Hospersa obo Blandile v Department of Health-Western Cape and Others (D816/2015) [2024] ZALCD 3 (18 January 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Case No: D816/2015

Not Reportable

In the matter between:

HOSPERSA obo BLANDILE T.S.

Applicant

and

DEPARTMENT OF HEALTH - WESTERN CAPE

First Respondent

PHSDSBC

Second Respondent

COMMISSIONER A.E.C.REYNOLDS N.O

Third Respondent

Heard: 10 August 2023

Delivered: This judgment was handed down electronically by circulation to the parties and / or their legal representatives by email. The date and time for handing-down is deemed 14h00 on 18 January 2024.

JUDGMENT

ALLEN-YAMAN J

Introduction

[1] On 26 July 2015 the third respondent handed down an award in which he found that the dismissal of the applicant member, Mr T S Blandile ('the employee') had been substantively fair. Some nine months later the applicant initiated its review application, having asked that it be granted condonation for the delay. Subsequent failures in the timeous prosecution of the review application led to the consequences arising therefrom in accordance with the Practice Manual, which resulted in the applicant initiating a reinstatement application. Pursuant to a change in the applicant's attorneys of record, its initial reinstatement application was withdrawn and a second reinstatement application was brought. The first respondent has opposed the granting of the relief sought.

Background

[2] The employee was called to a disciplinary hearing on 28 August 2014 to answer ten allegations of misconduct in the form of insubordination, the refusal to have carried out a lawful instruction, and having been absent from duty without permission. Having concluded that the employee was guilty of each of the acts of misconduct alleged, the presiding officer imposed the sanction of dismissal on 9 September 2014. The employee exercised his right of appeal, however, this did not affect the decision previously taken, which was made final when the appeal authority's decision was handed down on 13 October 2014.

[3] The following day the applicant referred a dispute to the second respondent in which he challenged the fairness of the employee's dismissa. Pursuant to the dispute having been conciliated without resolution on 1 December 2014, he requested that it be arbitrated.

[4] The third respondent arbitrated the dispute over a period of four days, which concluded on 3 July 2015. He found that the employee had been guilty of the first three and the fifth charge, but exonerated him of wrongdoing in respect of the remainder. Notwithstanding that the third respondent had found that the employee had committed only a portion of the misconduct for which he had been dismissed, he nonetheless found that the sanction of dismissal had been fair, and dismissed the applicant's dispute.

[5] The Legal Service Department of the applicant trade union, hereinafter referred to as HOSPERSA, received an instruction by its Western Cape branch to review the award on 2 September 2015. That instruction was conveyed to the applicant's erstwhile attorney of record, Mr Ntlokwana, the same day, although the review application was only initiated some seven months later, on 6 April 2016.

[6] The registrar of this court delivered a Notice in terms of Rule 7A(5) on 11 April 2015, under cover of which a bundle of documents and a compact disc was made available to the applicant.

[7] The transcription of the oral evidence was attended to, was received by the applicant's attorneys on 20 October 2016, and was served on the first respondent's attorney on 7 December 2016. Thereafter, on 22 March 2017, a portion of the documentary record was served on the first respondent. The first respondent observed that the applicant had failed to deliver the complete documentary record which it then did on 26 June 2017.

[8] Notwithstanding that the record had not then been complete, the applicant delivered a Notice in terms of Rule 7A(8)(b) on 7 June 2017. Apparently having had a change of heart some two years later, the applicant delivered a Notice in terms of Rule 7A(8)(a) on 15 October 2019, together with a supplementary founding affidavit.

[9] The first respondent, by way of delivery of a Notice of Objection and a supplementary answering affidavit in October 2019, its original answering affidavit having been delivered on 20 June 2017, objected to the late delivery of the applicant's original Notice in terms of Rule 7A(8)(b), and took issue with the delivery by the applicant of a subsequent Notice in terms of Rule 7A(8)(a) in circumstances in which it asserted that the applicant had already acted under Rule 7A(8) on

7 June 2017 by which the applicant had then made its election to stand by its Notice of Motion, and not to supplement its founding

affidavit.

[10] The applicant delivered its replying affidavit in May 2022 which too was met with a further Notice of Objection by the first respondent, the replying affidavit having been delivered outside the time frames permitted therefor. In the same month, the applicant initiated its first reinstatement application, which was opposed by the first respondent.

[11] The applicant terminated the mandate of its former attorneys of record in July 2022, and the applicant's present attorneys of record were appointed as such at the end of August 2022.

[12] The applicant's attorney commenced an investigation concerning the status of this matter in order to establish what, if anything, was required to be done. Having gleaned what information could be discerned from the previous attorney's file, HOSPERSA's file and the court file, he caused the present re-instatement application to be initiated on 17 March 2023, and caused the first re-instatement application to be withdrawn on 7 July 2023.[1]

Analysis

[13] The applicant has sought an order in the following terms,

'1. That the late delivery of the record of the arbitration proceedings, and all the necessary papers I notices in the review application be condoned.

2. That the review application be removed from the archive, and reinstated.'

[14] That such relief is necessary is evident by virtue of the numerous failures on the part of the applicant to have complied with the time frames prescribed for the prosecution of review applications in the Practice Manual and the consequences which ensue therefrom, and its further failures to have complied with the Rules of this court.

[15] The applicant did not, in its affidavits, particularise the period of each delay, having sought to explain virtually the entire period by way of ascribing the blame therefor to its previous attorney. It was the applicant's case that it had been the inexplicably negligent prosecution of the review application by that attorney which had led to:

• The delay in the delivery of the record (by a period of some eight and a half months),

• The delay in the delivery of the Notice in terms of Rule 7A(8)(b) (by a period of some two months), alternatively,

• The delay in the delivery of the delivery of the Notice in terms of Rule 7A(8)(a) and supplementary founding affidavit (by a period of some two and a half years),

• The delay in the delivery of the replying affidavit (by a period of some two and a half years), and

• Its failure to have prosecuted the review application within a period of 12 months (it having taken a period in excess of five years for the pleadings to have reached a state of completion).

[16] The Labour Appeal Court, in finding that a re-instatement application is akin to a condonation application, established the test to be applied in such applications in Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC) in the following terms,

'In essence, an application for the retrieval of a file from the archives is a form of an application for condonation for the failure to comply with the court rules, time frames and directives. Showing good cause demands that the application be bona fide; that the applicant provide a reasonable explanation which covers the entire period of the default; and show that he/she has reasonable prospects of success in the main application, and lastly, that it is in the interests of Justice to grant the order.’[2]

[17] Such test largely accords with that which is required to be established in condonation applications, save that the threshold applicable in reinstatement applications regarding the establishment of prospects of success is less onerous than that which is applied in condonation applications, as was identified in Melane v Sanlam Insurance Co Ltd 1962 (4) SA 531 (A),

'Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success and the importance of the case. Ordinarily these facts are interrelated, they are not individually decisive, for that would be a piecemeal approach

incompatible with a true discretion, save of course that if there are no prospects of success there will be no point in granting

condonation. What is needed is an objective conspectus of all the facts. '[3]

[18] This court will accordingly consider, firstly, the delay in the delivery of the record and, secondly, the delay in the prosecution of the review application itself.

[19] By virtue of the delivery of the registrar's Notice in terms of Rule 7A(5) on 11 April 2016, the applicant was required to have delivered the record on or before 8 July 2016. For reasons which are entirely unexplained, the complete record was only delivered on 26 June 2017 and then, only when the first respondent served the documentary evidence which had been relied upon by the parties at the arbitration on the applicant, the applicant having failed to have done so. There is no evidence before this court of the applicant ever having delivered the record under cover of a Rule 7A(6) notice, having served the portions of the record previously mentioned in two tranches under cover of ordinary filing notices. Be that as it may, the first respondent took no issue with the informality of the applicant's approach, and the applicant delivered its Notice in terms

of Rule 7A(8)(b) on 7 June 2017.

[20] Assuming that the applicant's delivery of the documentary portion of the record upon which it relied had been properly effected on 22 March 2017, in circumstances in which the transcript had been delivered on 7 December 2016, the period of the delay was some eight and a half months.

[21] The transcriber's certificate reflected that the transcription of the oral evidence had been completed on 19 October 2016, in circumstances in which this court is unable to determine when the transcriber had been requested to attend to this task, the date of such request not having been disclosed to this court. On the assumption that the request had been made timeously, on 24 April 2016, as had been conveyed to HOSPERSA by its previous attorney and recorded in the document relied on by the applicant, being its 'Telephone and Correspondence Log', there was simply no reason for the applicant's failure to have delivered the transcribed record within a short period of time after it had been completed. There is equally no reason for the applicant's omission to have delivered the documentary portion of the record contemporaneously with the transcription.

[22] There is also no discernible reason for the applicant's failure to have prosecuted its review application timeously. Having initiated its review application on 6 April 2016, it failed to take a single, further step within the time frames permitted. This included the delivery of the record, its notice in terms of Rule 7A(8)(b), a subsequent Notice in terms of Rule. 7A(S)(a) and supplementary

founding affidavit, as well as its replying affidavit.

[23] As with the late delivery of the record, the applicant seeks to place the blame for the various failures to have prosecuted the review application timeously at the door of the attorney,

'The applicant and its individual member are not the cause of the improper prosecution of this matter.

The fault likes squarely at the feet of Ntlokwana, who was relied upon to prosecute the matter in a professional way.'

[24] That neither HOSPERSA nor the employee were actually at fault in that it cannot be said that the conduct of either resulted in any of the delays is undoubtedly correct, however that is not the end of the enquiry. The further issue which arises is whether his negligent conduct should be imputed to the applicant.[4]

[25] Whilst the applicant asserted that its previous attorney's tardiness should not be attributed to it in any way, the first respondent disagreed. The applicant did not, in reply, refute the basis upon which the first respondent asserted that the imputation of liability to the applicant should follow,

'The applicant is a trade union with substantial resources and expertise within its organisation and I or within its immediate beck and call. The applicant is not an impecunious and unsophisticated individual for whom some measure of sympathy could be given for the purported tardy conduct of its attorney.'

[26] The evidence before this court does not demonstrate that HOSPERSA was faultless, it being apparent that there were numerous occasions where it, as a well-established trade union with its own Legal Services department, ought to have taken action, but did not:

• As was indicated in its own Telephone and Correspondence Log its officials had been made aware that the record had been made available to attorney by this court on 25 April 2016, but failed to question the subsequent delay in the delivery thereof;

• In the same document, its officials were informed in July 2017 and again in December 2017 that the attorney was in the process of 'assessing' the filing of a replying affidavit, and yet no affidavit was prepared until May 2021, during which time HOSPERSA took no steps to ensure that this was done;

• During the period April 2017 until March 2019 the notes record only that updates was awaited from the attorney, with no indication that any were actually being given by him;

• On 31 August 2018 a note was made recording the intention of the author thereof to send one of HOSPERSA's Case Management Officers to inspect the Labour Court file, but there is no further indication that this was done or, if it was, the result of such inspection.

• On 9 April 2019, seemingly in response to a query from the employee, HOSPERSA took the step of writing to both its Western Cape Provincial Management to assist it with this, and other cases, with the response given to it having been that the registrar should be requested to check on the progress of its matters and to enquire if they could be enrolled for hearing, although there is no evidence that this was done.

[27] Pursuant to the last note appended to the Telephone and Correspondence Log on 9 April 2019 (being a point in time by which HOSPERSA ought already to have been aware of the deficiencies in the applicant's attorney's management of its review application), there is no evidence of it having taken any further steps until almost two years later when the applicant's Manager: Legal Services finally deposed to the applicant's long awaited replying affidavit.

[28] In that affidavit, and in response to the first respondent's complaints which had been set forth in its answering affidavit concerning the applicant's failure to have applied for condonation for its original Rule 7A(8)(b) Notice and its further (irregular) Rule 7A(B)(a) Notice and supplementary founding affidavit, the deponent thereto stated,

'The Applicant will lodge a condonation Application accordingly.'

[29] This being the case, by 3 May 2021, being the date on which the replying affidavit was deposed to, one of HOSPERSA's most senior officials was aware of at least one of the delays in the prosecution of the review application. In light of the fact that the replying affidavit was then being deposed to in response to an affidavit of the first respondent which had been deposed to some one and a half years earlier, his knowledge of the applicant's delay in response thereto is also inescapably established.

[30] Moreover, and notwithstanding that the affidavit specifically acknowledged the need on the part of the applicant to deliver a condonation application for, at the very least, its late Rule 7A(8)(b) Notice, no such condonation application was brought until, possibly, May 2022,[5] alternatively, March 2023.

[31] Finally, save that Mr McGladdery deposed to the supplementary founding and replying affidavits in the review application, there is no evidence that he was personally involved in the management of HOSPERSA's file or had any dealings with its previous attorney of record. The founding affidavit in the reinstatement application was deposed to by the applicant's present attorney of record, with Mr McGladdery having confirmed the correctness of the allegations contained therein insofar as those allegations related to him. The totality of the allegations made in the founding affidavit which related to Mr McGladdery were that he:

• had approached HOSPERSA's current attorneys in August 2022 for the purpose of providing it with as much information as he could pertaining to this, and other matters;

• was subsequently contacted by. the applicant's attorneys for further information;

• is based in HOSPERSA's Hillcrest office;

• relied on what he had been in.formed about the delays and the causes thereof by the applicant's previous attorney, Mr Ntlokwana; and

• became aware of the extent of the problems only after the present attorney had considered the matter and informed him of such.

[32] As to that which may have been conveyed to Mr McGladdery by Mr Ntlokwana, all that was stated by the applicant in its founding affidavit was that Mr Ntlokwana 'never provided a truthful version of what really was happening in the prosecution of the review application.' The difficulty with the applicant's approach is that at no point in its application for reinstatement did the applicant actually explain what, if anything, Mr Ntlokwana had actually explained to Mr McGladdery concerning the delays in the prosecution of the review application and the ostensible causes thereof, which in turn induced Mr McGladdery to conclude that there were no problems, or even when such discussions took place. In such circumstances, there is no evidence before this court from which it can conclude that he was, as the applicant puts it, 'strung along' by HOSPERSA's previous attorney.

[33] Accordingly, the available evidence demonstrates that HOSPERSA was, or ought to have been aware that the review application was not being prosecuted timeously; there is no evidence of any positive steps having been taken by it in an effort to salvage the mismanagement of its matter when it ought to have been aware of the need to have done so; and there is no evidence that Mr McGladdery was induced into complacency by whatever may have been conveyed to him by its previous attorney.

[34] There is therefore no reason not to attribute blame for the various failures in the prosecution of the review application to HOSPERSA.

[35] The employee did not depose to a confirmatory affidavit in circumstances in which, as an applicant seeking an indulgence, he ought to have explained why he was of the belief that the point at which the fault of the attorney (and HOSPERSA) ought to have been imputed to him had never been reached.

[36] The solitary piece of evidence seemingly demonstrating any interest taken by the employee in the prosecution of his matter was the note made by one of HOSPERSA's officials in the Telephone and Correspondence Log on 9 April 2019 in which it was recorded that the employee had telephoned to enquire about the progress of his matter. This enquiry occurred in circumstances in which the Telephone and Correspondence Log reflected that a letter had been transmitted to all HOSPERSA's members with court cases in which they were advised of 'delay' some two months earlier.

[37] Accordingly, as regards the employee, the observations of this court in National Union of Metalworkers of SA on behalf of Thilivali v Fry's Metals (A Division of Zimco Group) and Others (2015) 36 ILJ 232 (LC) are apposite,

'Considering the explanation the applicant sought to offer, the insurmountable problem the applicant has, in my view, is the fact that the Court has on numerous occasions made it clear that an individual applicant can simply not sit by without regularly following up on its litigation and the progress therein, even after tasking a representative to deal with the matter.-[6]

[38] In the absence of any evidence of any positive steps taken by the employee to ensure that his representatives managed the review application diligently, this court is constrained to impute Mr Ntlokwana's failures in the prosecution of the review application to him on the basis of his own apparent indifference to the proceedings themselves.

[39] It is the applicant's case that it's excellent prospects of success compensate for what it acknowledges to be a considerable delay and the lack of a reasonable explanation therefor.

[40] Given that the review application was itself initiated outside of the time periods prescribed, and the applicant sought that condonation be granted for the delay, consideration of the applicant's prospects of success must, of necessity, entail consideration of the applicant's condonation application, which was opposed by the first respondent. Although the applicant did not expressly address this issue in its reinstatement application, it referred this court to the affidavits deposed to in the review application.

[41] In seeking condonation for the delay in the launching of the review application of a period of six months and three weeks, the applicant explained that the entire period of the delay had been occasioned by its own inability to have initiated the application without the bundle of documents which had been utilised at the arbitration,

'Upon receipt of the Arbitration Award, the Applicant took initial steps to review the award by instructing its attorneys on the 2nd of September 2015. Upon instructing its attorneys it turned out that the bundle of documents utilised at the arbitration were not forwarded to the Applicant by its Western Cape of/lee. The Applicant was then requested by its attorneys to arrange with the Western Cape office to make available the said bundle of documents for the preparation and lodging of the Review Application. Despite the various attempts by the Applicant to obtain the bundle of the arbitration documents from its Western Cape office such proved to be insurmountable as the bundle appears to have been misplaced or could not be located by the Western Cape office. Ultimately, the Applicant then instructed its attorneys to go ahead with the lodging of the review with only an arbitration award at their disposal. The delay was therefore due to waiting for the bundle from the Applicant's Western Cape office in order to have a thorough understanding of the case before the Third Respondent.'

[42] In opposition to the applicant's application for condonation the first respondent took issue with the paucity of the applicant's explanation for the delay which was alleged to have been entirely unsubstantiated,

'It is noted that the primary reason proffered by the Applicant for its substantial lateness is linked to the bundle of documents used at the arbitration.

The Applicant states that the bundle of documents was not made available to its attorneys by the Applicant's Western Cape branch in order that the said attorneys could prepare and lodge the review application.

Whilst the Applicant states that its attorneys had requested that the bundle of documents should be made available to them, the Applicant fails to provide any documentation I letter I email from the attorneys in that regard.

The Applicant also fails to file a confirmatory affidavit from its attorneys to evidence such.

The Applicant furthermore states that "various" attempts were made to obtain the bundle of arbitration documents from its Western Cape offices which were "insurmountable, yet the Applicant fails to furnish the Honourable Court with the following:

a) The identity of the person/s who had attempted to procure the bundle of documents on behalf of the Applicant;

b) The identity of the personls at the Applicant's Western Cape branch to whom such attempts or requests were made;

c) When such attempts were made, more particularly, the frequency thereof,'

d) How such attempts were made. whether in writing or telephonically, and what the content of such communication entailed.

In short, the Applicant has failed to ensure that this Honourable Court is apprised of all the facts and circumstances relating to the delay in order for the Court to exercise its discretion whether or not to grant condonation. '

[43] In response, the applicant stated that the communication between itself and its Western Cape branch took place telephonically, and that it had been its Mr Suleman, situated in the Hillcrest office, who had liaised with one Mr Daniels, from its Western Cape Branch. Although the applicant did not explain who, precisely, these individuals were it must be presumed that the Mr Suleman referred to was not the Mr Arshad Suleman, a Manager in the applicant's Legal Services Department who had deposed to the applicant's founding affidavit in the review application. This is for the reason that when providing the explanation for the delay in the founding affidavit he did not once mention that he had been the individual who had undertaken the task of endeavouring to obtain the documentation from HOSPERSA's Western Cape office; this explanation was given by him in the third person. The replying affidavit was deposed to by Mr McGladdery who did not himself explain how he had any knowledge of

the telephonic communications which were alleged to have taken place between two other individuals, and nor did either Mr Suleman or Mr Daniels depose to confirmatory affidavits in support of the applicant's replying affidavit. This being the case, and it having

been alleged that there was no documentary evidence available to establish the veracity of the telephone calls which were allegedly

made, the applicant's response did not resolve the issues taken by the first respondent with the applicant's explanation for the delay.

[44] Moreover, serious doubt is cast upon the correctness of the explanation which was provided in the condonation application by virtue of the documentation which was subsequently disclosed in the applicant's reinstatement application. In its reinstatement application the applicant referred to and relied upon the file notes made by unnamed HOSPERSA officials in relation to this matter, embodied in the Telephone and Correspondence Log document. As regards this document, the deponent to the founding affidavit stated,

'The applicant has provided me with certain file notes on this matter - I annex copies of the notes, marked "A2" to "A4".

A reading of the notes (dating between September 2015 and April 2019) clearly demonstrates that the applicant (and the individual member) were interested in and committed to the prosecution of this matter.'

[45] The note made by the HOSPERSA official in charge of the management of the file on 8 December 2015 reads as follows,

'In spite of the numerous requests - bundle of docs received from province - same delivered to att.'

[46] The first observation which may be made is that it is evident that documentary evidence of telephone calls made by HOSPERSA's officials in their management of its file was created, contrary to the statements made that no documentary evidence which could objectively have established the veracity of the alleged telephonic communications existed. Secondly, at face value this note belies the truth of the statements made by the deponent to the founding affidavit concerning the difficulties experienced in obtaining the documentation as having been the sole cause of the delay in initiating the review application. The note clearly indicates that whilst the bundle of documents had not been made available at the outset, it was located and transmitted to those tasked with initiating the review application, who in turn delivered it to the applicant's attorney on 8 December 2015.

[47] It is trite that an applicant in a condonation application seeks an indulgence, which is not there for the taking. In this matter, the delay in initiating the review application was excessive and the explanation offered was not only devoid of particularity, but was wholly unsubstantiated by any individual who had personal knowledge of the facts. In addition, the explanation was called into question by the disclosure of a document which was alleged in the applicant's replying affidavit not to have existed, the contents of which placed the veracity of the explanation in grave doubt. This being the case,

a court determining the applicant's condonation application would not be required to consider the applicant's prospects of success.[7]

[48] In view of the aforementioned, this court finds that the applicant has not met the threshold established in Samuels insofar as its prospects of success in its review application are concerned. Irrespective of what the applicant's complaints concerning the award issued by the third respondent may be, the applicant has not established that it is likely to succeed in its application for condonation for its late initiation thereof.

[49] Finally, the applicant's assertions that the interests of justice require the granting of reinstatement of the review application, in consideration of the prejudice that the employee would allegedly suffer .was ·both unsubstantiated by any factual averments

from which this court could draw such a conclusion and, as previously observed, unsupported by any -confirmation as to the correctness of such proposition by the employee himself. The absence of any evidence of interest in the matter, save for one telephone call made in 2019, demonstrates that the employee has not acted in a manner demonstrative of the view which was expressed by the deponent to the founding affidavit.

[50] The first respondent, on the other hand, is entitled to finality, more especially in circumstances in which the termination of the employee's services occurred in 2014.

[51] In light of the aforementioned considerations, this court does not find that the interests of justice require that it exercise its discretion in favour of reinstating the applicant's lapsed review application.

Costs

[52] As there is no basis to find that the application was not brought bona fide, the applicant will not be ordered to pay the first

respondent's costs.

Order

1. The application is dismissed.

2. There is no order as to costs.

Kelsey Allen-Yaman

Judge of the Labour Court of South Africa

Appearances

Applicant: Mr T Seery, briefed by Purdon and Munsamy Attorneys Respondent: Mr T Booley, briefed by the State Attorney, Cape Town

[1] Albeit that the applicant alleged that its first reinstatement application had been withdrawn on 3 February 2023, the notice of withdrawal of that application reflects the later date.

[2] At paragraph 17

[3] At 532 C - F

[4] Saloojee and another NNP v Minister of Community Development 1965 (2) SA 135 (A)

[5] The withdrawn re-instatement application is not in the court file and it is accordingly not possible for this court to determine

whether the applicant then sought condonation for the late delivery of its Rule 7A(8)(b) notice together with its re-instatement

application.

[6] At paragraph 28

[7] National Union of Mineworkers v Council for Mineral Technology 1998 ZALAC 22 at paragraph 10