Coleman v Department of Local Government And Housing and Others (JR 1931/09) [2014] ZALCJHB 479 (4 December 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no: JR 1931/09

DATE: 04 DECEMBER 2014

NOT REPORTABLE

In the matter between:

S.M COLEMAN.................................................................Applicant

And

DEPARTMENT OF LOCAL

GOVERNMENT AND HOUSING.........................First Respondent

MA MOPELI N.O............................................Second Respondent

GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL..................................Third Respondent

Heard: 30 October 2014

Order: 04 December 2014

Summary: Application for rescission-failure to appear not due to wilful default on part of the Applicant-presumption of receipt not applicable where there is proof that mail was not received by Applicant. Bona fide defence or prima facie case is much more than facts which disclose a triable case- full background of the context of the case must be considered

SONO, AJ

[1] This is an application to rescind the order granted by Bhoola J (as she then was) on 04 May 2011, in terms of which the Court dismissed the Applicant’s review application. No order as to costs was made.

[2] In order to succeed in her application for rescission, the Applicant must show good cause for her absence. In showing good cause, the Applicant must furnish an explanation for her absence and set out sufficient facts which would lead the Court to the conclusion that there is a prima facie case or bona fide defence.

[3] I turn to deal with her explanation.

Explanation for the absence

[4] In a nutshell, the Applicant contends that her failure to attend Court on 04 May 2011 was not due to wilful default on her part or that of her legal representatives. In turn, the Applicant contends that neither she nor her representatives received the notice of set down for the hearing of the review application.

[5] The First Respondent is opposing this application. None of the other Respondents are opposing this application. The First Respondent challenges the Applicant’s application mainly on the second requirement set out in the rescission application, being, the issue of bona fide defence or prima facie case. The First Respondent contends that this being a rescission application, even if it is accepted that the Applicant is not in wilful default, the Applicant must still show that she has a bona fide defence or prima facie case especially given that, on the day, the First Respondent presented full argument in the review application and had demonstrated to the Court why the application ought to be dismissed. In other words, the application was not dismissed merely on the basis of the Applicant’s failure to appear but after consideration of the merits of the application. It is my view that the First Respondent is correct in the argument that in a rescission application of this nature, in addition to the explanation for her absence, the Applicant must set out facts to show that she has a bona fide defence or a prima facie case.

[6] Having said the above therefore, it simply means that there can be no doubt that indeed the application for review was ripe for hearing. Indeed the Applicant had done all that is necessary to prosecute the review application and did so timeously. In fact, from the papers in the Court file, it appears that the Applicant’s representatives had made several enquiries with the Registrar regarding the possibility of having the matter set down for hearing. It was as a result of these persistent enquiries that the Applicant became aware that the matter was in fact disposed of on 04 May 2011.

[7] In the face of all the efforts made by the Applicant’s representatives to ensure that the matter is ripe for hearing and is ultimately set down for hearing, the natural question is why then would the Applicant and her representatives deliberately fail to attend Court once the matter is set down.

[8] Upon perusal of the court file it appears that the notice of set down was sent to the Applicant’s representatives by post. In terms of the rules of this Court, the notice is presumed to have been received on the seventh (7) day after dispatch. I however, doubt that the presumption is sufficient especially where, in the absence of any other proof to the contrary, a party indicates that it did not receive the notice. According to the Applicant, the notice of set down did not reach her attorneys of

record. There is nothing to indicate the contrary. It is common knowledge that the postal services have been disrupted as a result of the prolonged strike by postal workers. It will be quite unfortunate, if not irresponsible for this Court to ignore this fact as a possible explanation where a party who has been served documents by way of post has not received the mail. As stated above, there is nothing in the conduct of the Applicant to suggest that the Applicant had lost interest in the matter or had any wishes to avoid attending Court on the day in question.

[9] Indeed Bhoola J, on the date of the hearing was satisfied that the Applicant was properly notified of the date of hearing on the basis of a copy of the envelope, bearing, the address of the Applicant’s attorneys.

[10] Other than a copy of the envelope bearing the address of the Applicant’s attorneys, there is no evidence that the envelope together with its contents reached the Applicant’s attorneys.

[11] In any event, I can find no reason as to why the Applicant would deliberately fail to appear on the date of hearing of the review application.

[12] I am therefore inclined to believe the Applicant’s version in this regard that the notice of set down did not reach her attorneys, for the simple reason that even with the current application, the Applicant was unaware that the matter had been set down until contacted by the Court to obtain copies of her application which were obviously missing from the Court file. Had it not been for this, the Applicant would once again have not attended Court on the hearing date of the rescission application. In this instance once again, the notice of set down was sent by post.

[13] The Applicant had once again not received the notice of set down which was sent to her attorney’s address in the same manner that the notice of set down in respect of the review application had been sent.

[14] In my view, this is not a case where the Applicant had just sat around and failed to take the necessary steps to prosecute the review application. The Applicant was anticipating that the matter will be set down and kept on enquiring with the Registrar regarding the date of set down.

[15] As already stated, I cannot find any reason why the Applicant would have deliberately failed to attend Court on 04 May 2011. When the Applicant attorney’s were notified of the date of hearing of the rescission application, they immediately made arrangements to ensure that they attended Court the very next day without any attempt to delay the matter.

[16] They did not seek a postponement or engage in any tactics to delay the matter. Clearly, this is not the attitude of a party who has lost interest in the matter been heard in Court.

[17] I am therefore satisfied that the Applicant did not deliberately fail to attend Court on 04 May 2011.

[18] Therefore, the Applicant was not in wilful default.

[19] As indicated above, this being a rescission application, in order to succeed, the Applicant must in addition to a reasonable explanation for her absence, show that she has a bona fide defence or a prima facie case.

[20] The First Respondent contends however that the Applicant’s review application was not dismissed solely on the basis of the absence of the Applicant. According to the First Respondent, the review application was dismissed on merits after the Court had heard the First Respondent’s arguments on the review application.

[21] I am not aware of any judgement that was handed down by the Court either on or after 04 May 2011in respect of the review application nor could the Respondent confirm that one was handed down by the Court.

[22] Both parties are ad idem that only the order dismissing the review application was made in the matter.

[23] In the absence of a judgement, I have nothing to confirm that the review application was dismissed on any other basis than the Applicant’s absence.

[24] Be that as it may, however, the fact of the matter remains that the Applicant is in any event required by law to set forth, with sufficient detail her case so as to enable the Court to conclude that there is a bona fide defence or prima facie case.

[25] I now turn to deal with the Applicant’s prima facie case or bona fide defence in the review application.

Prima facie case or bona fide defence

[26] The Applicant was appointed on a fixed term contract for 6 (six) months. When her contract was not renewed, the Applicant then referred an unfair labour practice dispute to the bargaining council alleging that she had a legitimate expectation, not only that her fixed term contract would be renewed but also that she would be offered a permanent appointment by the First Respondent.

[27] According to the Applicant, this expectation was created as a result of representations made by one Miss Buthelezi. Miss Buthelezi was the Deputy Director of the First Respondent.

[28] Miss Buthelezi allegedly informed the Applicant that the position was available to her and that the interview for a permanent appointment to the position was just a mere formality.

[29] It is important to note that when she was offered the position on a fixed term basis, the position had not been advertised neither was the Applicant interviewed for the position.

[30] Prior to taking up employment with the First Respondent, the Applicant was a practicing attorney conducting business on her own account as a Conveyancer.

[31] A year after the Applicant had been acting in the position of Deputy Director: Housing Contract Management, the First Respondent advertised the latter position, but no interviews were conducted. In the interim, the Applicant’s contract was not renewed.

[32] The Applicant alleges that due to representations made to her by Buthelezi, she had a reasonable expectation that not only would her contract be renewed but that she would be offered a permanent position.

[33] Conciliation before the Third Respondent failed and the matter was referred for arbitration. At the arbitration, the First Respondent did not lead any evidence and closed its case after the Applicant had testified and she was cross examined.

[34] The defence put up by the Respondent was that only the Head of Department (HOD) and not the Deputy Director had the authority to appoint and any appointment or promise to appoint made by the Deputy Director, would in any event be ultra vires in terms of the Public Service prescripts. Due to the fact that the promise of permanent appointment was made by the Deputy Director, the Applicant could not have formed a reasonable expectation as the expectation must not only be reasonable but must also be lawful.

The arbitration award

[35] In the arbitration award, the Second Respondent came to the conclusion that there was no reasonable expectation, therefore no dismissal was established.

[36] The Second Respondent found that based on the evidence led before him, the utterances made by Miss Buthelezi that an interview was a mere formality were against public policy and could not have created or given rise to a reasonable expectation because public prescripts provide for procedures to be followed before a job candidate could be appointed and the Applicant participated in the process and it would be unreasonable to expect the First Respondent to appoint the Applicant permanently without following the laid procedures in terms of the Public Service Act[1] (‘PSA’) and the Public Service Regulations, 2001.

[37] In line with the applicable prescripts, the position was advertised.

[38] The Second Respondent further found that between February 2008 and July 2008, the renewal of the Applicant’s contract did not come easy. The renewal letters were signed late after the Applicant had already rendered services for the period covered by the letter, while in some instances it was a struggle for the Applicant to even receive her salary. In the face of the afore-going, the First Respondent could not have created a reasonable expectation for the renewal of the fixed term contract.

[39] The Second Respondent referred with approval, to the decision of this Court in Malandoh v SA Broadcasting Corporation[2] where the court held that an employee did not have a reasonable expectation of continued employment because the person who was

prominent in making the promises did not have the necessary authority to appoint permanent staff members nor was he authorised to offer or promise any such position.

[40] In term of section 3 (7) (b) of the PSA as amended, an executive authority has all the powers and duties necessary for: “(b) recruitment, appointment, performance management, transfer, dismissal and other career incidents of employees of that department, including any other matter which relates to such employees in their individual capacities.”

[41] It is common cause that the person who made promises to the Applicant did not have the authority to appoint the Applicant nor was she authorised to make such promises as the power to make such promises is vested in the executing authority or his or her delegate. Such powers were delegated to the Head of Department and not the Deputy Director or any other senior official.

[42] Accordingly, the Second Respondent held that any promises made by senior officials of the First Respondent including Miss Buthelezi in her capacity as the Deputy Director, regarding the appointment of the Applicant did not create any reasonable expectation.

[43] The Applicant contended that she did not know who had the authority to appoint. The Second Respondent however found that at her level and experience, the Applicant ought to know where the powers to appoint vested.

[44] A reasonable person in the position of the Applicant would not have anticipated a renewal of the contract or permanent appointment in the circumstances of the matter.

[45] In my view, the arbitration award rendered by the Second Respondent is well reasoned and it is indeed one which a reasonable decision maker could reach and therefore, the Applicant has failed to show any prima facie case. The Applicant has failed to show that there is a triable case should the matter proceed on review.

[46] It was further argued by Mr Jonase for the First Respondent that the Applicant’s case must also fail on the basis of the decision in Mgoqi v City of Cape Town and Another[3] where Court set aside a decision of the Mayor of the City of Cape Town who purported to extend the contract of employment of the

municipal manager. The Court held that the Mayor exceeded her authority and found that the Mayor’s decision was fatally flawed and hence unlawful and invalid.

[47] Further, the Court rejected reliance on estoppel and held that if it were to accept this argument, it would give validity to an act which is statutorily invalid.

[48] Mr Lechwano on behalf of the Applicant argued that in so far as the First Respondent relies on lack of authority, it is estopped from doing so in that the Applicant was unaware of knowing who had the necessary authority and was entitled to accept that the senior

officials of the First Respondent who made the promises to her had the necessary authority.

[49] Mr Jonase on behalf of the Respondent referred me to a judgment in Provincial Government of the Eastern Cape and others v ContractProps 25 (Pty) Ltd (2001) 4 All SA 273 (A) where the court held that:

“It is settled law that a state of affairs prohibited by law in the public interest cannot be perpetrated by reliance upon the doctrine

of estoppel”.

[50] It is for this reason also the Applicant’s application for rescission must fail.

[51] It was contended by Mr Lechwano that in this matter all that is required of the Applicant to show in order to succeed with the application is a prima facie case and to that end, a court must disregard the First Respondent’s submissions both on the papers filed in court and in argument

presented before court.

[52] Needless to say, this proportion is plain wrong. It goes directly against the well established principles of natural justice.

[53] Interestingly however, notwithstanding the proposition above, in the heads of argument, the Applicant cited a decision in Standard Bank of SA Ltd v El- Naddaf and another [4]where Court held that:

“In considering the question whether the Applicant has a bona fide defence, a bald averment lacking any detail is not enough and that the matter must be decided against the background of the full context of the case”.

[54] In my view the full context case cannot be understood to exclude the version of the Respondent.

[55] In the judgement relied upon by the Applicant in Standard Bank of SA Ltd v El-Naddaf,[5] and another it is quite clear that prima facie case entails much more than just alleging facts which if established at trial, would entitle the Applicant to the relief asked for. Whether or not the Applicant has shown a bona fide defence must be decided against the background of the full context of the case.

[56] I am not persuaded that the Applicant has established a bona fide defence or prima facie case in her founding affidavit.

[57] In my view, even if the matter was to proceed on review, there is simply no basis on which the Applicant would be entitled to the relief she seeks to review and set aside the arbitration award rendered by the Second Respondent. Therefore, the Applicant has failed to establish a prima facie case.

[58] The parties addressed me on the issue of costs. In my view, this is not a matter where the costs must follow the cause.

[59] The Applicant is partially successful in showing that she was not in wilful default. She has set out a reasonable explanation for her absence. The application fails only on the basis of the second requirement, being the bona fide defence or prima facie case.

[60] In the premises, therefore, I make the following order:

60.1Application is dismissed.

60.2No order as to costs.

B Sono

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant : Advocate Lechwano

Instructed by : Kramer Weihmann & Joubert Attorneys

For the Respondent: Mr Jonase from the State Attorney Bloemfontein

[1] Act 103 of 1994

[2] (1997) 18 ILJ 44 (LC)

[3] 2006 (4) SA 355 (C) at 389 H

[4] 1999 (4) SA 779 (W)

[5] Supra.