Department of Home Affairs v Madonsela and Others (JR2374/15) [2024] ZALCJHB 242 (24 June 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2374/15

In the matter between:

DEPARTMENT OF HOME AFFAIRS

Applicant

and

ALPHEUS MADONSELA

First Respondent

GENERAL PUBLIC SERVICES SECTORAL BARGAINING

COUNCIL

Second Respondent

SERERO T.T N.O

Third Respondent

Heard: 3 April 2024

Delivered: 24 June 2024

JUDGMENT

SCHENSEMA, AJ

Introduction

[1] The applicant seeks to reinstate a review application launched on 3 December 2015 as well as the determination of the review application if the reinstatement application is successful.

[2] The applications are opposed by the first respondent.

[3] At the commencement of the proceedings on 3 April 2024, the applicant’s counsel did not appear in Court and the State Attorney, Mr Thamaga notwithstanding numerous attempts to telephonically contact Counsel, was unable to provide any explanation

as to why Counsel for the applicant was not in Court, despite having been briefed by the State Attorney.

[4] In light of the fact that no explanation was provided, and Mr Thamaga was given sufficient time to contact and locate the State Attorney’s Counsel, I determined that the matter should proceed. Mr Thamaga whilst remaining in Court did not address me in respect of this matter.

Background

[5] The application to reinstate the review application has a long history and it is this history that bears relevance to these proceedings. The first respondent was dismissed in 2014 and referred an unfair dismissal dispute to the second respondent.

[6] On 11 September 2015, the third respondent (Commissioner) issued the arbitration award in favour of the first respondent. Dissatisfied

with the arbitration award, the applicant launched a review application on 3 December 2015, which application was not timeously

filed and further did not comply with section 145(8) of the Labour Relations Act[1] (LRA).

[7] Condonation was initially applied for in the review application of December 2015 and an application for the exemption to pay security was subsequently made in September 2023, however considering what subsequently happened to the review application, there is no need to determine these issues separately.

[8] On 15 December 2015, an incomplete record was filed by the applicant and no further steps were taken by the applicant to obtain the complete record, other than addressing a few emails to the second respondent. The complete record was eventually filed in April 2018, approximately 28 months after launching its review application. In light of the provisions of the Practice Manual[2] in particular clause 16.1, the review application was archived, given that no further steps had been taken by the applicant.

[9] Due to the applicant’s failure to prosecute the review application, the first respondent launched an application to have the arbitration award made an order of Court and on 3 November 2016, Snyman AJ granted the order.

[10] In response to the order, the applicant launched an application to rescind Snyman AJ’s order on 13 December 2016. This application was not opposed by the first respondent and instead, a Rule 11[3] application to dismiss the applicant’s application was launched.

[11] On 16 March 2017, the applicant addressed a letter to the Judge President in which the applicant sought a directive as to how to proceed with the matter, given the number of interlocutory applications before this Court.

[12] On 20 June 2017, the first respondent, due to the inaction by the applicant, launched his first application to dismiss the review application and further filed his answering affidavit to the review application on 6 July 2017.

[13] On 21 November 2017, the Judge President gave a directive that the interlocutory applications proceed simultaneously once the record had been reconstructed. These applications are:

13.1 the review application filed under case number JR2374/15;

13.2 the section 158(1)(c) application filed under case number JR1737/16;

13.3 the rescission application filed under case number JR2911/16; and

13.4 the dismissal application in respect of the review application filed under case number JR2374/15.

[14] As aforementioned, the applicant filed the reconstructed record in April 2018, thereafter which the applicant filed its heads of argument in March 2019. This was the last step taken by the applicant in the review application and subsequently the first respondent, unaware that the applicant’s rescission application had not been finalised, launched another application to have the arbitration award made an order of Court, with an alternative prayer that the applicant’s review application be declared archived.

[15] The second application to have the arbitration award made an order of Court was served in September 2022 and was only opposed by the applicant approximately five months later, during the court proceedings on 16 March 2023 when the applicant from the bar addressed the Court, resulting in the matter being removed from the unopposed roll.

[16] Notwithstanding the removal of the matter from the unopposed roll, the applicant once again took no steps to oppose the application, resulting in the first respondent’s attorneys addressing an email to the applicant reminding the applicant to file its answering affidavit. Once again, the applicant failed to comply, resulting in further emails being addressed to the applicant.

[17] From 30 September 2022 to 7 September 2023, the applicant failed to file its answering affidavit. On 9 June 2023, the first respondent requested the Registrar to re-enrol the matter and the parties were notified of the re-enrolment on 24 July 2023.

[18] On 7 September 2023, a mere few weeks before the set down date of 24 October 2023 on the unopposed roll, the applicant eventually filed its answering affidavit together with an application for reinstatement of the review application and an application to stay and sought an exemption to pay security in terms of section 145(8) of the LRA, eight years after the review application was launched. The applicant has further failed to seek condonation for the late filing of the answering affidavit, which late filing has been opposed by the first respondent.

[19] On 24 October 2023, Lallie J issued an order in respect of which the review application was deemed withdrawn, and the parties were issued with various directives in respect of the applicant’s reinstatement application.

The reinstatement application

[20] The applicant seeks to reinstate the review application inter alia on the following grounds:

20.1 the record received from the second respondent was incomplete, which resulted in the applicant engaging with the second respondent via email to obtain the full record, which in the applicant’s view clearly demonstrates that from 2016 to 2018 it had attempted to obtain the record from the second respondent;

20.2 the reconstructed record was eventually obtained in April 2018;

20.3 during the aforementioned period, the first respondent unfairly filed an application in terms of section 158(1)(c) of the LRA, resulting in Snyman AJ erroneously granting an order on 3 November 2016;

20.4 in response to the order, the applicant launched a rescission application on 13 December 2016, which application was not opposed by the first respondent, who instead elected to proceed with an application to dismiss the review application;

20.5 by this stage, there were numerous interlocutory applications which delayed the review application, and it is for this reason that the Judge President’s intervention was requested;

20.6 the applicant, notwithstanding the Judge President’s directive, determined that it could not comply with the Judge President’s directive as it wanted to pursue the rescission application. In light hereof and to provide the respondents with an opportunity to oppose the rescission application, the applicant re-filed the rescission application in 2019;

20.7 the applicant further takes issue with the first respondent’s second section 158(1)(c) application filed in September 2022, as the applicant is of the view that the first respondent ought to have complied with the Judge President’s directive. The applicant further holds the view that the first respondent is attempting to set aside or ignore Snyman AJ’s order and the Judge President’s directive;

20.8 that the first respondent is attempting, through his conduct, to abuse the Court’s processes by evading the rescission application and the Judge President’s directive and that as a result of this conduct, has delayed the execution of the Judge President’s directive;

20.9 in terms of the prospects of success, the applicant’s review application has good prospects, in that the Commissioner had acted ultra vires and had committed a material error of law; and

20.10 the Commissioner had ignored the applicant’s closing submissions, thereby not affording the applicant an opportunity to have its submissions in relation to the principle of parity being considered and had the Commissioner done so, (the applicant is of the view) that the Commissioner’s findings would have confirmed the sanction of dismissal as being appropriate.

[21] In respect of the delay, the applicant has set out its reasons for the excessive delay which can be summarised as follows:

21.1 the applicant had instructed the State Attorney to launch a review application in December 2015;

21.2 the last court process in terms of the review application was the rescission application in 2019;

21.3 the COVID-19 pandemic, which resulted in the delayed return of the state attorneys to the office in 2021, as well as loadshedding;

21.4 a number of state attorneys had resigned resulting in further delays;

21.5 the first respondent erroneously filed a section 158(1)(c) application, notwithstanding the order from Snyman AJ;

21.6 the procurement processes of the State Attorney to brief counsel, which processes has also resulted in a delay; and

21.7 the delays occasioned by the erstwhile attorneys of the State Attorney cannot be attributed to the new attorney, in light of the fact that when the matter was taken over by him, the review application had already been archived in terms of the provisions of the Practice Manual.

[22] In terms of prejudice, the applicant submits that the first respondent will not be prejudiced were the reinstatement application to be granted, primarily on the basis that the applicant is of the view, that the application “would then be properly ventilated allowing for adjudication based on the correct facts and the principles of fairness”.

[23] In contrast, the applicant would suffer severe prejudice were the reinstatement not to be granted in that it would be in the interest of justice for the review application to be determined to avoid “gross and irregular expenditure” to be incurred.

[24] In opposition to the reinstatement application, the first respondent inter alia sets out the numerous failures by the applicant in respect of its obligations in a review application and in conclusion holds the view that the applicant has failed to show any good cause as to why its review application should be reinstated, has further failed to fully explain the delay and has no prospects of success in the review application.

The review application

[25] The applicant’s review application is dated 1 December 2015. In summary and as aforementioned, the applicant’s grounds of review relate to the Commissioner’s failure to consider its closing submissions and had the Commissioner done so, the findings in relation to the inconsistent application of discipline could not have been made.

[26] In opposition to the applicant’s grounds of review, the first respondent firstly sets out in detail the evidence that was

presented, and the concessions made by the applicant’s witnesses. Secondly, fatal to the applicant’s review application, is that it had failed (despite being invited to do so), to lead further evidence in relation to the inconsistent application of discipline. The applicant elected not to do so and instead attempted to demonstrate through its closing submissions that there was no inconsistent application of discipline.

[27] In further opposition, emphasis has been placed on the time that has elapsed since the applicant launched the review application and its complete failure to comply with the prescribed timelines.

Analysis

[28] From a reading of the applicant’s founding affidavit in the reinstatement application, the applicant raises a number of criticisms against the first respondent and his failure to comply with the court processes and further attempts to justify its own

inaction by setting out its reasons for the delay.

[29] These delays however have not been fully explained and I am of the view that the reasons provided are not compelling. Furthermore, the applicant in its dilatory conduct has also failed to conduct itself in a manner required by the Rules of this Court and the Practice Manual, thus giving effect to the statutory imperative of expeditious dispute resolution.

[30] It is well established that a reinstatement application is akin to a condonation application and that it is incumbent upon the applicant to show good cause why it had failed to comply with its obligations.

[31] In the case of Overberg District Municipality v IMATU & others[4] which was referred to by van Niekerk J (as he was then) in the case of Zono v Minister of Justice and Correctional Services In re: Minister of Justice and Correctional Services v Zono and others[5] stated the following:

‘In Overberg, the court also gave consideration to the relevance of steps taken by the applicant subsequent to the review application being deemed withdrawn. The court observed that once the legal status of the review application in a pending application ceases by operation of one of the deeming provisions in the practice manual, there can be no enforceable obligation on either party to file for the court process and the main application. The question then is whether the actions of an applicant subsequent to that date have any relevance in the determination of the application for reinstatement. Lagrange J held that an applicant party that has been dilatory and is seeking an indulgence to revive a review application must necessarily satisfy the court that in the interim, it has done what it can to remedy its failure which led to the application being deemed inactive in the first place and done whatever else it could reasonably do so that the matter would be ready for hearing if reinstated. In other words, steps taken during the time that the application is inactive have a material bearing on the success of attempts to revive it (see paragraph 38 of the judgment). What was required was for the applicant to demonstrate that it acted promptly in launching the reinstatement application and that it took further professional steps in a bone fide [sic] attempt to ensure the expeditious finalisation of the review if reinstatement is permitted (see paragraph 39).’ [Own emphasis]

[32] The relevant legal principles to be applied in an application for condonation are well established. This Court is required to exercise

a discretion, having regard to the extent of the delay, the explanation for that delay, the prospects of success and the relative

prejudice to the parties that would be occasioned by the application being granted or refused. The interest of justice will ordinarily

reflect regard to all these factors.

[33] In A Hardrodt (SA) (Pty) Ltd v Behardien and others[6] (Hardrodt), the Labour Appeal Court (LAC) restated the guidelines laid down in Queenstown Fuel Distributors CC v Labuschagne NO and others[7] in which it was inter alia held that “there must be good cause for condonation in the sense that the reasons tendered for the delay had to be convincing. In other words the excuse for non-compliance with the six-week period had to be compelling”. The onus is on the applicant to satisfy the Court that condonation should be granted.

[34] In NUM v Council for Mineral Technology[8], the LAC said the following:

‘... 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…’

[35] This principle was reaffirmed in Colett v Commission for Conciliation, Mediation and Arbitration[9], a unanimous judgment of the LAC, 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 prospect of success, no matter how good the explanation for the delay, an application for condonation should be refused.”’

[36] In the present matter, the applicant has failed to provide a reasonable explanation for its failure to comply with its obligations

in a review application.

[37] The applicant has further failed to provide any explanation as to why the complete record was only filed in April 2018, approximately 28 months after launching the review application and why during this period, an application to compel the second respondent was not launched.

[38] The applicant has similarly provided no reasonable explanation as to why it would seek a directive from the Judge President when the first respondent had advised that he would not oppose the rescission application, or why, despite requesting a directive, failed to comply therewith.

[39] The applicant simply states that it was unable to comply with the Judge President’s directive in that it still intended to pursue the rescission application, notwithstanding the directive that the applications were to be heard simultaneously.

[40] Furthermore, and having considered the time period in which the Republic of South Africa was impacted by the pandemic, this too could not have impacted the applicant as the pandemic only started in 2020.

[41] It is clear from the facts that the applicant has not diligently prosecuted the review application and attempts to provide reasons for its dilatory conduct to justify its flagrant disregard of the Rules of this Court.

[42] The applicant did not comply with its obligations in terms of the prescribed timelines for the launching of a review application, it further failed to furnish security in terms of section 145(8) of the LRA as well as simply ignored the Practice Manual.

[43] The courts have held and emphasised that an applicant must act with the necessary degree of diligence required by the Rules of this Court and the Practice Manual, thus giving effect to the statutory imperative of expeditious dispute resolution.

[44] The onus is on an applicant seeking condonation to satisfy the Court that condonation should be granted. In employment disputes, there is an additional consideration which applies in determining whether the onus has been discharged, as was held in National Metalworkers of SA on behalf of Thilivali v Fry’s Metals (A Division of Zimco Group) and others[10]:

‘There is, however, an additional consideration which applies in employment disputes in determining whether an applicant for condonation has discharged this onus. This is the fundamental requirement of expedition. The Constitutional Court has, as a matter of fundamental principle, confirmed that all employment law disputes must be expeditiously dealt with and any determination of the issue of good cause must always be conducted against the back drop of this fundamental principle in employment law.’ [Own emphasis]

[45] In summary: the Courts have endorsed the principle that where there is a delay with no reasonable, satisfactory and acceptable

explanation for the delay, condonation may be refused without considering prospects of success, and to grant condonation where the delay is not explained may not serve the interests of justice. The expeditious resolution of labour disputes is a fundamental

consideration.

[46] It is in this context that the reinstatement application stands to be determined.

[47] The grounds for reinstatement have been set out above. The applicant has demonstrated no urgency in the prosecution of the review

application or in the finalisation of the interlocutory applications. The explanation provided for the excessive delay is not satisfactory,

particularly in that the applicant has failed to comply with any of the timelines it is required to comply with.

[48] Furthermore, the applicant attempts to suggest that it is the first respondent who has also caused the delay in this matter. I do not agree, the applicant, as it is required to do, has failed to set out each period of the delay and has further failed to provide satisfactory reasons for its delay. In the absence of a satisfactory explanation for an excessive delay, it is not necessary to determine the applicant's prospects of success in the review application, and the application to reinstate the review application stands to be dismissed.

[49] Even if I were to have regard to the applicant's prospects of success, in my view, the applicant has no prospects of success in that the applicant was provided with an opportunity to reopen its case and to lead further evidence in relation to the inconsistency challenge. This the applicant did not do and instead attempts to persuade this Court that its closing submissions equate to evidence thereby rendering the Commissioner’s failure to consider the submissions a reviewable irregularity. I do not agree, I am therefore satisfied that the Commissioner's reasoning and conclusions fall within the band of reasonableness, and the decision cannot be said to be one that a reasonable decision-maker could not reach.

Costs

[50] Insofar as costs are concerned, this Court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of law and fairness.

[51] In my view, this is a case where the interest of justice and fairness will be best served by making an order for costs. In this regard I am guided by the matter of Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others[11] where it was emphasised that:

‘…unless there are sound reasons which dictate a different approach, it is fair that the successful party should be awarded her costs. The successful party has been compelled to engage in litigation and compelled to incur legal costs in doing so. An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in this court, whether as applicant, in launching proceedings or as respondent opposing proceedings.’

[52] I am further guided by Zungu v Premier of KwaZulu-Natal and Others[12] in which the Constitutional Court affirmed that the principle of "costs following the result" does not apply in labour matters. Instead, the Court should strive to find a fair balance: it should not discourage parties from bringing their disputes to the Labour Court, but it should also prevent parties from filing cases that do not belong in Court.

[53] This is a case where costs should follow the result. The applicant’s dilatory conduct cannot be condoned, and the applicant has demonstrated no cause as to why the review application should be reinstated. The first respondent has been substantially prejudiced by the applicant’s dilatory conduct and there is no reason as to why he should be denied costs in the reinstatement and review

applications.

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

Order

1. The application to reinstate the review application is dismissed with costs, such costs to include the costs of the review application and the reinstatement application and which costs are to include the costs of counsel.

H Schensema

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr Thamaga of the State Attorney

For Respondent: Advocate B Monyeki

Instructed by: Mpakati Incorporated

[1] Act 66 of 1995, as amended.

[2] Practice Manual of the Labour Court of South Africa, effective 1 April 2013.

[3] GN 1666 of 1996: Rules for the Conduct of Proceedings in the Labour Court.

[4] [2020] ZALCCT 38 (10 June 2020).

[5] [2020] ZALCJHB 215; [2020] 11 BLLR 1160 (LC) at para 10.

[6] (2002) 23 ILJ 1229 (LAC) at para 4.

[7] [1999] ZALAC 24; (2000) 21 ILJ 166 (LAC).

[8] [1998] ZALAC 22; [1999] 3 BLLR 209 (LAC) at para 10.

[9] [2014] ZALAC 1; [2014] 6 BLLR 523 (LAC) at para 38.

[10] [2014] ZALCJHB 115; (2015) 36 ILJ 232 (LC) at para 22.

[11] [2012] ZALCJHB 17; (2012) 33 ILJ 2117 (LC) at para 176.

[12] [2018] ZACC 1; (2018) 39 ILJ 523 (CC).