Member of Executive Council, Social Development: Free State Province and Another v Van Schalkwyk and Others (D29/2020) [2024] ZALCD 48 (27 November 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Case No: D29/2020

Not Reportable

In the matter between:

THE MEMBER OF EXECUTIVE COUNCIL, SOCIAL DEVELOPMENT: FREE STATE PROVINCE First Applicant THE HEAD OF THE DEPARMENT, SOCIAL DEVELOPMENT: FREE STATE PROVINCE Second Applicant and ANITA MAGRETA VAN SCHALKWYK First Respondent GENERAL HEALTH AND SOCIAL DEVELOPMENT SECTORAL BARGAINING COUNCIL Second Respondent COMMISSIONER ANNA MARIA FOURIE N.O Third Respondent COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION Fourth Respondent DIRECTOR: COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION N.O Fifth Respondent THE SHERIFF: BLOEMFONTEIN EAST Sixth Respondent

Heard: 25 April 2024

Delivered: This judgment was handed down electronically by circulation to the parties and / or their legal representatives by email. The date and time for handing-down is deemed 12h00 on 27 November 2024.

JUDGMENT

ALLEN-YAMAN J

Introduction

[1] Accompanied by orders sought that this court direct the taking of certain further steps in the furtherance of their review application, the applicants (referred to herein collectively as ‘the Department’) applied for orders,

‘(i) that the Applicants’ non-compliance with section 145(5) of the Labour Relations Act, 66 of 1995 (LRA) regarding the application for a date for the matter to be heard within six months of delivery of the application is hereby condoned;

(ii) that it is declared that the Applicants’ application for review is not archived;

…

Alternatively, should it be found that the review application ahs lapsed, for orders in the following terms:

(i) That the review application, deemed withdrawn in terms of clause 11.2.7 of the Practice Manual, is reinstated;

…’

[2] The application was opposed by the first respondent, referred to herein as Ms van Schalkwyk.

Background

[3] Having arbitrated Ms van Schalkwyk’s claim that she had been constructively dismissed, the third respondent handed down an award in her favour dated 3 December 2019. In addition to having found that the conduct of certain employees within the Department had caused her to resign and that such resignation constituted a constructive dismissal she awarded Ms van Schalkwyk the amount of R310 972,50 as compensation which was required to have been paid on or before 20 December 2019.

[4] This led to the Department having initiated an application to review the award on or about 21 January 2020. Save for a singular letter addressed to the Registrar of this court on 29 January 2021, it took no steps to prosecuted its application until after Ms van Schalkwyk herself attempted to enforce the award by having approached the fourth respondent for its certification in terms of s143(3) of the LRA and for the issuing of a writ. Although the writ was served on the Department on 15 December 2021, it did nothing in response thereto for some three and a half months, seemingly as a result of the view taken by it that the writ was a nullity for want of compliance with s3(2) of the State Liability Act, 2011.

[5] Correspondence was eventually directed to the sixth respondent by the deponent to the founding affidavit, Ms Babane Maranyane, an attorney of the offices of the State Attorney on 4 April 2022. This read,

‘Attached hereto is our Notice of Motion that the Applicant is now seeking to enforce.

It was served on NEHAWU who has been representing the employee during the arbitration.

We still have instructions to proceed with the review application that was never opposed by the employee.

We hope you find the above to be in order. Your office will be updated on the progress.’

[6] In a manner which was unexplained, this letter came to the attention of Ms van Schalkwyk’s attorney who responded to Ms Maranyane on 11 April 2022. In such response the Department’s failure to have prosecuted its review application was drawn to her attention, as were the consequences thereof. It was also drawn to her attention that the Department had never sought to stay the enforcement of the award, and that there was accordingly no impediment to the process of execution.

[7] Ms Maranyane’s response was that the record had not been made available to the Department, which had served as an impediment to the delivery of a supplementary affidavit. Two weeks later she caused the court file to be inspected, whereupon she was informed that the contents thereof constituted only the review application and the correspondence of 29 January 2021.

[8] Although the Department applied to stay the enforcement of the award on 9 May 2022, by agreement reached with Ms van Schalkwyk, that application was withdrawn.

[9] Thereafter on 6 June 2022 Ms Maranyane addressed further correspondence to the Registrar which read,

‘1. Reference is made to the above matter and our letter dated the 29 January 2021 (attached for ease of reference).

2. The Respondents have still not filed any opposing papers for the application for review that was filed.

3. We therefore request again that it be placed on the unopposed roll for hearing.

4. Kindly provide us with the earliest date for us to formally set the matter down.

5. Your urgent assistance will be highly appreciated.’

[10] In the absence of any response to this letter by the Registrar the Department initiated the present application on 28 June 2022.

Analysis

[11] The relief sought by the Department must be considered in relation to the obligations which were cast upon litigants initiating review proceedings prior to 17 July 2023, and the consequences which ensued as a result of failure to give effect thereto.

[12] In terms of Rule 7A(1), the Notice of Motion was required to,

‘(a) call upon the person or body to show cause why the decision or proceedings should not be reviewed and corrected or set aside;

(b) call upon the person or body to dispatch, within 10 days after receipt of the notice of motion, to the registrar, the record of the proceedings sought to be corrected or set aside, together with such reasons as are required by law or desirable to provide, and to notify the applicant that this has been done; and

(c) 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.’

[13] The Department’s Notice of Motion in its review application was deficient in that it did not comply with Rule 7A(1). As was evident from the copy thereof annexed to the present application, it constituted three pages only:

- the first page reflected the parties to the proceedings,

- the second page evinced the Department’s intention to supplement its papers if necessary; an obligation on the part of the respondents to deliver an answering affidavit, if any, within ten days of the service of the application; the signature and address of the State Attorney: Bloemfontein; and the service address of the trade union NEHAWU, and

- the third page reflecting the addresses for service on the PHSDSBC and the CCMA, and the address of the Labour Court for filing.

[14] The Department’s founding affidavit in its review application recorded that it had sought orders,

‘2.1 declaring that the arbitration award in favour of the 1st Respondent (Applicant in the arbitration proceedings) dated 3 December 2019 under Case Number: PSHS324-19/20 under the auspices of the Second Respondent and issued by the Third Respondent, is unlawful, irrational, unreasonable and be reviewed and set aside;

2.2 that the matter be remitted to the Second Respondent for adjudication afresh before a commissioner other than Commissioner (the Third Respondent) who made an arbitration award dated 3 December 2019 under Case Number: PSHS324-19/20 under the auspices of the Second Respondent;

2.3 No order as to costs, save in the event of opposition; and

2.4 Further and/or alternative relief.’

[15] In view of the omissions apparent from the Notice of Motion which had been annexed to the present application, this court inspected the original Notice of Motion to determine whether the deficiencies apparent from the copy attached to the present application had been occasioned by the omission of a page or pages therefrom. The original Notice of Motion, however, presented the same deficiencies as were found in the copy which had been annexed to the present application: it neither called upon the respondents to show cause as to why the award should not be set aside, nor to deliver the record. Given that the Notice of Motion did not comply with Rule 7A(1)(b), it is unsurprising that the second respondent did not made the record available to this court – it was never called upon to do so.

[16] At no point since the institution of its application did the Department take any steps to secure the record. This failure occurred in circumstances in which, even if it had been oblivious to its own omission to have called for the record, this would have been apparent to it if it had attempted to avail itself of the remedy provided for in Rule 7A(4) and brought an application to compel delivery thereof.

[17] In the absence of delivery of the record, or a Notice in terms of Rule 7A(8), with or without a supplementary affidavit, the Department addressed correspondence to the Registrar in January 2021 in which it indicated that the matter was ‘ready for trial’. What motivated the transmission of that letter cannot be imagined. A similar request to enrol the matter was issued by the Department in June 2022, albeit that such request was that the matter be enrolled on the unopposed roll in light of the failure on the part of Ms van Schalkwyk to have delivered any opposing papers. This, in circumstances in which she had been under no obligation to do so, and her own attorney had informed the State Attorney as much. The basis upon which the Department adopted its stance that the matter ought to proceed on an unopposed basis cannot be fathomed, save to note that this approach accorded with its Notice of Motion in its review application which had required Ms van Schalkwyk to deliver an answering affidavit within ten days of service on her of the Notice of Motion and founding affidavit, despite the absence of a record, a Notice in terms of Rule 7A(8), or a supplementary affidavit, as was required in terms of Rule 7A(9).

[18] Arising from the Department’s procedural failures as detailed above, were its failures to have complied with the various time periods imposed in the prosecution of review applications by the LRA itself, the Rules and the Practice Manual.

[19] Section 145(5) of the LRA provides that,

‘Subject to the rules of the Labour Court, a party who brings an application under subsection (1) must apply for a date for the matter to be heard within six months of delivery of the application, and the Labour Court may, on good cause shown, condone a late application for a date for the matter to be heard.’

[20] In this regard, the Department relied upon the letter addressed to the Registrar on 29 January 2021, and asked that condonation be granted for its failure to have complied with the time period specified in section 145(5).

[21] Albeit that a letter was addressed to the Registrar on that date, it cannot be said that it sufficed for the purpose of compliance with s145(5). In the first instance, it advised the Registrar that the matter was ready for trial. Even if that aspect could be overlooked, it is evident that the application was not ready to be enrolled, for at that stage the record had not been delivered, the Department had not delivered a Notice in terms of Rule 7A(8), and Ms van Shalkwyk was yet to be required to have delivered an answering affidavit. Implicit in s145(5) is that the letter requesting enrolment be transmitted only once the application is actually ready to be enrolled. As at the date of the hearing of the present application, the review application was still not ripe for hearing, and the requirements of s145(5) had not been complied with.

[22] Save that the Department suggested that because the Registrar had not physically archived the file at the time when it was inspected in 2022, it is unclear on what basis the Department contended that its review application had not been archived. In terms of the Practice Manual, clause 11.2.7 provides that a failure on the part of an applicant to ensure that all the necessary papers are filed within a period of 12 months from the date of the launching of the application, and the Registrar is informed that the matter is ready to be allocated a hearing, will result in the application being archived and regarded as lapsed. In addition, clause 16.1 provides that a file will be archived in circumstances in which an applicant has failed to take any steps for a period of six months from the date on which the application was initiated.

[23] It is clear that the Department contravened both clauses. Having initiated its application on 21 January 2020 it took no steps in the prosecution of its review application thereafter. Although its reliance on its letter of 29 January 2021 has been found to have been misplaced, even if it could be construed as a further step the result would be the same: a period of six months elapsed without any steps having been taken, and a period of more than one year elapsed without all the necessary papers having been filed. In all events, Mr Merabe conceded in the course of argument that the review application had been archived and that the reinstatement thereof was necessary.

[24] In the circumstances, the question is whether the Department made out a case for the reinstatement of its application. It is trite that such an application is akin to a condonation application and, to that end, four interrelated factors are to be considered: the length of the delay, the reason therefor, the prospects of success in the main application, and the interests of justice.

[25] Insofar as the Department’s explanation for its failure to have taken any steps from the date on which it initiated the review application until 6 June 2022, the circumstances which were said to have led to the delay included the failure on the part of the second respondent to have delivered the record; the COVID 19 pandemic; and the inadvertent inclusion of the State Attorney’s file amongst others which had been closed.

[26] The deponent to the founding affidavit asserted that she had been the attorney appointed to represent the Department since the launching of its review application. Notwithstanding such assertion, it was clear from the contents of her affidavit and the correspondence of 29 January 2021 that for a period of time the review application was being dealt with by another attorney in the employ of the office of the State Attorney.

[27] At no time prior to the hearing of this application was the record obtained or delivered by the Department. The reasons for this omission have been dealt with and will not be reiterated. Although the further orders sought by the Department include compelling the second respondent to deliver the record within a stipulated time frames, no explanation was provided as to why no positive steps were taken by it in an effort to secure the record prior to the initiation of this application.

[28] Also unexplained were the reasons which informed the transmission of the letters of 29 January 2021 and 6 June 2022, both having been sent prior to the record having been obtained and delivered, and the second having been sent in circumstances in which Ms Maranyane had six weeks earlier asserted in correspondence to Ms van Schalkwyk’s attorney that it had been the absence of the record which had caused the delay.

[29] Insofar as the issue of the National Lockdown imposed as a result of the COVID 19 virus was concerned, it was alleged that the State Attorney’s staff had worked from home for the period from 17 March 2020 until 31 August 2021. Even if this is to be accepted as factually correct it nonetheless fails to explain why nothing of any consequence was done in respect of the review application during this time: a change in workplace venue does not automatically equate to a complete cessation of work itself.

[30] As to the file erroneously having been included amongst others which were to be closed, this aspect was wholly unparticularised. From the limited information furnished, this court is unable to determine when the erroneous closure took place, when it was discovered to have taken place, or how the error was uncovered. From that which was disclosed, it is impossible to determine what portion of the delay, if any, can be attributed to the misplacement of the file.

[31] The explanation provided is inadequate for its intended purpose. Mr Merabe, for the Department, argued that even if the explanation demonstrated any failures, the failures were those of the State Attorney, which ought not to be attributed to the Department. Mr Steenkamp, for Ms van Schalkwyk, argued that the converse was true.

[32] Whilst it is correct that the failures were those of the State Attorney and not the Department, and it is also correct that the Department, unlike private litigants, does not enjoy the luxury of choice when it comes to the issue of legal representation, these factors cannot absolve it of responsibility in the present instance. This is so for the reason that there was no evidence introduced which indicated that the Department itself took any interest in the matter pursuant to having instructed the State Attorney to institute the review application. Absent evidence of any positive conduct on the part of the Department from which this court could conclude that the Department itself had attempted to ensure that the review was properly prosecuted, there is no reason not to attribute the State Attorney’s negligence to it.

[33] As regards the Department’s prospects of success in its review application Ms Maranyane stated,

‘I humbly submit before the Honourable Court, that there are strong prospects of success based on the facts upon which the review application is predicated which may tend to compensate for a delay that is properly explained, not excessive in nature or unreasonable.’

Such allegation amounted to nothing more than a conclusion, one which was wholly unsubstantiated by any facts from which this court was able to interrogate the correctness thereof. The deponent, by reference, alleged that ‘motivation’ for the review application had been dealt with in the founding affidavit therein.

[34] This court duly considered the founding affidavit in the review application which had been deposed to by Ms Mokone Nthongoa, the second applicant herein. Whilst she herself did not participate in the arbitration proceedings, her affidavit was accompanied by the confirmatory affidavit of Mr Mokotedi Finger who had been the Department’s only witness.

[35] The Department alleged that the third respondent had committed a gross irregularity, misconducted [herself] and / or exceeded [her] powers in the following respects:

‘36.1 First, in her arbitration award, the Commissioner makes a finding that the First Respondent was transferred without prior consultation, without mentioning the details of the Applicants’ due process followed to effect the transfer of the First Respondent as mentioned above. The reasoning by the arbitrator indicates that she committed a gross irregularity in the conduct of the arbitration proceedings by failing to deal in her award and give an appropriate weight in some way with the Applicants’ consultative process;

36.2 Second, the Commissioner makes a finding that the Applicants failed to justify and rationalise their decision and version that the First Respondent would be transferred to the Motheo District where no vacant post on her level was, but would be accommodated in a satellite office. I have shown above that the transfer was for some supervisory staff within the Human Resources Directorate within the Department, 6 kilometres away from the First Respondent’s initial work station and done with a view to improve operational effectiveness and in the public interest as dictated by the Public Service Act;

36.3 Third, the Commissioner committed an irregularity in making a finding that the First Respondent was excluded from meetings, when there is no such evidence pointing out who was the person on behalf of the Applicants who excluded the First Respondent. Therefore the Commissioner did not attach some weight to the evidence of the Applicant’s witness, Mr Finger that he was not aware that the First Respondent was excluded;

36.4 Fourth, the Commissioner committed an irregularity in making a finding that the Applicants did not properly address the First Respondent’s grievance. The evidence on record show that the Applicants did indeed properly deal with the First Respondent’s grievance;

36.5 Fifth, the Commissioner committed an irregularity in making a finding that it is reasonable to conclude that the Applicant acted in such a way to render the continued employment for the First Respondent intolerable and as a result, that she established that she was constructively dismissed. According to the evidence, the First Respondent opted to take voluntary resignation on 9 May 2019, clearly after receipt of correspondence that she must report to a new work station where is transferred to. There was no evidence pointing out to any unlawful conduct on the part of the Applicants for the First Respondent to resign immediately; and

36.6 Sixth, the Commissioner committed an irregularity in making a finding that the First Respondent is entitled to be awarded her 10 months remuneration as compensation totalling R310 972,50 payable by not later than 20 December 2019.’

[36] The first two of the Department’s grounds of review were expressed with refence to that which the deponent had set forth in an earlier part of her own affidavit. In the context of a review application, her own post fact summation of the process which was alleged to have preceded the transfer and the rationale which informed her decision is irrelevant. In the absence of any allegation by the deponent that such evidence had actually served before the third respondent, and her failure in some way to have taken it into account led to an unreasonable outcome, her findings which are sought to be impugned cannot be interfered with.

[37] The Department’s third complaint, properly construed, did not suggest that Mr Finger had disputed that Ms van Schalkwyk had been excluded from meetings; on the version presented in the founding affidavit he had simply been unaware of her exclusion. This accorded with that which the third respondent captured in her award,

‘However, when Mr Finger testified, he submitted that he was not aware that the Applicant was excluded from meetings and he even referred to a meeting he had called and which took place at the Applicant’s office, but she was not there. It is odd that this was not put to the Applicant when she testified.’

[38] As to the assertion that the evidence demonstrated that the Department had dealt with Ms van Schalkwyk’s grievance, such evidence was not particularised. The objective documentary evidence annexed to the founding affidavit in the review application, however, indicated that this could not have been done. Ms van Schalkwyk’s grievance regarding the proposed transfer was dated 18 March 2019. Four days later she received the following response,

‘I refer to my letter dated 12 March 2019 in which I, after considering your representations, concluded that you be transferred.

You are directed to report as per my aforesaid letter with immediate effect, failing which I will have no option but to institute disciplinary action against you. Your refusal to comply with my instructions is viewed in a very serious light and cannot be tolerated.’

[39] Insofar as the conclusion reached by the third respondent that Ms van Schalkwyk had been constructively dismissed was concerned, that conclusion had been arrived at by her on the basis of her findings which were summarised in the award,

‘To summarise, the Applicant was unilaterally informed that she would be transferred to the District Office where no post on her level was vacant. Her appeal was met with the response that suitable other posts were available, only for her to be abruptly informed later that the transfer to the District was with immediate effect. Her following grievance was not dealt with, instead, she received notification of intended disciplinary action for her insubordination. The Respondent could not explain why, given the urgency of the crisis at the District, no one else was transferred to alleviate the situation. Thus, there seemed to be no rational explanation for the Respondent’s initial decision and later insistence on transferring the Applicant. To my mind, it is a reasonable conclusion to draw that the Respondent indeed acted in such a way as to render continued employment for the Applicant intolerable. I thus conclude that her resignation indeed was a direct consequence of the Respondent’s conduct and thus, that she established that she had been constructively dismissed.’

[40] The Department’s contention that the absence of proof of unlawful conduct on its part rendered the third respondent’s

conclusion that Ms van Schalkwyk had been constructively dismissed unreasonable did not address the multitude of other factors taken into consideration by her which had informed such conclusion. In the absence of any challenge being raised to those findings, a reviewing court would be obliged to accept both the correctness and reasonableness thereof.

[41] Finally, as to the amount of compensation awarded by the third respondent, the Department failed to articulate any basis upon which it could be concluded that she allegedly committed an ‘irregularity’.

[42] In an application such as the present, the Department was required to establish facts which, if established in its review application, it would be entitled to succeed. As was pointed out by Mr Merabe for the Department, insofar as prospects of success is concerned, the threshold is not very high. However, in consideration of the grounds of review articulated by the Department in its review application, being the only grounds upon which the Department relied in seeking to demonstrate that it has good prospects of success, this court finds that the threshold has not been met.

[43] Ms van Schalkwyk, an employee with almost 30 years’ service with the Department resigned from her employment in circumstances which were found to have been objectively intolerable by the third respondent. Since the issuing of the award in her favour in December 2019 she has been deprived of the benefit thereof, in contravention of the requirement that labour disputes be resolved expeditiously.

[44] To reinstate the review application in circumstances in which:

- The Department had initiated a defective review application in which it never called upon the second respondent to deliver the record.

- Rather than ever having made any attempt to obtain the record, it asked that the review application be enrolled on two separate occasion, despite the absence of the record.

- Other than the two items of misguided correspondence referred to, it took no steps whatsoever to prosecute the review application.

- The Department could provide no actual explanation for its failure to have done so.

- The Department cannot be said to have any prospects of success in its proposed review application.

would not serve the interests of justice.

[45] In consideration of the aforementioned, this court finds that the Department has not made out a case for the relief sought by it and the application will accordingly be dismissed.

Costs

[46] Ms van Schalkwyk sought a punitive costs order in the event of the dismissal of the application. The Department, whilst having accepted that an order of costs would be appropriate in the event of the dismissal of its application, argued that a punitive costs order was unwarranted.

[47] Whilst this court accepts that Ms van Schalkwyk has incurred costs in having opposed this application, it must also accept that it was not unreasonable for the Department to have initiated its application. Albeit that the application has been found to have lacked merit, this court does not find that it was initiated frivolously or vexatiously. Whilst this court finds that it would not be unfair to the Department to order it to pay Ms van Schalkwyk’s costs, this will not be on a punitive basis.

Order

1. The application to reinstate the application to review the award issued under PSHS324-19/20 dated 3 December 2019 is dismissed.

2. The first and second applicants are ordered to pay the first respondent’s costs, jointly and severally, the one paying, the other to be absolved.

K Allen-Yaman

Judge of the Labour Court of South Africa

Appearances

Applicants:

Mr M J Merabe, instructed by the State Attorney, Bloemfontein

First Respondent:

Mr G C Steenkamp, instructed by Lovius Block Attorneys