REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
CASE NO: C 1034/02
In the matter between:
SIVUYILE HANGANA Applicant
and
EDUCATION LABOUR RELATIONS COUNCIL First Respondent
BRIAN CURRIN N.O. Second Respondent
DEPARTMENT OF EDUCATION, WESTERN CAPE Third Respondent
JUDGMENT
NTSEBEZA, AJ:
[1] The Applicant (Sivuyile Hangana) was an employee of the Third
Respondent (the Department) at Imizamo Yethu Secondary School,
George, firstly as a temporary educator in 1993 and as a permanent
educator in 1996. During April 2000 he attended a disciplinary tribunal
hearing in George on 30 May 2000 to answer charges that he had been
absent from school for a period of 76 days. Consequent upon this hearing,
he received a telefax from his principal in July 2000 advising him that his
services would be terminated with effect from 1 August 2000. His appeal
to the MEC for Education was unsuccessful.
[2] Despite his failure to reverse his position, he continued to work on full pay
until he was verbally informed by his principal in November 2000 that his
“salary was to be stopped”.
[3] It is common cause that since the Applicant’s last day of employment,
namely, the 30th November 2000, the first date on which the matter was
referred to the First Respondent, the Education Labour Relations Council
(“the Council”) was on 29 April 2002 when the Second Respondent, acting
under the auspices of the Council as its arbitrator refused to condone
Hangana’s late referral of his matter to the Council.
[4] In considering whether the matter was one which he could condone for its
late referral, the arbitrator considered that the period of delay was from
13 November 2000 to the date of referral in April 2002. It is clear from his
award that the arbitrator did not take into consideration an explanation
which Hangana gives for the period of delay. Summarised, Hangana’s
explanation for the delay between 13 November 2000 and November
2001 is that the Department was dilatory in sending a copy of the Minutes
of the disciplinary enquiry and the presiding officer’s report. These were
only sent to Hangana’s attorney, one Mr Francois Van Zyl, in November
2001. Mr Van Zyl, according to Hangana, could not prepare for conciliation
until he had perused the presiding officer’s report and the Minutes of the
disciplinary enquiry.
[5] To the extent that it is important that there should be an explanation for a
period of delay, I am satisfied that Hangana has given an explanation for
the period of delay between November 2000 and November 2001. I am
also satisfied that even though his attorneys could have been more
purposeful in demanding the expeditious filing of the requisite documents
to them, the delay occasioned in this instance was due solely to the
dilatoriness of the Third Respondent.
[6] I must mention at this stage that my difficulty in this application, in which
Hangana seeks to review the decision of the arbitrator to dismiss his
application for condonation of the late referral of his dispute to the Council
concerning his dismissal, is the fact that it is unopposed. The only sworn
facts are those of the Applicant, and even though he raises very
contentious issues, there has been no endeavour whatsoever by any of
the respondents to either oppose the application or to indicate their
attitude thereto. I am therefore not in a position to gainsay the sworn
evidence of the only deponent in these proceedings, namely, Hangana. I
must therefore accept his un-contradicted averments, to the extent that
they are justifiable and make legal sense.
[7] It is for this reason that again I have to consider whether or not the period
of delay between November 2001 to April 2002, a period of some five
months, has either been explained to me for me to be able to properly
consider it, or whether the explanation is reasonable in all of the
circumstances that are placed before me by way of evidence. Once again I
have got only the evidence of Applicant, and the record, without any
contrary affidavits even from the attorneys whom he blames for the delay
in this leg of the period of delay.
[8] Summarised, Hangana’s reason for the delay is that this was occasioned
by the dilatoriness or the negligence of his legal representatives. He also
states that he had initially incorrectly been advised that the proper forum
was the Labour Court. As Mr Grogan, Hangana’s Counsel who appeared
before me on 17 April 2003 in this review application submitted, and as is
apparent from his Heads of Argument which, at my instance and request,
he subsequently filed, Hangana was required, despite his straitened
circumstances, to raise a sizable deposit for purposes of approaching the
Labour Court.
[9] He had also been advised, according to what Hangana claims, that his
union, South African Democratic Teachers Union (“SADTU”), in January
2002, had already filed an application for condonation on his behalf. He
also denies, in his Founding Affidavit, that he has ever, at any stage, been
unavailable for purposes of giving instructions to his attorneys. This denial
is uncontradicted either by the attorneys, nor is it challenged by any of
the respondents in whose interest it would be to oppose the granting of
the relief that Hangana is seeking from me.
[10] Even if I disagree with Mr Grogan – and I leave that open – that for
purposes of a review application I need not myself consider the adequacy
of the reasons that Hangana gives, I do agree with him that the mere fact
that it appears from the arbitrator’s award, which is the subject matter of
review in these proceedings, that he did not give adequate or any
consideration to the explanation for the period, should be sufficient for me
to find that his decision is reviewable. I therefore find that on that basis
alone, his decision ought to be reviewed and set aside. I am also satisfied
that I am competent to review a decision of the Bargaining Council even
though it is interlocutory. I therefore agree with the attitude adopted in
the authority for that proposition submitted by Mr Grogan.
[See: Metz Transport (Pty) Ltd v Furniture, Bedding &
Upholstery Industry Bargaining Council, Greater Northern
Regions & others (2001) 22 ILJ 2460 (LC).]
[11] I also agree with Mr Grogan that even though this Court, and the one
above it, have been very clear in indicating that there are limits to the
extent to which a litigant can rely on the negligence of the dilatoriness of
his lawyers, that rule is not absolute, and I think this is one of the cases in
which it must find exception, due regard being paid to the circumstances
of this case.
[See: Van Dyk v Autonet (a division of Transnet Ltd) (2001) 21 ILJ
2484 (LC); Swanepoel v Albertyn (2000) 21 ILJ 2701 (LC).]
[12] For me, therefore, it does not become necessary to consider whether the
prospects of success are good and whether there is any prejudice to the
respondents if I were to review and set aside the arbitrator’s award. As far
as prejudice is concerned, none has been alleged, nor is there any that is
apparent from the facts. The mere fact that the respondents, more
particularly the Department, has not bothered to file any opposing papers,
although that by itself is no reason to necessarily conclude that there has
been no prejudice suffered by it, is nonetheless a strong basis on which I
can rely for deciding whether a delay is so unreasonable as, in its effect,
to have caused prejudice to one of the affected parties.
[See: Dyali v Fort Cox College of Agriculture & Forestry and
another [1998] 6 BLLR 641 (Tk) at 644F-645C].
[13] This is a case in which my sympathies go to Hangana, the Applicant. Even
though, in a superficial sense, this case may well appear to be similar to
the case in which the Constitutional Court made a decision recently, I
distinguish it from that case, (unreported case CCT 36/03 in The Head of
Department, Department of Education, Limpopo Province v
Settlers Agricultural High School and 3 Others, decided on 2 October
2003). In that case, the Constitutional Court refused an application for
condonation, and in doing so, cited with approval its own decision in
Bramer v Gorfield Brothers Investments (Pty) Ltd & Others 2000
(2) SA 837 (CC), where it had stated that the main consideration whether
to grant condonation of the very late filing of an application is whether it
is in the interest of justice to do so.
[14] I hold that the circumstances of this present case differ from those in the
Settlers Agricultural High School case ( supra) because in that case,
after an inordinate period of delay, the Applicant was seeking the removal
of the school principal from a post in which he had been appointed, and
nine months since the Supreme Court of Appeal had dismissed an
application for leave to appeal from the High Court that had reinstated the
school principal.
[15] The Court felt that it would not have been in the interest of justice that
after such an inordinate delay, the particular dispute should be reopened
in circumstances in which the reinstated school principal would be placed
in jeopardy of losing his position, and in circumstances also where the
school would be subjected to the uncertainty and dislocation which would
be the inevitable consequence of such proceedings.
[16] In this case, I have no evidence that the order which I am about to give
will lead to those grave consequences. This is so because the Department
has not sought to place evidence before me on the basis of which I can
make that judgment. In any event, as Mr Grogan submitted, the only one
who has suffered prejudice in this case is the Applicant. If the dispute
were to be referred to arbitration, an arbitrator could well give the
Department the opportunity to reinstate the Applicant at another school.
For that reason, even though I considered the decision of the
Constitutional Court for the striking resemblance which it has with the
present matter, I find that it is distinguishable, and I so distinguish it on
the facts.
[17] The Applicant has also made some explanation for the late filing of the
present application. He seeks condonation with regard thereto. In the view
that I take of this matter, I will not spend more time on that application
save to state that in my considered opinion, the period of delay for
bringing this particular application is seven weeks, and in my view, it is
not an excessive period. I therefore condone it.
[18] Having taken the view that I have, I now wish to consider the other reliefs
sought by the Applicant. I believe that the reliefs sought by him in
paragraphs 5 and 6 of his Notice of Motion, are totally incompetent. He
seeks that I should declare the deductions from his salary of the amount
of R4 500,00 for the period December 1999 to February 2000 as having
been unlawful and, that I should order the Department to pay him the said
amount, with interest. Those prayers can be dealt with adequately by the
forum which, as a consequence of my order, is going to be the appropriate
body to deal with all outstanding issues which flow from the nature of the
order that I will give.
[19] In the circumstances, I give the following order:
(a) The award of the Second Respondent, dated 18 June 2002, in
terms of which the Second Respondent decided not to condone
the late referral to the First Respondent of the dispute
concerning his dismissal by the Third Respondent, is hereby
reviewed and set aside.
(b) The First Respondent is hereby ordered to process the said
dispute in accordance with the provisions of its Constitution and/
or rules and the provisions of the Labour Relations Act No. 66 of
1995.
(c) There will be no order as to costs.
________________________________________________
D B NTSEBEZA
Acting Judge of the Labour Court of South Africa
Date of Hearing: 17 APRIL 2003
Date of Judgment: 17 October 2OO3
For the Applicant: J G GROGAN
Instructed by: L MTIYA & COMPANY
For the Respondents: No appearance.