Malatji v South African Post Office SOC (Ltd) and Others (JR565/19) [2021] ZALCJHB 299 (15 September 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR565/19

In the matter between:

SAMUEL MALATJI Applicant

and

THE SOUTH AFRICAN POST OFFICE First

Respondent

SOC (LTD)

THE COMMISSION FOR CONCILIATION, Second

Respondent

MEDIATION AND ARBITRATION

SILAS RAMUSHOWANA N. O Third Respondent

Date heard: 24 August 2021

Date delivered: This judgment was handed down electronically by circulation to the parties’ 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 10h00 on 15 September 2021.

Summary: Review application- Amended notice of motion with new grounds of review- Application late and no explanation for lateness- Ground of review on amended notice subjects to unfairness of disciplinary proceedings- No Joinder of the Chairperson of disciplinary proceedings-no records of the disciplinary proceedings- Review dismissed with no costs order.

JUDGMENT

BALOYI, AJ

Introduction

[1] At the center of the review application before this court is the applicant’s claim that his dismissal is both procedurally and substantively unfair. The application is confronted with preliminary points, primarily attacking the applicant’s acts of non-compliance with the rules which in effect render the application defective. More of this appear herein below.

Background

[2] In 2018 the first respondent’s employees embarked on a strike action. It is not in dispute that the strike was protected. The demands leading to the strike action are not relevant to the dispute that is subject matter of this application. Some of the charges relate to misconduct committed during the very strike action. It is not clear as to when did the strike commence as well as its end date. According to the charges, various acts of misconduct were committed by the applicant during the period between 12 April 2018 and 09 July 2018. The first respondent in essence charged the applicant for:

- Inciting a group of people on 12 April 2018 through a group chat to stage a sit in.

- Inciting a group of people on 9 May 2018 through a group chat to engage in a violent and disorderly conduct after being served with notice to appear before a disciplinary hearing.

- Disorderly conduct on 9 July 2018 by failing to comply with picketing rules during protected strike.

- False accusation of racism made through an undated letter which the first respondent found racially offensive and insulting.

- Failure to comply with grievance procedure by including a person who was not a party to the grievance when lodging a grievance.

[3] The disciplinary hearing was scheduled to proceed on 24 August 2018. On 22 August 2018 the applicant informed the first respondent in writing that he would not attend the hearing. However, on 24 August 2018 the applicant changed his mind and took a trip to the disciplinary hearing venue. He was denied entry into the premises by the security officers on reason that he was suspended. The first respondent denied that the applicant showed up at the hearing venue and that he was refused entry.

[4] On 25 September 2018 he was handed a notice of dismissal resulting from the hearing that proceeded in his absence. Aggrieved by the dismissal, he referred unfair dismissal dispute to the CCMA for Conciliation. A certificate of outcome was issued on 25 October 2018 recommending the referral of the dispute to arbitration. On 25 January 2019 the matter came before the third respondent for arbitration and he made a ruling to the effect that the CCMA did not have jurisdiction to arbitrate the dispute. The reason being that the dismissal of the applicant emanated from the protected strike action. The ruling further advised the applicant to refer the dispute to this court for adjudication.

[5] The applicant decided to challenge the ruling by way of review under the above case number. The review application was filed two weeks after the expiry of the six weeks period and was accompanied by a condonation application. His explanation for the delay is centred around the cumbersome administrative activities undertaken on the side of his legal expenses insurance prior to appointing an attorney to deal with the matter. The review application was ultimately filed on 27 March 2019 with Johan Nysschens attorneys on record for the applicant.

[6] On 09 April 2019 the applicant’s attorneys served a notice in terms of Rule 7A(8)(b) to the effect that the applicant stood by his original notice of motion. The third respondent did not oppose the application. The matter came before Nieuwoudt AJ on the unopposed roll of 06 February 2020. It is not clear as to the nature of submissions made before the Court. The matter was ultimately removed from the roll with the applicant being granted leave to file supplementary affidavit by 20 March 2020. The applicant was by this time represented by new attorneys, Nemukongwe Attorneys.

[7] On 23 March 2020 the applicant filed a supplementary affidavit together with an amended notice of motion. The orders sought in terms of the amended notice of motion are crafted as follows:

“ 1. Condonation is granted for the late filing of this Application;

2. Review and/or setting aside the disciplinary proceedings and sanctions imposed, instituted by the 1st Respondent against the Applicant and held on or about 24th August 2018;

3. That the disciplinary proceedings and sanctions imposed as aforesaid be declared void ab initio/irregular;

4. That the 1st Respondent is ordered to reinstate the Applicant to his former position of employment with all statutory benefits and full compensation due to the Applicant.

5. That any party opposing the relief sought herein be ordered to pay the costs thereof;

6. Further and/or alternative relief.”

[8] The applicant in paragraph 7 of the supplementary affidavit states that he deletes the content of paragraph 3 of his founding affidavit which regurgitates the prayers set out in his original notice of motion. He went on to state that he was substituting the content of the deleted paragraph with the prayers set out in his amended notice of motion.

[9] The supplementary affidavit further reveals that the applicant entirely deleted the grounds of review in the founding affidavit and substituted them with new grounds. The new grounds are no longer focused on the third respondent’s jurisdictional ruling but the first respondent’s conduct of disciplinary proceedings. According to the applicant the first respondent committed irregularities and misconduct. Furthermore, the disciplinary hearing itself constituted an irregularity as he was not afforded an opportunity to place his version. He found the conduct of the third respondent to be contrary to the principle of natural justice. His dismissal is accordingly procedurally and substantively unfair. He concluded by pointing that the sanction constituted a gross irregularity and misconception of justice as the first respondent failed to consider his right to a fair trial. The first respondent failed to apply the relevant legal principle and failed to provide proper reasons for the conclusion reached.

[10] On 09 July 2020 the applicant filed a second supplementary affidavit to which a confirmatory affidavit of Mr De Wet was attached. Mr De Wet confirms that on 24 March 2019 he was unable to assist the applicant as he was barred by security officer.

[11] The applicant filed a third supplementary attaching the medical reports confirming diagnosis of depression. He used this to argue that since depression is a disability, the first respondent discriminated against him based on disability.

[12] During arguments the applicant appeared in person. In his letter to the Registrar he gives a reason why he excused his attorneys from representing him further in the matter. He felt it will be better for him to address the Court personally as he understands the matter and the health conditions he went through since the date of his dismissal.

[13] In his heads of argument, the applicant raises his constitutional right to a fair trial and referred to a number of authorities dealing with review of arbitration awards including Sidumo[1] and Goldfields[2]. He went on to argue that the relief set out in the amended notice of motion is sought under PAJA.

[14] The first respondent argues that the delay of two weeks in filing the initial review is not excessive and is well explained. With a new review in terms of the amended notice of application, the review is almost two years late and no condonation has been applied for. The applicant is not entitled to the relief sought.

Evaluation

[15] The application has undoubtedly through the amended notice of motion and the first supplementary affidavit took a different direction which reveals new cause of action. It appears clearly that the applicant is no longer pursuing its review and set aside of the third respondent’s ruling. Since the applicant has abandoned the initial application, the amended application by its nature is a new application altogether. The first difficulty with it, is that, it has been filed some 18 months after the date of dismissal and the applicant’s papers do not deal with condonation for its late filing except for the prayer appearing on the notice of motion. Without any explanation for the delay this application is bound to fail on this point alone.

[16] The second difficulty is that the applicant is seeking the review and set aside of the decision of the disciplinary hearing chairperson. He did not amend the citation of the parties to include the chairperson, the papers are still hanging with the CCMA and its commissioner. His amendment eradicated the interest of the CCMA and its commissioner in the matter, thus raising a misjoinder. The application remains defective as the Court is not placed in possession of the record of the proceedings that resulted in a decision sought to be reviewed and set aside.

[17] The third difficulty is mainly rested in the jurisdiction of this Court. The applicant is seeking review of the first respondent’s

decision to dismiss him based on commission of irregularities arising out of unlawfulness or legality. The substance of the applicant’s

case is rather founded on fairness. In his own papers he submits that the dismissal is both procedurally and substantively unfair. In Mpele v Municipal Council of the Lesedi local Municipality[3] the Court dismissed an application in which the employee was seeking an order declaring his dismissal unlawful. The Court found that the underlying issues to the dismissal were clothed with fairness which this Court has no jurisdiction to adjudicate upon as a forum of first instance.

[18] With all these deficiencies in the applicant’s case, there is no any other order to be made than to dismiss the application. Regarding costs, I am disinclined to make a cost order against the applicant as it may appear from the papers that the major part of the non-compliances came as a result of wrong legal advices.

[19] In the premises, the following order is made:

Order

1. The condonation application for the late filing of the amended review application in terms of amended notice of motion is refused.

2. The application is dismissed.

3. There is no order as to costs.

M Baloyi

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Appeared

in person

For the first respondent: Adv. E Sithole

Instructed by: Madlhopha

& Thenga Attorneys

[1] Sidumo & Another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC)

[2] Gold Fields Mining SA (Pty) Ltd v CCMA [2014] 1 BLLR 20 (LAC) [3] 2018 12 BLLR 1192 (LC)

[2] Gold Fields Mining SA (Pty) Ltd v CCMA [2014] 1 BLLR 20 (LAC)

[3] 2018 12 BLLR 1192 (LC)