Mothupi v SA Local Government Bargaining Council and Others (JR 786/2021) [2022] ZALCJHB 232 (15 August 2022)

THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

Of interest to other Judges

CASE NO: JR 786/2021

In the matter between:

CHUPETSO MESHACK MOTHUPI

Applicant

and

SA LOCAL GOVERNMENT BARGAINING COUNCIL

First Respondent

COMMISSIONER J MPHAPHULI N.O

Second Respondent

COMMISSIONER S RAMOSHOWANA N.O

Third Respondent

CITY OF TSHWANE METROPOLITAN MUNICIPALITY

Fourth Respondent

Date of hearing: 13 April 2022

Date of judgment: 20 April 2022 (delivered by email)

Order varied in terms of S 165: 15 August 2022 (delivered by email)

JUDGMENT

VAN NIEKERK J

[1] The Labour Relations Act (LRA) sought to establish a system of dispute resolution that is expeditious, efficient and inexpensive. This case illustrates how the best of legislative intentions can be frustrated by an overly technical approach on the part of respondent parties and decision-makers.

[2] The applicant seeks to review and set aside three interlocutory rulings issued in the course of a dispute between him and the fourth respondent (the municipality) concerning an alleged unfair dismissal. The first two rulings were issued by the second respondent; the third was issued by the third respondent. I refer to the first ruling, issued on 12 November 2020, as the ‘jurisdictional ruling’. The second ruling was issued on 5 March 2021; I refer to it as the ‘condonation ruling’. The third ruling was issued on 10 April 2021; I shall refer to it as the ‘rescission ruling’.

[3] The material facts are not in dispute. The applicant commenced employment with the municipality on 1 November 1998, as an accountant. After the applicant had filed various grievances against the municipality which he contends were not adequately addressed, with effect from mid-January 2019, he resigned and claimed what is commonly referred to as constructive dismissal. At that stage, the applicant had more than 20 years’ service. The applicant’s then attorney of record referred a dispute to the CCMA on 12 February 2019. The parties fall within the jurisdiction of a bargaining council and no doubt for this reason, on 14 February 2019, the same attorney referred the same dispute to the first respondent (the bargaining council), using the standard Form 7.11. In paragraph 11 of the referral form, the applicant signed the form in a space that refers to ‘employee party referring the dispute’. However, that paragraph relates to the status quo provisions established by section 64 (4) of the LRA, and is intended to indicate an intention to invoke those provisions. Paragraph 13 of the form, which appears on the same page as paragraph 11 where the applicant’s signature was affixed, provides for the confirmation of details reflected in the referral form. In that space, the attorneys’ messenger signed her name in a space headed ‘Form submitted by’ and recorded the date and place of referral. This is the signature that caused all the trouble.

[4] Although it is not in dispute that the applicant signed the referral form (albeit on the right page but in the wrong place), the bargaining council responding no doubt to the signature of the messenger at the foot of the referral, took the view that the referral had not been signed by the applicant. On 19 February 2019 wrote to the applicant’s attorney stating that the referral had not been signed by the applicant but by his representative and that it was ‘unable to process the application’. The applicant’s attorney filed a further document on 22 February 2019, in which the applicant simply substituted the page on which the signatures appeared for a page reflecting his own signature in both paragraphs 11 and 13 of the referral form, and reflecting the date of referral as 21 February 2019. A conciliation hearing was convened on 18 April 2019. On the same date, a certificate of outcome was issued, reflecting that the dispute remained unresolved and the matter was

set down for an arbitration hearing on 29 November 2019. 21 and 22 April 2020 but postponed ultimately, for various reasons, to 9 and 10 November 2020.

[5] When the matter came before the second respondent on 9 November 2020, he considered a point in limine to the effect that the referral made on 22 February 2019 was out of time. On 12 November 2020, the second respondent issued a written ruling (the jurisdictional ruling) to the effect that the referral was late, because it had been filed after the expiry of the 30-day period within which the dispute ought to have been referred, and that in the absence of any application for condonation for the late referral, the bargaining council had no jurisdiction to entertain the applicant’s claim. In the course of his ruling, the second respondent observed that ‘the Applicant filed a compliant referral on 22 February 2019’. Why no-one thought at the time to refer the second respondent to the applicant’s signature on the original referral made on 14 February 2019 (which was filed within the required 30-day period), is not apparent.

[6] On 10 February 2021, the applicant applied for condonation for the late referral of his dispute. This time he was assisted by a SAMWU official. The founding affidavit records that at the arbitration hearing on 9 November 2020, the second respondent had regarded the referral made on 22 February 2019 as late. The applicant thus sought condonation on the basis that he had assumed that his remedying of the defect identified by the second respondent (by substituting a page in the referral for one containing his signature in the correct space provided) did not require an application for condonation. In

any event, the applicant averred that the referral in the form required was only five days late, and that he had good prospects of success in the main application.

[7] The municipality opposed the application for condonation on the basis that the referral form 7.11 dated 14 February 2019 had been signed by the attorney’s messenger, who was not authorised or entitled to represent any party before the bargaining council and that as such, the referral form was materially defective. To rectify the defect, so

the fourth respondent contended, the applicant was required to deliver a fresh referral, which he had failed to do. The answering

affidavit in which the application for condonation was opposed made no reference to the second respondent’s finding in his

jurisdictional ruling that the referral made on 22 February 2019 was a ‘compliant referral’.

[8] In the condonation ruling, the second respondent concurred with the submissions made by the municipality and in essence, held that in the absence of a new and fresh referral devoid of defects, the condonation application was of no legal consequence, and that it ought thus to be dismissed. The second respondent noted that the referral had been signed by a person who lacked the legal status to sign the dispute referral application. It would appear that the amended page, signed by the applicant at both paragraphs 11 and 13 of the referral form and dated 21 February 2019 was not in the case file, and that it was not drawn to the attention of the second respondent. What is also apparent is that the second respondent ignored his prior jurisdictional ruling, in which he found that the applicant had filed a compliant referral on 22 February 2019.

[9] The applicant then applied to rescind the condonation ruling, on the basis that it had been made in error. The application was determined on the basis of written submissions made by the parties. Again, the municipality opposed the application on the basis that there had been no ‘new and fresh referral devoid of defects’, and that the applicant had thus failed to submit a compliant referral. On 10 April 2021, as I have indicated, the application for rescission was refused on the basis that as a matter of fact, there had been no fresh or new referral form filed by the applicant, and thus no ambiguity or obvious error in the second respondent’s condonation ruling.

[10] When the present application was called, I raised with the applicant’s representative, Mr. Mkhize, the fact that in respect of the first two rulings sought to be reviewed, the application appeared to be out of time. Mr. Mkhize did not dispute that the rulings concerned had been issued more than six weeks prior to the filing of the review application, but sought to persuade me that the three rulings were an integral part of a single dispute and that it was sufficient that the application had been filed within six weeks of the date of the third ruling. There is no merit in this submission. Although the readings pertain to the same dispute, they are discrete rulings made on their own set of facts with different legal thresholds to be applied, with none of them dependent on the other for the purposes of an application for review.

[11] The law relating to the late filing of a review application without any application for condonation is well-established – this court has no jurisdiction to entertain the claim. Although the late filing of the application had not been raised on behalf of the fourth respondent, the court is obliged to raise any jurisdictional concern and deal with it, since the court is not empowered to exercise functions and powers that have not been conferred on it by law. In the absence of any application for condonation (which could easily have addressed the convenience of seeking to review all three interlocutory rulings in a single, late application) the court thus has no jurisdiction to entertain any review of the jurisdictional ruling and the condonation ruling.

[12] In so far as the applicant seeks to review the rescission ruling, the material that served before the third respondent must be assessed against a threshold of reasonableness. In other words, this court is empowered to interfere with the ruling only if the third respondent committed a material irregularity in the course of the proceedings and the outcome of the proceedings, in the form of his ruling, falls outside a band of decisions to which a reasonable decision-maker could come on the evidence that served before him.

[13] The applicant had submitted in his founding affidavit that the rescission ruling made on 5 March 2021 was made in error as ‘it did not talk to the application that the ruling seeks to address’. In particular, the applicant submitted that the ambiguity or obvious error in the ruling for the purposes of section 144 of the LRA was to be found in paragraph 2.1 to 2.4 of the ruling, in as much as the application concerned the condonation of a referral that was ‘already signed correctly’. In other words, the applicant’s contention was that the referral form initially submitted to the bargaining council was no longer an issue; the issue before the second respondent concerned the late filing of what the applicant described as ‘the supplementary referral form’. The municipality filed an answering affidavit in which it contended that it was trite law that a failure by a referring party to personally sign a referral form constitutes a material defect that deprives the bargaining council of jurisdiction to entertain that dispute. Further, the applicant had been advised that the referral was defective and that to rectify the defect, he was required to deliver a fresh referral. He failed to do so and the initial referral was thus not competent. Further, the municipality submitted that in exercising a discretion to rescind an award or ruling, an arbitrator is entitled only to vary or rescind an award where the award or ruling concerns consequential issues that the arbitrator concerned had overlooked, or where it was necessary to clarify any ambiguity or correct any error. In other words, the correctness or otherwise of the decision sought to be rescinded is not in issue, and the third respondent was not entitled by way of an application for rescission to substitute the previous ruling issued by the second respondent with a substantially different ruling, granting the application for condonation.

[14] In his rescission ruling, the third respondent recorded that the applicant sought to rescind the condonation ruling on the basis of an ambiguity, obvious error or omission by the third respondent. The third respondent recorded the applicant’s contention that the second respondent had issued his ruling ‘without assessing a new referral form’. The third respondent went on to note that the municipality, on the other hand, had contended that ‘there was indeed a fresh referral’. (This cannot be correct – the fourth respondent had sought the dismissal of the rescission application based on the absence of a new and fresh referral devoid of defects, contending that the only referral that had served before the second respondent was the original, defective referral.)

[15] The third respondent went on to record that this court had on previous occasions made pronouncements on the law applicable ‘with regard to a commissioner who is faced with two equally probable/reasonable versions’. He stated that in the circumstances, the matter was to be decided on the basis of the application of the onus of proof, and that the discharge of the onus was dependent on a ‘qualitative assessment of the truth of the evidence of the witnesses and of which of the two versions is the more probable’. The third respondent recorded that to the extent that the applicant claimed that there had been a new referral, no new referral form was evident from the file, and that the application for condonation had not been accompanied by a referral form ‘which of course renders it null and void’. The third respondent thus concluded that the applicant had ‘failed to present a new referral form accompanied by sworn affidavit to the council’ and that he had therefore failed to show good cause why the condonation ruling should be rescinded.

[16] What the above chronology discloses, and which neither the second or third respondents or any of the parties raised in any of the proceedings sought to be reviewed, is that the original referral form, filed with the bargaining council on 14 February 2019, bears the signature of the applicant, albeit in the incorrect place. I fail to appreciate therefore how it can be said that the initial referral was thus defective – by any measure, there was substantial compliance with the relevant rule requiring a referring party personally to sign the referral form. The matter ought properly to have ended there. What further compounded matters was the applicant’s decision to file an amended page reflecting only his signature (this time in the correct place) and to rely on that as the ‘new referral form’ that he had been directed (mistakenly) to file. The assumption made by the second respondent, in his jurisdictional ruling made on 12 November 2020, was that the applicant had not signed the referral form. In fact, the applicant had signed both the initial referral and the substituted page, which he considered to constitute a new referral. The second respondent was thus clearly mistaken in his assessment of the facts when he issued the jurisdictional ruling, a mistake that carried through to his condonation ruling made in March 2021 and also to the rescission

ruling made by the third respondent on 10 April 2021.

[17] Section 144 of the LRA provides for the rescission of arbitration awards or rulings made by commissioners and arbitrators, in circumstances where the award or ruling was erroneously sort or erroneously made in the absence of any party affected by the award; where there is an ambiguity, or an obvious error or omission, in the ruling or reward but only to the extent of that ambiguity, error or omission; where the award or ruling was granted as a result of a mistake, and to the parties to the proceeding; or whether ruling or award was made in the absence of any party, on good cause shown.

[18] This court has drawn on the principles established by the High Court in its application of Rule 42 (1), the basis for the drafting of section 144. An award or ruling will be regarded as having been erroneously granted if:

…there was an irregularity in the proceedings or if it was not legally competent for the court to have made such an order or if there

existed at the time of its issue a fact of which the judge was unaware which would have precluded the granting of the judgement and which would have induced the judge, if he had been aware of it, not to grant the judgment. Though in most cases such an error would be apparent on the record of the proceedings, it is submitted that in deciding whether a judgment was erroneously granted, a court is not confined to the record of the proceedings (Myburgh and Bosch Reviews in the Labour Court, at p 395, quoting Erasmus HJ Superior Court Practice B1-308.)

[19] Turning then to the ruling under review, to the extent that the third respondent considered that the applicant had failed to show good cause (see paragraph 11 of the award), good cause is not a requirement, except in the case of section 144 (d), when rescission is sought of an award made in the absence of a party. To the extent that the third respondent considered that it was incumbent on the applicant to establish good cause, this is not the case since the applicant clearly relied on the ground referred to in section 144 (b).

[20] Further, and more fundamentally, the third respondent approached the enquiry as a factual dispute as to whether there had been a fresh referral to the bargaining council – a dispute that he proceeded to determine on the basis of the application of the onus of proof, given his view that the probabilities were equally poised. The question that the third respondent ought properly to have asked is whether at the time the second respondent issued his condonation ruling, he was unaware of a fact that would have precluded him from making the ruling and that would have induced him, if he had been aware of it, not to make the ruling he did. What the third respondent overlooked was that the second respondent had, in his jurisdictional

ruling, held that the applicant had made a compliant and thus valid referral on 22 February 2019. (As I have indicated, given that there was substantial compliance with the requirement that the referral form be signed by the applicant personally, the substitution of the relevant pages made on 22 February 2019 was entirely unnecessary.) It was thus not open to the second respondent in his consideration of the condonation application, nor the third respondent in his consideration of the rescission application, to find that the initial referral was invalid and that a fresh referral was required. In the case of the rescission application (the proceedings under review) the third respondent ought to have accepted the validity of the initial referral and asked whether at the time the condonation ruling was issued, there was a fact of which the second respondent was unaware and which would have induced him, had he been aware of it, not to refuse condonation on the sole basis that he did, i.e. that the attorney’s messenger had signed the original referral.

[21] It follows that by asking the wrong question, the third respondent committed a reviewable irregularity. The second stage of the enquiry is whether in spite of the reviewable irregularity, the ruling can nonetheless be sustained because it is one to which a reasonable decision-maker could come. The answer is an emphatic no. First, as a matter of law and despite the bargaining council’s view, the applicant had made a substantially compliant and timeous referral on 14 February 2019 and it was not necessary for him to seek condonation for any late referral. To the extent that the applicant and his advisers thought it necessary to apply for condonation (prompted no doubt by the bargaining council’s directives), the second respondent ought to have realised first, that the initial referral was valid and made within the prescribed time limit, and secondly, in any event and to the extent that there was any dispute about the validity of the referral made on 22 February 2019, that had been found to be a compliant referral in terms of the jurisdictional ruling issued on 12 November 2020. The only enquiry to be conducted then was whether the applicant met the requirements for condonation, a matter to be determined by a consideration primarily of the degree

of lateness (5 days), the explanation for the delay and the applicant’s prospects of success. The third respondent concerned himself only with the signature of the original referral by the messenger, thus ignoring the fact of the applicant having affixed

his signature to that referral, and the prior finding to the effect that the referral made on 19 February 2019 was compliant. In short, the third respondent’s rescission ruling represents a decision to which no reasonable decision-maker could come, and the ruling thus stands to be reviewed and set aside.

[22] There would be little point in remitting the matter for rehearing. The dispute between the parties has a long history. In his initial referral form, the applicant states that his resignation was accepted on 15 January 2019. More than three years later, the dispute has not yet reached the stage of the commencement of an arbitration hearing. The court has before it a full record and is in a position to substitute the third respondent’s ruling for a ruling to the effect that the condonation ruling is rescinded. I further intend to direct the first respondent to enrol the matter for hearing on the merits before an arbitrator other than the second or third respondents.

[23] Finally, for the purposes of section 162, the requirements of the law and fairness are best met by the municipality being ordered to pay the applicant’s costs. The applicant is an individual employee who has been frustrated at every turn in his navigation of the statutory dispute resolution process, largely on account of the misdirections of the second and third respondents, but also on account of the submissions made by the municipality and its complicity in an unnecessarily technical approach that it has been adopted throughout. The result is that, as I have observed, more than three years later, the determination of the substantive merits of the applicant’s claim has yet to commence. The applicant is entitled to be recompensed, to the extent that an order for costs permits, for the expenses that he has incurred in initiating and pursuing these proceedings.

I make the following order:

1. The ruling issued by the third respondent on 10 April 2021 under case number PMD021906 is reviewed and set aside.

2. The ruling is substituted by the following:

‘The condonation ruling issued on 5 March 2021 under case number PMD021906 is rescinded’.

3. The dispute between the parties concerning the alleged unfair dismissal of the applicant is referred to the first respondent for an arbitration hearing, to be conducted by an arbitrator other than the second or third respondent.

4. The fourth respondent is to pay the costs of these proceedings.

André van Niekerk

Judge of the Labour Court

APPEARANCES

For the applicant: N Mkhize, Mkhize Attorneys

For the fourth respondent: G. Mashigo, instructed by Rambevha Morobane Attorneys