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[2019] ZALCJHB 237
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Makapela v Fourie NO and Others (JR452/17) [2019] ZALCJHB 237 (28 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JR
452/17
In
the matter between:
LOYISO
MAKAPELA
Applicant
and
COMMISSIONER
ANNA MARIA FOURIE N. O
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION Second
Respondent
THE
UNIVERSITY OF FREE STATE (“UFS”) Third
Respondent
Heard
:
22 August 2019
Delivered
:
28 August 2019
Summary:
Application for review of an award with regard to an alleged
unfair labour practice – the award is one that a reasonable
commissioner
may arrive at. Costs – vexatious and frivolous
application. Held: (1) The application for condonation and review is
dismissed.
(2) The applicant to pay the costs of the application.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
The applicant, a highly qualified lawyer alleged that the University
has
committed an unfair labour practice relating to promotion against
her. She referred the dispute to the Commission for Conciliation,
Mediation and Arbitration (CCMA) for resolution. The commissioner
found that the applicant was not subjected to an unfair labour
practice. Aggrieved thereby, she approached this Court, outside the
prescribed period, for relief to review and set aside the award
made
by the commissioner. The application is opposed by the University.
Background
facts
[2]
The applicant is a former student of the University. Around November
2012,
the University advertised 2 posts of a lecturer in the
Department of Constitutional and Philosophy of Law in the Faculty of
Law.
The applicant applied for one of the posts. She was shortlisted
and interviewed but was not successful. At that time the applicant
was a holder of Bachelor of Laws and Master of Law (International
Economic Law) degrees.
[3]
Shortly thereafter, she was offered and accepted a position as a
junior
lecturer in the Department of Mercantile Law. She commenced in
that junior lecturer position in April 2013. Around September 2013,
the University awarded her scholarship to read for another Masters
degree in the United Kingdom. She remained in the United Kingdom
for
a period of a year. She returned to the University around October
2014. Shortly thereafter she applied for a promotion to the
post of a
lecturer. Effective 1 January 2015, she was appointed a lecturer in
the Department of Mercantile Law. In her application
for promotion,
she raised a complaint that she should have been appointed as a
lecturer at the commencement of her appointment
in accordance with
the criteria outlined in the Evaluative Standards contained in the
University’s Academic Promotions Document
Version 4L (APDV4L).
This complaint was investigated and a conclusion was reached on 2
November 2015 to the effect that there were
no irregularities in the
application of APDV4L. Dissatisfied with the conclusion, the
applicant referred a dispute alleging unfair
labour practice.
[4]
The first respondent was appointed to resolve the dispute through
arbitration.
A jurisdictional point was unsuccessfully raised by the
University. After hearing evidence, the first respondent published a
detailed
and lengthy award, which is now impugned by the applicant.
The first respondent concluded therein that the applicant failed to
prove on the balance of probabilities that the University perpetrated
an unfair labour practice against her. She ordered the applicant
to
pay the legal costs of the University in the amount of R6000.00.
[5]
The applicant received the impugned award on 25 November 2016. In
terms
of the Labour Relations Act (LRA), she had six weeks from that
day to seek a review of the award. The said six weeks’ period
expired on 6 January 2017. The applicant only launched the
application around May 2017. Owing to that she sought condonation for
the late filing of the application. As pointed out above, the
application was opposed by the University.
Grounds
of review
[6]
In her founding papers, the applicant did not specify which would be
her
grounds for review. What the Court could decipher is her
complaint that the first respondent did not offer her assistance as a
person who lacked the necessary experience to deal with the matter,
and because the first respondent failed to advise her, she did
not
act as a reasonable commissioner. She concludes that the ruling or
award is not one a reasonable decision maker could ever
make.
Evaluation
[7]
This Court does not have jurisdiction to entertain a review launched
outside
the prescribed period unless the failure is condoned by the
Court. In her founding affidavit, the applicant dedicated three
paragraphs
towards the asking for condonation. Her explanation of the
delay therein is wholly inadequate and unacceptable. She chose to
consult
with an attorney on an undisclosed date in December 2016. The
information provided is sparse and scanty. Other than a bald
allegation
that she possesses excellent prospects of success she
provides no actual information in support of the allegation. The
explanation
is so weak that it actually amounts to no explanation at
all and therefore condonation can never be granted where an
explanation
is bereft.
[8]
Since the
applicant failed to provide an explanation, this Court lacks
jurisdiction to entertain this application. Even if the Court
was
minded to exercise jurisdiction, the award is not reviewable in law.
The transcript reveals that the first respondent explained
the
process
[1]
to the parties and
the applicant was effectively assisted by this explanation. The
applicant is a lawyer by profession and could
have enlisted the
services of a legal representative if she wished to have one. The
award of the first respondent is detailed and
perusal thereof points
to the fact that it is one that a reasonable decision maker can
arrive at.
[9]
The applicant did a disservice to herself by representing herself in
this
Court. It took the Court almost half an hour to follow any of
her submissions. She did not have her own papers. She could not refer
the Court to the relevant documents in the record. Effectively, she
was ill prepared.
[10]
It was truly difficult to understand her claim for unfair labour
practice. The policy,
APDV4L did not support her contention that in
2013, she ought to have been appointed as a lecturer. She was not
eligible for promotion
as prescribed in the policy. She only entered
the University in 2013 as a junior lecturer. At that time, she never
held any permanent
academic appointment before as required by clause
68 of APDV4L. Her claim was frivolous from the get go and she
unfairly dragged
the University to this Court in order to defend a
meritless case. This conduct is one that invites this Court to make
an order
as to costs.
[11]
When it comes to costs, this Court possesses a wide discretion. This
is one of those hopeless
cases that come to this Court. The dictates
of the law and fairness commands that an order as to costs must be
made. The applicant
is an admitted Advocate of the High Court. She
chose to represent herself in this matter, an unwise decision in the
Court’s
view. In her own papers she states that she lacks
experience in labour litigation. With that assertion, it baffled me
why she chose
to be counsel in her own matter. Her heads of argument
were only provided to the Court on the day of argument. In the heads,
she
raised irregularities that do not appear in her founding papers.
Clearly, the applicant’s conduct in this matter is one that
warrants a cost order. It would be unfair to mulct the respondent
with the costs of this ill-conceived litigation.
[12]
The first respondent expressed concern about the applicant’s
conduct before awarding
costs against her. It does seem that the
applicant did not take a lesson out of that. The first respondent was
entitled to make
an order of costs against the applicant. Similarly,
I take a firm view that a cost order is warranted in this
application.
[13]
In the results, the following order is made:
Order
1.
The application for condonation is dismissed.
2.
The application for review is subsequently
dismissed.
3.
The applicant is to pay the costs of the application.
______________________
G. N. Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant
: In Person (roped as counsel) (heads
signed by L A Roux)
Instructed
by
: R Green Attorneys, Bloemfontein.
For
the 3rd Respondent : Mr T Mokwayi of Phatshoane Henney
Attorneys, Bloemfontein.
[1]
Paragraph 2 of the award records this.