Inxuba Yethemba Municipality v South African Local Government Bargaining Council and Others (PR41/2020) [2022] ZALCPE 1 (31 January 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH

Reportable

Case No: PR41/2020

In the matter between:

INXUBA YETHEMBA MUNICIPALITY Applicant

and

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL First

Respondent

KELVIN KAYSTER Second

Respondent

IMATU obo DOUGLAS DENNIS FORTUIN

Third Respondent

Heard: 9 July 2021

Delivered: This judgment was handed down electronically by circulation to the Applicant and the Respondent’s Legal Representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing- down is deemed to be 09h30 on 31 January 2022.

JUDGEMENT

KROON, AJ

INTRODUCTION

1. The Court was confronted by four applications. There was an application to dismiss a review application (the dismissal application), an application for the reinstatement of the review application (the reinstatement application) and the review application itself (the review application).[1] There was also a substantive application for a postponement (the postponement application).

2. The flurry of litigation has its source in a damning finding by the Second Respondent (the Arbitrator) that, in unfair dismissal

arbitration proceedings, the representative of the Applicant (the Municipality), the then Director of Corporate Services[2], obtained a medical certificate ‘under false pretences’ with a view to engineering a postponement of the arbitration. Having rejected the certificate, the Arbitrator proceeded to issue a default arbitration award (the Award) reinstating a driving license examiner who had lost his job for having allegedly issued a fraudulent motor vehicle license.Road users would be placed in peril if the Award was allowed to stand, so the Municipality said. It pulled no punches in its challenge to the Award. It impugned the Arbitrator’s integrity describing him as having acted ‘immaturely’. It accused him of having grossly misrepresented the facts. In the end this is a story containing a lesson in how not to conduct litigation.

3. When the matter was called on 6 July 2021, the Municipality indicated that it would apply for a postponement on the basis of the unavailability of counsel owing to illness. The postponement application was opposed by the Third Respondent (IMATU). Matters were resolved when it was agreed, pursuant to a proposal by the Court, that the matter be adjourned to 9 July 2021 to allow counsel, who had recently been engaged on behalf of the Municipality, an opportunity

to prepare and to draft heads of argument.

4. On 9 July 2021 the Municipality again moved for a postponement, this time from the bar and on a different basis. Ms Masiza, who appeared on behalf of the Municipality, informed the Court that, whilst preparing for the review application, she had discovered that the record was incomplete in that the bundle of exhibits (the bundle)

did not form part of the record and, on the back of this omission, it was submitted that the matter was not ripe for hearing and should accordingly be postponed. The Municipality tendered the wasted costs occasioned by the postponement.

5. Mr Boyens, who appeared on behalf of IMATU, opposed the second postponement application primarily on the basis of the delays which had accompanied the prosecution of the review application. I gave an ex tempore decision refusing the postponement application and indicated that I would furnish reasons in the judgment.

THE DISMISSAL APPLICATION

6. The dismissal application can be disposed of at the outset and easily. In response to enquiries from the bench as to whether the dismissal application should have been brought in the first place Mr Boyens, who appeared on behalf of IMATU, in my view correctly so, ultimately abandoned it.

7. It was common cause that the review application was deemed to have been withdrawn in terms of paragraph 11.2.3 of the Consolidated Practice Manual for the Labour Court of South Africa (the Practice Manual) prior to the lodging of the dismissal application. There was thus, for all intents, no review application in existence to dismiss at the time that the dismissal application was launched. It is trite that an application is to be adjudged according to the facts as they existed at the time that the application is brought.[3]

8. As I pointed out in Sidas Security v Anele Totolo & Others[4], the Court will generally not entertain an application to dismiss a review application where that application is deemed to have been withdrawn. This is for the obvious reason that once a review application has been deemed to have been withdrawn there is no lis before the Court and the Court has no jurisdiction to entertain it[5]. A Court may however, in appropriate circumstances, issue a declaratory order but only if there are proper grounds for so doing[6]. The present matter is not such a case and the dismissal application which received much coverage in the papers and enjoyed much attention in the heads of argument furnished on behalf of the Municipality was in truth a red herring.

HISTORY OF THE LITIGATION

9. Pursuant to Fortuin’s dismissal for misconduct IMATU, on his behalf, referred an unfair dismissal dispute to the First Respondent (the Bargaining Council).The Arbitrator issued the Award on 11 February 2020.It obliged the Municipality to reinstate Fortuin retrospectively with effect from 30 August 2019.

10. The Municipality brought the review application on 2 March 2020.

11. On 13 March 2020 the Registrar issued a directive informing the parties that the record could be uplifted. Applying the 60 day period contained in paragraph 11.2.2 of the Practice Manual, the Municipality had until 11 June 2020 to file the record. The record was not however filed by that date. It followed that the review application was correctly to be regarded as being deemed to have been withdrawn in terms of paragraph 11.2.3 of the Practice Manual as of 12 June 2020.

12. I mention en passant that, given that the review application was deemed to have been withdrawn and there was no reinstatement application at that stage, IMATU was at liberty to have taken steps to enforce the Award (by way of contempt of court proceedings) notwithstanding the circumstance that a bond of security had been filed by the Municipality.[7]

13. IMATU did not take steps to enforce the Award. Rather on 9 September 2020, its erstwhile legal representative addressed correspondence to the Municipality advising it that the review application was deemed to have been withdrawn. In an apparent reaction to this communication, the Municipality delivered the record on 14 September 2020.

14. Strictly speaking, the delivery of the record was an irregular step and arguably a nullity because once a review application is deemed to have been withdrawn it is not competent to deliver further process until an application has been brought to reinstate the review application. The reason for this is that once a review application is deemed to have been withdrawn, there are no pending proceedings before the Court. A party cannot file a pleading in a vacuum[8]. That being said, there was no objection to the delivery of the record and no suggestion of any prejudice flowing therefrom. Requiring the re-delivery of the record would have been an exercise in futility[9] and it is trite that where an irregularity will not cause prejudice it will be overlooked so that the true purpose of the rules may be achieved[10].

15. On 26 October 2020 IMATU’s current attorneys of record transmitted a communication to the Municipality threatening a dismissal application. On 16 November 2020 IMATU brought the dismissal application. It was opposed by the Municipality on 7 December 2020. IMATU, in response to the answering affidavit delivered by the Municipality, delivered a replying affidavit as well as a notice of objection to the late delivery of the answering affidavit on 14 December 2020.

16. On 14 January 2021 the Municipality brought the reinstatement application. The reinstatement application was opposed by IMATU on 29 January 2021. No replying affidavit was delivered.

17. On 18 February 2021 the Municipality delivered its Rule 7A(8)(b) supplementary affidavit (the supplementary affidavit). Thereafter the review application was opposed by IMATU on 1 March 2021. No replying affidavit was delivered.

18. The indexing and pagination was effected by IMATU. IMATU also assumed responsibility for the compilation of the Practice Note. This was done with the aim of ensuring that the matter was ripe for hearing.

THE RECORD, THE SECOND POSTPONEMENT APPLICATION AND THE SUPPLEMENTARY AFFIDAVIT

Introduction

19. Submissions were made on behalf of IMATU on both the late filing of the record as well as the late delivery of the supplementary affidavit. I deal with these two issues separately below. It is however convenient to first address the Municipality’s complaint about the record and to set out the reasons for refusing the second postponement application.

The content of the record

20. The rules for the Conduct of Proceedings in the Labour Court (the Labour Court Rules) require that an applicant in a review application apply its mind to the record filed with the Registrar. Rule 7A(5), which is emphasized in the Practice Manual[11], provides that:

‘The applicant must make copies of such portions of the record as may be necessary for the purposes of the review ...’ (My emphasis)

21. This rule engages a legal practitioner’s supervisory duty to ensure that the litigation for which he[12] has, in his professional capacity, assumed responsibility is conducted in a disciplined, expeditious and cost effective manner.

Legal practitioners who prosecute review applications on behalf of their clients are dutybound to first satisfy themselves that the record filed with the Registrar is complete and thereafter to identify the documents which need to be placed before the Court and axiomatically those documents which fall to be omitted.

22. It follows that it is not permissible for legal representatives to go through the motions and file, as it were, wholesale the record which has been furnished to the Registrar. Yet, as in this case, on a far too frequent basis this Court is presented with a record where the legal representatives have abdicated their responsibilities and have indiscriminately filed, as the record, each and every document which was filed by the Bargaining Council including documents which are not only irrelevant but sometimes inappropriate[13].

23. Peter AJ has wryly observed[14]:

‘[19] The idea that more is better and that it is wiser “to put everything before the judge” belongs to the lazy and the insecure... Litigants who deluge a court with a welter of irrelevant and unnecessary material, which hides and confuses what is relevant, ought not to be heard to complain about the quality of the judicial determination they receive...’

24. Turning to the facts, the volume of the record was unimpressive. The transcript spanned a princely 15 pages. The documentation comprised 44 pages. On an elementary reading of the transcript it would or should have been apparent to the Municipality that there was a bundle of exhibits placed before the Arbitrator. Indeed the Award refers to it. If the Municipality had deemed the bundle necessary for the purposes of the adjudication of the review application it should at that stage and on receipt of the record have made enquiries with the Bargaining Council about the missing bundle. If such enquiries had yielded no fruit it could then, if so advised, have brought an application to compel the production of the bundle. It did not do so and it did not explain why it did not do so.

25. Given that the second postponement application was made from the bar, the Court was left in the dark as to how the omission of the bundle occurred. A number of questions naturally arise. Did the Municipality’s attorneys read the record and, if so, why did they not, at that stage, address the issue of the missing bundle? Was slothfulness the cause of this oversight or was an election made? Did counsel who was instructed to draft the reinstatement application and heads of argument detect the omission? If so, what was his view about the absence of the bundle? Such unanswered questions place the Court deep into the territory of speculation. The supplementary affidavit takes the matter no further, the deponent cryptically recording therein only that he had read the record.

26. This is not a case where one or two pages of a bundle of exhibits were inadvertently omitted from the record. The entire bundle is absent. Ordinarily, when it comes to the record of an arbitration conducted in terms of Section 138 of the Labour Relations Act No. 66 of 1995 (the LRA), the two most important documents will be the transcript of the evidence (unless the matter was decided by way of a stated case or a preliminary point not requiring the leading of evidence) and the bundle of exhibits. If one of these items are missing this should be obvious to the legal practitioner prosecuting the review application. I would add only that one would have thought that the Municipality would have been particularly interested in the contents of the record given that it did not participate in the arbitration proceedings.

The Second Postponement Application

27. As mentioned earlier, the Municipality sought a second postponement on the ground that the bundle did not form part of the record. In assessing this application, it is well to bear in mind that review applications are to be disposed of expeditiously and are categorized in the Practice Manual as being “urgent” in nature[15]. Where a party seeks a postponement which, if granted, will have the result of substantially delaying an application which is required to be dealt with on an urgent basis there is, in my view, a heightened test to be applied in determining whether it should be granted particularly where, as is the case in the current matter, the Award concerns the restoration of an employment relationship. Having said that, each postponement application must be adjudged according to its own facts and there will always be circumstances where the laudable objective of expediency must yield to the requirements of justice.

28. I refused the postponement application for 4 principal reasons. Firstly, Fortuin self-evidently has an interest in finality and for that reason will be prejudiced by a further delay in a matter which has already been unnecessarily delayed by the Municipality. Not only was it requested that the matter be postponed sine die, but an endeavour to supplement the record to such a material degree would in turn raise the spectre of the filing of further affidavits

given that a respondent is entitled to have sight of the record prior to delivering its answering affidavit.[16] Secondly, the proper administration of justice and the ethos of the LRA require applications of this nature to be finalized

expeditiously. Thirdly, the Municipality was effectively relying on its own negligence to properly compile the record as a basis for the postponement and, to aggravate matters, it failed to furnish the Court with an explanation as to the circumstances which gave rise to the allegedly defective record. Fourthly, in my view decisively so, the absence of the bundle has no material bearing on the adjudication of the review application. This is apparent from the following:

28.1. The bundle, if anything, relates to the reasonableness of the determination of the Arbitrator of the alleged unfair dismissal of Fortuin. As will appear from my evaluation of the merits of the review application, it was impermissible for the Municipality to have brought a review application to challenge the reasonableness of the outcome of the Award as rescission was the appropriate remedy.

28.2. The bundle was, in any event, not relied on by Fortuin to prove his innocence. The thrust of his testimony was that, contrary to what was alleged in the charges, he had in fact subjected the member of the public in question to a driving examination. He did not rely on any documentation to present his defence to the charges. He only referred to the bundle with a view to identifying the charges which had been preferred against him and confirming the date of his dismissal, neither of which circumstances were contentious.

29. As to the latter point, when I raised with Ms Masiza the circumstance that Fortuin had, for all intents, not made reference to the bundle in his evidence she submitted, if I understood her correctly, that the Arbitrator was nonetheless bound to have taken into account the contents of the bundle. There is no merit in this submission. The opposite is true, namely that evidence must be properly placed before an arbitrator and an arbitrator will not be entitled to take into account documentation which has not been tendered as evidence or where there is no agreement as to the status of the documentation. Generally, save for a few exceptions[17], evidence is to be adduced viva voce under oath, by affidavit or by agreement[18]. That is why when parties compile a stated case, they are required to attach documentation which they want to introduce into evidence as annexures to the stated case[19]. If a party hands up documentation but does not introduce it into evidence, it can have no probative value or legal significance.

It follows that the bundle which Ms Masiza submitted should be placed before the Court was all but irrelevant for the reason that it had not, at least for the most part, been received into evidence at the arbitration.

30. Although not relied on by Ms Masiza in her argument, I mero motu raised with both parties the circumstance that the much vaunted medical certificate did not form part of the record. It seemed to me that it was the only document which could potentially have had a bearing on the outcome of the review application given that the Municipality had complained that the Arbitrator did not have proper regard to it. Both legal representatives informed me that they had not had sight of the medical certificate nor were they able to locate same. It is trite that the onus of placing a proper record before the Court rests squarely on an applicant in a review application and where that applicant fails to file the record or material portions of it, it does so at its peril[20]. I am accordingly of the view that the Municipality only has itself to blame for not having ensured that the medical certificate (or at least a copy thereof if the original could not be located) was placed before the Court.

31. In the light of the conclusion to which I come under this heading it is unnecessary for me to canvas the interesting question as to whether the failure to file a portion of the record would have meant that the review application remained deemed to have been withdrawn, there being no provision in the rules for the piecemeal filing of a record[21].

THE REINSTATEMENT APPLICATION

32. A reinstatement application is akin to a condonation application[22]. Accordingly, in pronouncing on it, a Court would ordinarily have regard, inter alia, to both the explanation for the delay as well as the prospects of success. Ultimately it must decide whether it is in the interests of justice to grant the application.

33. The record was filed on 15 September 2020. In terms of the Practice Manual it should have been filed by no later than 12 June 2020. It was accordingly filed 3 months after the review application was deemed to have been withdrawn. As pointed out above, the filing of the record was premature because it was done in the absence of a reinstatement application. The reinstatement application was eventually lodged on 28 January 2021. The Municipality is thus, when it comes to the delays, required to explain both the delay which accompanied the filing of the record as well as the delay in bringing the reinstatement application.

34. It was, in substance, submitted on behalf of the Municipality that the delays which accompanied the filing of record occurred as a result of the Coronavirus disease pandemic (the pandemic) and the lockdown measures implemented by the government.

35. Whilst the pandemic and the consequential restricted access to the Court as well as other ensuing impediments to the conduct of litigation may well, depending on the circumstances, constitute a good explanation for a delay, the facts of each case have to be scrutinized so as to establish a causal link between the pandemic and each identified delay. Thus, if a litigant wishes to rely on the pandemic to justify a delay, it will have to demonstrate practically as to how the pandemic impeded its ability to conduct litigation in the manner required by the Labour Court Rules and the Practice Manual

and the degree and duration of any impediment.

The Explanation for the Delay

36. On 13 March 2020 the record was made available by the Registrar. The Municipality did not uplift the record prior to the country going into a state of national lockdown. It was common cause that the record could not have been uplifted during what has colloquially been termed the ‘hard lockdown’. Thus, leaving aside the circumstance that the Municipality did not comply with the 7 day time period governing the upliftment of the record,[23] I accept that the Municipality could not have predicted the nationwide lockdown and am accordingly prepared to accept, applying

the maxim lex non cogit ad impossibilia (the law does not require a litigant to do anything impossible)[24] that at least until the hard lockdown was lifted at the beginning of May 2020 there is, for the most part, an explanation for this period of the delay.

37. The explanation which is furnished for the subsequent delay between the beginning of May 2020 and 15 September 2020 is a different matter. In the founding affidavit it was conceded that when the country moved to alert level 4 at the beginning of May 2020 practitioners were in a position to perform their normal duties and the pandemic did not thereafter present an obstacle to the filing of the record.

38. The applicable chronology may be summarised as follows:

38.1.1. The nationwide lockdown (alert level 5) was implemented with effect from midnight 26 March 2020. Alert level 5 endured until 30 April 2020 whereupon the country moved to alert level 4.

38.1.2. Upon being informed of the availability of the record on 13 March 2020 the legal representatives of the Municipality (Zepe & Company) instructed, on 26 March 2021, their correspondent in Gqeberha (formerly Port Elizabeth), Pagdens Attorneys (Pagdens), to uplift the record.

38.1.3. Pagdens responded that it would attend to the task of the uplifting of the record after the lockdown.

38.1.4. On 12 May 2020, Pagdens requested its messenger to uplift the record.

38.1.5. For reasons which are not explained, the Municipality only received the record 3 weeks later on 4 June 2020.

38.1.6. Two weeks passed before, on 18 June 2020, Pagdens instructed a candidate attorney to uplift the disc for transcription but was informed that only the transcription company was permitted to uplift it.

38.1.7. On 23 June 2020, Pagdens requested instructions from Zepe & Company to obtain a quotation from the transcription company.

38.1.8. Given that 5 weeks passed without any response from Zepe & Company, Pagdens followed up on its request on 1 July 2020.

38.1.9. Pagdens received instructions 2 months later on 31 August 2020 to obtain a quote for a transcription of the record.

38.1.10. An instruction to have the disc transcribed was issued on an unspecified date in the beginning of September 2020.

39. An elementary analysis of this chronology drives one to the conclusion that little was done after the hard lockdown to ensure the

expeditious filing of the record. In particular there is no explanation for the thirteen week delay between 23 June 2020 and 31

August 2020. In fact, in the 4 month period spanning the beginning of May 2020 to the beginning of September 2020 all that was achieved was that the record was uplifted and the disc was furnished to the transcription company. One would have thought that this task could have been performed within a week or so. It should not have taken 4 months. It is also worth noting that the legal representatives of the Municipality do not admit any fault or culpability. Apologising to the Court would have demonstrated an appreciation for the duties and responsibilities of the Municipality’s legal representatives to the Court as well as to their client and the other parties to the litigation.[25]

40. In explaining the delay the Municipality also alleges, in vague terms, that, after the lifting of the hard lockdown, a number of matters which required the attention of its legal representatives had become ‘urgent’. This circumstance, if I understood the argument correctly, created a state of congestion and made it difficult to attend to the current matter. No details were however provided to support this bald allegation and the Municipality did not take the Court into its confidence by disclosing the identity of the attorney who was dealing with the matter and the challenges experienced by him. On the face of it, it is difficult to understand as to how attending to the filing of the record could have posed a challenge because the upliftment of the record is a rudimentary administrative exercise which should not usually be time consuming. Furthermore, Pagdens had, on instruction from Zepe & Company, assumed responsibility for the compilation of the record and there was no allegation that Pagdens experienced difficulties performing this exercise (other than, it would seem, timeously receiving instructions from Zepe & Company).

41. In Uitenhage Transitional Local Council v South African Revenue Service[26] it was observed that:

‘One would have hoped that the many admonitions concerning what is required of an applicant in a condonation application would be trite knowledge among practitioners who are entrusted with the preparation of appeals to this Court: condonation is not to be had merely for the asking; a full, detailed and accurate account of the causes of the delay and their effects must be furnished so as to enable the Court to understand clearly the reasons and to assess the responsibility. It must be obvious that if the non-compliance is time-related then the date, duration and extent of any obstacle on which reliance is placed must be spelled out.’[27]

42. The reinstatement application should have been brought as soon as was practically possible after the need arose for it[28] i.e. when the review application was deemed to have been withdrawn in terms of the Practice Manual. If an application for reinstatement is not made timeously, then the other side is entitled to assume that the applicant will not be persisting with the review application and that the original arbitration award has become unassailable[29]. Sooner or later litigation must come to an end[30] and the more protracted the delay the more difficult it will be to exhume and resurrect a review application. There was no disclosure as to when the Municipality became aware that the review application was deemed to have been withdrawn and no explanation as to when the Municipality realised that it was required to bring the reinstatement application. The Municipality neither requested an extension from the other side nor approached the Judge President in terms of paragraph 11.2.3 of the Practice Manual for assistance and it does not explain why it did not do so.

43. After the Municipality had been informed on 9 September 2020 that the review application was deemed to have been withdrawn it took in excess of 5 months to bring the reinstatement application. The explanation for this further delay is unsatisfactory. Counsel was only briefed on 24 November 2020 more than 2 months after the Municipality had been apprised of the need to bring the reinstatement application and more than 6 months after its institution had become necessary. It is also alleged, as a reason for the delay, that counsel who was belatedly engaged to draft the reinstatement application was too busy to attend to this task until January 2021.

44. Ms Masiza strenuously urged the Court to grant the reinstatement application submitting that the dismissal of Fortuin was an important

matter with broader implications because of the gravity of the offence and if the Award was allowed to stand, members of the public

(road users) would be placed in danger. If I understood her correctly she submitted that, because of the Award, a situation had arisen where a member of the public was driving on public roads with a fraudulent license. I have two difficulties with this submission.

Firstly, insofar as it was suggested that road users would be in danger because a member of the public has been issued a license to which he was not entitled, the setting aside of the Award and the upholding of the dismissal would not remove the danger posed. The member of the public would remain in possession of the licence irrespective of the outcome of the review application. If the

Municipality is genuinely of the view that some type of fraud or any other crime has been committed, there is no impediment to it reporting the matter to the South African Police Services for investigation. It was, in any event, duty-bound, absent an agreement

that the issuing of the allegedly fraudulent license could be rescinded, to have applied to Court to have it reviewed and set aside. Insofar as the contention was that if Fortuin was to be reinstated, this would mean that he would continue to issue fraudulent licences and thereby endanger the public, the short answer to this concern is that the evidence before the Arbitrator and thus the evidence before this Court demonstrated that Fortuin was not guilty of the alleged misconduct. Secondly, this argument tends to conflate and confuse the prospects of success with the gravity of the allegation made against the employee. The Court is concerned

primarily with whether the review application enjoys prospects of success irrespective of the seriousness of the allegation made

against Fortuin. Ordinarily, disputes about individual dismissals are not regarded as raising matters of importance weighing

in favour of the granting of condonation[31].

45. In conclusion, it is difficult not to gain the impression that the file was, to a material degree, neglected by the legal representatives of the Municipality after they had initially timeously brought the review application. Although not relied on in support of the

reinstatement application, it may be that the legal representatives of the Municipality were, for a time, distracted by the dismissal

application which was brought on 16 November 2021. But this would still not explain the delay when it comes to the filing of the record and the belated launching of the reinstatement application. Having said that, the remissness of a legal representative is not necessarily dispositive and a court will incline against penalising a litigant for the conduct of its legal representatives in whom it has placed its trust unless, inter alia, it can be demonstrated that the litigant itself is culpable or where the negligence is so gross that it cannot be overlooked. I am prepared, for the purposes of this application, to assume that the Municipality did not make itself party to the negligence. Although there is little justification to do so, I am also prepared to assume, without deciding, that this is not a case where the unexplained delays are of such a nature as to render consideration of the merits of the review application immaterial[32].

46. Thus the question which arises is whether the prospects of success or any other factor may salvage what is otherwise an uninspiring reinstatement application. The answer to this question will depend primarily on my evaluation of the merits of the review application.

LATE DELIVERY OF THE SUPPLEMENTARY AFFIDAVIT

47. For the sake of completeness, I deal with the allegation that the supplementary affidavit was delivered late. It was submitted, on behalf of IMATU, firstly that there was no condonation application for the late delivery of the supplementary affidavit and secondly that, in any event, there was no explanation for the delay between the delivery of the record on 14 September 2020 and the delivery of the supplementary affidavit 5 months later on 12 February 2021.

48. As to the contention that there was no application for condonation, there are two answers to this complaint. The first is that the delivery of a pleading outside of the time period contained in the Labour Court Rules without an application for condonation constitutes an irregular step[33]. It follows that if a party takes a further step (such as, in this case, the delivery of an answering affidavit) that party waives its right to complain about the absence of a condonation application[34]. The second is that, although there was no notice seeking condonation, condonation was sought in the body of the answering affidavit.

To refuse to consider the request for condonation solely on the basis that there was no formal notice of motion would, in these

circumstances, be to allow form to take precedence over substance. This would be all the more the case where there is no allegation of prejudice and where IMATU actually dealt with the allegations pertaining to condonation in its answering affidavit.

49. Rule 7A, which this Court has on more than one occasion observed mirrors Rule 53 of the Uniform Rules of Court (the Uniform Rules), envisages a three stage process when it comes to the bringing of a review application, namely the bringing of the review application calling for the production of the record, the filing of the record and thereafter the delivery of a supplementary affidavit as envisaged by Rule 7A(8)[35]. A respondent is entitled to have sight of the record upon which an applicant will rely before being required to deliver its answering affidavit[36]and it is also entitled, in its answering affidavit, to object to any defects in the record or to supplement the record where it believes it to be inadequate[37]. Rule 7A(8) however requires that a supplementary affidavit be delivered within 10 days (a period incidentally borrowed from Uniform Rule 53) of an applicant being informed by the Registrar that the record is available for upliftment. By necessary implication it would seem that the rule envisages that the record is to be filed within the 10 day period or at least shortly thereafter given that, as mentioned above, a respondent is entitled to deal with the contents of the record in its answering affidavit. Experience has taught practitioners that the 10 day period presents a formidable hurdle particularly in cases where there is a lengthy transcript which requires evaluation and analysis. Some commentators having observed that it is ‘typically impossible’ to comply with it[38]. There is nonetheless high authority that the 10 day period is binding and that non-compliance with it requires condonation.[39]

50. Whilst compliance with the 10 day period is an onerous task, its inclusion is an unequivocal indication that the drafters of the rule intended that the record be compiled and filed on an expedited basis. The provisions of the Practice Manual pertaining to the upliftment and filing of the record perhaps coexist uneasily with Rule 7A(8). By way of illustration the Practice Manual, for no apparent reason and without attaching any consequence to non-compliance, affords an applicant 7 days to uplift the record leaving a mere 3 days thereafter to deliver a supplementary affidavit. It would arguably have been more desirable if wording similar to that in uniform Rule 53(3) had been utilised. That sub-rule provides that once the record has been made available by the Registrar, an applicant shall “thereupon” (immediately or shortly thereafter), cause copies of such portions of the record that may be necessary for the purpose of the review application to be furnished to the parties.

51. The authorities however make it clear that the 10 day period remains binding. It must logically follow that the 60 day period contained in paragraph 11.2.2 of the Practice Manual is not to be used by practitioners as a license to disregard the 10 day period contained

in Rule 7A(8). The 60 day period does not extend or in any way override the 10 day period. A practice direction cannot

countermand a rule of court which has been held to constitute subordinate legislation.[40] In any event, the Practice Manual makes it clear (clause 1.2) that its purpose is not to substitute the Labour Court Rules.[41] The Labour Court Rules and the Practice Manual serve different purposes. The 10 day period provided for in Rule 7A(8) is inserted so as to ensure that the imperatives of urgency are met and non-compliance therewith requires an application for condonation. The inclusion of the 60 day period provided for in paragraph 11.2.2. has as its primary objective finality in the litigation and non-compliance therewith extinguishes the review application absent a successful application for reinstatement.

52. It follows that if a litigant complies with the 60 day period contained in the Practice Manual this does not mean that it is excused from applying for condonation for non-compliance with the 10 day period contained in Rule 7A(8). An applicant in a review application should strive to deliver its record and its supplementary affidavit within the 10 day period prescribed in Rule 7A(8) or as soon thereafter as may be possible. It follows further that it would be a mistake for a practitioner to lose sight of the fact that a review application is urgent by nature and to labour under the impression that it is entitled to sit passively by on the assumption that the record may be filed at any time within the 60 day period and, on the strength of that erroneous assumption, to then only file it on the cusp of the expiry of that period when it could have done so earlier exercising reasonable care.

53. Having said all of the above, the fact that there may be non-compliance with the 10 day contained in Rule 7A(8) period does not mean that on each and every occasion, irrespective of the degree of non-compliance, a respondent should make an issue of such non-compliance. Leaving aside a practitioner’s obligation to conduct litigation in an expeditious and cost effective manner, practitioners also owe a duty of fair dealing to their opponents[42] which would include adopting an approach of constructive cooperation manifesting itself in the granting of extensions for collegial reasons or where indulgences sought are justified for logistical reasons. In a word, obstructionism and legalism are to be eschewed. Where a practitioner has no reason to think that his opponent has been guilty of dilatory conduct the refusal to grant an extension may be regarded as unreasonable.

54. In this matter in the dismissal application IMATU delivered a notice of objection in terms of 11.4.2 of the Practice Manual after the answering affidavit was a week or so out of time. I deal with this step in more detail below[43] but record, in the vein of the previous paragraph, that practitioners need to be aware that the fact that their clients have a right to lodge an objection to the late delivery of an affidavit does not mean that such right must be invoked as a matter of course. Ordinarily little purpose will be served in objecting to the late delivery of an affidavit which is only a few days out of time. In deciding whether to object a practitioner must bear in mind that the purpose of clause 11.4.2 of the Practice Manuel is to avoid unnecessary litigation. Whilst a Court cannot prevent a party from unnecessarily objecting it can, as a mark of its displeasure, if it is satisfied that the delivery of the notice of objection was unreasonable or was made with an obstructive motive or otherwise

hampered the proper administration of justice, penalise that party by way of an adverse costs order, thereby stressing that the raising of unreasonable objections is inimical to the objects of expediency and economy.

55. By way of illustration, in Uitenhage v Uys[44] the Court had occasion to address a situation where it was clear that a party required an extension but the other party refused to give it. The Court commented as follows:

‘It is clear that in the circumstances it was not reasonably possible for the applicant to take instructions, draft and settle such affidavits within the one week allowed by the Rules. The applicant seems to have dealt with the matter as expeditiously as possible and cannot be said to have been dilatory or at fault in any other way. In the position in which it found itself it was reasonably entitled to be met with the same courtesy and consideration as was the respondent who sought an extension for filing its affidavits, …

In his affidavit dated 6 March 1973, in support of the objection in limine the respondent says:

‘It was not prepared to grant any further extension of time in that an adjudication of this dispute between the applicant and myself in these proceedings at an early date was and still is a matter of the utmost importance to me.”

This statement is difficult to reconcile with his attempt to compel the applicant to make a substantive application on notice of motion for the condonation of the late filing of the replying affidavits. Such action would probably have resulted in further delay and unnecessary inflation of the costs in resolving this dispute. Such an application would no doubt have elicited opposition from the respondent, as is clearly foreshadowed in the papers now before me, resulting in a full-scale opposed application with consequent delay to the hearing and determination of the main dispute. Such opposition was clearly doomed to failure.

It is, I think, clear from what I have said before that the respondent’s attitude in refusing to agree to an extension of time for the filing of the applicant’s affidavits was grossly unreasonable. No reasonable ground has been shown for the harsh and uncompromising attitude which the respondent has adopted towards the applicant’s reasonable request for the extension. This has had the effect of promoting an opposed application the result of which must have been easily predictable in advance by the respondent and his attorneys. It seems to me that the respondent’s attitude and actions were vexatious and so grossly unreasonable in all the circumstances that the Court should as a mark of disapproval order the respondent to pay the wasted costs of the objection in limine on the attorney and client scale.’[45] (My emphasis)

56. Thus, in line with these sentiments, before a practitioner advises his client to note an objection to the late delivery of an affidavit as envisaged by the Practice Manual he must earnestly consider whether it will be in the interests of his client, the proper administration of justice and the interests of justice generally that the other side be compelled to bring a formal condonation application and he should make his decision mindful of the fact that this Court eschews unnecessary litigation.

57. Turning to the explanation for the late delivery of the supplementary affidavit, although it would not have been competent for the

Municipality to have delivered it prior to the delivery of the reinstatement application, nothing prevented the Municipality from

working on both documents simultaneously and delivering them together. The Municipality contends in substance that its legal representatives had focused their attention on opposing the dismissal application and on the bringing of the reinstatement application. Mention was also made of the circumstance that the offices of the legal representatives were closed ‘... for the festive season’. Whilst I accept that the annual shutdown may explain a portion of the delay[46], I am not persuaded that the explanation furnished for the remaining periods is acceptable[47]. The Municipality delivered the supplementary affidavit more than 5 months after it was placed in possession of the minimal record without furnishing an acceptable explanation for the majority of this period. In the light of the conclusion to which I ultimately come, it is not however necessary for me to make a decision on the application for condonation for the late delivery of the supplementary affidavit.

THE REVIEW APPLICATION

58. Prior to dealing with the merits of the grounds of review, it is necessary to make three observations regarding the contents of the review application.

First observation

59. The Municipality sought, both in its founding affidavit as well as in its supplementary affidavit, to introduce a substantial amount of material which is inadmissible because it does not form part of the evidence before the Arbitrator. Having not participated in the arbitration hearing, allegations were made by the Municipality, for the first time in the founding affidavit, with a view to demonstrating the guilt of Fortuin in respect of the offence for which he was dismissed. In so doing the Municipality had in mind, it would seem, to ex post facto reargue the merits of the unfair dismissal dispute de novo (afresh) by relying on material which was not placed before the Arbitrator. In the supplementary affidavit allegations are made to support a contention that the Arbitrator should have postponed the matter on the basis of the ‘parity of arms’ principle. The deponent makes allegations therein concerning, inter alia, difficulties experienced by the Municipality in sourcing legal representation prior to the arbitration. No such allegations were however made at the arbitration.

60. When it comes to an application to review an arbitration award based on the reasonableness of the outcome of that award, it should not need explaining that it is settled law that it is neither competent nor permissible to place new evidence concerning the merits of the dispute before the reviewing Court for the obvious reason that the reasonableness of a decision must be adjudged having regard to the evidentiary material placed before the decision maker.

61. In Sidumo & Another v Rustenburg Platinum Mines Ltd & Others[48] Navsa AJ (as he then was) opined as follows:

“To my mind, having regard to the reasoning of the Commissioner, based on the material before him, it cannot be said that his conclusion was one that a reasonable decision-maker could not reach...”[49] (My emphasis)

62. Applying Sidumo, the Labour Appeal Court has reasoned as follows:

“…Whether or not an arbitration award or decision or finding of a CCMA commissioner is reasonable must be determined objectively with due regard to all the evidence that was before the commissioner and what the issues were that were before him or her...”[50] (My emphasis)

63. In County Fair v Commission for Conciliation, Mediation & Arbitration & Others[51] Landman J (as he then was) commented as follows:

“... It is extremely unhelpful to detail a firsthand account of the facts of the actual incident which led to the employer taking its decision. This court is not reviewing the employer’s decision de novo...”[52] (My emphasis)

64. The scale of the objectionable material is significant. It comfortably comprises more than half of the content of the respective

affidavits. Not only is there thus a real possibility of prejudice to an innocent respondent (in being required to deliver a tedious response to the irrelevant material), but the inclusion of the material beclouds and obfuscates the issues which the Court has to determine. If a Court is required to deal with a substantial amount of irrelevant material it may become side-tracked.[53] It should not be expected of the Court, when adjudicating a review application, to have to sift and trawl through the allegations made in affidavits with a view to identifying which of them comport with the record. The Court should be able to rely on legal practitioners who draft affidavits on behalf of their clients in these types of review applications to faithfully reflect the record and to refer therein only to evidence which was before the Arbitrator. The inadmissible material was clearly included with the aim of influencing the outcome of the review application. Had IMATU brought an application to strike out the offending portions in the respective affidavits, I would have had no hesitation in granting it.[54]

65. A last comment may be made under this heading. It is that the inadmissible allegations, particularly those contained in the founding affidavit regarding the guilt of Fortuin, are the type of allegations which should properly have been included in a rescission application (see below) with a view to demonstrating that the Municipality had a bona fide defence enjoying prospects of success and that there was good cause for the rescission of the Award. It is not however permissible

for the Municipality to contrive to rescind the Award under the guise of a review application.

Second Observation

66. In the founding affidavit the City Manager at the time, Xolela Walter Msweli (Msweli), makes the following allegation:

‘The Second Respondent has immaturely granted a default arbitration award against the employer for the alleged default of its legal representative ....’ (My emphasis)

67. Msweli further accuses the Arbitrator of a ‘gross misrepresentation of the facts ...’ (My emphasis).

68. As a general rule, grounds of review should be couched in temperate language. In Knoop and Another NNO v Gupta (Tayob Intervening)[55] Wallis JA commented as follows:

‘Before concluding it is appropriate to remark that the application papers in this matter reflect little credit on the legal practitioners

responsible for their preparation. They were replete with allegations in emotive terms not borne out by any of the evidence…

It should not be necessary to remind legal professionals who draft affidavits for their clients that they bear a responsibility for the contents of those documents ...’[56]

69. It is inappropriate, if not improper, for litigants, in court documents, to make wanton or gratuitous allegations against any person. It is a more serious matter where such allegations are made against a Public Official[57] or a Judicial Officer such as an Arbitrator.[58] Such conduct may also amount to professional misconduct.[59]

70. In describing the Arbitrator as immature Msweli implies that he has not properly emotionally and intellectually developed. In using this epithet, he casts aspersions against the personal and professional integrity of the Arbitrator. It is difficult to think of how an insult of this nature could ever be justified in Court Process. It is certainly not warranted in this matter. Given the paucity of substantiating factual allegations in the founding affidavit explaining the absence of the Municipality’s representative at the arbitration (see below), the Municipality would have been better advised, on this issue, to have included more detail and less rhetoric.

71. The allegation that the Arbitrator made himself guilty of a ‘gross misrepresentation’ of the facts is a more serious allegation. It is tantamount to accusing the Arbitrator of gross dishonesty. No foundation was laid in the affidavits for making such a serious allegation nor was one justified having regard to the record. The allegation is unacceptable and is deserving of the censure of the Court[60]. The unsubstantiated attack on the Arbitrator appears to be motivated solely by the circumstance that the outcome of the arbitration did not suit the Municipality[61].

72. The allegations made by Msweli are both vexatious and scandalous and in my view defamatory. As a mark of the Court’s displeasure, it will take these allegations into account when considering the question of costs.

Third observation

73. In the supplementary affidavit the Municipality contends on the basis of what it terms the ‘parity of arms’ principle that the Arbitrator should have postponed the proceedings so that the Municipality could have been afforded an opportunity to engage legal representation. This ground of review however finds no support in the record. It is difficult not to get the impression that it was conjured up ex post facto by the legal representatives of the Municipality through the mischaracterisation of the grounds of postponement which were relied

upon in the arbitration. I deal with the merits of this ground more fully below insofar as this may be necessary. For the moment, I comment on the circumstance that there is no foundation for this supplementary ground in the record.

74. It has been observed by Lagrange J that a ‘… weak founding affidavit can be completely replaced and augmented by a supplementary affidavit’ [62](My emphasis). This statement was made in the context of the Learned Judge explaining that grounds of review should be contained in the founding and supplementary affidavit and not in further ‘additional’ affidavits. Insofar as the Learned Judge sought to suggest that a party has carte blanche to effectively commence a review application afresh by way of a supplementary affidavit (I am by no means convinced that this is what he intended to convey), in my respectful view such an approach would be inconsistent with the authorities which hold that ordinarily new grounds of review contained in the supplementary affidavit should have their genesis in the record.

75. In Telcordia Technologies Inc v Telkom SA Ltd[63] the Court held as follows:

‘The grounds for any review as well as the facts and circumstances upon which the applicant wishes to rely have to be set out in the founding affidavit. These may be amplified in a supplementary founding affidavit after receipt of the record from the presiding officer, obviously based on the new information which has become available.’(My emphasis)

76. Thus the purpose of the supplementary affidavit is either to amplify grounds already contained in the founding affidavit with reference to the record or to add new grounds which emerge from the record. It is however not permissible to include, in the supplementary affidavit, new grounds of review which are unconnected with the record and which could and should have been included in the founding affidavit. That is exactly what occurred in this matter insofar as the ground relating to the principle of a ‘parity of arms’ was concerned and this ground should fail on this basis alone.

Preliminary Point Raised by IMATU

77. IMATU raised the following preliminary point:

‘8. By virtue of the matter not being postponed, as well as the Applicant failing to secure the presence of any form of representation, the arbitration proceeded, and a default award was issued. The application for review of the default award in this regard is premature, in that the Applicant failed to exhaust all other relevant remedies, in particular an application to rescind such award. In this regard, an argument in respect of costs will be presented at the hearing of this matter.’

78. In my view there is much to be said for this objection.

79. For the sake of clarity I record that the Municipality was entitled to have sought to review the refusal by the Arbitrator to postpone the arbitration[64]. The refusal to grant the postponement application was not a default ruling. It was made in the presence of the Municipality’s legal representative and self-evidently a party which moves an application cannot be in default of its own application. For the purposes of this application, I am also prepared to assume, without deciding, that the failure by the Arbitrator to mero motu postpone the arbitration proceedings given the production of the medical certificate, was not a default decision in that, as well appear from what is set out below, an official from the Municipality physically presented the certificate to the Arbitrator apparently expecting this gesture to result in the deferment of the matter. Thus, insofar as it was contended that it was not permissible for the Municipality to have sought to review and set aside the rulings made by the Arbitrator not to postpone the matter, this is not correct.

80. That aside, in this matter the Municipality should have first sought to have rescinded the Award insofar as it was of the mind to have challenged the substantive outcome of the Award i.e. the finding by the Arbitrator that the dismissal of Fortuin was unfair and that he fell to be reinstated. As appears from the factual matrix described more fully below, what happened is that after the two attempts to have the matter deferred failed, the Municipality effectively walked out of the arbitration. If the rescission application was unsuccessful then that ruling could have been challenged by way of a review application and if the review application was successful it would have followed, as a matter of course, that the arbitration award itself would also have been set aside[65].

81. Katritsis v De Macedo[66] dealt with a situation where a defendant walked out of trial after his legal representative had withdrawn and his request for a

postponement to enable him to engage fresh counsel to represent him had been refused. The Court held that the concept of being in default included the circumstance where Judgment is given against a defendant who appears initially but thereafter withdraws and absents himself from the remainder of the proceedings. The Court quoted Ganes’ translation of Voet and endorsed the following passage therein:

‘Moreover not only is he who does not attend at all on the day fixed to be accounted a dallier and defaulter, but also he who does indeed attend, but does not take in hand the business for the taking in hand of which the day had been appointed. For instance a plaintiff appears and makes no claim: or a defendant does not challenge the plaintiff's claim when he should do so. He who though present makes no defence is surely reckoned in the position of one who is not there; and he who when called upon does not plead is deemed to have been futile and is expressly classed as contumacious.’[67]

82. In Pitelli v Everton Gardens Projects CC[68] counsel withdrew on the day of the hearing as he did not have instructions. The Court held that, in such circumstances, the

available remedy is that of rescission, reasoning as follows:

‘An order is not final, for the purposes of an appeal, merely because it takes effect unless it is set aside. It is final when the proceedings of the court of first instance are complete and that court is not capable of revisiting the order. That leads ineluctably to the conclusion that an order that is taken in the absence of a party is ordinarily not appealable. It is not appealable because such an order is capable of being rescinded by the court that granted it and it is thus not final in its effect. In some cases an order that is granted in the absence of a party might be rescindable under rule 42(1)(a), and, if it is not covered by that rule … it is in any event capable of being rescinded under the common law.’[69]

83. The approach adopted in Katritsis and Pitelli was followed by the Labour Appeal Court in Qibe v Joy Global Africa (Pty) Ltd; In re: Joy Global Africa (Pty) Ltd v CCMA and Others[70] where Setiloane AJA held as follows:

‘…Firstly a default arbitration award made by an arbitrator in the absence of one of the parties is not final in effect, as it may be rescinded or revisited by the arbitrator who made the award. Therefore, although a default arbitration award will have full effect until set aside, it is not final for purposes of a review, as contemplated in the LRA, because the proceedings are not complete and the award may be revisited or rescinded by the arbitrator who made the default award. It follows that only the decision of the arbitrator dismissing the rescission application may be reviewed − and not the default arbitration award itself – as it is not a final decision.’[71]

84. In Morudi and Others v NC Housing Services and Development Co Limited and Others[72] the Constitutional Court, in line with the earlier quotation of Voet, explained that even in circumstances where a party is physically

present in Court but does not participate in proceedings, such a party will be regarded as being absent for the purposes of the

Uniform Rule 42(1)(a).[73] Indeed, the weight of authority suggests that even where a party files answering papers in an application, if that party does not

appear the answering papers fall to be disregarded and the judgment will be a judgment by default[74].

85. In the current matter the Municipality’s representative, although initially present at the arbitration, failed to participate therein after the dismissal of the attempts to have the matter postponed. There can thus be little doubt that the Award was issued in the absence of the Municipality and is correctly to be regarded as a default award. The Municipality acknowledged as much in the review application referring to the Award as a ‘default award’.

86. I suppose the Municipality may have reasoned to itself (one does not know – there was no response by way of a replying affidavit to the preliminary point) that it was reluctant to pursue a rescission application because the prospects of being successful therein would have been remote. The prospects of success or otherwise accompanying a rescission application are however beside the point and strictly irrelevant to the question as to whether rescission is the correct avenue to follow. In Pitelli the Court explained as follows:

‘I am mindful of the considerable hurdle that would need to be overcome by a litigant who seeks to have an order rescinded when he or she deliberately allowed it to be taken by default, bearing in mind that in order to succeed the litigant will need to provide a 'reasonable and convincing explanation' for the default. But the appealability of the order is dependent upon whether it is capable of being revisited, and not upon whether such an application will succeed. And if a litigant deliberately chooses to permit an order to go by default, then he or she can hardly complain if a court refuses to allow the matter to be reopened. A litigant cannot expect to blow hot and cold depending upon which is most advantageous at the time.’[75]

87. Lastly there is the more recent decision of Bloem Water Board v Nthako NO and Others[76], a decision which is not easily reconcilable with the authorities referred to above. The Court held that there may be exceptional

circumstances where a Court will sparingly intervene in media res (in the midst of things) where a failure to do so would result in an injustice.[77]. In Bloem what had occurred is that a party had arrived at the arbitration venue but left before the arrival of the arbitrator, apparently because the arbitrator was late and on the assumption that he would not attend. The arbitrator, having made enquiries, established that the representative of the absent party had initially attended but had left when the arbitrator did not timeously arrive. The Court found that it was in the interests of justice[78] to entertain a review application notwithstanding the failure to bring a rescission application. The Court gave a few reasons

for its conclusion.

88. Firstly, it held that Section 144 of the LRA was limited in scope and it referred to Colyn v Tiger Food Industries Limited T/A Meadow Feed Mills Cape [79] in support of this finding. The point which the Court sought to make was that, as with Uniform Rule 42, Section 144 of the LRA was confined in its application[80]. The Court did not however make mention of the seminal decision of Shoprite Checkers (Pty) Limited v Commission for Conciliation Mediation and Arbitration and Others[81] where it had already considered Tiger Food Industries and had come to the conclusion that Section 144 of the LRA was not limited in the manner that Uniform Rule 42 was. In

Shoprite Checkers the Court concluded that a rescission application brought in terms of Section 144 of the LRA would include an application brought on the broad ground of good cause[82]. Given that the Court was clearly unaware of Shoprite Checkers this raises the question as to whether the Judgment was given per incuriam.[83] I note further that any controversy regarding the interpretation of Section 144 of the LRA was rendered academic by the subsequent

addition of sub-paragraph (d) to Section 144 of the LRA which makes it permissible for a rescission application to be granted on ‘good cause shown’.

89. Secondly, the Court commented that it may be ‘especially difficult’ to show ‘absence’[84] where the legal representative had left the venue before the arbitration commenced. The Constitutional Court has subsequently made it clear in Morudi that the definition of absence is to be given a generous meaning. If parties who are physically present during a hearing but do not participate therein are regarded as being absent, it can hardly be contended that a party who was initially present but left the proceedings before the arbitrator arrived should not be regarded as having been absent for the purposes of Section 144. In my respectful view Morudi has overtaken Bloem at least insofar as this issue is concerned.

90. Fourthly, insofar as the Court sought to suggest that the absence of prospects of success in a rescission application have a bearing on whether such application should be brought[85], these sentiments would be in direct conflict with Pitelli[86], an authority also apparently not drawn to the attention of the Court.

91. Fifthly, the Court also relied heavily on Wahlhaus v Additional Magistrate, Johannesburg (Wahlhaus)[87]. Wahlhaus concerned the question of a Court intervening in unterminated or unconcluded proceedings where there was no enforceable decision and where an appeal or review would have been available once the proceedings had terminated or been finalized. Thus Wahlhaus was concerned with the question as to the circumstances in which a Court should intervene when confronted by a piecemeal review application in respect of pending proceedings. It found that this could only be done in exceptional circumstances and where a grave injustice[88] would result. Wahlhaus did not however concern a situation where, pursuant to the absence of a party, a default and enforceable finding had been issued. Thus the question of the bringing of a rescission application or the exhausting of internal remedies did not arise in in Wahlhaus. This raises the question whether Wahlhaus was correctly relied upon for support in Bloem and whether, in Bloem, the Court correctly construed the concept of in media res.

92. That all being said, Bloem ultimately found in substance that even if a party was absent, a decision by an arbitrator not to mero motu postpone an arbitration where the arbitrator had a duty to do so may constitute a reviewable irregularity. Given the discord between Bloem and earlier decisions, this is an area of the law which may need further attention by the Court in future. It suffices to record that the present matter is distinguishable from Bloem in that on both occasions when the Arbitrator refused to postpone the matter he did so pursuant to the participation, in the arbitration

proceedings, of a representative of the Municipality and accordingly these rulings were not default rulings.

93. I would add only that, as a matter of pragmatism, if, if a party is faced with the question as to whether to bring either a review

application or a rescission or possibly both, that party may either bring a recession application together with a conditional review

application (conditional upon the rescission application not being granted) or it can await the outcome of the rescission application

and then seek condonation for the late review application.[89]

94. Even if I am wrong on this score and the Municipality was entitled, in the review application, to have challenged the reasonableness of the Award insofar as it concerned the Arbitrator’s assessment of the merits of the unfair dismissal dispute, I am of the view that there can be no merit in this ground. The decision by the Municipality to spurn the opportunity to bring a rescission

application placed it on a road fraught with difficulty in terms of which it relied on a ground of review which was doomed from the outset because the Arbitrator had only heard one side of the story[90]. The determination by the Arbitrator that Fortuin was not guilty of the offence with which he was charged is not only amply justifiable on the facts but, in my view, eminently correct if one has regard to the evidentiary material before him.

95. The facts which were placed before the Arbitrator not complicated. Fortuin gave evidence in clear terms explaining as to why he was not guilty of the charge of having issued a fraudulent driver’s license. In summary what occurred at the arbitration was the following:

95.1. Fortuin explained that he had commenced his employment with the Municipality as of 1 October 2016 as an examiner of driver’s licences. He was dismissed on 30 August 2019 pursuant to a disciplinary hearing.

95.2. Fortuin then traversed all the charges which centred on an allegation that he had issued a driver’s licence, code C, to one Ms Maphiwe Stimile without Ms Stimile having been subjected to a driver’s examination.

95.3. Fortuin explained that Ms Stimile had, contrary to what was alleged in the charge sheet, indeed undergone the requisite examination on 23 January 2019 and that she had been successful in that examination.

96. Faced with the unchallenged version of Fortuin, unless the Arbitrator was of the view that his evidence was so farfetched or improbable that it fell to be rejected out of hand (there was no basis to form such a view), he was obliged to accept it.

97. It now remains for the Court to pronounce on the two outstanding grounds of review. Before doing so I need to set out the factual matrix applicable to these grounds.

The Factual Matrix

98. The matter was set down for 27 January 2020, the notice of set down having been transmitted to the parties on 14 November 2019.

99. The commencement of the arbitration was delayed when, apparently at the nudging of the Arbitrator, the parties engaged in settlement discussions which yielded no fruit. The representative of the Municipality, Mkuleli Mbebe (Mbebe), participated in these discussions. The dispute could not however be resolved.

100. Mbebe then applied for a postponement, not in terms of the Bargaining Council rules but orally from the bar. Astoundingly he requested a postponement on the basis that the Municipality was not prepared to defend the unfair dismissal dispute because it had not properly looked into the allegations of misconduct as made against Fortuin. After the application for the postponement had been made by Mbebe, the Arbitrator summarised the grounds upon which that application was based as follows:

‘COMMISSIONER: So, let me just understand. The reason why you are saying you seek postponement (sic) is that due to the technicalities and investigations that still need to be done, you still have to prepare for the case. Is that the reason for the postponement?

MR MBEBE: Yes, sir.’

101. The Arbitrator gave an ex tempore ruling dismissing the postponement application. The decision of the Arbitrator could hardly have come as a surprise. As to the contention that the Municipality still needed to conduct an investigation into the very allegations of misconduct which were relied upon to terminate the contract of employment of Fortuin, the less said about it the better.

102. After the refusal of the postponement application, the Arbitrator enquired from Mbebe as to whether he was ready to proceed and he replied in the negative. He requested a short

adjournment so that he could secure the presence of his witnesses and documentation. The Arbitrator adjourned the proceeding for an hour at 12:30 pm until 1:30 pm to allow the Municipality to get its house in order.

103. Mbebe did not however return as promised. Rather what occurred is that at 1:45 pm a Human Resources official, one Rasameni, arrived armed with a medical certificate. Rasameni did not apply for a postponement nor did she elaborate on the events surrounding the generation of the certificate. She presented it to the Arbitrator with the apparent aim of securing a postponement of the arbitration.

104. According to the Arbitrator the certificate recorded that Mbebe was ‘medically unfit for duty’ until 29 January 2020 which meant that he was booked off for 2½ days until the end of the week. The Arbitrator also stated that it was apparent ex facie the certificate that it had been generated at 1:00 pm. The certificate evidently did not impress the Arbitrator. He ruled that

the proceedings should continue in the absence of the Municipality. Fortuin presented his case and by 2:15 pm the arbitration proceedings

had concluded.

The founding affidavit

105. The founding affidavit is deposed to by Msweli who it is alleged was the City Manager at the time. The supplementary affidavit is deposed to by Mbebe who also states that he is the City Manager. One must accordingly assume that Mbebe was Msweli’s successor.

106. Msweli deposed to the founding affidavit although he had no involvement in the arbitration and no basis was laid as to how he could have had personal knowledge of the facts to which he attested. He even referred to the medical certificate as an ‘alleged medical certificate’[91], thereby appearing, inexplicably so, to cast doubt on the existence or at least on the authenticity of the very medical certificate upon which the Municipality relied as one of its grounds of review. There is no explanation as to why Mbebe, who represented the Municipality at the arbitration proceedings, and Rasameni, who also made an appearance at those proceedings with a view to furnishing the Arbitrator with the medical certificate, did not depose to an affidavit when the application was initially brought. In

identifying Msweli as the deponent, the Municipality appears to have laboured under the impression that the affidavit must be deposed to by the City Manager presumably because of his title and authority. The correct position is that once the bringing of an application has been authorised in the sense that legal practitioners have been instructed to bring that application, the identity of the deponent

should depend solely on whether he has personal knowledge of the facts to which he is required to attest[92].

107. In the founding affidavit the Municipality advances 3 primary grounds of review:

107.1. Firstly, it is alleged that the Arbitrator disregarded the medical certificate produced by the Municipality.

107.2. Secondly, it is alleged that the Arbitrator failed to appreciate that Rasamani was a “scribe”.

107.3. Thirdly, the Arbitrator did not apply his mind to the evidence which was placed before him by Fortuin.

108. The third ground has already been disposed of above. The grounds set out in 107.1 and 107.2 will be dealt with under one heading below.

The supplementary affidavit

109. The supplementary affidavit was deposed to by Mbebe. Mbebe says nothing about the circumstance that he allegedly suddenly fell ill on the day of the arbitration. He studiously avoids canvassing the medical certificate or disclosing its contents. He does not deal with the serious finding made by the Arbitrator that he obtained the certificate “under false pretences”.

110. Mbebe chooses instead to present a new ground of review in terms of which he contends that, based on the ‘parity of arms’ principle, the Arbitrator should have postponed the proceedings. In this context he records that IMATU was represented by an advocate whilst the Municipality did not have legal representation.

111. I now turn to deal with the 2 grounds upon which it is alleged by the Municipality that the Arbitrator should have postponed the proceedings, namely:

111.1. the production of the medical certificate; and

111.2. the ‘parity of arms’ principle.

The Medical Certificate

112. The Arbitrator did not go on record when Rasamani furnished him with the medical certificate and, as mentioned above, Rasamani has not deposed to an affidavit stating what, if anything, she conveyed to the Arbitrator regarding the certificate. One must thus accept the version of the Arbitrator that Rasameni did no more than furnish the certificate to him without applying for a postponement and without informing him of the circumstances surrounding the certificate[93]. Given the absence of a postponement application, the question which arises is whether the Arbitrator should, nonetheless, have postponed the arbitration proceedings mero motu.[94]

113. The first feature of this ground is that the Municipality, on which the onus rested to place the Court in a position to adjudicate the review application, failed to place the certificate before the Court. It also did not take the Court into its confidence as to the contents of that certificate. Yet in the same breath it requests the Court, which is in a state of ignorance, to make a decision as to whether the Arbitrator applied his mind to the certificate.

114. In a review application an applicant must set out not only the legal basis for the review application but also its factual basis. In Comtech (Pty) Ltd v Commissioner Shaun Molony NO & others[95] Zondo JP (as he then was) explained the position as follows:

‘[15] The difficulty with the appellant’s case in this regard relates to whether the founding affidavit contains the factual grounds required by Rule 7A(2)(c) of the Rules of the Labour Court. Rule 7A(2)(c) of the Rules of the Labour Court requires a party who applies for a review, such as the appellant in this matter, to deliver a notice of motion that must be supported by ‘an affidavit setting out the factual and legal grounds upon which the applicant relies to have the decision or proceedings corrected or set aside.’

...

[16] In my view, the contents of par 15 of the founding affidavit relate to conclusions of law. There is nothing either in par 15 or anywhere else in the founding affidavit which sets out the factual grounds upon which the appellant

sought to base its legal grounds of review. In par 15 of the founding affidavit the deponent said that the commissioner erred in his award in that he “failed and or

neglected and/or refused to apply his mind to the evidence led at the arbitration proceedings” but did not motivate this bald allegation by reference either to the evidence or the award.’ (My emphasis)

115. I am of the view that, for obvious reasons, it does not lie in the mouth of the Municipality to contend that the Arbitrator did not properly apply his mind to the certificate without, at the same time, disclosing to the Court that certificate or at least disclosing as to what was contained in it and as to how the Arbitrator failed to apply his mind to its contents. I find myself in the same position as my brother, Tlhotlhalemaje J, who, in Minya v South African Post Office Ltd and Others[96], was unable to make a decision, as it were, in the dark. In evaluating a litigant’s reliance on a medical certificate, the Learned Judge commented as follows:

‘…I agree with the submissions made on behalf of SAPO that it is not clear from the founding papers as to the nature of the applicant’s

ailment, for any conclusion to be reached that she was unable to attend the disciplinary hearing.’[97]

116. The Municipality is in an even worse position because it has not produced the medical certificate upon which it relies. Crucial questions remain unanswered. What was the diagnosis of the medical practitioner? On what basis was this diagnosis made? Medical certificates generally indicate whether the diagnosis is based on what the patient informed the medical practitioner or whether it was made on the basis of an independent examination.

117. Ms Masiza submitted that the reason why the medical certificate was not attached and its contents not disclosed was because it may have contained confidential information. I do not find the submission persuasive. Firstly, it loses sight of the obvious fact that the certificate was furnished to the Arbitrator for consideration by him and presumably the other party. Thus any right to confidentiality or privacy was waived. Second, there is no allegation by Mbebe (the patient) in his affidavit that the content of the certificate

was confidential and for that reason could not be disclosed. On the contrary, it appears to be the case of the Municipality, in the founding affidavit, that the Arbitrator should have investigated the medical condition of Mbebe. Thirdly, it is difficult to see how it can be in the interests of justice for a party to invoke the right to confidentiality or privacy in respect of its representative’s

medical condition but, in the same breath, to rely on that same medical condition for relief which would prejudice the other side.[98] It must be borne in mind that whilst medical records are confidential they are not privileged.

118. The failure by the Municipality to disclose the content of the certificate meant that it failed to lay a factual basis for this ground of review. For this reason alone, in line with Comtech, this ground of review should fail. Insofar as it may be necessary to do so, I comment further as follows.

119. The Municipality appears to have cheerfully assumed in the arbitration proceedings that the mere production of a medical certificate somehow automatically stayed the arbitration proceedings. It was seriously mistaken on this count. An unattested medical certificate is not something which can be waved about at an arbitration like one would a magic wand with a view to bringing proceedings to a halt so as to justify the disappearance of the person to whom it was issued. If the medical certificate and the circumstances surrounding its production are contentious an arbitrator is not only entitled, but in fact obliged, to consider the content of the certificate together with the circumstances in which it was obtained in exercising his discretion as to whether a postponement should be granted.

120. It is common knowledge that sick leave abuse and the production of fraudulent medical certificates is widespread and a scourge in

workplaces industry wide. In NEHAWU obo Ndweni v Member of the Executive Council, Department of Social Development and Another[99] the Court, in addressing this phenomenon, observed as follows:

‘[24] This Court has over time had to deal with instances of absenteeism, where employees for some strange reason seem to hold the view that a mere submission of a copy of a medical certificate was sufficient to justify prolonged periods of absenteeism, especially in circumstances where permission was not obtained. Most copies of medical certificates seen and relied upon by employees, are normally issued in cryptic, incomprehensible and unreadable terms, and one cannot for instance, determine from such copies whether a ‘Dermatological Condition’ as in this case, justified absence of over one month from the workplace. Ndweni’s contention that he was informed by his doctor that the diagnosed condition was contagious amounts to nothing but hearsay.

[25] It has long been held by the Labour Appeal Court in Mgobhozi that medical certificates are no different to other documentary evidence, and therefore constitutes hearsay in the absence of an affidavit from the doctor concerned. It is therefore not sufficient for employees to simply obtain a copy of a medical certificate as in this case, long after the first day of absence from work, and to merely present it with an expectation that the employer must simply accept it with no questions asked. Sick leave abuse amongst employees, whether in the public or private sector is a reality, and employers are entitled to be suspicious and skeptical of copies of medical certificates that do not make sense or say little about the employees’ alleged ailment, especially those copies that are presented after prolonged periods of absence from work, and which appear to have been post-dated.’ (My emphasis)

121. The reference to Mgobhozi is a reference to Mgobhozi v Naidoo NO & Others[100] wherein it was authoritatively held that a medical certificate is hearsay and is generally inadmissible. What is required, if the facts are contentious or where the judicial officer himself has concerns about the certificate and the circumstances surrounding its production, is an affidavit from the medical practitioner concerned in terms of which he explains the nature of the ailment, the consequent extent of incapacity of his patient, the treatment being administered and the prognosis. In short, the affidavit should explain the causal nexus between the medical condition allegedly suffered by the patient and the task from which he or she wishes to be excused.[101] The fact that a person is unfit to perform his normal duties will not necessarily mean that he is unfit to participate in an arbitration.

Furthermore, the nature of the ailment will dictate the degree of participation which can be required. By way of illustration, if the person relying on a certificate is not required to testify but merely to be present then the diagnosis must be evaluated with this in mind. It follows that where a certificate is furnished as a basis for a postponement application in questionable circumstances and there is no evidence from the medical practitioner who issued it, it will be susceptible to rejection by an arbitrator[102] and this Court will be hesitant to second-guess an arbitrator who does so[103]. This is particularly so given that, when it comes to arbitration proceedings conducted in the Commission for Conciliation, Mediation and Arbitration or a Bargaining Council, postponement applications are generally less readily granted.

122. Given that the facts surrounding the generation of a medical certificate would ordinarily be within the peculiar knowledge of the party relying on it, there would be a greater obligation on that party to adduce evidence on the certificate[104] and there is no reason why having due regard to the facts of the particular matter as well as the diagnosis contained in the certificate that, in the absence of a suitable explanation, the failure to produce an affidavit or to call a medical practitioner should not attract an adverse inference[105]. Experience has taught us that it is the dishonest witness who will present as narrow a front as possible for fear of detection or contradiction[106]. Whilst Arbitrators should avoid ivory tower reasoning and should not take a rigid or inflexible approach when exercising their discretion judicially in terms of section 138 of the LRA, in the absence of an agreement and where it is in dispute that a person claiming illness is in fact incapacitated from participating in the arbitration, ordinarily what will be required is a substantive application for a postponement supported by an affidavit deposed to by the medical practitioner concerned.

123. An insistence by an arbitrator that there be an affidavit from a medical practitioner does not mean that the Arbitrator is being unduly technical or formalistic. Whilst a degree of relaxation of formalities is a good thing, the prevention of unfairness is

better.[107] There are obvious dangers in this Court giving its imprimatur to a practice where it is considered acceptable to simply hand up a medical certificate from the bar on the assumption that an arbitration will be postponed. In Hanson, Tomkin and Finkelstein v D.B.N. Investments (Pty) Ltd[108] the Court illustrated some of the perils of an informal application for a postponement as follows:

‘[T]hat ex parte statements are made and correspondence referred to by counsel who may not be ad litem on the facts, nor fully instructed,

with the result that the Court is inaccurately informed. It might be added that it leaves room for an unscrupulous litigant to give instructions which he could not honestly depone on oath, and so advance his interests under the cloak of his counsel who, accepting those instructions at their face value, informs the Court of the facts from the Bar.’

124. There will naturally be situations where a formal application will be unnecessary or where it will not be possible to bring such an application before the commencement of an arbitration such as, for example, if a representative was to suffer a heart attack at the commencement of the arbitration or where it can be shown that a witness was seriously injured in a motor vehicle accident en route to the arbitration. It has been held that in exceptional circumstances and where, for example, there is not enough time, a doctor’s certificate may be handed up from the bar[109].In some cases it may be appropriate for an arbitration to be adjourned in order that an affidavit may be obtained from the medical

practitioner concerned or, better still, his presence secured so that he can give evidence viva voce. It would thus not be out of place where a party is represented for that representative to take a proactive approach and to secure the requisite affidavit from the medical practitioner at the time that the certificate is issued or shortly thereafter particularly in circumstances where an application for a postponement is likely to be resisted.

125. In this matter the certificate which was presented to the Arbitrator at the eleventh hour was hearsay and hearsay of the worst kind[110]. Not only was the medical practitioner not called to give evidence but the certificate was not presented by the patient but rather by a third party (a messenger) who was unable or unwilling to shed any light on it. The arbitration took place in a small town in the Karoo (Cradock). No reason was advanced in front of the Arbitrator or, for that matter, in front of this Court as to why the doctor who issued the certificate could not have deposed to an affidavit or attended the arbitration venue for a short while to authenticate the certificate and to give evidence regarding Mbebe’s condition.

126. The facts are analogous to those which obtained in Old Mutual Life Assurance Company SA Ltd v Gumbi[111]. After several failed attempts to delay and frustrate a disciplinary hearing, the representative of the employee produced a medical certificate recording that the employee was suffering, inter alia, from a headache. The Chairperson adjourned the hearing for an hour to enable the employee to recover. He suggested that the employee take headache tablets. He refused to postpone the hearing. The Court agreed with the Chairperson who it regarded as having ‘justifiably’ doubted the reliability of the medical certificate and inferred that the employee was ‘malingering’[112]. In coming to its conclusion the Court held that, in the circumstances of that case, the mere production of a medical certificate was not sufficient to justify the employee’s absence.[113]

127. Importantly, for the purposes of the review application, the Court held that:

‘The question whether the employee was really so ill that he could not attend the hearing must also be assessed against the entire conduct towards the enquiry.’

That is precisely how the Arbitrator exercised his discretion in this matter.

128. The question which cries out for an answer is as to how it happened that Mbebe who showed no signs of illness or even discomfort when he participated in the settlement discussions and when he applied for a postponement could then be booked off for 2½ days within half an hour of the unfavourable postponement ruling. The Arbitrator had to consider whether it was merely a remarkably convenient coincidence that providence had moved to rescuing the Municipality from a most uncomfortable and embarrassing position in the litigation or whether, on the other hand, the medical certificate was the product of a more nefarious design.

129. The Arbitrator, in his ex tempore ruling, reasoned as follows:

‘I have considered the events of this morning that led up to the handing in of this medical certificate. Mr Mbebe actively participated in the proceedings. And the reason why he requested a postponement at about 12:30 was to fetch his witnesses and the documentation that he was going to use or was intended to use for the arbitration hearing. And as I mentioned, instead he sent in a medical certificate. I am very suspicious of the medical certificate, because as I stated, Mr Mbebe participated in the proceedings. There was no indication, and neither did he give any indication that he was not feeling well. And it is very obvious that, in less than 30 minutes after he left here, he obtained a medical certificate from a medical practitioner. For that reason, I am not accepting the medical certificate. I believe it was obtained under false pretences after his application for postponement was refused. And having considered the events up to now, I have made the decision to proceed with the arbitration hearing in the absence of the respondent on a default basis.’ (My emphasis)

130. I agree.The events pertaining to the production of the medical certificate do not leave much to the imagination. Mbebe was not prepared to present the case on behalf of the Municipality. He said as much. He did not take the trouble to bring a postponement application as required by the rules of the Bargaining Council notwithstanding the circumstance that he had had 2½ months to do so. He sought a postponement in a cavalier manner

(without warning and from the bar) and on the spurious basis that the Municipality had not yet investigated the allegations of misconduct on which Fortuin’s dismissal was based. After the postponement was, predictably, refused, he represented to the Arbitrator that he needed a short adjournment to gather his witnesses and collate his documentation and that he would then commence with the case of the Municipality. Within half an hour of that adjournment Mbebe had secured a medical certificate booking him off for 2½ days. Mbebe was not seen again and a messenger arrived with the medical certificate. The ineluctable inference to be drawn is that, immediately after the matter was adjourned, Mbebe proceeded directly to the rooms of a medical practitioner with a view to securing the certificate. The alleged illness of Mbebe was thus bound up with the refusal of the Arbitrator to grant a postponement in the sense that, minutes after the postponement application was refused, Mbebe’s physical condition deteriorated dramatically to such an extent that he needed to approach a doctor for medical treatment. In my view the conclusion of the Arbitrator which was, in effect, that Mbebe was feigning illness with a view to orchestrating a postponement cannot be faulted.

131. As to the test for interference where an arbitrator refuses an application for postponement, in National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others[114] the following was stated:

‘A Court of Appeal is not entitled to set aside the decision of a lower Court granting or refusing a postponement in the exercise of its discretion merely because the Court of Appeal would itself, on the facts of the matter before the lower Court, have come to a different conclusion; it may interfere only when it appears that the lower Court had not exercised its discretion judicially, or that it had been influenced by wrong principles or a misdirection on the facts, or that it had reached a decision which in the result could not reasonably have been made by a Court properly directing itself to all the relevant facts and principles.’[115]

132. The test for the setting aside of a decision to refuse a postponement on appeal is thus a strict one. All the more so where a Court is asked to set aside the refusal to grant a postponement application on review and where the arbitrator who exercised that discretion was himself applying a heightened test[116]. If Mbebe had been genuinely ill and unable to attend the arbitration proceedings then, as mentioned above, he was fully entitled to have brought a rescission application and to have explained, in detail, in that application what had befallen him and how it came to be that only minutes after the refusal of the postponement application he was incapacitated to such a degree that he could not even, as a gesture of respect to the arbitration, return to explain as to what had happened.

133. Lastly, I must regretfully, under this heading, deal with one other point. In his affidavit Mzweli seeks to make capital out of the circumstance that the Arbitrator referred to Rasameni as a Human Resources official. It would seem, although it is by no means clear, he seeks to cast doubt on whether she was indeed a Human Resources official and, in so doing, to attack the Arbitrator’s finding that she had not applied for a postponement. I do not

intend to dwell on this complaint as it is apparent from my reasoning above that even if Rasamani had applied for a postponement that would not have made any difference to the outcome of the review application. Mzweli does not inform the Court what her correct title was and instead refers to the attendance registrar of the disciplinary proceedings (a document which did not serve before the Arbitrator) where she was described as a ‘scribe’. Leaving aside the circumstance that the material upon which Mzweli relies to impugn the reasoning of the Arbitrator was not placed before him and the attack is thus not only impermissible but unfair, it suffices to record that the mere fact that Rasameni acted as a scribe in a disciplinary hearing does not mean that she was not a Human Resources official.

The ‘Parity of Arms’ Ground

134. The contention that the proceedings should have been postponed so as to ensure a ‘parity of arms’ is a disingenuous one. I have already observed that it is questionable as to whether this ground of review can be entertained in the light of the circumstance that it was raised, for the first time, in the supplementary affidavit and did not arise from the

record. It is, in any event, difficult to understand as to why, if it was a genuine ground, it was not contained in the founding affidavit.

135. In his postponement application, Mbebe did make an oblique allusion to the fact that the Municipality did not have a ‘legal department’. This reference was however made in the context of the Municipality contending that it had not properly investigated the matter and was not prepared to resist the unfair dismissal claim. As has often been stated, in law context is everything. It was not, as was alleged in the supplementary affidavit, the case of the Municipality at the arbitration that it had been trying to secure the services of a legal representative and that it had been unable to do so given both the time of year and the onerous procurement procedures applicable within the Municipality. It was also not the Municipality’s case at the arbitration that it was ready to proceed but it wished to engage the services of a legal practitioner, as it were, to level the playing fields.

136. There is another reason why this ground is without merit. At the time that the application for the postponement was brought, there was no application for legal representation by IMATU and, as it turned out, IMATU elected not to make such an application. Had the Municipality properly considered the record, it would have noted that Fortuin represented himself. Thus had there been an application for postponement based on the alleged ‘parity of arms’ principle (there was none), any such an application would have been premature because the Arbitrator had not granted legal representation nor indeed had an application for legal representation been made[117]. Although not abandoned, I would mention that this ground was not pursued with any vigour by Ms Masiza in her address, wisely so.

137. In conclusion, the meandering path which the litigation has taken is remarkable. At the arbitration proceedings the Municipality applied for a postponement on the basis that it needed more time to investigate the matter and was not prepared to present its case. The Arbitrator’s refusal of this postponement application on this basis was not however challenged. Rather, in the founding affidavit of the review application, the Municipality contended that the arbitration should have been postponed, mero motu, on the basis of the production of the medical certificate. By the time that the supplementary affidavit was delivered, the grounds relied upon to attack the Award had dramatically shifted. The case of the Municipality had metamorphosised in to one in terms of which it was alleged that the Arbitrator should have postponed the matter because the Municipality had not had sufficient time to engage the services of a legal practitioner.

COSTS

138. An exasperated Constitutional Court has recently trenchantly reiterated in Union of Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and Other[118]:

‘Costs do not follow the result in labour matters’[119]

139. This of course does not mean that cost orders should not be made where law and fairness require. But when they are made, they should be properly motivated. Given the four applications it is necessary to deal with each separately when it comes to the question of costs. There was also a submission by IMATU that the legal representatives of the Municipality should be saddled with a de bonis propriis costs order.

The review application

140. I have little difficulty coming to the conclusion that costs should follow the result in the review application.

141. The review application was not only devoid of merit but wholly unsustainable. Given that the Municipality followed the wrong

route and failed to bring a rescission application, the Arbitrator’s finding that Mbebe had dishonestly feigned illness with a view to manufacturing a postponement remains intact and looms over the review application. For this reason, the review application was, as it were, born in sin and I do not think that it would be misplaced to say that the Municipality has come to Court with proverbial unclean hands. The Municipality wishes the Court to undo an arbitration award which was issued after it failed in its attempt to misrepresent to the Arbitrator that Mbebe was genuinely ill. This circumstance, together with the ungracious and unjustified attacks on the Arbitrator, raise the question as to whether the application does not amount, at least in part, to an abuse of the court process. Either way, litigation in this vein falls woefully short of what is required of Organs of State which have a higher duty to respect the rule of law[120]. Then there is the manner in which the review application was prosecuted. The Municipality sought to reargue the fairness of Fortuin’s dismissal de novo and, to that end, included substantial objectionable material in the founding affidavit. It repeated this error in the supplementary

affidavit. The grounds of review were presented in an unstructured, unfocussed and confusing, if not contradictory, fashion. There was a scatter gunning of every conceivable legal argument which could be raised. Of particular concern is the ground of review contained in supplementary affidavit which was unconnected with the record and which, in my view, was disingenuous.

If a punitive costs order had been sought, I would have considered granting it.

The Reinstatement Application

142. As mentioned earlier in this judgement, the Labour Appeal Court has held that an application for the reinstatement of a review application

which is deemed to have been withdrawn is akin to an application for condonation[121]. In other words, it is an application for an indulgence. When it comes to costs occasioned by an indulgence the position, certainly in civil proceedings, has been described as follows:

‘The general rule that costs follow the event is not applicable to successful applications for the grant of an indulgence by the court. In respect of such applications the general rule is that costs do not follow the event. The general rule is that the applicant should pay the costs of the application. …

Where an application for an indulgence is granted, who should pay the costs of opposition to such application? It has been held that the applicant for the indulgence should pay all such costs as can reasonably be said to be wasted because of the application, such costs to include the costs of such opposition as is in the circumstances reasonable, and not vexatious or frivolous. IN cases where the opposition is fair and reasonable the respondent ought not to be put into a position where they oppose the granting of an indulgence at their peril, in the sense that if the amendment is granted they cannot recover their costs of opposition, or may even have to pay such costs as are occasioned by their opposition.’[122]

143. The above approach has been endorsed by the Labour Appeal Court.[123] Whilst this Court should be cautious when borrowing from the jurisprudence of the civil courts, particularly when it comes to the question of costs, I do not think that this principle is in any way inconsistent with that espoused by section 162 of the LRA. It is, after all, grounded in notions of fairness and justice. In my view, whether a party is seeking an indulgence is an important factor in determining whether a costs order should be made particularly where the indulgence sought has the result that the matter is delayed to the prejudice of the other party and is accordingly not finalised expeditiously as required by the LRA. Thus even if I had granted the reinstatement application I would, applying the above principle, have been inclined to have made an adverse costs order against the Municipality.

144. Leaving aside the lack of merit in the reinstatement application, I am of the view that one cannot divorce it from the review application and accordingly the contents of paragraph 141 above also have a bearing on the reinstatement application. In the result costs should be awarded against the Municipality in this application.

The Dismissal Application

145. Before dealing with the costs occasioned by the dismissal application, there is an ancillary issue which, for the sake of completeness, I wish to comment on. It is that IMATU delivered its replying affidavit and its objection to the late delivery of the answering affidavit simultaneously. IMATU did so with the aim of reserving the right to contend that the dismissal application was unopposed because it had delivered a notice of objection and there was no application for condonation. In my view this strategy is not permissible for two reasons.

146. First, a dismissal application is an interlocutory application brought in terms of Rule 11. Rule 11 provides no more than that such an application must be brought on notice. The Labour Court Rules do not prescribe time limits for interlocutory applications. In interlocutory application an applicant can prescribe any reasonable period it deems fit between the delivery of such an application and the hearing of it.[124] Generally, no directions are given with regard to the delivery of answering and replying affidavits and when they are necessary, they should be filed within a reasonable time[125]. Importantly paragraph 11.4.2 of the Practice Manual only applies to time periods provided for in the Labour Court Rules. It accordingly does not apply to an interlocutory application.

147. Even if paragraph 11.4.2 of the Practice Manuel did apply, I am of the view that it is not permissible for a party to simultaneously deliver a notice of objection and a replying affidavit and to seek to rely on both. Had IMATU delivered a notice of objection and not delivered a replying affidavit, then the answering affidavit could have been ignored and the application be regarded as an unopposed one.[126] The question which arises is what happens when an answering affidavit is out of time and there is no application for condonation yet the applicant elects, nonetheless, to deliver a replying affidavit? In such circumstances can it still be said that the application is unopposed because there is no application for condonation and because there is a notice of objection filed together with the replying affidavit? In other words, is it open to an applicant to deliver a replying affidavit but in that replying affidavit to reserve the right to contend that the answering affidavit should be disregarded because it is out of time and there is no condonation application?

148. In Cookhouse Wind Farms, I had occasion to adjudicate upon the situation where an answering affidavit was delivered substantially out of time and where,

notwithstanding the absence of a condonation application, the applicant elected to deliver a replying affidavit. In that

replying affidavit the applicant nonetheless contended that the matter was unopposed because the answering affidavit had been unaccompanied by a condonation application. The question which arose was whether it was open to the applicant to contend that the matter was unopposed notwithstanding the fact that it had delivered a replying affidavit. I found that it was not. I quote from the following passages in that judgment:

“18. In response to the submissions made by Mr Preis, Mr Kirk-Cohen submitted that if the Applicant had been of a mind to object to the late delivery of the answering affidavit then it was required to have invoked the irregular step procedure contained in Rule 30.

19. He submitted that, having taken a further step, it was not open to the Applicant to complain, ex post facto, that the delivery of the First Respondent’s answering affidavit was irregular by reason of the absence of a condonation application. This was because, so he submitted, an election had been made when the replying affidavit was delivered.

22. In the Court’s view there is much to be said for the argument advanced by Mr Kirk-Cohen that the Applicant has an election to either invoke Rule 30 or to deliver a replying affidavit notwithstanding the irregular answering affidavit.

23. An analogous situation arose in Mynhardt v Mynhardt[127] where the wrong form of the notice of motion was utilised. There the Court held that because the respondent had elected to answer (and not to object), he had effectively abandoned or given up his right to challenge the admittedly irregular notice.[128]

24. In this matter it is difficult to see why similarly the Applicant should be permitted to have it both ways, namely to answer to the allegations contained in the answering affidavit but in the same breath to contend that the answering affidavit should be regarded as pro non scripto.

25. Thus, leaving aside the circumstance that the delivery of the replying affidavit would constitute a further step immunising the answering affidavit from attack, there is a material inconsistency in delivering a substantial replying affidavit to an answering affidavit which for all intents, so it is contended by the Applicant, does not exist. Notwithstanding the protestations contained in the introduction to the replying affidavit, the very delivery of a replying affidavit is in the Court’s view an acceptance of the fact that the answering affidavit was not to be treated as a nullity.

26. Expressed differently, in my view where, as in this case, an answering affidavit is delivered out of time and an applicant takes a further step by delivering a replying affidavit, that applicant is in the same position as an applicant who has agreed in terms of Rule 27(1) to afford a respondent an extension for the delivery of the answering affidavit.”

149. I can see no reason why the same approach should not be adopted in proceedings before this Court. It is a trite principle that parties should not be allowed to blow hot and cold and the above approach promotes both expedition and economy. I cannot see why the existence of a provision in the Practice Manual for the delivery

of the notice of objection should alter the position. When a party delivers a notice of objection that party will not be permitted, as has happened in this matter, on the strength of that notice to arrogate to itself the power to blow hot and cold and thereby to deliver a replying affidavit yet at the same time cling to its objection. That would be to promote unnecessary litigation which

would defeat the purpose of clause 11.4.2 of the Practice Manual. In such circumstances the delivery of a replying affidavit would constitute a further step. It will further constitute a constructive abandonment of the notice of objection. Thus, where an answering affidavit is delivered out of time, an applicant will have two options. It may deliver its notice of objection or it may deliver a replying affidavit. It may not do both.

150. Returning to the question of the costs attendant upon the dismissal application, as mentioned above IMATU abandoned the dismissal

application after the Court raised the question as to whether it was necessary and could serve any purpose. IMATU was thus in the same position as an unsuccessful litigant. On the one hand the question may be asked as to why the Municipality should be put to the expense of having to oppose an application which should not have been brought in the first place. On the other hand, the reason why the application was ultimately withdrawn had nothing to do with what was contained in the answering affidavit but occurred in reaction to the legal point raised by the Court mero motu. It was not therefore necessary to have filed a lengthy answering affidavit in opposition to the application. The Municipality

could simply have given notice that it would argue that the application was fatally defective.[129] Given that the application was unnecessary, I would ordinarily have considered making an adverse costs order against IMATU and, given the unnecessary opposition, I may have ameliorated that order by requiring IMATU to pay a portion of the costs of the dismissal application. In so doing a signal could have been sent to practitioners that the institution of unnecessary legal proceedings will attract the censure of the Court.However, when I consider the overall manner in which the litigation was conducted by the Municipality, I am not inclined to make such an order.

The Postponement Application

151. Given the agreement between the parties that the matter be rolled over to 9 July 2021, it was unnecessary to pronounce upon the postponement application. Papers were however filed and the parties did appear on 6 July 2021. The question which arises is what happens to the wasted costs occasioned by the first postponement application. When dealing with an application which has, as in this case, become moot, a Court must inevitably consider the merits of the application when making a decision regarding costs.[130]

152. The Municipality sought a postponement on the basis that its counsel had tested positive for the COVID-19 virus and was ill. It was further alleged that an offer was made that the matter be heard virtually and that there was a delayed response from the representatives of IMATU which only came on 2 July 2021 in terms of which, if I understood it correctly, it was recorded both that the request for the postponement was not acceded to and that IMATU was also not prepared to agree to the matter being heard virtually.

153. Ordinarily, if a legal representative falls ill and is, for that reason, unable to attend to a matter and there is insufficient time to engage an alternative legal representative, this would constitute good grounds for a postponement. However, the lack of detail in the founding affidavit on this crucial question makes it difficult for

the Court to assess the motives and conduct of the Municipality. The postponement application does not disclose when counsel tested

positive for the COVID-19 virus (or fell ill for that matter) and there is also no explanation as to why the heads of argument which were due on 14 June 2021 were not timeously delivered. Although there is reference to a request allegedly made to IMATU for an agreement to postpone, the date of this request is not disclosed. Lastly, the allegation that the matter could be heard virtually is difficult to reconcile with the apparent allegation that counsel was too ill to attend to the matter.

154. On the other hand, the answering affidavit is, in my view, also not entirely satisfactory. This may be attributed, at least in part, to the circumstance that the affidavit deposed to in support of the postponement application was delivered at the eleventh hour and there was thus limited time within which to draft an answering affidavit. What is perhaps a matter for concern is that IMATU does not appear to contest the fact that it refused to agree to the matter being heard

virtually. The answering affidavit of IMATU does not meaningfully deal with the allegation that on 2 July 2021 an email was belatedly

transmitted to the Municipality recording that IMATU would not agree that the matter be heard virtually.

155. Given that the Municipality was seeking an indulgence (see above) and it cannot be said, on the papers before me, having particular regard to the absence of meaningful detail in the postponement application coupled with the excessive delays which have been occasioned by the Municipality, that the opposition by IMATU was unreasonable, I am of the view that the postponement application should attract a costs order as parties need to be aware that when applications are brought for the postponement of matters in this Court, these should be fully substantiated and should be timeously brought[131]. However in the light of the circumstance that both sides do not appear to be blameless and given the valiant effort by Ms Masiza, on behalf of the Municipality, on short notice to agree to appear three days later in the matter so as to avoid an unnecessary postponement, I am of the view that the requirements of law and fairness would be served if the Municipality pays 50% of the wasted costs occasioned by the postponement of the matter on 6 July 2021.

De bonis propriis costs order?

156. At the hearing Mr Booyens urged the Court to make a cost order de bonis propriis against the Municipality’s legal representatives. In support of this contention, he emphasised the delays which had accompanied the conduct of the litigation and he also stressed that the review application was without merit.

157. The immediate difficulty which I have with the request is that it cannot be said that it was timeously made. There was no request for a costs order de bonis propriis in the answering papers as is normally required[132] nor was there a request in the heads of argument for such an order. The first time a request was made for such an order was at the hearing. The attorneys of the Municipality have accordingly not had an opportunity to make representations in response to such a request.[133] The Court is of course at liberty to issue a rule nisi or a direction calling upon the legal representatives of the Municipality to show cause as to why costs should not be awarded against them de bonis propriis[134] but that would normally be in circumstances where the Court raises the question mero motu. Litigants are required to timeously disclose the relief which they seek so as to avoid unnecessary delays and to ensure finality in the litigation.

158. Whilst I have been critical of the manner in which the litigation was conducted, I am not persuaded that this is a case where a de bonis propriis cost order is warranted. The delays and the negligence accompanying them would not, in and of themselves, be grounds for making a de bonis propriis costs order. In both instances, the municipality took the trouble to seek condonation. To put the proverbial boot on the other foot, it is worth mentioning that IMATU brought a dismissal application which should not have been instituted in the first place.

159. I now turn to the circumstance that the review application was without merit and, in my view, falls within the province of frivolous and vexatious litigation. Whilst legal practitioners bear a heavy responsibility in the manner how litigation is conducted, the Court does not lose sight of the fact that the case is that of the litigant and that the litigant has a constitutional right to have his day in Court[135]. There can be no basis upon which a Court can penalise a practitioner solely because his client is an unreasonable litigant and the practitioner concerned is doing no more than his duty which is to act in the course and scope of his mandate. It would have to be very clearly demonstrated that the practitioner had cognisably made himself a party to the unreasonable litigation in the sense that it could also be said that he was a driving force behind it before such an order could be considered on the basis that the litigation was frivolous.

160. The granting of a costs order de bonis propriis is an extraordinary measure[136]. In Multi-Links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd; Telkom SA Soc Limited and Another v Blue Label Telecoms Limited and Others[137] the principles relating to costs orders de bonis propriis against legal practitioners were summarised. The Court emphasised that such orders would not always be justified in the case of errors of law and non-compliance with the rules. It held as follows:

‘[34] Costs are ordinarily ordered on the party and party scale. Only in exceptional circumstances and pursuant to a discretion judicially exercise is a party ordered to pay costs on a punitive scale. Even more exceptional is an order that a legal representative should be ordered to pay the costs out of his own pocket … [T]he obvious policy consideration underlying the court’s reluctance to order costs against legal representatives personally, is that attorneys and counsel are expected to pursue their client’s rights and interests fearlessly and vigorously without undue regard for their personal convenience. In that context they ought not to be intimidated either by their opponent or even, I may add, by the court. Legal practitioners must present their case fearlessly and vigorously, but always within the context of set ethical rules that pertain to them, and which are aimed at preventing practitioners from becoming parties to deception of the court. It is in this context that society and the courts and the professions demand absolute personal integrity and scrupulous honesty of each practitioner …

[35] It is true that legal representatives sometimes make errors of law, omit to comply fully with the Rules of Court or err in other ways related to the conduct of the proceedings. This is an everyday occurrence. This does not, however, per se ordinarily result in the court showing its displeasure by ordering the particular legal practitioner to pay the costs from his own pocket. Such an order is reserved for conduct which substantially and materially deviates from the standard expected of the legal practitioners, such that their clients, the actual parties to the litigation, cannot be expected to bear the costs, or because the court feels compelled to mark is profound displeasure at the conduct of an attorney in any particular context. Examples are, dishonesty, obstruction of the interests of justice, irresponsible and grossly negligent conduct, litigating, in a reckless manner, misleading the court, and gross incompetent and a lack of care.’ (My emphasis)

161. I am prepared to afford the legal representatives of the Municipality the benefit of the doubt and to assume that there was no bad faith or impropriety and that at worst, in advising their clients, they were guilty of no more than ‘muddled thinking’.[138] It also seems to me that this is not a case where the client is itself blameless. Indeed, while the conduct of the legal representatives of the Municipality is by no stretch beyond reproach, looking at the matter objectively and holistically, it seems to me that the greater culprit in this unfortunate saga is the Municipality and for this reason it cannot be said that this is a case where the

client should not bear the costs of the proceedings. Other legal practitioners may however find that the Court will not be as generous

in their matters[139].

162. The legal representatives of the Municipality did come perilously close to being called upon, in terms of the inherent powers of this court to regulate the fees of Officers of the Court, to show cause as to why they should not forfeit the fees attendant upon the bringing of the review application or at least a portion of those fees such as the fees attendant upon the compilation and filing of the record[140]. I am in the main concerned that public funds were utilised to prosecute a review application which should not have been brought. The Municipality would have been better served had it received advice to rather investigate how the default award came to be issued and the suspicious circumstances surrounding the generation of the medical certificate and in this exercise to have established as to whether Mbebe was possessed of an exculpatory explanation for his conduct.

163. The Court has recently reemphasized the ethical obligations resting on legal practitioners stating as follows:

‘[47] It was emphasized in Mashishi v Mdladla and Others that the ethical duties resting on legal practitioners are not confined to the imperative that they conduct themselves with scrupulous honesty and integrity, but extend to and govern the manner in which litigation is conducted by them. It has always been so, given his paramount duty to the Court, that an officer of the Court is not the mere hireling or mouthpiece of his client. He is more than an agent or a proxy. His special role in upholding the values of the Constitution is “without parallel”. He owes an allegiance to a higher cause i.e. the fair and efficient administration of justice and with this in mind he has a heavy responsibility vis-a-vis the Court to autonomously

exercise his own judgment when pursuing a claim on behalf of his client.

[48] In Mzayiya v Road Accident Fund the following observation by Chief Justice Mason of the High Court of Australia was quoted with approval:

‘12 ... it is that a barrister's duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient administration of justice. [In so doing] ... counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily...’

[49] The sentiments expressed above apply with equal, if not more, force to legal practitioners who ply their trade in a forum such as the Labour Court...’[141]

164. Where a practitioner encourages a litigant with deep pockets to institute a meritless review application in what would amount to a thinly veiled strategy to protract the litigation and thereby to wear down and exhaust the opposition (almost always an employee), he may also find himself in violation of the Code which provides that:

’60.2 A legal practitioner shall not deliberately protract the duration of a case before a court or tribunal.’

165. The cynical ‘playing of the system’ by well-resourced litigants through attritional litigation in defence of the indefensible with the result that an employee’s

constitutional right to fair labour practices is rendered illusory is a stain on Labour Law jurisprudence[142]. As was stated by Van Wyk J[143]: ‘[t]here is such a thing as the tyranny of litigation, and a Court of law should not allow a party to drag out proceedings unduly’.

Practitioners should be astute to dissociate themselves from such efforts by their clients.

166. When it is an Organ of State, with its special obligation to uphold the rule of law, which has made itself guilty of protracting the litigation it is a more serious matter. In Road Accident Fund v Commission for Conciliation, Mediation and Arbitration and Others[144], Tlhotlhalemaje J found that the Fund, in that matter, was ‘bent on litigating the Employees to submission or a pulp, and unfortunately, at the expense of the long suffering taxpayer’[145]. The Learned Judge elaborated as follows:

“[51] There is a limit to which the Applicant as a public funded entity can continue to litigate. The pockets of the tax payer are not a bottomless pit. The irony of it all is that with these countless litigation manoeuvres and threats of future litigation, the Applicant professes to do so in the name of asserting its rights, and does not consider it to be a waste of public funds. I however believe otherwise, as such conduct clearly appears to have little or no regard for the interests of hapless tax payer, nor the interests of expeditious resolution of disputes, which all parties are entitled to in terms of our laws.”

167. Looking at this matter holistically, the degree of responsibility, if any, which should be borne by the legal representatives of the Municipality for the ill-fated review application is not readily apparent. At first glance the facts are indicative of some

collaboration. I have reservations as to whether it was the Municipality, on its own version without a legal department, which took the decision not to bring a rescission application and chose instead to mount the ill-conceived attempt to reargue the merits of Fortuin’s dismissal afresh through the vehicle of the founding affidavit in the review application. Similarly the belated but contrived construction of the ‘parity of arms’ ground which was built around and not on the evidence in the record has the hallmarks of an argument concocted by a paid for legal mind. This notwithstanding, the matter has dragged on for long enough and it is not desirable for the Court to investigate it any further.[146] Again, another Court may not be as accommodating as this Court.

ORDER

168. The reinstatement application is dismissed.

169. The review application is accordingly dismissed.

170. The Applicant is to pay the costs of the reinstatement application.

171. The Applicant is to pay the costs of the review application.

172. The Applicant is to pay 50% of the wasted costs of the postponement application brought on 6 July 2021.

173. Each party is to bear its own costs in respect of the dismissal application.

P. N. Kroon

Acting Judge of the Labour Court of South Africa

Appearances:

For Applicant: Adv

Masiza

Instructed by: Zepe

& Company

For Third Respondent: Mr

Boyens

Instructed by: Boyens

Attorneys Inc.

[1] The Court notes that it is a salutary practice to set down review and reinstatement applications together. See NUMSA obo Charles v DSV Solutions (Pty) Ltd and Another (PR118/20) [2021] ZALCPE 11 (22 October 2021).

[2] At the time that the matter was heard he had had been elevated to the post of City Manager

[3] Ntoyakhe v Minister of Safety and Security and Others 2000 (1) SA 257 (E) at 264F. Phillips v Grobler & Others [2020] 1 All SA 253 (WCC) at paras [29] to [32]

[4] Case no. PR97/20 as handed down on 26 October 2021 in the Port Elizabeth Labour Court at paras [8], [10], [13] and [14]. See also Macaskill v State Information Technology Agency (Pty) Ltd (SITA) and Others (JR 267/20) [2021] ZALCJHB 220 (11 August 2021); SG Bulk, A division of Supergroup Africa (Pty) Ltd v Khumalo and another in re Nkuna v NBCRFLI and Others (Case no: JS393/19 & JR537/13) (13 April 2021); Gema v National Commissioner of South African Police Service and Others (D1972/18) [2021] ZALCD 65 (5 October 2021) contra Mthembu v Commission for Conciliation, Mediation & Arbitration & Others (2020) 41 ILJ 1168 (LC)

[5] Cf. MEC for Health, Province of Eastern Cape NO and Another v Kirland Investments (Pty) Ltd t/a Eye & Laser Institute 2014 (3) SA 219 (SCA) at para [27].

[6] Sidas Security at para [9]

[7] Sidas Security at para [18]

[8] Sidas Security at para [10]

[9] Cf Ardnamurchan Estates (Pty) Limited v Renewables Cookhouse Wind Farms 1 (RF) (Pty) Ltd and Others [2021] 1 All SA 829 (ECG) at para [54]

[10] In Trans-African Insurance Co. Ltd. v Maluleka 1956 (2) SA 273 (A) at pg 278, Schreiner JA commented: “...technical objections to less than perfect procedural steps should not be permitted in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits.”

[10] In Trans-African Insurance Co. Ltd. v Maluleka 1956 (2) SA 273 (A) at pg 278, Schreiner JA commented:

“...technical objections to less than perfect procedural steps should not be permitted in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits.”

[11] Clause 11.2.6.

[12]The masculine gender is used in this judgment for the sake of conciseness. References to the masculine gender include the feminine

gender.

[13]Such as the Arbitrator’s VAT invoices and documentation relating to his travel and accommodation disbursements

[14] Venmop 275 (Pty) Ltd and Another v Cleverland Projects (Pty) and Another 2016 (1) SA 78 (GJ)

[15] Para 11.2.7 of the Practice Manual.

[16] See para [49] of this judgment.

[17] Cf. Bel-Essex Engineering v NUMSA & Others (case no. PA5/02) (23 December 2003) at paras [23] to [31] wherein the Court held that, where there was an agreement, that the evidence did not have to be adduced under oath.

[18] Cf. DB Thermal (Pty) Ltd v CCMA & Others [2000] 10 BLLR 1163 (LC) at paras [20] to [22]

[19] Arends and Others v South African Local Government Bargaining Council and Others (2015) 36 ILJ 1200 (LAC) at paras [16] and [17]

[20] SACCAWU & Others v President, Industrial Tribunal & Another [2000] ZASCA 163; 2001 (2) SA 277 (SCA) at para [7]

[21] Cf. Gema supra at paras [40] and [41]

[22] Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC) at para [17]

[23]Clause 11.2.1 of the Practice Manual

[24] Montsisi v Minister of Police 1984 (1) SA 619 (A). See also National Commissioner of SA Police Services and Others v Phopho (2021) 42 ILJ 1666 (LAC) at para [81]

[25] Grootboom v National Prosecuting Authority and Another [2014] 1 BLLR 1 (CC) at para [27]

[26] [2003] 4 All SA 37 (SCA)

[27] At para [6]

[28] Mulaudzi v Old Mutual Life Insurance Company (South Africa) Limited and Others, National Director of Public Prosecutions and Another v Mulaudzi [2017] 3 All SA 520 (SCA) at para [26]

[29] Cf. Van Wyk v Unitas Hospital & Another (Open Democratic Advice Centre as Amicus Curiae) [2007] ZACC 24; 2008 (2) SA 472 (CC) at para [31]

[30] Cf. Minister of Justice v Ntuli [1997] ZACC 7; 1997 (6) BCLR 677 (CC) at para [29].

[31] Queenstown Fuel Distributors CC v J Labuschagne and Others (2002)) 21 ILJ 166 (LAC)at paras [24] and [25]. See also MEC for Education: North West Province v Rasutha and Others (JR689/14) [2018] ZALCJHB 299 (28 September 2018) at para [18].

[32]Cf. Van Wyk supra at para [34]; Grootboom v National Prosecuting Authority and Another supra at para [29]

[33] Cf. University of North-West Staff Association and Others v Campus Rector of the University North-West and Others (471/2007) [2007] ZANWHC 51 as delivered on 27 September 2007 at para [16] where Mogoeng JP (as he then was) set aside an answering affidavit which was late, recording as follows: “Their filing of their answering papers out of time and without even seeking condonation for the late-filing of their papers was indeed an irregular step in terms of Rule 30.” Although there is no provision in the Labour Court Rules for the institution of irregular step proceedings the Labour Appeal Court has made it clear that where there is a lacuna in the rules the Labour Court will borrow from procedures in the Uniform Rules. See Public Servants Association of South Africa v Minister of Department of Home Affairs and Others [2013] 3 BLLR 237 (LAC) at para [7] read with Randfontein Estates Ltd v Tembe and Others (2003) 24 ILJ 2001 (LC) at paras [17] to [23]. That is not to say that the delay in the delivery of a supplementary affidavit where there has been no application for condonation (but an answering affidavit nonetheless filed) will not be taken into account when a Court is considering the matter holistically with a view to evaluating whether an applicant has displayed a pattern of dilatory conduct.

[33] Cf. University of North-West Staff Association and Others v Campus Rector of the University North-West and Others (471/2007) [2007] ZANWHC 51 as delivered on 27 September 2007 at para [16] where Mogoeng JP (as he then was) set aside an answering affidavit which was late, recording as follows:

“Their filing of their answering papers out of time and without even seeking condonation for the late-filing of their papers was indeed an irregular step in terms of Rule 30.” Although there is no provision in the Labour Court Rules for the institution of irregular step proceedings the Labour Appeal Court has made it clear that where there is a lacuna in the rules the Labour Court will borrow from procedures in the Uniform Rules. See Public Servants Association of South Africa v Minister of Department of Home Affairs and Others [2013] 3 BLLR 237 (LAC) at para [7] read with Randfontein Estates Ltd v Tembe and Others (2003) 24 ILJ 2001 (LC) at paras [17] to [23]. That is not to say that the delay in the delivery of a supplementary affidavit where there has been no application for condonation (but an answering affidavit nonetheless filed) will not be taken into account when a Court is considering the matter holistically with a view to evaluating whether an applicant has displayed a pattern of dilatory conduct.

[34]Cookhouse Wind Farms supra.

[35] Cf Lawyers for Human Rights v Rules Board for Courts of Law and Another [2012] 3 All SA 153 (GNP); 2012 (7) BCLR 754 (GNP) at para [21](a) to (d)

[36] Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC) at para [15]. Jockey Club of South Africa v Forbes 1993 (1) SA 649 (AD) at 660 G

[37] Lubbe v Roop NO & Others (2012) 33 ILJ 1695 (LC) at para [7]; SACCAWU at para [7]. See also Venmop at para [9] where it is made clear the adequacy or otherwise of the record is to be dealt with in the affidavits.

[38] Reviews in the Labour Courts, Anton Myburgh and Craig Bosch, First Edition at pg 436.

[39] Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others [2016] 3 BLLR 217 (CC) at paras [30] and [31]; Colett v Commission for Conciliation, Mediation and Arbitration and others [2014] 6 BLLR 523 (LAC) at para [5].

[40]See Mthembu v Unique Air, Parnis Airport Maintenance Services (Pty) Limited v CCMA and Others (J3915/00, J6056/00) [2001] ZALC 114 (31 July 2001)

[41] See Samuels supra at para [15].

[42] Lentsane & Others v Human Sciences Research Council (2002) 23 ILJ 1433 (LC) at para [26]

[43] See paras 142 to 150 of the Judgment.

[44] 1974 (3) 800 (E)

[45] At pgs 804 to 806.

[46] Lentsane supra at para [24]. Transport and General Workers Union & Others v Hiemstra NO & Another (1998) 19 ILJ 1598 (LC) at para [7]

[47] Cf. Bezuidenhout v Johnston NO & Others [2006] 12 BLLR 1131 (LC) at para [24].

[48] [2007] 12 BLLR 1097 (CC)

[49] At para [119]

[50] Fidelity Cash Management Services v Commission for Conciliation, Mediation and Arbitration and Others [2008] 3 BLLR 197 (LAC) at para [103]

[51] (1998) 19 ILJ 815 (LC)

[52] At para [14]

[53] Cf. Vaatz v Law Society of Namibia 1991 (3) SA 563 (Nm) at 567B

[54] Cf. FNB v CCMA [2017] 11 BLLR 1117 (LC) at paras [119] to [124]

[55] 2021 (3) SA 88 (SCA)

[56] At para [145]

[57] Turnbull-Jackson v Hibiscus Court Municipality and Others 2014 (6) SA 592 (CC) at para [35]

[58] Abrahams and Another v RK Komputer SDN - BHD and Others 2009 (4) SA 201 (CPD)

[59] See clauses 61.6 and 61.10 of the Code of Conduct for Legal Practitioners, Candidate Legal Practitioners and Juristic Entities (the Code) as published in terms

of Section 36(1) of the Legal Practice Act 28 of 2014 (the LPA)

[60] Abrahams at pg 212 B-E

[61] Cf. Thunder Cats Investments 49 (Pty) Ltd and Others v Fenton and Others 2009 (4) SA 138 (CPD) at para [25]

[62] Bafokeng Rasimone Platinum Mine (Pty) Ltd v CCMA and Others (2015) 36 ILJ 3045 (LC) at para [5]

[63] 2007 (3) SA 266 (SCA) at para [32]. Telcordia was endorsed in Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another 2009 (6) BCLR 527 (CC) at para [52]. Although the endorsement is to be found in the minority judgment of Kroon J, the majority did not take a different view. In Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another 2008 (7) BCLR 725 (SCA) at para [15] the Court went so far as to hold that raising grounds of review not connected with the record in a supplementary affidavit amounts to an abuse of the Court process. Although this judgment was overturned on appeal by the Constitutional Court, this finding was not disturbed and, as mentioned above, it was endorsed by the minority.

[64] Carephone (Pty) Ltd v Marcus NO2 (1998) 19 ILJ 1425 (LAC). See the cases listed in Reviews in the Labour Courts supra at pages 220 and 221.

[65] Cash Paymaster Service (Pty) Ltd v Mogwe & Others (1999) 20 ILJ 610 (LC) at 616C.

[66] 1966 (1) SA 613 (A)

[67] Katritsis at 618 D-E

[68] 2010 (5) SA 171 (SCA)

[69] At para [27]

[70] [2015] 4 BLLR 415 (LAC)

[71] At para [10]

[72] 2019 (2) BCLR 261 (CC) at paras [37] to [39]

[73] At paras [38] and [39].

[74] Ferreiras (Pty) Ltd v Naidoo and Another (69094/2014) [2017] ZAGPJHC 392 (11 December 2017) at para [17] and in particular para [17.2.3]. See also Routier v Routier (A5048/2018) [2019] ZAGPJHC 452 (24 October 2019)

[75] At para [34]

[76] [2017] 11 BLLR 1073 (LAC)

[77] At para [12]

[78] At para [17]

[79] [2003] 2 All SA 113 (SCA)

[80] At para [15]

[81] [2007] 10 BLLR 917 (LAC)

[82] At para [33]

[83] Bargaining Council for the Clothing Industrial (Natal) v Confederation of Employers of Southern Africa (D136/98) [1998] ZALC 35 (15 June 1998)

[84] At para [15]

[85] At paras [12] and [15]

[86] See para [86] of this judgment

[87] 1959 (3) SA 113 (A)

[88] This is not the same test that Bloem applied. Bloem applied the less onerous test of whether it was in the interests of justice to entertain the matter. Wahlhaus is no longer applicable to the piecemeal review of decisions made during conciliation and arbitration and the test is now a statutory one, namely whether it is “just and equitable” to review a decision before the main issue in dispute has been finally determined. See Section 158(1B) of the LRA.

[89] Northern Province Local Government Association v CCMA and Others [2001] 5 BLLR 539 (LC) at para [3]. I would hasten to record that, in my respectful view, this decision was clearly wrong in another respect in that, contrary to what was held in Qibe, the Court appeared to be under the impression that it could review both the recission ruling as well as the award itself.

[90] Magic Company v Commission for Conciliation Mediation and Arbitration and Others (C682/03) [2005] ZALC 37 (19 January 2005) at para [14].

[90] Magic Company v Commission for Conciliation Mediation and Arbitration and Others (C682/03) [2005]

ZALC 37 (19 January 2005) at para [14].

[91] Para 27 of the founding affidavit

[92] Cf. ANC Umvoti Council Caucus v Umvoti Municipality 2010 (3) SA 31 (KZP) at paras [22] to [29]

[93] In this context the Arbitrator recorded as follows in the Award: ‘Ms Rasameni did not apply for postponement (sic) or explained (sic) the circumstances relating to the medical certificate.’

[94] Cf. Mega Burger v Commissioner Louw N.O. and Another (2000) 21 ILJ 1375 (LC) at 1377 H–J

[95] Case no DA12/05 as handed down on 21 December 2007

[96] (2021) 42 ILJ 141 (LC)

[97] At para [24]

[98] Cf. S v Zuma and Another (CCD30/2018) [2021] ZAKZPHC 89 (26 October 2021) at para [266]

[99] (JR1488/15) [2017] ZALCJHB 90 (14 March 2017)

[100] (2006) 27 ILJ 786 (LAC)

[101] Baron Camilo Agasim-Pereira of Fulwood v Wertheim Becker Incorporated [2006] (4) All SA 43 (E)

[102] See National Union of Metalworkers of South African and 42 Others v Kaefer Energy Products (Pty) Ltd (JS 567/2018 7/9/2021) which followed Mgobhozi.

[103] Cf. MIT Tissue v Theron & Others [2000] 8 BLLR 947 (LC)

[104] Cf. Rabie v Kimberley Munisipaliteit en Ander 1991 (4) SA 243 (NC) at 259D-F.

[105]Cf. Galante v Dickinson 1950 (2) SA 460 (A) at 465

[106] Cf. South African Legal Practice Council v Bobotyana [2020] 4 All SA 827 (ECG) at para [71].

[107]Cf. Exxaro Coal (Pty) Ltd v Chipana and Others (2019) 40 ILJ 2485 (LAC) at para [35]

[108] 1951 (3) SA 769 (N) at 773 F-G

[109] Cf. Joshua v Joshua 1961 (1) SA 455 (GWLD) at 457 A-C. Joshua placed reliance on Hanson. For the sake of completeness I note that in Hanson what occurred is that an affidavit was handed up from the bar (not a medical certificate) and the Court ruled in that matter that a formal application was not, in the circumstances, necessary.

[110]Cf. Primich v Additional Magistrate, JHB and Another 1967 (3) SA 661 at 669 F.

[111] [2007] 4 All SA 866 (SCA)

[112] At para [18]

[113] At para [19]. One must of course bear in mind that rules of evidence, such as they are, in disciplinary proceedings are on a different

footing to those which apply to arbitration proceedings.

[114] 2000 (2) SA 1 (CC).

[115] At para [11].

[116] Carephone supra at para [55]. In Fundi Projects & Distributors (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others 2006 (27) ILJ 1136 (LC) at para [14], Van Niekerk AJ (as he then was) observed that since the handing down of Carephone, the power of commissioners to award costs has changed. In my respectful view, given the limits placed on the amount of costs

which can be awarded in the Commission for Conciliation, Mediation & Arbitration or a bargaining council, it will only be in rare circumstances where a costs order can meaningfully address the prejudice occasioned by a postponement.

[117] A legal representative appeared on behalf of IMATU with a view to assisting with the settlement negotiations and with a view to resisting the postponement application. The issue as to whether a legal representative is entitled to appear to oppose a postponement application prior to the commencement of arbitration proceedings concerning a dismissal for misconduct was not an issue before the Court.

[118] (2021) 42 ILJ 2371 (CC)

[119] At para [42]

[120] PE v Dr Beyers Naude Local Municipality and Another [2021] 2 All SA 839 (ECG) at para [33]. See also Section 165(4) of the Constitution of the Republic of South Africa, 1996.

[121] Samuels supra

[122] The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa Herbstein & Van Winsen 5th Edition at pages 969 and 970

[123] Rademan v Containerlink (DA5/00) [2001] ZALAC 15 (1 January 2001) at [17]. National Union Metalworkers of South Africa v Driveline Technologies (Pty) Ltd and Another 2000 (4) SA 645 (LAC) at para [19].

[124] SA Metropolitan Lewensversekeringsmaatskappy Bpk v Louw 1981 (4) SA 329 (O) at 332B-C

[125] Gisman Mining & Engineering Co. (Pty) Ltd (in liquidation) v LTA Earthworks (Pty) Ltd 1977 (4) SA 25 (W) at 27H-28A

[126] Cookhouse Wind Farms at para [57]

[127] 1986 (1) 456 (T)

[128] at 461 G – E

[129]Top Security (Pty) Ltd v Commission for Conciliation Mediation and Arbitration & Others [2012] 3 BLLR 311 (LC) where the Court stated as follows: “[9] I accept that in certain instances a party may having filed a notice of opposition challenge the application on a point of law without necessarily having to file the answering affidavit. In fact I am tempted to suggest that in appropriate cases the Court should encourage this approach because it will be cost effective and will safe (sic) time.” See also Mhlaba v Cloete & Another (1999) 20 ILJ 103 (LAC)

[129]Top Security (Pty) Ltd v Commission for Conciliation Mediation and Arbitration & Others [2012] 3 BLLR 311 (LC) where the Court stated as follows:

“[9] I accept that in certain instances a party may having filed a notice of opposition challenge the application on a point of law without necessarily having to file the answering affidavit. In fact I am tempted to suggest that in appropriate cases the Court should encourage this approach because it will be cost effective and will safe (sic) time.”

See also Mhlaba v Cloete & Another (1999) 20 ILJ 103 (LAC)

[130] Charles supra at para [32.1]

[131] Dlwati v King Sabata Dalindyebo FET College (2021) 42 ILJ 2427 (LC) at para [40]

[132] See Hlumisa Technology (Pty) Ltd and Another v Voigt N.O. and Others (111/2018) [2020] ZAECGHC 133 (1 December 2020) at para [22]

[133] Dlwati supra at paras [51] to [53]

[134] Dlwati supra at para [53]

[135] Section 34 of the Constitution

[136] Thunder Cats Investments supra at para [30]

[137] 2014 (3) SA 265 (GP).

[138] Cf. Ntuli v Smit 1999 (2) SA 540 (LCC) at 552 F-G

[139] Cf. Minister of Water and Sanitation v Maseko & Others [2020] 5 BLLR 525 (LC)

[140] I naturally exclude Ms Masiza, who was belated engaged on behalf of the Municipality, from the reach of this observation.

[141] Dlwati supra. Footnotes omitted.

[142] Cf. Ruselo v Sutherland Transport and Others (PA3/20) [2022] ZALAC 1 at para [42], a decision handed down shortly before the delivery of this judgment and on 18 January 2022.

[143] Juta & Co Ltd v Legal and Financial Publishing Co (Pty) Ltd 1969 (4) SA 443 (CPD) at 445E – F.

[144] (J701/16) [2016] ZALCJHB 175 (6 May 2016) at para 12

[145] At para [50]

[146] If the Municipality takes the view that it was wrongly advised and that its representatives did not fulfil their mandate, it has its remedies. These include the institution of a civil claim against those representatives and reporting them to the Legal Practice Council.