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[2020] ZALCJHB 19
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Maluti A Phofung Local Municipality and Others v South African Municipal Workers Union (SAMWU) and Others (JR1063/19) [2020] ZALCJHB 19; [2020] 6 BLLR 581 (LC) (31 January 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
No JR 1063/19
Not
reportable
MALUTI-A-
PHOFUNG LOCAL MUNICIPALITY First
Applicant
MALUTI
-A- PHOFUNG WATER SOC LTD
Second Applicant
MOSES
MOREMI
N.O Third
Applicant
BLAKE
MOSLEY-LEFATOLA Fourth
Applicant
MOKETE
VICTOR DUMA
Fifth
Applicant
and
SOUTH
AFRICAN MUNICIPAL WORKERS
UNION
(SAMWU) First
Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL (SALGBC)
Second Respondent
THE
INDEPENDENT MUNICIPAL AND ALLIED
TRADE
UNIONS
(IMATU) Third
Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
ASSOCIATION
(SALGA)
Fourth
Respondent
JOSEPH
DLENGEZELE Fifth
Respondent
PM
VENTER N.O
Sixth
Respondent
VUYO
BASHILO
N.O
Seventh Respondent
JANA
DELL
N.O
Eight Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION Ninth
Respondent
MASILO
KOENANE
N.O Tenth
Respondent
MOTHUSI
MOJE
N.O
Eleventh Respondent
GERT
VAN DER BERG
N.O Twelfth
Respondent
NEO
RAMPAI N.O
Thirteenth
Respondent
ADV
LUCAS MABUSELE
N.O Fourteenth
Respondent
JANA
BURGER
N.O Fifteenth
Respondent
SURIA
VAN WYK
N.O Sixteenth
Respondent
MOKATI,LIZA
Seventeenth Respondent
NTHABISENG
MOKOENA
Eighteenth
Respondent
NTHABISENG
MOFOKENG Nineteenth
Respondent
In
re:
SAMWU
obo KHASEBE//MALUTI-A- PHOFUNG- Case
No.J3927/18
SAMWU
obo TSHABALALA//MALUTI-A-PHOFUNG-
Case No.J03/19
IMATU
obo NTEMA//MALUTI-A-PHOFUNG -
Case No. J4515/18
Heard:
11 December 2019
Judgment
delivered: 31 January 2020
JUDGMENT
VAN
NIEKERK J
[1]
This is not the first time that the labour-related consequences of a
dysfunctional
municipality have featured in this court, nor is it
likely to be the last. The first applicant is a municipality
established under
the Municipal Structures Act, 117 of 1998. The
municipality was placed under administration on 10 February 2018. It
is not in dispute
that the municipality is under administration on
account of adverse findings in a report prepared by the Department of
Co-operative
Governance and Traditional Affairs and the Free State
Treasury into a state of affairs that included labour unrest, an
inability
to pay creditors, non-billing for municipal services and
numerous civil claims, all of which placed service delivery and the
municipality’s
financial viability at risk.
[2]
In these proceedings, the municipality seeks to review and set aside
a number of arbitration
awards issued against it. The application was
filed on 20 May 2019, more than a year after the municipality placed
under administration.
In essence, the administrator seeks to have
arbitration awards issued prior to the date on which he was appointed
reviewed and
set aside, and settlement agreements concluded in the
same period I have had some difficulty in establishing
exactly
which awards are the subject of review, a task that has not
been made any easier by the filing of a supplementary affidavit in
terms of Rule 7A (8) in which a number of awards not referred to in
the founding affidavit are sought to be reviewed, and a number
of
settlement agreements reached under the auspices of the second
respondent (the bargaining council) set aside, in circumstances
where
none of them are referred to in the founding papers.
[3]
Specifically, in the founding affidavit, the applicant seeks to
review and set aside
the following arbitration awards, in each case
the first applicant in these proceedings being the respondent. These
are FSD 111702
SAMWU obo Kasebe & 189 others
(issued 9
March 2018), FSD 051510
MM Selepe & 13 others
(issued 8
September 2015), FSD 051511
MN Sikosana & 52 others
(issued 21 October 2015), FSD 031502
SAMWU obo Tsoeu Paul
Mokomatsili
(issued 3 June 2015) and FSD 011502 Thusliele Doris
Mlangeni, (issued on 31 May 2015). The supplementary affidavit
in terms
of Rule 7A (8) was filed in mid-October 2019, some five
months after the application was filed, the supplementary affidavit
was
filed, refers to 13 further awards that the applicant seeks to
review and, to the extent that any of those awards have been
certified
in terms of s 143 of the LRA, to have that certification
nullified, rescinded and/or set aside. Further, there is reference to
10 matters that served before the bargaining council, the applicant
seeks to have the settlement agreements that were made arbitration
awards in each instance declared null and void, and set aside.
.
[4]
The grounds for review on which the applicant relies are broadly the
municipality’s
status as a creature of the Constitution,
subject to legislation regulating local government. In broad terms,
the applicant avers
that the Constitution requires municipalities to
structure and manage their administration, budgeting and planning
processes so
as to give priority to the basic needs of the
communities they serve, and to promote social and economic
development in that community.
Further, municipalities are required
to put in place systems and to ensure the effective, efficient and
transparent use of resources.
Municipalities are further obliged to
exercise executive and legislative authority so as to provide for
democratic and accountable
government and to ensure that municipal
services are provided to local communities in a financially and
environmentally sustainable
manner.
[5]
In essence, the applicant contends that in the light of statutory
demands, the applicant
developed and approved staff establishments
and adopted policies on the recruitment, selection and appointment of
employees. In
respect of each of the awards sought to be reviewed,
the applicant contends that the arbitrators concerned failed to
consider the
legislative and policy framework applicable to the human
resources management within the municipality, failed to take into
account
relevant considerations, made awards that were contrary to
the ‘tenets and precept of just and equitable local government
laws’, and acted in a grossly negligent manner. The applicant
submits that the awards concerned ought to be reviewed (and
where
they have been certified, the certification rescinded) because they
were obtained in a manner that is inconsistent with fairness,
lawfulness and because their implementation would be contrary to
public policy. In relation to the settlement agreements that the
applicant seeks to have set aside, the applicant contends that these
agreements were entered into on behalf the first applicant
by a
former labour relations officer who was not authorised nor delegated
to offer settlements, at least without the prior written
approval of
the first applicant.
[6]
The review application was filed late. The case for condonation is
made out in the founding
affidavit where the applicants acknowledge
that it ‘might have taken some time to bringing this review
application (sic)’.
That is an understatement. All but one of
the arbitration awards sought to be set aside in terms of the
original notice of motion
were issued in 2015. Only one award was
issued in March 2018, some one year and two months prior to the
filing of the review application
in May 2019. In most instances, the
delay exceeds four years from the date on which the impugned outcomes
were issued or became
available. The delay is ascribed to the
complexities of the problems with which the intervention team has had
to grapple. The intervention
team was appointed in February 2018 by
the provincial member of the executive council for COGTA in terms of
s139(1)(b) of the Constitution
with a mandate to resolve labour
disputes, restore good governance and sound management practices
ensure compliance with collective
agreements, address anomalies and
inconsistencies relating to the irregular transfer of staff,
illegal appointments of staff
and fraudulent elevation of post levels
by the previous municipal management. The applicants aver that the
irregularities at the
municipality were only discovered after the
appointment of the intervention team. The deponent states that it
took some five months
to ’acclimatise’ and receive all
the relevant records and information relating to the municipality’s
legal and
labour relations challenges. Some matters had to be
referred for independent legal advice and a lack of financial
resources, intervening
legal actions and the attachment of equipment
including laptops, computers and other critical movable assets led to
delays in issuing
proper instructions. Further, the intervention team
sought to engage with the unions but no agreement could be reached on
the policy
applications proposed by the applicants. In these
circumstances, the applicants submit that there was no wilful default
and the
like, and that the prospects of success on the merits of the
review, overwhelmingly exceed any defect in the explanation of the
delay and that in these circumstances, condonation ought to be
granted.
[7]
In the answering affidavits, the first and third respondents (the
union’s) that
the applicants dispute that the applicants have
made a case for condonation, and contend that condonation ought
properly to be
refused.
[8]
The general principles to be applied are well-established.
Condonation is not there
merely for the asking, nor are applications
for condonation a mere formality (see
NUMSA v Hillside Aluminium
[2005] ZALC 25
;
[2005] 6 BLLR 601
(LC);
Derrick Grootboom v National Prosecuting
Authority & another
[2014] 1 BLLR (CC)). A party seeking
condonation must make out a case for the indulgence sought and bears
the onus to satisfy the
court that condonation should be granted.
[9]
This court is required to exercise a discretion, having regard to the
extent of the
delay, the explanation proffered for that delay, the
applicant’s prospects of success, and the relative prejudice to
the
parties that would be occasioned by the application being granted
or refused.
[10]
In this court, that formulation, which has its roots in
Melane v
Santam Insurance Co Ltd
1962 (4) SA 531
(A), has long been
qualified by the rule that where there is an inordinate delay that is
not satisfactorily explained, the applicant’s
prospects of
success are immaterial. In
National Union of Mineworkers v Council
for Mineral Technology
[1999] 3 BLLR 209
(LAC) the LAC said the
following:
…
without a
reasonable and acceptable explanation for the delay, the prospects of
success are immaterial, and without prospects of
success, no matter
how good the explanation for the delay, an application for
condonation should be refused.
[11]
This principle was reaffirmed in
Collett v Commission for
Conciliation, Mediation and Arbitration
[2014] 6 BLLR 523
(LAC),
a unanimous judgement of the LAC, Musi AJA held as follows:
There are overwhelming
precedents in this court, the Supreme Court of Appeal and the
Constitutional Court for the proposition that
where there is a
flagrant or gross failure to comply with the rules of court
condonation may be refused without considering the
prospects of
success. In
NUM v Council for Mineral Technology
[1999] 3 BLLR
209
(LAC) at para 10, it was pointed out that in considering whether
good cause has been shown the well-known approach adopted in
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532C-D …
Should be followed but:
‘
There is a further
principle which is applied and that is without a reasonable and
acceptable explanation for the delay, the prospects
of success are
immaterial, and without good prospects of success, no matter how good
the explanation for delay, an application
for condonation should be
refused.’
The submission that the
court a quo had to consider the prospects of success irrespective of
the unsatisfactory and unacceptable
explanation for the gross and
flagrant disregard of the rules is without merit.
[12]
The applicant for condonation must offer an explanation for the full
length of the delay (see
Independent Municipal and Allied Trade
Union obo Zungu v SA Local Government Bargaining Council and others
(2010) 31
ILJ
1413 (LC)). In
eThekwini Municipality v
Ingonyama Trust
2013 (5) BCLR 497
(CC), the Constitutional Court
said the following:
In
a case where the delay is not a short one, the explanation given must
not only be satisfactory but must also cover the entire
period of the
delay. Thus in
Van Wyk v Unitas Hospital and another (Open
Democratic Advice Centre as Amicus Curiae),
this Court said in
this regard:
‘
An applicant for
condonation must give a full explanation for the delay. In addition,
the explanation must cover the entire period
of the delay. And, what
is more, the explanation given must be reasonable. The explanation
given by the applicant. Short of these
requirements. Her explanation
for the inordinate delay is superficial and unconvincing.
[13]
In review applications, there is a further consideration that must
necessarily be taken into account,
consequent on the publication of
this court’s practice manual and recent amendments to the LRA.
In
Makuse v CCMA & others
[2015] 12 BLLR 1216
(LC),
Myburgh AJ alluded to the measures instituted to address systemic
delays, particularly in review applications. The practice
manual,
introduced in April 2013, records that a review application is ‘by
its very nature an urgent application’.
The practice manual
also requires that all of the necessary papers in any review
application be filed within 12 months of the date
of the launch of
the application. As the court observed, the corrective steps taken by
this court and the legislature (in the form
of the 2014 amendments to
the LRA) the statutory imperative that labour disputes must be
effectively and thus expeditiously resolved.
What this requires is a
strict scrutiny of condonation applications and an approach that
affords due regard to the statutory purpose
of expeditious dispute
resolution.
[14]
The delay in seeking the review of all of the awards sought to be set
aside is excessive. The
explanation for the delay is generic and
fails to account for the full period of the delay in each case. In a
nutshell, the applicants’
case is that they inherited a mess of
considerable proportions, that it has taken more than a year to
appreciate the scope of the
problem and to identify specific
arbitration awards and settlement agreements that they contend are
reviewable and/or invalid and
should never have been granted, and
that an appeal to constitutional obligations is sufficient to trump
any of the difficulties
posed by the need for condonation. This
submission has no merit. In essence, a new management team seeks to
undo what it
considers were the shortcomings and misdemeanours of the
old. The application is a mass review, directed at undoing a history
of
outcomes never the subject of challenge at the time. Although the
alleged irregularities were discovered after the appointment of
the
intervention team, there is no clear and concise explanation as to
why it took a year and three months to bring a handful of
cases to
court in May 2019, and the bulk in November 2019, the latter without
any discreet application for condonation. On this
basis alone,
condonation stands to be refused.
[15]
To the extent that the applicant’s prospects of success are
relevant, the first and third
respondents have raised a number of
preliminary issues which, the failure to make out a proper case for
condonation aside, would
in in any event result in the main
application being dismissed. First, the respondents contend that in
the amended notice of motion
dated 14 October 2019, the applicants
have impermissibly amended the original notice of motion to include
an additional applicant
and nine additional respondents in the
headings of both the amended notice of motion in the supplementary
affidavit. What this
amounts to is an apparent joinder of those
parties in the absence of any application having been brought in
terms of Rule 22 for
the proper joinder as parties. Further, it does
not appear from the amended notice of motion that service of the
supplementary
affidavit was effected on the additional parties.
Secondly, there is no application to condone the late filing of the
supplementary
affidavit. On the applicant’s own version, the
review record was provided by the bargaining council on 21 June 2019.
Paragraph
11.2.1 of the practice manual requires the applicant to
collect the record within seven days of being notified by the
registrar
that the record has been received. The applicants were then
afforded 10 days after the registrar had made a record available
within
which to deliver a Rule 7A (8) notice and accompanying
affidavit. The amended notice of motion and supplementary affidavit
were
delivered only on 17 October 2019, with no application for
condonation. In these circumstances, the amended notice of motion and
supplementary affidavit are not properly before the court. Further,
in terms of the recently amended s 145(5) of the LRA, the applicant
was required to apply for a date for the matter to be heard within
six months of delivering the review application. The applicant
has
failed to do so. Further, in respect of the recently amended s145(8)
the applicant was required to furnish security to the
satisfaction of
the court in accordance with that provision. No security has been
furnished, nor has any exemption from the requirement
to furnish
security being sought. Finally, and on the assumption that the
supplementary affidavit filed in terms of Rule7A (8)
is properly
before the court, it is not permissible for an applicant in a review
application simply to include in that affidavit
original awards and,
as in this case, settlement agreements, within the scope of review.
The purpose of the supplementary affidavit
is to supplement that any
grounds for review recorded in the founding affidavit in respect of
which a specific arbitration award
is sought to be reviewed. Should
an applicant wish to seek the review of additional awards and/or
settlement agreements, that review
ought to be the subject of
separate review proceedings, as opposed to being included for the
first time in the notice and accompanying
affidavit contemplated by
Rule 7A (8). In short, and to the extent that the merits of the main
application are relevant to the
exercise of the discretion to grant
or refuse condonation, the applicant’s prospects of success in
the main application are
minimal, if they exist at all. Condonation
for the late filing of the application for review thus stands to be
refused.
[16]
The court has a broad discretion in terms of s 162 to make orders for
costs according to the
requirements of the law and fairness. The
court conventionally does not make orders for costs in circumstances
where collective
bargaining partners are in dispute, particularly
where the effect of the order may be to compromise the collective
bargaining relationship
between the parties. In the present instance,
the parties are collective bargaining partners. The present dispute
arises from circumstances
that are to say the least unfortunate, and
in all probability, the result of forces that are numerous and
various and over which
none of the parties may have direct control.
It seems to me that the interests of the law and fairness are best
satisfied by each
party paying its costs.
I
make the following order:
1.
Condonation for the late filing of the review application is refused.
2.
The review application is dismissed.
3.
There is no order as to costs.
André
van Niekerk
Judge
APPEARANCES
For
the Applicant: Adv M Mathaphuna, with Adv Ngwana and Adv Mahlase
instructed
by Bokwa Inc
For
the Respondent: Adv S Grobler SC, instructed by Kramer Weihmann &
Joubert Attorneys