Mocqhaka Local Municipality v Lekota and Others (JR2681/09) [2016] ZALCJHB 307 (16 August 2016)

INTHE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no. JR2681/09

In the matter between:

MOCQHAKA LOCAL MUNICIPALITY

Applicant

and

AV LEKOTA

First Respondent

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL

Second Respondent

SOUTH AFRICAN MUNICIPAL WORKERS’

UNION

Third Respondent

Z C ZEKA

Fourth Respondent

Heard: 11 February 2016

Delivered: 16 August 2016

Summary: Application to dismiss a review application and to make an arbitration award an order of court – excessive delay in prosecuting review application – court has a discretion to condone unreasonable delay – In exercising discretion, Court to have regard to the delay in prosecuting the review application and explanation thereof, the prospects of success in the review application and the prejudice to the other party – Court refusing to condone unreasonable delay of almost four years as other parties prejudiced thereby – Arbitration award made an order of the court.

MAHOSI AJ

[1] This is an application in terms of rule 11 of the Labour Court Rules to dismiss the applicant’s application to review and set aside the arbitration award of the first respondent (“the arbitrator”). The third and fourth respondents (“respondents”) also apply for the arbitration award to be made an order of court in terms of section 158(1)(c) of the Labour Relations Act 66 of 1995 (LRA).

[2] The factual backgrounds to the present dispute may be summarised thus. The fourth respondent (employee) was employed by the applicant as a security officer until his dismissal on or about 31 July 2008 on account of misconduct.

[3] The employee represented by his union, the third respondent, referred an unfair dismissal dispute to the second respondent for conciliation on 25 August 2008. As the dispute remained unresolved after conciliation, the first respondent arbitrated the matter. The arbitrator found that the dismissal of the employee was both procedurally and substantively unfair. He ordered that the employee be reinstated with no loss of benefit but that the applicant suspends him without pay for three months.

[4] On or about 6 October 2009, the applicant filed its review application in terms of section 145 of the Labour Relations Act 66 of 1995 (LRA) to set aside the arbitration award of the arbitrator. A month later, the applicant had not yet delivered the record of the arbitration proceedings in terms of rule 7A(8) of the Labour Court Rules. It is undisputed that the respondents enquired from the applicant about steps taken to prosecute the review application respectively on 06 September 2010, 04 November 2011, 23 April 2012 and 29 May 2012. It is common cause that the applicant responded to none of these letters. It further common cause that the record was not filed at the time the respondents lodged the rule 11 application, some 32 months after the applicant had filed the review application.

[5] The respondents submit that the applicant has acted with a degree of dilatoriness and in a manner that is grossly remiss and that the only inference to be drawn is that the review application was only brought with the intention to delay the finalisation of this dispute. Furthermore, the respondents submit that the conduct of the applicant is inconsistent with a bona fide intention to enforce its right of review. This is so because the long unexplained periods of lethargy by the applicant, which led to the matter being in abeyance for almost four years cannot be reconciled with the conduct of a party interested to finalise the dispute. Moreover, in his supporting affidavit, the employee submits that he is being prejudiced by the applicant’s dilatory conduct as he has not yet secured another employment.

Evaluation

[6] It is trite that in an application of such nature, the court has a discretion whether to dismiss the application after considering the delay in prosecuting the review application and the explanation thereof, the prospects of success in the review application and the prejudice to the other party.

The delay in prosecuting the review application

[7] In opposing the application, the applicant does not dispute that it delayed in prosecuting the matter. It, however, submits that the delay was caused by the fact that the second respondent failed to inform it that the record was sent to the Registrar of the Labour Court and that the Registrar has also not informed it that it had received the arbitration record despite enquiries to that effect. The applicant further submits that Mr. Nkuma of the office of its attorneys was not diligent in prosecuting the review application and had failed to inform his principal about any development thereto. It lastly submits that the respondents failed to institute proceedings to compel it to provide the record.

[8] It is the applicant’s view that the bargaining council, the Registrar of the Labour Court and the office of its attorneys contributed to the delay in prosecuting the review application. Rule 7A of the Labour Court Rules reads as follows:

‘(1) A party desiring to review a decision or proceedings of a body or person performing a reviewable function justiciable by the court must deliver a notice of motion to the person or body and to all other affected parties.

(2) The notice of motion must-

(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;’

[9] In terms of Rule 7A(5), the applicant is required to make copies of the record or portion of the record necessary for the purpose of the review. Rule (6) requires it to furnish the record or portion of the record to the registrar or other parties. Further, sub-rule (8) provides that:

‘(8) The applicant must within 10 days after the registrar has made the record available either-

(a) by delivery of a notice and accompanying affidavit, amend, add to or vary the terms of the notice of motion and supplement the supporting affidavit; or

(b) deliver a notice that the applicant stands by its notice of motion.’

[10] It is common cause that the review application was filed on the 5th of October 2009 and that up to the date of the filing of the rule 11 application, being 5 July 2013, no record was made available by the applicant. The delay of almost four years is extremely excessive. It cannot be said that the applicant had the intention to bring the matter to finality. I said this for the following reasons. The applicant said that despite many enquiries, the Registrar of the Labour Court had not informed it of the receipt of the record. I failed to understand why it took more than two years to enquire whether the Registrar of the Labour Court had received the record. I am doubting if that was even the case. This is so because there is no indication of any letter or telephonic conversation and relevant dates when those enquiries were made. Had any follow up made, evidence would have been adduced.

[11] On the contrary, the respondents in an effort to seek finality to the matter wrote to the applicant enquiring about steps taken to prosecute the review application. Neither of those letters was responded to. I am more inclined to believe that the applicant’s

attorneys through Mr. Nkuna was negligent in the prosecution of the review application. I see no explanation other than negligence why it would take more than four years to file a record which at this point is not yet filed. It follows that the explanation for the delay is flimsy, unsatisfactory and unreasonable and the review application stands to be dismissed for this reason alone. It is clear that the applicant’s conduct delays the finalisation of the review application and by so doing, prejudiced the employee in the process. The legal principles governing the unreasonable delay

where review proceedings are concerned were set out in the case of Radebe v Government of the Republic of SA and Others[1] where it was stated as follows:

‘Whilst an appeal has to be noted and prosecuted within specified time limits, no such time limits have been specified for the institution

of review proceedings of this nature. In the absence of a statutory time limits the Court have, however, in terms of their inherent

powers to regulate procedure, laid down that the review proceedings have to be instituted within a reasonable time. There are two

principal reasons for the rule that the court should have the power to refuse to entertain a review at the instance of an aggrieved party who has been guilty of an unreasonable delay. The first is that the unreasonable delay may cause prejudice to the other parties. Harnaker v Minister of Interior 1965 (1) SA 372 (C) at 380D; Wolgroeiers Afslaers (Edms) Bpk v Municipaliteit van Kaapstad 1978 (1) SA 13 (A) at 41. The second reason is that it is both desirable and important that finality should be reached within a reasonable time in respect of judicial and administrative decision.’

[12] In the same judgment is was stated that a Court does not exercise a discretion in deciding whether a reasonable time has elapsed. The enquiry is whether the period which has elapsed was, in the light of all the relevant circumstances, reasonable. Thus the enquiry is factual. Where the Court arrives at the conclusion that there has been an unreasonable delay, the Court exercises a discretion as to whether the unreasonable delay should be condoned. In Moraka v National Bargaining Council for the Chemical Industry and Others[2] Lagrange J restated the relevant principles governing this Court’s treatment of ongoing delays in conducting review proceedings as stated in Sishuba v National Commissioner of the SA Police Services[3] and further stated that:

‘[21] Thus, as far as the extent and unreasonableness of the delay are concerned, the applicant's conduct is found seriously wanting in both respects. It is not expressly articulated in Sishubas’s case, but in considering whether it would be in the interest of justice and fairness to dismiss the application, regard ought to be had to the merits of the review application.

[13] As stated above, at the time of the filing of this rule 11 application, the record of the arbitration ruling was not made available. The said record was only filed on the 5th of February 2016. However, the applicant has not delivered a notice in terms of Rule 7A(8) to either supplement its founding affidavit or to state that it stands by its notice of motion. As a result in determining whether the applicant has a prospect in the review application, I considered the applicant’s answering affidavit in the dismissal application and the founding affidavit of the review affidavit.

Prospects of success in the review application

[14] The applicant contends that it had excellent prospects of success in its review application in that: the arbitrator did not have the jurisdiction to arbitrate the matter in the absence of the granting of condonation for the late request for arbitration; that the conduct of the employee was so serious in that a finding that the sanction of dismissal was too harsh is unreasonable; and that the finding of procedural unfairness is unreasonable because the first presiding officer had been removed and substituted.

[15] In arriving at the decision of procedural unfairness, the arbitrator reasoned that the withdrawal of the first chairperson was a unilateral act from the applicant without due regard to the regulation and collective agreement governing the relationship between the parties. It was also the arbitrator’s finding that the first presiding officer was not given an opportunity to state why he should not be withdrawn and that the applicant gave no reason why he withdrew him. Moreover, the arbitrator also found that the employee’s appeal was never entertained by the applicant.

[16] It cannot be said that the arbitrator’s finding that the dismissal was procedurally unfair is unreasonable. First, the arbitrator held that a close scrutiny of the collective agreement revealed that consultation with the employee and his union could have led to the appointment of a presiding officer in terms of section 188A of the LRA. The employee was subjected twice to a disciplinary hearing and it was unfair. Secondly, the employee was denied the right to appeal without any explanation. This amounts to procedural unfairness and the arbitrator rightly found so.

[17] Concerning the substantive unfairness of the dismissal, the arbitrator came to the finding that the employee’s dismissal was unfair by taking into account the personal circumstances of the employee. He was remorseful of his action and has taken steps by seeking psychologist help in order to avoid such conduct in the future. Moreover, the employee had up to that incident a clean disciplinary record. It is not enough to say that the gravity of the misconduct was such that dismissal was the appropriate sanction so that a finding to the contrary is reviewable.

[18] In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others,[4] the Constitutional Court held that the commissioner in approaching a dispute impartially should:

‘…necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.’

[19] This is exactly what the arbitrator did in the present matter. He took into account the fact that the employee showed remorse for his conduct and further took measures not to repeat the misconduct by attending to a psychologist and had an unblemished disciplinary record. These mitigating factors were found by the arbitrator to outweigh the power of the applicant to dismiss the employee. The arbitrator correctly applied his own sense of fairness by not deferring to the applicant’s decision thereby finding that the dismissal was too harsh a sanction. Such finding cannot be said to be unreasonable. Moreover, the arbitrator did not let the employee go hands-free and he ordered a three-month suspension without pay.

[20] Turning to the issue of lack of jurisdiction by the arbitrator, it is apparent from the record served and filed by the applicant on the 5th of February 2016 that the jurisdictional issue was dealt by the arbitrator who issued a ruling dated 20 March 2009 in terms of which he ruled that the second respondent had jurisdiction to hear the arbitration. The applicant has not applied to review and set aside the said ruling.

[21] It is sufficiently clear that the applicant has not established any basis upon which the court could find that the commissioner’s award was reviewable and as such, it has not demonstrated reasonable prospects of succeeding in the review application.

Conclusion

[22] The applicant failed to give a reasonable explanation for the delay in the prosecution of the review application and has further failed to demonstrate reasonable prospects of succeeding in the review application. Consequently, the review application stands to be dismissed.

[23] The third and fourth respondents asked for costs of this application and it is my view that the applicant opposed this application without having a substantial explanation for the delay in prosecuting its review application. As a result, I do not see why it should not pay for the costs of this application.

Order

[24] Therefore, the following order is made:

a) The review application in respect of the arbitration award issued by commissioner AV Lekota on the 25th of August 2009 under case number FSD 080509 is dismissed.

b) The arbitration award issued under case number FSD 080509 is made an order of the court.

c) The applicant, Moccqhaka Local Municipality, is ordered to pay the costs of this application.

________________

Mahosi AJ

APPEARANCES:

For the Applicant:

Mr. K. Naidoo Of Cheadle Thompson Hayson Inc.

For the third and fourth Respondents: Adv. Van Granse, Instructed By De Swardt Vogel Myambo Attorneys

[1] 1995 (3) SA 787 (NPD) at para

[2] (2011) 32 ILJ 667 (LC).

[3] (2007) 28 ILJ 2073 (LC).

[4] [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC) at paras 78-79.