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[2019] ZALCCT 35
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National Department of Labour v Public Servants Association of South Africa obo Bobani and Others (C679/17) [2019] ZALCCT 35 (12 November 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case no: C679/17
In the matter between:
THE
NATIONAL DEPARTMENT OF LABOUR
Applicant
And
THE PUBLIC SERVANTS
ASSOCIATION OF
SOUTH
AFRICA OBO ABEGAIL BOBANI
First Respondent
GENERAL PUBLIC SERVICE
SECTORAL
BARGAINING
COUNCIL
Second Respondent
CM
BENNET
N.O.
Third Respondent
Date
heard: 1 August 2019
Delivered:
12 November 2019
JUDGMENT
RABKIN-NAICKER,
J
[1]
On the 24 August 2018, I ordered that the review application under
the above case
number was deemed to have been withdrawn and gave
leave to the applicant to apply to resuscitate the review. The notice
of application
in the matter before me seeks the following relief:
“
1.
That the Applicant’s review application under case number
679/17 is and be hereby
reinstated and/or revived from the date of
this order.
2.
Condoning the Applicant’s failure to file the balance of the
record in
accordance with the Labour Court Rules and the Labour Court
Practice Manual.
3.
Directing that the Applicant file and served the balance of the
record in accordance
with the Rules of this Court and the Practice
Manual.”
[2]
The first respondent opposes the application on the basis that the
Department has
failed to provide any reasonable explanation for the
delay in prosecuting the review application.
[3]
The explanation for the delay in filing the record in this matter is
a rather tortuous
one to travail. For the purposes of this judgment,
I need only deal in detail with the said explanation or lack thereof,
for the
period January 25 2018 to June 7 2018. In order to do so it
is necessary to record the averments made in the founding papers as
follows:
“
36.9
On or about 25 January 2018, the attorneys on behalf of Bobani
enquired from the Applicant’s attorneys about
the balance of
the record and the transcript.
36.10
The Applicant accepts that at the time when the enquiry referred to
supra
, was
made, it still awaits the balance of the record.
36.11
The Applicant also acknowledge that, ideally, it should have
continued with the written correspondence wherein it should have
informed Bobani that it still awaits the balance of the record. This
was, however, not done.
36.12
However, in attempts to fully comply with the obligations to file the
record, I understand that the Applicant’s sought
to procure the
balance of the record from the transcribers.
36.13
To the above end, the attorneys on behalf of the Applicant
telephonically and otherwise in or during January to April 2018
(including May 2018) contacted the transcribers about the balance of
the record. Despite the enquiries about the balance, the transcribers
did not produce the balance, until June 2018.
36.14
The Applicant accepts that in retrospect the attorneys should have
communicated more regularly with Bobani’s attorneys
about their
attempts to obtained the balance of the record. This was not done.
36.15
The Applicant also accepts that when the balance was not delivered by
mid-January 2018, this might have (erroneously) created
an impression
that the balance would not be produce.
36.16
I confirm that the balance of the record was only filed on the 7
th
of June 2018 (almost four to five months after the other portion of
the record was filed on or about 20 December 2017).”
[4]
It must be borne in mind that the applicant received a notice in
terms of Rule 7A(5)
from the Labour Court with a CD to be transcribed
for the purposes of the review on the 27 November 2017. It was sent
to the transcribers
on the next day. The complete record thus took
some seven months to be delivered.
[5]
The applicant has provided no supporting evidence in relation to the
averments above
i.e. copies of case notes as to when the transcribers
were contacted. There is no confirmatory affidavit from the
transcribers
in relation to calls made to them. There are no specific
dates given as to when the matter was followed up. There is a
standard
confirmatory affidavit by the state attorney responsible for
the matter which takes its case no further.
[6]
In addition to my observations above, there are further no averments
as to any initiatives
by the applicant department to follow up on the
progress of its review application. Yet the founding affidavit claims
that: “This
matter is of great importance to the Applicant and
as such, would to see it to its conclusion.” (sic)
[7]
The award sought to be set aside in the main application was made
after a referral
to arbitration of an unfair labour practice dispute.
It reads as follows:
“
The
first respondent committed unfair labour practices by suspending
applicant without pay and further by demoting her. In addition,
it
acted in breach of its own procedures in the way it administered the
hearing and/or implemented the resultant sanctions.
Applicant
is seeking reinstatement to her appointed position with retrospective
payment. That is so ordered.
Applicant
is to return to her position as Deputy Director, Human Resource
Management, with effect from 1 October 2017.
The
first respondent is ordered to pay applicant, by no later than 31
October 2017, the difference in salary between that which
she has
been paid and that which she would have been paid had she not been
demoted, which sanction is hereby overturned. This calculation
to an
amount of R594 697,00 (Five Hundred and Ninety Four Thousand,
Six Hundred and Ninety Seven Rand); and
The
above figure is calculated thus: Grade 12 salary of R806 061,00
less Grade 9 salary of R311 784,00 from 1 August
2016 to 31 March 2017, a period of 8 (eight) months plus Grade 12
salary of R864 903,00 less Grade 9 salary of R334 545,00
from 1 April 2017 to 30 September 2017, a period of 6 (six) months.
In
addition, first respondent is ordered to pay applicant by no later
than 31 October 2017, a monthly salary at level 12, an amount
of
R67 171, 75 (Sixty Seven thousand, One hundred and Seventy One
Rand and Seventy Five Cents), in respect of the period of
unpaid
suspension, which sanction is overturned. This is calculated on the
Grade 12 salary of R806 061 – divided by
12.
With
these factors in mind, in addition, the back-pay awarded above, first
respondent is ordered to pay applicant by no later than
31 October
2017, a solatium equivalent to two months salary at Grade 12, an
amount of R144, 150,50 (One hundred and Forty Four
Thousand, One
Hundred and Fifty Rand and fifty Cents),’(864 903,00
divided by 12 x 2)”
[8]
When I considered the application brought by the first respondent on
August 24 2018, I indicated
my displeasure with the Applicant’s
conduct of the matter by means of a punitive costs order. The first
respondent has emphasized
in its answering papers that the
explanation for the excessive delay in delivering the record in this
application, differs from
that offered on behalf of the Department in
the first application. Counsel for the applicant submitted that I
should not deal with
these contradictions as the matter was
res
judicata
. I note that this cannot be correct given that I was
concerned with an application to deem the matter withdrawn in the
first hearing,
a different cause of action, and with a different
remedy. However, it is not necessary for me to determine this
application with
regard to the alleged contradictions.
[9]
It is evident from all of the above that no reasonable explanation
has been given for the excessive
delay from the 25 January to the 7
June 2018 for the purposes of the granting of condonation in this
matter. It is trite therefore
that it is not necessary for me to
consider the prospects of success on review in such a case.
[1]
Both the Department and the State Attorney were content to remain
supine once the review was launched, despite attempts made on
behalf
of the first respondent to obtain the necessary record. Not only does
this fly in the face of the principle of speedy resolution
of
disputes, the said conduct has manifestly prejudiced the first
respondent. In these circumstances, the application must fail.
This
is a matter in which it is equitable to award costs to the successful
party despite the ongoing relationship between the parties,
given the
conduct by the State. I therefore make the following order:
Order
1.
The application for the revival of the
review application under case number C67/2017 is dismissed with
costs.
_________________
H. Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
C Tsegarie instructed by the State Attorney
First
Respondent: Malcom Lyons & Brivik Inc
[1]
See
for example National Education Health & Allied Workers
Union on behalf of Mofokeng & others v Charlotte H
Theron
Children’s Home (2004) 25 ILJ 2195 (LAC) at para 23.