IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
CASE NO D236/04
D292/04
Date of Hearing: 05/11/2004
Date of Judgment: 21/01/2005
In the matter between
ENFORCE GUARDING (PTY) LTD APPLICANT
and
MINISTER OF LABOUR - RSA 1ST
RESPONDENT
DIRECTOR-GENERAL OF DEPARTMENT
OF LABOUR 2ND RESPONDENT
NATIONAL SECURITY AND UNQUALIFIED
WORKERS UNION 3RD RESPONDENT
SA TRANSPORT AND ALLIED
WORKERS UNION 4TH RESPONDENT
SECURITY & ALLIED TRADE UNION
OF SOUTH AFRICA 5TH RESPONDENT
NATIONAL SECURITY WORKERS UNION 6TH
RESPONDENT
EMPLOYEES WHO ARE NOT MEMBERS
OF ANY OF THE AFORESAID 7TH & FURTHER
RESPONDENTS
JUDGMENT DELIVERED BY
THE HONOURABLE MR ACTING JUSTICE NGCAMU
FOR APPLICANT: MR G O VAN NIEKERK SC
FOR 1 ST AND 2 ND RESPONDENT : MR M J D WALLIS SC
JUDGMENT
NGCAMU AJ
[1] There are two applications before the Court. The first matter
is under case No D236/04, which relates to the appeal and
condonation. The second matter is under case
No D292/04, being a review application. It has been
agreed between the parties that case No D292/04 should
only be considered if condonation is not granted in respect
of case No D236/04.
[2] The parties first argued case No D236/04 and thereafter
asked the Court to consider D292/04 if the condonation is
not granted. The parties thereafter addressed the Court in
the review application. The first part of the judgment
therefore relates to D236/04.
[3] The applicant brought an application in which it sought an
order:
(a) staying the enforcement proceedings of the
compliance order pending the appeal in terms of
section 72 of the Basic Conditions of Employment
Act; (The Act)
(b) extending the period for the submission of the
appeal;
(c) upholding the appeal in terms of section 77 of the
Act against the refusal of the objection against the
compliance order by the second respondent.
[4] A sectoral determination was made by the Minister of Labour
to regulate the minimum ordinary hours of work, overtime,
as well as payment for overtime. The applicant did not
make payment of overtime in terms of the sectoral
determination. The applicant filed an application for the
exemption to clause 5(9) of the sectoral determination
No 3 applicable to the security industry. Clause 5(9)
covers the payment of overtime. The application was
launched in terms of section 50(7)(b) of the Basic
Conditions of Employment Act of 1997.
[5] The exemption sought was for the period 6 March 2001 to
15 November 2001. This is the period during which the
applicant had paid overtime at a lower rate of 1,025 per
hour instead of 1,5 per hour.
[6] The second respondent refused to vary the sectoral
determination.
[7] The applicant launched a review application under case
No D243/04. This application was heard on 3 November
2004 and judgment was reserved.
[8] On 28 October 2002 a compliance order seeking to enforce
payment for overtime was served on the applicant. The
compliance order was issued in terms of section 69 of the
Basic Conditions of Employment Act. This section
provides:
"(i) A labour inspector who has reasonable grounds
to believe that an employer has not complied
with the provision of this Act may issue a
compliance order."
[9] The applicant filed an objection to the compliance order in
terms of section 71 of the Act. Section 71(1) provides:
"An employer may object to a compliance order
by making representations in writing to the
Director-General within 21 days of receipt of
that order."
[10] Section 71(3) provides that:
"After considering any representations by the
employer and any other relevant information,
the Director-General -
(a)may confirm, modify or cancel an order or
any part of the order; and
(b)specify the period within which the
employer must comply with any part
of the order that is confirmed or
modified."
[11] The objection was refused by the second respondent.
Section 72 of the Basic Conditions of Employment Act
provides:
"(1) An employer may appeal to the Labour
Court against an order of the Director-
General within 21 days of receipt of that
order."
[12] The applicant did not take the decision on appeal. The
second respondent lodged an application to enforce the
compliance order under case No D214/04 in terms of
section 73 of the Basic Conditions of Employment Act. The
applicant thereafter lodged an appeal to this Court. This
appeal was lodged outside the period of 21 days
prescribed in section 72(1). An application for condonation
was accordingly made by the applicant. The first and
second respondents opposed this application.
The condonation application
[13] Section 72 prescribes that the appeal should be lodged with
the Labour Court within 21 days. The applicant received
the notification refusing the objection on 17 March 2004.
The notification was delivered by Mr Harris Reddy of the
Department of Labour. The 21-day period expired on
7 April 2004. The application for the appeal was filed with
the registrar outside the period of 21 days. It was
launched on 29 April 2004.
[14] Section 72(3) grants the Court the power to condone the late
filing of the appeal on good cause shown. The applicant's
explanation for the delay in the filing of the appeal is that
when the human resources manager, Mr Hardie, received
the notification of the refusal of the objection, he did not
realise that it was such a notification. The deponent to the
applicant's affidavit, Mr Hardie, further stated that he was
misled into believing that the compliance order was being
reissued because the document served was headed
"Compliance order in terms of section 69 read with section
71(3) of the Basic Conditions of Employment Act". He
further stated that he only realised on 22 April 2004 what
the document was. This is the date on which the notice to
enforce compliance order was served. It was submitted
that had Hardie read the document he would have realised
that the objection had been refused. When the notice was
given to Mr Hardie, he signed for it.
[15] What is in dispute is whether Mr Reddy informed Mr Hardie
that he was reissuing the compliance order, as alleged by
Mr Hardie. As a result of the heading of the document,
Mr Hardie (as the argument continues) was misled.
[16] In the replying affidavit, page 243, paragraph 6.2, Mr Hardie
testified that he did not read the document and that
Mr Reddy did not explain the contents thereof. He further
stated that he did not consider it necessary to read the
document as he assumed it was the same compliance
order which had been reissued.
[17] I have some difficulties with the applicant's version, as will
appear below. In paragraph 20, page 12, line 7, of the
documents Mr Hardie stated:
"I had not seen the original compliance order
and assumed it was the same document."
The difficulty here is that Mr Hardie has not explained how
he assumed the document served on him was the
compliance order when he had not seen the original. As
Mr Hardie had not seen the compliance order, one would
have expected him to read the document if he did not do
so.
[18] Another difficulty with the applicant's version is that even if
Mr Reddy did not explain the contents to Mr Hardie,
Mr Hardie was aware that the variation application had
been refused. At page 12, paragraph 20, of his founding
affidavit, Mr Hardie stated:
"On 16 March 2004 I was informed that the
second respondent had refused the applicant's
variation application. On the following day
Mr Harris Reddy, an inspector from the
Department of Labour, who has throughout
dealt with this dispute, attended the applicant's
premises and informed me that he was
reissuing the compliance order."
[19] The applicant knew by 16 March 2004 that the variation had
been refused, even before the arrival of Mr Reddy.
Section 71(6) provides that if the Director-General confirms
or modifies the order or any part of the order, the
employer must comply with that order within the time
specified in that order. Mr Hardie has not explained how
he got to know on 16 March 2004 that the variation had
been refused. However, the applicant did not comply with
the order, even though Mr Hardie had been informed on
16 March that the application had been refused.
[20] The service of the documents on 17 March 2004 merely
confirmed what Mr Hardie already knew. This, in my view,
explains why he did not read it. The applicant waited for
the second respondent's next move. The applicant only
took steps when the application to enforce the compliance
order was served.
D236/04, D292/04-NB/CD - 8 - JUDGMENT
D236/04, D292/04-NB/CD - 9 - JUDGMENT
[21] I reject the submission that Mr Hardie was misled by
Mr Reddy for the reason that he had been informed
on 16 March of the results of the application. It was
for Mr Hardie to read the document served on him as
human resources manager. Another problem with
the explanation is that Mr Hardie did not consider it
necessary to send the document to the attorneys
acting for the applicant and the attorneys simply
accepted that the document served was a compliance
order. If Mr Hardie did not read the document, as he
has alleged, he neglected his duties as a human
resources manager. The fact that Mr Reddy did not
explain the document when it was served cannot be
accepted for the reason that it is not the applicant's
case that he did not understand the document. The
document was properly served. There is no
suggestion that it was in a language that Mr Hardie
did not understand.
[22] In the circumstances the explanation cannot be accepted
as it is not reasonable. The applicant has failed to
satisfy the first requirement of an explanation that is
reasonable and acceptable. I find that it is not
necessary to look at the prospects of success. (See
Mziya v Putco Ltd (1999) 2 BLLR 163 (LAC) at page
107, paragraph 11.)
[23] I should mention that before the amendment section 70
of the Basic Conditions of Employment Act limited the
ability of the labour inspector to issue a compliance
order. The amendment was meant to remove the
limitation. The result is that, even if the amount has
D236/04, D292/04-NB/CD - 10 - JUDGMENT
been owing for more than 12 months, the compliance
order can be issued. The provisions of section 70
before the amendment did not make the claim to
prescribe. It only meant that other means of claiming
the amount owing had to be followed.
[24] The applicant does not have any vested right in refusing
to pay the amount owing. There is no merit in the
argument that the amount owing cannot be enforced
by means of a compliance order. There is no right of
the applicant that has been taken away.
Furthermore, the applicant did not at any time
suggest that the compliance order was vague. That
has only been raised in these papers. I would have
expected this to have been raised with Mr Reddy or
the second respondent. This was never done by the
applicant. The compliance order also complies with
the requirements of section 69(2) of the Basic
Conditions of Employment Act as it sets out what the
Section requires. There is no question of it being
vague.
[25] In the light of the fact that there are no prospects of
success on appeal, the application for condonation is
dismissed with costs, such costs to include the costs
of two counsel.
[26] I have indicated that I was asked to consider the
application for the review under case number
D292/04 in the event of the application for
condonation not succeeding. I now deal with the
application for the review of the decision of the
D236/04, D292/04-NB/CD - 11 - JUDGMENT
second respondent. What follows below therefore is
my decision with regard to the review application
under case No D292/04.
The review application
[27] The respondents have raised a point in limine and
submitted that the application for a review has been
brought in contravention of section 7(2)(a) of the
Promotion of Administrative Justice Act No 3 of 2000.
The basis for this point is that the review was brought
when the internal process had not been exhausted.
This section provides that:
"7(2)(a) Subject to paragraph (c), no
court or tribunal shall review
an administrative action in
terms of this Act unless any
internal remedy provided for
in any other law has first
been exhausted."
Section 7(c) provides that:
"A court or tribunal may,
in exceptional
circumstances and on
application by the person
concerned, exempt such
person from the
obligation to exhaust any
internal remedy if the
court or tribunal deems it
in the interests of
justice."
[28] The remedy provided by the Basic Conditions of
D236/04, D292/04-NB/CD - 12 - JUDGMENT
Employment Act in circumstances where the
exemption or variation has been refused is an appeal.
(Section 72(1) of the BCEA)
[29] Mr van Niekerk, for the applicant, submitted that section
7(2)(a) is not a bar to a review and submitted that the
application for review was brought when there was an
attack on an application for condonation.
[30] I reject the submission made on behalf of the applicant
for the reasons that follow. The applicant's
submission is that as a result of the attack on
condonation it was necessary to apply for a review.
The fact is that the review application has been
brought while the appeal is pending, there being no
decision on the appeal. The fact that there was an
attack on condonation does not mean that the
applicant had exhausted the internal processes. The
internal processes are only exhausted once there is a
decision on the appeal.
[31] I do not accept the submission that section 7(2)(a) is not
a bar to a review. If the statute provides for an
appeal as an internal remedy, a review cannot be
brought simultaneously with the appeal, as the
applicant has done in the present matter. The
applicant has not applied for an exemption in terms
of section 7(c) on the basis that the internal remedies
have been exhausted as a result of the application for
the appeal.
[32] For the applicant to succeed on the exemption a
D236/04, D292/04-NB/CD - 13 - JUDGMENT
substantive application setting out the exceptional
circumstances should have been made. In my view,
as the statute provides for the appeal the applicant
cannot review what is subject to the appeal. As I
have refused the condonation application the remedy
available to the applicant is an appeal to the Labour
Appeal Court.
[33] I agree with Mr Wallis, for the first and second
respondent, that the point in limine should succeed.
[34] In the circumstances, the point in limine is upheld. The
application for a review is dismissed. The applicant is
ordered to pay the first and second respondents'
costs, such costs to include the costs of two counsel.
[35] In conclusion therefore the following order is made in
respect of matter:
(a) The application for condonation is dismissed.
(b) The application for the review is dismissed.
(c) The applicant is ordered pay the 1st and 2nd
Respondent’s costs. Such costs to include costs of
two counsel.
__________
Ngcamu AJ