About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 270
|
|
Police and Prison Civil Rights Union obo Mokotong v Commission for Conciliation, Mediation and Arbitration and Others (J1769/16) [2018] ZALCJHB 270 (28 August 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: J 1769/16
In the matter between:
POLICE AND PRISON CIVIL RIGHTS
UNION
obo MARGARET
MOKOTONG
Applicants
and
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First
Respondent
MARLEZE BLIGNAUT (SWANEPOEL)
N.
O
Second
Respondent
THE NATIONAL COMMISSIONER OF
THE SOUTH AFRICAN POLICE
SERVICE
Third
Respondent
Heard: 17-18 May 2018
Delivered: 28 August 2018
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The applicant, the Police and
Prison Civil Rights Union (POPCRU), acting on behalf of its member,
Ms Margaret Mokotong (Mokotong)
seeks an order in terms of the
provisions of section 145(1) of the Labour Relations Act (LRA)
[1]
,
to review and set aside the arbitration award issued by the second
respondent (the Commissioner)
on
6 February 2016. In the award, the Commissioner dismissed
Mokotong’s claim of an alleged
unfair
discrimination related to pay disparities (equal work for equal
value). Mokotong essentially was of the view that she was
entitled to
a scarce skills allowance offered to her colleagues.
[2]
The applicant further seeks condonation for the non-compliance with
the time limits provided for in terms of the provisions
of section
145(1) of the LRA
.
The third respondent
opposes both the condonation and review application.
Background:
[3]
Mokotong is employed by the third respondent as a senior accounts
clerk. In 2004, the Public Service Coordinating Bargaining
Council
agreed on a framework for special allowances as per its Resolution 2
of 2004. The agreement defined a scarce skills position
as an
occupation within the state security agency and which the agency
found difficulties in recruiting and retaining prospective
employees.
The position also require the employee to possess an advanced
knowledge in a particular field, which knowledge must
have been
acquired through a prolonged course of study and/or specialised
instruction.
[4]
In 2006, the third respondent
took a decision to designate and implement the scarce skills policy
in respect of certain departments
or occupation. In a Circular dated
24 January 2007
[2]
,
the Divisional Commissioner: Career Management sought to clarify the
requirement that an employee of the SAPS must satisfy in
order to be
eligible for the scarce skills allowance. The internal audit
department in which Mokotong was employed within the third
respondent
was not categorised as a scarce skills department until 27 June 2008
when the Minister of Safety and Security
took a decision to designate
it as such
[3]
,
with certain conditions attached to the payment of scarce skills
allowance, including that the employee must possess a postgraduate
academic qualification.
[5]
For reasons not clear, the minimum requirements prescribed by the
Minister were not strictly applied by the third respondent
until it
received a complaint from the financial department. The
non-compliance with the Minister’s directive had resulted
in
all the employees in the internal audit department, including
Mokotong, receiving the scarce skills allowance when it was not
due
to them. Those payments continued until 2011 when put on hold. The
employees were then required to re-apply for the allowance.
[6]
Following a variety of disputes
lodged by employees in the unit related to the requirement of a
postgraduate academic qualification,
the Minister agreed in
September 2012, to relax that requirement.
[4]
The Minister then required that an applicant for the allowance must
possess a National Diploma in Internal Audit and/ Bachelor
of
Commerce with majors in Accounting, Auditing or higher subject. The
new scheme was to commence on 1 September 2012.
Mokotong
was excluded from the new scheme on the basis that she did not
possess the required minimum academic qualifications. This
led to the
referral of an alleged unfair discrimination dispute based on the
provisions of section 6
[5]
of the Employment Equity Act (EE)
[6]
.
It is not clear from the papers as to whether the dispute found its
way before the Commissioner by virtue of the provisions of
section
10(6)(b) of the EEA or not. Since this was not an issue raised in the
course of these proceedings, I will assume that this
was the case.
[7]
As already indicated, the Commissioner dismissed Mokotong’s
claim of alleged unfair discrimination and gave extensive
reasons in
that regard, which will not be dealt with for now in the light of the
preliminary issues to be determined.
Condonation:
[8]
The arbitration award having been issued on 6 February 2016,
the applicants only approached the Court with a review
application on
19 August 2016. The third respondent took issue with the
late filing of the review application. Similarly,
the applicants
contended that the third respondent filed its answering
affidavit some five months late, and without filing
an application
for condonation.
[9]
Further preliminary points
raised by the applicants related to the
locus
standi
of the deponent to
the answering affidavit and typographical errors in the answering
affidavit. These last two preliminary points
were nonetheless not
taken any further as it was apparent that the deponent to the
answering affidavit was the same person who
had appeared on behalf of
the third respondent throughout the arbitration proceedings. The
typographical errors pointed out were
in any event not material or
fatal. The contention that the answering affidavit was filed late
without an application for condonation
is equally meritless in the
light of the applicant’s failure to raise an objection as
contemplated in Clause 11.4.2 of the
Practice Manual of this
Court
[7]
.
[10]
An application for a review of an award brought under section 145 of
the LRA ought to have been brought within six weeks of
the date that
the award was served on the applicants. Under section 145 (b) of the
LRA, the Court may however on good cause shown,
condone the
non-compliance with the time frames stipulated under section 145 (a)
of the LRA.
[11]
The principles applicable in
the consideration of applications for condonation are fairly trite.
This Court in the exercise of its
discretion in determining whether
good cause has been shown, will take into account various relevant
factors including but not
limited to the extent of the delay, the
explanation for that delay, the prospects of success on the merits,
and whether the third
respondent stands to suffer prejudice if
condonation is granted
[8]
.
Ultimately,
the considerations of the interests of justice (which involve an
assessment of all the relevant factors) will determine
whether
condonation should be granted or not
[9]
.
[12]
There are a number of worrying factors in this case insofar as
condonation is sought. The applicants do not state the date
when the
award was received. It is further not clear from the Rule 7A(3)
compliance notice as to when the award was despatched
to the parties.
Be that as it may, the third respondent’s contention was that
the review application was some six months
out of time, and the
applicant do not dispute the period of the delay safe to mention that
it was only five rather than six months.
I would nonetheless accept
that the delay in launching this review application is excessive in
the extreme.
[13]
It has been stated repeatedly
in this Court that condonation cannot be had for the mere asking, and
that there is an obligation
on the defaulting party to proffer a
reasonable, adequate and satisfactory explanation for the delay,
which explanation must also
cover each period of the delay
[10]
.
[14]
In this case, the applicants merely seek an indulgence on the basis
that Mokotong was not aware of the fact that she could
review the
award, until she was informed that she had reasonable prospects of
success by the applicants’ attorneys of record
during
consultations held with POPCRU on 20 May 2016. It was averred that
the attorneys of record were immediately instructed to
proceed with
the launching of the review application.
[15]
There are important lessons to
be learnt from the principles applicable to applications for
condonation as reiterated in
Colett
v Commission for Conciliation, Mediation And Arbitration and
Others
[11]
,
and which for the purposes of this case, are worth summarising;
a)
When assessing the
reasonableness or unreasonableness of a delay sight must not be lost
of the fact that labour disputes must be
resolved without delay
[12]
b)
Where there is a flagrant or
gross failure to comply with the rules of court condonation may be
refused without considering the
prospects of success
[13]
.
c)
There is no merit in the
contention that the court must consider the prospects of
success irrespective of the unsatisfactory
and unacceptable
explanation for the gross and flagrant disregard of the rules
[14]
.
[16]
In my view, the facts of this
case are a classic example of where the principle that without a
reasonable explanation for a delay
which is excessive, there would be
no need for a consideration of other factors pertaining to such
applications. This is so especially
where the purported explanation
proffered by the applicants as in this case amount to no explanation
at all
[15]
.
[17]
The starting point is that Mokotong is a member of POPCRU, one of the
largest public sector unions, whose officials are surely
well aware
of, or ought to be aware of the time frames applicable in this court.
POPCRU as evident from the record of arbitration
proceedings, had
represented Mokotong in those proceedings. Her contention therefore
that she was not aware that she could approach
the court with a
review application is fallacious, in that had she bothered to
timeously enquire from her union (to the extent
that she alleged that
she was not aware of that right or time periods), she would have been
accordingly advised, as POPCRU was
her representative throughout.
[18]
The award sought to be reviewed having been issued in February 2016,
not an
iota
of explanation is proffered in regards to the
delay between that date and 20 May 2016 when the applicants
allegedly consulted
with their attorneys of record. No attempt was
made whatsoever as to the reason the attorneys of record were
consulted some three
months since the award was issued. Furthermore,
despite the alleged instructions to the attorneys to immediately
launch the review
application, there is still no explanation
proffered for the three months’ delay between when the
instructions were issued
and 19 August 2016, when the application was
finally launched. Effectively, there is no explanation for the
excessive delay, and
it is at this point that the enquiry should end.
[19]
Mokotong further averred that the application was brought on a
bona
fide
basis and that that it was in the interests of justice that
the condonation be granted. It was correctly pointed out on behalf of
the third respondent that the applicants had failed to demonstrate
through facts that it is in the interest of justice that the
condonation be granted.
[20]
It is appreciated that in the end, it is the interests of justice
that dictate whether condonation should be granted or not.
Unfortunately the concept ‘interests of justice’, despite
its elasticity as pointed out in
Grootboom
, is not a
self-standing consideration meant to be flashed before the Court
and/or abused by defaulting parties. The concept cannot
be a free
pass to an indulgence by this Court in circumstances where there is
an excessive delay and where no attempt was made
to explain that
delay. In such circumstances, because the delay negatively impacts
upon the expeditious resolution of disputes
and thus the effective
administration of justice, and because in the absence of an
explanation it should invariably be concluded
that on the whole, the
non-compliance with the time frames was flagrant, it cannot be in the
interests of justice to grant an indulgence.
[21]
I have further had regard to the requirements of law and fairness in
regards to an award of costs. It is apparent flowing from
the above
conclusions that the review application was an afterthought, and it
is not sufficient for the applicants to simply aver
that it was made
bona fide
. This is one of those cases where the review
application was filed way out of time and without any explanation,
and where the applicants
essentially hoped that by some miracle, an
indulgence would be granted. Unfortunately, such practices continue
unabated in this
Court, further clogging its already overburdened
roll to the detriment of legitimate and timeously referred matters.
This Court
has always warned parties that non-compliance with its
rules will not be countenanced, and it is apparent that this is one
of those
cases where this warning has gone unheeded. In the
circumstances, and having had regard to the requirements of law and
fairness,
and further despite any continuing relationship between
POPCRU and the third respondent, I see no reason why the applicants,
particularly
POPCRU should not be burdened with the costs of this
application.
Order:
[22]
In the premises, the following order is made;
1. The applicants’ preliminary
points are dismissed.
2. The application to condone the late
filing of the review application is dismissed.
3. The applicants’ review
application is dismissed
4. POPCRU is ordered to pay the costs
of this application.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants: K.A Wilson
Instructed
by: Weavind & Weavind Incorporated
For
the Third Respondent: L.J Zikalala
Instructed
by: The State Attorney: Pretoria
[1]
Act 66 of 1995 (as amended)
[2]
IMPLEMENTATION OF AN
ALLOWANCE FOR EMPLOYEE CATEGORIES WHICH POSSESS SCARCE SKILLS IN THE
SOUTH AFRICAN POLICE SERVICE (SAPS)
…
2. The following years of service
will be applicable in order for members to qualify for the payment
of the allowance:
2.1 if the member has the relevant
qualification, he/she must have at least three (3) years’
service, after receiving the
qualification, in the employee category
which possess scarce skills, before the allowance is payable to
him/her…
2.2 if a member does not have a
relevant qualification, he/she must have at least five (5) years’
service within the employee
category which possess scarce skills in
order for the member to acquire the necessary competencies:
Example: if a member was appointed in
a scarce skills environment on the 1
st
April 2002
and the member does not have a qualification then the member will
qualify to receive the payment of the
Scarce Skills in respect of
that employee category from the 1
st
April 2007 (date on
which the employee completed 5 years’ service) if the member
still continues to perform the scarce
skill function.
…
[3]
IDENTIFICATION OF SCARCE
SKILLS IN THE SOUTH AFRICAN POLICE SERVICE (SAPS): INTERNAL AUDIT
1. The Minster of Safety and
Security, on 27
th
of June 2008, approved the
following:
1.1. Internal Audit be declared an
employee category which possesses scarce skills in the SAPS; and
1.2. A monthly Scarce Skills
Allowance of R1 500 be paid to Internal Auditors who have
passed the CIA, CCSA, CGAP of CFSA
examinations and who meet the
requirements for the payment of the Scare Skills Allowance as
stipulated in Circular 4/2/1 dated
the 13
th
of
November 2006…
2. The Scarce Skills Allowance will
come into effect from the 1
st
of July 2008.
...
[4]
REQUEST FOR THE RELAXATION
OF THE POST GRADUATE CERTIFICATION REQUIRED BEFORE MEMBERS IN THE
INTERNAL AUDIT ENVIRONMENT MAY BE
ELIGIBLE FOR THE PAYMENT OF THE
SCARCE SKILLS ALLOWANCE
…
4.
RECOMMENDATION
4.1 It is recommended that the
Minister of Police, in terms of the powers vested upon him, approve
that:
4.1.1 A National Diploma in Internal
Audit and/ or Bachelor of Commence with majors in accounting and
auditing or higher be the
relevant qualification on the payment of
the Scarce Skills Allowance to the internal auditors with three
years’ relevant
experience in the environment with effect from
1 September 2012
[5]
Section 6:
Prohibition of
unfair discrimination
. —
(1) No person may unfairly
discriminate, directly or indirectly, against an employee, in any
employment policy or practice, on
one or more grounds, including
race, gender, sex, pregnancy, marital status, family responsibility,
ethnic or social origin,
colour, sexual orientation, age,
disability, religion, HIV status, conscience, belief, political
opinion, culture, language,
birth or on any other arbitrary ground.
[6]
Act 55 of 1998 (as amended)
[7]
Clause
11.4.2
which provides;
Where the respondent or the applicant
has filed its opposing or replying affidavits outside the time
period set out in the rules,
there is no need to apply for
condonation for the late filling of such affidavits unless the party
upon whom the affidavits are
served files and serves a Notice of
Objection to the late filing of the affidavits. The Notice of
Objection must be served and
filed within 10 days of the receipt of
the affidavits after which time the right to object shall lapse.
[8]
Melane
v Santam Insurance Co. Ltd
1962 (4) SA 531
(A) At 532b-E
[9]
Brummer v Gorfil Brothers
Investments (Pty) Ltd
[2000] ZACC 3
;
2000
(5) BCLR 465
;
2000 (2) SA 837
(CC) at para 3; See also
F
& J Electrical CC v Metal and Electrical Workers Union of South
Africa obo Mashatola and others
[2015] 5
BLLR 453
(CC) at 461, para [30]
;
Ndlovu v S
2017 (10) BCLR 1286
(CC);
2017 (2) SACR 305
(CC) (15 June 2017) at
paras 22 – 23;
Van
Wyk
v
Unitas Hospital (Open Democratic Advice Centre as amicus curiae)
[2007] ZACC 24
;
2008
(2) SA 472
(CC)
at
477A-B.
[10]
See
Grootboom v National
Prosecuting Authority and Another
(
2014)
1 BLLR 1
(CC) at para 22
[11]
[2014] 6 BLLR 523
(LAC); (2014) 35 ILJ 1948 (LAC)
[12]
At para 34
[13]
At para 38.
See also
Grootboom
at para 51, where it was held that;
“
The interests of justice must
be determined with reference to all relevant factors. However, some
of the factors may justifiably
be left out of consideration in
certain circumstances. For example, where the delay is unacceptably
excessive and there is no
explanation for the delay, there may be no
need to consider the prospects of success. If the period of
delay is short and
there is an unsatisfactory explanation but there
are reasonable prospects of success, condonation should be granted.
However,
despite the presence of reasonable prospects of success,
condonation may be refused where the delay is excessive, the
explanation
is non-existent and granting condonation would prejudice
the other party. As a general proposition the various factors are
not
individually decisive but should all be taken into account to
arrive at a conclusion as to what is in the interests of justice.”
[14]
At para 39
[15]
See
Moila
v Shai N.O and Others
(2007)
28 ILJ 1028 (LAC);
[2007] 5 BLLR 432
(LAC) at para
34, where it was held that:
“
I do not
have the slightest hesitation in concluding that this is a case
where the period of delay is excessive and the appellant's
purported
explanation for the delay is no explanation at all. I accept that
the case is very important to the appellant. However,
the weight to
be attached to this factor is too limited to count for anything
where the period of delay is as excessive as is
the case in this
matter and the explanation advanced is no explanation at all. If
ever there was a case in which one can conclude
that good cause has
not been shown for condonation without even considering the
prospects of success, then this is it. Where,
in an application for
condonation, the delay is excessive and no explanation has been
given for that delay or an “explanation”
has been given
but such “explanation” amounts to no explanation at all,
I do not think that it is necessary to consider
the prospects of
success.”