Bamuza v Skweyiya NO and Others (JR662/18) [2021] ZALCJHB 160 (21 July 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Not of interest to other judges

Case no: JR662/18

In the matter between:

TINTSWALO BAMUZA

Applicant

and

SM SKWEYIYA NO First Respondent GENERAL PUBLIC SERVICES SECTOR BARGAINING COUNCIL DEPARTMENT OF TELECOMMUNICATIONS AND POSTAL SERVICES Second Respondent Third Respondent

Heard: 10 March 2021

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives by email and release to SAFLII. The date and time for hand-down is deemed to be 10h00 on 21 July 2021.

Summary:

-Review

- Point in limine non-joinder

JUDGMENT

COETZEE AJ

1. This matter came before me on 10 March 2021, and was heard via zoom because of the prevailing epidemic and the current practice directives from the Judge President of this Court. At the hearing I delivered an ex tempore judgement which unfortunately was not recorded. This is therefore a reconstructed judgement with the assistance of the parties in terms of the directive of the Judge President.

2. The applicant applied for the review of an arbitration award under case number GPBC 109/2018 at 8 March 2018 and that the matter be remitted back to the bargaining council to be determined before another Commissioner.

3. The application concerns a review of the decision of the General Public Services Sector Bargaining Council wherein it ruled that it does not have jurisdiction to deal with the matter because the referral was made out of time and there was no application for condonation.

4. The Third Respondent raised a point in limine to the effect that the Applicant has failed to comply with the provisions of section 2(1) of the State Liability Act 20 of 1957. Section 2(1) of the State Liability Act provides that;

“In any action or other proceedings instituted against a Department, the Executive Authority of the Department concerned must be cited as the nominal Defendant or Respondent.”

5. It is the Third Respondent’s case that the failure of the Applicant to join the Minister of Labour is fatal. The Third Respondent in their Heads of Arguments also referred to the Constitutional matter of Nyathi v MEC for Department of Health, Gauteng and Another 2008 (5) SA 94 (CC) where it was held that;

“A litigant such as the Applicant in this matter brings the relevant national or provincial Department before a Court by citing the

Political Head for that Department as provided for in s2 of the Act.”

6. It is indeed correct that the Applicants did not cite the Minister of Labour in these proceedings. The submission of the Applicant is that in review proceedings of this nature it is customary to cite only the Department and not the Minister and such practice has developed in this Court.

7. It is my view that even if such practice has developed in this Court, such practice is not in line with section 2(1) of the State Liability Act. It is therefore my finding that the failure to cite the Minister of Labour by the Applicant is fatal to the Applicant’s application and under the circumstances the application should be dismissed.

Order

[1] I make the following order:

1. The application is dismissed with no order as to costs.

____________________

F. Coetzee

Acting Judge of the Labour Court of South Africa

Appearances

For the applicant:

Instructed by:

For the Third Respondent: