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[2019] ZALCCT 10
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Head of Department: Department of Education Northern Cape Province and Another v Public Servants Association obo Luxton (C 463/14) [2019] ZALCCT 10 (9 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
No: C 463/14
In
the matter between:
HEAD
OF DEPARTMENT: DEPARTMENT OF
EDUCATION
NORTHERN CAPE PROVINCE
First
Applicant
MEMBER
OF THE EXECUTIVE COMMITTEE:
DEPARTMENT
OF EDUCATION, NORTHERN
CAPE
PROVINCE
Second Applicant
and
PUBLIC
SERVANTS ASSOCIATION obo LUXTON Respondent
Heard:
1 August 2018
Delivered:
9 May 2019
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The
applicants seek an order rescinding and setting aside the order of
this Court (per Steenkamp J) dated on 20 November 2014,
in
which the Court had reviewed and set aside the refusal of the first
applicant (the HOD for Education: Northern Cape) to reinstate
the
individual respondent (Ms Luxton) subsequent to her dismissal (for
alleged abscondment) in terms of the provisions of section
17(3)(a)(i) of the of the Public Service Act.
[1]
In terms of the Court order
[2]
,
the termination of Luxton’s services was declared unlawful, and
she was reinstated with retrospective effect from the date
of
termination of her services.
[2]
This application, which is opposed by the respondents, was brought in
terms of the provisions of rule 16A(1)(b) of the Rules of this Court.
The application ought to have been filed and served within
15 days of
the applicants becoming aware of the Order issued by default. The
rescission application was filed on 17 December 2017
and it
is therefore some three days outside the timeframes provided for in
terms of the Rules.
[3]
The application for condonation is not opposed and in the light of
the
delay being obviously insignificant, and further in the light of
the explanation proffered in that regard, I am satisfied that the
interests of justice dictate that condonation be granted.
Background:
[4]
Luxton was employed by the applicants as Head; Records and Security
Management
at the Department of Education in Kimberley since October
2008. She was suspended on 17 January 2013. She had then
through
her Union, the PSA, referred an unfair labour practice
dispute to the GPSSBC. In an arbitration award issued on
13 December 2013,
Commissioner Martinus van Aarde of the
GPSSBC found that the suspension of Luxton was an unfair labour
practice. An order was made
for her reinstatement together with
payment of an amount of two months’ salary as compensation. It
is common cause that the
applicants did not challenge the arbitration
award.
[5]
The services of Luxton were terminated on 4 March 2014 in
terms
of the deeming provisions of section 17(3)(a) of the Public
Service Act on the grounds of absconsion, following her alleged
failure
to report for duty in compliance with the arbitration award.
Luxton had made representations on 7 March 2014 and it is
common cause that the second respondent (MEC) had refused to
reinstate her upon considering her representations.
[6]
Luxton as assisted by the PSA approached this Court in June 2014
to seek an order reviewing and setting aside the decisions of the
applicants to terminate her services and the refusal to reinstate
her
subsequent to her representations. It is common cause that the review
application was unopposed, and was thereafter enrolled
for hearing on
the unopposed roll, resulting with the Order of Steenkamp J on
20 November 2014.
The
rescission application and submissions:
[7]
Founding and supporting affidavits were filed and served on behalf of
the applicants in support of the rescission application. In the
founding affidavit, Mr Onewang Mogatle(Mogatle), the Director: Legal
Services for the Department of Education: Northern Cape averred the
following;
7.1
The applicants were not aware of the review application until the
Office of
the State Attorney, and in particular, its Ms A Gxogxa,
received a notice of enrolment in respect of that application.
According
to Mogatle, at no stage did the applicants give
instructions or indicated that they were not opposing the matter.
7.2
As at the date of deposing to the founding affidavit, the applicants
had not
received any pleadings from the respondents.
[8]
Gxogxa from the Office of the State Attorney in Kimberly deposed to
the
supporting affidavit and averred that;
8.1.
The State Attorney received the notice of enrolment on
19 September 2014 from
the Registrar of this Court. It was
the first time on that date that the applicants became aware of the
review application.
8.2.
Upon receipt of the notice of enrolment, Gxogxa communicated
with Ms Bailey, an attorney
in the Office of the State Attorney in
Cape Town for the purposes of uplifting the documents in the court
file for copies to be
produced.
8.3.
On 22 October 2014, Bailey unsuccessfully made attempts to
uplift the court file.
On 3 November 2014, Gxogxa
instructed her office to communicate with an official of this Court
with the intention of
obtaining a copy of the review application and
the details of the respondents attorneys in Cape Town.
8.4.
On 3 November 2014, the applicants served their notice of
intention to oppose
the review application on the respondents’
attorneys of record, who are based in Bloemfontein.
8.5.
She averred that on 11 November 2014, the Court official
reverted with the incorrect
contact details of the respondents. On
15 November 2014, counsel on brief on behalf of PSA (Adv
Pieter Venter) indicated
to Gxogxa via email that the application
would proceed on the hearing date on unopposed basis in view of the
fact that the applicants
had failed to file an answering affidavit,
notwithstanding the fact that the notice of intention to oppose was
filed belatedly.
8.6.
On 17 November 2014, Gxogxa informed Adv Venter that the
applicants were not
served with the review application, or in the
alternative, that the State Attorney be provided with the proof of
service of the
review application. On the same date, Adv Venter
inquired from Gxogxa whether the applicants would be seeking a
postponement of
the review proceedings and further whether there was
a tender for costs in respect of the postponement. That was an
indication
to her that the respondents was amenable to a postponement
subject to a tender of costs.
8.7.
Later in the day on 17 November 2014, Adv Venter informed
Gxogxa that Ms Esme
Tobias, an official at the State Attorney’s
office in Kimberly had confirmed receipt of the review application
papers. He
further sent through proof of the facsimile for the
service of the review application. Further emails were exchanged in
respect
of the costs implications of the postponement.
8.8.
Gxogxa contends that on 19 November 2014, and a day before
the Court date, Adv
Venter asked her to contact him and she did so
without success. She then communicated a tender of costs to Adv
Venter and sought
an undertaking that the matter would be postponed
for purposes of preparing and filing an answering affidavit.
8.9.
She further averred that on 19 November 2014, she arranged
with Ms Bailey of
the Cape Town office to attend to the postponement
of the matter, further advising her that the matter would be
postponed by agreement.
It transpired that Ms Bailey failed to make
an appearance at the Court proceedings.
8.10.
Gxogxa averred that the applicants’ default should be condoned
as it was based on a
bona fide
belief that there was an
agreement to postpone the matter. She contends that Adv Venter was
aware of her instructions to oppose
the matter. She further alluded
to the difficulties she had experienced in having to rely on
correspondents since her office is
in Kimberly.
[9]
The Counsel for the respondents, Adv Petrus Venter deposed to the
opposing
affidavit and averred the following;
9.1
On 15 November 2014, his instructing attorney advised him
that the
State Attorney had filed a notice of intention to oppose the
review application without accompanying affidavit. He immediately
contacted the Office of the State Attorney to enquire what the
intention was. On 17 November 2014, the Office of the State
Attorney informed him that attempts were being made to uplift the
file and that their instruction was to oppose the application.
At
that stage, a notice of set-down had long been sent to the parties
and the applicants had not taken any steps.
9.2
On 17 November 2014, he again enquired from the State
Attorney whether
a postponement would be sought and whether costs
were to be tendered if that was the case. A response was received
from the State
Attorney on 19 November 2014 at about 09h55
enquiring whether matter would be postponed.
9.3
Adv Venter denied that there was any agreement on a postponement. He
averred
that he made unsuccessful attempts to contact the office of
the State Attorney to advise that there was no agreement on a
postponement.
Later in the day he had received an email requesting
him to submit a draft postponement agreement. He advised that there
was no
agreement on a postponement. He further denied that he or his
instructing attorney had any telephonic discussions with the State
Attorney in the morning of 20 November 2014. He denied that
there was any written agreement to postpone and that all
that he did
was to enquire from the State Attorney whether a postponement would
be sought as the notice of intention to oppose
was filed late.
9.4
The applicants according to Adv Venter were properly served with the
review
application and a Ms Tobias of the applicants had acknowledged
receipt thereof. The State Attorney did not file any formal
application for a postponement, had failed to appear in Court, and
had acted negligently and with tardiness.
Mootness
:
[10]
It was submitted on behalf of the respondents that following
Steenkamp J’s Order,
the applicants had complied thereafter as
Luxton was reinstated. It had been for over a period in excess of
three years since the
reinstatement. It was further submitted that
the matter has been deprived of practical significance or rendered
academic, and that
to have it decided now would not be in the public
interest. It was submitted that there is no live controversy between
the parties,
and that to have Luxton’s services terminated
again pending another determination would not serve any purpose in
the light
of the reason for termination and the period of her
reinstatement.
[11]
The
principles surrounding mootness are trite. A case is moot and
therefore not justiciable if it no longer presents an existing
or
live controversy which should exist if the court is to avoid giving
advisory opinions on abstract propositions of law
[3]
.
Thus, where there was no live controversy between the parties, and,
in the absence of any suggestion that any order might have
an impact
on the parties, the disputes between the parties were moot,
especially since future cases inevitably presented different
factual
matrixes and hence no purpose would be served in resolving the
dispute
[4]
. In
Ruta
v Minister of Home Affairs
[5]
,
it was reaffirmed that
that
mootness
is no absolute bar to determining an issue, and that the question is
whether the interests of justice require that it be
decided.
[12]
In the light of the common cause facts that Luxton as at the hearing
of this application
had been reinstated for over a period of three
years in accordance with the Steenkamp J’s Order of
20 November 2014,
the issue is whether it is in the
interests of justice to consider and determine the application under
these circumstances.
[13]
It is apparent that the practical effect of an order rescinding the
Order of Steenkamp
J would effectively be to remove Luxton from her
position after more than a period of four years, in circumstances
where the applicants
have not only failed to timeously opposed the
review application, but also where as shall be illustrated later in
this judgment,
the applicants have clearly displayed nonchalance and
negligence in attending to the review application before
20 November 2014.
To grant such an order in my view would
clearly not be in the interests of justice.
[14]
Of course it remains important for Luxton to remain in her position
in circumstances where
the applicants have reinstated her when they
should have immediately sought rescission and diligently acted in
that regard. To
the extent that the applicants have reinstated Luxton
after the 20 November 2014 Court order, I fail to
appreciate how
it is of importance to them to have Luxton removed
from her position. In the circumstances, I agree that the application
ought
to be dismissed on account of mootness.
Good
cause shown?
[15]
Even if I
may be wrong in regards to the issue of whether the matter is moot or
not, it is my view that the applicants have not
shown good cause
under the provisions Rule 16A(1)(b) of the Rules of this Court
[6]
for the application to succeed.
[16]
The explanation proffered by the applicants for their default is
hardly satisfactory. The
starting point is that the review
application despite it being served on them, remained unopposed as at
20 November 2014.
Even if the application was not received
by the responsible persons at the Office of the State Attorney or the
office of the applicants,
the application was properly served on the
Office of the State Attorney on 27 June 2014 as evident
from the affidavit
of proof of service deposed to by Carolina
Johanna Venter of the respondents’ attorneys of record. From
that affidavit, the
review application was received by one Esme
Tobias of the Office of the State Attorney, and it is not for the
respondents to guess
who in that office the application ought to have
been served on. There can therefore be no doubt that the application
was timeously
and properly served.
[17]
A second consideration is that a notice of set-down was sent to
both parties on 18 September 2018,
some two months prior to
the hearing date. This was after a notice of enrolment was filed and
served by PSA’s attorneys of
record on 13 August 2014.
Notwithstanding the notices of enrolment and set-down, it was common
cause that the notice
of intention to oppose the review application
was only filed and served a few days prior to 20 November 2014.
[18]
The constraints pertaining to the Office of the State Attorney in
Kimberley having to use
correspondents in Cape Town is hardly a
reasonable excuse. In the light of the timeline of events upon
receipt of the notices as
indicated above, all the excuses pertaining
to attempts to uplift the file or to obtain the contact details of
the respondents
are equally not reasonable, as all that was required
was for someone on behalf of the applicants to act with the necessary
urgency
to either file a notice of opposition, or to directly contact
the respondents’ attorneys whose details were clearly available
from the notices already mentioned, and to ensure that the matter
either gets properly opposed with the necessary application for
condonation, or at most to ensure that a proper application for a
postponement was filed.
[19]
The events from 15 November 2014 when Adv Venter on behalf
of the respondents
contacted the Office of the State Attorney and
until 20 November 2014 when the matter was heard further
demonstrate the
tardiness on the part of the Office of the State
attorney and the applicants in this matter.
[20]
The first issue is that as at 19 November 2014, it was
apparent to the Office
of the State Attorney, or at least to Gxogxa,
that a postponement had not been secured. No effort was made to file
and serve a
formal application for a postponement.
[21]
Even if Gxogxa had reason to believe that Adv Venter had agreed to a
postponement, it appeared
that she had washed her hands off the
matter, and left it to Ms Baily of the Cape Town Office to attend to
the matter to ‘confirm’
a postponement that in essence
had not been agreed upon. Bailey however did not attend to the
matter, and all that is before the
Court is Gxogxa’s averment
that Bailey informed her after the Court order was granted that she
did not manage to obtain someone
to attend the proceedings in her
absence.
[22]
No attempt
was made by Bailey to file a confirmatory affidavit to explain the
circumstances that led to her non-appearance in Court
before
Steenkamp J. Again, this in my view, points not only to sheer
tardiness but also negligence on the part of the Office of
the State
Attorney. The applicants’ counsel’s contention that there
was a misunderstanding between the Offices of the
State Attorney in
Kimberley and Cape Town can hardly be a reasonable excuse in the
light of the other surrounding factors. The
principle that a litigant
cannot be absolved from the negligence, ineptness and tardiness of
his or her chosen legal representative
is also applicable to this
case
[7]
.
[23]
In the circumstances, there is no basis for a finding to be made that
the explanation proffered
by the applicants for their default is
reasonable, or that they were not in wilful default.
On the other hand, an assessment of
the conduct
of the Office of the State Attorney as a whole, demonstrates that
there was less diligence and attentiveness to this
dispute, which
bordered on recklessness.
[24]
The issue of prospects of success in the light of the conclusions
reached in regards to
mootness, and in particular, the fact that
Luxton has since been reinstated in my view is equally academic.
Luxton’s services
were terminated on the basis of alleged
absconsion. The termination followed upon her reinstatement in terms
of the arbitration
award issued on 13 December 2013. The
applicants’ view is that Luxton failed to report for
duty in
compliance with the arbitration award, hence the deemed
discharge from duty was invoked in accordance with the provisions of
section
17(3)(a)(i) of the Act. It is common cause that Luxton had
made representations as to why her services should not be terminated
hence the review application. However, upon the default order having
been obtained, the applicants do not say much about the circumstances
that led to Luxton’s reinstatement. In fact, that issue is not
even addressed at all in the pleadings.
[25]
If the applicants felt so strongly about that termination, there
would have been no reason
to reinstate her. As already indicated, the
effect of granting the order that the applicant seeks would be
severely prejudicial
to Luxton , as she would have to be removed from
her position. This can neither be fair nor in the interests of
justice.
[26]
In the circumstances, the applicants’ application for a
rescission of Steenkamp J’s
Order of 11 November 2014
ought to fail. In regards to the issue of costs, it is trite that
this Court may make an award
of costs upon a consideration of the
requirements of law and fairness. In the light of the conclusions
reached in regards to mootness,
and the conduct of the Office of the
State Attorney in this matter, fairness dictates that the applicants,
and in particular, the
second applicant, be burdened with the costs
of this application.
[27]
Accordingly, the following order is made;
Order:
1. The late
filing of the application for rescission is condoned.
2. The
application for rescission of the Order of this Court issued on
11 November 2014 is dismissed with
costs.
____________________
Edwin Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the applicants: Adv. M Ngumbela,
instructed by the State Attorney: Cape Town
For
the Respondent: A Hechter of Andrie Hechter Attorneys
[1]
Act 103 of 1994 (as amended)
[2]
The order reads:
IT
IS ORDERED THAT
:
1.
The decision of the first respondent [HOD], taken on 4 March 2014,
to terminate the services
of the applicant’s member, AP
Luxton, is reviewed and set aside.
2.
The decision of the Second Respondent, taken on 25 March 2014,
not to reinstate the Applicant’s
member, AP Luxton is reviewed
and set aside.
3.
The termination of the Applicant’s member’s services was
unlawful.
4.
The Respondents are ordered to reinstate the Applicant’s
member retrospectively from the date
of termination of employment.
[3]
See
Coalition
for Gay and Lesbian Equality and Others v Minister of Home Affairs
and Others
2000 (2) SA 1
(CC) at 18, fn18
[4]
Independent
Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC);
2001 (9) BCLR 883
(CC) at para
11, where it was held that;
‘
This
Court has a discretion to decide issues on appeal even if they no
longer present existing or live controversies. That discretion
must
be exercised according to what the interests of justice require. A
prerequisite for the exercise of the discretion is that
any order
which this Court may make will have some practical effect either on
the parties or on others. Other factors that may
be relevant will
include the nature and extent of the practical effect that any
possible order might have, the importance of
the issue, its
complexity, and the fullness or otherwise of the argument advanced.
This does not mean, however, that once this
Court has determined one
moot issue arising in an appeal it is obliged to determine all other
moot issues.’
[5]
[2018] ZACC 52
;
2019 (3) BCLR 383
(CC);
2019 (2) SA 329
(CC) at
para 9
[6]
Rule16A(1) (b) provides:
The
court may, in addition to any other powers it may have-
(a)….
(b)
on application of any party affected, rescind any order or judgment
granted in the absence of that party.
[7]
See
Saloojee
v Minister of Community Development
1964(2) SA 135 (AD) at 141 B-H;
Superb
Meat Supplies cc v Maritz
(2004)
25 ILJ 96 (LAC)