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[2019] ZALCJHB 142
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Singo v Minister of Justice and Correctional Services and Another (JS107/18) [2019] ZALCJHB 142 (14 February 2019)
the
labour court of South Africa, johannesburg
judgment
Not
reportable
CASE
NO: JS 107/18
In the matter between:
TAKALANI
INNOCENT SINGO
Applicant
And
MINISTER OF JUSTICE AND
CORRECTIONAL
SERVCES
First
Respondent
NATIONAL COMMISSIONER OF
CORRECTIONAL
SERVICES
Second
Respondent
Heard:
12 February 2019
Judgment
delivered: 14 February 2019
JUDGMENT
VAN NIEKERK J
[1]
This is an application for default judgment. The application is
opposed by the respondent,
who seeks condonation for the late filing
of its notice of intention to oppose and answering affidavit.
[2]
On 6 April 2018, the applicant filed a statement of claim. He states
that he worked
for the respondent from 18 September 2006 until 30
June 2015. The papers disclose that the applicant submitted a letter
of resignation,
for personal reasons, on 31 May 2015.
[3]
The applicant states that he wishes to be re-employed by the
respondent. He avers
that during May 2017, the respondent issued a
memorandum regarding the re-employment of former members of the
respondent and that
he felt ‘entitled’ to the opportunity
to apply. He avers further that during August 2017, he sought
employment at various
regional centres, but to no avail.
[4]
In so far as prior conciliation is concerned, the applicant states
that he engaged
with the Public Service Commission, and that he
lodged a complaint with the presidential hotline. Neither engagement
resulted in
a resolution of his dispute.
[5]
The applicant seeks re-employment backdated to June 2017, and
compensation in the
sum of R1.7 million, for what he contends to be
an unfair dismissal and unfair labour practice. At the hearing of the
application,
the applicant abandoned the claim based on unfair
dismissal, but pursued what he contended to be an unfair labour
practice on the
part of the respondent.
[6]
The delay in filing the notice to oppose the default judgment
application is explained
on the basis of what appears to be a failure
by a human resources manager employed by the respondent to receive an
email concerning
the filing of the application. He states that it was
only some 12 months later, when the notice of set down was received,
that
he became aware of the application. The reliance on what is
referred to as ‘human error’ does not amount to a
satisfactory
explanation for what is an inordinate delay. But that is
not the end of the enquiry. The applicant’s prospects of
success
must be evaluated and considered with the other relevant
factors.
[7]
In my view, the applicant has no prospects of success. First, the
Constitutional Court
has emphasised a proper referral for
conciliation, either to the CCMA or a bargaining council having
jurisdiction, prior to the
referral of a dispute to this court. The
applicant has provided no proof of such a referral – his
efforts at conciliation
in the form of an approach to the PSC and the
presidential hotline do not meet the jurisdictional requirement of
prior conciliation.
(See
National Union of Metalworkers of SA v
Intervalve (Pty) Ltd
[2015] 3 BLLR 205(CC).)
[8]
Secondly, the application for default judgment discloses no cause of
action that is
justiciable by this court. In so far as the applicant
contends that the respondent has committed an unfair labour practice,
disputes
of that nature must necessarily be determined by arbitration
either in the CCMA or a bargaining council with jurisdiction (see s
191). Section 157 (5) provides that where the Act requires a
dispute to be determined by arbitration, this court has no
jurisdiction.
[9]
In any event, the there is no merit to the applicant’s claim.
In essence, he
states that he voluntary resigned from the
respondent’s employ, and that he now wishes to be re-employed.
In the absence
of any refusal by an employer to re-employ an employee
as provided in terms of an agreement ( see 186 (2) (c)), the
applicant has
no right to any position in the respondent’s
establishment, either on the basis of the unfair labour practice
provisions
of the Act or any other. There is no agreement between the
applicant and the respondent (or any other party for that matter)
that
provides for the applicant’s reinstatement. The memorandum
on which the applicant relies is no more than an internal directive
on guidelines to be applied when former employees apply for vacant
posts within the department. The policy is not an invitation
to apply
for vacant posts, nor were there any vacant posts for which the
applicant applied.
[10] For
the above reasons, the applicant’s prospects of success are
non-existent and the application
for condonation accordingly stands
to be granted, and the application for default judgment dismissed. In
relation to costs, the
court is ordinarily reluctant to make orders
for costs against individual employees who pursue what they perceive
to be their rights,
in good faith. I have serious doubts about the
applicant’s good faith. He is clearly aware of the hopeless
nature of his
claim, yet he chose to persist with it. The opposition
to his claim has been funded by the taxpayer. In these circumstances,
the
interests of the requirements of the law and fairness would
require that the applicant pay the respondent’s costs. The only
reason that inclines me to make no order as to costs is the
respondent’s failure to act with the required degree of
diligence
I make the following order:
1.
The late filing of the notice of opposition
and answering affidavit in the application for default judgment is
condoned.
2.
The application for default judgment is
dismissed.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: In Person
For the respondent: Adv. T A Phefadu
instructed by State Attorney.