Member of the Executive Council Education, Mpumalanga v Mokwena; In re: Mokwena v Education Labour Relation Council and Others (JR2133/16) [2021] ZALCJHB 410 (15 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, POLOKWANE

Not Reportable

CASE NO: JR 2133/16

In the matter between:

MEMBER OF THE EXECUTIVE COUNCIL

EDUCATION, MPUMALANGA Applicant

And

MATAMPANE WILLIAM MOKWENA Respondent

In re:

MATAMPANE WILLIAM MOKWENA Applicant

EDUCATION LABOUR RELATION COUNCIL First Respondent

COMMISSIONER ABNER CHOKWE Second Respondent

MEMBER OF THE EXECUTIVE COUNCIL,

EDUCATION, MPUMALANGA Third Respondent

Date heard: 06 October 2021

Date delivered: 15 October 2021

JUDGMENT

MANGENA AJ

Introduction

[1] This is a judgment on a review application instituted by Mr Matampane William Mokwena against the award made by Commissioner Abner Chokwe in case number PSES 852-15/16 MP under the auspices of the Education Labour Relation Council.

[2] The facts are briefly as follows: Mr Mokwena is employed by Mpumalanga Department of Education as a teacher and stationed at Bantwabethu Secondary School under the principalship of Ms Masike.

[3] On or around January 2015, Ms Masike in the performance of her duties as the school principal allocated to Mr Mokwena grade 10E class to teach English. He subsequently stopped teaching the class and the learners together with the school governing body lodged a complaint with the circuit manager. The letter by the SGB reads as follows:

“It has come to our attention as the school governing body of the above mentioned school that a Grade 10 E class since January is not taught English, whereas other grades are being taught.

According to the principal, Mr Mokwena is the one allocated the class. The principal reported she tried many times to engage the teacher in order to come up with a solution, but to no vain.

Our concern is that it is our children who are not being taught. How long will they stay without being taught taking into consideration that others are being taught.”

[4] Upon receipt of the complaint by the SGB, the principal issued a written warning to Mr Mokwena and called him “to honour the final allocation and the time table, by attending to all the classes you are allocated to. You are further requested to consider the needs of the leaners as a priority in the work place.”

[5] Unhappy with the warning, Mr Mokwena took the matter up with the office of the Circuit Manager where an attempt was made to resolve the issue. When no resolution was made, Mr Mokwena was charged with one count of contravening section 18(1) of the Employment of Educators Act[1] in that he failed to carry out a lawful order or instruction without just or reasonable cause by refusing to teach English FAL, a grade 10E class that was allocated to him. He was found guilty and placed on a three months suspension from work without pay.

[6] Mr Mokwena appealed to the MEC and after considering the appeal the MEC confirmed the conviction but amended the sanction to a fine of R10 000.00 payable in 10 monthly instalments.

[7] Aggrieved by the appeal findings, Mr Mokwena referred an unfair labour practice dispute to the bargaining council where the matter was adjudicated by the second Respondent. After listening to the evidence, the arbitrator found that the employer did not commit any unfair labour practice as on evidence before him Mr Mokwena refused to comply with a lawful instruction given to him to teach English to Grade 10E class. The arbitrator dismissed the application.

[8] Mr Mokwena seeks to have the award reviewed on the basis that the second respondent committed an irregularity in the conduct of the proceedings in that he did not deal with the issues relating to a warning issued to Mr Mokwena around 24 February 2015. During the oral hearing, counsel for the applicant sought to once again argue this point. However, a reading of the record does not reveal this aspect to have been an issue for determination by the arbitrator. Even if it could have been raised this issue was not the basis of the referral and was not conciliated on. The dispute was about the charge of misconduct and the consequent imposition of a fine of R10 000.00 which Mr Mokwena wanted to have it withdrawn.

[9] If Mr Mokwena was aggrieved by the warning given in February 2015, he should have referred the dispute to the council within the preferred time-frame. To do so, it was not necessary to engage the circuit Manager and attempt to resolve the issue. If this is the basis of his referral, he is ousted for lack of jurisdiction as the council could not arbitrate a dispute which was not subjected to conciliation.

[10] The above notwithstanding, the Respondent applied for an order that the review be deemed withdrawn in accordance with the provisions of clause 11.2.1, 11.2.2 and 11.2.3 of the Practice Manual which reads:

“11.2.1 Once the registrar has notified an applicant in terms of Rule 7A (5) that a record has been received and may be uplifted, the applicant must collect the record within seven days.

11.2.2 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.

11.2.3 If the applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application,

unless the applicant has during that period requested the respondent’s consent for an extension of time and consent has been given”.

[11] The applicant was informed of the availability of the record on 02 December 2016. The record should have been filed by no later than 6 March 2017, and failing which a request for an extension of time should have been made to the Respondent. The applicant despite reminders by the Respondent to file the record failed to do so until 20 April 2017. The filing of the record on 20 April 2017 was not accompanied by the condonation application. Condonation was only filed on the 26 February 2018 which period is outside the time-frames contained in the order of Cele J granted on 13 February 2018.

[12] I have considered the condonation application deposed to by the attorney for Mr Mokwena. The application explains the reasons for the delay and attributes it largely to the departure of the attorney in the office who was handling the matter. The explanation is lacking in detail and is generally inadequate as it fails to account for the period of 06 March 2017 until 26 February 2018. The attorney further failed to explain why she could not comply with the order of Cele J which was by all accounts a consent order as parties had on their own agreed on the timelines.

[13] Having realised that they are out of time, the attorneys still failed to comply with Rule 7A (8) (b) and ensured that there is compliance with both the Rules and the Practice Manual. The Applicant’s delay is over 12 months and is not accounted for. This is by anyone standard excessive and goes against the ethos and spirit of the Labour Relations Act which is to ensure a speedy resolution of the disputes. The Applicant has been tardy in the prosecution of the review and allowed it to be deemed withdrawn by effluxion of time.

[14] Once advised that the review has lapsed or deemed withdrawn, the applicant again adopted a cavalier attitude and failed to take appropriate steps to resuscitate it. On the authority of Macsteel Trading Wadeville v Van Der Merwe NO and Others[2], this court has no jurisdiction to entertain the review in the absence of a re-instatement application.

[15] Regarding costs, it is trite that costs are in the discretion of the court guided by the principle of fairness and equity. It is very clear in this matter that the applicant was let down by his attorney who failed to comply with the Rules and Practice Manual. It will not be fair to make any order against him. At any rate, it is not in all cases that costs follow suit.

[15] In the circumstances, the following orders are made:

Order:

15.1 The condonation for the late filing of the record is refused.

15.2 The Third Respondent’s Rule 11 application to deem the review withdrawn is granted.

15.3 The review application is struck off the roll.

15.4 There is no order as to costs.

M. I. Mangena

Acting Judge of Labour Court of South Africa

Appearances:

For the Applicant: Adv.

Makofane

Instructed by: Popela

Maake Attorneys

For the Third Respondent: Adv. F Venter

Instructed by: Adendorff

Theron Inc

[1] Act 76 of 1998

[2] (2019) 40 ILJ 789 (LAC)