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[2018] ZALCPE 8
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PSA obo Bakubaku v General Public Service Sector Bargaining Council and Others (PR249/14) [2018] ZALCPE 8 (19 January 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case No: PR 249/14
In
the matter between:
PSA
obo VUMILE BAKUBAKU
Applicant
and
THE
GENERAL PUBLIC SERVICE
SECTOR
BARGAINING COUNCIL
First Respondent
WILLIAM
FRIEDRICH BENTZ
Second
Respondent
MINISTER
OF PUBLIC WORKS
Third
Respondent
Heard:
30 November 2016
Delivered:
19 January 2018
Summary:
The late filing of an application may not be condoned when the
applicant has failed to make averments placing the court
in a
position to decide the application.
JUDGMENT
LALLIE,
J
[1]
The applicant launched this application seeking an order declaring
the arbitration award issued by the second respondent who
will be
referred to as the arbitrator in this judgment, null and void. The
application is opposed by the third respondent.
[2]
The factual background to this matter is that the individual
applicant, Mr Bakubaku (Bakubaku), was employed by the Department
of
Public Works (the Department) as a Deputy Director: Human Resources
Management in July 2005. He performed his duties at the
Mthatha
office of the Department. Arising from allegations of misconduct
against him, he reached an agreement with the Department
that a
pre-dismissal arbitration be conducted into the allegations. The
pre-dismissal arbitration was conducted by the arbitrator
on 30 July
and 13 August 2009 under the auspices of the first respondent which
will be referred to as the bargaining council in
this judgment. On 23
September 2009 the arbitrator issued an award in which he found
Bakubaku guilty of the charges which had been
preferred against him
and dismissed him. On 13 November 2009, the PSA launched an
application on behalf of Bakubaku in this court
to have the award
reviewed and set aside. After substantial delay in the prosecution of
the review application the PSA launched
the application at hand on 15
November 2014 and subsequently withdrew the review application.
[3]
In the answering affidavit the third respondent raised a number of
preliminary points. In the first, the third respondent submitted
that
this court lacks jurisdiction to entertain the application as the
applicant filed it out of time but failed to apply for condonation.
The third respondent further submitted that lack of jurisdiction
constituted sufficient grounds for the dismissal of the application.
When this matter was argued, counsel for the applicant relied on the
issue of legality only. It was the applicant’s case
that the
award should be declared null and void because the arbitrator had no
jurisdiction to conduct the pre-dismissal arbitration
as he lacked
the necessary accreditation. The third respondent persisted with the
preliminary point of lack of jurisdiction resulting
from the
applicant’s failure to apply for condonation. The issue of
condonation has to be determined first as without the
necessary
jurisdiction, this court may not hear a matter.
[4]
In the founding affidavit the applicant made the following averments
in respect of condonation:
“
Insofar as the delay in
launching this application is concerned:
37.1
I am a layman it the mercy of my union and my legal representatives;
37.2
I have, at all times, been led and guides (sic) by their advices;
37.3
There is no prejudice to the Respondents. This is particularly in
light of the fact that the other
review is still pending”.
[5]
Answering to these averments, the third respondent submitted that the
applicant failed to provide a proper explanation for the
delay and to
place this court in a position to assess its conduct and motives. The
third respondent denied that it will not suffer
prejudice. It
submitted that it will suffer prejudice should the Department be
required to reinstate Bakubaku and hold a disciplinary
enquiry afresh
six years after his dismissal. Memories have faded and it will be
more difficult to locate documentation. A number
of employees who
were involved in the pre-dismissal arbitration have left the
Department. Mr Malebye has resigned from the public
service and Mr
Rathatha has left the Department.
[6]
In the replying affidavit the applicant did not deal with the
averments raised by the third respondent on condonation. The third
respondent’s version therefore remains undisputed. The
applicant submitted that it has been granted by this court an
opportunity
to file an affidavit which sets out the basis of its
attack on the pre-dismissal arbitration award. It added that the
opportunity
applied to both applications. The applicant further
submitted that this court ordered that it may be permitted to file
the replying
affidavit. The applicant’s interpretation of
the order of 4 September 2015 is opportunist and unsustainable. When
the
order was granted, two applications were pending. In the first
the applicant sought to have the arbitrator’s award reviewed
and set aside. In the second it sought an order declaring the same
award null and void. In the order the applicant was required
to file
an affidavit and explain the manner in which it intended to pursue
the matter in view of the pending applications. The
applicant did not
construe the order as condonation of the late filing of the
application at hand because in the founding affidavit
it sought
condonation. Had the applicant been of the view that condonation had
been granted, it would not have sought condonation
of the late filing
of the application in the founding affidavit. The third respondent’s
averment that the applicant has not
brought the application within
reasonable time is not denied.
[7]
The need to seek condonation for the late filing of this application
was not lost to the applicant. The applicant, however,
failed to make
proper averments for condonation and elected not to deal, in the
replying affidavit, with the respondent’s
vehement opposition
to condonation. The Constitutional Court in
Grootboom
v National Prosecuting Authority and Another
[1]
expressed its disapproval for non-compliance with court rules and the
failure to give proper reasons for condonation in the following
words:
‘
The
language used in both
Van
Wyk
and
Ethekwini
is unequivocal. The warning is expressed in very stern terms. The
picture depicted in the two judgements is disconcerting. One
gets the
impression that we have reached a state where litigants and lawyers
disregard the Rules and directions issued by the Court
with
monotonous regularity. In many instances very flimsy explanations are
proffered. In others there is no explanation at all.
The prejudice
caused to the Court is self -evident. A message must be sent to
litigants that the Rules and the Court’s directions
cannot be
disregarded with impunity.’
The
court expressed the need for a proper condonation application thus:
‘
[23]
It is trite that condonation cannot be had for the mere asking. A
party seeking condonation must make out a case entitling
it to the
court’s indulgence. It must show sufficient cause. This
requires a party to give a full explanation for the non-compliance
with the rules or court’s directions. Of great significance,
the explanation must be reasonable enough to excuse the default.
[8]
The applicant elected not to make averments which would have placed
me in a position to determine whether filing this application
more
than five years after the award the applicant sought to have declared
null and void, was issued. Absent the necessary averments,
condonation may not be granted. As the excessive delay has not been
condoned, this court lacks jurisdiction to hear this application.
[9]
The third respondent sought a costs order against the applicant. I
have considered the arguments on the issue of costs. Notwithstanding
the manner in which the applicant conducted this matter, I am not
convinced that both the law and fairness justify a costs order.
[10]
In the premises, the following order is made:
Order:
1.
The application is dismissed.
2.
No order is made as to costs.
Z
Lallie
Judge
of the Labour Court of South Africa
Appearances
For the Applicant:
Advocate Dyke
SC
Instructed
by:
Nosindwa Attorneys
For the Third
Respondent: Advocate Kroon SC
Instructed
by:
The State Attorney
[1]
[2014] 1 BLLR 1
(CC) at para 34.