Department of Co-Operative Governance and Traditional Affairs: Gauteng Provincial Government v General Public Service Sectoral Bargaining Council and Others (JR1983/19) [2021] ZALCJHB 412 (15 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, POLOKWANE

Not Reportable

CASE NO: JR 1983/19

THE DEPARTMENT OF CO-OPERATIVE

GOVERNANCE AND TRADITIONAL AFFAIRS:

GAUTENG PROVINCIAL GOVERNMENT Applicant

And

GENERAL PUBLIC SERVICE SECTORIAL

BARGAINING COUNCIL First Respondent

MASOGE NGAKO NO Second Respondent

LAMOLA JACKIE Third Respondent

Date heard: 07 October 2021

Date delivered: 15 October 2021

JUDGMENT

MANGENA AJ

[1] This is a judgment in the application for the review and setting aside of the award issued by the second respondent under case number GPBC 1851/2017 under the auspices of the first respondent.

[2] The applicant is the Department of Co-operative Governance and Traditional Affairs, Gauteng which had instituted disciplinary proceedings against its employee, Ms Jackie Lamola. The internal disciplinary hearing found her guilty on 4 counts of misconduct and recommended dismissal which was imposed as an appropriate sanction by the employer.

[3] Unhappy with the outcome of the disciplinary hearing, Ms Lamola referred an unfair dismissal dispute to the relevant bargaining council. The dispute was adjudicated by the second respondent who rendered an award on 15 July 2019. The commissioner found that the dismissal was substantively unfair and ordered the Department to re-instate her on the same terms and conditions which applied at the time of dismissal. He further ordered that the employee be paid arrear wages equal to 23 months totalling R 2 728 523.00 together with wasted costs for postponement occasioned by the employer during the arbitration hearing.

[4] The Department challenges the award on various grounds central to which is that the arbitrator did not properly apply his mind at all to the facts before him. In the alternative it is argued that there is no rational objective basis for the findings and legal conclusions drawn by the second respondent on the material properly before him at the arbitration. The second respondent did not have regard to the material evidence before him, alternatively ignored or left it out of reckoning.

[5] The third respondent predictably defends the award and contends that it falls within the bounds of reasonableness and accordingly there is no justifiable basis in law to interfere with it. In limine, the third respondent argued that this court does not have the jurisdiction to entertain the review as same has lapsed or is deemed

withdrawn in terms of the provisions of clause 11.2.1, 11.2.2 and 11.2.3 of the Practice Manual. The applicant holds a different view and regard the Rule 11 application as an obfuscation and an unwarranted distraction. Is it so?

[6] It is common cause between the parties that the award was received on 15 August 2019. The applicant instituted the review application on the 10 September 2019 and served it upon the respondent within the prescribed 6 weeks period provided for in terms of the LRA.

[7] On 14 October 2019, the Bargaining Council dispatched the record to the Registrar who in turn notified the state attorney on 15 October 2019 of the availability of the record and called upon the applicant to come and collect same within seven (7) days from the date of the letter.

[8] The applicant served and filed the record in compliance with Rule 7A(6) on 03 December 2019, within the 60 day period prescribed by clause11.2.1 of the Practice Manual.

[9] On the 24 January 2020, the third respondent notified the applicant that the record is incomplete and pointed out the missing portion of the evidence as well as the date on which such evidence was heard. On 27 January 2020, state attorney dispatched a letter to the bargaining council requesting that the missing portions be filed with the Registrar within 10 days.

[10] On 10 February 2020, the Registrar notified the applicant through state attorney that the record is available for collection within 07 days. The state attorney collected the record on 14 February 2020 and served it upon the third respondent’s attorneys on 19 March 2020 per e-mail and again on the 29 May 2020 at the offices of the attorneys.

[11] On the 3rd August 2020, third respondent’s attorney advised the applicants attorneys of the lamentable state of the record and requested them to furnish them with “one complete consolidated transcription of record with one consolidated certificate of transcribers. They further requested them to provide copies of the index and paginated documentary records (parties different bundles of documents, such as Bundle A, Bundle B and Bundle C etc submitted and used during arbitration proceedings). In conclusion they reminded the applicant that the ultimate responsibility for ensuring that all copies of all relevant records are in all aspects properly before the Labour Court rests on the applicant or its attorneys of record.”

[12] The state attorney failed to respond to the letter on the basis that it was not received as it was directed to the wrong e-mail address. However, a copy of the letter of the 3 August 2020 was attached to a follow-up letter of the 9 September 2020 in which the third respondent stated the following”

[6] “In light of your client having filed an incomplete confusing record, it is clear that your client failed to file records within 60 days of the date on which your client was advised by the Registrar that the record had been received, with the result that your client is deemed to have withdrawn the review application because your client did not during the 60-day period request our client’s consent for extension of time and consent has not been given.

[7] In the circumstances, if the properly corrected complete record, together with a substantive review reinstatement application, are not received by 30 September 2020, our client will have no other option but to launch an application with the Registrar of the Honourable Labour Court seeking an order dismissing the review application, making the arbitration award an order of court and with costs of suit”.

[13] The state attorney responded on 23 September 2020 and rebuffed any insinuation that they are to blame for the delay in the prosecution of the review. The letter made it clear that they have complied with the Rules regarding the filing of record and stated matter-of-factly that “it is the responsibility of the applicant to decide which documents are necessary to form part of the record”.

[14] When no reinstatement application was served, the third respondent was jolted to launch an application in honour of the promise made in her letter of September 2020 that she will apply for the dismissal of the review application and have the award made an order of court, is she justified?

[15] The third respondent predicated her case upon the Practice Manual which in the introduction states that it aims to promote access to justice by all those whom the Labour Court serves. It is also intended to promote consistency in practice and procedure, and to set guidelines on the standards of conduct expected of those who practice in the Labour Court. The manual tells the representatives and litigants how things are done in this court, and what is expected of them.

[16] Clause 11.2.2 of the Practice Manual regulates applications to review and set aside arbitration awards and rulings and enjoins an applicant in a review application to file the record within 60 days of the date on which the Registrar advise that the record has been received. If the record is not filed within the prescribed period, the applicant will be deemed to have withdrawn the application.

[17] Aware of the difficulties which may arise in the procurement of the record and the resultant delay which may render it impossible to comply with the 60 days period, the manual makes provision for steps the applicant should take to avoid the deemed withdrawal of the review application. The applicant should once it dawns on him/her that she is not going to be able to file the record timeously, request for an extension of time and obtain consent from the respondent. If the consent is refused, apply on notice supported by the affidavit to the Judge President for an extension of time.

[18] The provisions of the Practice Manual are binding on the parties and the Labour Court and have the force of law.[1] It is not up to the parties to choose which part of the manual to comply with and which one to disregard. In this regard I align myself with the observations made by my brother Thlothlalemaje J that parties continue to fail to comply with the provisions of Rule 7(A) or those of the Practice Manual and then expect the court to be sympathetic. Indeed, the whole system of administration of justice will collapse if litigation is willy-nilly initiated, without any further steps being taken to bring it to finality.[2]

[19] In casu, the applicant filed an incomplete record on 3 December 2019 and another portion of the record on 19 March 2020. At the time the second batch of the record was filed, the 60 days prescribed by clause 11.2.2 of the Practice Manual had expired. The applicant was alerted of the need to apply for re-instatement of the review and he failed to do so, arguing instead that he had complied with the Practice Manual. Advocate Pheto, counsel for the applicant continued with this line of argument in court and stated that it is the prerogative of the applicant to determine the relevant and necessary portions of the record to be filed. In this regard he was plainly wrong. Record for the purpose of review means a full record of the proceedings. It is only in instances where a full record cannot be found that the parties may agree whether the portion available is sufficient for the determination of the issue in dispute by the reviewing court. It was therefore incumbent upon the state attorney upon being advised that the record is incomplete to ask for an extension and if same was refused to approach the Judge President. The state attorney failed to do either of the two and stubbornly maintained that it had complied. It appears it was oblivious of the provisions of the Practice Manual in particular clause 11.2.2 and 11.2.3.

[20] In SAPS v Coericius and Others[3], Rabkin-Naicker J had an occasion to pronounce on a situation similar to this one where a party submitted a record of the proceedings in “drips and drabs.” After referring to the provisions of the Practice Manual she rejected the contention by the applicant that she complied with clause 11.2.3 and said the following:

[12] “The applicant is essentially arguing that it does not fall foul of clause 11.2.3 on the basis that it filed a part of the record within 60 days of launching the review. This simply cannot be correct. Clause 11.2.3 of the Practice Manual provides that an applicant is to request an extension of time to obtain the full record from a respondent, or approach the Judge President with an application for extension, if consent is not forthcoming, if it fails to file the record within the prescribed 90 (sic) days period. The notion that an applicant can file a record in “drips and drabs” and that the dies of 60 days only starts running when it is of the opinion that the record is adequate, militates against the principle that a review is by its very nature urgent. This principle of urgency is set out in clause 11.2.7 of the Practice Manual and has been repeated in numerous judgments of this court. Any interpretation of the Practice Manual that accords the word “record” in clause 11.2.3, the meaning “a part of the record”, as submitted by the applicant is absurd on a plain reading of the clause, and in addition would be contrary to its purpose.”

[21] The remarks by my sister Rabkin-Naicker above apply with equal force in this matter. I once again borrow gratuitously from paragraph 16 of her judgment where she tellingly said: -

[16]” The Practice Manual containing clause 11.2.3 has been in force since 2013. It is binding on the parties and confirmed as such by the LAC for at least the past four years. It is surely not too formalistic to expect state attorney to comply with its prescripts when it is unable to file a record within 60 days. Individual litigants are expected to do so. As the Constitutional Court has stated and repeated:

‘There is a higher duty on the state to respect the law, to fulfil procedural requirements and tread respectfully when dealing with rights. Government is not an indigent or bewildered litigant, adrift on a sea of litigious uncertainty, to whom the court must extend a procedure-circumventing lifeline. It is the constitution’s primary agent. It must do the right thing, and it must do it properly”.

[22] On the authority of the judgment in SAPS above, I find no difficulty in concluding that the third respondent has made its case for the granting of the Rule 11 Application and all the incidental orders therein.

[23] The third respondent was dismissed on 21 July 2017. From that day she had been involved in the arbitration that sat over 13 days. Throughout the proceedings she was legally represented and the employer had the benefit of counsel to lead the charge against her. The department used public funds to litigate out the employee who was at the time forced to pay her attorneys out of her pocket. After the arbitrator had rendered the award, the state attorney once again became tardy in the prosecution of the review resulting in further delays at a great financial cost to the third respondent. I am therefore of the view that this is one case where costs should follow the result. I am making this order fully aware of the Zungu judgment and firmly hold the view that principles of fairness and equity dictates that she be compensated for reasonable costs she incurred in defending the award in the review proceedings instituted by the employer.

[24] Consequently it is ordered that:

Order:

1. The review application is struck off the roll with costs.

2. The award rendered by the second respondent under case number GPBC 1851/2017 stands and is made an order of court.

M. I. Mangena

Acting Judge of Labour Court of South Africa

Appearances:

For the Applicant: Adv.

A.M Pheto

Instructed by: State

Attorney Johannesburg

For the Third Respondent: Adv. M Maluleke

Instructed by: Mafate

Inc Attorneys

[1]Macsteel Trading Wadeville v Francois Van Der Merwe N.O and Others (2019) 40 ILJ 798 (LAC)

[2]Mthembu v Commission for Conciliation, Mediation and Arbitration and others (2020) 41 ILJ 1168 (LC)

[3] (C263/19) [2021] ZALCCT 64 (30 August 2021)