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[2018] ZALCD 24
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Mnguni v Khanyile NO and Others (D 1064/2015) [2018] ZALCD 24 (15 November 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not
Reportable
Case
no: D 1064/2015
In
the matter between:
LINDA
MNGUNI
Applicant
and
COMMISSIONER
H.P KHANYILE
NO
First Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second
Respondent
eTHEKWINI
MUNICIPALITY
Third Respondent
Delivered:
15 November 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
[1]
With this application, the
applicant seeks to review and set aside a condonation ruling issued
by the first respondent (Commissioner)
dated 21 October 2015,
issued under the auspices of the second respondent (SALGBC). The
application is opposed by the
third respondent (Municipality).
[2]
The applicant is employed in
the Economic Development Planning Department of the Municipality on
salary level Task Grade 7. He had
responded to an advertisement for
the post of Building Inspector Economic Development and Planning
Cluster at salary level Grade
10. The closing date for the
applications was 31 October 2014. As at 2 January 2015,
the applicant had not
received a response and had lodged a grievance
as he wanted to be shortlisted and interviewed for the post. The
grievance reached
the applicant’s supervisor. Mzimela on
19 January 2015 for a decision. On 20 January 2015,
Mzimela discussed
the grievance with the applicant, flowing from
which the applicant was to proceed to step two of the grievance
procedures.
[3]
On 2 February 2015,
the Municipality’s Ramdayal had sent an email to the applicant
in response to the latter’s
enquiry regarding the post, and was
advised that no appointments had been made. This was again confirmed
by Bheki Ngcobo of the
Municipality’s Human Resources
Department on 15 April 2015 that he was not shortlisted as
he did not meet the relevant
requirements for the post.
[4]
The applicant’s
contention nonetheless is that another person, Thulile Gcaba had been
appointed into the post. The Municipality
however disputed this
version, contending that after the shortlisting and interviews that
had excluded the applicant, no appointment
was made into the post as
there was no suitable candidate. This was confirmed through the
Appointment Circular dated 6 March 2015.
[5]
The same post was however
re-advertised in January 2015, with the closing date being
6 February 2015, and the applicant
did submit his
application. According to the Municipality, he had nonetheless kept
making enquiries about the post on which no
appointment was made.
[6]
Despite the applicant being
advised that the position was not filled, he had referred a dispute
for conciliation on 27 August 2015
alleging an unfair
labour practice that arose on 30 June 2015. His contention
was that the dispute arose on that date
as that is when he was
informed by Ngcobo that he was not shortlisted as he had not met the
requirements for the post. In his referral,
the applicant sought that
he be appointed to the position of Building Inspector. This was
despite not having been shortlisted nor
interviewed.
[7]
At the conciliation proceedings
held on 23 September 2015, the Municipality had raised a
preliminary point and contended
that the referral was out of time,
and that the applicant ought to seek condonation. He had duly filed
an application in that regard
which the Municipality had opposed.
[8]
In his application for
condonation, the applicant had averred the following;
8.1
The post having advertised on
17 October 2014, he had applied and when he heard nothing
from the Municipality, he
lodged a grievance on 2 January 2015;
8.2
The reason he filed a
grievance was that he was informed by colleagues that the post had
been filled by Gcaba, which appointment
the Municipality denied
in April 2015. He however contends that he was never given an
appointment circular despite several
requests. He had therefore used
an email sent to him on 30 June 2015 by Ngcobo which
confirmed that he did not meet the
relevant requirements of the post,
as the cause of action.
8.3
He contended that had the
Municipality provided him with the non-appointment circular on
15 April 2015, which he had requested
on 4 February 2015,
he would have referred the dispute then.
8.4
The applicant does not in the
application for condonation indicate the length of the delay, but he
nonetheless attribute any delay
to the fact that he was never
provided with an appointment circular despite making several
requests. He conceded that he had received
the ‘non-appointment
circular’ on 16 March 2015 from Ramdayal. He further
disputed that the appointment circular
was published in terms of the
Municipality’s Employment Practice Policy.
8.5
The nub of the applicant’s
averments in regards to his prospects of success, was that he met the
requirements of the post,
and that the Municipality had not fairly
conducted the appointment process in accordance with its Employment
Practices Policy,
and had thus committed an unfair labour practice.
8.6
The applicant further averred
that he would suffer prejudice should condonation not be granted as
he met the minimum requirements
for the post.
[9]
The Municipality had opposed
the condonation application on the grounds that;
a)
At a grievance meeting held on
04 February 2015, the applicant was provided with reasons
for his non-shortlisting, and
subsequent to the non-resolution of the
grievance, he was advised to refer the dispute to the SALGBC.
b)
The applicant had referred the
dispute on 27 August 2015, some six months after he became
aware that the grievance remained
unresolved.
c)
The request for the
non-appointment circular did not prevent the applicant from timeously
referring the dispute, and his explanation
for the delay in referring
the dispute ought to be rejected.
d)
The applicant did not meet the
requirements of the post and accordingly lacked prospects of success
as no appointment was made into
the post. He further would not suffer
any prejudice as the post was re-advertised and he had submitted his
application.
[10]
The Commissioner having
considered the condonation application and the opposition thereto,
came to the conclusion that the applicant
had not shown good cause in
that;
10.1
He failed to meet the standard
required of an application for condonation as he had failed to deal
with the length of the delay,
which was fundamental to showing good
cause.
10.2
It was not the duty of the
Commissioner to speculate on the degree of lateness, and to the
extent that the applicant failed to deal
with this issue, the
application was defective.
10.3
The applicant had conceded that
the grievance meeting was held on 4 February 2015 where he was
informed of the reasons for
his non-shortlisting, and was further
advised to refer the dispute to SALGBC as the grievance remained
unresolved.
10.4
The circular of non-appointment
that the applicant had insisted upon was not going to change the
circumstances of his non-shortlisting
as it was irrelevant for the
purposes of referring the dispute, and accordingly his explanation
for the delay ought to be rejected.
10.5
The applicant had not
demonstrated prospects of success in that he had not shown that he
was an exceptional candidate deserving
to be appointed. Furthermore,
since the applicant required that he be shortlisted, it was not for
the Commissioner to make any
such order, including that he be
interviewed and promoted.
10.6
The prejudice the applicant
complained of was of his own making as he failed to prosecute the
matter timeously. Furthermore, the
applicant still had an opportunity
to apply for the post as it was re-advertised.
The
grounds of review and evaluation:
[11]
The applicant contends that the
Commissioner made an error in the ruling, which made it ‘invalid
and unlawful’, and
thus deserving to be set aside. He further
contends that the Commissioner committed a gross irregularity in the
conduct of proceedings.
[12]
In dealing with the grounds of
review, it is of importance to reiterate that where this Court is
called upon to review and set aside
a condonation ruling, it is
essentially invited to
consider
the exercise of a discretionary power
[1]
.
The
principles applicable in such instances includes a determination of
whether a tribunal had exercised its discretion capriciously
or upon
a wrong principle; whether t
he
tribunal did not exercise a judicial discretion and, if it did
exercise a discretion at all, it did so improperly or unfairly;
whether the
decision is vitiated by misdirection or irregularity, or is one to
which no Court could reasonably have come
[2]
.
[13]
This being an application to
review the Commissioner’s ruling, the above questions as to
whether this Court should intervene
with the Commissioner’s
discretion ought to be answered within the context of the trite
principles applicable to condonation
applications.
[14]
In accordance with the
provisions of section 191(2) of the LRA, the Commission/Bargaining
Council may on good cause shown, condone
the non-observance of the
time frames. ‘Good cause’ was explained in
Melane
v Santam Insurance Co. Ltd
[3]
in the following terms;
‘
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what should
be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects may tend to compensate
for a long delay.
And the Respondent’s interests in finality must not be
overlooked”
[15]
The Constitutional Court in
Brummer v Gorfil Brothers
Investments (Pty) Ltd
has
since pointed out that an application for condonation should be
granted if it 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]
.
[16]
Significant
with a determination of such applications is
that
condonation cannot
be had for the mere asking, and that a party is required to make out
a case entitling it to an indulgence by
giving a full,
detailed
and accurate account of the causes of the delay
[5]
.
In the end,
the
explanation must be reasonable enough to excuse the default.
[6]
[17]
In this case, the Commissioner
had regard to the factors to be considered when determining
applications for condonation. In regards
to the period of delay, the
applicant had for reasons best known to him, not indicated how late
the referral was. It can be deduced
that he had done so deliberately
as he was indeed aware that the delay in question, when it is
accepted that the applicant knew
as of 5 February 2015 that
he had not been shortlisted, was excessive in the extreme. The
failure to deal with this aspect
of condonation was indeed fatal as
correctly pointed out by the Commissioner.
[18]
The Commissioner had further
dealt with the explanation proffered by the applicant. That
explanation as correctly found by the Commissioner
was wholly
inadequate, and in the words expressed by Zondo JP (as he then
was) in
Moila v Shai NO and
Others
[7]
,
amounted to no explanation at all.
[19]
The nub of the applicant’s
explanation was that he was not furnished with a circular of
appointment for the post. That circular
as however pointed out by the
Commissioner was irrelevant for the purposes of referring a dispute,
as the applicant knew as of
5 February 2015 when his
grievance was not resolved that he had not been shortlisted. Even if
there was any merit in
his contention that he had to wait for the
circular, it is trite that he was required to explain each and every
period of the delay.
He nonetheless merely alleged that he had made
several requests for the circular, without indicating exactly when
those requests
were made.
[20]
Any contention by the applicant
that he had any prospects of success on the merits,
i.e.
,
that he would be shortlisted, interviewed and appointed into the post
is to be viewed within the context of whether someone was
appointed
into the post, or whether the post was ultimately re-advertised. If
it is established that the post which was the source
of the
applicant’s grievance was not ultimately filled, and that it
was re-advertised, in my view, that should be the end
of the matter.
This is so in that the applicant has no entitlement to be shortlisted
or interviewed for the post, and a mere allegation
that one met the
requirements of a post does not give rise to a right to an
appointment. Even if there was some unfairness in the
failure to
shortlist the applicant, I fail to appreciate what remedy would have
been available in circumstances where the very
same post was
re-advertised.
[21]
In argument, it was persisted
on behalf of the applicant in this case that it was not true that the
post was re-advertised, as it
appeared that there were two posts,
with one being re-advertised whilst the other was not. It was
contended that the posts appeared
to be the same save for the
reference number used in the two posts.
[22]
Counsel for the Municipality
had pointed out that Circular ‘SVC363’ for the post was
issued on 16 March 2016
[8]
.
The same circular reference number had been used for the post
initially advertised in October 2014, as no appointments had been
made in respect of the initial advertisement. This was confirmed in
an email correspondence between Ramdayal and the applicant
on 2
February 2015. Flowing from further enquiries from the applicant, he
was again informed on 15 April 2015 by email that no
appointments
were made in respect of the post under ‘SCV363’, and that
the post was re-advertised under ‘SCV368’
issued on 23
January 2015
[9]
.
Other than that, the applicant was also furnished with appointment
circular No.2246 dated 16 March 2015, which confirmed that
no
appointments were made for the post.
[23]
The applicant had confirmed in
his replying affidavit that he had indeed applied for a post,
but which he understood to be
a new post (even if it was for Building
Inspector). He however contended that he was not aware that it was
the same post re-advertised,
and he was pursuing the matter on the
basis that he was not shortlisted in respect of the post under ‘SCV
363’. It
is not clear from the applicant’s averments as
to what made him to believe that the re-advertised post is not the
same as
that he had applied for initially. His contention that the
original post was filled by Gcaba is also not supported by any
evidence,
and if he insisted on seeking to be appointed into the
post, his application would have been defective on account of the
non-joinder
of Gcaba.
[24]
I have difficulties in
understanding the applicant’s insistence that he is pursuing
the matter in respect of a post which
was clearly re-advertised,
simply because he was not aware that the post that he had re-applied
for was not the same post that
was re-advertised. If he was not
shortlisted for the post, and no appointments were made in that post,
I fail to appreciate the
reason he would insist that he should have
been shortlisted when he has a second chance at the post flowing from
his second application.
As already indicated, the applicant’s
rights in such cases are limited to a fair process. He nonetheless
has no right or
entitlement to be shortlisted, and besides, it is
unclear what possible prejudice he could have suffered under the
circumstances
when no one was appointed. On the contrary, it is the
Municipality that stood to suffer prejudice, as it would have been
compelled
to defend a matter that had no merit. In my view, the
Commissioner’s conclusions that the applicant had not
demonstrated
any prospects of success are unassailable.
[25]
Having had regard to the
factors taken into account by the Commissioner in refusing the
applicant’s application for condonation,
I am satisfied that
there is no basis for any conclusion to be reached that the
Commissioner committed a misdirection or irregularity,
or failed to
apply his discretion or improperly applied that discretion, or that
he acted capriciously, or that he reached a decision
that a
reasonable decision-maker could not reach.
[26]
Further having had regard to
the requirements of law and fairness, and in the light of the
conclusions reached, I am satisfied that
this application should not
have seen its way on the court’s roll as it was indeed
ill-conceived. Accordingly, I am of the
view that the applicant
should be burdened with its costs.
[27]
Accordingly, the following
order is made;
Order:
1.
The application to review and
set aside the condonation ruling issued by the First Respondent dated
21 October 2015 is dismissed
with costs.
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
P
Pillay of Pungi Pillay & Associates
For
the Respondent:
CM
Kulati
Instructed
by:
Hlela
Attorneys
[1]
See
Cowley
v Anglo Platinum & others
JR
2219/2007;
[2016] JOL 35884
(LC) at para 21, where it was held that;
“…
when
the Commissioner is endowed with a discretion this court will be
very slow to interfere with the exercise of that discretion.
The
Commissioner’s exercise of discretion would be upset on the
review if the applicant shows, inter alia, that the Commissioner
committed a misdirection or irregularity, or that he or she acted
capriciously, or on the wrong principle or in bad faith or
unfairly
or that the exercise seeing the discretion the Commissioner reached
a decision that a reasonable decision-maker could
not reach.”
(footnote omitted)
[2]
Coates Brothers Limited v Shanker
and Others
(DA 22/2002)
[2003] ZALAC 12
(29 September 2003) at para [3]
[3]
1962
(4) SA 531
(A) At 532b-E
[4]
[2000] ZACC 3
;
2000 (5) BCLR 465
;
2000 (2) SA 837
(CC) at para 3; See also
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;
SA
Post Office Ltd v CCMA
[2012]
1 BLLR 30
(LAC) at para [23], where Waglay DJP (as he was
then) stated that;
‘
In
my view, each condonation application must be decided on its own
facts bearing in mind the general criteria. While the rules
are
there to be applied, they are not inflexible but the flexibility is
directly linked to and apportioned in accordance with
the interests
of justice; prejudice; prospects of success; and finally, degree of
delay and the explanation thereof. The issue
of delay must be viewed
in relation to the expedition with which the law expects the
principal matter to be resolved’
[5]
Mulaudzi v Old
Mutual Life Assurance Company (South Africa) Limited
2017 (6) SA 90
(SCA) at para 6
[6]
Ndlovu v S
at para 31
supra at fn 3
[7]
[2007] 5 BLLR 432
(LAC),
At
para 33, where it was held that;
“
If
ever there was a case in which one can conclude that good cause has
not been shown for Condonation without even considering
prospect of
success, then this is it. When, in an application for Condonation
the delay is excessive and an explanation been
given for that delay
or an “explanation” has been given, but such explanation
amounts to no explanation at all, I
do not think it is necessary to
consider the prospects”
[8]
Annexure ‘D1’
at page 34 - Pleadings
[9]
Annexure ‘BN1’
to the Answering Affidavit