Elefu v Lovedale Public Further Education and Training College and Others (152/2017) [2017] ZAECBHC 13 (19 October 2017)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, BHISHO)

CASE NO: 152/2017

NOT REPORTABLE

In the matter between ERNEST ELEFU Applicant and LOVEDALE PUBLIC FURTHER EDUCATION AND TRAINING COLLEGE First Respondent MINISTER OF HIGHER EDUCATION AND TRAINING Second Respondent MEMBER OF THE EXEUCTIVE COUNCIL FOR THE DEPARTMENT OF EDUCATION, EASTERN CAPE PROVINCE Third Respondent

JUDGMENT

HARTLE J

[1] The applicant seeks an order in the following terms:

“1. Declar(ing) that the non-payment of the applicant’s salary and/or emoluments on the 15th of every month is unlawful and a breach of the employment contract by the First Respondent.

2. Directing the First Respondent to pay the past salary and/or remuneration due to the applicant for which the applicant did not receive as a result of the termination of his salary and/or emoluments on the 16th of August 2012 until all the conditions set out in his contract of employment and/or disciplinary code are met.

3. Directing the First Respondent to pay the salary and/or emoluments due to the application with 15.5% interest with effect from the 16th of August 2012 within 30 day after the order has been made.

4. Directing the First Respondent to restore the status quo ante of the applicant on the payroll system of the college with effect from the 16th of August 2012 the date in which his employment and/or salary was terminated until the conditions set out in the contract of his employment are met.

5. Directing that the first respondent pay the applicant’s costs of this application, together with interest thereon at the legal rate from a date fourteen (14) days after the date of the taxing master’s allocator to the date of payment; and

6. Granting such further and alternative relief as the Honourable Court deems fit.”

[2] It is only the first respondent (“the College”) who opposes the application. It essentially raises a plea of Lis Alibi Pendens, to the effect that there are pending proceedings between the parties in the Labour Court on the very same issue of the applicant’s dismissal which underpins his claim for the relief set out above. The College has also filed a counterclaim.

[3] This application is but one of a series concerning the applicant’s

dismissal from the College where he was employed as Assistant director, Human Resources.

[4] Pursuant to a disciplinary hearing against him, in which he was charged with five counts of misconduct, the chair of those proceedings recommended that he be dismissed from the College.[1] On 2 April 2012, he lodged an internal appeal against this finding.

[5] The applicant asserts that, in terms of clause 9.2.1 of the Disciplinary Code and Procedures for Lecturers and Support Staff (“the

Code”), the employer shall not implement the sanction of the chairperson whilst an appeal has been filed by the employee.

This appears to be the nub of his claim that he is contractually entitled, pending the proper fulfilment of these procedures, to

receive payment of his salary and emoluments “until all the conditions set out in (his) contract of employment and/or disciplinary code are met”. Despite this clause being pivotal to his claim herein, the relevant page of the Code setting out these provisions was not attached to his founding affidavit. I accept for present purposes however that the clause says what he

says it says, albeit its relevance in establishing his contractual entitlement is left begging.[2]

[6] The Code also provides that appeals must be finalized within 30 days, failing which, in cases where the staff member is on precautionary

suspension, he must resume duties immediately and await the outcome of the appeal while on duty. The applicant says that he accordingly waited out the 30 day period and, on 2 May 2012, returned to work to resume his duties. Up until that point his salary was still being paid and he was regarded by the College as an employee pending the outcome of his appeal. He claims however that, instead of the College allowing him to resume his duties without hindrance, he was chased away by security guards and, an hour later, a notice was delivered to the union representing him to confirm that his appeal had been disposed of and that the termination of his services had received the formal endorsement of the College’s council.[3]

[7] A submission was thereupon made to the third respondent to the effect

that the applicant’s services and salary should be terminated, but both the district and provincial offices refused to do so unless provided with minutes and the attendance register confirming the resolution of the Council that it had in fact taken such a decision.

[8] This prompted an application by the first respondent to this court on an urgent basis seeking an order for the termination of the applicant’s services and that he be removed from the payroll of the College on the strength of the fact that the third respondent was in violation of a purported council resolution, which the principal claimed had been taken on 2 May 2012.

[9] On 16 August 2012, an order was granted by Ebrahim J in the absence of the applicant (with the consent of both the second and third

respondents), despite the fact that he had delivered a notice of intention to oppose those proceedings. Pursuant to the College’s success in the application on this basis, the date upon which the default judgment was granted was taken by it as the effective date of the applicant’s dismissal and the termination of his salary and acted upon for the College’s purposes of terminating the applicant’s employment with it. The order was ultimately rescinded by Stretch J on 24 March 2015, however, after she found that it had been obtained erroneously.[4]

[10] On 10 March 2016, after the judgment was rescinded, this court dealt with the merits of the College’s application. It found that at no point had the Council dealt with the applicant’s appeal and approved the termination of his services as the principal claimed had been done.[5]

[11] It is apposite to refer to an extract from the judgment of Malusi J in order appreciate its peculiar relevance to the applicant’s claim:

“The parties appear to be in agreement that the Council had the authority to adjudicate the appeal. The main dispute is whether or not the Council did consider the appeal…

In the founding affidavit Stofile (the head of the College at the time of the interdict application) categorically stated the Council dealt with the appeal and approval of the dismissal. The same sentiments were conveyed in the letter of dismissal given to the third respondent. It was on this basis that it was stated that the third respondent had been dismissed as he had exhausted his internal remedies …

In the answering affidavit the third respondent presented convincing evidence that Council had neither considered the appeal nor approved his dismissal. It is clear that Stofile appointed the appeal tribunal on his own. He was also the author of the letter dismissing the appeal and incorrectly stating that the Council had “approved” the dismissal. The Council had done no such.

So convincing was the answering affidavit that the applicant sought to change the basis of the alleged dismissal of the appeal in the replying affidavit. Ngubelanga (the then current principal of the college) asserted that Stofile had delegated authority and Council need not have been involved in the appeal. This was a new matter brought for the first time in a replying affidavit (the court ruled against including this new matter on the basis that it would prejudice the applicant. It added that the new matter also amounted to hearsay evidence…

Ngubelanga was not present in the college at the time of those events. No document has been attached to substantiate the new matter. A glaring omission in the reply is a confirmatory affidavit from Stofile. In the absence of first hand primary evidence from Stofile to underpin Ngubelanga’s assertions, they stand to be rejected.

It is thus clear that the third respondent’s appeal is yet to be considered by the Council. As such he has not yet exhausted his internal remedies. It was premature for the applicant to have approached the Court for the relief sought. The application has to fail.”[6]

[12] It is upon the basis of these remarks that the applicant seeks, by implication, to suggest that his dismissal was invalid or, conversely, that the order confirmed that he was entitled to be regarded as not removed from the payroll of the College and therefore still an employee. Hence he was supposed to be paid his salary.[7]

[13] Pursuant to what he regarded as an order in his favour by the dismissal of the first respondent’s application, the applicant purported to resume his duties on the understanding that his suspension had been lifted and that he was still an employee of the College and therefore entitled to have his salary reinstated. The College thought differently however and threatened him with arrest for trying to present himself and make his services available. Their attorneys also addressed a letter to him stating that “the court did not deal with (his) dismissal by the chairperson of the hearing”. This statement is correct. Indeed, Malusi J was astute to say in his judgment that:

“I have steered clear of pronouncing on the merits of the (applicant’s) dismissal by the presiding officer in the disciplinary hearing. That is not the issue before this court.”[8]

[14] As was to be expected, absent any relief in favour of the applicant flowing from the failed interdict application, when the applicant sought an order declaring the College to be in contempt of Malusi J’s order, Mbenenge J in a judgment dated 11 October 2016[9] concluded that the order relied upon by the applicant had not conferred upon him the right to seek the relief which he had sought

in that court. Indeed he found that:

“… the order relied on by the applicant, by its nature confers not on the applicant the right to seek the relief being sought in these

proceedings. There is nothing, from a reading of the order that the first respondent was required to do, which (it) has not done; the first respondent was not directed to pay the applicant his salary.”

[15] The applicant claims that in the contempt application he also sought an order directing the College to pay his salary with interest

retrospective to 16 August 2012. Whether he did or did not is unclear but, from a reading of the judgment, Mbenenge J remarked that the applicant had resorted to arguing such a case in the alternative, although he concluded that the papers did not make out a case for the grant of an order directing the College to pay him his salary even, under the guise of “alternative relief”.[10]

[16] On 9 January 2017, the applicant filed an application with the Supreme Court of Appeal for leave to appeal against the judgment of Mbenenge J, but withdrew it upon realizing that “it will not really deal with the issue of my termination of employment and salary”. The purported application forms the subject matter of the first respondent’s counter-application in the present application, which I deal with below.

[17] It is against this background and upon the pronouncement by Malusi J that the Council had not yet dealt with his appeal, that the applicant claims he should be put back in the position he was as provided for in clause 9.2.1 of the Disciplinary Code concerning the payment of his salary and benefits. In other words he remains an employee; his dismissal has not yet been endorsed and thus the College has the obligation to pay his salary retrospective to 16 August 2012, being the date upon which the College and the second and third respondents accepted, on the basis of default order by Ebrahim J, that the Council had in fact given the necessary approval in proper form to the effect that his services and salary should be terminated.

[18] I do not blame the applicant for assuming, based on Malusi J’s pronouncement of illegality in the process on the part of the

College, that this somehow had the effect of restoring the status quo ante. He is an unrepresented litigant and the import of my brothers’ comments concerning the College’s mishandling and misrepresentation of the matter are certainly damning and appear, despite the reservation expressed by the court that it was not dealing with the merits of his dismissal, to undo the premise which had gone before that his dismissal was believed to have been procedurally fair. I also do not condemn him for wanting to pursue a contractual entitlement on the basis that the proper procedures for confirming the recommended sanction of dismissal arising upon his internal disciplinary hearing, mandated by the Code, were flouted or found wanting. Ordinarily, that is his election, despite the fact that tailor-made rules and structures exists under the Labour Law dispensation to adjudicate an unfair dismissal.[11]

[19] But what he failed to state in his founding affidavit (probably because he regards it as irrelevant) is that long before Malusi J’s order was handed, he had already brought an application for arbitration to the General Public Services Sectoral Bargaining Council (“GPSSBC”) on the basis of his dismissal. An arbitration award was issued on 13 May 2013 consequent upon an enquiry to determine whether his right to fair labour practices had in the circumstances been compromised. The award concludes that “the dismissal of (the applicant) by Lovedale FET College on 28 March 2012 was for a fair reason and effected in accordance with fair procedures”.

[20] It is apparent from the arbitrator’s reasons that he was required to determine whether or not the dismissal of the applicant was both substantively and procedurally fair, or not. On the issue of the College’s failure to have effected the applicant’s dismissal in accordance with a fair procedure, the applicant had in that forum inter alia alleged, as he purports to do in the present application, that the decision to dismiss him was not endorsed by the College’s Council and that this rendered his dismissal procedurally unfair. Despite this, the applicant conceded during cross examination in that forum that:

“there is no need or requirement for Council to endorse a dismissal of an employee if Council has delegated those powers to the Principal who in turn has delegated his/her powers to the appointed chairperson.”[12]

[21] The applicant further admitted in that forum that the decision of the chairperson of the disciplinary enquiry was final.[13]

[22] The findings of the arbitrator obviously preceded the findings of Malusi J to the contrary that the Council had not endorsed the termination of his services and salary.

[23] The purport of the GPSSBC’s award is that the applicant was found to have been fairly dismissed by the College, both substantively and procedurally, with effect from 28 March 2012. The fact of the dismissal itself is also confirmed thereby, contrary to the applicant’s stance presently adopted that he has not been dismissed from the College’s employ.

[24] Pursuant thereto the applicant instituted review proceedings before the Labour Court to review it, registered under case number PR168/13. This application, according to the College, is still pending before that court and forms the basis for its formal plea.

[25] The requisites for a plea of Lis Alibi Pendens are that:

25.1 there must be litigation pending;

25.2 the other proceedings must be pending between the same parties or their privies;

25.3 the pending proceedings must be based on the same cause of action; and

25.4 the pending proceedings must be in respect of the same subject-matter. This does not however mean that the form of the relief claimed must be identical in both proceedings.[14]

[26] The applicant made vague reference in his founding affidavit to the existence of an arbitration award, a copy of which was only provided at the time of the filing of the College’s answering affidavit, but only to indicate that he had made a conscious decision upon delivery of the judgment of Malusi J to abandon these proceedings, on the basis of his belief that Malusi J had “confirmed that the employer/employee relationship (was) not terminated but persists between the College and (the applicant) as at 16 August 2012”. The applicant attached to his founding affidavit a letter addressed

to the registrar of the labour court dated 13 March 2017 (which bears no case number) in which he advises that the matter before that court has been “re-routed” to the College. Whilst this suggests a settlement of sorts, it is not unequivocally an abandonment of these proceedings and probably just as well for the applicant, given the view I take herein.

[27] This satisfies the first two requisites for the special plea referred to above. But are the proceedings based on the same cause of action? The applicant has steered away from asking for a declarator that the dismissal was invalid or unlawful for want of compliance with the provisions of the Code in breach of his employment contract, yet the relief he presently seeks has to be premised on something. Ostensibly, that something is the finding of Malusi J that the internal appeal process was tainted. The applicant simply assumes on this basis that he has not been dismissed and therefore

the question of lawfulness or fairness does not arise. However I cannot ignore that what underpins the relief sought by him

presently involves a scrutiny of the procedures whereby the applicant was dismissed, and the conclusion whether those procedures were compliant or not with the provisions of the Code even if under the mantle of a contractual or statutory breach. The very question of whether it was necessary for Council to have endorsed the applicant’s recommended dismissal to the chairperson vexed the GPSSBC as well and remains alive in the review proceedings before the Labour Court. Therefore the same subject-matter is common to that forum and to this court. The fact that the remedy sought in this application is different, does not detract from the central issue which is simply whether the dismissal was in compliance with the Code, whether invalid, or unfair. The cause of action to nullify the applicant’s termination in this court, by implication, or to pronounce on the fairness or otherwise of the applicant’s dismissal in the Labour Court in relation to the question whether the procedures adopted in dismissing him were compliant with the Code, are to my mind one and the same thing.

[28] But even if I am wrong in finding on the basis of the respondent’s assertion (despite the applicant’s claim to the contrary) that the review application before the Labour Court has not been abandoned but is extant, or that the circumstances justify a finding that the College’s plea of lis alibi pendens is a valid one, there remains a very real obstacle in the way of the applicant succeeding in the present matter.

[29] This is that the GPSSBC has found a termination of the applicant’s services in fact, and determined that the effect of the very dismissal in issue in these proceedings is that it was lawful, for a fair reason and in accordance with a fair procedure. This decision has the force of law and remains valid until set aside on review by the Labour Court.

[30] The applicant pleads that the award is irrelevant and of no effect on this court but he has, with respect, misconceived what the law provides in this regard.

[31] Section 51(8) of the Labour Relations Act, No.66 of 1995 (the “LRA”) provides that:

“Unless otherwise agreed to in a collective agreement, section 142A and 143 to 146 apply to any arbitration conducted under the auspices of a bargaining council.”

[32] Sections 142A and 143 – 6, such as are relevant to the present proceedings, in turn, provide as follows:

142A. Making settlement agreement arbitration award.—(1) …

(2) …

143. Effect of arbitration awards.—(1) An arbitration award issued by a commissioner is final and binding and it may be enforced as if it were an order of the Labour Court in respect of which a writ has been issued, unless it is an advisory arbitration award.

(2) ...

(3) An arbitration award may only be enforced in terms of subsection 1 if the director has certified that the arbitration award is an award contemplated in subsection 1.[15]

(4) ...

(5) ...

(6) ...

144. Variation and rescision of arbitration awards and rulings.— (not relevant)

145. Review of arbitration awards.—(1) Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award—

(a) …

(b) …

(1A) ...

(2) A defect referred to in sub-section (1), means—

(a) that the commissioner—

(i)(i) committed misconduct in relation to the duties of the commissioner as an arbitrator;

(ii) committed a gross irregularity in the conduct of the arbitration proceedings; or

(iii) exceeded the commissioner’s powers; or

(b) that an award has been improperly obtained.

(3) The Labour Court may stay the enforcement of the award pending its decision.

(4) If the award is set aside, the Labour Court may—

(a) determine the dispute in the manner it considers appropriate; or

(b) make any order it considers appropriate about the procedures to be followed to determine the dispute.

(5) …

(6) ...

(7) The institution of review proceedings does not suspend the operation of an arbitration award, unless the applicant furnishes security to the satisfaction of the Court in accordance with subsection 8.[16]

(8) Unless the Labour Court directs otherwise, the security furnished as contemplated in subsection (7) must—

(a) in the case of an order of reinstatement or re-employment, be equivalent to 24 months’ remuneration; or

(b) in the case of an order of compensation, be equivalent to the amount of compensation awarded.

(9) An application to set aside an arbitration award in terms of this section interrupts the running of prescription in terms of the Prescription Act, 1969, (Act No. 68 of 1969), in respect of that award.

(10) Subsections 5 to (8) apply to an application brought after the date of commencement of the Labour Relations Amendment Act, 2014 and subsection (9) applies to an arbitration award issued after such commencement date.

146. Exclusion of Arbitration Act.—The Arbitration Act, 1965 (Act No. 42 of 1965), does not apply to any arbitration under the auspices of the Commission.

[33] In casu the award has been afforded the status of an order of the Labour Court. It is an order which this court must respect and give effect to unless and until it is set aside. Therefore the fact of the applicant’s dismissal stands, as does the

determination that it was fair both substantively and procedurally (in respect of the applicant’s very point about the absence of Council’s approval of his dismissal), subject to it being set aside on review.

[34] Ms. Sephton, who appeared for the applicant, hoped to persuade me to gloss over the nuances of the enquiry before the GPSSBC by focusing on the later finding by Malusi J on the issue of the illegality in the College’s procedures in terminating the applicant’s

employ, which she suggested trumped or overrode the arbitration award because illegality underlies the termination and can never be countenanced. She also sought to impress upon me that what was before me was a simple application based on the applicant’s

contractual entitlement and that I should decide the matter without regard to the applicant’s rights to fair labour practices, and without regard to what has played out before in the LRA fora. She submitted that it was instead a simple matter of an invalid termination of the applicant’s services in breach of his contract, for want of complying with the College’s Code, a conclusion confirmed in effect by Malusi J’s finding that the Council had not endorsed the applicant’s dismissal. She referred me in this regard to Karen Steenkamp v Edcon Ltd,[17] in which the Constitutional Court distinguished a claim arising from a dismissal founded in contract from one arising under the LRA as follows:

“The common law which gives us the concept of the invalidity of a dismissal is rigid. It says that if a dismissal is unlawful and

invalid, the employee is treated as never having been dismissed, irrespective of whether the only problem with the dismissal was

some minor procedural non-compliance. It says that in such a case the employer must pay the employee the whole back-pay, even if,

substantively, the employer had a good and fair reason to dismiss the employee.”

[35] What this judgment also confirms in my view however is that, whilst a litigant has an election to pursue a claim based on a contractual entitlement (accepting the inflexibility which goes with that) rather than as a dispute which falls to be resolved under the dispute resolution provisions of the LRA, he stands or falls by that election.

[36] It would have been an entirely different matter if, before the applicant had made an election to refer a dismissal dispute to the GPSSBC, he had instead sought the contractual remedy he now seeks to assert. Having exercised his election to go that route, however, it culminated in an order declaring the termination of his services, under the same factual circumstances applicable in casu, to have been substantively and procedurally fair. That award stands, subject to it being set aside in the review proceedings which are pending in the Labour Court. He cannot now hop off the “LRA horse” (to use counsel’s analogy) and mount the “contractual horse” so to speak. He must finish the race on the horse on which he started.

[37] Neither does it avail the applicant to glibly assert that the effect of the finding of Malusi J, after the issue of the award, is that the applicant’s contract was never terminated (the purported termination being a nullity) and that there is no dismissal to speak of therefore. The fact is that the applicant complained to the GPSSBC of a dismissal, (which he claimed was unfair as opposed to an invalid one), the legal effect of which cannot be undone simply by the High Court co-incidentally pronouncing upon the unprocedural manner in which the applicant came to be dismissed in an unrelated interdict matter in which he was necessarily cited as a respondent for his interest in the matter. Even had the applicant pressed on with his counter-claim in the interdict application, however, the proverbial “LRA horse” had by then already bolted. The applicant is therefore limited to the remedies provided for in the LRA for unfair dismissal, assuming that the award is set aside.[18] If the College’s failure to have complied with the provisions of the Code (despite the concession which the applicant made in this regard at the bargaining council hearing against his interest) results in the Labour Court finding that the dismissal was procedurally unfair, then the ordinary dismissal provisions of the LRA, which the applicant has already invoked, will give him his remedy.

[38] Evening leaving aside the obstacle I have outlined above, the applicant has in any event failed to establish in my view the necessary premise for the relief he claims in these proceedings, i.e. an invalid or unlawful termination as a premise for his assertion that there was no dismissal. He cannot simply assume that the finding of Malusi J to the effect that the internal appeal process was tainted constitutes the proof in casu. The order of Mbenenge J should have made that plain to him. In fact he does not even seek a declaratory order herein, first and foremost, that his dismissal is supposedly invalid. The relevant provisions of the Code which purportedly provide for the procedure to be followed concerning Council’s necessary endorsement were not even placed before this court to determine the legal effect of the breach contended for. The applicant purported to assert that the Council has confirmed that he was never dismissed from employment, I assume in the interdict application, but that is not a finding I can make on the proven facts before me.

[39] That is of course not the end of the road for the applicant. Since the College asserts that the review proceedings are still alive and pending, he should seek the leave of the Labour Court to introduce new matter and amplify the grounds upon which he seeks to upset the award. Section 145(2)(b) provides another ground of review, to wit that the award has been improperly obtained. How this ground is different from what is provided for in sub-section (a) is explained in Moloi v Euijen and Others[19] thus:

“The grounds of review set out in the section distinguishes between misconduct by the commissioner (section 145 (a) (i) and the improper obtaining of an award as a separate ground of review (section 145 (2) (b)). In my view, the latter subsection contemplates a situation where the one party to the arbitration, through fraud or other improper means, obtains an award in his or her favour. This can be in the form of a bribe or by misleading and false or fraudulent representation which lead to an award being granted in that party’s favour.”

[40] In Shoprite Checkers (Pty) Ltd v Ramdaw NO and Others,[20] the court commented upon this basis for the review of an arbitration award as follows:

“Reverting to the general principles governing reviewability of awards the last situation is the case where an award has been improperly obtained… In my view, if one looks at the structure of section 33 (1) of the Arbitration Act it is clear that this head of review covers matter which relate primarily, if not entirely, to conduct on the part of the successful party to the arbitration which would justify the setting aside of the award. Thus an award procure through fraud or the subordination of perjury could be set aside on this ground.”

[41] I have every confidence that the applicant will obtain a remedy deserving of his impugned dismissal in the Labour Court forum that he first chose.

[42] Concerning the College’s counter-claim, it alleges that because the applicant served upon it the papers of a non-existent Supreme Court of Appeal application for leave to appeal against the judgment of Mbenenge J, it incurred legal costs as a result thereof. None of this is disputed by the applicant.

[43] Mr. Notshe, who appeared on behalf of the first respondent, submitted that these costs sought were not costs in the traditional sense. Instead the College had suffered damages because it had to incur legal expenses presaged on the assumption that it had a proper case to meet in the Supreme Court of Appeal.

[44] I am inclined to accept that the applicant’s conduct in serving a putative application for leave to appeal brought about the effect that the College was obliged to engage legal services in order to consider its position whether to oppose the application or not, and to take steps accordingly. The step it took, according to them, was to draft an answering affidavit. The applicant concedes without hesitation that he served an entirely abortive application on the College. These costs have not been quantified, but that is not a barrier to an order that the applicable is liable for whatever

costs the College may prove in due course. I imagine that a taxation on a non-litigious basis may provide a reasonable estimate

of what costs the College would have incurred in opposing the application, but for the fact that it turned out to be a fictitious

one.

[45] There is one final question and that concerns who should bear the wasted costs of the proceedings on 10 August 2017. It appears that when Stretch J’s clerk called to enquire from the College’s attorneys on 10 August 2017 why their client’s heads of argument had not been filed in time for the hearing before her, they claimed to have been unaware of the set down.[21] In an affidavit deposed to by Mr. Majeba acting on behalf of the College on the issue of the determination of the reserved costs (delivered after the matter was postponed), he criticizes the applicant for not having set the matter down properly.

[46] A look at the file reveals that a case management directive was issued on 8 May 2017 pointing out that the answering affidavit was not in the court file, but giving the registrar leave to allocate a date for the hearing of the matter once this pleading had made its way onto the court file; the applicant had bound, indexed and paginated the court papers; and filed his heads of argument. These steps were evidently followed but, only the index to the application bears proof of receipt by the College.

[47] It is further evident from correspondence exchanged with the registrar in this connection that the latter had agreed to allocate the date in contention, but no customary copy of this official allocation is in the file.[22]

[48] The applicant asserts instead - in an affidavit filed in response to Mr. Majebe’s, that the respondents were indeed given notice of the set down (he does not state in what document this information was communicated to them), and that he served a notice in terms of Rule 15A on them as well.[23] The latter notice reflects no proof of receipt in itself,[24] and the supposed email (Annexure “D”) concerning the subject : “Notice” dated 11 July 2017 at 3.45pm addressed

to the registrar, merely states “Please find the attached as per my previous email”. What was attached is not

clarified. The communication is to “ReceptionDMATT” but there is no indication what relevance this bears to the fact sought to be proved. The email address of the College’s attorney’s stated in the notice in terms of Rule 15A is dmatt@mweb.co.za.

[49] Given the absence of unequivocal proof of service of a supposed notice advising of the set down, and the fact that the court file bears no official notice of allocation of a set down, I am obliged to accept the College’s assertion that it was indeed unaware of the set down.

[50] But that is not the end of the matter. The registrar appears to me to be at fault for not having issued out the formal notice of allocation of set down, according to the practice of this court, which serves the function of advising all the parties of the date allocated at the request of whichever party has initiated this. Had he done so, the first respondent would certainly have come to know, from this source, that the matter was indeed enrolled for hearing. The applicant himself is not liable to give notice in writing of the set down on the date reserved by the registrar until such time as he has himself received the official notice, so he is not at fault in my view for not having served a notice of set down proper on the College.[25]

[51] In all the circumstances I consider it appropriate that no order be made in respect of the reserved costs of 10 August 2017. It is unfortunate that things went so wrong concerning the set down, especially since the applicant is, or at least was at the time of applying for a date in terms of rule 6(5)(f)(ii), an unrepresented litigant. At worst for the College, which had not filed heads of argument and therefore could not have expected the matter to proceed on that date, the only costs incurred by it would have entailed the briefing of junior counsel to attend to the postponement.

[52] In the result I issue the following order:

1. The applicant’s application is dismissed, with costs.

2. The applicant is liable for whatever costs the first respondent may in due course prove arising from the first respondent

3. ’s service on it of a putative application for leave to appeal to the Supreme Court of Appeal against the judgment of Mbenenge J, dated 12 October 2016.

4. There will be no order as to costs concerning the reserved costs of 10 August 2017.

B HARTLE

JUDGE OF THE HIGH COURT

DATE OF HEARING: 7 September 2017

DATE OF JUDGMENT: 19 October 2017

Appearances: For the applicants : Ms. S Sephton Instructed by Z Y M Ndzabela Inc. c/o S Z Sigabi & Associates, King William’s Town (ref. Mr Ndzabela). For the respondents : Mr. V Notshe SC Instructed by Dyushe Majebe Attorneys c/o Mlonyeni & Lesele Inc., King William’s Town ( ref. Mr Majebe/LIT 129).

[1] The applicant alleges that the chairman who presided at this hearing, Mr. Mrwebi, was prejudiced against him. He produced a transcript of the proceedings in which a conversation was caught between the latter and persons representing the College. The comments he allegedly made (according to an uncertified English translation of the record which is in isiXhosa) certainly indicates that the arbitrator had made up his mind that the services of the applicant would be terminated and indeed suggests a bias against him as asserted by the applicant. It is not clear when the transcript came to hand and/or if the applicant has disclosed it before. The College has neither admitted nor denied the allegations made in this regard, simply pleading that these assertions are irrelevant to the application because of the preliminary point it has taken. Whilst the indication that a conspiracy in the disciplinary hearing was underway is startling and should be investigated, I have to agree that it has no relevance for present purposes given the view I take herein. However, it is certainly hoped that the Council will make a proper enquiry concerning this assertion which places the College in a most unfortunate light.

[2] The absence of the page also impacts the applicant’s argument that the College’s failure to have complied with the relevant provisions of the Code rendered his dismissal a nullity, or invalid, or in breach of his employment contract.

[3] “Council” is defined in the Code as meaning the governing structure of Lovedale PFET College. It is not exactly clear what the Council was required to do after the sanction of dismissal was recommended in terms of the Code, or why the procedure it adopted on appeal, or did not, fell short.

[4] The judgment was not attached, but is reported by SAFLII under reference (379/12) [2015] SAECBHC 26 (24 March 2015)

[5] According to the judgment, the matter before Malusi J concerned “an application for an interdict to compel the first and second respondents to remove the (applicant) from the payroll system of the (College) and not to pay him any further salary”. This court was not privy to the papers filed in that matter, except for the judgment.

[6] Paragraphs 27 – 32 of the judgment.

[7] He does not in fact seek an order declaring his dismissal be invalid for want of the College complying with the relevant provisions of the Code, whatever these may be, or breaching his employment conditions.

[8] The College’s point in limine in the application before Malusi J, namely that “there had been an arbitration where the dismissal was confirmed” appears to have been given short-shift by the court. I glean that its impact was not considered in the overall context and probably because the focus was on the relief sought by the College. It is a pity because the applicant’s attention might then have been drawn to the consequence of his choice of forum and the fact that he was precluded from vindicating his dismissal in the High Court.

[9] (282/2016) [2016] ZAECBHC 10.

[10] This wrong-footed approach demonstrates how disadvantaged the applicant was as an unrepresented litigant. He tried unsuccessfully to bring “his” issue before Stretch J and she ruled that it had no place in the rescission application. It was also not dealt with in the interdict application, hence the disconnect Mbenenge J identified.

[11] Gcaba v Minister of Safety and Security 2010 (1) SA 238 (CC). Ironically in Steenkamp v Edcon, referred to in paragraph [34] of this judgment, the court noted that there was no place, in the context of retrenchment procedures falling foul of the provisions of section 189A(8) of the LRA for want of giving notice prior to retrenchment, for an “invalid dismissal” under the mantle of the LRA, and that the applicants could not assert a common law remedy for such an invalid dismissal in that forum. Although Cameron J held in the minority judgment that the dismissals in breach of section 189A were invalid, but still fell to be remediated under the LRA rather than in contract or upon review, the judgment in a sense confirms that an employee in the situation of the applicant, and complaining of a nullity or breach of contract, would be entitled to come to this court to have such a claim adjudicated. Indeed it would be the proper forum, unless he was pursuing a remedy under the LRA.

[12] Evidently this concession was made against the applicant’s interest, regard being had to what Malusi J found concerning the flawed endorsement process.

[13] Paragraph 6.3 of the Code provides that if the chairperson is an arbitrator appointed by the relevant Sectoral Bargaining Council

then his decision is final and binding and not appealable. It is only open to review in terms of the Labour Relations Act. Evidently the chairperson was not an arbitrator because the College thereafter purported to entertain the applicant’s internal appeal against his finding and sanction. A referral to the General Public Services Sectoral Bargaining Council also followed,

which would have entailed a hearing de novo. This concession can therefore be of no consequence.

[14] Amlers Precedent of Pleadings, Sixth Ed, pg 227 – 9.

[15] It was not alleged that the award was not certified. I assume that it was, since the matter has gone on review.

[16] In casu, the effect of the award is that the dismissal in fact happened and was determined to have been fair in all the circumstances.

This is the prevailing effect unless and until the award is set aside on review.

[17] 2016 (3) SA 251 CC.

[18] Section 145(4) of the LRA.

[19] [1997] 9 BLLR 1022 (LC).

[20] [2000] 7 BLLR 835 (LC) at [54].

[21] Stretch J was the duty judge when the application was set down for hearing on the opposed motion court roll of 10 August 2017.

[22] I have ascertained via my clerk that the Registrar had resolved to allocate the matter on the opposed roll on 10 August 2017, but for some or other reason, however, there is no copy of the confirmation saved, even electronically.

[23] The rule 15A notice does not serve the function of a notice of set down, neither is it in fact required to be delivered. Rule 15A(a) of the Joint Rules of Practice merely requires such notice (concerning whether the matter will in fact be argued) to be given to the registrar in writing by no later than noon two days before the day of the hearing.

[24] Whilst its assumed service on the respondents may have prompted a realization that the application was in fact enrolled and have

attracted a burden on them to explain why they paid it no heed, the question does not arise in this instance because it does not appear that the notice was indeed served on the first respondent.

[25] See Rule 6(5)(f)(iii) which obliges the party who applied for a date to be allocated to give written notice of the date allocated by the registrar within five days of such notification from the registrar.