Mohlahlo v Department of Justice and Constitutional Development and Others (JR1160/22) [2024] ZALCJHB 431 (13 November 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR 1160/22

In the matter between:

BC MOHLAHLO Applicant and DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT First Respondent GENERAL PUBLIC SERVICE SECTORIAL BARGAINING COUNCIL Second Respondent MARTIN SAMBO N.O. Third Respondent PUBLIC SERVANTS ASSOCIATION OF SOUTH AFRICA Fourth Respondent

Heard: 6 November 2024

Delivered: 13 November 2024

JUDGMENT

NAIDOO, AJ

Introduction

[1] The applicant seeks to review and set aside a condonation ruling wherein the third respondent dismissed the applicant’s

condonation application for the late filing of her referral to arbitration. At the time the application for condonation served

before the third respondent, the applicant was represented by the fourth respondent, the Public Servants Association of South Africa

(PSA).

Background

[2] The applicant is currently employed as a Facilitator by the first respondent, the Department of Justice and Correctional Services (Department) and earning a salary at level 7.

[3] Prior to this appointment, the applicant was employed by the Department in the position of Section Head: Formal Education earning a salary at level 8.

[4] Sometime in 2019, the applicant successfully applied for the position she currently occupies. At her interview, the applicant enquired from the chairperson of the interviewing panel, whether, if successful in her application, she would remain at salary level 8 and not be downgraded to salary level 7, which was the remuneration level the position she applied for was advertised at. The chairperson advised the applicant to address her query with the Human Resource Department.

[5] It is uncertain whether the applicant took the above advice and if so, what the response she received from the Human Resource

Department. In any event, the applicant was appointed to her current position in December 2019 and continued to be remunerated at level 8. However, on 30 March 2020, the applicant’s salary was reduced to level 7.

[6] On 29 October 2020, the PSA, acting on behalf of the applicant, referred an unfair labour practice dispute to the second respondent. Attempts to resolve the dispute at conciliation proved unsuccessful and a certificate of non-resolution was issued on 22 June 2021.

[7] It was only on 11 April 2022, that the applicant referred her dispute to arbitration. In her condonation application, which accompanied her referral to arbitration, the applicant stated that the PSA was under the impression that the second respondent would issue a date for the arbitration, and it was only on 17 March 2022, did the PSA realise that the applicant’s dispute was never set down for arbitration.

[8] The applicant submitted further that the delay was both unfortune and could not be prevented and as such, the delay was neither wilful nor due to any negligence on her part. Noteworthy is the fact that the applicant makes the point that she visited the PSA’s offices on 7 March 2022, presumably to enquire as to the status of her dispute at the time.

[9] The Department did not oppose the condonation application. In his ruling, the third respondent found that the applicant’s

referral to arbitration was over six months late (on the applicant’s submission, the delay was 256 days). The third respondent found that both the applicant’s explanation for the delay as well as her submissions regarding her prospects of success, were unsatisfactory and dismissed the condonation application on 6 May 2022.

[10] In the applicant’s founding affidavit in support of her review application, the applicant goes into some detail to record the various efforts she made, between July 2021 and April 2022, to engage with and enquiring from the PSA, as to the status of her dispute.

[11] Before this court the applicant’s counsel submitted that the ruling stands to be set aside on grounds that the third respondent did not consider the notion of interest of justice when dismissing the condonation application. This omission, so it was argued, was unreasonable. Additionally, it was contended that the third respondent’s failure to offer any reasons why he held the view that the applicant’s reasons for the excessive delay, were unsatisfactory.

[12] Counsel furthermore submitted that the delay in referring the applicant’s dispute to arbitration was solely caused by the inaction of the PSA and therefore the applicant should be shielded from such negligence, as she bore no responsibility for her erstwhile representative’s tardy conduct.

Evaluation

[13] Firstly, the applicant’s submissions recorded in her founding affidavit and in respect of her efforts following up with the PSA between July 2021 and April 2022, were never placed before the third respondent. In her application for condonation, the applicant merely submits that she consulted with the PSA on 7 March 2022 and does not mention the reason for her visit.

[14] An applicant in a review application, who seeks to challenge an award on grounds of reasonableness, as the applicant in casu does; is prevented from introducing new evidence in a founding affidavit to a review application. Absent these submissions being before the third respondent, this court cannot consider same in a review application for the first time.

[15] Secondly, the argument that the third respondent acted unreasonably by failing to consider the interest of justice before dismissing the applicant’s condonation application, as well as the argument that the third respondent failed to provide reasons for his view; were not arguments recorded in the applicant t’s founding affidavit, or replying affidavit for that matter. It is impermissible for an applicant to raise and rely on arguments which have not been incorporated in their founding affidavit.

[16] As stated, the applicant’s reason in explaining the inordinate delay in filing her referral to arbitration was caused by the PSA’s dilatory conduct.

[17] It is trite in law that a litigant, more often than not, cannot escape the consequences of his or her representative’s negligence in prosecuting or defending a matter.[1]

[18] Adopting this approach, the LAC in Waverley Blankets Ltd v Ndima & others; Waverley Blankets Ltd v Sithukuza & others[2] said:

‘Although the employees were not to blame for this state of affairs, it has frequently been emphasized by our courts - including this court - that an attorney's neglect of his client's affairs may be so inexcusable that condonation may, despite the blamelessness of his client, be refused.’

[19] The PSA is a longstanding and established trade union. It acted irresponsibly in handling the applicant’s dispute. For the trade union to submit it was of the opinion the second respondent would set the matter down without a referral to arbitration, is inexcusable.

[20] Against this backdrop, it can hardly be said that the third respondent’s ruling was unreasonable.

[21] Counsel for the applicant submitted that the applicant has good prospects of success in her main dispute. However, without a reasonable

explanation for the delay, prospects of success are immaterial.[3]

Order

1. The application to review and set aside the condonation ruling under case number GPBC455/2021, is dismissed with no order as to costs.

M Naidoo

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: Instructed by: Mr A Mcineka Ngada Attorney For the First Respondent: Instructed by: Ms L Motau Office of the State Attorney

[1] See Superb Meat Supplies CC v Maritz (2004) 25 ILJ 96 (LAC) at para 16, Saloojee and Another, NNO v Minister of Community Development 1965 (2) SA 135 (A) 141 B-H and Khan v Cadbury SA (Pty) Ltd [2011] JOL 27124 (LC).

[2] (1999) 20 ILJ 2564 (LAC); [1999] 6 BLLR 577 (LC) at para 10.

[3] See Mziya v Putco Ltd [2002] ZACC 30; [1999] 2 BLLR 103 (LAC), National Education Health & Allied Workers Union on behalf of Mofokeng & others v Charlotte Theron Children's Home (2004) 25 ILJ 2195 (LAC); [2004] 10 BLLR 979 (LAC) and Colett v Commission for Conciliation, Mediation and Arbitration and others [2014] 6 BLLR 523 (LAC); (2014) 35 ILJ 1948 (LAC).