Gauteng Department of Health v Siavhe NO and Others (JR3173/12; J2349/11) [2016] ZALCJHB 393; [2017] 2 All SA 665 (GJ) (7 October 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: JR 3173-12 & J 2349-11

In the matter between:

GAUTENG DEPARTMENT OF HEALTH First Applicant And JOHN M SIAVHE N.O First Respondent PUBLIC HEALTH AND SOCIAL DEVELOPMENT SECTORAL BARGAING COUNCIL Second Respondent DR. KIMWANA NAKEYA Third Respondent

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

LAGRANGE J

[1] This is an application for leave to appeal against a judgement in which the applicant's review application was dismissed because the late filing of the application was not condoned. The arbitration award which was the subject matter of the review application was also made an order of court.

[2] The condonation application was dismissed on the basis that there was nothing approaching an adequate explanation provided by the applicant for either the delay in filing the initial application which was over 5 1/2 months late or the delay of more than 3 1/2 years in filing the condonation application.

[3] In keeping with the previous pattern of conduct, the application for leave to appeal was also out of time though, at least on this occasion it was only six days late. As any prejudice that could have been occasioned by this delay is negligible, I am inclined to grant condonation for the late filing of the application for leave to appeal.

The applicants ‘core’ ground of appeal

[4] The applicant’s primary ground of appeal is that the court erred because although I found that the application for condonation

should be dismissed for the reasons summarised above, since I had found that there might have been some merit in the applicant's

grounds of review relating to the lesser charges against the third respondent and because I had expressed misgivings about the third respondent's conduct, public interest considerations should have outweighed the applicant's abject neglect.

[5] This ground of appeal overlooks some important issues. Firstly, in relation to the serious charges against the third respondent which could have warranted dismissal, I was satisfied that the review of the arbitrator's findings on those charges was unlikely to succeed. The applicant cannot now appeal to issues of public interest when it failed to make out a better case in the original arbitration hearing which was the primary forum for it to the dismissal. Secondly, if the applicant is truly so concerned about the alleged public interest implications of reinstating the third respondent that deep concern was not reflected in its preparation of the case against the third respondent or in its conduct of the conduct of the review proceedings. It is disingenuous of the applicant to now complain that the court did not take the issue seriously when it never did so itself at the time it should have. In any event, and most importantly, albeit that my observations on the merits of the grounds of review were, strictly speaking, obiter there seems to be no justification had condonation being granted for setting aside the arbitrator's findings on the more serious charges which might have justified the third respondent's dismissal. Consequently, even if the merits of the grounds of review had been a factor, the only ones that would have been relevant were the ones relating to the lesser charges that would not have warranted dismissal but might have warranted some lesser form of action. Therefore there is little likelihood that even if condonation had been granted that it would have prevented the reinstatement of the third respondent, though perhaps subject to a final written warning for the lesser misconduct he ought to have been found guilty of.

[6] In the result, I am not persuaded that there is a reasonable prospect that another court would excuse the applicant’s unjustified delays in the prosecution of the review application on the basis that the merits of the review and the public interest issues raised outweigh its negligence.

[7] I should also mention that the applicant’s reliance in support of this ground of appeal on the judgment of the Labour Appeal Court in South African Post Office Ltd v Commission for Conciliation Mediation and Arbitration and Others[1] does not lend support to its argument in my view. The only proposition of principle it seeks to draw from that judgment is where

the court stated:

“[17] The rules that regulate proceedings in this court provide that if an appellant fails to file the record for the appeal within the time prescribed, it is deemed to have withdrawn the appeal.

This court has a discretion when deciding to condone the late filing of the record or any other pleading or document. In exercising that discretion the court must consider a number of factors, namely: the degree of delay and the reasons or explanation for the delay; the prospects of the party seeking the indulgence succeeding in its claim or defence; the prejudice that the parties will suffer if condonation is granted or refused; and finally, whether it is in the interest of justice to grant the condonation sought.”[2]

[8] In the Post Office case, the court explained when the interests of justice might be decisive despite the explanation and degree of delay, though I note that in that matter the court felt that much of the delay had been explained:

“[41] The interest of justice is not a vague and catch-all phrase that may be latched onto in order to justify one's own feeling of the inequity that may result if there is no interference from the court. This factor must be utilized only where the absence of interference by the court would offend one's sense of justice. In the matter of NEHAWU, if the applicant was not granted condonation, it would not have been able to air an important issue of black staff not being allowed to mind A white children, which goes against the constitutional imperative of equality to which all South Africans are bound. This case, though not in a similar league, if allowed to stand makes nonsense of an employer's right to set minimum and functional standards for each position it wants to fill. Furthermore it is not for a commissioner, in matters such as this, to appoint a person to a post who only qualified for the post by making untrue claims in her application. In the circumstances, and also for reasons set out earlier, I am of the view that it is in the interest of justice to grant the indulgence to reinstate the appeal, and to condone the late filing of the power of attorney to prosecute the appeal and the heads of argument. “[3]

[9] The difficulty with applying this proposition to the matter at hand is that it presumes that, but for the condonation application being refused, it did have reasonable prospects of succeeding in setting aside the arbitrator’s findings relating on the serious alleged misconduct of the third respondent’s which potentially raised public interest issues and would have warranted his dismissal if he had been found guilty of them. For the reasons mentioned in my judgment, it appeared very unlikely that the applicant would have succeeded on the merits in any event. Consequently, I am not persuaded that there is a reasonable prospect another court would find that the applicant had a reasonable chance of succeeding in setting aside the findings relating to serious dismissible misconduct.

Other grounds of appeal

[10] The applicant also appeals against the cost order and the fact that the arbitration award was made an order of court, but did not advance any argument as in support of these grounds of appeal in its submissions which focused on what it characterised as its core ground of appeal that I have dealt with above.

[11] In the circumstances I am satisfied that there is no reasonable prospect that another court would come to a different decision.

Order

[12] The applicant's late filing of its application for leave to appeal is condoned.

[13] The application for leave to appeal is dismissed.

[14] The applicant must pay the third respondent's costs in the application for leave to appeal excluding his costs incurred in

opposing the condonation application.

_______________________

Lagrange J

Judge of the Labour Court of South Africa

(In Chambers)

7 October 2016

[1] (2011) 32 ILJ 2442 (LAC) (3 August 2011)

[2] At 2447

[3] At 2553-4