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[2019] ZALCPE 9
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Islam v Public Health and Social Development Sectoral Bargaining Council and Others (PR216/2014) [2019] ZALCPE 9 (27 March 2019)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not
reportable
Case
no: PR 216 /2014
In the matter between:
SIRAJUL
ISLAM
Applicant
and
THE PUBLIC HEALTH AND
SOCIAL
DEVELOPMENT
SECTORAL BARGAINING COUNCIL
First Respondent
J N MATSHEKGA
N.O
Second
Respondent
T MALGAS
N.O
Third
Respondent
DEPARTMENT OF HEALTH:
EASTERN CAPE
Fourth Respondent
THE
SUPERINTENDANT-GENERAL OF THE
DEPARTMENT OF
HEALTH
Fifth
Respondent
THE ACTING CEO OF KOMANI
HOSPITAL
Sixth Respondent
Heard: 31 January 2019
Delivered: 27 March
2019
JUDGMENT
PRINSLOO, J
Introduction
[1]
The Applicant was employed by the Fourth
Respondent (the Department) in May 2008 as chief medical officer at
the Komani Hospital
in Queenstown.
[2]
The Applicant fell ill during August 2012
and reported for duty until 17 August 2012. He consulted a
specialised psychiatrist, Dr
Crafford, on 21 August and he was
diagnosed as suffering from ‘
bipolar
type II mood disorder major depression’
.
Dr Crafford issued a sick note wherein he recorded that the Applicant
“
is due to be hospitalised on
3/9/12 and will not be fit for work before 20/9/12.”
[3]
The Applicant’s version is that he
had sent a copy of the aforesaid sick note to the Komani Hospital
soon thereafter and that
he had discussed the matter with the acting
CEO, Ms Toni. The Applicant made it clear that he would resume duty
on 21 September
2012.
[4]
After he reported back for duty, the
Applicant was issued with a letter, signed by Ms Toni and dated 27
September 2012 wherein he
was informed that his absence from work
from 17 August 2012 until 23 September 2012 constituted abscondment.
He was referred to
provisions of the Public Service Act, 1994 (the
PSA) that provides for a deemed discharge on account of misconduct in
the event
of absence without permission for a period exceeding one
calendar month.
[5]
The Applicant’s services were
terminated on 27 September 2012 and he subsequently referred a
dispute to the First Respondent
(PHSDSBC). On 12 March 2013 the
Second Respondent issued a jurisdictional ruling in respect of the
unfair dismissal dispute that
the Applicant had referred to the
PHSDSBC wherein it was found that where an employee is discharged in
terms of the provisions
of section 17(3)(a) of the PSA, the discharge
is deemed to be on account of misconduct and when the employee who is
deemed to be
so discharged, reports for duty and shows good cause,
such employee may be reinstated into his / her former position,
subject to
conditions. The arbitrator found that the PHSDSBC lacked
jurisdiction to determine the dispute referred by the Applicant and
held
that the Applicant could approach the relevant executing
authority for approval to be reinstated in accordance with the
provisions
of section 17(3)(b) of the PSA. The PHSDSBC closed the
file.
[6]
Acting on the content of the Second
Respondent’s ruling, the Applicant made representations to the
Fifth Respondent on 22
October 2012. The Applicant received no
response to his submissions and on 7 May 2013, his attorney at the
time requested the Fifth
Respondent to provide the Applicant with a
reply to his submissions. Another attorney representing the Applicant
wrote another
letter on 21 August 2013 requesting an outcome from the
Fifth Respondent. The Applicant never received a response to these
letters
and on 27 September 2013, he referred a fresh dispute to the
PHSDCBC, claiming that he was dismissed.
[7]
When the matter was enrolled for
arbitration, the Department raised a point
in
limine
namely that the PHSDCBC lacked
jurisdiction to arbitrate the dispute as the Applicant’s
services were terminated in terms
of section 17 of the PSA, thus
there was no dismissal. The Third Respondent dismissed the
Applicant’s case after she found
that the PHSDCBC lacked
jurisdiction to arbitrate the dispute. A jurisdictional ruling was
issued on 25 April 2014.
[8]
The Applicant filed a review application on
6 October 2014 wherein he sought condonation for the late filing of
the review application
and in the main, he sought the review and
setting aside of the jurisdictional rulings by the Second and Third
Respondents.
[9]
There are effectively two applications
before me, a review application, with an application for condonation
for the late filing
of the review application and an application to
re-instate the Applicant’s review application.
[10]
Logic dictates that the reinstatement
application should be considered first.
The re-instatement
application
[11]
In casu,
the
Applicant’s services were terminated in September 2012, the
jurisdictional rulings that are the subject of the review
application, were issued in March 2013 and April 2014 and the review
application was filed in October 2014. Only in July 2017,
did the
Applicant file the record of the arbitration proceedings and a notice
in terms of Rule 7A(8) of the Labour Court Rules
(the Rules).
[12]
Rule 7A(6) provides that the applicant in a
review application must furnish the Registrar and each of the other
parties with a copy
of the record or portion of the record, as the
case may be.
[13]
The serving and filing of the record in a
review application is provided for in clause 11.2 of the 2013
Practice Manual of the Labour
Court (Practice Manual) as follows:
‘
11.2.1
Once the registrar has notified an applicant in terms of Rule 7A (5)
that a record has been received and may be uplifted,
the applicant
must collect the record within seven days.
11.2.2 For the purposes
of Rule 7A (6), records must be filed within 60 days of the date on
which the applicant is advised by the
registrar that the record has
been received.
11.2.3 If the
applicant fails to file a record within the prescribed period, the
applicant will be deemed to have withdrawn
the application, unless
the applicant has during that period requested the respondent’s
consent for an extension of time
and consent has been given. If
consent is refused, the applicant may, on notice of motion supported
by affidavit, apply to the
Judge President in chambers for an
extension of time. The application must be accompanied by proof of
service on all other parties,
and answering and replying affidavits
may be filed within the time limits prescribed by Rule 7. The Judge
President will then allocate
the file to a judge for a ruling, to be
made in chambers, on any extension of time that the respondent should
be afforded to file
the record’.
[14]
This
Court and the Labour Appeal Court have considered the status of the
Practice Manual
[1]
and held that
in
essence, the manual promotes uniformity and consistency in practice
and procedure and sets guidelines on standards of conduct
expected of
those who practise and litigate in the Labour Court and it promotes
the statutory imperative of expeditious dispute
resolution. The
provisions of the Practice Manual are binding and should be adhered
to and it is not to be adhered to or ignored
by parties at their
convenience.
[15]
A proper interpretation of clause 11.2.3
shows that there are three possibilities if the record is not filed
within 60 days of the
date on which the applicant is advised by the
Registrar that the record has been received. The first possibility is
the easy and
obvious one namely; for the applicant to request the
respondent’s consent for an extension of time and such consent
has been
given.
[16]
The second possible scenario arises only in
the event that
consent was sought from the
respondent but is refused. In such event the applicant may, on notice
of motion supported by affidavit,
apply to the Judge President for an
extension of time. The application must comply with Rule 7 and
affidavits are be filed within
the time limits prescribed by Rule 7.
[17]
The third possible scenario arises when the
applicant in a review application failed to file the record within
the prescribed 60
days’ period and failed to obtain the
respondent’s or Court’s consent for the extension of
time. In such a case
the review application is deemed to be
withdrawn.
[18]
In casu
the
Applicant has not filed the record within the prescribed 60-day
period, he has not approached the Respondents to seek consent
to an
extension of time nor has he approached the Judge President for an
extension. It follows that the review application is deemed
to be
withdrawn.
[19]
In
Ralo
v Transnet Port Terminals and Others
[2]
(Ralo)
the Court accepted the legal definition of ‘deemed’ as
set out in the Namibian authority of
Municipal
Council of the Municipality of Windhoek v Marianna Esau (LCA 25/2009,
2 March 2010)
where
the Court held that the word ‘deemed’ is considered to
have a conclusive effect
[3]
.
This Court concluded by stating the following:
‘…
The
plain and unambiguous wording of the practice manual is to the effect
that the applicant must be regarded as having withdrawn
the review
application.’
[20]
In casu,
the
same fate meets the Applicant and the status of the review
application is ‘withdrawn’.
There
is however no bar, either in the Rules of this Court or
the Practice Manual to the
Applicant
filing an application in which it seeks to have the review
application reinstated.
[21]
In terms of clause 11.2.7 of the Practice
Manual, an applicant in a review application is required to ensure
that all the necessary
papers in the review application are filed
within 12 months of the date of the launch of the application and the
Registrar is informed
in writing that the application is ready for
allocation for a hearing date. Where the time limits are not complied
with, the application
will be archived and be regarded as lapsed
unless good cause is shown why the application should not be archived
or be removed
from the archives.
[22]
The Applicant filed an amended notice of
motion and a supplementary affidavit in July 2017 seeking condonation
for the non-compliance
with the provisions of clauses 11.2.2 and
11.2.7 of the Practice Manual and for this application to be
retrieved from the archives.
What the Applicant in fact effectively
seeks is an order to re-instate the review application.
[23]
The Applicant provided a detailed
explanation in his supplementary affidavit of the events that
transpired since October 2012, when
he first made submissions to the
Fifth Respondent in terms of the provisions of section 17(3)(b) of
the PSA. I do not intend to
record in detail what the Applicant set
out in his affidavit. In summary, the Applicant had consulted an
attorney at the end of
October 2012 and correspondence was despatched
to the Respondents and disputes were referred to the Commission for
Conciliation,
Mediation and Arbitration (CCMA) and the bargaining
council. The first attorney that assisted the Applicant left practice
in May
2013 and he was referred to another attorney. The Applicant’s
file was with the second attorney for two and a half months,
during
which time the Applicant made numerous phone calls to the attorney,
but never got to consult with the attorney. After two
and a half
months, the Applicant was requested to collect his file from the
second attorney.
[24]
The Applicant was then referred to another
attorney in Port Elizabeth. The Applicant’s file was delivered
to the office of
the attorney and he was in email contact with the
third attorney from as early as 3 July 2013, wherein he issued the
attorney with
instructions. During the period 12 June 2013 to 28
March 2014 the Applicant left South Africa and went to Bangladesh.
[25]
It is evident that the Applicant made
several attempts to communicate with the third attorney by way of
electronic mail (email)
and he also made telephone calls to follow-up
on his matter. He received advice on 9 August 2013 and responded to
that. On 27 September
2013, an unfair dismissal dispute was referred
to the PHSDCBC and on 7 October 2013 the bargaining council informed
the attorney
that the referral was defective. After further
correspondence between the attorney and the bargaining council, the
dispute was
set down for conciliation on 21 November 2013 and a
certificate of outcome was issued, referring the matter to
arbitration. The
attorney requested that the matter be arbitrated on
11 December 2013. A notice of set down was initially issued for 27
February
2014, but was postponed and was eventually set down for
arbitration on 4 April 2014. At the arbitration proceedings the
Department
raised the jurisdictional point and the ruling, which is
the subject of the review application, was issued on 25 April 2014.
[26]
What followed between May and July 2014, is
a trail of correspondence from the Applicant to the attorney, asking
for feedback and
complaining about the lack of communication from the
attorney’s office. The Applicant was desperate to know when
something
would be done about his matter. On 2 July 2014, the
Applicant instructed the attorney to proceed with a review
application to the
Labour Court. It is evident that further delays
occurred in the drafting, finalisation and filing of the review
application. The
application for review was filed with this Court
only in October 2014, four weeks after it was signed by the
Applicant. The Applicant
constantly followed up with the attorney,
but was told that a hearing date for the matter had not yet been
allocated. In January
2015, the Applicant expressed his concerns
about the poor service he received from the attorney.
[27]
In February 2015, the State Attorney acting
on behalf of the Department, wrote a letter to the Applicant’s
attorney indicating
that the record and transcript had not been filed
in compliance with the Labour Court Rules and that the attorney
should advise
when he intended to file same. On 19 February 2015 the
Applicant wrote to the attorney that his case had been delayed
because there
was no compliance with the Rules.
[28]
On 12 March 2015, the Applicant approached
another attorney. The Applicant was told that he had to pay R 50 000.
The fourth
attorney obtained an opinion from counsel and on 25 March
2015 counsel advised that the correct approach was to apply for
review
but the delay in the matter was concerning and that the matter
should be pursued diligently in future. The fourth attorney made
some
attempts to obtain the record from the Department and there is also a
trail of correspondence between the Applicant and the
fourth
attorney. On 17 November 2015, the Applicant requested the attorney
to forward his file to another attorney, which was indeed
done on 20
November 2015.
[29]
For the period from 23 November 2015 until
June 2016 the Applicant instructed a fifth attorney to assist him
with his matter. In
March 2016 the Applicant had met with the
attorney, who admitted that he had not read the Applicant’s
entire file. The Applicant
received a draft supplementary affidavit
from the attorney on 16 March 2016, but much of the information in
the affidavit was incorrect.
The Applicant made significant
corrections and anticipated that the affidavit would be finalised.
The Applicant expressed his dissatisfaction
and in May 2016 the
attorney indicated that he would need a complete record, as the one
he had was incomplete and incomprehensible.
[30]
During June / July 2016, the Applicant
instructed another attorney to handle his matter and the sixth
attorney confirmed that he
had received the Applicant’s file on
8 July 2016. The attorney indicated that no work had been done on the
file since the
review application was filed. The new attorney
undertook to read the file and to revert to the Applicant. On 20 July
2016, the
Applicant requested to consult with the attorney regarding
his labour matter. In August 2016 the Applicant discovered that the
file that was sent to his attorney, was not the complete file and he
attempted to obtain the complete file from his previous attorney.
The
former attorney provided the complete file on 6 September 2016.
[31]
The Applicant was once again dissatisfied
with the lack of assistance and progress he received from his
attorney and he requested
his file in order to seek assistance
elsewhere.
[32]
On 1 September 2016 the Applicant consulted
with his current attorneys of record, the seventh attorney instructed
by the Applicant
to deal with his matter. He consulted counsel in
November 2016 and a draft affidavit was completed on 18 December
2016. The affidavit
was settled and finalised in March 2017.
[33]
The Applicant’s case is that he will
be greatly prejudiced if he is not granted relief as he had been
persistent in seeking
to vindicate his rights and in the process he
was poorly served by his legal representatives.
[34]
The question is whether the Applicant
has shown good cause to have his application re-instated.
[35]
It has taken since October 2014 to bring
this matter closer to finality. The apparent lack of prosecution and
the delay in finalising
this matter is of grave concern to this
Court, given the context within which labour litigation takes place
and the system that
is designed to ensure the effective and
expeditious resolution of labour disputes. The Practice Manual for
the Labour Court expressly
states that a review application is by its
nature an urgent application. It goes without saying that litigants
should treat review
applications as urgent applications and that they
should act accordingly.
[36]
In
Superb
Meat Supplies CC v Maritz
[4]
the
Labour Appeal Court (LAC) held that:
‘
In
this court and the Supreme Court of Appeal there have been frequently
repeated judicial warnings that there is a limit beyond
which a
litigant cannot escape the results of his attorney's lack of
diligence or the insufficiency of the explanation tendered.
It has
never been the law that invariably a litigant will be excused if the
blame lies with the attorney. To hold otherwise might
have a
disastrous effect upon the observance of the rules of this court and
set a dangerous precedent. It would invite or encourage
laxity on the
part of practitioners. The courts have emphasized that the attorney,
after all, is the representative whom the litigant
has chosen for
himself, and there is little reason why, in regard to condonation of
a failure to comply with a rule of court, the
litigant should be
absolved from the normal consequences of such a relationship, no
matter what the circumstances of the failure
are.’
[37]
It
is trite that each case has to be decided on its own merits and
although I am in full agreement with the
dicta
in
Superb
Meat
[5]
,
this case is different. It is evident from the facts placed before me
that the Applicant sought legal advice shortly after the
termination
of his services and as far back as October 2013. For the period from
October 2013 to September 2016 the Applicant constantly
instructed
attorneys to deal with his matter and during the said period he had
engaged the services of seven different attorneys.
It is apparent
that the Applicant was not satisfied with the advice and service he
received from the attorneys, which constantly
caused him to instruct
another attorney. The attorneys who are accused and blamed for the
delay in this matter, have not been afforded
an opportunity to
respond to the Applicant’s allegations against them and I have
little doubt that had they been afforded
such opportunity, another
version of events may transpire.
[38]
Be that as it may, for purposes of this
application, I have the Applicant’s version before me and his
version paints a picture
of a litigant who engaged the services of
attorneys and the moment that he was not satisfied with the service
he received, he instructed
another attorney. The correspondence
attached to his affidavit, shows that the Applicant persisted with
his case, that he followed
up on the progress and in general, that he
was almost desperate for legal assistance. The Applicant did not
stick with an attorney
when he was not satisfied but he instructed
other attorneys with the hope of getting better advice and better
service and that
his matter will be attended to and finalised.
[39]
The Applicant did not turn a blind eye when
the attorney he instructed did not act according to his expectations
and he did not
adopt a ‘wait and see’ approach in dealing
with his litigation. In my view the Applicant acted diligently and in
the
absence of any response by any of the attorneys to his
allegations, I have to accept that he was poorly served by a number
of different
attorneys and this Court is reluctant to prejudice the
Applicant for the conduct of his legal representatives.
[40]
In casu,
I
am satisfied that there are exceptional circumstances to justify the
reinstatement of the Applicant’s review application.
The
decision regarding the reinstatement of the Applicant’s review,
is based on the exceptional circumstances and the specific
facts of
this matter and is by no means a precedent to be applied in all and
any re-instatement application where the delay is
as excessive as it
is in this matter.
[41]
The delay in finalising this matter was
mostly caused by the Applicant (or his legal representatives) and
should this matter be
adjudicated by another tribunal in future, this
fact should be taken into consideration and the Department should not
be unduly
prejudiced by the consequences of the delay.
The review application
[42]
I have considered the application for
condonation for the late filing of the review application. I have no
intention to repeat the
submissions made. Suffice to say that the
delay is no doubt excessive, but the explanation tendered is
convincing and acceptable.
I have to exercise my discretion
judicially upon a consideration of all the facts and to ensure
fairness to both sides. On an objective
conspectus of all the facts,
I am satisfied that a case had been made out for condonation to be
granted for the late filing of
the review application and that the
interest of justice will be best served by granting condonation.
[43]
In
his founding affidavit the Applicant submitted that the
jurisdictional rulings issued were wrong and should be set aside.
This
is so because section 17(3)(a)(i) of the PSA did not apply and
the termination of the Applicant’s employment constituted a
dismissal, as contemplated in section 186(1)(a) of the Labour
Relations Act
[6]
(LRA).
The arbitrators were thus wrong in finding that the PHSDCBC lacked
jurisdiction to arbitrate his unfair dismissal
dispute. In the event
that the jurisdictional rulings were not set aside on review, the
Applicant sought the review of the Fifth
Respondent’s conduct
in failing to consider the Applicant’s representations made, as
he was bound to do by section
17(3)(b) of the PSA.
[44]
It became apparent from the answering
affidavit that the Applicant’s representations for
reinstatement were submitted to an
appeals committee, that rejected
his submissions and that the MEC for Health approved the outcome on
23 March 2014. The MEC signed
a letter to the Applicant on the same
date informing him of the fact that his representations failed and
that the termination of
his services was upheld. The Applicant
disputed that he had received the outcome from the MEC, but he no
longer seeks relief directed
at having the Fifth Respondent decide
his appeal in terms of section 17(3)(b) of the PSA. The relief sought
has been amended and
in the alternative to the review and setting
aside of the jurisdictional rulings, the Applicant seeks the review
and setting aside
of the Fourth Respondent’s decision refusing
to reinstate the Applicant in terms of section 17(3)(b) of the PSA.
[45]
In short, the main relief sought by the
Applicant is the review and setting aside of the jurisdictional
rulings and for the matter
to be remitted to the PHSDCBC for a
hearing
de novo,
alternatively
the review and setting aside of the Department’s decision
refusing to reinstate the Applicant in terms of section
17(3)(b) of
the PSA.
Review of the
jurisdictional rulings
[46]
A jurisdictional ruling was issued by the
Second Respondent on 12 March 2013, wherein it was held that the
PHSDCBC lacked jurisdiction
to determine the Applicant’s unfair
dismissal dispute because he was deemed to be discharged in terms of
the provisions of
section 17(3)(a)(i) of the PSA.
[47]
A second jurisdictional ruling was issued
on 25 April 2014 wherein the Third Respondent held that as the
Applicant’s services
were terminated in terms of section
17(3)(a)(i) of the PSA, he was deemed to be discharged by operation
of law and therefore there
was no dismissal and thus the PHSDCBC
lacked jurisdiction to adjudicate the dispute.
[48]
The Applicant’s case is that the
jurisdictional rulings are reviewable on the ground that the Second
and Third Respondents
(the arbitrators) committed gross
irregularities or misconduct in failing to consider whether the
provisions of section 17(3)(a)(i)
of the PSA applied in his case.
[49]
In my view there is merit in this ground
for review.
[50]
It has been confirmed in a number of
authorities that all the jurisdictional prerequisites for proceeding
with a ‘deemed dismissal’
as provided for in section
17(3)(a)(i) of the PSA must be present before it is invoked.
[51]
In
Grootboom
v National Prosecuting Authority and Another
[7]
the
LAC dealt with the now revoked section 17(5)(a) of the PSA and held
that:
‘…
The
provision applies, by operation of law, once the circumstances set
out in s 17(5)
(a)
(i)
exist, namely, an officer who absents himself/ herself from
official duties without permission of his/her head of the institution
for a period exceeding one calendar month’.
[52]
In
Department
of Health v Public Health and Social Development Sectoral Bargaining
Council and Others
[8]
this
Court held that:
‘
The
arbitrator had to engage in a factual enquiry to determine whether
the requirements of section 17 of the PSA had been met, and
if so,
the bargaining council would have no jurisdiction to arbitrate the
dispute. The arbitrator found that the requirements of
section 17 of
the PSA have not been met and therefore he had jurisdiction to
arbitrate the dispute. I am satisfied that the arbitrator
correctly
found that the bargaining council had jurisdiction to adjudicate the
dispute and he has not committed any reviewable
irregularity’.
[53]
In
Public
Servants Association of SA obo Mohlala v Minister of Home Affairs and
Others
[9]
it
was held that:
‘
A
discharge in terms of the provisions of section 17(3)(a)(i) of the
PSA constitutes a termination of employment by operation of
law and
therefore no dismissal exists that could be challenged on the basis
of unfairness.
Before
the provisions of section 17(3)(a)(i) of the PSA could be relied
upon, an employee must be absent for a period exceeding
one calendar
month and the employer has to show that the employee was absent
without permission and once it is shown, section 17(3)(a)(i)
of the
PSA operates without any act on the part of the employer.
The
question as to whether the requirements of section 17(3)
(a)
(i)
of the PSA have been met or not, is a factual enquiry.
Whether the GPSSBC has
jurisdiction or not, is a factual question in the form of a
conditional syllogism, “if X, then Y”,
where X is the
condition and Y the consequent. If the condition is present, the
consequent must necessarily also be present. In
a section 17(3)
discharge, the condition is that all the requirements of section
17(3) must be met, and if this condition exists,
the consequence is
that the GPSSBC would not have jurisdiction to adjudicate the
dispute.
Whether or not there was
a dismissal as contemplated by section 186 of the LRA or whether
there was a deemed dismissal in terms
of the provisions of section
17(3) of the PSA, is the first issue to be determined.’
[54]
In casu,
it
is apparent from the jurisdictional rulings that the arbitrators
misconceived the nature of the enquiry in that they made no
assessment whatsoever of whether section 17(3)(a)(i) of the PSA
applied in the circumstances of the case and whether the requirements
for its application had indeed been met. Effectively, the approach
they adopted was that once section 17 of the PSA is raised as
reason
for termination, it is the end of the matter as the bargaining
council has no jurisdiction to determine an
ex
lege
termination where no dismissal
occurred.
[55]
The arbitrators were indeed duty bound to
engage in a factual enquiry to determine whether section 17(3)(a)(i)
of the PSA applied
and whether the requirements were met for the
deeming provision to be triggered in the first place before coming to
the conclusion
that the PHSDCBC lacked jurisdiction to determine the
Applicant’s unfair dismissal dispute.
[56]
The Applicant has made out a case for the
primary relief he seeks and the interest of justice will be best
served by remitting the
Applicant’s unfair dismissal dispute to
the PHSDCBC for a hearing
de novo.
[57]
In view of the fact that the Applicant has
made out a case for the primary relief sought, I deem it unnecessary
to deal with the
relief sought in the alternative.
[58]
This Court has a wide discretion in respect
of costs and in my view this is a matter where the interest of
justice will be best
served by making no order as to cost.
[59]
In the premises, I make the following
order:
Order
1.
The review application is reinstated;
2.
The late filing of the review application
is condoned;
3.
The late filing of the Applicant’s
supplementary affidavit is condoned;
4.
The Applicant’s non-compliance with
the provisions of clause 11.2.2 of the Practice Manual of the Labour
Court and the late
filing of the record are condoned;
5.
The
jurisdictional
rulings issued on 12 March 2013 under case number PSHS911-12/13 and
on 25 April 2014 under case number PSHS 611-13
are
reviewed and set aside;
6.
The Applicant’s unfair dismissal
dispute is remitted to the First Respondent for a hearing
de
novo
before a commissioner other that
the Second or the Third Respondents;
7.
There is no order as to costs.
______________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
Applicant:
Advocate S C Kirk-Cohen SC with Advocate C Bosch
Instructed
by:
M Z Barday & Associates Attorneys
Fourth, Fifth and
Sixth Respondents:
Advocate C T S Cossie
Instructed
by:
State Attorney, East London
[1]
See:
Ralo
v Transnet Port Terminals and Others
2015]
12 BLLR 1239 (LC); (2015) 36 ILJ 265 (LC).
,
Tadyn Trading CC t/a Tadyn Consulting
Services v Steiner and Others
[2014] 5 BLLR 516
(LC), (2014) 35 ILJ
1672 (LC),
Rumba
Samuels v Old Mutual
Bank
Case no DA30/15 handed down on
25 January 2017.
[2]
Ralo
v Transnet Port Terminals and Others
[2015]
12 BLLR 1239
(LC), (2015) 36 ILJ 2653 (LC).
[3]
Ralo
n
2 at para 10.
[4]
(2004)
25 ILJ 96 (LAC) at para 16.
[5]
Ibid
n 4.
[6]
Act
66 of 1995 as amended.
[7]
(2013)
34 ILJ 282 (LAC);
[2013] 5 BLLR 452
(LAC) at para 38. The LAC
judgment was upheld by the Constitutional Court in
2014
(2) SA 68 (CC).
[8]
(2014)
35 ILJ 2166 (LC) at para 48.
[9]
(2019)
40 ILJ 415 (LC) at paras 27 -30.