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[2020] ZALCJHB 10
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Minister of Water and Sanitation v Maseko and Others (JR448/17B) [2020] ZALCJHB 10; [2020] 5 BLLR 525 (LC); (2020) 41 ILJ 1162 (LC) (29 January 2020)
the
labour court of South Africa, johannesburg
Reportable
case
no: jR448/17B
In
the matter between:
MINISTER
OF WATER AND
SANITATION
Applicant
and
OLIPA
MASEKO
First Respondent
nehawu
Second Respondent
THOMAS
NTIMBANA
N.O.
Third Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Fourth Respondent
Heard
:
16 January 2020
Delivered
:
29 January 2020
JUDGMENT
HARDIE,
AJ
[1]
This is an
opposed application for review brought in terms of section 145 of the
Labour Relations Act
[1]
(the
LRA) on 17 March 2017, in which the Applicant seeks to review and set
aside an arbitration award made by the Third Respondent
(the
Commissioner) under the auspices of the Fourth Respondent, the
Commission for Conciliation, Mediation and Arbitration (CCMA)
on 13
December 2016 under case number MP6433/16 (the award). The dispute
forming the subject matter of the arbitration is one brought
in terms
of section 6 of the Employment Equity Act
[2]
(the EEA) in which the First and Second Respondents claim that the
Applicant has committed an act of unfair discrimination by not
upgrading her from the first notch of level five like her work
colleagues who are on that notch and doing the same work of equal
value.
[2]
The Commissioner found that the Applicant had unfairly discriminated
against
the First Respondent and ordered the Applicant to upgrade her
from the first notch to the last notch of salary level five, and that
this was to take effect within 14 days upon receipt of the award.
The thrust of the Applicant’s case both at the arbitration
and
in this review, is that the First Respondent’s work colleagues
were upgraded as a result of an administrative error and
that this
was in the process of being corrected.
[3]
At the hearing of the matter, there was no appearance on behalf of
the
Applicant. Advocate Sekhethela instructed by Thaanyane Attorneys,
appeared on behalf of the First and Second Respondents, who were
appointed as their attorneys of record on 14 February 2019. Up until
that point, the Second Respondent through its in-house paralegal,
one
Mr Nyiko Blessing Nkuna, had represented the First Respondent in
these proceedings. Having heard Advocate Sekhethela, I made
an
ex-tempore
order to dismiss the application, with reasons to
follow. I also indicated that once I had handed down my judgment, I
would be giving
the Applicant’s attorneys an opportunity to
make written submissions as to why in dismissing the application, I
should also
not order costs
de bonis propriis
.
[4]
The review application was launched late on 23 March 2017. In its
founding
affidavit to its review application, the Applicant set out
the reasons for the lateness, being that they were on skeleton staff
during the period between 15 December 2016 and 15 January 2017, the
decision to initiate the review proceedings was only taken
by head
office management during the second week of February 2017, and once
that decision was made, a procurement process had to
be undertaken to
secure the services of an attorney and counsel. It is instructive
that prior to the review application having
been launched, there was
no communication from the Applicant with the Second Respondent,
indicating that a review was being considered
and that there were
logistical issues it was having in getting to the point where the
review could be undertaken. I do not deem
it necessary to decide
whether or not to grant condonation for the lateness of the review,
for the reasons that will follow.
[5]
In terms of Rule 7A (5) of the Labour Court Rules (the Rules), once
the
Registrar of the Labour Court has made available to the
Applicant, the CCMA record of the arbitration proceedings sought to
be
reviewed, the Applicant must make copies of such portions of the
record as may be necessary for the purposes of the review. In this
instance, no such record was prepared or furnished. As part of its
review application, the Applicant put up a lengthy founding
affidavit, making references to some 14 annexures, without indicating
whether any of them served before the Commissioner in the
arbitration
proceedings under review. On 7 April 2017, the Applicant served and
filed a notice in terms of Rule 7A (8) (b), stating
that it stood by
its notice of motion.
[6]
On 23 May 2017, the First and Second Respondents served and filed
their
answering affidavit. It raised two preliminary issues in that
affidavit relating to the “defectiveness” of the review
application. Firstly, that rather than the Applicant having launched
a review application in terms of section 145 of the Act, it
should
have brought an application to appeal the arbitration award in terms
of section 10 (8) of the EEA, as amended, within 14
days of receipt
of the award. Whilst I am of the view that the Applicant had the
choice to appeal, which for best reasons known
to itself, it didn’t,
section 10 (8) does not take away its right to institute review
proceedings in terms of section 145
of the Act. The second issue
raised was that the application “
was not in line with the
Labour Court Rules specifically Rule 7A (6) which indicates that the
applicant must file records within
60 days, it is submitted that the
applicant has not complied with rule 7A (6) of the Labour Court rules
as the court will be expected
to decide the case based on what
transpired during the arbitration and consider if it is reviewable or
not”
.
[7]
In their answering affidavit, the First and Second Respondents
indicated
that certain evidentiary material which the Applicant
sought to introduce and rely upon in its founding affidavit to
succeed in
its review application, was not before the Commissioner in
the arbitration. One such example, is a legal opinion which was
sought
by the Applicant, which is annexed as “LP13” to
the founding affidavit and which is quoted extensively at paragraph
87 thereof. In its answering affidavit, the First and Second
Respondents deny that this legal opinion was ever presented during
the arbitration. The Applicant also chose not to serve and file a
replying affidavit to rebut this averment, and I therefore must
accept that it is true.
[8]
The Applicant’s legal representatives having been alerted
through
the First and Second Respondent’s answering affidavit,
that this Court was being asked to decide a review on evidence that
did not serve before the Commissioner, called and held a pre- trial
conference on 28 September 2018 with the First and Second
Respondents, a copy of which minute is in the court file. There was
no need to do so, as review proceedings are not trial proceedings.
However, in doing so, the Applicant who was represented there by both
its attorney and advocate, was once again alerted to issues
that the
First and Second Respondents had with it in not providing a record of
the arbitration proceedings within 60 days as required.
This issue is
raised not once, but twice in the pre- trial minute, and answered
similarly by the Applicant’s legal representatives,
on both
occasions as follows: “
Rule 7A (5)- (6) require only
the necessary portions of the record for purposes of the application
need to be furnished. The
record of proceedings did not provide
any new facts/evidence to add or amend the Applicant’s founding
affidavit which was
already dealt with in the founding affidavit;
hence the Applicant served and filed its Notice to abide in terms of
Rule 7A (8)
(b). Therefore, the Applicant will not be serving
and filing a record of proceedings as all the issues in dispute have
been
dealt with at length in the Founding Affidavit and it is not
necessary to file the record of proceedings. There is no
prejudice
suffered by the Respondent by the Applicant electing not to
file the record of proceedings as it is not necessary for the review
application.”
.
[9]
The Applicant was also asked at the pre- trial conference, whether
it
had filed a replying affidavit, to which it responded that it had
not.
[10]
Whilst it is apparent from a reading of Rule 7A (5) that the
Applicant must exercise
a discretion in the compilation of the review
record, and only provide those portions that are necessary for the
review, the test
is not that as set out by the Applicant’s
legal representatives at the pre- trial conference, that it only
needed to have
provided the record insofar as it provided “new
facts/evidence to add or amend the Applicant’s founding
affidavit which
was already dealt with in the founding affidavit”.
The record does not have to be compiled only if it benefits the
Applicant;
it needs to be compiled so that this Court can decide
whether based upon all the evidence that was before him, the
Commissioner
committed a reviewable irregularity/ies which ought to
be reviewed and set aside in terms of the application brought by the
Applicant.
[11]
Were an Applicant to be permitted to base its decision on what
portions of the record
to include, based upon whether it suited or
bolstered its case, and its case alone, it would render the review
proceedings a complete
waste of the court’s time, which these
proceedings have thus become. What exacerbates the situation, is that
not only in
their answering affidavit, but also in the pre- trial
conference, the Applicant’s legal representatives were alerted
to the
absence of a record. Had these legal representatives read the
answering affidavit, they would have seen that the First and Second
Respondents were telling them that their client was bringing a new
case before this Court, that was not before the Commissioner,
and
that the new evidence relied upon in the review, did not serve before
him. Had they read this affidavit and applied their minds
to the
answering affidavit, they would not only have advised their
client, that a replying affidavit needed to be served
and filed, but
also that necessary portions of the record needed to be compiled, to
rebut this allegation and remedy the defects
in the review
application. They did not do so, but instead persisted with a self-
centred approach, that the Applicant only needed
to compile a review
record if it bolstered or suited its case.
[12]
The Applicant’s review application is therefore stillborn and
falls to be dismissed.
[13]
I now turn
to deal with the question of costs. In doing so, I make reference to
Telkom
SA Soc Ltd vs Ezekiel Mashaba
[3]
which reads as follows:
“
It has to be made
clear: attorneys are not expected to interpret legislation, that is
the function of the Courts. Attorneys
are expected to read
legislation and case law and to advise their clients accordingly.”
[14]
I am of the view that unless the Applicant’s legal
representatives can persuade me otherwise,
which opportunity I will
give them to do, they did not properly read the legislation relating
to Labour Court reviews, nor the
case law relating to it. Had they
done so, they would have filed the portions of the CCMA record
necessary for this Court to decide
the review. That they didn’t
in the circumstances described above, and particularly in the face of
the defence raised by
the First and Second Respondents, that they
were presenting a different case to this court than that which served
before the Commissioner,
appears to smack of negligence of a serious
degree.
[15]
I therefore make the following order:
Order
1. The Applicant’s
review application is dismissed with costs, the scale of which has
yet to be determined.
2. The Applicant’s
attorneys are given 10 court days from the date of fax transmission
of this judgment to them, to make written
submissions
via
email as to why costs
de bonis propriis
should not be awarded
against them.
_______________________
S
B Hardie
Acting
Judge of the Labour Court
Appearances
For
the Applicant:
No Appearance
For
the First and Second
Respondents:
Advocate M Sekhethela
Instructed
by:
Thaanyane Attorneys
[1]
No. 66 of 1995, as amended.
[2]
Act. 55 of 1998.
[3]
(2019) 40 ILJ 629 (LC) at para 47.