Chetty v Department of Health KZN and Others (D771/15) [2021] ZALCD 78 (14 December 2021)

IN THE LABOUR COURT OF SOUTH AFRICA

CASE NO: D 771/15

In the matter between:

LETRICIA CASSANDRA ANNE CHETTY APPLICANT

And

DEPARTMENT OF HEALTH KZN FIRST

RESPONDENT

HOD DEPARTMENT OF HEALTH KZN SECOND

RESPONDENT

MEC DEPARTMENT OF HEALTH KZN THIRD

RESPONDENT

Heard: 5 August 2021

Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time of the hand-down is deemed to be at 10h00 on 14 December 2021

JUDGMENT

Hiralall AJ

Introduction

[1] This is an application in terms of section 158(1)(h) of the Labour Relations Act, 66 of 1995 (the Labour Relations Act) wherein the applicant seeks that the decision of the second respondent, dated 26 July 2017 refusing her application for reinstatement, be reviewed and set aside, and that she be reinstated in employment with the first respondent with full benefits on the same terms and conditions as prevailed prior to the termination of her services.

Factual background

[2] The applicant commenced employment with the first respondent in April 1997. Over the years, she moved up in the ranks from her initial post of telecom operator at Mahatma Gandhi Memorial Hospital, and in October 2012 she was appointed to the position of Systems manager at St Mary's KwaMagwaza Hospital (“St Mary's Hospital”) in Melmoth.

[3] According to the applicant, she experienced difficulties with the senior management at St Mary's Hospital from the time she arrived there, such difficulties ranging from a lack of suitable accommodation and an office, to reports of threats to her safety not being attended to. Her work in assessment of the systems component exposed several irregularities and non-compliances with the PFMA which bordered on fraud and corruption. This resulted in an investigation which was followed by suspension of certain employees whilst others resigned. According to the applicant, the threats to her safety and the lack of assistance from the respondents and in particular Mr Mkhwanazi, the District HR Manager, caused her to become seriously ill. As a result, she was absent from work from February 2013 to 15 August 2013. She was also trying to obtain an alternative position in another institution at the time. She had, however, submitted all of her medical certificates and leave forms for the entire period of her absence.

[4] According to the respondents, whilst the applicant’s superiors, in particular her immediate supervisor Ms Mkhize, were aware that there were investigations with regard to irregularities within the department, they had no knowledge as to whether it was the applicant who had reported the irregularities in question or that she was receiving threats, as none of them were reported by the applicant to her direct line manager, nor were they aware that the applicant might have attempted to report any incident

to the local SAPS, or that Mr Gerber had made written recommendations for her transfer to another institution as contended by the

applicant. The respondents were also not aware of the applicant’s communications with Mr Zungu, Dr Dlomo or Shaun Kader of the SIU as she contended. It was significant that none of these allegations formed part of the applicant's representations for reinstatement. According to the respondents, the applicant’s services were terminated in a lawful, reasonable and procedurally fair manner in terms of section 17(3) of the Public Service Act, and the respondent’s procedural guidelines in Circular 81 of 2008 relating to employees who abscond were followed. She had been absent for an extended period since February 2013, and did not present medical certificates and leave forms for the period 4 June 2013 to 15 August 2013.

[5] A brief summary of the events that transpired after the termination of the applicant’s services follows below and has been extrapolated from the affidavits and annexures filed by the parties.

5.1 The applicant’s services were terminated on 15 August 2013.

5.2 On 16 August 2013, she sent a letter to the second respondent applying for reinstatement. She stated that all sick notes had been faxed directly from the doctor’s rooms to the acting CEO, that the period June 2013 to 15 July 2013, referred to by the respondents did not make sense to her as sick notes were dated from the beginning of the month to the end of each month, and that she had received no communication or correspondence from anyone at St Mary's Hospital or the District Office with regards to the misconduct “gross

absenteeism”, although she did receive emails from the District Human Resource Manager and the Acting CEO stating that services at the Institution had collapsed due to her abandoning her sections. She also stated in her letter that she ‘had received many sexual advances from the District HR Manager uThungulu’ (presumably this reference is to Mr Mkhwanazi who was the District HR Manager), and felt that the termination was linked to her telling him that she was going to expose him.

5.3 At the same time, the applicant referred an unfair dismissal dispute to the Public Health and Social Development Sectoral Bargaining Council (PHSDSBC).

5.4 In the meantime, on 3 December 2013 she received a letter from the second respondent informing her that the matter was finalized by the employer on 15 August 2013, that she exercised her right to refer the matter to the PHSDSBC, that the matter was pending there, and that she could follow up with the Council as to when the matter would be set down for arbitration.

5.5 The matter was heard in the PHSDSBC on 22 May 2014. After hearing evidence, the arbitrator issued a ruling on 30 June 2014 that the applicant’s employment was terminated by way of operation of law and as such the council did not have jurisdiction to entertain the matter. The award recorded the following:

‘16. The evidence revealed that respondent received leave forms and sick notes from applicant until 03 June 2013. It further revealed that respondent did not receive any leave form or sick notes between 03 June 2013 and 15 August 2013. Miss Mkhize only received the sick notes covering the period 4 June 2013 to 1 September 2013 on 9 September 2013 after applicant’s services were terminated. …

20. The employment relationship is terminated by operation of the law and can therefor not be said to be terminated in terms of section 186 of the Labour Relations Act. In this regard (see Hospersa and others v MEC for Health (2003) 24 ILJ 2320 (LC), Maidi v MEC for Education and others (2003) 24 ILJ 1552 (LC), Phenithi v Minister of Education and others (2005) 26 ILJ 1552 (LC).’

5.6 On the same day, 30 June 2014, the applicant delivered a letter to the second respondent requesting reinstatement. She received a response on 14 November 2014 informing her essentially that there was nothing that the Department of Health could do further as the matter had been dealt with and ruled on by the PHSDSBC.

5.7 On 30 September 2015, the applicant launched an application in this court to review the decision of the second respondent dated 14 November 2014, and for reinstatement to her employment.

5.8 The respondents filed their first answering affidavit on 15 December 2015.

5.9 The matter was set down for hearing on 20 April 2017 and this court per Cele J ordered the respondent to comply with section 17(3)(b) of the Public Service Act upon the applicant tendering her services.

5.10 The applicant tendered her services at the St Mary's Kwa Magwaza Hospital on 24 April 2017 but was told to go home and wait to be contacted for further process to be followed. On 18 May 2017, she was invited to submit her request for reinstatement and informed that the representations would be forwarded to the Executive Authority (the third respondent) for consideration.

5.11 The applicant submitted her representations to the Executive Authority KwaZulu Natal Department of Health on 25 May 2017.

5.12 She received the following response from the Head: Health KwaZulu Natal dated 31 July 2017:

‘Kindly be informed that your application for reinstatement has been considered by the Head of Health.

You are further advised that the application has not been successful.’

5.13 The applicant then filed an application to compel the first respondent to make a determination on her request for reinstatement in terms of section 17(3) of the Act, and that in the event of the application for reinstatement being unsuccessful, that the first respondent be directed to provide reasons as to why the applicant could not be reinstated. This application was premised on the basis that the applicant was informed that the decision would be made by the executive authority but that it was made instead by the head of department. However, the application was withdrawn on 23 February 2018 with the applicant to pay the costs of the respondent.

5.14 The applicant filed a supplementary affidavit on 9 July 2018. The affidavit dealt with the events following on the order of court dated 20 April 2017, and her representations as well as that of her trade union to the respondents for her reinstatement. However, none of the annexures which she referred to accompanied the supplementary affidavit.

5.15 The main issue of relevance in the applicant’s supplementary affidavit was that s17(3)(b) required that the executive authority

make a decision on her application for reinstatement but that in her case it was the second respondent who had made the decision, that that was the reason for the application to compel which she had withdrawn earlier because the court was of the view that a decision had been made. Her complaint was that the respondents had provided no reasons for the decision not to reinstate and there was no justification for the decision.

5.16 The respondents filed a second answering affidavit on 27 August 2018. The following were the main points raised by the respondents:

5.16.1 The respondents had sent a registered letter to the applicant on 16 July 2013 notifying her that she was absent from work without authorization for a period exceeding a calendar month, and that she was required to resume her duties failing which her services would be terminated. The letter and proof of service thereof were attached to the affidavit.

5.16.2 It was pointed out that when the applicant made application for her reinstatement in terms of section 17(3)(b) on 25 May 2017, it was more than three years after her deemed dismissal.

5.16.3 The applicant elected to file a supplementary affidavit without recourse to any record or reasons for the decision taken by the respondent. Accordingly, it was submitted that the application is essentially an application to review a termination of services which occurred by operation of law instead of a review of the decision not to reinstate, that it is therefore fatally flawed, and falls to be dismissed with costs

5.16.4 That the annexures referred to by the applicant were not attached to the supplementary affidavit.

5.17 The answering affidavit recorded that the Head of Department for Health, KwaZulu – Natal acted in his dual capacity in making the decision not to reinstate the applicant in terms of s 17(3)(b) of the Public Service Act. The respondents put up a document purporting to be the reasons for refusal of the applicant’s application for reinstatement but the confirmatory affidavit of Dr ST Mtshali did not accompany the answering affidavit as recorded in the affidavit.

[6] The applicant filed her replying affidavit on 17 July 2019 in which she recorded the following grounds of review:

6.1 The reasons for refusal of the applicant’s application for reinstatement were made available for the first time in the respondents’ answering affidavit.

6.2 The Head of Department failed to apply his mind to the applicant’s application as there was proof that she was ill during the period in question, 4 June 2013 to 15 August 2013.

6.3 The applicant’s submissions and that of her trade union in support of her application provided good cause for her reinstatement.

6.4 The decision not to reinstate the applicant was not a reasonable one as there was a total disregard of the medical certificates provided by the applicant in the request for reinstatement.

6.5 The decision was made by the Head of Department and not the executive authority as required. The applicant was not provided with proof of delegated authority.

6.6 In endorsing the refusal to reinstate, the Head of Department simply approved what had been decided by his subordinates without actually applying his mind to the applicant’s application.

6.7 The notices sent to the applicant prior to her deemed dismissal did not get to the attention of the applicant and she was therefor unaware of the unfolding process.

[7] The applicant’s notice of motion was amended on 17 July 2019.

Issues to be decided

[8] The following issues must be decided:

8.1 The applicant’s delay in applying for reinstatement in terms of s 17(3)(b) of the Public Service Act;

8.2 The applicant’s non-compliance with Rule 7A(2)(b) and (6) of the Labour Court Rules;

8.3 Whether the decision refusing the applicant’s application in terms of section 17(3)(b) of the Public Service Act for reinstatement should be reviewed and set aside;

8.4 Costs.

Evaluation

[9] In terms of the provisions of section 158(1)(h) of the Act, this court may review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law.

[10] The procedures to be followed for review applications are prescribed in Rule 7A of the Labour Court Rules. The rules specific to this application will be addressed later.

[11] Legality reviews, unlike s145 reviews of arbitration awards, which must be brought within 6 weeks of the date on which the award was served on the applicant, must be brought within a reasonable time.

The delay

[12] The respondent raised the issue of the delay of three years before the applicant made representations to the respondents for reinstatement

on 25 May 2017.

[13] In this regard, it is noted that although no application for condonation is strictly required, it is advisable to provide an explanation for such delay where there has been an excessive delay as in the present case. In Gcani v Minister of Justice and Correctional Services and others[1], the court, referring to various authorities on the point, stated as follows:

‘[39] Therefore, even though there is no prescribed time limit for bringing such an application, there must still not be an undue delay in bringing the application. An undue delay, especially one that is not properly explained, can in itself be seen to infringe on the constitutional principle of legality. …

[40] … [I]n Gqwetha v Transkei Development Corporation Ltd and Others the Court said the following:

‘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 importantly, there is a public interest element in the finality of administrative decisions and the exercise of administrative functions. …

[41] … The Court in G4S[2] also recognized that the LRA places a premium on the expeditious resolution of labour disputes, and thus the application to review had to be brought within a reasonable time, despite there being no prescribed time limit.’

[14] In this case, the applicant places blame on the respondents for not making a decision any earlier but it is clear from the order of court dated 20 April 2017, almost four years after the deemed dismissal, that she had not complied fully with the requirements of an application for reinstatement hence the order directing that the applicant tender her services and the respondents comply with the provisions of s17(3)(b).

[15] Be that as it may, there were lengthy periods after 20 April 2017 where the applicant did nothing to prosecute the review application with any haste. The decision sought to be reviewed is dated 31 July 2017. The applicant filed a supplementary affidavit on 9 July 2018, a year later. The respondent filed an answering affidavit on 27 August 2018, and the applicant filed a replying affidavit on 17 July 2019, almost another year later. Apart from certain incorrect steps taken by the applicant, there are no explanations for the lengthy periods of delay throughout the history of this case.

[16] The applicant was deemed dismissed on 15 August 2013, over 8 years ago, and her application to review the decision not to reinstate her has only now come before this court.

[17] This application should be dismissed on this ground alone. However, the court in Gcani [3] makes an important point as regards the possible consequences to the constitutional imperatives in s195 of the constitution if irregular conduct is not set aside. The court stated as follows:

‘[44] A further important consideration in deciding to overlook the delay is the possible consequences to the constitutional imperatives in section 195 of the Constitution if the irregular conduct is not set aside. This involves a proper analysis of the decision that is sought to challenged, and the possible merits of that challenge. In Khumalo, it was held as follows:

‘An additional consideration in overlooking an unreasonable delay lies in the nature of the impugned decision. In my view, this requires

analysing the impugned decision within the legal challenge made against it and considering the merits of that challenge.’

[45] These kind of review applications also quintessentially concern nothing else but, at the heart of it, an employment dispute. As such, any explanation must always be considered against the prime principle and essential requirement of expeditious resolution of such disputes.’

[18] I proceed to consider the application on this basis.

[19] The next issue to be decided, however, is the applicant’s non-compliance with the provisions of Rule 7A and the consequences

thereof.

Non-compliance with Rule 7A

[20] It was submitted by the respondents that the applicant sought to supplement her review application in a manner that is foreign to the provisions of Rule 7A(8) of the Labour Court Rules in that the delivery of the supplementary papers was done without the applicant

having had recourse to the record and/ or reasons for the decision. When the non-compliance was raised in the respondent's answering

affidavit, the applicant claimed that she had requested such part of the record through a letter from her union. In this regard it was submitted that pursuant to the failure to observe the imperative provisions of Rule 7A (8) of the Labour Court Rules the applicant had no authority to supplement her papers as described above, thus rendering the applicant’s application to be fatally defective.

[21] The procedure for review of a decision or proceedings of a body or person performing a reviewable function justiciable by the court is governed by the provisions of Rule 7A. Having regard to the facts of this case, it is necessary to set out in some detail the relevant provisions of Rule 7A:

‘(1) A party desiring to review a decision or proceedings of a body or person performing a reviewable function justiciable by the court must deliver a notice of motion to the person or body and to all other affected parties.

(2) The notice of motion must-

(a) call upon the person or body to show cause why the decision or proceedings should not be reviewed and corrected or set aside;

(b) call upon the person or body to dispatch, within 10 days after receipt of the notice of motion, to the registrar, the record of the proceedings sought to be corrected or set aside, together with such reasons as are required by law or desirable to provide, and to notify the applicant that this has been done; and

(c) be supported by an affidavit setting out the factual and legal grounds upon which the applicant relies to have the decision or proceedings

corrected or set aside.

….

(6) The applicant must furnish the registrar and each of the other parties with a copy of the record or portion of the record, as the case may be, and a copy of the reasons filed by the person or body.

(7) The costs of transcription of the record, copying and delivery of the record and reasons, if any, must be paid by the applicant and then become costs in the cause.

(8) The applicant must within 10 days after the registrar has made the record available either-

(a) by delivery of a notice and accompanying affidavit, amend, add to or vary the terms of the notice of motion and supplement the supporting

affidavit; or

(b) deliver a notice that the applicant stands by its notice of motion.’

[22] It is so that the applicant’s initial application to this court was premature with the result that an order was issued for the applicant to tender her services and for the respondents to comply with the provisions of s 17(3)(b). After making representations for reinstatement and obtaining a response from the respondents, the applicant filed a supplementary affidavit thereafter in order to continue with the review application on the same papers. However, quite apart from the applicant not complying with Rule 7A(2)(b) in her initial notice of motion, she did not attempt to comply with the said provisions at any time thereafter. Her amended notice of motion, which was in any event only filed with her replying affidavit, did not cure the defect the effect of which pervades the entire application.

[23] Clearly then, the applicant was not in possession of the record of the proceedings and the reasons for the respondent’s decision at the time that she filed her supplementary affidavit. The applicant criticises the respondents for not furnishing her with reasons for the decision not to reinstate. However, the review procedures in terms of Rule 7A require the applicant to place before the court ‘a copy of the record or portion of the record, as the case may be, and a copy of the reasons filed by the person or body’.

[24] Besides non-compliance with Rule 7A (6) above, the applicant’s supplementary affidavit was not accompanied by the annexures referred to therein, more particularly annexures “LC2” and “LC3” which were the applicant’s representations to the respondents and her trade union’s letter dated 31 July 2017. The applicant filed documents purporting to be the missing annexures belatedly but they were clearly the incorrect documents as they were all dated 2013 and bore no relevance to the annexures referred to in the supplementary affidavit.

[25] It is trite that an applicant in motion proceedings must make out a case for the relief sought in its founding papers. In review proceedings, Rule 7A provides that in addition to the founding affidavit, the applicant must file a copy of the record culminating in the decision to be reviewed, the decision to be reviewed, and a supplementary affidavit if necessary. The grounds on which the decision is sought to be reviewed must be stated. None of this appears in the applicant’s founding papers. Of-course the initial founding papers contain grounds of review but these relate to the premature process. Most importantly, the applicant has not provided a record and the reasons to this court.

[26] The respondent filed inter alia the following documents with its answering affidavit:

· “LC2” dated 25 May 2017 which ought to have been attached to the applicant’s supplementary affidavit; and

· “M1” which was a copy of the respondent’s decision declining the applicant’s application for reinstatement.

[27] However, the above documents do not make up a complete record. The complete record should have comprised the applicant’s representations

accompanied by her medical certificates and proof of delivery thereof, as well as any other supporting documents, and a record of the process followed by the respondent together with its decision and the reasons therefor.

[28] The court is mindful that being a court of equity a measure of flexibility is required. The court is also mindful that many of the

medical certificates on which the applicant relies appear as attachments to her application to compel, however, this application

was withdrawn earlier. Further, the medical certificates are not accompanied by proof of service or delivery to the respondent at the relevant times, or by confirmatory affidavits. The court is not required to trawl through various affidavits in search of documents that might or might not make up a record of the representations made to the respondent.

[29] The applicant’s complaints that the respondent only made the reasons for its decision available when it filed its answering

affidavit do not assist the applicant in this application. The applicant was required to request the record and reasons in terms of the rules of this court. It is to be noted that the application to compel on 17 November 2017 called on the respondent to make a determination on the applicant’s application for reinstatement (did not constitute a request for the record). The said application was withdrawn on 23 February 2018 because, according to the applicant, the court was of the view that a decision had already been made and there were thus no grounds to compel the MEC to make a decision.

[30] The purpose of providing the court with a complete record is to assist the court to determine whether the decision was rationally connected to the purpose for which the power was given to the decision maker, and whether the decision accounted for all the relevant facts informing the decision to the extent that the decision can be said to be rational[4].

[31] In the present case, the applicant’s application for reinstatement (Annexure “LC2”) was introduced into these proceedings through the respondent’s answering affidavit. Introduced as it was, it was not accompanied by any of the supporting documents referred to therein, an integral part of the application for reinstatement having regard to the respondents’ contentions

that led to the deemed dismissal. In any event, the following relevant paragraphs require comment:

‘… Attached are the events that lead (sic) up to me being away from work. All sick notes were submitted directly from the Doctors’ rooms.[5]

…

I wanted to be back at work. I just didn’t feel safe to go back to SKMH. Mr Nyembe telephoned Mr Mkhwanazi and I was asked to go and see Mr Mkhwanazi. Arrangements were made to see Mr Mkhwanazi on the 4 June 2013. Upon going to the District Office uThungulu I submitted the original sick notes and leave forms and it was noticed that the previous forms submitted were never captured. I informed Mr Mkhwanazi that even PILIR forms were lost by the institution on two occasions[6].

I had been hospitalized on and off since the miscarriage and breakdown but was hospitalized again in July 2013. Doctor had faxed through a note to CEO stating that I was currently in hospital[7].

The two letters that were written to me was (sic) addressed to me incorrectly and still posted to a completely different address as proven through the registered mail documentation[8].

Supporting documents attached:

1. Sick notes for July 2013 up until September 2013, which were faxed from the Doctor’s rooms directly to the hospital Human Resource Department and telephonically confirmed receipt with Miss Nonhlanhla Vezi.[9]’

[32] Clearly, the applicant did not hand to Mr Mkhwanazi medical certificates for June and July 2013. Had she done so, this would have been clearly stated by her. Her reference is only to ‘original’ sick notes and leave forms, and that the ‘previous’ forms were never captured. In any event, she later stated that in July 2013 the doctor had faxed through a note to the CEO stating that she was in hospital. However, in the last paragraph of her letter she stated that sick notes for July until September 2013 were faxed from the doctor’s rooms to the HR department. Quite apart from the vague and contradictory nature of the applicant’s representations, none of the attachments and proof of delivery were submitted in the applicant’s papers before this court. These contradictions also appear in the applicant’s founding affidavit and her two earlier representations.

[33] It is not known whether the attachments referred to by the applicant accompanied her application for reinstatement as the record was not presented to this court.

[34] The court in NEHAWU obo Zikalala v Department of Water and Sanitation and others[10], commented pertinently on what is required of an employee who has to show good cause for reinstatement:

‘[21] At the outset, it is important to go back to the wording of s 17(3)(b) of the PSA. Doing so reveals that the dismissed employee must show good cause for their application for reinstatement to be approved. The legal sense of the word, ‘show’, means that the employee must demonstrate or explain why good cause exists to reinstate him. The employee thus has a duty not only to place facts before the decision-maker but to show how these facts meet the legal standard of ‘good cause’. It is not for an

employer or decision-maker to rummage through facts that may or may not exist in the employee’s file to justify reinstatement. Nor is it the decision-makers’ role to discount arguments not made by the employee. The decision maker is there to evaluate the employee’s application for reinstatement, not conduct a fact-finding exercise triggered by such a request.’

[35] It should also be mentioned on this score that the explanation with regard to the applicant’s address was introduced for the first time in her heads of argument. It was never stated any earlier anywhere in the applicant’s papers that the applicant had in fact replaced her original address with another address in her personal file.

[36] The award issued by the PHSDSBC, upon consideration of the evidence of both parties in relation to the termination of her services by operation of law, makes no mention of the issue of an incorrect address being raised by the applicant.

[37] The following further facts should be recorded:

36.1 The applicant refers to a letter which was sent by her trade union in support of her application for reinstatement. However, the said letter is not attached to the applicant’s supplementary affidavit, and is in any event dated 31 July 2017 which was after the respondent had made its decision not to reinstate.

36.2 The applicant’s initial application for reinstatement dated 16 August 2013 cited that she was sexually harassed by Mr Mkhwanazi

which she believed was linked to her termination because she had told him that she was going to expose him. The applicant’s later application for reinstatement does not cite sexual harassment from Mr Mkhwanazi but rather implicates a Mr Magwaza, a senior general orderly, in threatening behavior on account of her exposing irregularities within the systems component. According to Ms Mkhize, who was the applicant’s direct line manager at the time in question, none of the applicant’s allegations were reported to her and there were no records within the department regarding the alleged threats made to the applicant.

36.3 The applicant’s contention that the decision not to reinstate her was made by the Head of Department and not the MEC is addressed by the respondents in the second answering affidavit where it is stated that the Head of Department made the decision in his dual capacity as Head of Department and the delegated political head of the department. In the absence of a record, the court is not inclined to guess what the position was. This was in any event not disputed in the applicant’s replying affidavit.

36.4 The applicant’s further grounds of review (of the respondent’s decision dated 26 July 2017) appear for the first time in her replying affidavit, the obvious effect of which is that the respondents are not afforded an opportunity to respond. It is trite that this is not permissible in motion proceedings.

[38] As matters stand, I am of the view that the applicant’s non-compliance with Rule 7A(6) is a fatal defect, particularly in

view of the effect thereof in the circumstances of this case as elucidated above.

[39] There is no record on which the court can review the decision of the decision maker.

Conclusion

[40] Given my finding above, it is clear that the court is not in a position to consider the review application on the papers as they stand.

[41] Costs do not generally follow the result in labour disputes and the court is not inclined to deviate from this practice in the present case.

Order

[42] In the premises, I make the following order:

1. The applicant’s review application is dismissed;

2. There is no order as to costs.

N. Hiralall

Acting Judge of the Labour Court

APPEARANCES

For the Applicant: Mr V. Ntlokwana

Instructed by: Ntlokwana and associates

For the Respondent: Adv. M. Zulu

Instructed by: State Attorney

[1] Case number 170/16, Judgment dated 14 September 2018

[2] G4S Secure Solutions (SA) (Pty) Ltd v Gunqubele NO and Others,

[3] Supra

[4] Mohlomi v Ventersdorp/ Tlokwe Municipality and others J2910/16, Judgment dated 14 November 2017

[5] Paragraph 5 Annexure “LC2”, page 124 of the indexed pleadings

[6] Paragraph 5 Annexure “LC2”, page 126 of the indexed pleadings

[7] Paragraph 10 Annexure “LC2”, page 124 of the indexed pleadings

[8] Paragraph 3 Annexure “LC2”, page 127 of the indexed pleadings

[9] Paragraph 3 Annexure “LC2”, page 128 of the indexed pleadings

[10] Case number D767/17, Judgment dated 27 October 2021