Department of Home Affairs v Maloyi NO and Others (JR2377/19) [2023] ZALCJHB 131 (11 May 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR2377/19

In the matter between:

DEPARTMENT OF HOME AFFAIRS Applicant and COMMISSIONER FUZILE MALOYI N.O First Respondent GENERAL PUBLIC SERVICE SECTORAL BARGAINING COUNCIL Second Respondent PSA OBO NOLUBABALO MBENE Third Respondent

Heard: 20 April 2023

Delivered: 11 May 2023

Summary: Review of the arbitration award – it is impermissible for the applicant to pursue a common law remedy in terms section 158(1)(g) of the LRA and bypass the dispute resolution machinery of section 145 of the LRA.

Review application is delivered outside of the six-week period in terms section 145(1)(a) of the LRA - no condonation application – court lacks jurisdiction to entertain the matter.

JUDGMENT

NKUTHA – NKONTWANA, J

Introduction

[1] This is a review application wherein the applicant (the DHA) seeks an order reviewing and setting aside the arbitration award (award) issued by the first respondent (arbitrator) under case number GPBC1712/2017, dated 29 July 2019. The arbitrator found the dismissal of Ms Mbene, a member of the third respondent (PSA), procedurally and substantively unfair.

[2] The DHA impugns the award on several grounds but primarily the reasonableness thereof. Yet, it contends that the review application is premised on section 158(1)(g) of the Labour Relations Act[1] (LRA). It further seeks condonation for the late filing of the transcribed record of the arbitration proceedings. PSA is opposing

both the review and condonation applications; and, in limine, takes issue with the fact that the review application was delivered outside of the six-week period in terms of the 145(1)(a) of the LRA.

[3] I deal first with PSA’s point in limine. The nub of the issue is whether the award could be reviewed in terms of section 158(1)(g) of the LRA, as contended by the DHA. The DHA seem to have laboured under the impression that the matter is not opposed. On the contrary, PSA did file its answering affidavit and was duly represented by its attorney of record, Ms Khumalo. Nothing much turns on this as the DHA has itself to blame for the misunderstanding because it obviously did not prosecute the review application with diligence. The state of the court file attests to that. I also took notice of the fact that it was PSA that requested the enrolment of the matter for hearing.

[4] Section 145 of the LRA provides as follows:

‘Review of arbitration awards

(1) Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award –

(a) within six weeks of the date that the award was served on the applicant, unless the alleged defect involves the commission of an offence referred to in Part 1 to 4, or section 17, 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2 of the Prevention and Combating of Corrupt Activities Act, 2004; or

(b) …

(1A) The Labour Court may on good cause shown condone the late filing of an application in terms of subsection (1).’

[5] Whilst section 158(1)(g) provides:

‘The Labour Court may… subject to section 145, review the performance or purported performance of any function provided for in this Act on any grounds that are permissible in law…’

[6] It is common cause that the DHA seeks to review an arbitration award, not a jurisdictional ruling or pertinent procedural decisions that fall outside the scope of section 145. The review of the award is exclusively dealt with in terms of section 145 and not section

158(1)(g). The DHA litigates in the Labour Court so frequently and mostly in matters pertaining to the review of awards as typified in this instance. In most cases, as is in the present instance, the DHA is adequately represented by the State Attorney and counsel.

Therefore, it is curious that a litigant of this calibre, patently au fait with legal principles and processes, would unflinchingly pursue a legal strategy that amounts to proverbially flogging a dead horse.

[7] In Steenkamp and others v Edcon Ltd (National Union of Metalworkers of SA intervening)[2], the Constitutional Court expressed its disapproval of the applicants decision to pursue the common-law remedy despite having a remedy provided for in the LRA. It was stated that:

‘[137] The second basis for my conclusion that the applicants’ appeal should be dismissed is a principle that, for convenience, I call “LRA remedy for an LRA breach”. The principle is that, if a litigant’s cause of action is a breach of an obligation provided for in the LRA, the litigant as a general rule, should seek a remedy in the LRA. It cannot go outside of the LRA and invoke the common law for a remedy. A cause of action based on a breach of an LRA obligation obliges the litigant to utilise the dispute-resolution mechanisms of the LRA to obtain a remedy provided for in the LRA.

...

[140] …[A] litigant who bases its case on a breach of an obligation in the LRA must seek a remedy in the LRA and not outside of the LRA. This court has already laid down this principle. In one of the two majority judgments in Chirwa Ngcobo J said:

“Where, as here, an employee alleges non-compliance with provisions of the LRA, the employee must seek the remedy in the LRA. The employee cannot, as the applicant seeks to do, avoid the dispute-resolution mechanisms provided for in the LRA by alleging a violation of a constitutional right in the Bill of Rights. It could not have been the intention of the legislature to allow an employee to raise what is essentially a labour dispute under the LRA as a constitutional issue under the provisions of s 157(2). To hold otherwise would frustrate the primary objects of the LRA and permit an astute litigant to bypass the dispute-resolution provisions of the LRA. This would inevitably give rise to forum shopping simply because it is convenient to do so or as the applicant alleges, convenient in this case ‘for practical considerations’. What is in essence a labour dispute as envisaged in the LRA should not be labelled a violation of a constitutional right in the Bill of Rights simply because the issues raised could also support a conclusion that the conduct of the employer amounts to a violation of a right entrenched in the Constitution.”’ (Own emphasis. Footnotes omitted)

[8] It follows that it is impermissible for the DHA to pursue a common law remedy in terms section 158(1)(g) and in turn, bypass the dispute resolution machinery of the LRA.

[9] Even if I were to benevolently read the founding papers and accept that the review application is alternatively instituted in terms of section 145(1)(a), which the DHA disavows, the major obstacle is that application was delivered outside of the six-week period. It is obviously not accompanied by a condonation application as contended by PSA. Yet, it is common cause that the DHA received the award on 14 August 2019 and delivered the review application on 30 October 2019. The six-week period expired on 26 September 2019. Thus the degree of lateness is about 33 days.

[10] Absent a formal application for condonation for the late delivery of the review application, there is no basis to assist the DHA within the rules of law that this Court is bound to apply.[3] In SA Transport and Allied Workers Union and another v Tokiso Dispute Settlement and others[4], the Labour Appeal Court held that where a party is out of time and has to take the jurisdictional step of applying for condonation but failed to do so, a court cannot come to that party’s assistance. As a consequence, as observed in Computer Storage Services Africa (Pty) Ltd v CCMA and Others[5], in the absence of a condonation application for the late filing of the application for review, the Labour Court lacks jurisdiction to determine that review application.

Conclusion

[11] In all the circumstances, this Court has no jurisdiction to entertain the review application. As such, the matter stands to be dismissed.

Costs

[12] In my view, given the conduct of the DHA in prosecuting the matter, it is fair and equitable that it be ordered to pay the costs of this application.

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

Order

1. The Court has no jurisdiction to entertain the review application and the matter is thus dismissed.

2. The applicant shall pay the third respondent’s costs.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv M H Mhambi Instructed by: State Attorney (Pretoria) For the Third Respondent: Ms L Khumalo of Khumalo Attorneys

[1] Act 66 of 1995, as amended.

[2] (2016) 37 ILJ 564 (CC) at paras 137 and 140.

[3] See: Mbatha v Lyster NO and Others [2001] 4 BLLR 409 (LAC) at paras 16 - 17.

[4] (2015) 36 ILJ 1841 (LAC) at para 19.

[5] Unreported judgment of the Labour Appeal Court (CA 7 /2016) handed down on 30 November 2017 at para 17.