Department of Road and Transport: Gauteng Province v Govender and Others (JR1436/19) [2021] ZALCJHB 335 (6 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA

Not Reportable

Case No: JR1436/19

In the matter between:

DEPARTMENT OF ROAD AND TRANSPORT:

GAUTENG PROVINCE Applicant

and

PERUMAL G GOVENDER First

Respondent

GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL Second Respondent

S J LOMBARD N O Third Respondent

Heard: 29 June 2021

Delivered: 06 October 2021

JUDGMENT

MOSAM, A J

Introduction

1. The Applicant brought an application to review and set aside the arbitration award dated 7 May 2019 under case number GPBC 2612/2018. The Third Respondent (“the Arbitrator”) found that the non-renewal of the First Respondent’s contract by the Applicant amounted to a dismissal in terms of section 186(1)(b) of the Labour Relations Act, 66 of 1995 (“the LRA”), that the dismissal was unfair and ordered reinstatement.

The Relevant Facts

2. It is not necessary for the purpose of this Judgment to restate the facts, but the salient ones are mentioned below.

3. The First Respondent (“Govender”) was initially employed by the Applicant (“DRT”) on a one year contract running from 1 October 2016 to 30 September 2017.[1]

4. The contract was extended for a further 12 months to 30 September 2018.[2]

5. On 15 September 2018, Govender’s Head of Department, Ron Swart (“Swart”) made application for a further six months’ extension for Govender’s contract to 31 March 2019.[3]

6. Swart told Govender that the reason for the six month extension was that the Department was absorbing contract workers on a permanent basis and the six month period would be sufficient to do the same with Govender.[4]

7. In terms of the appropriate legislation and regulations authority to provide for employment of persons additional to the fixed establishment, of whom Govender was one, had been delegated to the Head of Department, Swart.[5]

8. It is common cause that Govender was the sole witness at the arbitration and that his evidence was not challenged in cross-examination.

9. In his arbitration award, the Arbitrator found the following:

9.1. that he was required to conduct a two-stage enquiry;[6]

9.2. that the evidence of Govender that he harboured a subject belief that his employment would continue and become permanent, was “wholly undisputed”.[7]

9.3. the Arbitrator expressly stated in his arbitration award as follows:

“The evidence considered supports a finding that the respondent clearly and unambiguously communicated its express intention to absorb the applicant permanently. Once again, the applicant provided direct evidence on oath and stated that he was informed that the anticipated process for his absorption would not take more than 6 months. The respondent presented no evidence to weigh against the applicant’s sworn testimony, which is strongly corroborated by further undisputed evidence that the respondent also recommended that a 3rd term for the very same period of 6 months.” [8]

9.4. It is on this basis that the Arbitrator concluded that both stages of the enquiry should be answered in Govender’s favour, firstly that he held a subjective belief that his fixed term contracts would be extended and turned into permanent employment, and, secondly, that this belief was reasonable in the circumstances.

9.5. In light of his finding that Govender’s dismissal was substantively unfair, he reinstated Govender with back pay.

Discussion

10. It is common cause that the DRT did not to challenge Govender’s evidence that he was informed by Swart that his contract would be extended for a further six months to provide time for Govender’s permanent absorption and that Swart had the delegated authority to do so.

11. In this regard, the Labour Court in Masilela v Leonard Dingler (Pty) Ltd[9] held that:

“[28]…It is trite that if a party wishes to lead evidence to contradict an opposing witness, he should first cross-examine him upon the facts that he intends to prove in contradiction, to give the witness an opportunity for explanation. Similarly if the court is to be asked to disbelieve a witness, he should be cross-examined upon the matters that it will be alleged to make his evidence unworthy of credit. In Small v Smith 1954(3) SA 434 (SWA) Claassen J said at 438 –

‘… It is grossly unfair and improper to let a witness’s evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.’”

12. In President of the Republic of South Africa and Others v South African Rugby Football Union and Others[10] the Constitutional Court held that:

“[61] … If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct. This rule was enunciated by the House of Lords in Browne v Dunn and has been adopted and consistently followed by our courts.”

13. The consequence of the unchallenged evidence of Govender meant that the only possible conclusions that the Arbitrator could have come to, on the evidence before him, were:

13.1. that Govender had a subjective belief that his contract would be extended for his ultimate permanent absorption; and

13.2. that Govender’s belief was reasonable.

14. In the circumstances, the Arbitrator’s finding of a dismissal was correct and it follows that there is no ground to review and set aside the Arbitrator’s finding.

Costs

15. The Court has a broad discretion, established by section 162 of the LRA to make an order of costs according to the requirements of law and fairness. The requirement of law has been interpreted to mean that the cost would follow the result. In considering fairness, the conduct of the party should be taken into account and mala fides, unreasonableness and frivolousness are, inter alia, factors justifying the imposition of a costs order.

16. In Zungu v Premier of KwaZulu-Natal & Others[11] the Constitutional Court confirmed that the Rule that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand, allowing those parties to bring to this Court (or oppose) cases that should not have been brought to Court (or opposed), in the first place.

17. The generally accepted purpose of awarding costs is to indemnify the successful litigant for the expense he/she had been put through by having been unjustly compelled to initiate or defend litigation. This is the case where the Court has to strike a balance.

18. In argument, Mr Orr, for the Respondent, submitted that the application be dismissed with costs. He argued that “Govender made all the running in this application.” and that serious consideration must be given to the granting of costs as a mark of disapproval.[12]

19. I am of the view if one considers the totality of the circumstances in this matter that the litigation was meritless. In my view, this is a case where it is appropriate to make a costs order.

20. In the premises, I make the following Order.

Order

21. The application for review is dismissed with costs.

A MOSAM

ACTING JUDGE OF THE LABOUR COURT

APPEARANCES:

FOR THE APPLICANT: ADV V P NGUTSHANA

Instructed by The State Attorney

FOR THE RESPONDENTS: ADV C ORR SC

Instructed by A F Van Wyk Attorneys

[1] Transcript Vol 1 p.37 line 15 to p.38 line 5

[2] Transcript Vol 1 p.38 line 11 to p.40 line 5

[3] Transcript Vol 1 p.41 line 2 to p.43 line 18

[4] Transcript Vol 1 p.43 line 19 to p.44 line 3

[5] Transcript Vol 2 p.86 lines 7-25

[6] Respondents’ heads of argument: The Legal Authorities paras 6-10, pp.3-5

[7] Pleadings p.54 para 45

[8] Pleadings arbitration award p.54 para 46

[9] (2004) 25 ILJ 544 (LC)

[10] 2000 (1) SA 1 (CC)

[11] (2018) 39 ILJ 523 (CC) at para 24

[12] See: First Respondent’s supplementary affidavit dated 10 June 2021