Department of Public Works v PSA obo Magoso and Others (2024/112092) [2024] ZALCJHB 427 (17 October 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: 2024-112092

In the matter between:

DEPARTMENT OF PUBLIC WORKS Applicant and PSA obo MAGOSO, M First Respondent ML PHETHLE N.O. Second Respondent GPSSBC Third Respondent SHERIFF PRETORIA CENTRAL Fourth Respondent

Heard: 15 October 2024

Delivered: 17 October 2024

This judgment was handed down electronically by emailing a copy to the parties. The 17th of October 2024 is deemed to be the date of delivery of this judgment.

JUDGMENT

ITZKIN, AJ

Introduction

[1] The applicant seeks an order staying a writ of execution and any further steps in execution, pending the outcome of a review application pertaining to the arbitration award on which the writ is premised.

[2] The applicant also seeks an order consolidating an application for directions from the Judge President with the current application.

[3] The applicant also (conditionally) seeks the reinstatement of its review application which is deemed withdrawn by operation of paragraph

11.2.3 of the Labour Court Practice Manual[1] (Practice Manual); alternatively, an extension to file the record of the arbitration proceedings.

[4] The application is opposed, and a full set of affidavits (founding, answering and replying affidavits) are before the court.

Urgency

[5] On 30 June 2023, the second respondent issued an arbitration award reinstating Mr Magoso, the first respondent, with back-pay.

[6] On 4 October 2023, the applicant launched a review application pertaining to the award.

[7] On 9 October 2023, the first respondent had the award certified.

[8] On 17 October 2023, the Registrar issued a notice indicating that the record was available for collection.

[9] It emerged that the record of the arbitration proceedings was incomplete, and the parties undertook a process to reconstruct it.

[10] On 11 June 2024, the applicant produced a security bond.

[11] The first respondent adopted the stance that the review application is deemed withdrawn as the record was not filed within 60 days of receipt of the Rule 7A(5)[2] notice.

[12] On 27 September 2024, the applicant launched an application in terms of Rule 37(27) for directions from the Judge President.

[13] Also on 27 September 2024, the fourth respondent (the Sheriff) attached the applicant’s property constituting various office equipment used for its operations.

[14] On 2 October 2024, this application was launched.

[15] Although the first respondent criticised the applicant for not having launched the application at an earlier stage, in my view, the applicant did not act unreasonably in launching the application when it did, in circumstances where the Sheriff had attached its property on 27 September 2024.

[16] The applicant did not unreasonably delay the launching of the application thereafter, and it would not be able to obtain

substantive redress in due course if the application had been brought in the ordinary course.

[17] I am therefore satisfied that the application ought to be entertained on an urgent basis.

The main grounds of opposition

[18] The main ground of opposition to the application is that the review application is deemed to have been withdrawn due to the failure to deliver the record within the applicable 60 day period.

[19] The first respondent contends that as a consequence, there is no pending review application, and the award may be enforced.

[20] The first respondent contends further that clause 11.2.4 of the Practice Manual ought to have been invoked by the applicant and that any reconstruction ought to have been at the direction of the Judge President and not at the discretion of the parties.

The reinstatement application

[21] Prior to dealing with the issue pertaining to the stay of execution sought, it is apposite to deal with the application for reinstatement of the review application.

[22] Although the applicant contended that the first respondent’s co-operation in relation to reconstructing the record should be construed as constituting consent to an extension of the 60 day period in paragraph 11.2.3 of the Practice Manual (which was in operation during the initial period of this litigation), this is not sustainable. This is so because there was no request for consent to an extension as required by that paragraph.

[23] It follows that the review application is deemed to be withdrawn by operation of paragraph 11.2.3 of the Practice Manual, and that remains the position until and unless a reinstatement order is granted.

[24] With reference to the merits of the reinstatement application, the failure to comply with the 60 day time period was not as a result of the applicant’s dilatory conduct. It has since taken steps to address the deficient record through a reconstruction process, and there does not appear to be any basis to find that it unduly delayed in doing so.

[25] Although paragraph 11.2.4 of the Practice Manual provides for a mechanism through which directions could be sought pertaining to the inadequacy of the record, the availability of this mechanism did not preclude the parties, amongst themselves, from taking the initiative to reconstruct the record.

[26] Although the applicant may be criticised for not having formally invoked paragraph 11.2.4, on the facts of this case, its failure to do so does not operate as an absolute bar to the reinstatement order from being granted.

[27] It is well-established that the principles applicable to a reinstatement application are similar to those applicable to condonation applications, which are well-established.

[28] Having regard to those principles in the context of this matter, in my view, a proper case is made out for the review application to be reinstated. In this regard, it is not contentious that an incomplete record was produced by the bargaining council, that steps were taken by the applicant to engage with the first respondent to reconstruct the record, and that progress has been made to complete that process.

[29] I have therefore concluded that the reinstatement application ought to be granted.

The stay application

[30] Turning to the stay of execution sought, section 145(3) of the Labour Relations Act[3] (LRA) provides that “[t]he Labour Court may stay the enforcement of the award pending its decision”.

[31] This entails the exercise of a discretion requiring a consideration of various factors including whether or not injustice will ultimately result if the stay is not granted.

[32] Counsel for the first respondent accepted, in her oral submissions, that if the reinstatement order is granted, it would follow that the stay application ought to be granted.

[33] In the context of this matter (and my findings on the reinstatement application), and having regard to the fact that the applicant has put up security in the review application, I am satisfied that this is an appropriate case for a stay of execution to be ordered.

The consolidation application

[34] With reference to the prayer for consolidation of this application with the application for directions in the main application, this would not be appropriate, given that the directions process is administrative in nature, and considerations of convenience do not warrant consolidating this application with that one.

Costs

[35] Lastly, with reference to costs, this is a case in which considerations of justice and equity dictate that no costs order

ought to be made.

[36] In the result, the following order is made:

Order

1. This matter is heard as one of urgency as provided for in terms and the applicant’s failure to comply with the normal time periods, forms and service is condoned.

2. The review application under case number JR1929/23 is reinstated.

3. The writ of execution and any further steps in execution are stayed pending the outcome of the review application under case number JR1929/23.

4. There is no order as to costs.

R Itzkin

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: Instructed by: T Modise State Attorney, Pretoria For the Respondent: Instructed by: L Pretorius Ndebele Du Plessis Attorneys

[1] Practice Manual of the Labour Court of South Africa, effective 2 April 2013, repealed with effect from July 2024.

[2] GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court, repealed with effect from July 2024.

[3] Act 66 of 1995, as amended.