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[2025] ZALCCT 110
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Kline and Others v Member of Executive Council for Department of Health, Western Cape (C42982024) [2025] ZALCCT 110 (20 October 2025)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
Not
Reportable
Case
No.:C429/2024
In
the matter between:
SUSHILLA
LAHRENA PRUDENCE KLINE
First Applicant
TIMOTHY
WILLIAM OLKERS
Second Applicant
JEROME
FRANCISCO MC LAGHLAN
Third Applicant
and
THE
MEMBER OF EXECUTIVE COUNCIL FOR
THE
DEPARTMENT OF HEALTH, WESTERN CAPE
Respondent
Heard:
04 July 2025
This judgment was handed
down electronically by circulation to the parties’ legal
representatives by email, publication on
the Labour Court website and
release to SAFLII. The date and time for handing down judgment is
deemed to be 10h00 on 20 October
2025.
JUDGMENT
BANDERKER,
AJ
Introduction:
[1]
The first quarter of the 2020 year marked the advent of the outbreak
of the severe acute respiratory syndrome coronavirus
(SARS-COV-2)
globally, with the lives of more than 5 million individuals lost
due to the coronavirus disease 2019 (COVI-19).
[2]
The South African Journal of Infectious Diseases, published on the
29
th
March 2022 states that the South African Healthcare
system posed unique challenges in terms of limited fiscal resources
and infrastructure,
stark disparity between public and private health
sectors, understaffing and the so-called quadruple burden of disease
(viz maternal
and child deaths, human immunodeficiency virus (HIV) or
acquired immunodeficiency syndrome (AIDS) and tuberculosis (TB),
non-communicable
diseases and trauma injury).
[3]
The South African Journal of Infectious Diseases, published on the
29
th
March 2022 further states that the Western Cape and
specifically the Cape Town metropole was the area hit the severest
during the
initial stages of the pandemic in South Africa.
Despite a robust contingency plan implemented by the Western Cape
Government:
Department of Health, the lives of thousands of
patients were tragically lost due to COVID-19.
[4]
In
Soobramoney
v Minister of Health (Kwazulu-Natal
)
[1]
the
Constitutional Court per Chaskalson P stated as follows:
‘
[8]
We live in a society in which there are great disparities in wealth.
Millions of people
are living in deplorable conditions and in great
poverty. There is a high level of unemployment, inadequate
social security,
and many do not have access to clean water or to
adequate health services. These conditions already existed when
the Constitution
was adopted and a commitment to address them, and to
transform our society into one in which there will be human dignity,
freedom
and equality, lies at the heart of our new constitutional
order. For as long as these conditions continue to exist that
aspiration
will have a hollow ring.”
[5]
Section 27 of the Constitution provides as follows:
“
27
Health care, food, water and social security
(1)
Everyone has the right to have access to –
(a)
health care services, including reproductive health care;
(b)
sufficient food and water; and
(c)
social security, including, if they are unable to support themselves
and their dependants,
appropriate social assistance.
(2)
The state must take reasonable legislative and other measures, within
its available resources, to achieve
the progressive realisation of
each of these rights.
(3)
No one may be refused emergency medical treatment.”
[6]
In
Soobramoney v Minister of Health (Kwazulu-Natal)
, it
was pertinently held per Sachs J as follows:
“
[51]
The special attention given by section 27(3) to non-refusal of
emergency medical treatment relates to the particular
sense of shock
to our notions of human solidarity occasioned by the turning away
from hospital of people battered and bleeding
or of those who fall
victim to sudden and unexpected collapse. It provides
reassurance to all members of society that accident
and emergency
departments will be available to deal with the unforeseeable
catastrophes which could befall any person, anywhere
and at
anytime.
”
[2]
[7]
In
Soobramoney v Minister of Health (Kwazulu-Natal)
Sachs J, instructively held as follows:
“
In all
the open and democratic societies based upon dignity, freedom and
equality with which I am familiar, the rationing of
access to
life-prolonging resources is regarded as integral to, rather than
incompatible with, a human rights approach to health
care.”
[3]
[8]
The First Applicant in this matter was employed by the Respondent as
a PNB2 Professional Nurse, Grade 2, with a speciality
in nursing from
5 December 2016 until 10 September 2020. The Second Applicant
was employed by the Respondent as a PNB2 Professional
Nurse, Grade 2,
with a speciality in nursing from 1 September 2015 until 10 September
2020. The Third Applicant was employed
by the Respondent as a
NA3 Nursing Assistant, Grade 3, from 1 October 1012 until 10
September 2020. The First to Third Applicants
were all
stationed at Karl Bremer Hospital situated in Bellville, Western
Cape.
[9]
From 28
June 2020 until the 10
th
September 2020 (the latter date being the date of their deemed
dismissals) the Applicants embarked on a course of conduct daily
which entailed – them reporting to work and signing the
Attendance Register, but wilfully refusing to return to their
workstations.
This was ostensibly done of the basis, as
asserted by the Applicants, until Karl Bremer Hospital had fully
complied with the COVID-19
policies and guidelines. The
Applicants also received full renumeration during this period.
[4]
[10]
It appear
that on the 20
th
July 2020 the Department of Labour conducted an inspection at Karl
Bremer Hospital and issued a Directive to Upper Management to
improve
adherence to the COVID-19 policies and guidelines. However,
instructively the Department of Labour on the aforesaid
date
determined that the Karl Bremer Hospital was adhering to the COVID-19
policies and guidelines.
[5]
[11]
This latter
finding by the Department of Labour was confirmed by the Answering
Affidavit deposed to by Mvuzo Isaac Ngqame, the Acting
Deputy
Director: Employee Relations, Dispute Resolution.
[6]
[12]
It
furthermore appears on the Respondent’s version of events that
when the Department of Labour conducted its aforesaid inspection
on
the 20
th
and 21
st
July 2020, the Applicants were present during such inspection.
[7]
[13]
The First to Third Applicants in reply to the aforegoing reiterate
that if the Department of Labour deemed Karl Bremer
Hospital as
compliant with the COVID-19 policies and guidelines, the Directive
would not have been issued by the Department of
Labour. The
First to Third Applicants also peculiarly refer to an admission, on
their version of events, by a Ms Nancy Bulongo
that Karl Bremer
Hospital was not complying with the COVID-19 policies and
guidelines. However no affidavit was filed herein
deposed to by
Ms Nancy Bulongo confirming the aforesaid admission.
[14]
Given the
fact that the Department of Labour had determined, on the Applicant’s
own say-so that Karl Bremer Hospital was adhering
to the COVID-19
policies and guidelines, it is highly improbable that Ms Nancy
Bulongo would have made the admission as asserted
by the
Applicants.
[8]
[15]
On the
Respondent’s version, the Applicants participated in health
risk assessments during April/May 2020 and, importantly
none of them
tested positive for COVID-19. This has not been refuted by the
Applicant.
[9]
[16]
The
Applicants, alarmingly, on their own version did not work for an
extensive period of time. The Applicants, as set out
in various
letters addressed to them and annexed to their Founding Affidavit
herein were absent from work from at least 28 June
2020, 2 July 2020
and 14 July 2020 respectively to the date of their deemed dismissals
viz 10 September 2020.
[10]
[17]
It is trite law the Applicants’ services were terminated by
operation of law in terms of section 17 (3)(a)(i) as
read with
section 17 (2)(d) of the Public Service Act.
[18]
The jurisdictional requirements to be satisfied for the aforesaid
legislative provisions are that an employee must have
been
permanently employed, the employee must have been absent longer than
one (1) month and that the absence must have been without
the consent
of the employer.
[19]
In terms of section 17 (2)(d) of the Public Service Act if a
health care worker (who is deemed to have been discharged)
at any
time reports for duty, the employer may, on good cause show approve
the reinstatement or reemployment of the health worker
in his/her
former post or in any other post on such conditions relating to the
period of the health worker’s absence from
duty or otherwise as
the employer may determine.
[20]
The decision in terms of section 17 (2)(d) of the Public Service
At (as aforesaid) is reviewable in terms of section
158 (1)(h)
of the Labour Relations Act. The Applicants must show ‘good
cause’ for their application for
reinstatement to be approved.
The Applicants have to demonstrate, to the decision-maker that the
facts they rely on meet
the legal standard of ‘good cause’.
[21]
The employer sent correspondence to the Applicants on the 7
th
August 2020, 11
th
August 2020, 27
th
August
2020, 3 September 2020 and 7 September 2020 respectively.
All of the aforesaid correspondence reiterated that
Karl Bremer
Hospital is fully operation and compliant with the COVID-19
protocols.
[22]
The
Applicants’ version in respect of the application for
reinstatement was that they had reported for duty each day during
the
periods that they were deemed to be allegedly absent. They
furthermore asserted that their refusal was to work in an
area which
had not been cleaned properly.
[11]
[23]
However, the Applicants assertion (as aforesaid) do not bear scrutiny
for the following salient reasons:
(a)
The Respondent, as stated earlier, tried to engage with the
Applicants on numerous
occasions, as is demonstrated in the various
correspondence outlined above;
(b)
Despite the aforegoing correspondences, Applicants made no attempt to
meaningfully
engage with the Respondent and to perform their duties;
(c)
Applicants entered the hospital premises and made their way through
areas as well
as lifts used by other employees/staff at Karl Bremer
Hospital as well as used the lifts that were used by other staff and
the
public and entered the tea-room which was shared by the other
staff members;
(d)
The Department of Labour conducted an inspection of Karl Bremer
Hospital and the result
thereof was shared with he trade union of
which the Applicants were members. The hospital remained fully
operational throughout
the period;
(e)
Karl Bremer Hospital had approximately 800 health care providers
stationed at the
hospital. It appears that the Applicants were
the only employees who refused to work.
[12]
[24]
As stated earlier, due to the Applicants’ termination of
employment being by virtue of operation of law, the decision
dismissing the Applicants’ representations for reinstatement
are reviewable in terms of section 158 (1)(h) of the Labour
Relations Act.
[25]
The
Applicants, on their own version, would sign the attendance register
but would refuse to work.
[13]
Theatre 2C it appears had a certificate issued by a Mr Reggie
Abrahams, the Occupational Health Professional Nurse on the
17
th
July 2020. This is in addition to theatre 2C being deep cleaned
from 12
th
July to 16
th
July 2020.
[14]
[26]
The
Applicants asset that they did not abscond as the Respondent knew
their whereabouts and they were contactable. However
it is not
for the Respondent to contact the Applicants in order for the latter
to perform their duties. The Applicants signed
the attendance
register and thereafter refused to perform their duties. It is
thus clear that the Applicants had absconded.
[15]
[27]
In my view I thus cannot find that the decision not to reinstate the
Applicant was arbitrary and irrational. Applicants
have not set
out any facts in support of their contention that the decision not to
reinstate them must be set aside.
[28]
On 29
November 2022, 18 months after the jurisdictional ruling by the
Public Health and Social Development Sectoral Bargaining Council
(PHSDSBC) and 19 months after the deemed dismissal of the Applicants,
they filed the application.
[16]
[29]
The Applicants sought not to review the jurisdictional ruling as
aforesaid in terms of section 145 or section 158 (1)(6)
of the Labour
Relations Act but rather to review the Respondent’s decision in
terms of section 158 (1)(h) of the Labour Relations
Act.
[30]
What transpired after the jurisdictional ruling is unclear, the
notification of a Case Number by this Honourable Court
records as
follows:
“
In
the matter between
Mr
TW Olkers & Others (SLP Kline & JF McLaghlan) (Applicants)
and
PHSDSBC
& L Goredema N.O. (Respondent
)
”
[17]
What
is more confusing is that in the Notice of Motion, the following is
stated:
“
AND TAKE
NOTICE FURTHER
that the Respondent is hereby called
upon in terms of Rule 7 (A)(2)(a) and (b) to dispatch to the
Registrar the record of the proceedings
as well as the reasons as are
required b y law or desirable to provide for the decision within 10
days of receipt of this application
and to notify the Applicant’s
that this has been done.”
[31]
The Applicants’ Founding Affidavit addresses the issues related
to their deemed dismissal. Their grounds
of review can be
crystallised as follows:
(a)
they did not absent themselves from work ‘
for a period
exceeding one calendar month’
as at all material times, the
Respondents and/or upper management knew their whereabouts.
They would report to work and sign
the attendance register daily, but
refused to work in areas that were not cleaned and/or sanitised in
accordance with the COVID-19
policies and guidelines;
(b)
the purpose of section 17 (2)(d) of the Public Service Act is for the
efficient removal
of employees who have absconded, furthermore the
Respondent placed the responsibility upon the Applicant to advance
reasons why
they should be reinstated.
[18]
Applicants had provided compelling and substantive reasons for their
reinstatement it was averred;
(c)
the Respondent had invoked the deemed dismissal and the decision not
to reinstate
the Applicants was made in bad faith and such was
arbitrary and capricious because it was contrary to the spirit and
letter of
the Public Service Co-Ordinating Bargaining Council (PSCBC)
Resolution 1 of 2003 – in that the Respondent failed to follow
less restrictive procedures as stated in the resolution, which
contemplates that the proper disciplinary action against the
Applicants
for the alleged misconduct complained of would have been
for the Respondent to initiate a formal disciplinary enquiry to
determine
whether Applicants had committed any act of misconduct
warranting dismissal.
[19]
[32]
The Applicants were dismissed in terms of section 17 (3)(a)(i) of the
Public services Act which states as follows:
“
An employee,
other than a member of the services or an educator or a member of the
Intelligence Services, 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 dismissed 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.
”
[33]
In
De
Villiers v Head of Department: Education Western Cape Province,
Van
Niekerk J held as follows:
[20]
“
The
ratio of that judgment (Phentini v Minister of Education and Others)
is that section14 of the Employment Equity Act is constitutionally
valid and that a discharge effected in terms of the section is not
the consequence of any discretionary decision rather than a
statutory
result; hence it is not a ‘dismissal’ for the purposes of
the Labour Relations Act nor is it susceptible
to review. . . .
An employer who receives an application in terms of section 14 (2) is
faced with a contract that has
terminated by operation of law
independently of any act or decision on the part of the employer.”
[34]
In my view the Applicants’ dismissal was by
operation of law independently of the conduct of the employer, thus
resolution
1 of 2003 is not applicable. This clearly dispels
the Applicants’ contention that the Respondent acted in bad
faith
and arbitrarily.
[35]
The
central issue of section 17 (3)(b) is whether the Applicants in their
representations had shown good cause for their reinstatement.
Once good cause has been demonstrated, Applicants would be entitled
to reinstatement or re-employment. A perusal of the Applicants’
representations states as follows:
[21]
(a)
The Applicants had reported for duty each day during the periods for
which they were
deemed to be allegedly absent;
(b)
In terms of their employment rights as prescribed in the Occupational
Health and Safety
Act they simply refused to work in an area which
had not been properly cleaned during the off.-peak COVID-19;
(c)
The employer selectively chose when to prioritize obtaining a
cleaning certificate
from the Cleaning Services used or have one
issued by the Facility Manager in order to cover the staff, once they
were exposed
to COVID-19 symptomatic/Asymptomatic person.
[36]
I agree with the submissions made by Mr F. Rodriques who appeared on
behalf of the Respondent, that the Applicants have
not demonstrated
good cause for reinstatement for the following reasons:
(a)
The Applicants performed duties as nursing staff in Theatre 2C.
on their own
version they entered the Karl Bremer Hospital premises,
signed the register and remainder on the hospital premises for
approximately
2 hours,
[22]
whilst our country was int eh midst of a pandemic;
(b)
From July 2020 until receiving the letter confirming their deemed
dismissal dated
10 September 2020 – the Applicants have not
demonstrated that they had performed any official duties in Theatre
2C.
The Applicants thus failed to demonstrate that they had
performed any official duties for more than one calendar month;
(c)
The Applicants in their representations indicate the Respondent and
more particularly
the Karl Bremer Hospital was not compliant with the
Occupational Health and Safety protocols. In light of the
Respondent’s
assertion that the Karl Bremer Hospital was
compliance with the protocols, the Applicants’ assertion as
aforesaid is unsustainable;
(d)
The Applicants’ reply to the assertion (by the Respondent) that
Karl Bremer
Hospital was compliant with all protocols was to merely
state that-
‘
Save to state
that the Applicants have no knowledge of the current state of Karl
Bremer Hospital and why such averments are relevant
to these
proceedings, the Applicant deny the remaining content thereof.
”
[23]
Applicants do not thus
rebut the assertion that the Theatre 2C area was clean and compliant
with the protocols.”
(e)
The directives from the Department of Labour merely stated
contraventions and improvements
however the Respondent was not found
non-compliant, nor did it indicate the contraventions committed by
the Respondent;
(f)
Decontamination and deep cleaning certificate were obtained from
private companies
confirming the disinfection and deep cleaning of
the Karl Bremer Hospital;
[24]
(g)
A checklist was completed following the discharge of infected cases
at Theatre 2C.
A risk assessment were conducted of the
Applicants, scoring a 2 and 4 which suggests their exposure to
COVID-19 were low.
[25]
[37]
The Applicants sought condonation for the late prosecution of the
review application. It is clear that the Applicants’
services were terminated by operation of law in terms of the
provisions of the Public Services Act. The Respondent refused
to reinstate or reemploy the Applicant after they had failed to
demonstrate good cause for their reinstatement or re-employment.
The
Applicants sought to review the decision of the Respondent in terms
of section 158 (1)(h) of the Labour Relations Act.
Section
158 (1)(h) empowers the Labour Court to review any decision or
action taken by the State as an employer, provided
that the grounds
of review are permissible.
[26]
[38]
In
Asiphephe Primary School and Another v Head of Department of
Education Kwazulu-Natal
it was held as follows:
“
[15]
The nature, purpose and ambit of s158(1)(h) has been the subject of
considerable judicial scrutiny. The resultant
decisions have, in the
main, concerned four issues: whether employees in the public sector
enjoy a right to challenge State action
in terms of s158(1)(h) in
circumstances in which privately employed employees are limited in
similar circumstances to litigation
under the dispute resolution
mechanisms provided for in the LRA; what type of action taken by the
State may be subjected to review
under s158(1)(h); the standard of
review applicable in applications brought in terms of s158(1)(h); and
whether the State itself
may have recourse to s158(1)(h) when seeking
to review and set aside its own actions or decisions.
”
[27]
[39]
The
Applicants’ reliance on section 158 (1)(h) of the Labour
Relations Act is that the decision not to reinstate the
Applicants
was arbitrary and irrational, the Applicants would sign the
attendance register but refused to work in areas, including
their
designated area Theatre 2C, that were not cleaned or sanitised in
accordance with COVID-19 policies and guidelines.
[28]
[40]
In
Chirwa v Transnet Ltd and Others
, the Constitutional
Court explained the rationale for the inclusion of s 158(1)(h)
as follows:
“
Consistently
with this objective, the LRA brings all employees, whether employed
in the public sector or private sector under it,
except those
specifically excluded. The powers given to the Labour Court
under section 158(1)(h) to review the executive
or administrative
acts of the State as an employer give effect to the intention to
bring public sector employees under one comprehensive
framework of
law governing all employees.”
[29]
[41]
In
Public Servants Association of South Africa obo De Bruyn v
Minister of Safety and Security and Another
the Labour Appeal
Court held as follows:
“
The
review powers entrusted to the Labour Court in terms of section
158(1)(h) must be understood in the context when this section
(indeed
the entire LRA) was enacted. At that time, the employment of public
servants was regulated by the common law contract of
employment, the
unfair labour practice jurisdiction of the industrial court in terms
of the Labour Relations Act 28 of 1956, other
statutes and by means
of common law judicial review.
Public
servants were in a privileged position with regard to other employees
as their choice of remedies extended to judicial review.
Section
158(1)(h) was intended to preserve the common law judicial review
remedy of public servants. The permissible grounds of
common law
review are well known.
”
[30]
[42]
The Applicants sought to rely on the action of the Respondent not to
reinstate them as being materially influenced by
an error of law.
In
Opperman v Commission for Conciliation Mediation and
Arbitration
the court dealt with the situation where the
Applicant sought to review and set aside an award of substantive
fairness on the basis
of an error of law, and held as follows:
“
In
the case before me, the arbitrator committed an error of law by
referring to and then not following the dictum of Basson J in
Rennies. But even if that in itself does not make the award
reviewable, it led to an unreasonable result. It must be reviewed
and
set aside on that basis.”
[31]
[43]
It is trite law that the mere existence of an error of law is
insufficient to substantiate a successful review application.
The error of law has to have the concomitant result of an
unreasonable outcome, In
Head of Department of Education
v Mofokeng and Others
it was held:
“
Mere
errors of fact or law may not be enough to vitiate the award.
Something more is required. To repeat: flaws in the reasoning
of the
arbitrator, evidenced in the failure to apply the mind, reliance on
irrelevant considerations or the ignoring of material
factors etc.
must be assessed with the purpose of establishing whether the
arbitrator has undertaken the wrong enquiry, undertaken
the enquiry
in the wrong manner or arrived at an unreasonable result. Lapses
in lawfulness, latent or patent irregularities
and instances of
dialectical unreasonableness should be of such an order (singularly
or cumulatively) as to result in a misconceived
inquiry or a decision
which no reasonable decision-maker could reach on all the material
that was before him or her.
”
[32]
[44]
It is clear
that the Applicants entered the premises of the Karl Bremer Hospital,
used the areas that were used by many other staff
as well as the
public and entered the tearoom shared with other staff members.
However, despite the Respondent obtaining
the Department of Labour to
conduct an inspection and confirming that Theatre 2C was safe to work
at and enter, the Applicants
refused to report for duty at their
workstation. Thus at the time that South Africa was
experiencing the COVID-19 and the
lives of thousands of citizens
being placed at risk. Additionally it must be borne in mind
that none of the Applicants tested
positive for COVID-19.
[33]
This conduct by the Applicants placed an additional workload on other
staff at the Karl Bremer Hospital.
[34]
I
cannot find that the Applicants placed any compelling and substantive
reasons for their reinstatement before the Respondent.
The
Respondent attempted to engage with the Applicants during the course
of 29 June 2020 until 10 September 2020, all which proved
futile.
[35]
[45]
The Applicants, in my view, through their conduct failed to
appreciate the nature and scope of their duties, especially
during
the COVID-19 pandemic. In
G4S Secure Solutions (SA) (Pty)
Ltd v Ruggiero N.O. and Others
it was held:
“
The
employment relationship by its nature obliges an employee to act
honestly, in good faith and to protect the interests of the
employer.
The high premium placed on honesty in the workplace has led our
courts repeatedly to find that the presence of
dishonesty makes the
restoration of trust, which is at the core of the employment
relationship, unlikely. Dismissal for dishonest
conduct has
been found to be fair where continued employment is intolerable and
dismissal is “a sensible operational response
to risk
management.
”
[36]
[46]
The application for review was brought in terms of section 158 (1)(h)
of the Labour Relations Act. The section
does not prescribe a
time limit for filing of the application. In contradistinction,
section 145 (1)(a) of the Labour Relations
Act prescribe a time limit
of six weeks from the date that the award is served on an Applicant.
[47]
The application, as envisaged in terms of section 158 (1)(h) of the
Labour Relations Act, has to be brought within a
“
reasonable
time”
. In
Gqwetha v Transkei Development
Corporation Limited and Others
it was held:
“
It
is important for the efficient functioning of public bodies . . .
that a challenge to the validity of their decisions
by proceedings
for judicial review should be initiated without undue delay.
The rationale for that longstanding rule . . .
is twofold:
First, the failure to bring a review within a reasonable time may
cause prejudice to the respondent. Secondly,
and in my view more
important, there is a public interest element in the finality of
administrative decisions and the exercise
of administrative
functions.”
[37]
[48]
The issue
is thus what is a “
reasonable
time
”
in the context of section 158 of the Labour Relations Act. I am
in agreement with the submissions made by Mr F. Rodriques,
who
appeared on behalf of the Respondent, that the extent of the delay
must be considered together with the other factors as outlined
in
Melane
v Santam Insurance Co Limited
.
[38]
A
delay of approximately 19 months took place from the date of the
decision not to reinstate the Applicants and the launching of
the
present application.
[49]
The Applicants sought to attribute the delay in launching the present
application to the following:
(a)
The Applicants launched the proceedings in the Public Health and
Social Development
Sectoral Bargaining Council (“PHSDSBC”)
which was referred to arbitration on 26
th
March 2021. The aforesaid arbitration was finalised on the 25
th
May 2021.
[39]
(b)
Applicants consulted with labour consultant, Peter Cloete, who on
11
th
August 2021 applied for a review case number in respect of the
potential review of the ruling of the PHSDSBC;
[40]
(c)
Thereafter Applicants consulted their attorney of record, Mr S Blows,
but due to lack
of finances they could not proceed. The
Applicants sought other potential legal representation but the
Applicants’
attorney of record appeared the most
reasonable;
[41]
(d)
By June 2022 Applicants were only able to secure a substantial amount
of finances
and the balance of the deposit Applicants were only able
to secure the balance of the finances requested by their attorney of
record;
[42]
(e)
On 8
th
October 2022; Applicants gave their instructions to
their attorney of record to launch the present application.
Although
the Applicants only gave the instructions on the aforesaid
date, the application was only launched on the 29
th
November 2022. No explanation has been furnished for the period
between the 8
th
October 2022 and the 29
th
November 2022.
[50]
The delay is approximately 19 months (from date of the decision not
to reinstate the Applicants to the launching of the
present
application). Since 25
th
May 2021 the Applicants, on
their own version, became aware that the PHSDSBC lacked the requisite
jurisdiction to arbitrate the
dispute. It took the Applicants
until November 2021, another six months before launching the present
application. The
applicants have not explained this delay in
any particularity nor have the Applicants sought to explain their
inaction during the
period 7
th
October 2021 until 4
th
June 2022 when (on their version) they secured the deposit required
by their attorney.
In
Saloojee and Another NNO v Minister of Community Development
it
was held as follows:
“
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. To hold otherwise might have a disastrous effect upon the
observance of the Rules of the Appellate Division.
Considerations
ad
misericordiam
should
not be allowed to become an invitation to laxity. . . .
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.”
[43]
[51]
I consider the extent of the delay and the lack of complete
explanation to be unreasonable and cannot find that the Applicants
have initiated these proceedings without undue delay. I thus
cannot find that this application has been brought within a
reasonable time as envisaged in terms of section 158 (1)(h) of
the Labour Relations Act.
[52]
As stated earlier, the application for review was brought in terms of
section 158 (1)(h) of the Labour Relations Act.
The section
does not prescribe a time limit for the filing of the application and
the Applicants’ seeking condonation for
the late prosecution of
the review is misplaced.
[53]
Applicants furthermore sought relief that the matter be reinstated
and be heard. On or about the 29
th
November 2022 the
Applicants launched the present application setting aside the
decision not to reinstate them taken on or about
the 28
th
January 2021. The Respondent filed their answering affidavit on
the 25
th
April2023 and their confirmatory affidavits
thereto on the 8
th
May 2023. The Applicants
thereafter filed their Replying Affidavits on the 26
th
July 2023.
[54]
The Applicants submitted their request for allocation of a court date
to the Registrar of this Court on the 17
th
August 2023.
On the 26
th
February 2024, the Applicants reserved their
Notice in terms of Rule 7 (8)(b) upon the Respondent and filed
same with the
Registrar of this Honourable Court.
On
the 9
th
May 2024 the Applicants’ attorneys of record
were advised that the Applicants had to bring an application for the
retrieval
of an archived referral. In my view the matter was
not archived and it is thus unnecessary to consider the application
for
reinstatement.
[55]
This leaves the issue of costs to be decided upon. It is trite
law that in awarding costs, a court has a discretion
to be exercised
judicially upon a consideration of the facts of the case. In
Multi-Links Telecommunications Ltd v Africa Prepaid Services
Nigeria Ltd
, it was held as follows (in relation to costs
de
bonis propriis
against legal representatives):
“
It is
true that legal representatives sometimes make errors of law, omit to
comply fully with the Rules of Court or err in other
ways related to
the conduct of the proceedings. This is an everyday occurrence.
This does not however per se ordinarily
result in the court
showing its displeasure by ordering the particular legal practitioner
to pay the costs from his own pocket.
Such an order is reserved
for conduct which substantially and materially deviates from the
standard expected of the legal
practitioners, such that their
clients, the actual parties to the litigation, cannot be expected to
bear the costs, or because
the court feels compelled to mark its
profound displeasure at the conduct of an attorney in any particular
context. Examples
are, dishonesty, obstruction of the interests
of justice, irresponsible and grossly negligent conduct, litigating
in a reckless
manner, misleading the court, and gross incompetent and
a lack of care. See, for instance, Cilliers et al Herbstein & Van
Winsen:
The Civil Practice of the High Courts of South Africa 5
th
Edition Vol 2 at p. 984. See also: Ward v Sulzer
1973 (3) SA
701
(AD) at 706 – 707.
”
[44]
[56]
The Applicants did not file Heads of Argument in the main
application, despite the review application also being enrolled
for
hearing on the 4
th
July 2025. Ms Essa who appeared
on behalf of the Applicants sought to also limit her address only to
the application for
retrieval despite the intimation by Mr Rodriques
and the Court that the matter had not become archived. The
Applicants clearly
demonstrated a disregard to the rules of this
Honourable Court by not filing Heads of Argument in the review
application.
It is unclear whether this was intentionally does
by the Applicants and/or their legal representatives. I find
that it would
be just and appropriate to award the Respondent costs.
[57]
In the premises, the following order is
made:
Order
1.
The application to review and set aside the
decision of the Respondent not to reinstate the First,
Second and Third
Applicants, as communicated in the letter of Ms Z.
Rikwe dated 28
th
January 2021, in terms of
section 158
(1)(h) of the
Labour
Relations Act 66 of 1995
is dismissed.
2.
The First to Third Applicants shall pay the
Respondents costs.
S
BANDERKER
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
N Essa instructed by SB Attorneys Inc.
For
the Third Respondent: F
Rodriques instructed by State Attorney Cape Town
[1]
Soobramoney
v Minister of Health (Kwazulu-Natal)
CCT32/97)
[1997] ZACC 17
;
1998 (1) SA 765
(CC);
1997 (12) BCLR 1696
(27
November 1997)
[2]
Soobramoney
v Minister of Health (Kwazulu-Natal)
1998 (1) SA 765 (CC)
[3]
Soobramoney
v Minister of Health (Kwazulu-Natal)
supra,
at
paragraph [52] thereof
[4]
Paragraphs 12 and 13 of First Applicant’s Founding Affidavit
[5]
Paragraph 16 of First Applicant’s Founding Affidavit
[6]
Paragraph 6.6 of Respondent’s Answering Affidavit
[7]
Paragraphs 6 and 7 of First Applicant’s Replying Affidavit
[8]
Paragraph 16 of First Applicant’s Founding Affidavit.
Paragraph 6.6 of Respondent’s Answering Affidavit
[9]
Paragraphs 6.10 and 6.11 of Respondent’s Answering Affidavit
[10]
Paragraph 13 of Respondent’s Answering Affidavit
[11]
Annexure “
SK12”
to First Applicant’s Founding Affidavit
[12]
Paragraph 15 of Respondent’s Answering Affidavit
[13]
Paragraph 46 of Applicant’s Founding Affidavit
[14]
Paragraph 16.4 of First Applicant’s Replying Affidavit
[15]
Paragraph 42 of First Applicant’s Founding Affidavit
[16]
The Commissioner held that the PHSDSBC lacked jurisdiction in terms
of
section 158
(1)(h) of the
Labour Relations Act
[17
]
See Annexure “
SK18”
to Applicant’s Founding Affidavit
[18]
Paragraphs 42 and 43 of First Applicant’s Founding Affidavit
[19]
Paragraph 44 of First Applicant’s Founding Affidavit
[20]
De
Villiers v Head of Department: Education Western Cape Province
(2006) 27 ILJ 477 (SCA)
[21]
Annexure “
SK12”
to Applicants’ Founding Affidavit
[22]
Paragraph 35 of Respondent’s Opposing Affidavit
[23]
Paragraph 12 of First Applicant’s Replying Affidavit
[24]
Paragraph 3 of Respondent’s Opposing Affidavit
[25]
Paragraph 6.10 of Respondent’s Opposing Affidavit
[26]
Section 158
(1)(h) of
Labour Relations Act
>
[27]
Asiphephe
Primary School and Another v Department of Education, Kwazulu-Natal
[2024] ZALCD 51
[28]
Paragraph 14 of First Applicant’s Replying Affidavit
[29]
Chirwa
v Transnet Limited and Others
2008 (4) SA 367 (CC)
[30]
Public
Servants Association of South Africa obo De Bruyn v Minister of
Safety and Security and Another
(JA 91/09)
[2012] ZALAC 14
at paragraphs 26 - 27
[31]
Opperman
v Commission for Conciliation Mediation and Arbitration
(2017) 38 ILJ 242 (LC) at para [25]
[32]
Head
of
Department
of Education v Mofokeng and Others
(2015) 36 ILJ 28082 (LAC) at para [32]
[33]
Paragraph 6.11 of Respondent’s Answering Affidavit
[34]
Paragraph 54 of Respondent’s Answering Affidavit
[35]
Annexure “
SK13”
to First Applicant’s Founding Affidavit
[36]
G4S
Secure Solutions (SA) (Pty) Ltd
38
ILJ 881 (LAC) at para 26
[37]
Gqwetha
v Transkei Development Corporation Limited and Others
2006 (2) SA 603
(SCA) at p. 612 E - F
[38]
Melane
v Santam Insurance Co Limited
1962 (4) SA 531 (A)
[39]
Paragraph 51 of the First Applicant’s Founding Affidavit
[40]
Paragraph 53 of the First Applicant’s Founding Affidavit
[41]
Paragraph 56 of the First Applicant’s Founding Affidavit
[42]
Paragraph 60 of the First Applicant’s Founding Affidavit
[43]
Saloojee
and Another NNO v Minister of Community Development
1965 (2) SA 135
135 (A) at p. 141 C - E
[44]
Multi-Links
Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd
2014 (3) SA 265
(GP) at p 289 A - D