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[2018] ZALCJHB 417
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Minister of Correctional Services v POPCRU obo Mathidebi and Others (JR993/10) [2018] ZALCJHB 417 (11 December 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no:
JR 993/10
In the
matter between:
MINISTER
OF CORRECTIONAL SERVICES
Applicant
and
POPCRU
obo K.M MATHIBEDI & 4 OTHERS
First Respondent
P.M
NGAKO
N.
O
Second Respondent
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
Third
Respondent
Considered:
In Chambers
Delivered:
11 December 2018
JUDGMENT:
LEAVE TO APPEAL
TLHOTLHALEMAJE,
J:
[1] This application
for leave to appeal against the whole judgment and order of Sello AJ
delivered on 20 February 2018
is before me by agreement
between the parties and by direction of the Acting Deputy Judge
President of this Court.
[2] In terms of the
Court order, the applicant’s (Department) application to review
and set aside the arbitration award dated
16 February 2011
issued under the auspices of the third respondent (GPSSBC) by the
second respondent (the Commissioner)
was dismissed with costs. The
award was further made an order of court in accordance with the
provisions of section 158 (1)(c)
of the Lavbour Relations Act
(LRA).
[1]
In the award, the Department was ordered to promote the individual
employees (members of POPCRU) to the posts of Correctional Officer
Grade 1, with effect from 1 April 2008.
[3] On 15 June 2018,
the Department filed and served an application for leave to appeal
together with an application for
condonation. Both applications were
opposed by POPCRU representing the individual employees. The
background facts of this dispute
are to a large extent common cause
and may be summarised as follows:
3.1. In a memorandum
dated 12 November 2007, the Department invited Correctional
Services Officers who occupied positions
on salary level 6 and/or
below to apply for positions on a higher salary level (
i.e.
salary level 6 and/or 7). This recruitment process was intended to
constitute a promotion for those officers on salary level 6
and
below.
3.2.
The minimum requirements for the positions were:
i. in
respect of a promotion to
salary level 6 [Correctional Officer
Grade (II)
], a grade 12 certificate; at least four years
applicable experience; or at least 3 years in the position of
Correctional Officer
Grade (III); and a performance rating of at
least an average of 65% in the 2006/2007 year.
ii.
in respect of
Correctional Officer Grade I
positions; seven
years working experience, three of which must be in the position of
Correctional Officer Grade (II) ,and a performance
rating of at least
an average of 65% in the year 2006/2007.
iii.
Officers who did not possess a grade 12 certificate but had the
relevant experience that exceeded the minimum requirement
per grade
were also encouraged to submit their applications for promotion.
3.3.
In a further memorandum dated 16 November 2007, the
Department indicated the criteria for the determination of the
necessary experience to mitigate against the lack of a formal grade
12 qualification. For example
,
the memorandum in respect of
salary level 6 positions required grade 11 qualification with at
least five years working experience
and a minimum of three years’
experience as a Correctional Officer Grade (III) as opposed to four
years working experience
required from one who had a grade 12
qualification,
etc
.
3.4. The individual
employees and other employees applied for the 19 advertised
promotional positions. When the 19 positions were
filled by other
candidates, the aggrieved individual employees referred an unfair
labour practice dispute to the GPSSBC. Their
dispute related to the
filing of the position of Correctional Officer Grade 1 and 15 other
individuals were cited as co-respondents
in the referral.
3.5. At the
arbitration proceedings, POPCRU on behalf of the employees had
challenged the Department’s Regional Commissioner’s
decision to consider the performance of the financial year 2006/2007
higher in hierarchy in determining the suitable candidates
for
promotion.
3.6. POPCRU’s
contention was that in an event that there were more suitable
candidates than the available positions, the Department
was required
in terms of paragraph 7.3 of the memorandum dated 16 November 2007,
to take into account, additional factors
such as, area of locality,
seniority, the officer’s performance rating in 2006/2007 and
the completion of a prescribed promotional
examination (in that
order). To that end, POPCRU’s contention was that the decision
of the Regional Commissioner to elevate
the standing of the
performance rating above the others constituted a breach of the
Department’s recruitment policy and by
implication, constituted
unfair labour practice.
3.7. In an
arbitration award dated 16 February 2010, the Commissioner
accepted that the employees met the minimum requirements
for the
post, and that they were shortlisted. The Commissioner however
observed that the employees’ names were somehow excluded
from
the final list issued by the Regional Office.
3.8. The
Commissioner held that the Department had accordingly committed an
unfair labour practice by failing to promote the employees
on the
basis that their names had been removed from the list recommended by
the selection panel. According to the Commissioner,
since the
selection panel had complied with the Department’s policies,
the Regional Office should not have interfered with
the final list.
Condonation for
the late launching of the application for leave to appeal and
evaluation:
[4] Sello AJ’s
judgment having been delivered on 20 February 2018, the
notice of leave to appeal was only delivered
on 14 June 2018,
some 68 days outside the timeframes provided for by the Rules of this
Court
[2]
.
[5] The principles
applicable to applications for condonation are well-established. The
Court in the exercise of its discretion
may or may not grant
condonation upon a consideration of a variety of factors including
the degree of lateness, the explanation
therefor, the prospects of
success, the prejudice to the parties and the importance of the case.
These factors are to be assessed
as a whole as they are interrelated.
In the end, and upon a consideration of these factors, the Court, in
the exercise of its discretion,
will be persuaded by what the
interests of justice dictates
[3]
.
[6] The delay in
bringing the leave to appeal is about 68 days and not 90 days as
averred on behalf of the Department. That delay
in my view ought to
be considered within the context of other delays that have plagued
this matter. It is accepted that it took
six years for the judgment
to be delivered, arguments in the review application having been
heard on 26 July 2011.
[7] The founding
affidavit was deposed to by Matsobane Jimmy Mahlatse (Regional
Coordinator: Legal Services, Gauteng) on behalf
of the applicant. The
averments pertinent to the determination of the condonation
application are as follows;
7.1 The judgment was
received on
4 April 2018
, and a copy was forwarded
to the office of the State Attorney on the same day. On 26 April 2018
the State Attorney’s
office had sent an email to counsel who
had handled the matter on behalf of the Department, informing her
that the file went missing
and could not be traced as it was
initially handled by two other attorneys who had since left the
office of the state attorney.
7.2 On 15 May 2018,
the matter was allocated to another practitioner within the State
Attorney’s Office. On 17 May 2018,
the State Attorney
inspected the Court file and made the necessary copies. A
consultation with Counsel was scheduled and only held
on 6 June 2018
as it was the only date when all individuals involved in the matter
were available.
[8] It is trite that
a party seeking condonation must give an a account of each period of
delay
[4]
.
POPCRU in opposing the application correctly pointed out that no
explanation was proffered in respect of various periods of the
delay
including;
a) the delay between
20 February 2018 when judgment was delivered and
4 April 2018 when it was allegedly
received by the
applicant;
b) the period
between 26 April 2018 to 16 May 2016, when the
matter was forwarded to Counsel and the appointment
of the new
practitioner;
c) from 17 May 2018
to 6 June 2018, when the documents were copied from the
Court file;
d) and from
6 June 2018 to 14 June 2018, when the state
attorney consulted with counsel.
[9] A period of 68
days’ delay in launching the application for leave to appeal is
excessive. Clearly as pointed out on behalf
of POPCRU, the Department
has not covered all the periods of the delay, and all that it had
done was to list events which took
place during the period of the
delay without giving much of an explanation. No attempt was made to
explain what the reason could
be for only receiving a copy of the
judgment on 4 April 2018, when it was delivered on
20 February 2018.
[10] Even if it was
correct that the judgment was only received on 4 April 2018,
at least an attempt should have been
made to demonstrate that a
minimum of enquiries were made with the office of the Registrar of
this Court to establish the reason
the judgment was only made known
to the Department on the date it alleges. It appears that the
Department simply expected the Court
to accept that notwithstanding
the fact that judgment was delivered on an earlier date, it was only
received on the date that the
Department alleged to have received it.
[11] Even more
concerning is that on the averments made, the file was only uplifted
on 17 May 2018 when judgment was allegedly
received on
4 April 2018. No attempt was made to explain the delay
during that period, and the excuses related to the
Department’s
internal workings or that of the office of the state attorney’s
appear to be lame in the extreme.
[12] In the end, the
explanation proffered on behalf of the Department for the delay in
launching the application for leave to appeal
is lacking in detail,
is wholly inadequate and unsatisfactory, and worst still, fails to
take the Court in its confidence.
[13] Mahlatse
further averred that in the event that condonation was not granted,
the applicant would be severely prejudiced in
that it will not have
the opportunity to present its case and arguments before the Court as
to the reasons for the leave to appeal.
He further averred that the
employees would on the other hand, suffer little if any prejudice
should condonation be granted.
[14] The issue of
prejudice needs to be examined within the context of delays in this
matter. The dispute between the parties arose
sometime in
August/September 2009. It was heard before the Commissioner
between October and November 2009, and finalised
in
February 2010. The Award was issued on 16 February 2010.
[15] The Department
launched its review application out of time by some five weeks. Even
though the Department had not filed a substantive
founding
application in respect of condonation and no cogent explanation for
the delay was proffered as can be gleaned in the judgement
[5]
,
Sello AJ nonetheless exercised his discretion and condoned the
non-compliance with the time periods.
[16] It is
appreciated that the six years’ delay in handing judgment
cannot be passed on to the Department. Notwithstanding
the extensive
delays however as mentioned above, it would in my view be remiss to
appreciate the prejudice on the employees as
a result of the
unexplained delays caused by the Department. A party within the
context of an application for condonation cannot
complain of
prejudice should condonation not be granted, where that prejudice
ultimately is as a result of its own doing.
[17] Mahlatse makes
no submissions at all in regards to prospects of success, other than
to state that there were overwhelming prospects
of success in the
application for leave to appeal. No effort was made to indicate to
the court that the averments made in the application
for leave to
appeal should be deemed to be incorporated in the application for
condonation.
[18] Notwithstanding
the above, the principles applicable in applications for leave to
appeal are trite as further codified in terms
of the provisions of
section 17(1)(a)(i) and (ii) of the Superior Courts Act.
[6]
In essence, an application for leave to appeal will succeed where
there are reasonable prospects of success on appeal or where
there
are other compelling reasons why the appeal must be constituted,
including but not limited to conflicting judgments on the
subject
issue.
[19] The test for
reasonable prospect of success was explained in
S v Smith
as
follows:
“
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law that a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the appellant
must convince this court on proper grounds that he has prospects of
succeed on appeal and that those prospects are not remote but
have
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success, that
the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound, rational
basis for
the conclusion that there are prospects of success an appeal’.
[20] In its
application for leave to appeal, the Department essentially contends
that this Court misdirected itself in various ways
which I do not
deem necessary to repeat, other than to state that the same or
similar issues that are raised in this application
were equally
raised and dealt with in the judgment. In my view, having had regard
to the arbitration award, the judgment of Sello
AJ, the grounds upon
which leave to appeal is sought and the opposition thereto, I hold
the view that the Department has not advanced
sound, rational or
compelling grounds for a conclusion to be reached that it has any
prospects of success on appeal.
[21] On the whole
therefore, and further having had regard to the excessive nature of
the delay in filing the application for leave
to appeal, the lack of
an adequate or satisfactory explanation for the delay, the prejudice
to the employees which far-outweighs
that to be suffered by the
Department should condonation be granted, the lack of prospects of
success in the main application for
leave to appeal, the interests of
expeditious resolution of disputes and administration of justice, it
is my view that the interests
of justice dictate that condonation
ought to be refused. Accordingly, it follows that the application for
leave to appeal ought
to be refused.
[22] I have further
had regard to the requirements of law and fairness in regards to the
issue of costs, and hold the view that
a costs order is not warranted
in this case. Accordingly, the following order is made;
Order:
1. The application
for condonation for the late filing of the applicant’s notice
of application for leave to appeal is dismissed.
2. The application
for leave to appeal is dismissed.
3. There is no order
as to costs.
E Tlhotlhalemaje
Judge of
the Labour Court of South Africa
[1]
Act 66 of 1995 (as amended)
[2]
Rule
30 of the Rules of this Court provide;
Application
for leave to appeal to the Labour Appeal Court
(1)
An application for leave to appeal to the
Labour Appeal Court may be made, by
way of a statement of the
grounds for leave, at the time of the judgment or order.
(2)
If leave to appeal has not been made at the time of judgment
or order, an application for leave must be made and the grounds for
appeal furnished within 15 days of the date of the judgment or order
against which leave to appeal is sought, except that the
court may,
on good cause shown, extend that period.
[3]
Brummer v Gorfil Brothers Investments (Pty) Ltd
[2000] ZACC 3
;
2000 (5) BCLR
465
;
2000 (2) SA 837
(CC), where it was held that;
“[3] …It
is first necessary to consider the circumstances in which this Court
will grant applications for condonation
for special leave to appeal.
This Court has held that an application for leave to appeal will be
granted if it is in the interests
of justice to do so and that the
existence of prospects of success, though an important consideration
in deciding whether to
grant leave to appeal, is not the only factor
in the determination of the interests of justice. It is appropriate
that an application
for condonation be considered on the same basis
and that such an application should be granted if that is in the
interests of
justice and refused if it is not. The interests of
justice must be determined by reference to all relevant factors
including
the nature of the relief sought, the extent and cause of
the delay, the nature and cause of any other defect in respect of
which
condonation is sought, the effect on the administration of
justice, prejudice and the reasonableness of the applicant’s
explanation for the delay or defect.”
[4]
See
NUMSA and another v Hillside Aluminium
[2005] 6 BLLR 601
(LC)
[5]
Paras 12 -20 of the Judgment
[6]
Act 10 of 2013