into that ruling. This therefore brings
me to the question
of whether the second and third respondents can be compelled to set
the matter down for arbitration in the face
of Commissioner
Nhliziyo’s ruling.
[24]
Awards and rulings issued the
CCMA and the Bargaining Councils constitute administrative actions.
It is trite that a purported invalid
administrative action remains
enforceable until and unless set aside by an order of court.
[10]
Commissioner Nhliziyo’s ruling, or whatever one may call it,
remains on record, irrespective of the problems with it as
highlighted in this judgment. The same ought to be said of the first
condonation ruling issued.
[25]
NUPSAW sought to compel the
first and second respondent to enrol the unfair dismissal dispute.
The application is brought in terms
of the provisions of section
158(1)(a)(iii)
[11]
,
read with section 158(1)(b)
[12]
.
This Court is empowered in terms of these provisions to intervene in
cases where the CCMA or bargaining council refuses or fails
to
exercise the powers bestowed upon it by the LRA.
[13]
Be that as it may, the Court will only invoke the provisions of
section 158(1)(a)(iii) in circumstances where it has jurisdiction
to
interfere with the function of the CCMA and/ or where it is called
upon to correct wrongful conduct pending the finalisation
of
processes within the CCMA or Bargaining Council.
[14]
[26]
In the present case, there is no basis for this Court under the
provisions of section 158(1)(a)(iii) of the LRA to order the
second
respondent to enrol the dispute for arbitration, particularly in
circumstances where there are two standing conflicting
administrative
decisions. Even if the second and third respondents are sitting on
the fence in this matter, it is not for the applicants
to make a
choice for them, and neither will this court make a choice for them.
In short, NUPSAW has not laid basis for the order
that it seeks, and
the court’s hands are tied in the absence of an application to
review and set aside Commissioner Nhliziyo’s
ruling.
Costs:
[27]
I have had regard to the requirements of law and fairness in respect
of the issue of costs
. Taking into account the
conclusions reached above, I am of the view that a costs order is not
warranted in this case.
Order:
[28]
In the premises, the following order is made:
1.
The Applicants’ application to compel the First and Second
Respondents to enrol the unfair dismissal dispute under case number
GPBC 3273/2012 for arbitration is dismissed;
2.
There is no order as to costs.
____________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Adv. D.Z Kela
Instructed
by:
Ndumiso Voyi Incorporated
For
the 1
st
and 2
nd
Respondent:
Mr P Moll of Edward
Nathan Sonnenbergs Incorporated
For
The Third Respondent:
Adv. Bothma
Instructed
by:
State Attorney: Pretoria
[1]
Act 66 of 1995, as amended
[2]
2012 (3) 325 (SCA)
[3]
See
Sidumo & another v
Rustenburg Platinum Mines Ltd & others
[2007] 12 BLLR 1097 (CC),
[4]
See O
udekraal Estates (Pty)
Ltd v City of Cape Town and Others
[2004] ZASCA 48; [2004] 3 All SA 1 (SCA)
[5]
Section 144:
Variation and
rescission of arbitration awards and rulings:
Any
commissioner who has issued an arbitration award or ruling, or any
other commissioner appointed by the director for that purpose,
may
on that commissioner‘s own accord or, on the application of
any affected party, vary or rescind an arbitration award
or ruling-
(a)
erroneously sought or erroneously made in the absence of any party
affected
by that award;
(b)
in which there is an ambiguity, or an obvious error or omission, but
only to the extent of that ambiguity, error or omission;
(c)
granted as a result of a mistake common to the parties to the
proceedings;
or
(d)
made in the absence of any party, on good cause shown.
[6]
[2012] ZALAC 34
;
[2013] 3
BLLR 225
(LAC); (2013) 34 ILJ 1138 (LAC)
at para [28]
[7]
At para 28
[8]
30. HOW TO BRING AN
APPLICATION:
1.
This rule applies to any:
a)
application for condonation, joinder, substitution, variation
or
rescission;
b) application in a
jurisdictional dispute;
…
2.
An application must be brought on notice to all persons who have
an
interest in the application
…
4.
The application must be supported by an affidavit. The affidavit
must clearly and concisely set out-
…
31. HOW TO APPLY TO VARY OR RESCIND
ARBITRATION AWARD OR RULINGS:
1.
An application for variation or rescission of an arbitration
or ruling must be made within fourteen days of the date of which the
applicant became aware of-
a)
the arbitration award or ruling; or
b)
mistake common to the parties to the proceedings
2.
A ruling made by the panellist, which has the effect of a final
order will be regarded as a ruling for the purpose of this rule.
[9]
See the
provisions of section 191
[10]
Oudekraal Estates (Pty) Ltd
v City of Cape Town and Others supra
at
para [26] it was held:
…
In our view, that the
Administrator’s permission was unlawful and invalid at the
outset. Whether he thereafter also exceeded
his powers in granting
extensions for the lodgement of the general plan thus takes the
matter no further. But the question that
arises is what consequences
follow from the conclusion that the Administrator acted unlawfully.
Is the permission that was granted
by the Administrator simply to be
disregarded as if it had never existed? In other words, was the Cape
Metropolitan Council entitled
to disregard the Administrator’s
approval and all its consequences merely because it believed that
they were invalid provided
that its belief was correct? In our view,
it was not. 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.
[11]
Section 158:
Powers of
Labour Court
(1) The Labour Court may -
(a) make any
appropriate order, including –
…
(iii)
an order directing the performance of any particular act which
order, when
implemented, will remedy a wrong and give effect to the
primary objects of this Act.
[12]
Subsection (b)
order compliance with any provision of this Act or any employment
law;
[13]
Mimmo’s Franchising
CC & others v Spiro & others
[2000] 11 BLLR 1312
(LC) at para [16] See also
[14]
Reddi v University of
Kwazulu-Natal
[2015] 6
BLLR 625
(LC) at para 30 -32, it was held:
[30]
The exercise by the court of power granted to it in section
158(1)(a)(iii)
does not arise in this matter, on the view that I
take regarding the challenge to the court’s jurisdiction.
Section 158(1)(a)(iii)
does not confer jurisdiction on the court. It
sets out part of the power of the court. Such power can be exercised
only if the
court has jurisdiction.
[31]
The court must have regard to the pleadings when dealing with the
challenge to
its jurisdiction. The court, in motion proceedings,
will consider the notice of motion and the affidavits in determining
the
issue of jurisdiction. This matter is concerned with the
dismissal of the applicant. This is so despite the applicant’s
averments that the issue is about a breach of his statutory and
contractual right to a fair disciplinary hearing. Both parties
agree
that the applicant is dismissed. The applicant complains that his
dismissal was unfair, both procedurally and substantively.
Section
191 of the Labour Relations Act prescribes how the applicant must
pursue his complaint.
[32]
The cause as pleaded by the applicant does not provide scope for the
court
to intervene and to make an order sought by the applicant. The
“contractual right” being asserted by the applicant,
on
the pleadings, does not grant the applicant an entitlement beyond
what the law grants any other employee. Any other employee
would, on
the case pleaded by the applicant, assert a “contractual right
to a fair disciplinary hearing” entitling
such an employee to
approach the court for relief to, among others, set aside a
dismissal without such an employee having to
follow the statutory
scheme governing dismissals.