Department of Education: Limpopo v Education Labour Relations Council and Others (JR343/16) [2020] ZALCJHB 179 (31 August 2020)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR343/16

In the matter between:

DEPARTMENT OF EDUCATION: LIMPOPO

Applicant

and

THE EDUCATION LABOUR RELATIONS COUNCIL First Respondent

MPAI, ELIAS KHUTSO N.O

Second Respondent

MAFOLOGELA PJ AND 13 OTHERS Third Respondent

Enrolled: 20 August 2020 (via zoom proceedings)

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 for hand-down is deemed to be 10h00 on 31 August 2020.

Summary: Applicant failed to show good cause for the reinstatement of the archived review application.

JUDGMENT

NKUTHA – NKONTWANA, J

Introduction

[1] Before me is the review application of the arbitration award delivered by the second respondent, the arbitrator, under case number PSES 313-14/15LP dated 13 October 2015 under the auspices of the first respondent, the Education Labour Relations Council (ELRC) in terms of which the arbitrator found that the applicant committed an unfair labour practice. This matter has become muddled with interlocutory applications solely because of the applicant’s repeated failure to adhere to the time frames of the Labour Relations Act[1] (LRA), the Rules for the Conduct of Proceedings in the Labour Court (Rules) and the Practice Manual.[2]

[2] The first interlocutory application is the third respondents’ Rule 11 application, wherein they seek an order dismissing the review application for lack of diligent prosecution by the applicant. In turn, the applicant seeks an order reinstating the review application as it is deemed to have been archived for lack of diligent prosecution and a condonation for the late delivery of the review application.

Pertinent facts

[3] The third respondents are the educators in the employ of the applicant in terms of the Employment of Educators Act[3] (the Act) and are all placed at Leoma Secondary School. They referred an unfair labour practice dispute to the ELRC challenging the decision of the applicant to not conclude incentive contracts with them in order to enable them to receive incentive benefits.

[4] The arbitration proceedings were held on 30 September 2015. The parties agreed that they would not lead any oral evidence but instead would file written submissions with the arbitrator on 7 October 2015. They further agreed that the commissioner would determine the dispute on the basis of the written submissions and supporting documents. The third respondents duly complied and filed their written submissions as agreed. The applicant failed to file its written submissions. I must mention that the applicant was represented by Ms T Netshitungulu, a Labour Relations Officer; while the third respondents were represented by Ms DA Swanepoel, from their attorneys of record.

[5] It is apparent from the award that the applicant took issue with the jurisdiction of the ELRC. The arbitrator proceeded to determine the dispute on the basis of the oral submissions on this point and the third respondents’ written submissions. The arbitrator issued the award on 13 October 2015 but it was served on the parties on 30 October 2015 wherein he found that:[4]

‘[54] The ELRC has jurisdiction to arbitrate the dispute.

[55] The applicants met the criteria set in Government Gazette No 30678.

[56] The respondent committed an unfair labour practice by refusing to enter into incentive contracts with the fourteen applicants and monitor their performance.

[57] The respondent is hereby ordered to pay the fourteen applicants the rural allowance due to them in an amount of R1, 753,939.38 as per annexure “Z” hereto.

[58] Payment of the above amounts shall be effected on fourteen applicants not later than no 30th November 2015 at 09h00.

[59] The respondent is further ordered to enter into incentive contracts with the applicants by not later than 30 November 2015 and monitor their performance thereof.

[60] The respondent must provide the applicants the same benefit as its other employees who receive the rural allowance.’

[6] Disgruntled with the award, the applicant launched the review application which it delivered on 26 February 2016, 73 days outside the prescribed period provided for in terms of section 145(1)(a) of the LRA. Included in the review application papers is the applicant’s condonation application for the later filling of the review application.

[7] On 20 July 2016, the applicant served the transcribed record on the third respondents. For several months there was lull, with no further steps taken by the applicant in prosecuting its review application. On 1 February 2017, the third respondents’ attorneys of record placed the applicant on terms regarding the prosecution of its review application, and directed the applicant to serve and file its notice in terms of Rule 7A(8) of the Rules on or before 15 February 2017.

[8] When the applicant failed to file its notice in terms of Rule 7A(8), the third respondents launched the Rule 11 application seeking an order to have the review application dismissed. This application was served and filed on 27 March 2017 and was set down for hearing on the unopposed motion roll on 20 June 2017. The applicant only served its notice of intention to oppose the Rule 11 application on 19 June 2017. On 20 June 2017, and before Coetzee AJ, it was agreed that the application had become opposed and was postponed sine die.

[9] On 4 July 2017, the applicant filed a supplementary affidavit and on 11 July 2017, it served and filed an affidavit in support of a condonation application for the late prosecution of its review application. Although the applicant undertook to file its answering affidavit in respect of the Rule 11 application on 7 July 2017, it failed to do so and only served and filed the affidavit on 18 July 2017, where after the third respondents served and filed a replying affidavit.

[10] On 4 August 2017, the third respondents answered to the applicant’s founding and supplementary affidavits and condonation applications in respect of the review application. On 7 August 2017, the third respondents replied to the applicant’s answering affidavit in respect of the Rule 11 application. On 15 August 2017, the applicant served its replying affidavit in respect of the review application.

Deemed archived review application

[11] In the recent decision in Overberg District Municipality v IMATU obo Spangenberg and Others,[5] per Lagrange, J, this Court provided a much needed clarity on the effect of the deeming provisions in clauses 11.2.3, 11.2.7 and 16.3 of the Practice Manual which provides as follows:

‘11.2.3 If the applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period requested the respondent’s consent for an extension of time and consent has been given. If consent is refused, the applicant may, on notice of motion supported by affidavit, apply to the Judge President in chambers for an extension of time.

…

11.2.7 A review application is by its nature an urgent application. An applicant in a review application is therefore required to ensure that all the necessary papers in the application are filed within twelve (12) months of the date of the launch of the application (excluding Heads of Argument) and the registrar is informed in writing that the application is ready for allocation for hearing. Where this time limit is not complied with, the application will be archived and be regarded as lapsed unless good cause is shown why the application should not be archived or be removed from the archive.

16.3 Where a file has been placed in archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed. (Emphasis added)

[12] The court concluded that:

‘[23] Whether the practice manual has reduced protracted ancillary litigation relating to reviews which have not been prosecuted expeditiously is debatable. However, it has clarified those time periods, which are not contained in the court rules, within which certain steps in the prosecution of the review must be taken. Not only does the manual prescribe the acceptable time periods for performing such steps but attaches adverse consequences to non-compliance therewith by means of deeming provisions in clauses 11.2.3, 11.2.7 and 16.3. in terms of which a review application is deemed withdrawn, lapsed or dismissed. Those deeming provisions curtail the dilatory prosecution of a review and ought to make it unnecessary for a respondent party to launch an application to dismiss the review.

[24] The effect of a review application which is deemed to have been withdrawn, lapsed or dismissed in terms of the provisions of clauses 11.2.3, 11.2.7 and 16.3 of the manual respectively is that to all intents and purposes it ceases to exist as a pending application and this is not akin to a mere suspension or stay. Nothing in the jurisprudence suggests that the legal consequences of the three different terms used to deem a review application inactive are any different from each other. If and when a review applicant succeeds in bringing an application to reinstate it or to retrieve it from its archival state, its status as a pending application will be restored.’

[13] The Labour Appeal Court (LAC) clearly pronounced in Macsteel Trading Wadeville v Francois van der Merwe N.O and Others,[6] that where there is non-compliance with Clause 11.2.7 of the Practice Manual, this Court has no jurisdiction to determine the lapsed review application in the absence of a substantive reinstatement application and an order reinstating the review application. Put otherwise, the effect of the deeming provisions of clauses 11.2.3, 11.2.7 and 16.3 of the Practice Manual is that there is no live matter between the parties that the Court can entertain, including the Rule11 application up until the review application is reinstated.

[14] It is, therefore, expedient that I first consider the applicant’s application to have its review application reinstated. The applicant’s counsel, Mr Makau, conceded that the delay in the prosecution of the review application is extensive. The reason proffered is that the applicant forgot about the review application and only got a wakeup call after receipt of the notice of set down for the hearing of the Rule 11 application on an unopposed roll. Still, the applicant only filed its notice of intention to oppose the Rule 11 application a day before the hearing of that matter, on 19 June 2017.

[15] The applicant blames its dilatory conduct on the resignation of the State Attorney who was handling the matter and his replacement by another one. In essence, the applicant blames the slip on the administrative problem in the office of the State Attorney. However, there is no explanation given as to what the applicant as a client did to pursue this matter. To make matters worse, there is no confirmatory affidavit from the current State Attorney.

[16] In Steenkamp and Others v Edcon Limited,[7] the Constitutional Court endorsed the factors that must be considered in determining whether it is in the interest of justice to grant condonation as set out in Grootboom v National Prosecuting Authority.[8] It was stated:

‘[36] Granting condonation must be in the interests of justice. This Court in Grootboom set out that:

“[T]he standard for considering an application for condonation is in the interests of justice. However, the concept ‘interests of justice’ is so elastic that it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors but it is not necessarily limited to those mentioned above. The particular circumstances of each case will determine which of these factors are relevant.

It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court’s indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the rules or court’s directions. Of great significance, the explanation must be reasonable enough to excuse the default.

The interests of justice must be determined with reference to all relevant factors. However, some of the factors may justifiably be left out of consideration in certain circumstances. For example, where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.”

[37] All factors should therefore be taken into account when assessing whether it is in the interest of justice to grant or refuse condonation.’[9] (Emphasis added)

[17] The delay in the present case is substantial and the explanation is unsatisfactory. It is trite that where the delay is substantial and the explanation is unreasonable and unacceptable, the Court may refuse condonation

without considering the prospects of success. Even if the excessive delay is explained, it may not justify the grant of condonation,

especially if the delay is attributed to the litigant’s representative. In South African Post Office Ltd v Commission for Conciliation Mediation and Arbitration and Others,[10] the LAC pertinently stated that:

‘[21] …Another obstacle to overcome is the decisions of this Court, that state that an applicant seeking

condonation cannot rely on the negligence of its legal representatives as a reason for not complying with the prescribed time periods. In Waverly Blankets[11] this Court went on to say that even where an attorney’s neglect of his client’s affairs may be inexcusable and “despite the blamelessness of the client” condonation could still be refused.’[12] (Emphasis added)

[18] As stated in Overberg,[13] a review application is inherently urgent and, as such, condonation will not readily be granted. Moreover, the delay resulting from the ineptness of legal representatives may not constitute a compelling reason for the grant of condonation even if the client is not culpable.[14] These labour law specific factors and considerations are trite and have since been sanctioned by the Constitutional Court in Steenkamp.[15]

[19] What is even more concerning in this instance is the applicant’s persistent ham-fisted attitude towards this matter. Despite having agreed that the matter shall proceed by way of written submissions, the importance of the issue raised in this matter and the stern warning by the arbitrator that he would not be indulgent should the parties fail to file their written submissions, the applicant still failed to file its written submissions. The matter was ultimately decided without its opposing submissions.

[20] There is no explanation provided as to why the applicant failed to honour its undertaking and file its written submissions. Since the review application is based on the record of the arbitration, there is clearly no merit in this application as the applicant failed to oppose the third respondent’s claim during the arbitration proceedings. Worse still, even the review application

is not prosecuted with diligence and the explanation provided is wholly unacceptable.

[21] Mr Makau submitted that the applicant has good prospects of success which should mitigate for the delay and unreasonable explanation.

This submission is impugned by the third respondent’s counsel, Mr Kirstein, who referred the Court to the decision in Makuse v Commission for Conciliation, Mediation and Arbitration and Others[16] where it was stated that:

‘[19] In short, the applicant has not demonstrated a reasonable and acceptable explanation for the egregious delay – let alone a compelling one, as is required in the circumstances of this matter.

[20] This leaves the issue of prospects of success. While an analysis of judgments of the LAC over the years reveals that it has not always consistently adopted the position that the failure to provide a reasonable and acceptable explanation for the delay renders prospects of success immaterial, it endorsed such a position in its recent judgment in Colett v Commission for Conciliation, Mediation and Arbitration and Others [2014] 6 BLLR 523 (LAC). Significantly, this was in the context of an application to dismiss a review application for want of diligent prosecution. In an unanimous judgment, Musi AJA held as follows:

“There are overwhelming precedents in this Court, the Supreme Court of Appeal and the Constitutional Court for the proposition that where there is a flagrant or gross failure to comply with the rules of court condonation may be refused without considering the prospects of success. In NUM v Council for Mineral Technology [[1999] 3 BLLR 209 (LAC) at para 10], it was pointed out that in considering whether good cause has been shown the well-known approach adopted in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C–D … should be followed but:

‘(T)here is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without good prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused.’

The submission that the court a quo had to consider the prospects of success irrespective of the unsatisfactory and unacceptable explanation for the gross and flagrant disregard of the rules is without merit.”

[21] In the light of this dictum, given that the applicant has not provided a reasonable and acceptable explanation for the delay and is guilty of a flagrant and gross failure to comply with the prescribed time-period (the application being eight months late), her prospects of success are immaterial, and thus need not be considered.’

[22] As correctly submitted by Mr Kirstein, since the applicant has failed to provide proper, comprehensive and reasonable reasons for the delay in prosecuting the review application, the condonation application should be dismissed without consideration of the prospects of success. In fact, given the applicant’s attitude throughout this litigation, it is the author of its own misfortune and this Court cannot be of any assistance to it in the circumstances.

[23] In light of the outcome that I have arrived at, there is no need to deal with the rest of the issues arising in this matter.

Conclusion

[24] In the circumstances, the application for the reinstatement of the review application stands to be dismissed. The review application shall remain archived. The Rule 11 application is patently moot.

Costs

[25] Given the conduct of the applicant throughout this litigation, it is fair and equitable that it should pay the third respondents’ costs.

[26] In the circumstances, I make the following order:

Order

1. The application to reinstate the review application is dismissed.

2. The applicant shall pay the third respondents’ costs.

__________________

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate Makau

Instructed by:

State Attorney, Johannesburg

For the Third Respondents: Advocate Kirstein

Instructed by:

Thomas & Swanepoel Inc.

[1] Act 66 of 1995, as amended.

[2] Effective April 2013.

[3] Act 76 of 1998, as amended.

[4] Arbitration ward, page 8-9 of the Record of the Arbitration Proceedings.

[5] C157/18 (08 June 2020) yet to be reported, at paras 16 – 35.

[6] [2018] ZALAC 50; (2019) 40 ILJ 798 (LAC)

[7] 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC).

[8] 2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC) at para 20.

[9] The factors expounded in Grootboom clearly accords with the principles outlined in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532- E.

[10] [2012] 1 BLLR 30 (LAC); (2011) 32 ILJ 2442 (LAC) at para 22.

[11] [1999] 11 (BLLR) 1143 (LAC) at 1145 I-J; see also NUM v Council for Mineral Technology [1999] 3 (BLLR) 209 (LAC) at para 21.

[12] Supra n 7 at para 21.

[13] Supra n 5.

[14] See: National Education, Health & Allied Workers Union and Others v Vanderbijlpark Society for the Aged [2011] 7 BLLR 690 (LC); (2011) 32 ILJ 1959 (LC) at para 9.

[15] Supra n 4 at para 41.

[16] (JR2795/11) [2015] ZALCJHB 265.