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[2019] ZALCJHB 254
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Department of Correctional Services v Solidarity obo Taljaard and Others (JR2554/2018) [2019] ZALCJHB 254 (13 September 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 2554/2018
In
the matter between:
DEPARTMENT
OF CORRECTIONAL SERVICES Applicant
And
SOLIDARITY
OBO HJ TALJAARD First
Respondent
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
Second
Respondent
MSIZA
BHEKI
N.
O
Third
Respondent
Heard:
27 August 2019
Delivered:
13 September 2019
JUDGMENT
MABASO,
AJ
Introduction
[1]
This is an interlocutory application brought by the First Respondent,
seeking among
other things an order that the arbitration award issued
under the auspices of the Second Respondent under case number GPBC
829/2017
be made an order of Court in terms of section 158(1)(c) of
the Labour Relations Act
[1]
(LRA). The Respondent, who is an applicant in the review application,
is opposing this application.
[2]
On 22 March 2018, Commissioner Bheki Msiza issued the arbitration
award in favour
of Mr HJ Taljaard following an unfair labour dispute
that he had declared against the Respondent. The dispute emanates
from the
non-implementation of occupations specific dispensation
(OSD) for Correctional Services Officials which was signed off by the
unions
and the Respondent on 24 June 2009.
[3]
The Respondent avers that it received the arbitration award on 12 May
2018. In February
2019, nine months later, it launched a condonation
application for the late delivery of a review application, but no
review application
was launched. No steps were taken to prosecute the
same condonation application. At the time this Rule 11 application
was delivered
in June 2019, the Respondent had not delivered the
review application. On 18 February 2019, the Applicant served and
filed a notice
of opposition to the condonation application. On or
about 20 March 2019, the Applicant notified the Respondent that it
would no
longer oppose the condonation application and requested that
it be served with the review application.
[4]
On 9 April 2019, the Applicant transmitted a correspondence to the
Respondent notifying
the Respondent that no review application has
been delivered and requested for an update in respect of the progress
in this regard.
On 15 April 2019, the Applicant dispatched another
correspondence to the Respondent reiterating that they had not
received the
review application and warned the Respondent that if no
review application is delivered, then this application was to be
launched.
However, the Respondent did not comply with the Applicant's
warning.
[5]
On 30 April 2019, the Applicant sent another email to the Applicant
indicating again
that no review application had been launched. On 9
May 2019 another correspondence was sent to the Applicant wherein the
Respondent
was notified that it was in the process of bringing a Rule
11 application "
as [the respondent] has no intention in
pursuing this review application
", however, the Respondent
neither responded to this letter nor delivered a review application.
On 21 May 2019, Mr Proffessor
Nkowane of the Respondent advised Ms
Nicolette Ras that the review application was sent to the Applicant
on 15 February 2019, however,
later it transpired that this was not
correct.
[6]
By 25 June 2019, no review application had been delivered by the
Applicant and this
necessitated the Applicant to bring this
application which, among other things, is to make the arbitration
award an order in terms
of section 158(1)(c) of the LRA, as the
Applicant avers that the Respondent has no intention of prosecuting
the review application.
Therefore, Mr Taljaard is being prejudiced by
this failure. Mr Taljaard further states that he has no other option
but to approach
this Court, as the Respondent has failed to abide by
the arbitration award.
[7]
The registrar of this Court issued a notice of set down on 17 July
2019 advising the
parties that this application was to be heard on 27
August 2019. Four days before the set down date, on 23 August 2019,
the Applicant
delivered the review application which was not even
accompanied by an application to stay the enforcement of the
arbitration award
or a notice advising this Court that it has
complied with the provisions of section 145 (7) read with ss (8), or
an application
for exemption from paying the security bond.
[8]
The Respondent also delivered an answering affidavit to the
application before this
Court, wherein they aver, among other things
that the late delivery of the answering affidavit be condoned. The
Applicant has not
registered any objection to the late delivery of
the answering affidavit. The Respondent blames the office of the
state attorney
for failure to speedily prosecute the review
application and raised a number of internal mishaps within the state
attorneys office.
They further state that the interest of justice
does not permit the granting of the order prayed for considering that
Commissioner
Msiza ordered it to pay an amount of R1 045 386.00 to Mr
Taljaard.
[9]
As the matter was set down on an unopposed motion roll, the answering
affidavit was
served on the union representative at Court, and she
indicated that she did not require an opportunity to deliver the
replying
affidavit and she was ready to argue the matter. In the
interest of justice and to avoid further delays, this Court proceeded
with
the matter now as opposed.
[10]
This Court has the discretion to make an arbitration award an order
of Court even if there is
a review application pending. If this Court
makes such arbitration award an order, the review application becomes
moot as this
Court cannot review an arbitration award that has been
made an order of Court in terms of section 158(1)(c) of the LRA,
unlike
an arbitration award certified in terms of section 143(1) of
the LRA as the certification of the award does not makes such award
an order of Court.
[11]
In deciding whether an arbitration award may be made an order of this
Court considering the interest
of justice which requires speedy
resolution of disputes under the LRA the circumstances of this matter
requires that I consider
the following questions: Is the alleged
defaulter aware of the award? Has it failed to comply with the terms
of the award? What
are the reasons for failure to comply? Is the
review application delivered on time, if not, why?
[12]
It is common cause between the parties that the Respondent received
the arbitration award, therefore,
it is aware of it. The respondent
has not complied with the terms of the award. The reasons for the
failure are that it intended
to bring a review application against
the award. It is also essential to look at whether the Applicant
intended to review the award.
The award was issued in March 2018, and
the Applicant alleges that it received the award in May 2018, no
review application had
been delivered by 25 June 2019, at the time of
the delivery of this application. In this Court, the interests of
justice require
that a party who was to exercise their rights must do
so speedily and if there is a delay, such delay must be adequately
explained.
The Respondent herein blamed its internal deficiencies
which has nothing to do with Mr Taljaard whose rights of enjoying the
benefits
of the arbitration award emanating from an OSD issue dated
back to 2009.
[13]
Considering that the issue that was referred to the Bargaining
Council was about an unfair labour
practice, and the Commissioner
made an order among other things that the Applicant should be paid an
adjustment with effect from
1 January 2018 following the OSD pay
progression. Now, the Respondent’s explanation in the answering
affidavit as to why
the review application was delivered on 28 August
2019 amounts to no explanation at all, and it boils down to
negligence on the
part of the state in prosecuting the review
application, as was correctly submitted by its Counsel during the
argument. Under the
circumstances, I conclude that it will be in the
interests of justice that the arbitration award should be made an
order of Court
to allow the employee his rights to enforce the terms
of the arbitration award.
[14]
During the argument, the union official contended, that the review
application be dismissed.
I have looked at the papers before this
Court and there is no averment in the affidavit which supports this
prayer as the review
application was delivered after this application
had been launched. Under these circumstances, I conclude that I
cannot dismiss
the review application. In respect of the remaining
prayers of the notice of motion, the union official correctly
conceded that
there were no supporting averments too.
[15]
The union official moved for the addition of another prayer, which is
for the Court to make an
order that the condonation application be
dismissed. I considered the application and am not in agreement with
the union official,
taking into account that in its papers the union
averred that it had no intention of opposing the condonation
application, and
there is nothing in the founding papers which
suggest that the condonation application should be dismissed.
[16]
In respect of the costs, I have to be guided by the provisions of
section 162 of the LRA, and
I am of the view that a costs order will
not be appropriate.
[17]
Wherefore the following order is made:
Order
1. The
arbitration award by Commissioner Bheki Msiza under the GPSSBC under
case number GPBC 829/2017 dated 22 March
2018 is made an order of
this Court.
2. The
registrar is directed to archive both the condonation application and
the review application delivered by the
Department of Correctional
Services under the above case number.
3. There is
no order as to costs.
____________________
S.
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Adv Makgate
Instructed
by:
Leepile Attorneys Inc
For
the Respondent: Ms Endres (Union Official)
Instructed
by:
Solidarity
[1]
No 66 of 1995, as amended.