Department of Correctional Services v General Public Service Sector Bargaining Council and Others (139997/24) [2024] ZALCJHB 545 (10 December 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: 139997/24

In the matter between:

DEPARTMENT OF CORRECTIONAL SERVICES

Applicant

and

GENERAL PUBLIC SERVICE SECTOR BARGAINING

COUNCIL

First Respondent

BURTON CP

Second Respondent

NGAKO PM

Third Respondent

PSA OBO NS CELE

Fourth Respondent

Heard: 6 December 2024

Delivered: 10 December 2024

JUDGMENT

BALOYI, AJ

Introduction

[1] The applicant is the Department of Correctional Services. It has approached the Court on an urgent basis for relief in two parts, Part A and Part B. In the notice of motion dated 2 December 2024, the applicant sought orders as follows:

‘3. That the arbitration proceedings before the First and Second Respondent under case number GPBC 519/2021 be interdicted pending the outcome of the application to review the First Respondent's ruling dated 02 July 2022 before this court under case number JR2179/24.

4. In the alternative to prayer 3 above, that the First Respondent's ruling under case number GPBC 519/2021 dated 02 July 2022 be stayed pending the application to review the ruling before this court under case number 2179/24.’[1]

[2] The applicant delivered an amended notice of motion dated the same day as the first notice of motion and in the amended notice of motions it seeks, in addition to the prayers for condonation for non-compliance with the rules on form, service, and time, “[t]hat the arbitration proceedings before the Third Respondent under case number GPBC 2442/2019 be interdicted pending the outcome of PART B of this application”.

[3] Both the first and amended notice of motion bear the stamps of the first respondent, including where the address of the second and third respondents are indicated and the stamp of the fourth respondent, all with signatures. The applicant did not file a service affidavit as required by rule 9(2) of this Court[2] and there was no notice entered or affidavit filed on behalf of any of the respondents. Nonetheless, when the matter was called on 5 December 2026, Mr F Ramaano appeared for the applicant and Mr K Mahapa, a union official, appeared for the fourth respondent, with no appearance for the first to third respondents. Mr Mahapa placed on record that he only became aware of the matter that very morning because the application was served on a junior employee and it was not brought to his attention until the morning of the hearing. In response to a question from me about the fourth respondent’s stance on the application, he responded that the fourth respondent opposes the application and would have to do so on the applicant’s papers because the matter was already before me. I raised the absence of an answering affidavit as a matter of concern considering the serious consequence of the relief claimed by the applicant and proposed that I would grant him an opportunity to file a notice to oppose, its answering affidavit and that the applicant would have the opportunity to reply and that the matter would stand down to the next day, being 6 December 2024. Mr Ramaano did not object to my proposed way of proceeding with the matter and I accordingly issued directions for the filing of the fourth respondent’s answering affidavit and the applicant’s reply, if any, and the fourth respondent’s

heads of argument. Both the representatives complied with the directives.

[4] The applicant (incorrectly) states in the founding affidavit under the heading, “Purpose of this application”:

‘5. This [is] an application to review in terms of section 158(1)(g) of the LRA the following arbitration awards and have them set aside:

5.1. The arbitration award dated 13 February 2024 handed down by the second respondent. The first award is annexed hereto marked "FA1".

5.2 The arbitration award dated 09 September 2024, handed down by the third respondent, be reviewed and set aside. The second award, marked "FA2," is annexed hereto.’

[5] The applicant’s description in the aforementioned extract is obviously incorrect because the relief claimed in the amended notice of motion is an interdict of the arbitration award pending determination of the relief in Part B, and the amended notice of motion makes no reference to the relief claimed in Part B. In the founding affidavit under the heading, “Part B: Review Application – Relevant Legal Framework”, the deponent to the founding affidavit discusses the grounds for review that it relies upon for the relief sought in Part B. It also includes a discussion about condonation for the late referral of the review application – an aspect that will later be discussed in this judgment when considering the grounds for urgency relied upon by the applicant.

[6] In their respective submissions, the parties confined themselves to the relief claimed in the amended notice of motion and this judgment thus is concerned with the prayer for an interdict as sought in the amended notice of motion.

The claim for interdictory relief

[7] The applicant seeks that the arbitration proceedings be interdicted pending the determination of a review application in which the applicant will seek that certain rulings of the second and third respondents be reviewed and set aside.

[8] The below is a fair summary of the relevant facts relied upon by the applicant in the founding affidavit.

[9] NS Cele, on whose behalf the fourth respondent, PSA, brings this application, was employed and later dismissed by the applicant. He referred a dispute of an alleged unfair dismissal to the first respondent and, following unsuccessful conciliation, he referred the matter to arbitration but it appears that he did so later than the 90 days prescribed in section 136(1)(b) of the Labour Relations Act[3], and as a result, he applied for condonation for the late referral to arbitration.

[10] The first respondent appointed a panellist, R de Wet, to determine the application and, in a ruling dated 14 December 2020 (the first ruling), Commissioner de Wet issued a ruling that “the application for condonation is denied”. Subsequent to this ruling, the PSA applied for rescission of the ruling, and Commissioner De Wet issued a further ruling dated 30 April 2021 (the second ruling) that “[t]he application can accordingly not be considered until such time that the need to apply for condonation was addressed”.

[11] This second ruling appears to have led to much confusion in what happens next, including in the present matter. In particular, the confusion that appears to have arisen from the ruling is whether or not Commissioner de Wet determined the application to condone the late referral of the dispute to arbitration. Frankly, this confusion should not have arisen because the first ruling is unequivocal in its dismissal of the application to condone the late referral of the unfair dismissal dispute to arbitration, and in the second ruling, Commissioner De Wet records the following:

‘2) Following the application for condonation of the late referral to arbitration, a ruling was issued on 14 December 2020. Subsequently a rescission application was received on or about 19 February 2021”

3) …

4) Rule 31 of the Rules states: - "An application for the variation or rescission of an arbitration award or ruling must be made within fourteen days of the date on which the applicant became aware of (my underlining) –

a) the arbitration award or ruling: or

b) a mistake common to the parties to the proceedings…’ [Own emphasis]

[12] Under the heading “Ruling/Directive”, Commissioner de Wet records the following, which is relevant to the conclusion in the closing paragraph of the ruling:

‘…

5) In the affidavit deposed to by Mr. Hall it was explained that the condonation ruling should be rescinded on the ground that there exists an ambiguity, an obvious error or omission. Mr. Hall explained that it appears from the condonation ruling that the only issue taken by the Commissioner, was that the Applicant did not provide proof of the referral made in June 2020.

6) Mr. Hall did however not state when the condonation ruling came to his attention and therefore the need to apply for condonation was not apparent from the affidavit.’ [Own emphasis]

[13] The reference therefore to “the need to apply for condonation” in the ruling and “[t]he application can accordingly not be considered until such time that the need to apply for condonation was addressed”, is plainly a reference to an application for condonation for the late rescission application. The Commissioner could have been clearer in his phrasing, however, on a proper reading of the second ruling, it is plain that the Commissioner ruled that the rescission application would not be considered without a condonation application for the late application – this is what the fourth respondent was “invited “ to do – to apply for condonation, before the rescission application would be considered.

[14] In any event, following the second ruling, the PSA applied for condonation which came before the second respondent. This application before the second respondent is not before me but it appears from paragraph 1 of the ruling of the second respondent dated 13 February 2024 that the application before the second respondent was for condonation of the late referral of the unfair dismissal dispute to arbitration. Paragraph 1 records that: “[t]his is an opposed condonation application in respect of an alleged late referral filed at the General Public Service Sectoral Bargaining Council (GPSSBC) relating to an alleged unfair dismissal dispute” [own emphasis]. The second respondent further records the issue that he must determine as follows:

‘4. The employee referred an alleged unfair dismissal dispute to the Bargaining Council.

5. This is a condonation application in relation to the alleged late referral of the above dispute.’

And, under the heading “Analysis of Evidence”, makes the following recordal:

11. I have considered both arguments, the case file, and the applicable law.

12. The file established that the applicant referred an alleged unfair dismissal dispute to the Bargaining Council.

13. Time frames apply in respect of dismissals (30 days), unfair labour practice (90 days) and unfair discrimination (60 days). The applicant submitted that he received the outcome of his dismissal appeal on the 21st of November 2019 and since then duly pursued his dispute accordingly. This means that the applicant's referral is not late. He complied with all his referrals within the prescribed time frames.’

[15] The Commissioner then concludes that:

‘14. The point is it was not necessary for the applicant to have brought the condonation application.’

The ruling reads:

‘RULING:

15.1 There's no need for a condonation application in respect of this matter.

15.2 The applicant may apply for arbitration as contemplated by the LRA.’

[16] Ex facie the ruling, it relates to the late referral of the unfair dismissal dispute to arbitration, a matter dealt with in the first ruling of Commissioner de Wet. Whether the second respondent mistakenly mischaracterised the condonation application that was before him is a matter not discussed in the affidavits before me. In any event, from the ruling of the second respondent, there is no evidence that he was aware of the first ruling of Commissioner De Wet which dealt with the late referral of the unfair dismissal dispute. It is fair to say that had the second respondent become aware of the first ruling, he may well have concluded that he could not competently consider the same issue which is the subject of the first ruling. It is this exercise of power by the second respondent which is one part of the issues to be determined in Part B.

[17] A ruling by the third respondent, Commissioner Ngako, followed after the ruling of the second respondent. Whilst it is not apparent from the papers before me, it appears from the ruling of the third respondent that, following the ruling of the second respondent, PSA referred the dispute of unfair dismissal for arbitration and the third respondent was the arbitrator appointed to arbitrate the dispute.

[18] The third respondent records in his “Arbitration Ruling”, dated 9 September 2024, that “[t]he respondent has raised preliminary points and submitted written heads before the hearing that Council does not have jurisdiction to adjudicate over the applicant's dispute, because the initial condonation application in this matter was dismissed, and as result

res judicata is applicable and alternatively the matter has prescribed”. The third respondent recorded the following as issues that he must decide:

‘ISSUE TO BE DECIDED:

[2.1] I am required to determine whether the defence of Res Judicata is applicable in this matter

[2.2] I am required to determine whether the applicant's application has prescribed

[2.3] I am required to determine whether Council is Functus Officio as a result of the contradictory ruling on condonation on the same matter.’

[19] The third respondent concluded and held as follows with respect to the issues he determined to be decided:

‘[7.2] I find that the principle of Res Judicata is not applicable on the facts of the matter before me.

[7.3] I find the applicant's application for unfair dismissal has not prescribed.

[7.4] I find that Council is not functus officio as it has jurisdiction to consider rescission application on either of the parties, or the commissioner on his own accord may render a rescission ruling that will determine whether Council could set the matter down for arbitration.’

[20] This ruling of the third respondent is the second part of the issues to be decided in Part B of the application.

[21] With the facts on which the application is founded, as I have set above, it must be considered whether the applicant has made out a case for the orders it seeks.

Urgency

[22] Rule 38 of Labour Court Rules regulates urgent applications. Rule 38(2) prescribes that –

‘(2) The affidavit in support of the application must also contain –

(a) the reasons for urgency and why urgent relief is necessary;

(b) the reasons why the requirements of the rules were not complied with, if that is the case; and

(c) if a party brings an application in a shorter period than that provided for in terms of section 68(2) of the Act, the reasons why a shorter period of notice should be permitted.’

[23] In East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others[4], Notshe AJ explained that to succeed in their quest to be heard on an urgent basis, “[a]n applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the Applicant must state the reasons why he claims that he cannot be afforded substantial redress at a hearing in due course. The question of

whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in an application in due course”. This has been accepted to also hold true for urgent applications in this Court.

[24] The applicant sets out in paragraphs 27 to 32 of the founding affidavit the grounds why the matter warrants to be heard on an urgent basis. In paragraph 27, the deponent reproduces the contents of rule 38 and in paragraph 28, it sets out what it is considered to be the test for urgency. In paragraph 29, the deponent states that “[i]t is my view that the applicant will suffer substantial prejudice if this application is not heard on an urgent basis for the following reason …” and lists factors it asserts make the case for urgency, the sum of which is an apprehension that the first respondent will enrol the dispute for arbitration any time and, importantly, records in paragraph 29.4 that “[s]hould the arbitration proceedings proceed, and the applicant's review of the second and third respondent's rulings are later upheld whilst the arbitration proceedings are underway, the applicant would have incurred unnecessary legal costs during the procession of the arbitration proceedings”. In his response to this concern as a ground for urgency, Mr Mahapa submitted that any costs that may be occasioned to the applicant are recoverable in due course should the applicant succeed and, so he submitted, this concern is not a ground for the matter to be heard on an urgent basis.

[25] Under the heading “Condonation” relating to the late referral to the Labour Court of the application to review the rulings of the second and third respondents, the deponent to the founding affidavit states that the applicant received the third respondent’s ruling on 9 September 2024, the same day it is dated. The deponent is silent when the ruling of the second respondent, which is also sought to be reviewed, was received save only to state that “we received advice that piecemeal litigation is not permissible in our court, which prompted us to wait until the finalisation of the arbitration hearing so as to ensure we present a complete and comprehensive case rather than submitting incomplete portions that might result in fragmented or disjointed proceedings”. It appears that this is intended to explain the reason not to institute the review application soon after the second respondent’s

ruling.

[26] In any event, the applicant states that after it received the third respondent’s ruling, this “generated a submission seeking a mandate from the delegated authority to consult a Counsel for a piece of advice and review of the rulings”. No date is offered when this was but, in any event, the deponent to the affidavit states that it sought and on 8 October 2024 received authorisation to appoint Counsel to assist with the matter with Counsel appointed on 31 October 2024 and the application “… [was] delivered in November 2024” – the affidavit is signed 27 November 2024. Both the original and amended notices of motion are dated 2 December 2024 and it is therefore misleading for the deponent to allege that the application was delivered in November 2024.

[27] It is settled law that an applicant who seeks relief on an urgent basis must do so as soon as possible and must give “cogent reasons” for any delay in bringing the application. The explanation for instituting this application only on 2 December 2024 is by all accounts woefully inadequate. So is the reason offered why the applicant will not receive substantial redress in due course and, in this regard, I agree with Mr Mahapa that there is no reason that the applicant should not, in due course, recover

any costs that it may be occasioned should it be caused to participate in an arbitration which the Court may later find is invalid.

[28] What is left to consider is whether, in the exercise of my wide discretion, as recognised by the Supreme Court of Appeal in Cornerstone Logistics (Pty) Ltd and Another v Zacpak Cape Town Depot (Pty) Ltd[5], in pronouncing on the question of urgency, there are other compelling considerations to hear the matter on an urgent basis.

[29] In Siyakhulisa Trading Enterprise (Pty) Ltd v Glencore Operations South Africa (Pty) Ltd and Another[6], the High Court said that “[a]s in every other urgent application, the issue of urgency must be evaluated in the context of the specific facts of the matter”[7]. It is my view that the facts in this matter raise an important question of law which warrants that the matter is heard and finally

determined as soon as possible.

[30] As matters presently stand, there are competing rulings relating to condonation of the late referral of the unfair dismissal dispute – the first ruling of Commissioner de Wet and the ruling of the second respondent. The fate of the ruling of the third respondent obviously hangs on the validity of the ruling of the second respondent. Whilst, as a matter of law, the ruling of the second respondent may well be invalid, or a nullity if counsel for the applicant is correct in his characterisation, this is a question to be decided in Part B and, pending that determination, the ruling may not be ignored. It is for this reason that I have determined that, notwithstanding that the applicant has made a poor case for urgency, the matter be enrolled to be heard on an urgent basis. I do so without in any way intending to create a precedent that a court will hear a matter as urgent even when an applicant has failed to make out a case for urgency. My decision to enrol this matter as urgent goes no further than the facts of this case, in particular, the importance of the issue raised in the claim for an application.

[31] I now consider whether the applicant has made out a case for an interim interdict.

Interim Interdict

[32] The applicant seeks interdictory interim relief pending the review contemplated in Part B.

[33] The requirements for an interim interdict are trite and suffice only to list them. An applicant must establish a prima facie right, even if open to some doubt; show a reasonable apprehension of irreparable harm; that the balance of convenience favours the granting of an interdict; and that it has no alternative remedy. Importantly, failure to meet all the aforementioned requirements, the court has no discretion to grant an interdict. Therefore, whatever the merits of the applicant’s case, and the importance of the issue to be decided in the review application (Part B), if I find that the applicant has not established all the requirements for an interim interdict, it must fail in its quest for an interdict.

[34] The prima facie right asserted by the applicant is the right to finality of disputes adjudicated by a court. It states that the unfair dismissal dispute was brought to finality by Commissioner de Wet in the first ruling and the first respondent does not have the jurisdiction to arbitrate the matter. It should not be subjected to a further arbitration process as a result of the invalid rulings of the second and third respondents (I paraphrase the applicant’s contention). It is necessary to point out that the very question of whether the first ruling brought the matter to an end in light of a pending rescission application which is held in abeyance because no application to condone the late application for rescission has been submitted, thus holding in abeyance Commissioner’s de Wet’s decision on the rescission application, is a matter that the Court may well have to decide in the review application, I am nonetheless satisfied that a prima facie case, albeit open to doubt, has been established.

[35] The applicant’s fear of irreparable harm is the cost that it will incur should it have to participate in further arbitration proceedings. Is this a reasonable fear?

[36] I agree with Mr Mahapa that, if indeed the cost of participating in an arbitration is harmful, the harm is not irreparable as any costs that may be found to have been unduly incurred by participating in an arbitration are recoverable from the PSA. The applicant has not alleged that it will not be able to recover costs should it ultimately succeed in the arbitration. It follows that the applicant has not established a reasonable apprehension of irreparable harm.

[37] The balance of convenience in my view favours that an interim interdict is granted. The issue raised in Part B is about the jurisdiction of the first respondent, viz, whether it has jurisdiction to arbitrate the dispute. There is no question that the parties will be best served by the Court sooner than later in determining the question raised in the review application.

[38] The applicant states that it has no alternative remedy. I do not agree. The applicant’s feared harm is unduly incurring costs. I have already stated that any such costs would be recoverable with a review application. The applicant has not shown that it will not be able to recover costs in Part B if it is refused the interim interdict.

[39] The applicant having failed to establish all the requirements for an interdict, I have no discretion to grant the order. Accordingly, the prayer for an interim interdict must fail.

Conclusion

[40] The applicant having failed to show that its apprehension of harm is reasonable, the application regrettably cannot succeed.

[41] En passant, it is my hope that the parties recognise that it is both in their interest that the Court should determine the question of the standing of the ruling of the second respondent, and therefore, the jurisdiction of the first respondent to arbitrate the dispute of unfair dismissal, and to do so sooner than later and before they expend any further time and money in a process that is likely to be found a nullity. I can only implore the parties to be prepared to cooperate with each other to this end.

[42] On costs, Mr Mahapa did not make any claim for costs and accordingly, no order for costs will be made.

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

Order

1. The matter is heard as one of urgency.

2. The application is dismissed.

3. There is no order as to costs.

MS Baloyi

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv F Ramaano

Instructed by: State Attorney, Pretoria

For the Fourth: Mr K Mahapa (Union Official)

For First, Second and

Third Respondent: No Appearance

[1] Prayers 1 and 2 are the standard prayer for condonation for non-compliance with the rules as to form, service and time.

[2] GN 4775 of 2024: Rules Regulating the Conduct of the Proceedings of the Labour Court.

[3] Act 66 of 1995, as amended.

[4] [2011] ZAGPJHC 196 (23 September 2011) at para [6].

[5] [2022] ZASCA 12; [2022] 2 All SA 13 (SCA) at para [30].

[6] [2023] ZAGPJHC 1099 (2 October 2023) at paras [4] – [12].

[7] Ibid at para [7].