National Dept of Health v Pardesi and Another (J1978/2016) [2016] ZALCJHB 492 (12 September 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: J 1978/2016

In the matter between

NATIONAL DEPT OF HEALTH

Applicant

and

POONI PARDESI First

Respondent

SHERIFF PRETORIA NORTH EAST. Second

Respondent

Heard: 9 September 2016

Judgment: 12 September 2016

VAN NIEKERK J

[1] This is an urgent application in which the applicant seeks to have a writ of execution declared invalid and set aside, alternatively, to have the execution of the writ stayed pending the outcome of a review application filed under case number JR 1143/16, further and alternatively, that the first respondent withdraw the writ pending the outcome of the review application and finally, that the first and second respondents be ordered to pay costs de bonis propriis. The first respondent has filed a counter application in which she seeks to have her suspension lifted with immediate effect.

[2] I do not intend to canvass the material facts in any detail – these are not in dispute and are apparent from the papers before me. For present purposes, it is sufficient to record that the first respondent was suspended by the applicant during October 2015. After an arbitration hearing conducted during April 2016, the arbitrator issued an award in terms of which she found that the first respondent’s suspension constituted an unfair labour practice. She ordered the suspension to be set aside and that the first respondent return to work by no later than 1 June 2016. In addition, the first respondent was awarded compensation in an amount equivalent to 4 months remuneration. In terms of a variation ruling issued on 18 May 2016, this was quantified in the sum of some R 253,000.

[3] It is not in dispute that the applicant has failed to comply with the terms of the award. On 20 June 2016, the applicant filed an application to review and set aside the award. That application remains pending.

[4] The only basis on which the application is founded is that the writ of execution is irregular, invalid and a nullity because it was not preceded by either an order of this court, presumably in terms of s 158(1) (c) or certification by the secretary of the bargaining council or the director of the CCMA. Why the applicant should seek in prayer to the notice of motion to have the writ declared invalid pending the finalisation of the review application is not apparent to me – either the writ is valid or it is not. In the answering affidavit in the main application, the first respondent attached a copy of the certification of the award dated 8 June 2016. The provisions of s143 of the LRA, in their recently amended form, provide that an arbitration award issued by a commissioner is final and binding and may be enforced as if it were an order of this court in respect of which a writ has been issued, provided that the award is certified in accordance with s 143(3). The basis on which the applicant contends that the writ is invalid is simply incorrect. At the hearing of the application, the applicant’s counsel conceded as much, stating that the applicant had not been aware, at the time that the application was filed, that the award had been certified. Why this could not have been ascertained by the applicant’s attorney before filing an urgent application to set aside the writ on the basis that it had not been certified is beyond me, particularly since the face of the writ reflects the date on which the award was certified. Be that as it may, counsel then sought to persuade the court that in terms of prayer 3 of the notice of motion, the writ ought to be stayed pending the outcome of the review application.

[5] Section 145 (7) makes clear that the institution of review proceedings does not suspend the operation of an arbitration award,

unless the applicant furnishes security to the satisfaction of the court in accordance with subsection (8). That provision specifies the amounts to be furnished as security. It is common cause that in the present instance, the applicant has not furnished any security as required by s 145(7). The applicant’s counsel submitted that the applicant was not required to furnish security and relied on Free State Gambling & Liquor Authority v Commission for Conciliation, Mediation and Arbitration & others; Free State

Liquor & Gambling Authority v Motake (2015) 36 I LJ 2867 (LC) to contend that it was unnecessary for the applicant to provide security for costs. He submitted that this being so, the execution of the writ ought to be stayed pending the outcome of the review application.

[6] It is not necessary for me to express a view on the correctness or otherwise of the decision in Free State Gambling. What the court made clear is that where an applicant’s budget and financial management are governed by the PFMA and Treasury regulations and that the object of providing security is satisfied thereby, it remains necessary to make what the court referred to as ‘duly authorised’ averments to this effect. In the present instance, the applicant makes no averments regarding any exemption that it might enjoy from the obligation to provide security. The applicant in the Free State Gambling case sought exemption from furnishing security on the basis that sections 145(7) and (8) were in conflict with s 66 of the PFMA. The Free State Gambling judgement is not authority for the proposition that all departments of state or other entities subject to the PFMA do not have to furnish security. There are no facts before me that enable me to exercise a discretion to order that security should not be furnished. The default position must therefore apply. That being so, the provisions of s 145 (7) prevail, i.e. the institution of review proceedings does not suspend the operation of the arbitration award. The application to set aside or suspend the operation of the writ accordingly stands to be dismissed.

[7] Turning next to the counter-application, the applicant in that application (to whom I shall for convenience continue to refer as the first respondent), seeks an order to uplift her suspension with immediate effect. What the first respondent in effect seeks is that the court order compliance with the arbitration award. It is not in dispute that when the first respondent reported for work on 1 June 2016, she was not allocated any work or provided with any resources. On 3 June 2016, she was physically prevented from entering the department’s premises. To the extent that the applicants conduct was motivated by its view that the pending review application automatically stayed the operation of the arbitration award, as discussed above, this view was misguided. In terms of the first respondent’s letter of suspension, she was suspended as a precautionary measure in terms of what is referred to as the SMS handbook. Clause 2.7 of chapter 7 of the handbook regulates precautionary suspension and limits any suspension or transfer effected as a precautionary measure to a 60-day period. The relevant guidelines make it clear that an employee must return to work should any disciplinary hearing not be completed within 60 calendar days. It is not in dispute that this period has been exceeded. The first respondent was suspended on 29 October 2015. She was given notice on 27 January 2016 to attend the hearing on 4 February 2016. In any event, the stated purpose for the precautionary suspension, i.e., to allow the investigative process to continue unhindered, no longer exists. The investigations are complete and the disciplinary hearing remains to be finalised. The first respondent’s continued suspension is unlawful for these reasons alone. In the circumstances, it is not necessary for me to make any decision in regard to the substantive grounds that gave rise to the suspension. The first respondent is accordingly entitled to the order that she seeks.

[8] In regard to costs, the court has a broad discretion in terms of s 162 to make orders for costs according to the requirements of the law and fairness. The first respondent has sought costs on a punitive scale, presumably in response to the applicant’s pray for costs de bonis propiis. I wish to make some observations in regard to the manner in which this matter has been conducted and specifically, the manner in which the deponent to the founding affidavit, MT Ngake, and the applicant’s attorney of record, TV Letageng, have conducted themselves. Ngake describes himself as an advocate and makes submissions of law in the founding papers on that basis. As I have pointed out above, the application to set aside the writ was wholly misguided. The terms of the writ clearly state that it was issued pursuant to certification by the director of the CCMA on 8 June 2016. Despite this clearest of indications as to the basis on which the writ had been issued, the application to set aside the writ was pursued without as much is any reference to that fact or any attempt to verify that the award had indeed been certified. This failure borders on professional negligence. Further, the bellicose tone of the correspondence addressed by Letageng to the first respondent’s attorneys of record is unprofessional, to say the least. I refer specifically to the letters dated 3 June 2016 and 30 August 2016. In my view, the conduct of the applicant’s representatives is in itself a basis on which to make an order for costs. That aside, there is no reason why having regard to the interests of the law and fairness the first respondent should be denied her costs. Finally, it concerns me that on more than one occasion, the first respondent’s plight has been drawn to the personal attention of the Minister, without the courtesy of an acknowledgement of receipt, let alone a response. The registrar is directed to forward a copy of the papers in this application to the Minister for his personal attention.

I make the following order:

1. The application to set aside the writ of execution issued under case number PSHS710-15/16 is dismissed, with costs.

2. The counter application to declare the suspension of the applicant unlawful is granted, with costs.

3. The applicant in the main application is ordered to uplift to the first respondent’s suspension with immediate effect in to permit the first respondent to resume her duties.

ANDRÉ VAN NIEKERK

JUDGE OF THE LABOUR COURT

REPRESENTATION

For the applicant: Adv SM Shaba, instructed by the State Attorney.

For the first respondent: Mr I Haffegee, Haffegee Roskam Savage Attorneys.