IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
Not Reportable
Case No.:C429/2021
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.
2
___________________________________________________________________
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.
3
[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
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)
4
(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:
2 Soobramoney v Minister of Health (Kwazulu-Natal) 1998 (1) SA 765 (CC)
5
“ 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 speci ality 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
3 Soobramoney v Minister of Health (Kwazulu-Natal) supra, at paragraph [52] thereof
4 Paragraphs 12 and 13 of First Applicant’s Founding Affidavit
6
[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 20th and 21st
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.
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
7
[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 Applicant s 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.
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
8
[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,
11th 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
11 Annexure “SK12” to First Applicant’s Founding Affidavit
9
[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;
10
(e) Karl Bremer Hospital had approximately 800 healt h 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
17th July 2020. This is in addition to theatre 2C being deep cleaned from
12th July to 16th 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
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
11
[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
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
12
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;
18 Paragraphs 42 and 43 of First Applicant’s Founding Affidavit
13
(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.”
19 Paragraph 44 of First Applicant’s Founding Affidavit
14
[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 s ection14 of the E mployment 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
20 De Villiers v Head of Department: Education Western Cape Province (2006) 27 ILJ 477 (SCA)
21 Annexure “SK12” to Applicants’ Founding Affidavit
15
(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 prioriti ze 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
22 Paragraph 35 of Respondent’s Opposing Affidavit
16
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 representati ons 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;
23 Paragraph 12 of First Applicant’s Replying Affidavit
17
(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:
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
18
“[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
27 Asiphephe Primary School and Another v Department of Education, Kwazulu -Natal [2024]
ZALCD 51
28 Paragraph 14 of First Applicant’s Replying Affidavit
19
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
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
20
[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
31 Opperman v Commission for Conciliation Mediation and Arbitration (2017) 38 ILJ 242 (LC ) at
para [25]
21
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
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
22
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) L td v Ru ggiero 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 prescr ibe 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.
35 Annexure “SK13” to First Applicant’s Founding Affidavit
36 G4S Secure Solutions (SA) (Pty) Ltd 38 ILJ 881 (LAC) at para 26
23
[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 G qwetha 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:
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)
24
(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 25th 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
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
25
explanation has been furnished for the period between the 8 th
October 2022 and the 29th 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
25th 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
26
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 25th April2023 and their confirmatory aff idavits thereto on the
8th May 2023. The Applicants thereafter filed their Replying Affidavits on the
26th 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,
43 Saloojee and Another NNO v Minister of Community Development 1965 (2) SA 135 135 (A) at p.
141 C - E
27
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 di scretion 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,
28
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. M s 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
44 Multi-Links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd 2014 (3) SA 265
(GP) at p 289 A - D
29
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