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[2018] ZALCJHB 84
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Public Servants Association obo Hartley v South African Social Security Agency; In re: South African Social Security Agency v Hartley and Others (JR1648/10) [2018] ZALCJHB 84 (2 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA JOHANNESBURG
Not
Reportable
Case No: JR1648/10
In
the matter between:
PUBLIC
SERVANTS ASSOCIATION
obo
S
HARTLEY
Applicant
and
SOUTH
AFRICAN SOCIAL SECURITY AGENCY
Respondent
In
re:
the matter between:
SOUTH
AFRICAN SOCIAL SECURITY AGENCY
Applicant
and
SURAY
HARTLEY
First Respondent
MARGARET
SMITH
N.O
Second Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
Third Respondent
Heard:
13 July 2017
Delivered:
02 March 2018
JUDGMENT
JULY.
AJ
Introduction
[1]
This application is brought in terms of
Rule 11 of the Rules of the Labour Court. Rule 11 reads –
"(1) The following applications
must be brought on notice, supported by affidavit:
(a) interlocutory applications
(b) other applications incidental to,
or pending, proceedings referred to in these rules that are not
specifically provided for
in the rules; and
(c) any other applications for
directions that may be sought from the court."
[2]
Since Rule 11 is a catch-all Rule, a
respondent to an application may rely on Rule 11 to have a
review application dismissed.
It is such an application that
this Court is called to decide.
[3]
The review application against the
arbitration award made on 19 May 2010, was instituted by
the respondent on 30 July 2010.
The application to dismiss
the respondent's review application was filed with this Court on
16 May 2012. The notice of
intention to oppose the review
application was filed on 27 August 2010. The Commission for
Conciliation, Mediation and
Arbitration (CCMA) filed its notice to
abide in September 2010. No answering affidavit was filed on
behalf of Ms. Hartley,
who is the first respondent in the review
application.
Background
[4]
Although I am not required to decide the
review application, it is significant to refer briefly to the facts
which are relevant
to the review application.
[5]
Ms. Hartley was employed by the
respondent as a systems administrator. Her duties included the
performance, management and
training of users on all functions
including 1090 on the SOCPEN computer system. The 1090 function
system allows the user
to link or unlink identity numbers and
information from a beneficiary.
[6]
It is alleged that the unlinking function
is used in highly exceptional cases. This 1090 function is only
allocated to three employees
of the respondent, namely;
Christa Momberg, Van der Berg and Ms. Hartley.
[7]
A certain McKenzie visited the offices of
the respondent with the aim to register as a beneficiary in respect
of her five children.
She was, however, told that she was already a
beneficiary and past payments were made to her. She disputed this
information, as
she had never received payments in this regard.
Ms. Els, an employee of the respondent, reported the issue to
her deputy director
and an investigation ensued.
[8]
The investigation uncovered that from
15 November 2004, a 1080 function was performed in the
SCOPEN system by a certain
Hughes who was an employee of the
respondent. At the same time a 1090 function was used by Ms. Hartley.
[9]
Subsequently, McKenzie's information
disappeared from the system. The effect of function 1080 in relation
to McKenzie was that McKenzie's
identity number changed to another
identity number, as though she had never been registered. Although
McKenzie was registered on
the system she was not receiving the money
and someone else was being paid. However, function 1090 was used to
erase McKenzie's
identity number from the system; the effect was that
the information in relation to this transaction was obliterated.
Disciplinary
proceedings were instituted, and Ms. Hartley was found
guilty of misconduct and dismissed as a result.
[10]
Ms. Hartley referred an unfair dismissal to
the CCMA. The arbitrator found that the respondent had failed to
prove that there was
a link and/or connection between the applicant
and Hughes, other than a collegial one. The applicant agreed that she
knew Hughes,
but denied that there was any other connection between
herself and Hughes. They were not friends, nor did they work together
on
a daily basis as they were not employed in the same office.
[11]
The commissioner states that –
"The respondent conceded that
there was no indication that the applicant received any financial
contributions and/or benefit
from Hughes and that there was nothing
else linking her to Hughes other than the visit to the applicant's
office on 15 November 2004.
I fail to see why the applicant
would possibly jeopardize herself if she had nothing to gain from the
exercise".
[12]
The Commissioner further states that –
"5.10 It is not
in dispute that she verified the identity numbers with the Department
of Labour, before performing
the said function. I am of the
view that the applicant would not have followed the correct
procedure, i.e. verifying the
I.D numbers with the department of
Labour, if there was a collusion to defraud. A simple phone call by
Hughes requesting the applicant
to perform on unlinking, could have
been sufficient if they were in cahoots with one another. This in my
view confirms that she
acted bona fide in the circumstances and in
performing her duties.
5.7.11 The applicant was not
charged with negligence and/or failure to follow company procedures,
but with misconduct in order
to commit fraud. I am of the view that
there is no evidence of any pre-meditated fraudulent action and that
the applicant's explanation
of events is highly probable in the
circumstance. The applicant gave clear and precise evidence and did
not deviate from her testimony
during cross-examination.
5.7.12 The respondent's case is
based on circumstantial evidence. It is, however, not disputed that
Hughes was in the applicant's
office nor that the 1080 and 1090
functions were performed on the applicant's computer. The applicant
however, gave undisputed
testimony that computers are shared between
work colleges (sic). Therefore every employee received an individual
password and login
identification. It is also not in dispute
that the applicant left Hughes in her office when she went to the
bathroom.
The applicant gave undisputed testimony that the
linking/unlinking and/or function 1080 only takes about 30 seconds to
perform.
5.7.13 From the evidence
submitted it is my view that the applicant did perform 1090 function.
I am of the view that the applicant
acted bona fide in performing the
1090 function and that the said function was part of her normal
duties. The respondent failed
to produce evidence to the contrary."
[13]
From a reading of the CCMA award, the
Commissioner's reasoning appears to be contradictory and therefore
irrational. The Commissioner
also appears to have applied the
'beyond
reasonable doubt'
test in the
circumstances, as opposed to the
'balance
of probabilities
' test. Having said
that, the issue before me relates to the dismissal of the review
application and not its merits, as such, the
irrationality of the
Commissioner’s reasoning is merely my observation. It is the
court before which the review application
sits that will make a final
determination on the merits.
Litigation
History
[14]
The review application was brought on
30 July 2010 and to date the application has not been
prosecuted. On 14 December 2011
the respondent brought an
application to compel the CCMA to attend to a reconstruction of the
record, which was incomplete. This
application was brought by the
respondent after attempts to inform the CCMA of the incompleteness of
the record were unsuccessful.
It is difficult to ascertain what
happened to the application but a notice of compliance was filed with
this court on 16 January 2012.
Attached to the notice are
nine pages of the hand written notes of the Commissioner.
[15]
It appears to be common cause between
the parties that the date of the reconstruction of the record was to
be 29 February 2012.
A letter dated 17 February 2012 was
addressed to the State Attorney advising it that
"Commissioner
Margaret Smith is no longer available on 29 February 2012
for reconstruction, the date has been utilized
for other matters.
She will be available on 27
th
,
28
th
and 30
th
March 2012."
[16]
Paragraph 15 of the applicant's
founding affidavit is therefore incorrect in that-
"The reconstruction meeting was
scheduled for 29
th
February and the first respondent
duly attended. The reconstruction meeting could unfortunately not
proceed as the State Attorney
had asked for postponement."
[17]
In response to a letter from the
applicant's representative dated 10 April 2012, the State
Attorney addressed a letter
dated 18 April 2012 denying that the
respondent was responsible for the delay.
[18]
On 26 April 2012
the
CCMA issued a notice setting the matter down on 20 June 2012
for the reconstruction of the record. Before a meeting
could take
place on 16
May 2012, the
applicant instituted this application to have the review dismissed.
In this application, there is mention of
a notice of set down dated
20 June 2012. I could not locate an amended notice or
supplementary affidavit seeking to explain
the delay for the period
after May 2012.
[19]
I cannot understand how the respondent can
be said to have delayed the prosecution of the review application, as
alleged by the
applicant. Whatever may have occurred after the
launching of this application is not before me, however, the
applicant cannot allege
a delay prior to the launching of this
application.
Locus
standi of the Public Servants Association (PSA)
[20]
This
application is brought by the PSA on behalf of Ms. Hartley in terms
of section 200 of the Labour Relations Act
[1]
(LRA).
Section 200 states that –
"(1) A registered trade union or
registered employer's organization may act in any one or more of the
following capacities
in any dispute to which any of its members is a
party –
(a)
in its own interest;
(b)
on behalf of its members;
(c)
in the interest of any of its members."
[21]
Therefore, there is no doubt as to the
applicant's right to act on behalf of its member, Ms. Hartley.
However, the PSA is not cited
as a party to the review application
(i.e. the main application), and thus it cannot bring this
application on behalf of Ms. Hartley
as this is an interlocutory
application directly relating to the review application.
[22]
Section 200 of the LRA cannot be understood
to confer joinder in circumstances where an association is not a
party to the litigation,
either by instituting the proceedings on
behalf of its member or by way of application to be joined into the
proceedings at a later
stage (as would be required in the present
circumstances).
[23]
In my view, Rule 11 is not intended to
consider non-joinder of a party as a basis to dismiss an application.
In other words, if
I were to find that there was non-joinder, such a
finding will definitely not result in the dismissal of the review
application.
[24]
In light of the above and the fact that the
applicant, when the review application was set down in 2013 before
Bhoda AJ, agreed
to have the review application postponed and has not
made further strides to have the review application prosecuted until
2017,
indicates the applicant's contribution to the delay in this
matter
[25]
I am not sure about the right of the PSA to
bring this application under the case number of a matter to which
they are not a party.
I do not have to determine that issue. However,
my observation is that it is only once a party has been joined to a
matter that
they acquire a right to be heard. This should not be
conflated with section 200 of the LRA
[26]
In
CWIU
v Plascon Decorative (Pty) Ltd
[2]
)
the court
held that-
"[12] This
submission mistook the nature not only of the union's legal rights
but also of its entitlements
in approaching this Court for relief,
and failed to take account of either the formal or the substantive
aspects of the issues
still before the court. Formally, the union and
the employees it represents became entitled, when joinder of issue
took place,
to a hearing in respect of the entire ambit of the relief
they claimed. Joinder of issue (
litis contestatio
) occurred
when the union filed its reply to Plascon's answering affidavit, and
the matter was set down for hearing. (compare
Milne NO v Shield
Insurance Co Ltd
1969 (3) SA 352
(A) at 358FG; and
Waikiwi
Shipping Co Ltd v Thomas Barlow and Sons (Natal) Ltd and another
1978 (1) SA 671
(A) 676CH). Plascon's answering affidavit placed on
record its opposition not only to the grant of an interdict
restraining it
from implementing discipline, but to the declarator
which encapsulated the legal basis of the union's claim to relief.
Once issue
was joined on both these questions, the union became
formally entitled to their adjudication".
[27]
Since I am not seized with the review
application, I am not in a position to interrogate the issue of
prescription of the arbitration
award.
[28]
In the circumstances, I make an order as
follows-
Order
1.
The application, brought in terms of
Rule 11 of the Rules of this Court to dismiss the application
for review instituted by
the respondent, is dismissed.
2.
The Registrar is directed to set down
the application to review the award made by Commissioner Margaret
Smith under the auspices
of the CCMA be set down on the unopposed
roll on notice to both parties.
3.
There is no order as to costs.
_______________
S.
July
Acting
Judge of the Labour Court
Appearances
For
the Applicant:
H Pretorius
Instructed
by:
MacGregor Erasmus Attorneys
For
the Respondent:
Advocate D Skosana SC
Instructed
by:
State Attorney
[1]
Act
66
of 1995 as amended.
[2]
[1998] 12
BLLR 1191(LAC).