Mahalangu v General Secretary, General Public Services Sectoral Bargaining Council and Others (J 445/16) [2016] ZALCJHB 99 (16 March 2016)

The Labour Court of South Africa

HELD AT Johannesburg

Case No: J 445/16

DATE: 16 MARCH 2016

In the matter between:

MAHALANGU, VUSI..............................................................................................................Applicant

And

THE GENERAL SECRETARY, GENERAL PUBLIC SERVICES

SECTORAL BARGAINING COUNCIL.....................................................................................................................First Respondent

DEPARTMENT OF RURAL DEVELOPMENT

AND LAND REFORM............................................................................................Second Respondent

NGAKO, PM...............................................................................................................Third Respondent

Heard: 15 March 2016

Delivered: 16 March 2016

Summary:( Urgent-application to suspend the effect of a judgement pending the finalisation of an application for leave to appeal)

Judgment

LAGRANGE J

Introduction

[1] The applicant in this matter sought urgent relief on 8 March 2016 to compel the holding of a pre-arbitration conference relating to a pre-dismissal arbitration. The application was dismissed by Benjamin, AJ with costs.

[2] The applicant now seeks to prevent the respondent’s proceeding with the pre-dismissal arbitration until such time as his leave to appeal against the judgement of Benjamin, AJ is finalised. The application is opposed. At the time the matter was heard an application for leave to appeal was yet to be filed as the applicant was awaiting reasons for the judgement.

[3] The applicant’s justification for approaching this court before filing the application for leave to appeal is that, unless the order is granted, the respondents will proceed with the disciplinary enquiry without holding an arbitration meeting. Implicit in the applicant’s argument is an assumption that the respondents would be acting in breach of s18(1) of the Superior Courts Act 10 of 2013, which states:

“18. Suspension of decision pending appeal

(1) Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.

(2) Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision that is an interlocutory order not having the effect of a final judgment, which is the subject of an application for leave to appeal or of an appeal, is not suspended pending the decision of the application or appeal.

(3) (3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.

[4] The judgement which is the subject matter of the pending appeal was a final order in respect of an interlocutory issue in the pre-arbitration dismissal proceedings. Ultimately, should the failure to hold a pre-arbitration dismissal meeting adversely and materially impact on the fairness of the proceedings or the outcome, it will be possible for the applicant to challenge the outcome of the hearing by way of review proceedings. He will not be denied an effective remedy simply because the respondents might proceed with the enquiry without a further pre-arbitration meeting. In Booysen v Minister of Safety & Security & others[1], the LAC upheld the principle that the Labour Court may interdict unfair conduct in the course of the disciplinary proceedings, but that such intervention should only take place in exceptional circumstances, such as where a grave injustice would result.[2]

[5] In his original application, the applicant asserted that the respondents’ supposed non-compliance with Rule 18 of the Bargaining Council Rules governing arbitration proceedings entitled him to relief because it would infringe his right to procedural fairness.

[6] In this application, once the application for leave to appeal is filed and if leave to appeal is granted, one clear effect would be that the applicant would not have to pay the respondent’s costs as ordered in terms of the judgement pending the final outcome. The order dismissing the application to compel the respondents to hold a pre-arbitration meeting would also be suspended

and the determination of the correctness of holding such a meeting would remain in abeyance pending the outcome of the appeal. However, I do not see that it automatically follows that the respondents are thereby prevented from proceeding with the pre-dismissal hearing because the correctness of that decision has yet to be determined. Nothing in the bargaining council rules suggests that, in the absence of a pre-arbitration meeting being held or concluded, that the arbitration cannot proceed.

[7] Consequently, in this application, even if I accept that urgency is justified on the basis that the supposed harm of the proceedings continuing is imminent, I am not satisfied that the applicant’s right to the suspension of the consequences of the judgment of Benjamin AJ, leads to the conclusion that he has even a prima facie, let alone a clear right to prevent the hearing proceeding until such time as an appeal determines whether they ought to have been a pre-arbitration meeting in the circumstances of the case..

[8] The only portion of the judgment which would have a practical consequence if it is suspended is the cost order. In that regard, there is no evidence that the bill of costs has even been taxed, so there is no imminent harm the applicant faces in that regard, which would require the court to intervene on an urgent basis in that regard. As there is every reason to believe the applicant will file a notice of an application for leave to appeal shortly, any attempt to execute on the yet untaxed cost order is unlikely to eventuate before then.

[9] The applicant enlisted senior counsel to argue his application and he raised a number of fairly intricate arguments. The respondent was represented by two counsel. In the circumstances, it seems appropriate that the applicant must pay the respondent’s costs including that of two counsel.

Order

[10] The application is dismissed.

[11] The applicant must pay the second respondent’s costs including the costs of two counsel.

Lagrange J

Judge of the Labour Court of South Africa

APPEARANCES

APPLICANT: G Shakoane, SC

Instructed by V Tshishonga

SECOND RESPONDENT: P Pio assisted by R Burger

Instructed by the State Attorney

[1] (2011) 32 ILJ 112 (LAC)

[2] At 129-130, para [54].