Department of Labour and Others v Tsatsi (J1631/12) [2014] ZALCJHB 367 (30 September 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: J 1631/12

DEPARTMENT OF LABOUR N.P. NHLEKO, DIRECTOR GENERAL S.S. MKHONTO, COMPENSATION COMMISSIONER First Applicant Second Applicant Third Applicant and PULE S. TSATSI Respondent

Heard: 3 July 2014

Delivered: 30 September 2014

MORGAN, AJ

INTRODUCTION

[1] This is an application for rescission of an Order granted in chambers by van Niekerk, J on 12th September 2012 making an arbitration award dated 13 January 2012 an Order of this Court in terms of Section 158(1)(c) of the Labour

Relations Act 66 of 1995 (“the LRA”).

[2] The notice of motion and founding affidavit in the rescission application were filed on 18 February 2013, the founding affidavit having been deposed to by one Thembeka Faith Moleko, an Acting Chief Director within the First Respondent, on 16 January 2013. An answering affidavit was deposed to by the Respondent personally on 25 March 2013 and filed on 5 April 2013. A replying affidavit was deposed to by Moleko on 7 May 2013 and filed on 20 May 2013. For some reason the replying affidavit was not part of the indexed bundle.

BACKGROUND

[3] On or about 13 January 2012 the General Public Service Sector Bargaining Council (“the bargaining council”) issued an arbitration award in respect of a dispute between the Respondent and the First Applicant (“the Department”), culminating in the following finding:

“16.1 the termination of the applicant from his employment is unfair;

16.2 the applicant had a reasonable expectation that his contract will be renewed at its expiry;

16.3 the applicant be reinstated to his position by a further term of one year, as with the previous contract;

16.4 No order is made as to costs.”

[4] Despite initially seeming intent on abiding by the award[1], and instructing the Respondent to report for duty, the Department formed the view that the re-instatement of the Respondent was

“impractical”. Accordingly it elected to pay him an amount equivalent to one year’s salary[2].

[5] Despite apparently accepting this payment the Respondent, being of the view that payment did not equate with compliance with the award, launched an application in terms of Section 158(1)(c) of the LRA (“the S158(1)(c) application”) citing the present Applicants as Respondents – although the precise role of the Second and Third Applicants is unclear. It is common cause that the Department accepted personal service of this application on 6 July 2012[3].

[6] The allegation is made in the founding affidavit[4] that a notice of intention to oppose was sent by way of facsimile to the Registrar’s office, it would seem by the office of the State Attorney. However no proof of faxing is provided – either in respect of service on the Respondent or on the Registrar’s office. It is also clear that the deponent does not have personal knowledge of such transmission and that neither an affidavit of service nor a confirmatory affidavit have been deposed to.

[7] Despite the allegation to the contrary in the Department’s heads of argument[5], the Respondent has denied that this notice was served on them[6].

[8] Be this as it may the S158(1)(c) application was then granted in chambers on 12 September 2012. The Respondent alleges in his answering affidavit that the order was then served on the Department on 28 September 2012[7] which seems to be the date upon which the Department became aware of the order.

[9] The present application was then launched on or about 18 February 2013.

CONDONATION

[10] The Respondent has raised a point in limine alleging that the application was launched outside the time period permitted for such.

[11] At the hearing of this matter, Mr Mtsweni, appearing for the Department argued that condonation is not relevant as the Department relied on the provisions of Rule 16A(1)(a) of the Rules for the conduct of proceedings in this Court. Rule 16A provides inter alia that:

“(1) The court may, in addition to any other powers it may have –

(a) of its own motion or on application of any party affected, rescind or vary any order or judgment –

(i) erroneously sought or erroneously granted in the absence of any party affected by it;

(ii) ...

(iii) ...

(b) on application of any party affected, rescind any order or judgment granted in the absence of that party.

(2) Any party desiring any relief under –

(a) subrule 1(a) must apply for it on notice to all parties whose interests may be affected by the relief sought.

(b) subrule 1(b) may within 15 days after acquiring knowledge of an order or judgment granted in the absence of that party apply on notice to all interested parties to set aside the order or judgment and the court may, upon good cause shown, set aside the order or judgment on such terms as it deems fit.”

[12] It is clear from the wording of the Rule that the fifteen day time period does not apply to applications brought in terms of subrule

1(a). This view is supported by the finding of this Court in Bayete Security Holdings v Mokgadi and Others[8] upon which Mr Mtsweni relied[9].

[13] Reliance of this basis for rescission is further apparent from the founding affidavit[10] in which the Department states that:

“I respectfully submit that the Court order was erroneously granted in that had it been brought to the Court’s attention that there was a notice of opposition, the Court would not have granted the order.”

[14] In light of this it is my view that the applicant was not bound by the fifteen day time period. However an applicant seeking rescission in terms of subrule 1(a) does not have unlimited time to launch a rescission application and any such application must be brought within a reasonable time.

[15] In considering a delay of more than three years in bringing an application to the High Court in terms of Rule 42 of the Rules of

that court, which is essentially the equivalent of Rule 16A of the Rules of this court, it was held in First National Bank of Southern Africa Ltd v van Rensburg and Others: in re First National Bank of Southern Africa v Jurgens and Others[11] that:

“It is in the interest of justice that there should be relative certainty and finality as soon as possible concerning the scope and effect of orders of Court. Persons affected by such orders should be entitled within a reasonable time after the issue thereof to know that the last word has been spoken on the subject. The power created by Rule 42(1) is discretionary (see Tshivase Royal Council and Another v Tshivase and Another; Tshivase and Another v Tshivase and Another [1992] ZASCA 185; 1992 (4) SA 852 (A) at 862 in fine-863A) and it would be a proper exercise of that discretion to say that, even if the appellant proved that Rule 42(1) applied, it should not be heard to complain after the lapse of a reasonable time. ...”

[16] The enquiry is thus whether or not the application was brought within a reasonable time. Only if it is found that it has not, does condonation become an issue.

[17] The effective resolution of labour disputes is expressly stated as one of the very purposes of the LRA[12] and this Court has pronounced time and time again on the importance of the speedy resolution of disputes.

[18] It is instructive that subrule 2(b) provides a time frame of fifteen days. It is clear that this period is deemed sufficient for an application in terms of that subrule. This does not mean that fifteen days would automatically qualify as a reasonable time for the purposes of applications brought in terms of subrule 1(a) however it provides a basis for comparison.

[19] The complexity of the matter, the nature of the alleged error in proceedings and any other similar considerations would assist the court in assessing whether or not an application had been brought within a reasonable time.

[20] The present application was launched a few days short of five months after the Order came to the attention of the Department.

[21] No reason is provided as to why the application took so long to be launched – indeed the allegation that it was brought within a reasonable time is not even made in the founding papers. In fact in the replying affidavit the Department takes the view that condonation is in fact required and avers that such an application will be launched[13]. Had the Department been of the view at that stage that the fifteen day time period did not apply, and that the application had to be (and had been) brought within a reasonable time, one would have expected an allegation to this effect to have been made.

[22] It is clearly the duty of an applicant to establish (which means that they must at the very least make the allegation) that an application in terms of Rule 16A(1)(a) has been brought within a reasonable time.

[23] Under the circumstances, it must be taken into account that the time period within which the application was launched substantially exceeds that provided for applications brought in terms of Rule 16A(1)(b) and that the application is neither complex nor technically challenging to a degree that a period of five months would be required for its preparation – certainly not when one considers that the Department had the full resources of the State Attorney at its disposal.

[24] It is my view that the application has not been brought within a reasonable time. If I were to grant the application it would defeat the very purpose of effective dispute resolution underlying the LRA and the Respondent’s right to certainty and finality. In short it would not be in the interests of justice.

[25] Whether or not to grant relief in terms of Rule 16A is discretionary and, for the reasons set out above, taking into account the view of the Court in First National Bank[14] a proper exercise of this discretion results in the application being dismissed.

CONCLUSION

[26] It is the finding of the Court that the application has not been brought within a reasonable time. As there is no application for condonation, the application falls to be dismissed.

[27] In light of this finding it is not necessary to consider the merits of the application.

[28] While Mr Matyolo urged me to visit the Department with a punitive costs order, I am not inclined to do so. Apart from the delay in launching proceedings, the Department has not, in my view, conducted the matter in such a way as to warrant such an order. I do, however see no reason why costs (on the party and party scale) should not follow the result.

ORDER

[29] In the premises I make the following Order:

i. The Application for rescission is dismissed;

ii. The First Applicant is to pay the Respondent’s costs.

____________________

Morgan, AJActing Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicants:

Adv. D. MtsweniInstructed by:

State Attorney

For the Third Respondent: Adv. X.D. Matyolo

Instructed by:

Routledge Modise Inc

[1] Court file page 67

[2] Founding affidavit paragraphs 5.12 – 5.14, Court file pages 9, 68

[3] Founding affidavit paragraph 6.1, Court file page 10

[4] Founding affidavit paragraph 6.3, Court file page 10

[5] At paragraph 24

[6] Answering affidavit paragraph 23, Court file page 29

[7] Answering affidavit paragraph 5, Court file page 24

[8] (2000) 5 LLD 446 (LC); also reported at (2000) 9 BLLR 1020 (LC)

[9] See also Griekwaland Wes KooPeratief v Sheriff, Hartswater and Others in re: Sheriff, Hartswater and Others v Monanda Landbou Dienste (2010) 31 ILJ 632 (LC); Edgars Consolidated Stores Ltd v Dinat and Others (2006) 27 ILJ 2356 (LC); South African Revenue Services v Mhlongo J 1915/09 [2012] ZALCD] 4 (2 February 2012)

[10] Founding affidavit paragraph 6.5, Court file page 11

[11] 1994(1) SA 677 (T); see also Bakoven Ltd v GJ Howes (Pty) Ltd 1992 (2) SA 466 (E) at 471E-F; Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) at 306H; Erasmus et al, Superior Court Practice at B302 commenting on High Court Rule 42

[12] Section 1(d)(iv)

[13] Replying affidavit paragraph 2.2

[14] Supra