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[2019] ZALCJHB 327
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Maila and Others v City of Johannesburg and Others (JR1716/13) [2019] ZALCJHB 327 (22 November 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 1716/13
In the matter between:
T H MAILA AND 3
OTHERS
Applicants
and
THE CITY OF
JOHANNESBURG
First Respondent
COMMISSIONER MG
RABYANYANA
N. O
Second Respondent
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL
Third Respondent
Delivered:
22 November 2019
JUDGMENT
TLHOTLHALEMAJE,
J
[1]
The applicants seek an order reviewing and setting aside the ruling
of
the second respondent (Commissioner Rabyanyana) issued under
the auspices of the third respondent (SALGBC). They further seek
an
order that their late referral of a dispute to the SALGBC be
condoned. In the alternative, they seek an order declaring that
the
SALGBC has jurisdiction to determine the condonation application, and
referring the matter back to it to be heard
de novo
before
another commissioner.
[2]
The dispute between the parties has a protracted history dating back
to
2004. It has its source in the respondent’s Johannesburg
Metropolitan Police Department’s (JMPD) decision to stop paying
risk allowances to the individual applicants. It is not necessary for
the purposes of this judgment to deal with the details of
the dispute
other than to highlight the following common cause facts;
2.1
The individual applicants are employed by the respondent, City of
Johannesburg
in different capacities in its JMPD. They were
previously employed in the Traffic Department of the erstwhile Soweto
City Council,
where they used to be paid a risk allowance equivalent
to 5% of their monthly basic salary.
2.2
The Soweto City Council was amalgamated into the City of
Johannesburg. The individual
applicants were then transferred to the
JMPD, which was formed in 2001. Their terms and conditions of
employment remained the same,
other than the fact that with effect
from June 2004, the payment of the risk allowance was stopped in
respect of some of the individual
applicants, and again in
February 2012 in respect of the others.
2.3
Flowing from several discussions between the individual applicants
and the respondent’s
management, and the failure to resolve a
grievance that was lodged by the applicants in 2012, an alleged
unfair labour practice
dispute was then referred to the SALGBC on
20 March 2013, in which it was recorded that the dispute
arose on ‘
1 March 2013 and continuing wrong’
(Sic
)
.
2.4
The matter came for conciliation on 25 April 2013 before
Commissioner
Hlatshwayo. Following a preliminary point raised by the
respondent in those proceedings in regards to the late referral of
the
dispute, Commissioner Hlatshwayo issued a ruling and held that
the SALGBC lacked jurisdiction to hear the matter in the absence
of
an application for condonation. This was despite the fact that as can
be gleaned from the ruling, Commissioner Hlatshwayo
had dealt
with the preliminary point as if there was such an application before
him.
2.5
Following Commissioner Hlatshwayo’s ruling, the individual
applicants
then filed a substantive application for condonation in
April 2013, which the respondent had opposed by filing an
equally
substantive answering affidavit. The individual applicants
also filed a replying affidavit.
2.6
The application came before Commissioner Rabyanyana on 3 June 2013,
who had issued a ruling on 5 June 2013, in terms of which
the application for condonation was dismissed on the basis
that the
earlier ruling issued by Commissioner Hlatshwayo stood. Commissioner
Rabyanyana further reasoned that;
2.6.1
When the matter first came for conciliation and upon the preliminary
point having been raised, Commissioner
Hlatshwayo had dealt with the
application for condonation of the late referral of the dispute by
considering submissions made before
him, and had found that the
SALGBC lacked jurisdiction.
2.6.2
The subsequent application for condonation was erroneously lodged as
the matter was dealt with by Commissioner
Hlatshwayo. To revisit the
condonation application therefore would amount to acting outside of
her powers.
2.6.3
If the
applicants were not contend with the condonation ruling of
Commissioner Hlatshwayo, they had the option to seek a variation
or
rescission of that ruling under the provisions of section 144(a) to
(c) of the Labour Relations Act (LRA)
[1]
,
or alternatively, to have it reviewed.
[3]
In determining whether the above ruling is reviewable, it is correct
as
submitted on behalf of the respondent, that Commissioner
Rabyanyana’s ruling must be considered in the context of the
earlier
condonation ruling of Commissioner Hlatshwayo, to the extent
that the latter was called upon to determine whether or not the
SALGBC
had jurisdiction to hear the matter in the absence of a
condonation application.
[4]
The respondent further contended that there is no merit in the
applicants’
submission that Commissioner Rabyanyana
misunderstood and/or failed to apply her mind to the objective facts
when determining that
the SALGBC lacked jurisdiction. It was argued
that at the conciliation hearing before Commissioner Hlatshwayo, and
after the preliminary
point was raised, the applicants did not seek
an opportunity to bring a formal application for condonation, and had
instead argued
that the issue be decided in the absence of a formal
application. It was on those grounds that Commissioner Hlatshwayo had
issued
his condonation ruling.
[5]
It was further submitted on behalf of the respondent that even if
Commissioner
Rabyanyana was wrong, and that Commissioner Hlatshwayo’s
ruling should have been read and interpreted to imply that the
applicants
were obliged to bring an application for condonation, that
application should in any event be dismissed. It was submitted that
since a complete set of the papers in respect of the condonation
application was before the Court, there was no merit in remitting
the
matter back for reconsideration, and that the Court was in a good
position to determine and dismiss it.
[6]
Certain difficulties however arise with this review application. The
first
is that as apparent from her ruling, Commissioner Rabyanyana
did not deal with the merits of condonation application at all. She
had only based her reasoning on a reading and interpretation of
Commissioner Hlatshwayo’s ruling. The basis of the dismissal
of
the application was essentially that the matter had been determined
by Commissioner Hlatshwayo. The second difficulty in this
regard is
that the latter’s ruling is not the subject of these review
proceedings. In these circumstances, it is not for
this Court to deal
with the merits of the condonation application as suggested by both
parties, in the light of the uncertainties
created by the ruling of
Commissioner Hlatshwayo.
[7]
These difficulties are highlighted in view of what the applicants’
case is in seeking to have Commissioner Rabyanyana’s ruling set
aside. First, it was argued that it cannot be correct as
Commissioner
Rabyanyana had found, that it was common cause that Commissioner
Hlatshwayo had issued a condonation ruling. This
contention lacks
merit, as clearly, Commissioner Hlatshwayo ruling is titled
“
Condonation Ruling
”, and as can further be
gleaned from that ruling, the Commissioner dealt with factors
relevant for consideration in such
applications, as if there was an
application before him.
[8]
It is however common cause that there was no condonation application
before
Commissioner Hlatshwayo, and whether his ruling in that regard
was dispositive of the matter or whether flowing from that ruling
it
can be inferred that the applicants were entitled to file an
application for condonation, is not easily discernable for the
ruling, nor is it a matter for this Court to determine, as that
ruling is not the subject of these review proceedings.
[9]
The applicants further contend that Commissioner Hlatshwayo stated in
his ruling that the SALGBC did not have jurisdiction in the absence
of condonation being sought, and that it was illogical that
he would
have made such a finding when he had made a determination on
condonation in any event. The applicants’ submissions
in this
regard raises serious concerns with some of the rulings that this
Court is routinely called upon to review and set aside.
A
commissioner’s decision to grant or refuse condonation is by
its nature final and binding, unless obviously taken on review.
Such
rulings can be dispositive of disputes or at most, afford a party an
opportunity to pursue a matter. Given the importance
of these
rulings, inasmuch as it is accepted that Commissioners must give
brief reasons for their decisions, at the same time,
it is expected
of such rulings to be issued in clear and unambiguous terms, so as to
enable the parties to the dispute to determine
whether any further
steps should be taken in respect of that dispute.
[10]
Thus, if the application for condonation was dealt with by
Commissioner Hlatshwayo in circumstances
where it is alleged that the
applicants chose not to file an application but to argue the matter
from the ‘bar’, then
surely it would have been expected
of Commissioner Hlatshwayo to unambiguously state that the
application was dismissed, rather
than simply coming to a conclusion
in his analysis to the effect that the SALGBC had ‘
no
jurisdiction to hear the matter in the absence of an application for
condonation’
. The terms of the ruling are clearly ambiguous
and open to any interpretation.
[11]
In the light of the above difficulties arising from a lack of clarity
in Commissioner Hlatshwayo’s
ruling, one cannot therefore find
fault with Commissioner Rabyanyana’s conclusions that her hands
were tied, and that the
doctrine of
functus officio
applied.
Once a ruling was made by Commissioner Hlatshwayo that the SALGBC had
no jurisdiction to hear the matter, in the absence
of any clarity
sought by the applicants in respect of Commissioner Hlatshwayo’s
ruling, that ought to have been the end of
the matter.
[12]
To the extent that the applicants had subsequently filed a
substantive application for
condonation, without first seeking
clarity in Commissioner Hlatshwayo’s ruling, Commissioner
Rabyanyana was therefore correct
in concluding that if they were
aggrieved with the first ruling, they were at liberty to invoke the
provisions of section 144 of
the LRA rather than merely filing an
application for condonation. To be precise, the provisions of section
144(b) of the LRA would
have been more appropriate in the light of
ambiguities in Commissioner Hlatshwayo’s ruling.
[13]
In the light of the above considerations, it follows that there is no
basis for this Court
to interfere with Commissioner Rabyanyana’s
ruling. I have further had regard to the requirements of law and
fairness in
regards to costs, and I am of the view that a costs order
is not warranted given the circumstances of this case.
[14]
Accordingly, the following order is made;
Order:
1. The
application to review and set aside the condonation ruling dated
3 June 2013 issued
by the Second Respondent under case
number JMD 041301 is dismissed.
2. There
is no order as to costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants:
J
Ewang of Hogan Lovells (South Africa) Inc
For
the First Respondent:
C Beckenstrater of Moodie &
Robertson
[1]
Act 66 of 1995 (as amended)