Department of Health, North West v Public Health and Social Development Sectoral Bargaining Council (PHSDSBC) and Others (J 521/22) [2022] ZALCJHB 129 (10 May 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

CASE NO: J 521/22

In the matter between:

DEPARTMENT OF HEALTH, NORTH WEST Applicant

and

PUBLIC HEALTH AND SOCIAL DEVELOPMENT

SECTORAL BARGAINING COUNCIL (PHSDSBC)

First Respondent

DAVID TSHOBOTLWANE

Second Respondent

MR MAVHUNGU N.O

Third Respondent

Heard: 10 May 2022

Delivered: 10 May 2022

Reasons: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be 29 August 2022.

REASONS FOR ORDER

MAHOSI, J

Introduction

[1] The applicant brought an urgent application for orders as set out in the notice of motion dated 29 April 2022 as follows:

‘1. Condoning non-compliance with the time periods as set out in the practice directives of the above Honourable Court;

2. Condoning non-compliance with the rules of the above Honourable Court relating to the abridgement of the time periods for the delivery of the papers and hearing this matter on an urgent basis;

3. Reviewing and setting aside the First Respondent’s decision refusing to grant the Applicant an indulgence for delivering supplementary Heads of Argument;

4. Granting the applicant leave to deliver supplementary Heads of Argument on the 20th of May 2022;

5. Directing that, in the event of any of the Respondents unsuccessfully opposing this application, that Respondent to pay the Applicant’s costs in this application on an attorney and client scale, which is to include the costs for the employment of Senior Counsel;

6. Further and/or alternative relief.’

[2] Subsequently, the applicant filed a supplementary affidavit and an amended notice of motion dated 5 May 2022 in terms of which it sought orders in the following terms:

1. Condoning non-compliance with the periods as set out in the practice directions of the Honourable Court;

3. Admitting the applicant’s supplementary affidavit as evidence in these proceedings;

4. Directing the Second respondent to pay the Applicant’s costs in this application on attorney and own client scale, which is to include the costs for the employment of Senior Counsel.

5. Directing the First and Third Respondents to pay the Applicant’s costs in this application on attorney and own client scale, which is to include the costs for the employment of Senior Counsel, in the event of unsuccessfully opposing this application.

6. Further and/or alternative relief.

[3] The second respondent opposed the application and in his answering affidavit, he opposed prayer 4 of the second notice of motion further raised two points in limine. The first related to urgency and the second related to applicant’s failure to adhere to the rules of the courts in that it failed to seek the Court’s leave to file a supplementary affidavit.

[4] In turn, the applicant filed an interlocutory application to strike out a portion of paragraph 4.9 and the whole of paragraph 4.10 of the second respondent’s answering affidavit. The second respondent opposed this application.

[5] The matter served before me on 10 May 2022 and having determined the issues, it was struck off the roll for lack of urgency with no order as to costs.

[6] The second respondent has requested reasons for the aforementioned order in as far as it relates to costs, which will follow hereunder.

Background

[7] The parties were involved in arbitration proceedings before the third respondent (the arbitrator) under the auspices of the first respondent (the bargaining council) when they were directed to file their heads of arguments by no later than on 29 April 2022.

[8] The applicant then brought an application before the bargaining council in terms of which it sought an indulgence for the filing of the complete heads of arguments on a later date. This was allegedly necessitated by the applicant’s need to obtain the full transcript of the arbitration proceedings, which were held virtually, from the officials of the bargaining council.

[9] On 29 April 2022, Thekisho Attorneys received an email from the bargaining council indicating that the applicant would not be granted further extension of the time to file its supplementary heads of argument. It is against this backdrop that the applicant brought the application before Court.

[10] The first hurdle that the applicant faced was that of urgency.

Urgency

[11] Rule 8(2) of the Rules for the Conduct of Proceedings in the Labour Court, which governs urgent applications, provides as follows:

‘(1) A party that applies for urgent relief must file an application that complies with the requirements of rules 7(1), 7(2), 7(3) and, if applicable, 7(7).

(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 party must provide reasons why a shorter period of notice should be permitted.’

[12] In Jiba v Minister of Justice and Constitutional Development and Others[1], this Court considered rule 8 and stated as follows:

‘Rule 8 of the rules of this court require a party seeking urgent relief to set out the reasons for urgency and why urgent relief is necessary. It is trite law that there are degrees of urgency. And the degree to which the ordinary applicable rules should be relaxed is dependent on the degree of urgency. It is equally trite that an applicant is not entitled to rely on urgency that is self-created when seeking a deviation from the rules.’

[13] In the current matter, the applicant sought to review the bargaining council’s decision that was communicated by Mr Maakamedi through an email dated 29 April 2022 that reads, inter alia, as follows:

‘The parties in this matter have been granted an indulgence for more than six month to finalise their submissions. Please be informed that the council will no longer be granting any other extensions.

Parties are expected to furnish their submissions before end of business today and the commissioner will proceed to finalise the outcome.’[2]

[14] This application was served and filed on 29 April 2022. In setting out the grounds of urgency, the applicant made the following submissions:

‘30. Upon receipt of the email marked as annexure PM8 above from the First Respondent, a telephone conversation took place between the applicant's legal team and myself, and a decision was immediately taken for the launching of this review. With regards to the dates for the hearing of the matter, the dates were discussed with the Registrar, taking into account the long weekends and the need to give the Respondents sufficient time for the delivery of their opposing affidavits, if any.’[3]

[15] In the supplementary affidavit, the applicant set out the following:

‘21. It is respectfully submitted that a case is made out for the relief prayed for, inclusive of the requirements of urgency, a demonstration of the absence of further and/or alternative suitable relief to the applicant, the reasonable apprehension of harm, prejudice to the applicant and the balance of convenience.’

[16] It is apparent from the above submissions that the applicant has simply failed to advance the reasons as to why the matter was urgent. Besides, clause 11.2.5 of the Labour Court Practice Manual provides that applications under sections 145 and 158(1) (g) of the Labour Relations Act[4] should not ordinarily be brought in respect of proceedings that are incomplete. In addition, Section 158(1B) of the LRA provide as follows:

‘The Labour Court may not review any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices

of the Commission or any bargaining council in terms of the provisions of this Act before the issue in dispute has been finally

determined by the Commission or the bargaining council, as the case may be, except if the Labour Court is of the opinion that it is just and equitable to review the decision or ruling made before the issue in dispute has been finally determined.’

[17] In light of the aforementioned provisions, the issue that becomes relevant is whether it is just and equitable for this Court to review the decision or ruling made by the bargaining council during the arbitration proceedings before the issue in dispute has been finally determined.

[18] The applicant submitted that whilst none of the Respondents would be prejudiced by the delivery of the supplementary heads of arguments, it would be prejudiced as the heads of arguments already submitted did not contain all the aspects of the evidence that was led and that this may result in the arbitrator granting an award without taking into consideration all the evidence before him.

[19] It could be that the second respondent would not be prejudiced by its submission of the supplementary heads of arguments on a date later than that directed by the bargaining council, however the applicant has failed to show why this Court should intervene in the incomplete proceedings of the bargaining council. It has failed to show any exceptional circumstances necessitating this Court’s intervention.

[20] The fact of the matter is that should the arbitrator issue an award without taking into consideration all the evidence before him, the applicant would be able to raise that as a ground for review that can be determined by this Court in due course.

[21] Thus, the applicant’s submission that it has no alternative relief other than approaching this Court in the manner that it did and alleging that it would suffer irreparable harm in the event the arbitrator was to issue an award on the incomplete submissions, has no merit.

[22] In light of the above, the applicant’ submissions on urgency had to be rejected. It clearly failed to set out reasons why it was of the view that the matter was urgent, why the urgent relief was necessary and why it believed that it could not be afforded substantial redress at a hearing in due course.

Costs

[23] I had regard to the issue of costs. In terms of section 162 of LRA, this Court has a wide discretion in awarding costs and it is trite that the guiding principle is that of equity and fairness and the rule of practice that costs follow the result does not usually apply in Labour Court matters[5]. Whilst I was of the view that the applicant was ill advised in bringing this application, I was not inclined to saddle it with costs.

[24] It was for the above reasons that this Court issued the aforementioned order.

D. Mahosi

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate T.F. Mathibedi SC

Instructed by:

Lucky Thekiso Attorneys

For the third respondent:

Advocate X. Nyoka

Instructed by:

Ntsamayi Incorporated Attorneys

[1] (2010) 31 ILJ 112 (LC) at para 18.

[2] Annexure PM8 of the founding affidavit.

[3] Paragraph 30 of the founding affidavit.

[4] No. 66 of 1995, as amended.

[5] Zungu v Premier of the Province of Kwa-Zulu Natal and others (2018) 39 ILJ 523 (CC).