Mahape v City of Tshwane Metropolitan Municipality and Others (JR 1887/21) [2023] ZALCJHB 176 (5 June 2023)

THE LABOUR COURT O SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 1887/21

In the matter between:

MAMSY NOMUSA MAHAPE Applicant and CITY OF TSHWANE METROPOLITAN MUNICIPALITY First Respondent THE AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL Second Respondent COMMISSIONER: ELSABE MAREE N.O. Third Respondent LIVINGSTONE MABALANGANYE Fourth Respondent SELLO MOLOTO Fifth Respondent SHIRLINDA G. NOAH Sixth Respondent

Heard: 31 May 2023

Delivered: 05 June 2023

(This judgment was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 05 June 2023.)

JUDGMENT

VAN NIEKERK, J

Introduction

[1] The applicant seeks to review and set aside an arbitration award issued by the third respondent (the arbitrator). In her award, the arbitrator dismissed the referral of a claim of unfair labour practice, in the form of the first respondent’s failure

to shortlist the applicant for two advertised posts in the group legal and secretariat department. The fourth, fifth and sixth respondents were shortlisted and appointed to the posts concerned.

The award

[2] The material facts are disclosed in the arbitrator’s award and do not warrant repetition here. In her analysis of the evidence, the arbitrator recalled that the applicant bore the onus to establish that the first respondent’s failure to shortlist her constituted an unfair labour practice. The arbitrator’s reasoning is apparent from the following paragraphs in the award:

35. In order to prove that the employer’s decision was grossly unreasonable it needs to be shown that the employer has acted irrational, capricious or arbitrarily, was motivated by bias, malice or fraud, failed to apply its mind or had exercised its discretion for insubstantial reasons or based on wrong principles.

36. It was submitted by the applicant that she should have been shortlisted as she met the minimum requirements of the position of Legal Advisor. She stated that she has an LLB was in the process of being admitted as Advocate and had relevant experience, amongst others as she had been appointed to act form the 1st February 2019 “to date”.

37. The applicant submitted that as an internal candidate she should have received preference as stipulated in the Collective Agreement: Staffing over external candidates and stated that he 2nd to 4th respondents [the 4th to 6th respondents in the present application] failed to meet the minimum criteria regarding their qualifications and experience.

38. The crux of the evidence submitted on behalf of the respondent was that positions for legal advisors were advertised due to being short staffed that amongst others led to a backlog in cases. It was testified that due to the backlog, experience, especially in labour matters, was paramount as the successful candidates had to “hit the ground running”.

39. The witnesses for the respondents stated that the applicant did not have the relevant, required experienced (sic) despite being in possession of and it will be candidates possess the required qualifications but importantly was suitably experienced in order to “hit the ground running” in dealing with the backlog in labour matters.

40. During cross-examination the applicant made a number of important concessions. She admitted that she did not provide proof that her acting is still continuing, has no experience in labour matters, that included disciplinary matters and did not do articles or pupillage.

41. The applicant testified that she was better qualified and had more experience than the 2nd to 4th respondents. During cross-examination she was painstakingly taken through the experience and qualifications of the respondents as reflected in their curriculum vitae’s and had to concede time and again – albeit sometimes reluctantly – that her experience is not akin to those of the respondents.

[3] Further, in relation to the equivalence of an LLB. and B. Tech degree in labour relations management, the arbitrator concluded that it was ‘within the realm of possibility’ that a B. Tech in labour relations management could be regarded as ‘other legal degree’ or ’equivalent qualification’ for the purposes of qualification for appointment. Finally, for the purposes of the collective agreement regulating staffing policy, while the relevant provision requires preference and shortlisting to be given to internal candidates for whom the advertised position was promotion, the arbitrator recorded that during cross-examination, the applicant had conceded that this was not to be applied ‘come what may’ and that the agreement did not require that an internal candidate must be shortlisted just because the candidate was an internal candidate. Put another way, the arbitrator found that internal candidates had no automatic right to be shortlisted.

[4] For all of these reasons, the arbitrator found that the evidence did not disclose that the decision not to shortlist the applicant was irrational, capricious, arbitrary or biased and that there was no fraud, malice or a failure to apply the decision-makers in mind, or that the discretion not to shortlist the applicant was exercised on improper principles. As indicated above, the arbitrator held that the applicant had failed to discharge the onus of proof and accordingly dismissed the applicant’s referral.

The grounds for review

[5] The applicant contends that the arbitrator committed various reviewable irregularities and thus reached a conclusion that a reasonable decision maker could have reached. First, the applicant submits that the arbitrator failed to confine herself to the evidence that confirmed that the applicant met the minimum requirements for the job, and that her experience and in particular her acting experience as legal advisor suggested that she ought to have been shortlisted in terms of the collective agreement. Further, the applicant submits that the arbitrator failed to confine herself to the issues before her, particularly in that the dispute was not one that concerns the interpretation of the collective agreement. Further, the applicant submits that the arbitrator is biased and acted irrationally in that she avoided crucial evidence which would have assisted her to arrive at a just and equitable finding (this is particularly so in respect of the evidence of the qualifications and experience of the comparators). Further, the applicant submits that the arbitrator considered and admitted hearsay evidence regarding those comparators, given that none of them were called to give evidence. Finally, the applicant submits that the arbitrator misdirected herself by failing to accept that the B Tech. degree was an equivalent qualification to the LLB degree for the purposes of the required levels of qualification.

Applicable legal principles

[6] The test to be applied on review is well-established, and at its most fundamental, seeks to preserve the line between a review and an appeal. In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007 28 ILJ 2405 (CC) at para 110, the Constitutional Court held that the outcome of the proceedings under review, in the form of the arbitrator's conclusion, must fall within a range of decisions that a reasonable decision-maker could make. The Constitutional Court reaffirmed this test in Duncanmec (Pty) Ltd v Gaylard NO and Others (2018) 39 ILJ 2633, where at paragraph 43 of the judgment, it said the following:

The correct test is whether the award itself meets the requirement of reasonableness. An award would meet this requirement if there are reasons supporting it. The reasonableness requirement protects parties from arbitrary decisions which are not justified by the rational reasons.

[7] In Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA (2014) 35 ILJ 943 (LAC), the court held that the review court must ascertain whether the arbitrator considered the principal issue in dispute, evaluated the facts presented at the hearing and came to a conclusion that is reasonable. In essence, the test is a two-stage test. To succeed, an applicant must establish some reviewable irregularity on the part of the arbitrator and given the existence of any such an irregularity, establish that the outcome of the proceedings in the form of the arbitrator’s ruling or award, falls outside of a band of decisions to which a reasonable decision-maker could come on the available evidence.

[8] More recently, in Securitas Specialised Services (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others [2021] 5 BLLR 475 (LAC), the Labour Appeal Court restated the review test in the following terms:

The test for review is this: “Is the decision reached by the arbitrator one that a reasonable decision maker could not reach?” To maintain the distinction between review and appeal, an award of an arbitrator will only be set aside if both the reasons and the result are unreasonable. In determining whether the result of an arbitrator’s award is unreasonable, the Labour Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrator’s reasoning is found to be unreasonable, the result is, nevertheless, capable of justifications for reasons other than those given by the arbitrator. The result will be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence and involves speculation by the arbitrator.

This court has eschewed a piecemeal approach to a review application by the Labour Court. The proper approach is for the Labour Court to consider the totality of the evidence in deciding “whether the decision made by the arbitrator is on that a reasonable decision maker could make.”

[9] In a matter such as the present, where the primary grounds for review relates to the arbitrator’s assessment of the evidence, the court must be particularly cautious to hold the line between a review and an appeal. As the authorities referred to above disclose, this court is entitled to intervene if and only if the arbitrator is shown to commit some reviewable irregularity, and the outcome of the proceedings under review falls outside of a band of decisions to which a reasonable decision maker could come on the evidence. As the courts have observed more than once, the threshold for review is set high, and deliberately so.

[10] In Booi v Amathole District Municipality and Others (2022) 43 ILJ 91 (CC) the Constitutional Court said the following:

[51] It is pertinent that the Legislature deliberately provided for the mechanism of a review, as opposed to an appeal, for arbitration

awards made in respect of labour disputes. As demonstrated above, the intention behind this choice was to prevent labour dispute resolution procedures from becoming costly and time-consuming and, thereby, inadvertently favouring the party that wields greater resources and power. It was a pragmatic decision that serves the ends of justice and protects the rights enshrined in section 23 of the Constitution. Courts undermine these imperatives by readily treating reviews as appeals. Arbitration awards are intended to be final and binding. They are not to be treated as a mere box-ticking exercise, or the first step in a drawn out process that can be exploited by the party who is able to “out-litigate” the other. It is no secret that the Labour Courts are backlogged and that this impedes their ability to adjudicate labour disputes in the swift manner contemplated by the LRA. This problem is, without a doubt, exacerbated when a court fails to distinguish between a genuine review and an appeal disguised as a review.

Analysis

[11] I deal first with the preliminary points raised by the applicant. The first relates to a challenge to the authority of the deponent to the answering affidavit to oppose the application. The applicant relies on section 59(4) of the Municipal Systems Act, 32 of 2000, (which requires delegation to the staff member of the power conferred on a municipal manager to be approved by the municipal council in writing) to submit that in the absence of any proof of delegation either by the municipal council or the municipal manager, the deponent is not authorised to oppose the application on behalf of the first respondent. Secondly, the applicant contends that the answering affidavit was filed late and that a notice of objection was served on 4 February 2022, in which the applicant objected to the late filing of the answering affidavit.

[12] In regard to the first issue, this court has adopted the view that if a party’s attorney is authorised to bring an application or oppose an application on behalf of an applicant or respondent, as the case may be, there is no need for any other person to additionally authorise. Put another way, it is sufficient that the institution of the proceedings is authorised and that the attorney who is instructed acts with authority (see Eskom v Soweto City Council 1992 (2) SA 703 (W)). In the present instance, the deponent to the answering affidavit is the group head: group human capital management. He states that he is authorised to depose to the affidavit by virtue of that position and that he has personal knowledge of the facts. There

is no challenge to the authority of the first respondent’s attorneys to oppose the application and in the absence of such a challenge, the court must necessarily accept that the deponent had the necessary authority to depose to the answering affidavit.

[13] Insofar as the late filing of the affidavit is concerned, it is common cause that the affidavit was filed late. The affidavit would have been filed by 19 January 2022; it was filed on 27 January 2022. On 3 February 2022, the applicant filed a replying affidavit. On 9 February 2022, the applicant filed a notice objecting to the late filing of the answering affidavit. Clause 11.4.2 of the Practice Manual provides that where any opposing or replying affidavit is filed outside of the prescribed time period, there is no need to apply for condonation unless the party on whom the affidavit filed serves a notice of objection to the late filing of the affidavit. The notice must be served and filed within 10 days of receipt of the affidavit of which time the right to object shall lapse. In the present instance, the applicant, on receipt of the answering affidavit, raised no objection to the late filing of the affidavit. Instead, she proceeded to file the replying affidavit in which there are no preliminary points or objections raised to the late filing of the answering affidavit. In my view, it was not open to the applicant, having filed a replying affidavit, then to file, almost a week later, a notice of objection to the late filing of the answering affidavit. The objection ought to have been filed prior to or at least simultaneously with the filing of the replying affidavit.

[14] In any event, even if I am wrong in coming to this conclusion, an application for review is decided ultimately on the grounds for review articulated in the founding and supplementary affidavit, read together with the award under review. The answering affidavit and the replying affidavit in the present matter take matters no further and frankly, the result would be no different had the matter been argued on an unopposed basis.

[15] In Gold Fields, the LAC emphasized that it was not for the reviewing court to adopt a piecemeal approach in dealing with an arbitrator’s

award. Rather, what must be considered is the totality of the evidence rather than a fragmented analysis. On a perusal of the record, I am unable to find either that the arbitrator committed a reviewable irregularity in her assessment of the evidence, or that the award fails to meet the reasonableness threshold. It cannot be said that the arbitrator’s reference to the collective

agreement amounted to an exercise in interpretation of that agreement - the applicant had raised the agreement in support of her submission that it afforded her a right to be shortlisted. It was thus necessary for the arbitrator to refer to the agreement and consider the applicant’s rights, if any, in terms of that agreement. Insofar as the conduct of the proceedings is concerned, it was not necessary for the arbitrator to warn the fourth to the sixth respondents of any possible consequences of their failure to testify -it was for the applicant to discharge the onus of proof that the failure to shortlist her constituted an unfair labour practice. Further, the arbitrator’s reference to evidence led by the first respondent’s witnesses as to the levels of qualifications and experience of the fourth to the sixth respondents did not constitute hearsay in circumstances where what was in issue was the fairness of the decision taken by the first respondent not to shortlist the applicant. The arbitrator appreciated the nature of the inquiry that she was required to conduct, she had regard to the evidence before her and to the applicable legal principles. It should be recalled that in terms of those principles, the applicant was required to do more than show that she was a suitable candidate for shortlisting; she was required to establish that the decision not to shortlist her was arbitrary, irrational or motivated by malice. None of these considerations are applicable in the present instance. The first respondent had its reasons for not including the applicant on the shortlist. Given the applicable test, those reasons cannot be saidto be arbitrary, irrational or motivated by malice. Another employer in the first respondent’s position may have made a different decision regarding the merits of the applicant’s application for appointment to the posts concerned, but that was not the test to be applied by the arbitrator. Equally, another arbitrator faced with the same evidence may have reached a different conclusion on the merits of the applicant’s claim but again, this is not the test to be applied by a review court.

[16] Finally, in so far as costs are concerned, the court has a broad discretion in terms of section 162 to make an order for costs according to the requirements of the law and fairness. This court ordinarily does not make orders for costs against aggrieved employees who in good faith pursue legitimately filed grievances against their employers. I would accept, in the applicant’s favour, that this matter falls into that category and intend therefore to make no order as to costs.

I make the following order:

1. The application is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the applicant: Adv D Thumbathi

Instructed by: Phuti Phaka Attorneys

For the respondent: Mr G Netshidongololwe, Majang Inc Attorneys