Emfuleni Local Municipality v Radebe and Another (J 1461/2022) [2023] ZALCJHB 21 (21 February 2023)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

THE LABOUR COURT OF SOUTH AFRICA,

JOHANNESBURG

Not Reportable

Case No: J 1461/2022

In the matter between:

EMFULENI LOCAL MUNICIPALITY

Applicant

And

RADEBE: EDWARD

First Respondent

SHERIFF, VANDERBIJLPARK

Second Respondent

Heard: 10 February 2023

Delivered: 21 February 2023

(This judgment was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 21 February 2023.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant (to which I shall refer as ‘the municipality’) seeks to rescind an order granted by this court on 25 October 2022.

[2] The application has its roots in an arbitration award issued on 24 November 2018, under the auspices of the bargaining council for the local government sector. The award was issued in favour of the first respondent (the employee), in the absence of the municipality. The municipality sought to rescind the award by way of an application dated 14 December 2018. On 17 March 2019, rescission was refused on the basis that the application had been filed out of time.

[3] On 10 September 2019, the municipality filed an application in this court under case number JR 2012/2019 to review and set aside the arbitration award, and also the rescission ruling. The application was filed some 10 months out of time, and the municipality seeks condonation for the late filing. On 5 November 2019, the employee delivered a notice of his intention to oppose the review application. On 24 January 2020, the bargaining council confirmed that it had delivered the record of the arbitration proceedings to the registrar and intended to abide by the decision of the court. On 4 March 2020,

the municipality advised the employee in terms of Rule 7A (8) that it would not be delivering a supplementary affidavit. On 10 March 2020, the employee’s attorney wrote to the municipality’s attorney stating that the Rule 7A (8) notice was premature, because the record had not been filed. The municipality states that the record was delivered ‘during March 2020’. The papers indicate however that a transcribed record was filed only on 12 June 2020.

[4] On 30 March 2020, the employee delivered an answering affidavit in opposition to the municipality’s review application. In the affidavit, the employee took the point that the municipality had failed to deliver the completed record, the bundle of documents submitted to the arbitrator having been omitted. On 6 April 2020, the municipality delivered a replying affidavit and in addition, delivered the outstanding parts of the record.

[5] On 17 December 2021, the employee filed an application in terms of Rule 11, seeking to dismiss the review application for want of compliance with the Practice Manual. In the founding affidavit, the applicant makes reference to clauses 11.2.2 and 11.2.3 of the Practice Manual, which provide that a failure to deliver the record of the proceedings under review will render the review application to be deemed to have been withdrawn. The application was addressed to “Emfuleni Local Municipality” and according to the service affidavit deposed to by the employee’s attorney, was served by email, on 8 December 2021, under cover of a letter, to J[...].

[6] The Rule 11 application was re-served by the deputy sheriff on 2 June 2022 on a Ms Twala, the municipal manager’s personal assistant. On 7 June 2022, the employee’s attorneys served, by email, the employee’s heads of argument in the Rule 11 application. It is not in dispute that the municipality failed to file a notice of intention to oppose and an answering affidavit.

[7] On 14 July 2022, the registrar issued a notice of set down in respect of the Rule 11 application. The notice was addressed to the employee’s attorney (whoacknowledged receipt) and to the municipality by email at ‘J[...]’.

[8] On 11 August 2022, the municipality’s current attorney of record wrote to the employee’s attorney advising that he had been instructed to act on behalf of the municipality, and to take over the matter from its previous attorney of record. A notice of appointment as attorney of record was delivered with the letter. The letter further advised that the newly appointed attorneys had visited the court with the view to establishing the status of the matter, and had been advised that the file was missing. The attorney requested advice of the status of the matter ‘so that we may be in a position to advise our client and take instruction’. The employee’s responded on the same day advising that the file had been uplifted to apply for a hearing date and left in the possession of the clerk concerned with the allocation of dates.

[9] The employee’s attorney enrolled the Rule 11 application for hearing on 25 October 2022, when the order that is the subject of the present application was granted, in the absence of the municipality. The employee avers that the municipality’s attorneys of record were provided with the Rule 11 pleadings and set down notice on 11 August 2022. The municipality denies this averment and states that the municipality and its representatives did not receive the notice

of set down.

[10] The applicant relies on Rule 16A(1)(a)(i) to contend that the order ought to be rescinded. That Rule provides that the court may, of its own motion on application, rescind or vary any order or judgment erroneously sought or erroneously granted in the absence of any party affected by it. It is not incumbent on an applicant in these circumstances to show good cause for rescission (see F&J Electrical CC v MEWUSA [2015] 5 BLLR 453 (CC)). Although the requirements of absence and error are discrete, a judgment is granted erroneously where any required notice of the proceedings is not given.

[11] I will accept, in the municipality’s favor, that the order was granted in its absence, at least in the sense of its physical absence. Mr Maluleke, prepared for the employee, contended that it was not open to the employee to rely on the municipality’s physical absence in circumstances where it was aware of proceedings but elected not to appear at the hearing. I accept that the issue of presence or absence has little to do with actual, or physical, presence and everything to do with ensuring that proper procedure is followed so that a party can be present. However, on the facts, it does not seem to me that this is a matter (contra. Zuma v Sec. of the Judicial Commission of Inquiry into Allegations of State Capture,

Corruption and Fraud in the Public Sector including Organs of State 2021 (11) BCLR 1263 (CC)) where it has been established that the municipality, having the requisite notice and knowledge of the proceedings, made an election not to participate. The question then is whether the factual circumstances on which the municipality relies can be said to give rise to an error as contemplated by Rule 16 and if so, whether the order was erroneously granted because of it.

[12] The municipality relies in essence on the averment by its attorney that ‘our office including myself did not receive from the First Respondent’s representatives, the notice of set down, albeit, my office was not provided with the complete documents from my client and this included the notice of set down allegedly served on the municipality itself’. And further, that the employee’s attorney ‘had a duty to advise me and our firm on behalf of the Municipality the notice of set down and provide us with the complete and full status of the matter and not only state that the file was left with the Registrar for the allocation of dates’. This attempt to cast the blame on a colleague in circumstances where there is no explanation for what appears to be a manifest failure to secure proper instructions, is nothing less than disingenuous.

[13] This submission overlooks the fact that it was not incumbent on the employee’s attorneys, other than as a matter of courtesy, to furnish the municipality’s attorney with a copy of the papers. The review had been filed by the municipality – no explanation has been proffered as to why the municipality had no records of its own, and why it could not furnish its attorneys with proper instructions. The Rule 11 application had been served in accordance with the Rules (by deputy sheriff, on the municipal manager’s personal assistant). The municipality does not dispute that the application was served. In so far as the notice of set down is concerned, the deponent’s denial that the recipient did not have sight of the email rings hollow in the face of the averment in the replying affidavit to the effect that ‘to the extent that the municipality received the notice of set down from the registrar, it was incumbent on the representatives of the first respondent to advise and assist the municipality’s representatives when they were appointed and sought assistance and clarity which was never provided.’

[14] More fundamentally, what the municipality describes is nothing more than its own ineptitude, and not a mistake in the proceedings. However, the municipality describes what happened, there was no a procedural irregularity or mistake in respect of the issuing of the order. It is thus not possible to conclude that the order was erroneously sought by the employee, or erroneously granted by the court.

[15] To the extent that the municipality submits that the order was erroneously grounded because the review application was ripe for hearing, there is no merit in this submission. The status of the review application does not preclude a court from entertaining an application in Rule 11, as was the case in the present instance, seeking to have the review application dismissed on account of a failure to comply with the Practice Manual as it relates to the filing of the record of the proceedings under review.

[16] The municipality has thus failed to establish that the order was erroneously granted. The application for rescission thus stands to be dismissed.

[17] Finally, insofar as costs are concerned, the employee is the beneficiary of an arbitration award granted in his favour in December 2018, more than four years ago. The review application, issued in September 2019, way out of time and prosecuted with less than the required degree of diligence, has been dismissed. The employee has been obliged to incur the costs of opposition to an application which is devoid of merit. For the purposes of section 162 of the LRA, the requirements of the law and fairness are best served by ordering the municipality to bear the costs of these proceedings.

I make the following order:

1. Application is dismissed, with costs

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv M E Sithole

Instructed by:

Madhlopa & Tenga Inc

For the Respondent: Adv M Maluleke

Instructed by:

Malebogo Maeyane Attorneys