Department of Justice and Constitutional Development v Mthethwa and Others (D313/2020) [2024] ZALCD 17 (26 June 2024)

IN LABOUR COURT OF SOUTH AFRICA, DURBAN

Not reportable

CASE NO. D313/2020

In the matter between:

DEPARTMENT OF JUSTICE AND

CONSTITUTIONAL DEVELOPMENT Applicant

and

VUSUMUZI FRANS MTHETHWA First Respondent

THE GENERAL PUBLIC SERVICE

SECTORAL BARGAINING COUNCIL

Second Respondent

MTHOKOZISI JEFFREY MSHOLOLO Third Respondent

Heard: 30 June 2022

Delivered: 26 June 2024

JUDGMENT

KIRBY-HIRST, AJ

Introduction

[1] The Third Respondent referred an unfair labour practice dispute to the Second Respondent relating to other disciplinary action short of dismissal. Following a disjointed Arbitration process, an Arbitration Award was issued by the First Respondent on or around 26 March 2020 which found that the Applicant had subjected the Third Respondent to an unfair labour practice and ordered compensation equivalent to five months’ remuneration in the sum of R188,800.00.

[2] The Applicant then lodged a Review Application and filed same with the Labour Court on or around 11 August 2020 challenging the Arbitration Award and requesting that the Award is reviewed and set aside, and furthermore that the late filing of the Review Application be condoned.

[3] Subsequent to the filing of the Record, the Applicant has also filed the Rule 7A(8) Notice, together with a Supplementary Affidavit, late and has requested condonation for same.

Background and events relating to the Arbitration process

[4] The Third Respondent was charged by the Applicant on or around 25 November 2015 in relation to possible fraud and/or negligence dealing with the issuing of a Letter of Executorship and the acceptance of a possible fraudulent Will.

[5] As is apparent from the various documentation which makes up the Record of the Arbitration process, it would appear that these charges emanate from a Forensic Report dated April 2015.

[6] The Disciplinary Enquiry was set down to commence on 21 December 2015, however for reasons unknown, the Presiding Officer was present on the first sitting date and the matter was adjourned to later dates for the provision of further particulars to the Third Respondent.

[7] For various reasons, the Disciplinary Enquiry did not sit up until after the date of an unfair labour practice referral by the Third Respondent to the Second Respondent in July 2016. There is reference to various appointments and withdrawals of Chairpersons for the Applicant but save for those documents, there has never been any substantial information placed before the First and Second Respondent as to why the matter did not commence at those sittings.

[8] The Third Respondent’s referral to the Second Respondent of an unfair labour practice in July 2016, was summarised as an unfair labour practice regarding suspension / other disciplinary action short of dismissal.

[9] The Third Respondent summarised the facts to his dispute in the Referral Form as:

“I was served with charges around November 2015, to date and without reasons enquiry has not sat.”

[10] In respect of the outcome which the Third Respondent had requested, he stated:

“I have suffered and perceived wrongly by staff colleagues. I require charges withdraw and compensation.”

[11] In terms of submissions made before Commissioner Keshree Kemi, who was involved in the matter prior to the First Respondent dealing with the facts of the case, the Third Respondent had recorded that the Disciplinary Enquiry sat on 12 September 2016 when the particulars which had been requested were provided. This was after the referral to the Second Respondent of the unfair labour practice.

[12] The Third Respondent then stated that a Notice of Set Down for conciliation in respect of the Bargaining Council matter was sent to the parties and that at that point the Applicant then set the matter down for the Disciplinary Enquiry to run on 14 October 2016.

[13] A Ruling was then issued by the Chairperson of the Disciplinary Enquiry held on 14 October 2016, which Ruling was undated, whereby the Chairperson made the following finding:

“Given the above it is clear that the Department did not comply with provisions of the disciplinary code and procedures and I therefore rule that the Department has waived its rights to charge Mr Mtshololo. The charges are therefore dismissed.”

[14] It is not apparent on what date the decision by the Chairperson was provided, but it was confirmed by parties during the course of the Arbitration process that the decision of the Chairperson has never been challenged.

[15] A conciliation was held on 25 October 2016 and a Certificate of Outcome was issued.

[16] What then followed was an Arbitration process which can only be categorised by numerous delays, postponements and various preliminary issues being raised by the Applicant party. During one of these sittings, before the prior Arbitrator, Kemi, an Agreement was purportedly entered into between the erstwhile representative of the Applicant and the Third Respondent’s representative detailing a process which was to take place for the continuation of the Arbitration. This process was predicated on the parties not reaching a Settlement Agreement, whereafter the parties had agreed, as captured by the First Respondent, the following:

“That bundle A which was used during the disciplinary hearing as well as the ruling of panellist K Kemi dated 06 April 2017 contained common cause facts; and that they would submit closing arguments.” [1]

[17] Why it is necessary to quote the recordal of this Agreement by the First Respondent, is that for reasons only known to the parties, they have elected to not provide a copy of the Agreement which appears at the centre of this dispute.

[18] The Applicant’s representative in his Closing Arguments also then set out a portion of the Agreement which provided dates for the various mechanisms set out above.

[19] These were recorded as follows:

“If the matter is not settled by 22 October 2017, deliver written closing arguments to the Bargaining Council on or before 30 October 2017. The parties’ agreement also provides for the Commissioner to issue a ruling by 14 November 2017.” [2]

[20] In addition to the above, it was also stated by the Applicant’s representative that the:

“Agreement further provided that the Commissioner may direct oral hearing, but if happy with the submissions, an award must be issued within a period of 14 days, being 14 November 2017.” [3]

[21] What has been set out above appears to be the general content of the Agreement entered into between the parties on 6 April 2017.

[22] Further sittings of the Arbitration process took place following this Agreement where no settlement was reached.

[23] When the matter sat on 22 August 2018, the First Respondent was required to deal with two preliminary issues which were raised, one being a jurisdictional point, and the other a request for a postponement.

[24] The matter then continued on 22 August 2018, where the First Respondent had advised that he would make a Ruling on the

jurisdictional issue after having heard the evidence of the parties and furthermore that the matter would commence with the Third

Respondent presenting his evidence-in-chief.

[25] The matter concluded on 22 August 2018, with the Third Respondent finalising his evidence-in-chief and the Applicant was to cross-examine the Third Respondent on the next date.

[26] Further postponements then took place, with the matter ultimately reconvening on 20 November 2018 where a further jurisdictional point was raised by the Applicant and thereafter the Applicant commenced with the cross-examination of the Third Respondent.

[27] The matter then continued on 25 October 2019 for more of the Third Respondent’s cross-examination by the Applicant, where two issues were ultimately raised that led to a further postponement of the matter, that being the use of a signed version of an Agreement that had never been submitted in its signed form before, with an unsigned version of the document being part of the bundle. The second issue was the Agreement that had been entered into in April 2017 and whether that was still applicable to the proceedings.

[28] These issues dealt with by the First Respondent on 25 October 2019 led to two Rulings both dated 4 November 2019, one dealing with the issue of the signed Investigation Report and the “Pre-Arbitration Agreement” and the second dealing with the additional jurisdictional claim raised by the Applicant.

[29] The Jurisdictional Ruling of the First Respondent found that the Second Respondent had the necessary jurisdiction to deal with the dispute referred.

[30] The additional Ruling found that the Investigation Report was to be admitted as evidence in the proceedings, that the Pre-Arbitration Agreement dated 2 October 2017 is binding on the parties and that the parties were to submit Arguments in writing by no later than 28 January 2020 as they have been unable to reach a Settlement Agreement.

[31] The parties filed their respective Closing Arguments and an Arbitration Award, which is the subject of this Review Application,

dated 27 February 2020, was issued to the parties on 26 March 2020.

Condonation Applications

[32] As has been set out above, the Applicant in its Notice of Motion has requested that the late filing of the Review Application be condoned.

[33] In the Applicant’s Founding Affidavit, it stated that under normal circumstances, the six-week period to lodge the Review Application would expire on or before 7 May 2020.

[34] The Founding Affidavit was deposed to on 15 June 2020 and in terms of the Affidavit of Service, it is apparent that a further month and a half then elapsed prior to the service of the Review Application on the parties, with the Review Application being filed with the Labour Court on 11 August 2020.

[35] In summary, the Applicant relies for the entire period on the fact that the country was in a period of lockdown from 27 March 2020 due to the COVID-19 pandemic.

[36] The Applicant’s submissions are that the Deputy Director: Employee Relations could not travel to consult with the Applicant’s legal representatives, they had no access to conference facilities to facilitate a virtual conference and could not attend their workstations.

[37] The Applicant then highlights the various Directives issued in respect of access to the Labour Court during the period of lockdown, and its belief that the closure of the Labour Court from 26 March 2020 to 30 April 2020 and the further extensions, rendered the said periods of closure to be dies non for filing of any court proceedings and for the counting of court days.

[38] The Applicant also submitted that the Application had been brought within the stipulated six-week time period, however if not, it requests for the condonation for the late filing thereof.

[39] The opposition by the Third Respondent to the Condonation Application is predicated on the fact that there are a number of free-to-use virtual conference applications that were in existence at the time of the lockdown period, together with the submission that the closure of the Labour Court did not prevent the institution of Review Applications at the time, and further that there are a number of authorities that deal with the lockdown period not being a period of dies non in relation to the institution of Review Applications. Ultimately, the Third Respondent submitted that the Applicant had failed to show good cause for late filing of the Review Application.

[40] The Directives referred to by the Applicant in its Founding Application deal, on the whole, with access to the courts in terms of hearings to be conducted.

[41] From 4 May 2020, the Directive issued on 28 April 2020 stated that there had been progressively scaled down restrictions in movement.

[42] The Directive then dealt with hearings of Motion proceedings and Trials and finally, specified general conditions under which parties may enter the court building (albeit this was referring to where a physical hearing had been directed by a Judge).

[43] Therefore, in terms of the Directives issued, there is no specific reference whatsoever to dies non, nor has any authority been suggested by the Applicant in this regard.

[44] Consideration must be had to the fact that the COVID pandemic was in place right at the very point that the Arbitration Award was issued, which may have delayed the Applicant in certain respects in finalising the Affidavit and having same deposed to.

[45] There is however, a concern when considering the Notice of Motion together with the Applicant’s Founding Affidavit, whereby if one considers the reasons provided by the Applicant, that it was only able to prepare and submit a memorandum for approval to instruct the State Attorney to brief Counsel to institute the Review following 1 June 2020, the footer of both the Notice of Motion and Founding Affidavit sets out the name of the party, the nature of the document being either Notice of Motion or Founding Affidavit, and the date of 3 April 2020. The Notice of Motion is also undated, but reflects April 2020 as the date thereon. It is therefore deeply concerning that submissions have been made that the Applicant was only in a position to instruct the State Attorney to brief Counsel following the 1st of June. That being said, the Applicant has provided no information on this, nor has the Respondent taken any issue with this fact. I am therefore in no position to deal with this anomaly.

[46] The Applicant does also not explain the delay in the deposing to of the Affidavit, being 15 June 2020 and the subsequent service thereof at the end of July 2020. Whilst the delay is approximately three months in the filing of the Review, the explanation provided by the Applicant is sparse, wholly relying on the COVID pandemic and not explaining entirely certain periods of delay.

[47] Given that the delay is somewhat explained, it is then necessary to consider the prospects of success. Prior to dealing with this issue, it is also necessary to consider the submissions made in respect of the delay in filing the Supplementary Affidavit.

[48] The Applicant submits that the Supplementary Affidavit was due on 22 February 2021, and thereafter submits that it was then filed 14 days out of time.

[49] It would appear that the Supplementary Affidavit was filed slightly later than the submissions made therein, however this does not have a drastic impact on the eventual considerations regarding the delay.

[50] The Third Respondent did not particularly oppose the late filing of the Supplementary Affidavit if one considers the submissions made in the Answering Affidavit.

[51] The reasons for the delay provided by the Applicant appear reasonable given the rotational shift system that is alleged to have been used by the Applicant during this time. This is a slight delay in the filing of this document, and I find that this is a reasonable explanation for same.

[52] As with the Condonation Application for the late filing of the Review Application, it is necessary to consider the prospects of success in the main Application and this will entail an evaluation of the review grounds themselves.

Evaluation of Review grounds

[53] The Applicant’s Review grounds centre on two specific items, that being the alleged failure by the First Respondent to conduct the proceedings in terms of Section 138 of the Labour Relations Act, 66 of 1995 (“the LRA”), together with an allied ground alleging that there was no evidence before the First Respondent to come to the conclusion which he did.

[54] Notwithstanding any of the terminology utilised by both the First Respondent, the Applicant and the Third Respondent during the course of the proceedings in this Review, the matter, in essence, comes down to the issue of a stated case.

[55] The process that the purported Agreement referred to was in essence a stated case and, after determining not to take into consideration any of the evidence which had been presented through oral testimony and to not continue with the Arbitration in that regard, the First Respondent has ultimately decided to deal with the matter as per the parties’ initial Agreement and make a finding on what the First Respondent perceived to be a stated case.

[56] What is apparent from the submissions made in the Record provided, is that there was an Agreement which the final representative of the Applicant was not a party to signing, which set out certain time periods by when the issue of settlement needed to be finalised and thereafter the submission of Closing Arguments needed to be complied with. This was an Agreement between the parties and not a Minute of a Pre-Arbitration Conference, as would usually be conducted.

[57] These time periods were not followed, no Closing Arguments were provided at that stage, and the parties elected to commence with the Arbitration by the leading of oral evidence.

[58] The Third Respondent had completed his evidence-in-chief in its entirety and was in the midst of being cross-examined. There was then some disagreement regarding the admission of a signed Investigation Report by the Third Respondent to the Bundle of Documents, which already contained the unsigned document, which then led to the “Pre-Arbitration Agreement” being brought back into the equation. At this point in time the First Respondent already had heard the entire evidence-in-chief of the Applicant and his reasons as to why he believed he was subjected to an unfair labour practice, and furthermore, the alleged impact that this had had on him.

[59] It is also evident from what follows that the Applicant at that point in time, or at least, its latest representative, was unaware of this Agreement entered into, and had wanted the matter to proceed with the evidence being presented. Even if one considers the later submissions of the Applicant, these submissions focussed substantially on the process being followed and the fact that it was unhappy with the Arbitration being conducted in this manner.

[60] In ARENDS AND OTHERS v SALGBC[4] (ARENDS), the Labour Appeal Court stated the following:

“ [11] The decision of the representatives of the parties to limit themselves to providing the Arbitrator with a verbal account of the background relevant to the conclusion of the Collective Agreement, as the basis for the parties arguing the matter without leading oral evidence, was ill-advised….

[15] The Appellants are to some extent the authors of their own misfortune. They placed the matter before the Arbitrator as if there was a simple, single issue capable of resolution with the barest minimum of factual matter. Their approach was neither prudent nor correct. When parties desire to proceed without oral evidence in the form of special case, it is imperative that there should be a written statement of the facts agreed by the parties, akin to a pleading. Otherwise, the Presiding Officer may not be in a position to answer the legal question put to him …. the stated case must set out agreed facts, not assumptions…”

[61] Further to this, the Court advised in the ARENDS decision as to the procedure to be adopted.[5]

“[16] Such statement shall set forth the facts agreed upon, the questions of Law in dispute between the parties, their contentions thereon, and shall be divided into consecutively numberedparagraphs. The parties must annex to the statement, copies of documents necessary to enable the Court to decide upon such questions.

[17] Practitioners must follow these rudimentary elements of good practice when intending to proceed on the basis of a stated case.”

[62] Further to this, in SASSA v NEHAWU AND OTHERS [6], the Court stated the following:

“[5] I fail to comprehend how a dispute which hinges on the fairness of the conduct of an employer can be decided (in the absence of a stated case), without parties giving oral evidence. A decision made in such a way means that the Labour Court must answer all the following questions in the negative….

[6] The process used in the Arbitration proceedings simply does not allow for a due and proper Arbitration of the dispute. The Commissioner based her Findings on the written submissions of the parties….

[8] In the absence of such a stated case, oral evidence should be led on the material facts in disputed Arbitrations in terms of the LRA. Commissioners and Arbitrators should not condone an agreement between the parties that no oral evidence be led unless such a stated case has been agreed and on which they may draw Legal conclusions….”

[63] The aforesaid decisions were met with approval in the case of AGRICULTURE AND RURAL DEVELOPMENT LIMPOPO PROVINCIAL GOVERNMENT v PHOOKO N.O. AND OTHERS [2019] JOL 4548 (LC).

[64] In the present matter, it must then be determined whether the “Pre-Arbitration Agreement” was one which met the requirements of a stated case. The first issue with regards to the “Pre-Arbitration Agreement” is that it does not contain the necessary clauses ordinarily found in a Pre-Arbitration Minute. It sets out a time period by when the matter may be settled, and then a procedure to be adopted if settlement was not agreed upon. In respect of a Pre-Arbitration Conference, the Court in the ARENDS decision stated: [7]

“[16] Rule 20(1) of the Rules for the Conduct of Proceedings before the CCMA (which might be followed in proceedings before Bargaining Councils) allows for a Pre-Arbitration Conference at which the parties must attempt to reach consensus, inter alia, on the agreed facts, the issues to be decided, the precise relief claimed and the discovery and status of documentary evidence. The parties in this case did not engage in a proper Pre-Arbitration process with the aim of agreeing a stated case.”

[65] It is evident that the parties in this matter did not hold a Pre-Arbitration Conference, nor agree on facts as per a

Pre-Arbitration Minute, as usually would be the course.

[66] Simple reference to a Ruling of an Arbitrator, with summarised submissions made during the course of a point in limine, together with reference to a Common Bundle of Documents is not what is required as per the decisions referred to above.

[67] What is glaringly absent from the submissions contained in the “Pre-Arbitration Agreement” and the Ruling of Commissioner Kenni of April 2017, are any submissions on the explanation (if there is one) by the Applicant as to why the Disciplinary Enquiry was not able to sit in the period from December 2015 to the date of the decision by the Chairperson in October 2016. There are various documents which indicate that a number of Chairpersons were appointed and subsequently withdrew from the matter, together with certain additional submissions on a Request for Further Particulars, but an explanation by the Applicant as to why there was such a delay is absent from the “Pre-Arbitration Agreement”.

[68] In this matter, I am guided by the decisions above in that I, too, fail to comprehend how a dispute, which hinges on the fairness of the conduct of an employer, can be decided without this evidence being either in any form of a stated case and/or oral evidence being provided.

[69] Further to this, what is also glaringly absent from the information provided, is that there is no explanation as to the discomfort and/or humiliation that the Third Respondent alleges he suffered due to this type of conduct. In the Third Respondent’s evidence-in-chief during the course of the Arbitration process (which evidence was subsequently excluded), the Third Respondent went into detail as to how he had been affected by the process and why it caused him such discomfort. This evidence is now absence in any purported “Pre-Arbitration Agreement”. In addition to this, there is the undeniable fact that the First Respondent has heard direct evidence-in-chief from the Third Respondent on essentially his entire case and the majority of his evidence, if not all. It is uncertain as to whether any additional witnesses were to be called by the Third Respondent, however his evidence-in-chief was concluded.

[70] This creates its own concerns. Even though the First Respondent states that this oral evidence “falls to be discarded”,

he had heard what appears to be the entire evidence of the Third Respondent, and none from the Applicant. This on its own could lead to a prejudicial situation for the Applicant.

[71] In essence, therefore, the First Respondent in this matter has simply been left with certain information in support of the Third Respondent’s case, but no submissions being made in respect of any oral evidence or agreed facts on behalf of the Applicant.

[72] It is also not certain if the Applicant had been given the opportunity to tender any explanations for the delay in the process, whether the Third Respondent would have simply accepted these, or alternatively, attempted to test same under cross-examination. This is the exact issue with having no oral evidence presented in such a matter.

[73] Ultimately, this was not entirely a question of law to be determined, but rather whether there had been a delay in the conduct of the Third Respondent’s Disciplinary Enquiry, which could not be explained by the Applicant, and which had caused the Third Respondent substantial prejudice and/or harm. This ultimately would involve issues which needed to be determined and tested via oral testimony and one where, even if a correct stated case had been prepared, it may have been extremely difficult for an Arbitrator without hearing evidence by the witnesses concerned to come to a conclusion.

[74] Returning to the issue of Condonation, which was dealt with above, it is evident that the Applicant enjoys strong prospects of success in the Review Application in light of what has been set out above.

[75] The approach adopted by the First Respondent in these circumstances was ill-conceived. This is in circumstances where no proper stated case had been prepared, setting out all relevant facts to the dispute (including the issues dealt with above). In addition to this, the parties operated outside of the agreement by commencing oral evidence, and should have proceeded with same.

[76] Therefore, the strong prospects for the Applicant in the Review Application are sufficient to overcome the specific defects in the explanation for the delay provided by the Applicant, and therefore, both Applications for Condonation are granted.

[77] In respect of the Review Application, the process adopted by the Arbitrator, as set out above, was ill-conceived, and did not follow the requirements of the authorities cited above. The Arbitrator was not placed in a position where he had all the relevant information before him to make the conclusion which he eventually did, and ultimately, insufficient evidence was before the Third Respondent, to come to the conclusion which he reached. Based on the process undertaken by the First Respondent and the procedure followed, there is insufficient evidence placed before this Court to determine the dispute as it currently stands, and the matter will need to be remitted to the Second Respondent for the Arbitration to be conducted afresh before a new Arbitrator.

[78] In the premises, the following Order is made:

Order

(1) The Applications for Condonation for the Late Filing of the Review Application and the Late Filing of the Applicant’s

Supplementary Affidavit are granted.

(2) The Arbitration Award under Case No. GPBC1951/2016 dated 27 February 2020, is reviewed and set aside.

(3) The matter is remitted to the Second Respondent for a new Arbitration to be conducted before a new Commissioner other than the First Respondent.

(4) There is no order as to costs.

Glen Kirby-Hirst

Acting Judge of the Labour Court

Appearances:

For the Applicant: Advocate CM Kulati instructed by the State Attorney

For the Third Respondent: Advocate N Mfeka instructed by Hlela Attorneys Inc.

[1] Index to Review Application, page 34, paragraph 2

[2] Indexed Record, Volume 3, page 239, paragraph 40

[3] Indexed Record, Volume 3, page 239, paragraph 41

[4] [2015] 1 BLLR 23 (LAC)

[5] ARENDS, at para 16 and 17

[6] Case No. C233/14, delivered on 30 April 2015, per RABKIN-NAICKER, J

[7] ARENDS at para 16