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[2018] ZALCJHB 324
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Gaolehelwe v South Africa Local Government Bargaining Council and Others (JR1695/15) [2018] ZALCJHB 324 (20 September 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR1695/15
In
the matter between:
GILBERT
TEBOGO
GAOLEHELWE
Applicant
and
SOUTH
AFRICA LOCAL GOVERNMENT BARGAINING COUNCIL
First
Respondent
ADVOCATE
CM REX
N.O.
Second
Respondent
SOL
PLAATJE
MUNICIPALITY
Third
Respondent
Heard:
30 August 2018
Delivered:
20 September 2018
Summary:
Review application – condonation and
rescission rulings – matter is moot and a pronouncement on the
merits is unnecessary.
JUDGMENT
NKUTHA-NKONTWANA.
J
Introduction
[1]
The applicant approached the Court 1183 days (almost three years)
late seeking an order reviewing and setting aside condonation
and
rescission rulings of the second respondent (the arbitrator) dated 6
March 2012 and 4 June 2012 respectively under case number
NCD021202.
The arbitrator granted the third respondent (Municipality)
condonation for instituting disciplinary enquiry against
the
applicant outside of the prescribed time frame in terms of the Clause
6.3 of the South African Local Government Bargaining
Council
(SALGBC). He subsequently dismissed the application to rescind the
condonation ruling.
[2]
The application is robustly opposed by the Municipality which in turn
raises mootness as a point
in limine
.
Background
[3]
The applicant was a South African Municipal Workers Union (SAMWU)
shop steward. He was suspended and charged with several allegations
of misconduct with the leave of the arbitrator who had granted
condonation. The disciplinary enquiry sat on 25 September 2012 and
was postponed by agreement between the parties to 10 October 2012. In
the applicant’s own version, it was made clear to him
that that
postponement was the final one.
[4]
Irrespective, the applicant chose not to attend his disciplinary
enquiry. Instead, he attended some SAMWU training organised
by
DITSELA. The disciplinary enquiry proceeded as agreed on 10 October
2012. The applicant was found guilty and dismissed on 2
November
2012. His appeal was unsuccessful. SAMWU referred an alleged unfair
dismissal dispute to SALGBC. However, the matter was
dismissed due to
non-appearance by SAMWU. The dismissal ruling was never challenged.
[5]
As things stand, the applicant is dismissed from the employ of the
Municipality. There is no explanation provided as to why
the
dismissal was never challenged.
Is
the relief sought moot?
[6]
I question the prudence of challenging the impugned rulings almost
three years down the line when the applicant has clearly
accepted his
dismissal. In my view, the impugned rulings were not dispositive of
the procedural issues. Nothing could have stopped
the applicant from
raising the alleged procedural irregularities with the chairperson of
the disciplinary enquiry and later with
the arbitrator. It is
instructive that the applicant shunned at the opportunity to
challenge the procedural irregularities by absenting
himself from the
disciplinary enquiry and the arbitration proceedings.
[7]
In
South
African Transport and Allied Workers Union v ADT Security
(Pty) Ltd,
[1]
confronted with
the question of mootness of the matter, the Labour Appeal Court
stated that:
‘
[4] The principles
relating to mootness have been well established in
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999] ZACC 17
;
2000 (1) BCLR 39
(CC) in which the
Constitutional Court said:
“
A case is moot and
therefore not justiciable, if it no longer presents an existing or
live controversy which should exist if the
Court is to avoid giving
advisory opinions on abstract propositions of law.” (At 54
footnote 18).
[5] In
Independent
Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (9) BCLR 883
(CC), the Constitutional Court held that, where there was no live
controversy between the parties, and, in the absence of any
suggestion that any order might have an impact on the parties, the
disputes between the parties were moot especially since future
cases
inevitably presented different factual matrixes and hence no purpose
would be served in resolving the dispute. See also
Radio Pretoria
v Chairman of the Independent Communication Authority of South Africa
and Another
[2004] ZACC 24
;
2005 (3) BCLR 231
(CC).’
[8]
In this instance, the live controversy was the sitting of the
disciplinary enquiry consequent to the impugned condonation ruling.
As things stand, the applicant has since been dismissed, a dismissal
he never challenged. The mootness of this application is therefore
obvious. The disciplinary hearing that was meant to be barred by the
setting aside of the impugned rulings has since occurred and
its
outcome remains unchallenged.
[9]
I
accordingly agree with the submission by Mr Venter, counsel for the
Municipality, that the relief sought in this application is
now
impeccably academic.
[2]
On this
point alone, the application stands to be dismissed.
Is
there a justification to consider the merits, nonetheless?
[10]
In
Sebola
and Another v Standard Bank of South Africa Ltd and Another,
[3]
the
Constitutional Court stated that:
‘…
mootness
is not an absolute bar to deciding an issue. That is axiomatic: the
question is whether the interests of justice require
that it be
decided. One consideration is whether the Court’s order will
have any practical effect on either the parties or
others.
’
[11]
It is trite
that it is only when presented with exceptional circumstances that
the court would exercise its discretion to traverse
the merits in a
matter that is moot.
[4]
In this
instance, the converse is true. The applicant has an insurmountable
huddle of justifying the grant of condonation. The
delay is extensive
and the explanation for the delay is unreasonable and unacceptable.
The applicant attributes the delay to SAMWU.
It is also worth
mentioning that SAMWU instructed three different firms of attorneys
to deal with the applicant’s matter.
However, no further
instructions were given to launch this application.
[12]
In my view, this is a typical case where it would be inappropriate to
venture into the merits when the relief is patently moot.
Conclusion
[13]
In the circumstances,
the matter is moot and a
pronouncement on the merits unnecessary.
Costs
[14]
On the issue of costs, Mr Venter was adamant in his submission that
the Municipality should be granted costs on a punitive
scale as a
token of disapproval of the applicant’s conduct in pursuing a
hopeless case. The applicant refused to withdraw
the matter when
invited to do so by the Municipality’s attorneys of record. He
also ignored the warning that should he proceed
with the matter, a
punitive costs order would be sought.
[15]
The applicant’s submission in court was that SAMWU Office
Bearers, cited as the fourth respondent and acting on behalf
of
SAMWU, should pay the costs. It is clear from the notice of motion
that one of the orders sought by the applicant is that the
SAMWU be
ordered to pay the costs of this application because they failed to
file his matter within the prescribed period. SAMWU
is not opposing
the relief sought against it despite being duly served with the
applicant’s founding papers on 19 October
2015.
[16]
The applicant is on point. Why should he be burdened with the costs
when it is clear from the record that SAMWU has let him
down in all
his matters. However, I am not persuaded that a punitive cost order
is warranted.
[17]
In the premises, I make the following order:
Order
1. The application is
dismissed.
2.
SAMWU
is ordered to pay the Municipality’s costs on a party and party
scale.
____________________
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant: Appeared in person
For
the respondent: Advocate F Venter
Instructed
by: Van De Wall Inc.
[1]
South
African Transport and Allied Workers Union v ADT Security
(Pty) Ltd
[2011] 9 BLLR 869
(LAC); (2011) 32 ILJ 2112 (LAC) at paras
4 - 5.
[2]
National
Employers Association of South Africa (NEASA) v Metal and
Engineering Industries Bargaining Council (MEIBC) and Others
[2015] ZALAC 11
; (2015) 36 ILJ 2032 (LAC) at paras 6-7.
[3]
2012 (5) SA 142
(CC);
2012 (8) BCLR 785
(CC) at para 32.
[4]
Supra
n
2 at para 14.