Magxala v Department of Health, Northern Cape and Others (C127/2022) [2025] ZALCCT 9 (5 February 2025)

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[2025] ZALCCT 9
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Magxala v Department of Health, Northern Cape and Others (C127/2022) [2025] ZALCCT 9 (5 February 2025)

THE LABOUR COURT OF
SOUTH AFRICA
AT CAPE TOWN
Not Reportable/Of
interest to other judges
case
no: C 127/2022
In
the matter between:
NONTSIZI
YVONNE MAGXALE
Applicant
and
DEPARTMENT
OF HEALTH, NORTHERN CAPE
First
Respondent
MEMBER
OF THE EXECUTIVE COUNCIL FOR HEALTH, NORTHERN CAPE PROVINCE
Second
Respondent
PUBLIC
HEALTH AND SOCIAL DEVELOPMENT SECTORAL BARGAINING COUNCIL
(“PHSDSBC”)
Third
Respondent
COMMISSIONER
DAVID PETERSEN
N.O
Fourth
Respondent
COMMISSIONER
JULES MCGILLAVRAY-TEALE
N.O
Fifth
Respondent
ALBERT
LINKS
Sixth
Respondent
Heard:
22 January 2025
Delivered
:
5 February 2025
Summary:
(Application for review of two awards
and condonation – very excessive delay – explanation
wholly inadequate marked
by a complete lack of meaningful detail)
JUDGMENT
LAGRANGE, J
Introduction
[1]
This is an application to review and set aside two arbitration
awards. The first award, handed down on 29 June 2020 by
the fourth
respondent, concerned an unfair labour practice relating to
promotion. In that matter, the employee party was the sixth

respondent, Mr A Links (‘Links’).  The outcome of
the award was that the post he occupied was declared to be that
of
CEO of the West End Specialist Hospital (‘WEH’) in
Kimberley and a job evaluation grading his post at salary level
13
had to be given effect to.
[2]
The second award was issued ten months later, on 29 April 2021. The
employee party in that dispute is the applicant, Ms
N Magxala
(‘Magxala’). The dispute concerned Magxala’s
unsuccessful application for appointment as the CEO of
the new
Kimberly Mental Health Hospital (‘NMH’). She had applied
for the position on 20 December 2019. Magxala claims
she joined Links
as a respondent in the arbitration proceedings, though he is not
reflected as a respondent in the award.
[3]  Magxala seeks
to set aside both awards and wants the court to substitute the second
award with an order that the Northern
Cape Department of Health and
its MEC, being the first and second respondents respectively, must
“finalise” the recruitment
process for the post of CEO of
the NMH which began with the advertisement of the post, but was never
concluded, owing to the outcome
of the first award which resulted in
Links’ appointment as the CEO of the West End Specialist
Hospital (‘WESH’),
of which the NMH was a part.
[4]
Links had been employed as the CEO of WESH since 2014. It was common
cause this was the only specialised hospital in the
Northern Cape. In
October 2019, the third respondent (‘the department’) had
refused to implement a job evaluation which
had determined that his
post should be upgraded from salary level 12 to 13. It was common
cause that in his post he was managing
both the DRTB and Mental
Health clinics of the WESH and that the Mental Health Clinic was a
stand-alone facility subsequently housed
in new hospital premises,
also referred to as the NMH. Links’s office had moved to the
new NMH premises. He had argued that
the relocation of the mental
health clinic to new premises did not entail the establishment of a
new hospital since the Minister
of Health never gazetted its
re-classification, nor had the provincial MEC applied to have it
re-classified as such under the
Mental Health Care Act 17 of 2002
. He
had applied for a job evaluation to be conducted on his post because
a DPSA circular had indicated that job evaluation results
of hospital
CEOs did not address the position of provincial specialised
hospitals. The new job evaluation of his post in May 2018
determined
that his post be upgraded to salary level 13 and the MEC approved it,
but it was not implemented.
[5]
Subsequently, the department indicated it wanted him to act as CEO of
the Mental Health Clinic and he became aware at
the end of 2019 that
a new post as CEO of the NMH had been advertised. This prompted him
to interdict that process. This the court
halted the recruitment
process pending the outcome of his dispute concerning his promotion.
The department’s witness testified
that advertising the CEO
post of the New Mental Hospital (‘NMH’) without a job
evaluation of the post being conducted
first, was irregular. Further,
because the NMH facility had not been designated as a stand-alone
hospital, no CEO could be appointed
for it.
[6]
The
arbitrator found that because the MHC had not been designated as a
hospital in its own right, the status of the two specialist

facilities remained unchanged, namely the only designated specialist
hospital was the WESH comprising the two specialist clinics.
The
arbitrator found that in terms of  Public Service Regulation
[1]
45(1), if a post was undergraded, it was mandatory that the executive
authority had to increase the grade to a higher salary level
subject
to budgeted funds being available. He also considered Regulation
45(2):
“
45.
Undergraded posts.­(1)  If the job weight demonstrates that
a  post is undergraded and the department's
budget and  the
medium­term expenditure framework­
(a)
provides for sufficient funds, an executive authority shall increase
the grade of the post to
a higher salary level; or
(b)
does not provide for sufficient funds, an executive authority shall
redesign the job to equate
with the grade of the post prior to
regrading.
(2)    If
an executive authority increases the grade of a filled post as
provided under subregulation (1) (a), he
or she shall continue to
employ the incumbent employee in the higher­graded post without
advertising the post if the incumbent­
(a)
already performs the duties of the post;
(b)
has received a satisfactory rating in his or her most recent annual
moderated and approved performance
assessment in the post and where
the incumbent has not yet been assessed, his or her performance shall
first be assessed to determine
whether the performance is
satisfactory;
(c)
meets the inherent requirements of the post; and
(d)
has been in the post for at least twelve calendar months.”
“
(2)
If an executive authority increases the grade of a filled post as provided under subregulation (1) (a), he

or she shall continue to employ the incumbent employee in the higher
graded post without advertising the post if

the incumbent
a)
already performs the duties of the post;
b)
has received a satisfactory rating in his or her most recent annual
moderated and approvedperformance assessment in the post; and
c)    where the incumbent has not yet been assessed, his or her

performance shall first be assessed to determine whether the performance is satisfactory;meets the inherent requirements of the post; and

has been in the post for at least twelve calendar months
(3)  The higher salary applicable to the incumbent employee in the higher

graded post as provided under
subregulation (2) shall take effect on the first day of the month following the month of approval by the executive

authority in terms of subregulation (1).”
[7]
Satisfied that the evidence was uncontested that Links met the
requirements of Regulation 45(2), the arbitrator concluded
that the
department had failed to comply with its own national policy. He
rejected the department's submission that the job evaluation
required
ministerial approval before it could be implemented and found that
the approval by the MEC in April 2019 was sufficient.
Further, he
decided that because Links was managing both specialist clinics it
was obvious he was the CEO of WESH, because it comprised
the two
units. In the circumstances, in terms of his declaratory power under
s 138(9)(c) of the Labour Relations Act, 66 of 1995
(‘the LRA’)
he was entitled to make a declaration to the effect that Links
occupied the post of CEO of a Specialised
Hospital on salary level
13.
[8]
It is unclear when Magxala referred her own unfair labour practice
dispute to conciliation, but on 13 April 2021 that
the arbitration of
her dispute commenced. The award in her matter was handed down on 29
April 2021. The gist of the award was that
in the advertisement of
the post the department had expressly reserved the right not to fill
it, and the creation of the post in
its entirety had subsequently
been abandoned after Links’ award was handed down. Accordingly,
Magxala could not show that
she had been unfairly denied an
opportunity to compete for the post together with other applicants,
in circumstances where none
of the applicants were considered and the
post itself had been abandoned.
[9]
Before either of the review applications can be considered, Magxala
must persuade the court that her condonation application
for the late
filing of both review applications should be condoned.
The condonation
application
The extent of the delay
[10]
On her own account, Magxala became aware of the first award on 22
September 2020, about three months after it had been
issued. This was
when she was advised by the department that Links had been appointed
to the position in terms of the award. It
also advised her that the
selection and recruitment process for the MHC had been halted pending
the outcome of that award as a
result of the interdict obtained by
Links. She states that “
it took time to get a copy of the
award”,
but in a glaring omission fails to state when she
did, thus obscuring when the six-week period for launching the review
commenced.
As mentioned, the second award was handed down on 29 April
2021.  The review application was only launched on 6 April 2022,

nearly a year after the second award and nearly a year-and-a-half
after she became aware of the first award. A review of the first

award should have been launched no later than 3 November 2021, and a
review of the second award, no later than 10 June 2021. Consequently,

the review of the first award was approximately 520 days late and the
second about 300 days late.
[11]
Even is
some allowance is made for the unspecified time it took for Magxala
to obtain a copy of the first award, by May 2021 she
had instructed
attorneys to launch the review application, so she had it by then.
At best for Magxala, that still makes the
review of the first award
at least as late as the review of the second award. In any event that
is hypothetical in the absence
of her disclosing when she did receive
it. Both periods of delay are very excessively long, having taken
twelve and seven times
longer, respectively, than the time permitted
in terms of s145(1)(a) of the Labour Relations Act, 66 of 1995 (‘the
LRA’).
The delay must also be considered in light of a policy
underlying dispute resolution under the LRA, namely that there is an
imperative
disputes must be conducted expeditiously
[2]
.
The explanation for the
delay.
[12]
In
Grootboom
v National Prosecuting Authority & another
[3]
the Constitutional Court
stated:
“
[23] It is now
trite that condonation cannot be had for the mere asking. A party
seeking condonation must make out a case entitling
it to the court's
indulgence. It must show sufficient cause.
This requires a party
to give a full explanation for the non-compliance with the rules or
court's directions. Of great significance,
the explanation must be
reasonable enough to excuse the default
.”
(emphasis added)
In
Chetty v
Baker McKenzie
[4]
, the LAC reaffirmed that:
“
[10] However, the
further principle applicable in conjunction with the broad approach
of Melane is that in the absence
of a full and reasonable
(acceptable) explanation for the delay, the prospects of success are
immaterial, and that if there are
no prospects of success an
application for condonation should be refused even if there is a good
explanation for the delay.
It is important that the
explanation for the delay, considered objectively, must be
‘sufficiently cogent to warrant a consideration
of the
prospects of success’. There are those explanations that
do not meet the objective standard. In such cases the
court would be
justified in not considering the prospects of success, because they
are immaterial, unless issues are raised that
would justify the
court’s interference. The explanation for the delay must thus
be full and reasonably clear, logical and
convincing to excuse the
default.
”
(emphasis added)
[13]
Where the
delay is extensive, as it is in this instance, if the delay cannot be
justified, prospects of success may be immaterial
to the condonation
application.
[5]
. An applicant
for condonation is expected to give a reasonable explanation for all
periods delay
[6]
.
[14]
There is some dispute that Magxala only became aware of the first
award in September 2020, but for the purposes of this
analysis I will
assume in her favour that her version must be accepted. What is
entirely missing from her account is any explanation
what steps she
took after that to obtain a copy of the award and when she did
receive it.  She refers vaguely to the fact
that it took “
some
time”
, but what “
some time
” was, remains
a mystery.  In her replying affidavit she added that, at some
other unspecified time, she appointed “
other attorneys from
Engelsman Magabane Attorneys in Kimberely but did not get any joy
from them as they did not even issue the
application on my behalf I
had to get an alternative”
. This implies that previous
attorneys had been appointed, but she does not tell the court who
those attorneys were, when they were
instructed, when their mandate
was terminated, when she appointed the Kimberley attorneys she
mentions, and when their mandate
was also terminated. Insofar as the
very sketchy details of her supposed dealings with previous attorneys
are concerned, her account
is completely opaque and reveals nothing
of value in explaining the delay.  It is difficult to understand
how Magxala could
believe that she has furnished any explanation for
the delay in reviewing the first award, for the period from September
2020 until
mid-March 2021. For the subsequent period she offers
another explanation relating to the illness of her sister and mother,
both
of whom passed away in June and October 2021 respectively.
[15]
Magxala’s sister had been caring for their mother in De Aar who
had been suffering from diabetes and hypertension
for some years. In
late March 2021, her sister also fell ill and was hospitalised owing
to Covid-19 infection and subsequently
was diagnosed with cancer.
Owing to her sister being incapacitated, Magxala could no longer care
for their mother, and she had
to find an alternative carer. This
situation caused her considerable distress and by May 2021 she was
suffering high levels of
anxiety and was diagnosed with major
depression and was placed on treatment. She was advised to avoid
stressful activity and to
focus on activities which were more
conducive to a positive mental outlook.
[16]
Magxala’s sister succumbed to her illness at the end of June
2021 and her mother passed away in early October that
year. Magxala
says the strain of grieving their loss led to her failing to comply
with one of her work obligations. In March 2022,
her psychiatrist
issued her with a letter confirming that she had been under treatment
since May 2021 and that her grief disorder
and treatment in the form
of medication had negatively affected her cognitive, social and
occupational functions.  The letter
stated that it was
recommended that she be granted “
time concessions where she
so requests.”
This letter is the only document Magxala
provided in support of her illness.
[17]
Doubtless Magxala’s situation must have been very stressful.
However, nowhere does she state she missed any
work as a result, or
that she took sick leave. The psychiatrist’s letter only asks
that she be granted time concessions when
she requested it. She did
not claim she was booked off work or that she could not perform her
work, apart from one duty she neglected.
Magxala also was able to
testify at her arbitration hearing on 13 April 2021, which was after
her sister had fallen ill. In passing,
I note that by that stage she
definitely had a copy of the first award because she referred to the
document when she gave her evidence
at the arbitration.
[18]
In argument, her attorney,
Mr Lobi
urged the court to have
regard to the general impact of the Covid-19 epidemic as a further
factor justifying the delay, but apart
from the illness of her mother
and sister, any detail of the specific impact of the pandemic on
Magxala’s ability to launch
her review is entirely absent from
her account.  For the time when her mother passed away in
October 2021 and launching the
review application in early April
2022, Magxala provides no explanation what prevented from acting.
[19]
The upshot is that the explanation tendered for such a long delay is
wholly lacking in the necessary detail from which
the court could
infer that she was engaged in a serious endeavour to initiate the
review application but was thwarted by obstacles
in her way. In the
circumstances, I am satisfied that her condonation application should
be dismissed for this reason alone.
[20]
Even if I were to consider the prospects of success, the problems she
would face are formidable.  Essentially, in
order to succeed
Magxala would have to be able to compel the department to
re-advertise a position which it had withdrawn, and
which would
overlap with the position occupied by Links. Even if she were able to
establish that she had
locus standi
to review the first award
and if she could demonstrate that the first arbitrator had no
authority to ‘appoint’ Links
to the post of CEO of WESH,
it does not follow that the department has to resuscitate the post
she applied for, which it abandoned
once the first award was issued.
[21]
In view of the analysis above, the following order is made:
Order
1.
The
application to condone the late filing of the review application of
arbitration awards dated 29 June 2020 (case number PSHS
848-19/20)
and 29 April 2021 (case number PSHS 601-20/21) issued by the Fourth
and Fifth Respondents respectively is dismissed.
2.
No
order is made as to costs.
R Lagrange
Judge
of the Labour Court of South Africa
.
Representatives:
For
the Applicant: Lulama Lobi of Lulama Lobi Inc.
For
the Sixth respondent: Donald Carls from Carls Attorneys
[1]
GNR.877 of 29 July 2016:  Public Service Regulations, 2016(Government Gazette No. 40167),

as amended.
[2]
See
National
Union of Metalworkers of SA on behalf of Thilivhali v Fry’s
Metals (A Division of Zimco Group) and others (2015)
36 ILJ 232 (LC)
at para 25.
[3]
(2014) 35
ILJ
121 (CC).
[4]
(2022) 43
ILJ
1599
(LAC)
[5]
See
NUM
v Council for Mineral Technology
[1999] 3 BLLR 209
(LAC) at paragraph [10],
Moila
v Shai NO & others
(2007)
28
ILJ
1028
(LAC)
at paras 34-37,
A
Hardrodt (SA) (Pty) Ltd v Behardien & another
(2002) 23
ILJ
1229 (LAC) and
Transport
& Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd &
others
(2019) 40 ILJ 827 (LAC) at paragraph 38.
[6]
NUMSA &
another v Hillside Aluminium
[2005] ZALC 25
;
[2005] 6 BLLR 601
(LC) at paragraph
[12]