Department of Education, Limpopo Province v Education Labour Relations Council and Others (JR 2556/07) [2009] ZALC 74 (6 August 2009)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD IN JOHANNESBURG

REPORTABLE

CASE NO: JR 2556/07

In the matter between:

DEPARTMENT OF EDUCATION,

LIMPOPO PROVINCE APPLICANT

and

EDUCATION LABOUR RELATIONS

COUNCIL 1ST RESPONDENT

CARRIM AM N.O. 2ND RESPONDENT

SADTU OBO MOLOKOMME CD 3RD RESPONDENT

JUDGMENT

Molahlehi J

Introduction

This is an application to review and set aside the arbitration award of the second respondent (the arbitrator) under case number PSES 474-06/07 LP dated 12th April 2007. The issue that was before the arbitrator was whether the third respondent (the employee) should have been permanently

appointed in terms of the collective agreements 1 and 2 of 2006 of the Education Labour Relations Council (hereinafter referred to as resolution 1 of 2006). In terms of the award the arbitrator found that the employee should have been appointed permanently in terms of the said resolution with effect from the 1st April 2006.

The applicant has also applied for an order condoning the late filing of its application to review and set aside the arbitration award of the arbitrator. Both these applications were opposed by the employee.

On 19 June 2009, the matter was postponed sine die and the postponement was followed by a directive confirming the issues which the parties needed to address. The issues arose largely because of the incomplete record. The relevant parts of the directive reads as follows:

“(a) Both parties will make their submissions by close of business on Friday, 13th March 2009.

(b) The parties will in their submissions include whether or not there exists a dispute of fact in relation to the employment of the Third Respondent during 2005.

(c) The parties will also comment as to what approach the Court should adopt should it find that indeed a dispute of fact exists. In this respect each party would indicate whether if the Court finds that indeed a dispute of fact exists the matter should be referred back to arbitration or that it consents to the Court seating as an arbitrator.”

It would appear that no evidence was led during the arbitration proceedings. The matter seems to have been considered on oral and written submissions. In this respect the applicant in compliance with the above directive filed the remainder of the record consisting of the heads of arguments which were submitted during the arbitration proceedings. The issue which the Court had raised with the parties which led to the postponement is addressed in the applicant’s heads of argument at paragraph 3 (three). Paragraph 3 (three) of the applicant’s heads of argument reads as follows:

“Madam Arbitrator, the respondent’s bundle comprises the applicant’s CV ranging from B1 to B4. Annexure B3 from which it is clear that the applicant was employed by the respondent previously from 2003 to 2005 at Matladi Project School, also serves to prove that the applicant was not in the respondent’s employment as at 31December 2005. It is indicated further that the applicant served in many other schools as on Annexure B3, which schools do not operate under the governance of the respondent. This experience is not relevant, not considered and is regarded as a break of service with the respondent.”

The costs for the postponement were reserved. I do not believe the circumstances that led to the postponement warrants an order as to costs arising therefrom.

Background facts

The facts of this case are fairly common cause and are summarised as follows in the founding affidavit of the applicant: The employee was employed by the applicant as a temporary educator at Matladi Project School in Limpopo during the period February 1993 to December 1995. The employee left that employment on the 31st December 1995. He was thereafter employed between 1996 and 2004 also as an educator in a number of other institutions. It does appear from his CV that these institutions did not fall under the auspices of the applicant.

Thereafter, the employee commenced his employment with Bokgoni Technical School which is a public school under the auspices of the applicant and this was during 2005. As it will appear later in this judgment the applicant contended that the employee was employed in that school by the school governing body and not the applicant.

The employee was then employed from the 1st April 2006, again as a temporary educator at Kuschke High School until the 30th November 2006 when the applicant terminated his services. It was during his employment at Kuschke High School that the employee was offered permanent employment as “a temporary educator in a substantive post.” It is common cause that the offer of permanent appointment was made in terms of resolution 1 of 2006.

Subsequent to the acceptance of the offer by the employee the applicant claims that it discovered that the offer was made in error in that the employee was not employed as temporary educator in a substantive post up to the 31st December 2005 with more than two years continuous service. It was on the basis of the alleged error that the applicant withdrew the permanent appointment of the employee.

Applicant’s condonation application

The deponent of the founding affidavit in the application for condonation, Ms Mahawane states that the applicant received the award on the 19th April 2007, the same date that it was signed by the arbitrator. The review application was filed on the 15th October 2007, a delay of 136 (one hundred and thirty six) days. Ms Mahawane states that she became aware of the award on the 26th April 2007 despite the fax report indicating that it was faxed on the 19th April 2007.

The principles governing condonation for failure to comply with the time frames provided for in the rules or legislation has received attention in a number of cases and more importantly in the leading case of Melane v Santam Insurance Limited 1962 (4) SA 531 (A). In terms of these principles the Court has a discretion which is to be exercised judicially after taking into account all the facts before it. The factors which the court takes into consideration in assessing whether or not to grant condonation are: (a) the degree of lateness or non compliance with the prescribed time frame, (b) the explanation for the lateness or the failure to comply with time frames, (c) bona fide defence or prospects of success in the main case; (d) the importance of the case, (e) the respondent’s interest in the finality of the judgement, (f) the convenience of the court; and (g) avoidance of unnecessary delay in the administration of justice. See Foster v Stewart Scott Inc (1997) 18 ILJ 367 (LAC).

There is authority that these factors are not individually decisive but are interrelated and must be weighed against each other. In weighing these factors for instance, a good explanation for the lateness may assist the applicant in compensating for weak prospects of success. Similarly strong prospects of success may compensate the inadequate explanation and the long delay. See Dial Tech CC v Hudson & Another (2007) 28 ILJ 1237 (LC).

In an application for condonation, good cause is shown by the applicant giving an explanation that shows how and why the default occurred. There is authority that the Court could decline the granting of condonation if it appears that the default was wilful or was due to gross negligence on the part of the applicant. In fact the Court could on this ground alone decline to grant an indulgence of extending the prescribed period to the applicant. The duty is thus on applicant to give an explanation for his or her default sufficiently to assist the Court to appreciate how the delay came about. The purpose of this is to assess his conduct and the motive that may be related to the delay. See Silber v Ozen Wholesaler (Pty) 1954 (2) SA 345 (AD). This also means that condonation for non-observance of the rules or the legislative time frame is not a mere formality. The applicant has to therefore provide sufficient details to explain the events and circumstances that contributed to the non-compliance with the time frame.

The prospects of success or bona fide defence on the other hand mean that all what needs to be determined is the likelihood or chance of success when the main case is heard. See Saraiva Construction (PTY) Ltd v Zulu Electrical and Engineering Wholesalers (PTY) Ltd 1975 (1) SA 612 (D) and Chetty v Law Society 1985 (2) SA at 765A-C.

The key principle in Melane v Santam, (Supra) is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused. It has also been held by the Courts that the applicant should bring the application for condonation as soon as he or she becomes aware of the lateness of the case. See also Chetty v Law Society, Transvaal 1985 (2) SA 756 and A Hardrot (SA) (Pty) Ltd v Bahardien & Others (2003) ILJ 1229 (LAC).

In applying the above legal principles to the facts of the present case, it is clear that the condonation application was in the circumstances excessively late, the explanation for the lateness is unsatisfactory and insufficient. The prospects of success are negligible if not non existent. The reasons for these conclusions are set out below.

The explanation is unsatisfactory and if anything manifests incompetence, gross negligence and a total disregard of the interest of the employee by the applicant. This is an attitude that reflects lack of interest in reaching finality of the dispute and resort to technical points to achieve this objective. As appears in the explanation for the delay, the applicant first requested the rescission application forms from the bargaining council and thereafter filed this review application. There is no explanation as to why was there a need for the rescission application forms.

The reasons for the delay in the filing of the review application which in certain respect are contradictory and inconsistent are set out by Ms Mahawane in her founding affidavit as follows:

“15.1 At the time the award was received by the applicant, I, as the person responsible for the matter, was not aware that the award has been granted in this matter.

15.2 I then took study leave after having requested the second respondent to send me the rescission forms. As a result of the fact that only I in the office of the applicant had any personal knowledge of the matter by virtue of my involvement in the arbitration, the matter was put aside until I could return from study leave to deal with it.

15.3 Upon my return, I proposed to take steps to rescind the award by the first respondent and I only received the forms in July although there is proof that forms were fax to the applicant on 4 June 2007.

15.4 I was also plagued by inexperience in the field of seeking reviews of awards as this used to be my supervisor’s responsibility in the unit.

15.5 Upon being advised that the award could be reviewed, I took steps to get the relevant unit in the Office of the Premier to take the necessary steps to prosecute the review.

15.6 My co-workers were also hospitalized during this time and I had to take over their official duties and as a result my own work suffered. The unit is generally understaffed.

15.7 As the only person that was involved with the matter, I am the only person that could give instructions as were required to finalise the founding affidavit in the review application. Due to other work commitments which kept me out of the office in the period July to September, I was only able to give instructions for the setting aside of the award in the main application on 19 July 2007.

15.8 My failure to give instructions for the finalization of the founding affidavit earlier than was eventually the case was not the result of a disregard of the Rules of Court. It was purely a result of my absence from the office, the workload that I carry in the office which required my attention, and the absence of my co-workers during this time.”

Evaluation of the explanation for the delay

In evaluating the application for condonation it is important to note in the first instance that Ms Mahawane is a senior personnel officer in the labour relations unit of the applicant which suggest that even though she was not responsible for dealing with the review applications she should be deemed to reasonably have knowledge of labour processes as set out in the Labour Relations Act 66 of 1995. There is no explanation as to why Ms Mahawane did not consult earlier with the manager who gave her advice on the 6th July 2007. In any event it would appear that the period for filing the review application had not yet at that stage expired.

In her explanation for the delay Ms Mahawane states that it was the first time that she had to deal with the review of an arbitration award and was thus not sure how to proceed. She requested the second respondent for the relevant forms for the application of rescission of the arbitration award. The request for the rescission application forms from the bargaining council was done during May 2007 before she could leave for her study leave. The rescission application forms were according to her faxed on the 4th of June 2007 and received by officers in the receiving office of the applicant but only reached her in July 2007. This explanation does not make sense because there is no indication in it as to why the need for the rescission forms and what happened to the rescission application. What is also striking about the explanation of Ms Mahawane is that every document that arrives at some point in time in the offices of the applicant only reaches her after some time which seems to be a factor that on her version contributed to the delay. The delay in documentation reaching her as soon as they arrive in the department is not explained neither does she indicate what inquiry she made with whoever was responsible for the delay.

As indicated above, Ms Mahawane never filled in the rescission application forms but sought legal advice from a senior manager on the 5th July 2007. The senior manager provided advice on the 6th July 2007, indicating that the process to follow was to file the review of the award. There is no indication as to whether the advice included information about the time frame within which the review application ought to be brought. The other difficulty with this explanation is that at one level she says that the matter had to wait for her to come back from her study leave because she was involved in the arbitration proceedings. This submission gives the impression that she didn’t only get involved in the matter due to the hospitalisation of her supervisor because she was already involved in the matter during the arbitration process and before her supervisor was hospitalised. If she was involved in the matter during the arbitration process, before the award was issued then it seems reasonable to expect that she would have acquainted herself with arbitration process, its outcome and what steps to take if the applicant was unhappy about the outcome.

According to Ms Mahawane, her supervisor who was responsible for handling rescissions and reviews applications in the office had been involved in an accident on the 9th July 2007 and was hospitalised. It has to be noted at the accident occurred three days after she obtained advice from another senior manager in the legal unit. The accident occurred half way the six weeks period prescribed by section 145 of the Labour Relations Act 66 of 1995. It is strange, if the explanation that part of the delay was because of her lack of experience, why did she not approach her supervisor for advice because at the stage she approached the manager in another unit her supervisor on her version was still at work. It would also appear that the responsibility to handle the review did not fall on to her because of the accident in which her supervisor was involved in because on her version the matter was already with her when the accident occurred.

Ms Mahawane further indicates that she referred the matter to the office of the Premier Legal Services Unit (Labour and Research) for authorisation on the 17th July 2007 in terms of the prescribed government procedure. There is however no indication as to whether the authorisation was granted and when was that done. However, at paragraph 15.5 of her founding affidavit, she says that she took steps to get the relevant unit in the office of the Premier of the Province to prosecute the review once she received the advice that the appropriate process to follow was review.

About five days after either requesting authorisation from the Premier’s office or getting that office to prosecute the review, the state attorney was instructed to proceed with the review application on the 22nd July 2007. Ms Mahawane further states that because of her involvement in the matter she was required to give instructions to

the state attorney as concerning preparation of the founding affidavit. She provided the full instructions for the preparation of the founding affidavit during September 2007. The specific date when in September was the state attorney given the instruction is not provided.

The founding affidavit was finalised by the 5th October 2007 and the review filed on the 15th October 2007. The period between finalising the founding affidavit and the filing of the review application which is a fairly lengthy period is not explained.

The only explanation for the delay from the 22nd of July 2007 to the 15th October 2007, was the work commitment on the part of Ms Mahawane. The cause of the workload was due to the hospitalisation of her supervisor and another employee. As indicated earlier her version is that the processing of reviews of arbitration awards was the responsibility of her supervisor. The supervisor returned to work on 29th August 2007. There is no explanation as to what happened when the supervisor returned to work and why did he not take over his

responsibility of handling this review application. In addition Ms Mahawane does not indicate whether or not she raised with her supervisor when he returns to work the fact that she was not coping with her responsibility as she claims because she has had to take the responsibility for the duties of the employee who was still in hospital.

In order to succeed in an application for condonation, another requirement, as indicated earlier in this judgment, is that the applicant should take the Court into his or her confidence by providing a full explanation not only in relation to the various periods associated with the delay but also all other related aspects of the delay. This includes in particular the point at which the applicant realised that he or she did not comply with the rules or the law. This is important because whenever a litigant realises that there has not been compliance with the law he or she should without delay apply for condonation. See Mentjies v HD Comrack (EDMS) Bpk. 1961 SA 262 (A), Zululand Anthracite Colliery v Commission for Conciliation, Mediation and Arbitration & Another (2001) 22 ILJ 1213 (LC) and Lumka Associates v Maqubela (2004) 25 ILJ 2326 (LA).

In the present instance the applicant does not indicate at what point it became aware that its application was late. This information is important because the principle is that an applicant is obliged to apply for condonation as soon as he or she becomes aware that the time within which to file the application has lapsed.

In my view, the above analysis indicates very clearly that the explanation of Ms Mahawane, is unsatisfactory and unacceptable.

Prospects of success

The prospects of success turn around the issue of interpretation of resolution 1 as amended by resolution 2 both of 2006. Clause 4.1 of resolution 1 of 2006 reads as follows:

“4.1 Temporary educators as defined in paragraph 4.3 who shall have rendered continuous services by 31st December 2005 will be eligible for permanent appointment / absorption.”

Clause 4.3 of the same resolution reads as follows:

“4.3 That for the purpose of this absorption process, the temporary educators will be categorised into four (4) categories:

4.3.1 temporary educators in substantive posts with two (2) years or more continuous service;

4.3.2 temporary educators appointment additional to the establishment and substitute educators with two (2) years or more continuous service;

4.3.3 temporary educators in substantive posts with less than two (2) years continuous service; and

4.3.4 temporary educators appointed additional to the establishment and substitute educators with less than two (2) years continuous service.”

The process and procedure for determining whether or not a temporary educator should be appointed into a permanent position is set out in a two stage process at clause 7.1 of resolution 1, wherein the process for the absorption of a temporary educator into a permanent post is also spelt out. In terms of step 1 all temporary educators who are in the Applicant’s employ by the 31st December 2005 and who had rendered two or more years of continuous service would be considered for permanent appointment/ absorption.

Step 2 deals with all educators who had less than two years of continuous service. Those educators who had less than two years of continuous services would be considered on the basis of their profiles and the extent to which they meet the requirements of the scarce skills subject as listed in clause 6.2.1. Clause 6.2.1 which had been amended by clause 4.2.2 of resolution 2 to include the following words; “or qualified to offer one or more of the scare skills subjects would also be considered for appointment.” The scarce skills subjects which are listed at clause 6.2.1 are: (a) Mathematics / Mathematical Literacy; (b) Physical Science / Physics; (c) Technology; (d) Accounting / Economy / Business Economics; (e) Biology; (f) Technical Subjects; (g) Agriculture Science; (h) Specialised Areas / LSEN; and/or English. It has not been denied that the employee in the present instance would also fall under this category.

The award and prospects of success

The arbitrator in his award firstly found that the Applicant started teaching as a temporary educator at Matladi Project School for a period of three (3) years from the 1st February 1993 to the 31st December 1995. The arbitrator further found that the respondent had confirmed that the applicant was employed by the respondent from 2003 to 2005.

I have already indicated earlier in this judgement that the explanation tendered by the applicant as to the delay in filing its review application is insufficient and unacceptable. There is also no doubt that the period of 136 days is a significant delay. Thus the applicant’s application stand to be dismissed on this ground alone.

I proceed to consider the prospects of success in case it was to be found that the prospects of success compensate for the poor explanation and the excessive delay. In this regard I am called upon to consider the chance of the applicant succeeding if the condonation was granted and the matter was considered on its merits. The test to apply if the matter was to be considered on its merit is that of a reasonable decision-maker as set out in details in Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC). The test for prospects of success is not whether the applicant will succeed when the merits of the matter are considered but whether the applicant has a chance of succeeding when the merits are considered. The prospect of success will thus be assessed in the context of the application of the reasonable decision-maker test if the matter was to be considered on its merits.

The applicant in the present instance states in its heads of argument presented during the arbitration hearing that the employee was in its employ from 2003 to 2005. It was however contended, as is the case in this review application that the employee was not in its employ as at 31st December 2005.The applicant further attacked the award on the basis that the arbitrator found that the employee was employed by the applicant from 1993 to 1995.

The applicant contended that the decision of the arbitrator stand to be review and set aside because it was not justifiable in the light of the evidence and the reasons thereof.

The arbitrator does indeed observe in his award that the employee was employed by the applicant from 1993 to 1995. However, this observation in my view does not form the basis for the conclusion reached by the arbitrator. The conclusion is based on the finding that the employee was in the employ of the applicant from 2003 to 2005.

In considering whether the employee complied with one of the criteria set out in resolution 1 of 2006, the arbitrator had to interpreted the phrase; “by 31st December 2005” in clause 4.1 of the resolution.

It is apparent from the award that the arbitrator rejected the interpretation proffered by the applicant that the word “by” means “as at.” The applicant argued that “as at,” means that the employee should have been in its employ on the 31st December 2005.

In my view the chances of the interpretation of the arbitrator being faulted for unreasonableness if the case was to be considered on its merits are remote. It should be remembered that the test in determining whether to interfere with the award is not whether the interpretation was correct or not but whether it is reasonable. The interpretation is reasonable for two basic reasons. The first reason is that the arbitrator applied his mind in resolving the dispute through the interpretation of the resolution in particular clause 4.1 thereof. He in this regard correctly applied the basic principle of interpreting an agreement.

The general rule, which is often referred to in cases dealing with interpretation, is that the words and expressions used in documents must be interpreted according to their ordinary meaning. Interpreting words according to their ordinary, literal grammatical meaning is often referred to as the golden or general rule of construction. Departure from this approach is permissible only where the ordinary or grammatical meaning would result in an absurdity so glaring that it could never have had been contemplated

by the parties or where the results in the context, would be contrary to the intention of the parties.

The rule governing the interpretation of agreements is stated by Joubert JA in Coopers & Lybrand v Bryant [1995] ZASCA 64; 1995 (3) SA 761 (A) 767E-768E as follows:

“According to the “golden rule” of interpretation the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity or some repugnancy or inconsistency with the rest of the instrument …The mode of construction should never be to interpret the particular word or phrase in isolation (in vacuo) by itself …The correct approach to the application of the “golden rule” of interpretation after having ascertained the literal meaning of the word or phrase in question is, broadly

speaking, to have regard:

(1) to the context in which the word or phrase is used with its interrelation to the contract as a whole, including the nature and purpose of the contract …;

(2) to the background circumstances which explain the genesis and purpose of the contract, ie to matters probably present to the minds of the parties when they contracted …;

(3) to apply extrinsic evidence regarding the surrounding circumstances when the language of the document is on the face of it ambiguous, by considering previous negotiations and correspondence between the parties, subsequent conduct of the parties showing the sense in which they acted on the document, save direct evidence of their own intentions”

Jansen JA in Sasson Confirming and Acceptance Co Pty Ltd v Barclays National Bank Ltd 1974 1 SA 641 (A) 646B, had this to say:

“The first step in construing a contract is to determine the ordinary grammatical meaning of the words used by the parties.”

It is clear from the reading of the award that the arbitrator gave the ordinary and grammatical meaning to the provisions of resolution 1 of 2006 as amended. He interpreted clause 4.1 as providing a cut off date for considering changing the status of temporary educators to full time.

The arbitrator’s interpretation does not in my view lead to an absurdity that it could be said that that was not the intention of the parties. In fact the interpretation accords fully with the intention of the parties if regard is had to the use of the words “by” and “as at” in the resolution. The word “by” is as indicated above used in clause 4.1 and the word “as at” is used in the other parts of the resolution. The word “by” was therefore deliberately used to determine the cut-off period for determining those who would qualify for the convention of their contracts from part-time to fulltime.

The applicant argued strongly that the arbitrator’s decision was not justifiable because clause 4.3 of the resolution envisaged that any eligible temporary educator for the permanent appointment would have to have been in the employ of the applicant for “two years or more continuous service” and that he or she should have been in that position as at the 31st December 2005. In other words in terms of this argument an educator who had been in the employ of the applicant for a period of more than two years but whose temporary employment was terminated during the middle of December 2005 when the schools closed for the holiday break would not qualify for the conversion of their contracts. This interpretation is not only incorrect but also undermines the underlying objectives of the resolution. This interpretation would in my view, perpetuate the very injustice which the parties were seeking to address with the resolution.

Clause 1 of the resolution sets out the purpose of the resolution as being to effect permanent appointment of identified temporary educators. The broader reading of the resolution reveals that the underlying objective was to address issues of equity and social justice in as far as educators who had been employed in temporary positions were concerned. This purpose can particularly be gleaned from clause 3 and 12 of the resolution. The parties in clause 3.4 specifically acknowledges that educators employed as temporary educators did not have the opportunity to apply for “posts in the conventional manner for a substantial period.”

In addition to the social justice and equity which the resolution seeks to achieve, the provisions of clause 12 accords with the interpretation given by the arbitrator in his award. Clause 12.4 defines “continuous service” to mean “a period contemplated in the PAM, ie where there is no break in service, including instances where annual fixed-term contracts were used, provided that the period of non-service from one contract to the next was 120 days or less.”

In the light of the above reasons I conclude that the applicant has failed to make out a case for condonation and accordingly its application for condonation stand to be dismissed. I see no reason in law and fairness why costs should not follow the results.

In the premises the following order is made:

The applicant’s application for condonation is dismissed.

The applicant’s application to review and set aside the arbitration award issued by Second Respondent under case number PSES 474-06/07 LP dated 12th April 2007 is dismissed.

The applicant is to pay the costs of the third respondents.

_______________

Molahlehi J

Date of Hearing : 13th March 2009

Date of Judgment : 6th August 2009

Appearances

For the Applicant : Adv M S Baloyi,

Instructed by : The State Attorney (JHB)

For the Respondent: Adv M Habedi

Instructed by : Cheadle Thompson & Haysom Inc

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