Department of Transport, Limpopo Province v Sekwakwa and Others (JR1007/19) [2021] ZALCJHB 406 (28 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, POLOKWANE

Reportable

CASE NO: JR 1007/19

In the matter between:

DEPARTMENT OF TRANSPORT, LIMPOPO PROVINCE Applicant

and

RABOTHATA SIMON SEKWAKWA First Respondent

COMMISSIONER SEOPELA Second Respondent

GENERAL PUBLIC SEVICE SECTORAL

BARGAINING COUNCIL Third Respondent

Date Heard: 14 October 2021

Date Delivered: 28 October 2021

JUDGMENT

MANGENA AJ

[1] The Department of Transport (Limpopo) seeks to review and set aside an award issued by the second respondent under case number: GPBC 952-2017 dated 04 March 2019. The second respondent is a commissioner in the General Public Service Sectoral Bargaining Council, the third respondent. The award was dispatched to the parties on 27 March 2019 and contains the following findings: -

(a) The dismissal of the applicant (first respondent) was inappropriate.

(b) The Respondent, Department of Transport is ordered to re-instate the applicant, Mr Rabothata Simon Sekwakwa without back pay.

(c) The applicant is to resume his duties on the 01 April 2019.

[2] The undisputed background facts of this matter are as follows: -

Mr Rabothata Simon Sekwakwa was employed as a cashier by the Department of Transport, Limpopo and stationed at Moutse. Around September 2016 his supervisor discovered that he took an amount of R 3 750-00 for personal use. He demanded that he immediately return the money which was also due for collection by the security company. The employee failed to return the money and send an sms to the supervisor in which he said:

“Chief I do apologise [for] what I did to you and my work. I am so sorry I had emergency yesterday. The guy I owe was at my house terrorising my family yesterday night looking for his money. I had no choice and no money that’s why I took that one and I am very sorry. Now waiting for the transfer from my brother I will pay every cent I took. Please forgive me and I promise I will never repeat this and I acknowledge my mistake. I really apologise(sic) please chief.”

[3] The employee was subsequently charged with absenteeism, insubordination and gross dishonesty relating to the missing funds. In the disciplinary hearing he pleaded not guilty on all charges and proffered an explanation that he gave customers too much change and denied ever taking the money. The explanation was rejected and the chairperson returned a verdict of guilty of misconduct on all charges. He unsuccessfully appealed both the conviction and the sanction.

[4] Dissatisfied with the dismissal he referred an unfair dismissal dispute to the third respondent for conciliation and later arbitration. In due course the dispute was arbitrated by the second respondent after conciliation failed. In the arbitration, the employee admitted to having taken the money unlawfully and confined himself to the appropriateness of the dismissal in circumstances where he had returned the money as well as in consideration of other mitigating factors submitted on his behalf. It was also argued on behalf of the employee that the trust relationship had not irretrievably broken down in view of the fact that the employee was allowed to work as a cashier for over 11 months after the incident. In the period he worked, he collected over R 60 000.00 and never had a shortage. He had shown remorse and could be trusted–so it was submitted.

[5] The employer contended that the employee had been unremorseful in that he pleaded not guilty in the disciplinary hearing and contrived a version which was found unacceptable by the chairperson. The nature of the misconduct he committed was so serious that the only appropriate sanction would be dismissal. Relying on various authorities the employer submitted that the trust relationship had broken down and not much should be read into the fact that the employee continued to perform the cashier duties after being found that he took the money home for personal use. It was also submitted that the employee was not handling cash during that period but only issuing receipts.

[6] Having listened to the evidence tendered and submissions made on behalf of the parties, the arbitrator found that the employer failed to prove insubordination as on the undisputed evidence, the employee obliged by paying half of the money and the balance the following day. Regarding the appropriateness of dismissal, the commissioner considered the fact that the employee was allowed to perform the cashier duties for a period of almost a year after the incident. He further took into account the evidence of the employer’s own witness one Mr Sergeant Skosana, the station manager at Dennilton who testified that the employee was remorseful and that he never repeated the misconduct. He further testified that the sanction of dismissal was harsh and that the employer should have considered deducting some money from his salary, make him pay for what he did. They should have at least give(sic) him couple of months of suspension not dismissal and as a first offender in the department “maybe.” He then made a finding that the dismissal was inappropriate under the circumstances of this case. He ordered re-instatement without back pay after finding the trust relationship is still intact based on the conduct of the applicant after the incident[1].

[7] The Department seeks to review the award on one main ground, namely that the commissioner committed gross irregularity in the conduct of the arbitration proceedings in that he failed to give due regard to the record of the disciplinary proceedings. It contended that had the commissioner considered the evidence tendered in the disciplinary hearing, he would have arrived at a conclusion that the employee is not remorseful because he pleaded not guilty and gave a version at odds with the one given in the arbitration. By disregarding the record of the disciplinary hearing, the commissioner misunderstood his duties and the award falls to be reviewed and set aside.

[8] The review is opposed by the employee who argued that the Department launched an application outside the six weeks prescribed by section 145(1) (a) of the Labour Relations Act and no good cause has been shown to justify the late filing of the review. In the absence of a good explanation shown, condonation should be refused and the award should be allowed to stand uninterfered.

Condonation

[9] As pointed out in the preceding paragraphs, the Department was notified of the award on 27 March 2019. The six weeks period to file the review lapsed on 08 May 2019. The Department only launched it on the 03 July 2019 which period is eight weeks out of time.

[10] In the affidavit supporting condonation, the Department attributes the delay to the office of the state attorney which has introduced a new system which requires advocates to submit quotations with CV’s before one of them could be allocated the brief. The new procedure is said to be cumbersome as it requires the advocates to be registered with treasury as service provider and should have MAAA number. It was contended that the delay was necessitated by the need to comply with the law and it was therefore not actuated by wilful disregard of the rules of the Labour Court and the laws governing review applications.

[11] The principle’s governing condonation are trite and the leading authorities is Melane v Santam Insurance Company Ltd[2] where the court explained the approach as follows: -

“In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success and the importance of the case. Ordinarily these facts are interrelated, they are not individually decisive, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate prospects which are not strong. Or the importance of the issue and strong prospects may tend to compensate for a long delay”

This approach was endorsed by the Constitutional Court in Grootboom v National Prosecuting Authority and Another[3] where the court stated that an overriding consideration is the interest of justice.

[12] The party applying for condonation seeks an indulgence from the court. This is so because it is not there for the taking. On the affidavit filed in support of the application, the deponent is required to set out all the facts necessary to enable the court to assess the degree of blameworthiness in the failure to observe the time limits. In Van Wyk v Unitas Hospital[4] the Constitutional Court said that the applicant for condonation must give a full explanation for the delay and such explanation must cover the entire period of the delay.

[13] In casu, the Department was represented by an attorney in the arbitration proceedings. The attorney was in all probabilities appointed in compliance with Supply Chain Management prescripts of the department and approved by Treasury. I fail to understand why the Department could not continue with him even if it was for the purpose of drafting the review papers and ensuring that there is compliance

with the timeframes. This is not to suggest that the Department does not have the right to change attorneys- it certainly does but there has to be a very good reason to do so and even then all efforts should be taken to make sure that there is compliance with the Rules.

[14] The Department advised the employee on 02 April 2019 that it is not happy with the contents of the award and is taking legal steps to review the award. The legal services section of the department responsible for litigation and labour matters should be aware of the timeframes prescribed in the Court Rules and ensure that the Department complies. Given the fact that the award was received on 27 March 2019, the review should have been delivered by no later than 08 May 2019. The Department failed to launch the review by 08 May 2019. On 17 May 2019 the employee’s attorneys directed a letter to the Head of Department advising her that the six weeks prescribed in the Act has lapsed and that she is out of time with regard to the lodgement of the review application. The letter was not responded to.

[15] On the 24 June 2019, the attorneys for the employee addressed yet another letter to the Department advising that they have been instructed to make an application for the certification of the award in terms of section 143 of the Labour Relations Act. Attached to the letter was the copy of the application. It was on the same day that the representative of the Department deposed to an affidavit in support of the review. The affidavit contains the explanation for the delay mentioned in paragraph 10 above.

[16] The affidavit records that the Department together with the state attorney had a consultation on the 28 May 2019. There is no explanation given by the attorneys assigned the matter why he/she could not prepare the application. The attorneys had surely consulted with the client department on their request for assistance and know the basis upon which it sought to review the award. The attorney could surely have drafted the papers and have them issued. After all a review application is not complicated.

[17] As at the time when consultation was held, the Department was three weeks out of time. It once again took the Department another 4 weeks to have the affidavit signed and the application issued with the Registrar. No explanation is tendered for the delay in finalising the application. What is clear from this failure to account for time lapse is that either the Department officials or the attorney assigned the matter did not consider time to be of essence, when it clearly was. Simply put there was no urgency displayed in finalising the papers and lodging the review.

[18] During the oral submission Adv. Modjadji urged me to consider the prospects of success which the Department enjoys given fact that the employee pleaded guilty in the disciplinary hearing and the arbitrator failed to have regard to this aspect. She called in aid Nkomati Joint Venture v CCMA and Others[5], where the commissioner failed to lend a helping hand to a party during the proceedings. This case is not on point in so far as the conduct of the commissioner is concerned. In this matter the employee did not dispute that he took the money for personal use. He conceded and confined his case to the appropriateness of the sanction. There was no changing of version mid-stream the proceedings which necessitated that assistance be given to the employer representative.

[19] Having considered the submissions made on behalf of the Department and the explanation for the delay in instituting the review application, it is my view that the explanation provided is unsatisfactory, lacks detail and leaves a considerable amount of time unaccounted for. The explanation lacks candour.

[20] In conclusion, I am impelled to remark on the procurement of legal services by the office of the state attorney. The State Attorney Amendment Act[6] provides for the establishment of the Solicitor-General who is the executive officer of all offices of the State Attorney. One of the key responsibilities of the Solicitor-General is to develop a policy on the functioning of the office of the state attorney which must include the co-ordination and management of all litigation in which the state attorney is involved as well as the outsourcing of legal work. The development of the policy will certainly assist in the improvement of the operations in the office of the state attorney regarding the allocation of briefs and distribution of work amongst practitioners preferably black female. At the moment the office of state attorney is characterised by chaos manifested by delays in complying with court Rules and ensuring that client departments comply with court orders. It is not over-exaggeration to state that the failure by cabinet to prioritize the approval of the policy contributes enormously to this failure we are witnessing in the office of the state attorney. Unless the policy is approved and implemented, the state shall never be in the position to transform the legal sector and ensure that black and female practitioners have a fair share of the allocation of quality work. It is only when the state as a major customer of legal services empowers its citizens marginalised by years of apartheid legal order that there shall be true transformation. As matters stand, the Solicitor-General is being set-up for failure as his term will end without him having achieved anything significant. In the meantime, the departments will have to endure the inefficiencies of the office of the state attorney.

Costs

[21] The Department was well within its right to challenge the award. I do not get a sense that it was frivolous or vexatious in its conduct. It will therefore be inappropriate to make a costs order against it. I propose to order no costs.

[22] In the premises the following order is made:

Order:

1. Condonation for the late filing of the review of the award issued under case number: GPBC 952-2017 dated 04 March 2019 by the third respondent is refused.

2. There is no order as to costs.

M. I. Mangena

Acting Judge of Labour Court of South Africa

Appearances:

For the Applicant: Adv.

Modjadji

Instructed by: State

Attorney Polokwane

For the First Respondent: M.H Letsela of M Letsela Attorneys

[1]Stokwe v MEC for Education, Eastern Cape and Others (2019) 40 ILJ 773 (CC) “The requirement of promptness not only extends to the institution of disciplinary proceedings, but also to their expeditious completion. If an employee is retained in employment for an extended period after the institution of disciplinary action, it may indicate that the employment relationship has not broken down.” Para 67.

[2] 1962 (4) SA 531 (A)

[3] 2014 (2) SA 68 (CC)

[4] 2005 (2) SA 240 (CC)

[5] (2019) ILJ 819 (LAC)

[6] Act 13 of 2014