THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG

Reportable
Case No: JR1897/2 0

In the matter between:
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Applicant
and
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL First Respondent
LUFUNO RAMABULANA N.O. Second Respondent

NS MAHADA Third Respondent

Heard: 12 January 2024
Delivered: 11 February 2025


JUDGMENT

DE HAAN, AJ

2

Introduction

[1] On the face of it, what serves before me is a simple rescission application. On
3 December 2020, the Minister of Justice and Constitutional Development (Minister)
brought a review application against the arbitration award given on 14 July 2020 by the second respondent in his official capacity as a panelist of the first respondent under GPSSBC case number PSGA430- 03/04. The rescission application before me
is to rescind the default order entered by this court per Moshoana J on 26 October
2021, in terms of which order the Minister’s review application was archived. For the
reasons that appear below that part is indeed straightforward .
[2] In addition to the prayer for rescission , the Minister’s notice of motion contains
two substantive prayers , essentially for the same thing, the first being for retrieval of
the archived file and the second being for the reinstatement of the Minister’s review application. Counsel for both parties submitted that, even if I decided to grant both
the rescission and the reinstatement applications, the review application is not before me. I am therefore set the task of formulating a judgment in response to the
Minister’s prayer s for de-archiving and reinstatement, which present some difficulty .

Relevant background
[3] Having been employed since 1971, t he third respondent, Mr NS Mahada, was
still in the employ of the then Department of Justice of Venda as State Law Advisor
when in August 1996 he was seconded to the Provincial Department of Health,
Western Cape, for a period of three years ending on 30 September 1999, during
which period he was stationed in Cape Town .
[4] On 14 June 1999 Mahada, who was then 51 years of age, applied to the
Department of Justice for early retirement effective 1 October 1999, i.e. the day after
his secondment would end. Mahada’s application for early retirement was never
finalized , because Mahada had not stated any reasons for wanting to take early
retirement . When his salary was later frozen, Mahada withdrew his application for
early retirement .
3

[5] On 5 July 1999 the Director -General of the Western Cape Department of
Health reminded Mahada in writing that his secondment would end on 30 September
1999 and that he would resume his duties with the Department of Justice and
Constitutional Development, into which the former homeland offices of the Department of Justice had in the interim been amalgamated. However, Mah ada
never reported to the Department of Justice and Constitutional Development ’s
Limpopo Regional Office in Polokwane, or indeed anywhere, to resume his duties.
[6] Despite not reporting for duty after his secondment had ended, Mahada
continued receiving his salary . Then, on 28 January 2000, the Department invited
Mahada to attend i ts long service awards ceremony on 11 February 2000, where he
received a 20-year service award. Only when Mahada queried the award, as he
would have been in service for thirty years, not twenty, the Department realized that Mahada had not reported for duty after his secondment ended.
[7] On 14 February 2000, Mr Matlala, the Deputy Director: Labour Relations at
the Department’s Regional Office froze Mahada’s salary and on 18 February 2000,
Matlala wrote to the Department Head Office reporting that Mahada had informed him (apparently at the awards ceremony) that he had retired.
[8] On 13 April 2000 Mahada withdrew his early retirement application, stated
that he was r eady to resume his duties, and request ed that the suspension of his
salary be uplifted. He still did not report for duty. I note that, at th at stage, Mahada
had already been absent for more than 6 months and the consequences of section 17(5)( a)(i) would already have flowed from this fact.
[9] On 14 June 2000 the Department addressed a letter to Mahada inviting him to
show cause why his absence since 1 October 1999 should not be regarded as abscondment. Mahada did not reply with submissions to show cause, nor did he
apply to the Director -General to be reinstated , but instead he alleged that he did not
know where to report after his secondment ended.

4
[10] On 2 August 2002, the Regional Head of the applicant in Polokwane wrote to
Mahada informing him that he h ad been discharged with effect 1 October 1999 in
terms of section 17(5)(a)(i) of the PSA and informing him of the provisions of section
17(5)( b) of the PSA , in terms of which Mahada could make representations to the
Director -General to be reinstated.

[11] A dispute was referred to the General Public Servic e Sectoral Bargaining
Council (GPSSBC), and on 17 February 2003 Commissioner Roux issued a ruling that the GPSSBC did not have jurisdiction due to Mahada’s failure to compl y with
section 17(5)(b) of the PSA , i.e. Mahada had not requested the Director -General to
reinstate him.
[12] On 12 September 2003, after receiving Mahada’s belated representations to
be reinstated, the Director -General declined to reinstate him. According to the
founding affidavit in the review application, Mahada was informed o n 29 September
2003 that his representations for his reinstatement had failed.

[13] Mahada then again referred a dispute to t he GPSSBC under case reference
PSGA 430 -03/04, which was arbitrated on 20 May 2004. Commissioner J Le Roux
ruled that Mahada had absconded, but that the reasons for refusing to reinstate him were unfair. It should be noted that this ruling did not address the provisions of
section 17(5) of the PSA and that it did not consider that the appropriate remedy for
Mahada was to take the 12 September 2003 decision by the Director -General on
review in terms of section 158(1)(h) of the LRA .
[14] It does not appear from the court file what occurred for the next 6 years, other
than that o n 17 February 2010 Basson J granted an applicat ion by Mahada to review
and set aside a jurisdictional ruling , referr ing the dispute for arbitration de novo. The
reasons for the order do not appear in the court file.
[15] On 10 June 2011 Mahada again referred his unfair dismissal dispute to the
GPSSBC. I note that there was a 16- month delay between Basson J ’s order and
Mahada’s referral. In any event, this referral again resulted in a ruling by
5
Commissioner Malema that the GPSSBC does not have jurisdiction as there had
been no dismissal.

[16] On 21 April 2016, Lagrange J granted Mahada’s application to review and set
aside the jurisdictional ruling, still under case number PSGA 430- 03/04, and remitted
the dispute back to the GPSSBC for a nother hearing de novo. Mahada alleges in his
answering affidavit to the review application that the court found on 21 April 2016
that the GPSSBC has jurisdiction to determine the dispute, pleading res judicata to
the issue of jurisdiction .
[17] On 10 August 2017, another 16 months later, Mahada informed the
Department of Justice and Constitutional Development that the Labour Court had set aside the jurisdictional ruling of Commissioner Malema and that the dispute was
again remitted to the GPSSBC for a nother hearing de novo.
[18] It is this unfair dismissal dispute that was finally arbitrated by the second
respondent, Mr Lufuno Ramabulana under the same case number - PSGA430 -03/04
- from 13 March 2019. I mention the second respondent by name because it proves
to be peculiarly relevant.
[19] At arbitration before Ramabulana, the Minister again argued that the
GPSSBC did not have jurisdiction to arbitrate the dispute, as there had been no dismissal. The termination of Mahada’s service was due to the operation of law.
[20] In his award of 14 July 2020, Ramabulana held that the Minist er’s
jurisdictional challenge had no merit ; that Mahada had been dismissed ; that the
dismissal was unfair ; and that Mahada should be reinstated retrospectively to 1
October 1999, but only up to 28 February 2013, which would have been Mahada’s retirement date.
[21] In his award, Ramabulana recorded that, after consulting external parties, he
calculated what he estimated Mahada would have received as salary adjustments
between February 2000 and February 2013 and, based on these calculations, Ramabulana ordered the Minister to pay Mahada back -pay of R5,683,235.52 ; leave
6
pay of R470,511.55; arrear s salary for 1 October 1999 to 14 February 2000 of
R86,436.50; and the costs or arbitration “ at a higher scale”.

[22] On 21 October 2020, the award was forwarded to the applicant.
[23] On 16 November 2020, Mahada requested that the awar d be certified, and
this was done by 23 November 2020.
[24] On 23 and 24 November 2020 the Minister’s review application under the
above case number was served on the respondents . It was filed on 3 December
2020.
[25] On 17 December 2020, the GPSSBC delivered the record to the Registrar.
[26] On 11 February 2021, the applicant f iled the record and on 25 February 2021
the applicant filed its notice in terms of the then rule 7A(8) (b). This was within the
time provided for in practice directives 11.2.3 and 11.2.7. On 10 March 2021,
Mahada informed the applicant that the record was incomplete. The parties
consent ed to a reconstruction hearing and according to the Minister he requested
the GPSSBC to sche dule a reconstruction hearing. This is not disputed by Mahada,
neither is the allegation that the GPSSBC has not yet scheduled a reconstruction
hearing.
[27] On 3 September 2021, Commissioner Lufuno Ramabulana brought an ex
parte application to the Labour Court for the revie w application to be archived. This
application was only served on the Minister five months later .
[28] On 26 October 2021, Moshoana J considered Ramabulana’s application in
chambers and ordered that the file be archived in terms of paragraph 16.1 of the
Practice Manual.
[29] Bare ly a week later, on 3 November 2021, Mahada caused the Sheriff
Pretoria Central to attach office furniture to the value of R1,700,000.00 at the
Department of Justice and Constitutional Development’s offices in Pretoria.
7

[30] On 7 January 2022 the State Attorney, Pretoria was served a copy of the
application for an enforcement order. However, the State Attorney, Polokwane is on
record for the applicant.
[31] On 3 February 2022 the State Attorney , Pretoria , was served with
Ramabulana’s archiving application. This was five months after the application was
brought and three months after Ramabulana’s ex parte application was granted in
chambers by Moshoana J. The State Attorney, Polokwane, was never served with
the archiving application.
[32] On 26 February 2022, the applicant brought an urgent application for the stay
of the application for enforcement of the arbitration award, but the application was struck from the roll for lack of urgency.
[33] O n 11 March 2022, Mahada applied to the Labour Court ex parte to re-issue
the writ of execution in terms of Ramabulana’s award for R 6,240,183.27, plus
interest thereon at 15.5% from 10 August 2020 and to attach the Department’s bank
account . This application too was not served on the Minister.
[34] On 17 March 2022, a notice of set down for the re -issue application was
served on the State Attorney , Polokwane. The application itself was not served on
the applicant so the Minister’s legal representative proceeded to attend court on 26
April 2022 without knowing what the application was about.
[35] On 26 April 2022 at the hearing of the re -issue application the Minister’s legal
representative became aware of Ramabulana’s archi ving application and the
resulting order by Moshoana J .
[36] On 2 June 2022, the Minister brought the application for rescission and
reinstatement that is currently before me.

Rescission

8
[37] Rule 16A(1) (now rule 46(1)) provided that:
‘(1) The court may, in addition t o any other powers it may have:
(a) of its own motion or on application of any party affected, rescind or vary
any order or judgment:
(i) erroneously sought or erroneously granted in the absence of any party
affected by it;
(ii) in which there is an ambiguity or a patent error or omission, but only to
the extent of suc h ambiguity, error or omission;
(iii) granted as the result of a mi stake common to the parties, or
(b) on application of any party affected, rescind any order or judgment
granted in the absence of that party. ’

[38] The facts relevant to the determination of t he rescission application are mostly
common cause. Ramabulana brought the archiving application ex parte and it was
only served on the State Attorney, Pretoria, months after the order was granted in
chambers . The requirement of rule 46(1) (b) are therefore met.

[39] Both Ms Tsatsi SC, who appeared for the Minister and Mr Swiegers , who
appeared for Mahada agreed with me that they have never encountered a matter in
which an arbitrator brought an application to archive a n application to review his or
her award. I have searched extensively for such a case but could find none.
[40] In my view, the only interest an arbitrator has in the outcome of the review
application is academic , or nominal , in that he or she was the arbitrator who made
the award. An arbitrator ’s nominal interest in a review of his or her award does not
meet the requirements for locus standi to bring an application for substantive relief
that would bring an end to the matter. The requirements for locus standi in judicio are
that the party must have an adequate interest in the subject matter of the litigation;
the interest must not be too remote; the interest must be actual; and the interest must not be hypothetical .
1 Ramabulana, having no personal interest in the outcome
of the review application, had no locus standi to bring th e archiving application.


1 Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 451 (SCA) ; [2018] ZASCA
124.
9
[41] Ramabulana took a personal interest in the review application to such an
extent that he felt obliged to take the unprecedented step of bringing an application
to this court to have it archived. He brought the application ex parte and without
informing the Minister . Ramabulana cited t he GPSSBC as an applicant in his
application to archive the review application, but there is nothing in that application to
definitively indicate that the GPSSBC was in fact aware of the application. Mahada
neither brought, nor supported Ramabulana’s archiving application, but he very soon thereafter relied on the resulting order for his attempts to execute on the award. The
unheard- of involvement of Ramabulana and the sequence of events fill me with a
sense of unease.
[42] The Minister’s rescission application was not seriously contested on the
papers . Before me, Adv Swieger s conceded that it would be appropriate for the
rescission application to be granted, with the caveat that I should only rescind the
archiving order if it would have any effect on the status of the review application.
[43] In effect, Ms Tsatsi SC contended that, given the serious defects in the
archiving application brought by Ramabulana I have no choice but to grant the
rescission application, which would automatically revive the review application.
Although I agree that Ramabulana’s archiving application stands to be rescinded, i n
my view resci nding Moshoana J’s archiving order would not in and of itself reinstate
the review application.

[44] Paragraph 11.2.7 of the 2013 Practice Manual of the Labour Court , which was
in effect at all relevant times, provided that:
‘11.2.7 A review application is by its nature an urgent application. An
applicant in a review application is therefore required to ensure that all the necessary papers in the application are filed within twelve (12) months of the date of the launch of the application (excluding Heads of Arguments) and the registrar is informed in writing that the application is ready for allocation for hearing. Where this time limit is not complied with, the application will be archived and be regarded as lapsed unless good cause is shown why the
application should not to be archived or be removed from the archive. ’

10
[45] Mr Swiegers argued for the third respondent that, even if I rescinded
Moshoana J’s archiving order of 26 October 2021, the review application has lapsed
in terms of paragraph 11.2.7 of the 2013 Practice Manual and it has therefore been
automatically archived by operation of law. The rescission of Moshoana J’s order therefore does not in it self reinstate the review application. Given that the review
application had already lapsed and had been archived ex lege under practice
directive 11.2.7 due to the lapse of time, even in the absence of the order by Moshoana J, the matter remains archived until a properly motivated reinstatement application is brought and granted.
[46] Mr Swiegers argued that, a s the prayers for de- archiving and for
reinstatement w ere not properly motivated by addressing all of the required factors in
the founding affidavit, granting the rescission application would be an exercise in futility, as I could not grant an order for reinstatement. Although this argument is
appealing, it puts the cart before the horse, as w ithout the rescission of Moshoana
J’s order of 26 October 2021, any reinstatement application is still born. Therefore,
and for the reasons stated above, a s a starting point the rescission application must
succeed.

De-archiving / reinstatement
[47] It is trite that an application for reinstatement is akin to a condonation
application. The court is guided by the requirements for condonation as established
in Melane v Santam Insurance Co. Ltd
2. In the final analysis, the court must decide if
it is in the interest of justice to grant the application for reinstatement.
[48] In Zono v Minister of Justice and Correctional Services; In Re: Minister of
Justice and Correctional Services v Zono and Others
3 (Zono) the court held with
respect to review applications deemed withdrawn under paragraph 11.2.3 of the practice manual that:
‘An application for reinstatement of a review application deemed to have been
withdrawn is, in essence, an application for condonation. It is incumbent on

2 1962 (4) SA 531 (A).
3 [2020] 11 BLLR 1160 (LC) at para 17; [2020] ZALCJHB 215 (LC).
11
the applicant to show good cause why, in this case, the record of the
proceedings under review was not filed within the prescribed time limit. Condonation is not there merely for the asking, nor are applications f or
condonation a mere formality …’
[49] As Snyman AJ pointed out in Moetji v General Public Service Sectoral
Bargaining Council and Others
4 (Moetji) in the case of review applications archived
under paragraph 11.2.7 of the Practice Manual a reinstatement application is
required to retrieve the review application. In Samuels v Old Mutual Bank5 (Samuels)
the LAC held that :
‘In essence, an application for the retrieval of a file from the archives is a form of an application for condonation for failure to comply with the court rules, time frames and directives. Showing good cause demands that the application be
bona fide; that the applicant provide a reasonable explanation which covers
the entire period of the default; and show that he/she has reasonable
prospects of success in the main application, and lastly, that it is in the interest of justice to grant the order …’

[50] The judgments in Zono, Moetji and Samuels mean that, after praying for
reinstatement in the notice of motion, the Minister was required to set out the
grounds for his application for reinstatement - i.e. condonation - in his founding
affidavit. This is where t he founding affidavit presents me with difficulty, as the
Minister appears not to have heeded the trite requirement to show good cause by
specifically addressing t he prospects of success in the review application, or the
interest of justice in his founding affidavit in the application before me. The applicant
only offered what it termed a ‘ reasonable explanation covering the period of delay ’.
Counsel for the Minister could not assi st me at the hearing of the matter, as she
persisted in her view that, once the order to archive the review application was
rescinded, the review application would thereby automatically be reinstated. Be that
as it may, e ven in the absence of any assistance from the applicant or his counsel,
the prospects of success and the re sulting interest of justice become clear from an

4 [2023] ZALCJHB 320 at para 49.
5 (2017) 38 ILJ 1790 (LAC) ; [2017] 7 BLLR 681 (LAC) at para 17.
12
analysis of the merits of the review application, which I am required to consider in
deciding the reinstatement application.

Explanation for delay
[51] The Minister provides an explanation for the delay in the founding affidavit. It
boils down to the fact that the first respondent has not yet scheduled a reconstruction hearing as requested, combined with the peculiar archiving application by Ramabulana, which was not served on the Minister until 5 months after the fact, and the subsequent enforcement application by Mahada, which was also not served on
the Minister. In essence, the applicant has complied with the timelines in the practice
manual, but the first respondent must still convene a reconstruction hearing.
[52] The delay in filing the record, if any, was not excessive and I am satisfied with
the explanation provided by the applicant.

Prospects of success

[53] Any consideration of the application for reinstatement requires an assessment
of the Minister’s prospects of success in the review application. In Govender and
others v Commission for Conciliation, Mediation and Arbitration and others6
(Govender) the LAC held:
‘[81] Turning to the merits, I must add that it is in my view always important
to consider the merits of an appeal/application where condonation is sought
because it is only in considering the merits that one can deal with the crucial issue of prospects of success, and this is cardinal in the determination of the granting of condonation. It is trite that excellent prospects of success lead to the granting of condonation even when the delay is substantial and the explanation inadequate.
7 Furthermore, a failure to consider the merits of a
matter would result in a failure to determine whether the interests of justice

6 (2024) 45 ILJ 1197 (LAC); [2024] 5 BLLR 453 (LAC) .
7 National Union of Metalworkers of SA on behalf of Thilivali v Fry's Metals (A Division of Zimco
Group) & others (2015) 36 ILJ 232 (LC).
13
may play a role in determining the merits of the case and consequently the
condonation application. ’
[54] The deciding consideration in any reinstatement application must
ultimate ly be the interest of justice. To determine whether the interest of
justice plays a role in the reinstatement application, I am enjoined by the LAC judgment in Govender to consider the merits of the review application.

Jurisdiction / res judicata
[55] In opposing the review application Mahada pleads that the issue of the
jurisdiction of the GPSSBC is res judicata, as this was decided by the Labour Court on 21 April 2016 per Lagrange J.
[56] There is nothing in the order by Lagrange J to suggest that the court made
any finding as to the GPSSBC’s jurisdiction. All the court did was to review the
jurisdictional ruling and remit the dispute for a hearing de novo. There is nothing in
the order or in the papers before me to suggest what Lagrange J ’s reasons were for
setting aside the jurisdictional ruling, or that the GPSSBC in fact has jurisdiction in a
case such as this where it appears from the objective facts that there was no
dismissal.
[57] In SA National Defence Union and another v Minister of Defence and others;
SA National Defence Union v Minister of Defence and others
8 (SA National Defence
Union ) the court held that “The requisites for a valid defence of res judicata are that
the matter adjudicated upon must have been for the same cause, between the same parties and the same thing must have been demanded … ’. In Yellow Star Properties
1020 (Pty) Ltd v MEC Department of Development Planning and Local Government ,
9
the Court amplified the dictum in SA National Defence Union as follows:
‘…. it is necessary to stress not only that the parties must be the same but the same issue of fact or law which was an essential element of the judgment on which reliance is placed must have arisen and must be regarded as having been determined in the earlier judgment.’

8 (2003) 24 ILJ 2101 (T) at 2109 H- J.
9 2009 (3) All SA 475 (SCA); 2009 (3) SA 577 (SCA) at para 22.
14

[58] In Democratic Alliance v Brummer ,10 the court dealt with what should be
considered when determining whether the same issue had already been decided,
and had the following to say:
‘Where the judgment does not deal expressly with an issue of fact or law said
to have been determined by it, the judgment and order must be considered
against the background of the case as presented to the court and in the light of the import and effect of the order. Careful attention must be paid to what
the court was called upon to determine and what must necessarily have been
determined, in order to come to the result pronounced by the court. The
exercise is not a mere mechanical comparison of what the two cases were
about …’

[59] I am not satisfied that Lagrange J’s order of 21 April 2016 justifies a plea of
res judicata - it does not appear from the judgment, the court file, nor from the
papers filed in the review application or in the application before me what the
grounds for the review application that served before Lagrange J were. Importantly, it
does not appear that the court was called upon to determine whether the GPSSBC
had jurisdiction t o adjudicate Mahada’s dispute. The court notably failed to make
such an order. All that was necessarily required for the court to come to the order
that it made was a finding that the jurisdictional ruling was reviewable because one
of the defects in section 145(2) of the LRA existed.

[60] Section 17(5) of the PSA provides that:
‘(5)(a)(i ) An officer, other than a member of the services or an educator
or a member of the Agency or the Service, who absents himself or herself from his or her official duties without permission of his or her head of
department, office or institution for a period exceeding one calendar month,
shall be deemed to have been discharged from the public service on account
of misconduct with effect from the date immediately succeeding his or her last
day of attendance at his or her place of duty.

10 2022 JDR 3159 (SCA) ; [2022] ZASCA 151 at para 15.
15
(ii) If such an officer assumes other employment, he or she shall be
deemed to have been discharged as aforesaid irrespective of whether the
said period has expired or not.
(b) If an officer who is deemed to have been so discharged, reports for
duty at any time after the expiry of the period referred to in paragraph (a), the relevant executing authority may, on good cause shown and notwithstanding anything to the contrary contained in any law, approve the reinstatement of that officer in the public service in his or her former or any other post or position, and in such a case the period of his or her absence from official duty shall be deemed to be absence on vacation leave without pay or leave on such other conditions as the said authority may determine.’
[61] In the founding affidavit to the review application, the Minister raises several
grounds for review. These are that Ramabulana committed a gross irregularity or misconduct in relation to his duties by finding that the G PSSBC had jurisdiction given
the facts and the provisions of section 17( 5)(a)(i) of the PSA; by ignoring Mahada’s
absence in excess of a calendar month; by ignoring the fact that Mahada had never
reported for duty ; by ordering back -pay without having heard any admissible
evidence regarding the manner of calculation thereof ; by receiving and considering
extra -curial submissions to guide his back -pay calculations; by awarding back -pay
for the entire period from 1 October 1999 even though it was common cause that Mahada had not tendered his services or rendered any services from that date; not considering the delays i n the prosecution of the dispute caused by Mahada in
coming to a fair award; considering irrelevant evidence relating to Mahada’s application for early retirement and misconstruing the evidence before him relating to
Mahada’s knowledge of his place of employment.
[62] In Grootboom v National Prosecuting Authority and Another
11 (Grootboom)
the Concourt dealt with the application of section 17(5)(1) of the PSA. It upheld
Grootboom’s appeal upon finding that the requirements of section 17(5)(1) had not
been met in that Grootboom did not absent himself from his work, because he had
already been suspended. Notably, the Concourt did not overturn the LAC’s finding

11 2014 (2) SA 68 (CC) ; [2014] 1 BLLR 1 (CC) at para 14.
16
that, if section 17(5)(a)(i) of the PSA applied, the discharge would be by operation of
law and would not constitute a dismissal. It was Mahada’s case that he should be
excused from the consequences of section 17(5)(a)(i) of the PSA, because he did
not know where to report for duty . Ramabulana relied on this argument to support
his finding that Mahada was dismissed. This is not the same as Grootboom’s case,
as the Concourt held in Grootboom that he had been suspended and was therefore
not obliged to report for duty. I consider that a senior employee like Mahada with
thirty years’ experience within the Department would know where to report for duty, even without explicit instructions and even if it was simply by reporting to the nearest office of the Department. Mahada’s ex post facto reliance on the lack of clear
instructions by the Department where to report for duty smacks of opportunism, especially when viewed with his application for early retirement and his statement to
Matlala that he had in fact retired.
[63] It has been the Minister’s case throughout that the G PSSBC did not have
jurisdiction to arbitrate the dispute, as there had been no dismissal. I n my view, this
is the correct position in law . The law was set out by Moshoana J in NEHAWU obo
James v General Public Service Sectoral Bargaining Council and Others .
12
Ramabulana was therefore prima facie wrong in his jurisdictional ruling that Mahada
had been dismissed and that the GPSSBC therefore had jurisdiction. Ramabulana
failed to understand that Mahada’s remedy was not to refer an unfair dismissal
dispute, but to apply under section 158(1)(h) of the LRA to this court for the review of
the Director -General’s refusal to reinstate him .13
[64] For these reasons it appears to me that the Minister ’s prospects of success in
the review application are excellent on the issue of the jurisdictional ruling.

Merits of review
[65] In paragraph 7 of his award, Ramabulana expressly states that his award was
deferred while he sought , “other documents and in this regard the salary adjustment

12 NEHAWU obo James v General Public Service Sectoral Bargaining Council and Others [2021]
ZALCJHB 46 5.
13 Mahlangu v Minister of Sport and Recreation (2010) 31 ILJ 1907 (LC); [2010] 5 BLLR 551 (LC).
17
circulars, and consulting people who understand the payments schemes in the public
service ”. By his own admission , Ramabulana made his calculations of the amount of
back -pay he awarded to Mahada, and i n particular the annual salary adjustments
Mahada might have received, without having received any admissible evidence in
this regard, but after seeking extra- curial documents and submissions . In doing so,
Ramabulana prima facie committed gross irregularity and misconduct in relation to
his duties . What’s more, Ramabulana ignored t he fact that Mahada did not tender his
services for at least 5 months and the delays caused by Mahada himself, there being at least two instances of a 16- month delay in prosecuting the dispute, as I mentioned
above. Ramabulana should therefore prima facie at the very least have reduced the
back -pay payable to Mahada by 37 months. The Minister ’s prospects of success are
therefore excellent in respect of this ground for review.
[66] Although Mahada withdr ew his application for early retirement, Ramabulana
dedicated paragraphs 16 to 23 of his award to that application for early retirement.
There therefore appears to be merit in the grounds for review relating to the gravity
with which Ramabulana regarded this irrelevant aspect , as i t appears that
Ramabulana allowed it to influence his decision. The Minister therefore has good
prospects of success on these grounds.
[67] The principles governing cost orders in the Labour Courts are set out in
section 162 of the LRA and have been distilled in the judgments of the LAC in
Member of the Executive Council for Finance, KwaZulu- Natal and Another v Dorkin
N.O. and Another
14 (Dorkin) and by the Concourt in Biowatch Trust v Registrar
Genetic Resources and Others15 (Biowatch) , and in Zungu v Premier of the Province
of KwaZulu- Natal and Others16 (Zungu) . Ramabulana ordered the Minister to pay the
cost of ar bitration on a punitive basis. This he appears to have done without having
due regard to the evidence before him and without considering the precedents
relating to cost orders in labour matters.


14 [2007] ZALAC 41; (2008) 29 ILJ 1707 (LAC) .
15 2009 (6) SA 232 (CC) ; [2009] ZACC 14 .
16 [2018] ZACC 1; [2018] 4 BLLR 323 (CC) .
18
[68] For these reasons, i n my view , the Minister has excellent prospects of
success on review on all the grounds set out in the review application. This is reason
enough to grant the reinstatement application, even if there was an undue and
unexplained delay by the Minister in filing all the papers within a year.

[69] As I said before, a sense of dread fills me when I consider that Mahada was
never dismissed, that the GPSSBC, therefore, prima facie did not have jurisdiction to
arbitrate Mahada’s unfair dismissal dispute; that Ramabulana’s award is replete with
irregularities in how he arrived at the very significant amounts he awarded to
Mahada; and that Ramabulana took the unprecedented step of entering the fray on
Mahada’s behalf, thereby reflecting an unwarranted personal interest in the outcome
of review application.
[70] I simply cannot come to the conclusion that it is in the interest of justice to
refuse to reinstate the review application simply because the Minister did not
enumerate all the requirements for his reinstatement application under clear
headings in his founding affidavit . Refusing to reinstate the review application would
mean that Mahada would receive more than R 6,500,000.00 at the taxpayer’s
expense in circumstances that prima facie indicate that the award is irregular in
several aspects , that Ramabul ana exceeded his authority and committed misconduct
in his duties as an arbitrator , and that the award is therefore reviewable.
[71] In view of the Minister’s good explanation for any delay and the excellent
prospects of success in the review application I find that, despite the technical shortcomings of the founding affidavit , the interest of justice requires that the review
application be reinstated.

Costs
[72] Having consider ed the requirements of law and fairness and the judgments of
the LAC and the Concourt in Dorkin, Zungu, and Biowatch I am not persuaded that
this is a matter in which a cost order is justified.
[73] In the result, the following order is made:
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Order
1. The order dated 26 October 2021 by Moshoana J under the above
case number is rescinded.
2. The review application under the above case number is reinstated.
3. The first respondent is ordered to convene a reconstruction hearing to
remedy the deficiencies in the record within 30 days of this order .
4. There is no order as to costs.

L de Haan
Acting Judge of the Labour Court of South Africa

Appearances:
For the applicant: Adv EK Tsatsi SC, with Adv M B Matlejo ane
Instructed by: State Attorney
For the respondent: Adv Swiegers
Instructed by: