Mahlangu v Ngako NO and Others (JR606/2018) [2021] ZALCJHB 448 (6 December 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR606/2018

In the matter between:

VUSI MAHLANGU Applicant

and

P.M. NGAKO N.O. First

Respondent

GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL Second

Respondent

DIRECTOR GENERAL: DEPARTMENT OF RURAL

DEVELOPMENT AND LAND REFORM Third

Respondent

Heard: 12 August 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 6 December 2021 at 10h00.

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] This matter initially came before this Court on 26 November 2020. In the light of the Court being of the view that the review application was not served and filed on time in accordance with the provisions of section 145(1)(a) of the LRA[1], and further to the extent that the review application had been deemed withdrawn by virtue of the provisions of Paragraph 11.2.3 of the Practice Manual of this Court, the applicant was granted leave to file and serve applications for condonation for the late filing of the review and also for the reinstatement of the review application. All the applications before the Court are opposed by the third respondent.

[2] For the purposes of the applications to be determined, it is sufficient by way of background to highlight that the applicant was initially employed as a Deputy Director, Land Distribution and Development by the third respondent, with effect from May 2012. Following a disciplinary enquiry into multiple allegations of misconduct, his services were terminated.

[3] Having referred an alleged unfair dismissal dispute to the second respondent (GPSSBC), the matter could not be resolved at conciliation. It was then referred for arbitration where it came before the first respondent (Arbitrator), who had issued an award on 5 February 2018, in which the dismissal of the applicant was found to be substantively and procedurally fair. In the main, it is this award that the applicant seeks to have reviewed and set aside.

[4] The review proceedings where filed on 12 April 2018, even though it was the applicant’s contention that it was served on the third respondent on 26 March 2018. The second respondent had filed a notice in terms of Rule 7A(2)(b) on 18 April 2018, and the Registrar served a Notice on the applicant in terms of Rule 7A(5) on 20 April 2018. The applicant subsequently filed the transcribed record in compliance with Rule 7A(6) together with Rule 7A(8)(a) Notice on 12 July 2018.

The third respondent’s answering affidavit was then filed and served on or about 18 January 2019.

Application for the reinstatement of the review application.

[5] The relevant provisions related to the archiving and retrieval of review applications are to be found in paragraph 11.2 of the Practice Manual[2] of this Court. Thus, for the purposes of Rule 7A(6), records must be filed within 60 days of the date on which the applicant is advised by the Registrar that the record has been received[3]. Where the applicant party was unable to file the transcribed record within the prescribed period, the review application will be deemed to have been withdrawn, unless the respondent’s consent for an extension of time is granted. Where no consent is granted, the applicant may approach the Judge President by way of an affidavit to request an extension of timeframes[4].

[6] Flowing from the interpretation of the above provisions, the approach endorsed in Zono v Minister of Justice and Correctional Services In re:Minister of Justice and Correctional Services v Zono and Others (Zono)[5] and the authorities referred therein[6], is that it ought to be accepted that an application for the retrieval of a file from the archives is a form of an application for condonation for failure to comply with the Court Rules, time frames and directives. The Court should therefore consider such applications in accordance with the normal principles that apply to condonations, which requires of the applicant to show good cause why the record of the proceedings under review was not filed within the prescribed time limit.

[7] It was further held in Zono that where the application for reinstatement of the application is refused, the status of the review application remains one of an application withdrawn by the applicant, meaning that there is no application before the Court, and any other interlocutory applications in relation to the review application are rendered moot. It is in line with this approach that it is deemed necessary to first deal with the application for revival.

[8] In applications for condonation, it is required that good or sufficient cause be shown by the party seeking condonation for a delay. The Court in the exercise of its discretion will consider factors such as the length and a full explanation for the delay, and whether there are reasonable prospects of success on the merits of the main claim. It has further been held that an insignificant delay and good explanation for that delay may compensate for weak prospects of success, and further that good prospects could make up for a long delay. Other factors to be considered include the prejudice to the either of the parties to the dispute should condonation be granted or refused, the importance of the matter, the convenience of the Court and avoidance of unnecessary delays in the administration of justice. In the end, the interests of justice upon a consideration of these factors will ordinarily dictate whether condonation should be granted or refused [7].

[9] In this case, there is a dispute as to whether the transcribed record of proceedings was filed out of time or not, necessitating that the provisions of paragraph 11.2.3 of the Practice Manual be invoked. The applicant acknowledged that upon the record being made available on 18 April 2018, he therefore had until 18 July 2018 within which to file and serve the transcribed record.

[10] The applicant averred that after the disks of the record were sent to the transcribers, he received the transcription on 29 May 2018.

Upon perusal of the transcribed record, various material typographical errors were discovered by the applicant’s counsel. In the light of the problems with the transcribed record, the applicant’s attorneys of record then sent correspondence[8] to the Office of the State Attorneys, advising of these problems, and requesting time until 12 July 2018. The applicant contends that no response was received to the request.

[11] A corrected version was made available by the transcribers on 9 July 2018, and was subsequently served on the third respondent on 11 July 2028, and on the Registrar the following day by electronic means. Hard copies of the transcribed record were then filed and served on the third respondent on 18 July 2018. On 14 August 2018, the applicant had served the third respondent with the outstanding portion of the record, which constituted a bundle of documents that served before the Arbitrator during the arbitration proceedings.

[12] To the extent that the provisions of paragraph 11.2.3 of the Practice Manual may have been invoked, it is however apparent that given the time period between 18 April 2018 and 11 July 2018, it cannot be said that the applicant did not meet the 60 days deadline. Even in its own application (Notice in accordance with paragraph 11.2.3 of the Practice Manual of the Labour Court of South Africa)[9], the third respondent acknowledged that the basis of that application was inter alia that the bundle of documents served before the Arbitrator were not included in the record. That application was filed and served on the applicant on 1 August 2018, and at a time when the transcribed electronic record of the proceedings was already served.

[13] It is accepted that the record when initially served on the third respondent on 11 July 2018 was not complete, and that the complete record was only filed and served on 14 August 2018. Since the only portion of the record outstanding were bundles of documents served before the Arbitrator, the applicant is correct in pointing out that there could not have been any prejudice to the third respondent through this omission, as the very same arbitration bundles were already in its possession. This is not a case where it can be said that there was no attempt by the applicant to obtain an indulgence from the third respondent, or where it can be said that there was any delay in filing the main transcribed record.

[14] Upon the applicant having served notices in compliance with Rule 7A(6) together with Rule 7A(8)(a) Notice on 12 July 2018, the third respondent had filed and served its answering affidavit on or about 18 January 2019. At that time, the applicant had as per what he deemed to be an ‘agreement’ between the parties, by implication, not raised any objection to the late filing of the answering affidavit. Even though the applicant could not have relied on the same ‘agreement’ insofar as the late filing of the review application is concerned, the third respondent’s late filing of the answering affidavit was however consented to through that ‘agreement’, as such consent is contemplated within the provisions of paragraph 11.4.2 of the Practice Manual[10].

[15] In summary therefore, the review application could not have been deemed withdrawn by virtue of the provisions of paragraph 11.2.3 of the Practice Manual as both the electronic and hard copies of the transcribed records were filed and served on time. To the extent that there was any delay in the light of the evidence bundle not having been served simultaneously, that delay in any event is not excessive, nor could it have cause any prejudice to the third respondent. I do not therefore deem it necessary to deal with other factors pertained to such applications in the light of the conclusions to be made in regards to the late filing of the review application as discussed below. To this end, I am satisfied that good cause has been shown why any delay in the filing of the record should be condoned.

The late filing of the review application:

[16] The arbitration award having been issued on 5 February 2018, the applicant averred that a copy thereof was only served on his attorneys of record on 12 February 2018. The dies then were to expire on 26 March 2018. The applicant contends that the review application was successfully served electronically on the respondents on 26 March 2018. Proof in that regard was attached to the founding affidavit[11], and he contends that the third respondent as represented by the State Attorney had acknowledged receipt of the review application. The applicant nonetheless conceded that the review application was only filed with the Registrar of this Court on 12 April 2018.

This therefore makes the delay about twelve days, which is hardly excessive.

[17] The delay in filing the review application with the Registrar was according to the applicant, attributed to the fact that on the date that the review application was served on the third respondent, unsuccessful attempts were similarly made to send it by fax to the office of the Registrar and also on 27 March 2018. It was only on 12 April 2018, that the application was successfully transmitted.

[18] It is correct as pointed out on behalf of the third respondent that the applicant does not explain the 12 days’ delay in full, particularly between 27 March 2018 and 12 April 2018. The third respondent further correctly pointed out that the applicant ought to have filed an application for condonation upon becoming aware of the need to do so.

[19] A further issue to be quickly disposed of is the applicant’s reliance on what he termed an ‘agreement’ with the third respondent that the parties should settle all interlocutory applications related to the late filing of affidavits[12]. I have already indicated the effect of that ‘agreement’ insofar as it related to the late filing of the answering affidavit. That ‘agreement’ however is meaningless in regards to the late filing of the review application, in that non-compliance with the legislative timeframes goes to its jurisdiction, which is an issue that is not for the parties to decide on.

[20] Inasmuch as I agree that the applicant failed to give a full account of the 12 days’ delay, and further to the extent that there was a delay in filing the application for condonation, on the whole however, I agree that since the review application was served on the third respondent timeously, coupled with further attempts between 26 and 27 March 2018 to serve the application on the Registrar, this cannot be a case where it can be concluded that non-compliance with time frames was excessive or that the applicant was supine. In my view therefore, the explanation, albeit insufficient, is nonetheless accepted as reasonable by the Court.

[21] In regards to prospects of success, it was common cause that the allegations against the applicant leading to his dismissal by the third respondent related to inter alia, corruption and abuse of his authority as Deputy Director – General of the third respondent. The allegations pertained to his involvement and processing of a transaction and the sale of a farm in Limpopo in the amount of R97M.

[22] Clearly the allegations against the applicant are serious. It is however not necessary at this stage to set out the applicant’s defences to these allegations and the grounds upon which he contended that the Arbitrator’s award ought to be reviewed and set aside. What needs to be stated however is that in Samuels,[13] it was confirmed that in addressing prospects of success, it was not a requirement that the applicant should deal fully with the merits of the dispute to establish reasonable prospects of success, and that it was sufficient if facts were set out which, if established in the main, would result in his success.

[23] In this case, having had regard to the applicant’s averments in regards to his prospects of success and the third respondent’s responses thereto, I am satisfied that he has indeed set-out such facts if established, would result in his success, and that this on its own was sufficient.

[24] I am further in agreement with the submissions made on behalf of the applicant that indeed the matter is important on various fronts, particularly in the light of the seriousness of the allegations against him and the clear public interest in the outcome of the matter.

[25] In the end, in the light of the insignificant nature of the delay and the explanation proffered in that regard, the third respondent can hardly complain of any prejudice, particularly since it was common cause that the pleadings have closed. In these circumstances, clearly the interests of justice dictate that condonation for the late filing of the review application be granted.

[26] I have further had regard to the requirements of law and fairness in relation to an award of costs. Given the interlocutory applications the Court was compelled to dispose of, and further taking into account the facts and circumstances of this case, it is deemed unnecessary for any award of costs to be made.

[27] Accordingly, the following order is made;

Order:

1. The Applicant’s review application deemed to have been withdrawn is reinstated.

2. The late filing of the review application is condoned.

3. The Registrar of the Court is directed to set the matter down on an expedited basis for the determination of the review application.

4. There is no order as to costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: M.I.

Motimele, instructed by MacRoberts Attorneys

For the Third Respondent: T.P. Kruger SC, instructed by the State Attorney, Pretoria

[1] Labour Relations Act 66 of 1995.

[2]Para 11.2 ‘Applications to review and to set aside arbitration awards and rulings’

[3]Para 11.2.2

[4]Para 11.2.3

[5] (PR193/2019) [2020] ZALCJHB 215; [2020] 11 BLLR 1160 (LC) at paras 7 – 11; and paras 17 - 21

[6] Overberg District Municipality v IMATU obo Spangenberg and Other C157/18 (08 June 2020); Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC); Macsteel Trading Wadeville v Van der Merwe N.O and others (2019) 40 ILJ 798 (LAC)

[7] See Department of Agriculture , Forestry & Fisheries v Baron & others 2019) 40 ILJ 2290 (LAC) at 2304 para 41; NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) at para 10

[8] Annexure ‘CondVM30’

[9] Annexure ‘CondVM25’

[10] Which provides; 11.4.2 Where the respondent or the applicant has filed its opposing or replying affidavits outside the time period set out in the rules, there is no need to apply for condonation for the late filling of such affidavits unless the party upon whom the affidavits are served files and serves a Notice of Objection to the late filing of the affidavits. The Notice of Objection must be served and filed within 10 days of the receipt of the affidavits after which time the right to object shall lapse.

[10] Which provides;

11.4.2 Where the respondent or the applicant has filed its opposing or replying affidavits outside the time period set out in the rules, there is no need to apply for condonation for the late filling of such affidavits unless the party upon whom the affidavits are served files and serves a Notice of Objection to the late filing of the affidavits. The Notice of Objection must be served and filed within 10 days of the receipt of the affidavits after which time the right to object shall lapse.

[11] Annexure ‘CondVM3’

[12] As per the correspondence of the State Attorney dated 17 January 2019 at annexure ‘CondVM6(a)’ to the founding affidavit

[13]Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC);