National Union of Public Service and Allied Workers Union obo Mmotsa v MEC for Finance Economy Enterprise Development: North West Province (JR2700/2017) [2021] ZALCJHB 174 (22 July 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR2700/2017

In the matter between:

NATIONAL UNION OF PUBLIC SERVICE AND ALLIED

WORKERS UNION obo JEREMIAH KABELO MMOTSA

Applicant

and

MEMBER OF THE EXECUTIVE COUNCIL FOR FINANCE: ECONOMY

AND ENTERPRISE DEVELOPMENT: NORTH WEST PROVINCE Respondent

Heard:

26 January 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website. The date and time for hand-down is deemed to be 22 July 2021 at 16:00

JUDGMENT

TLHOTLHALEMAJE, J

Introduction and background:

[1] NUPSAW acting on behalf of its member, Mr Jeremiah Mmotsa (Mmotsa), seeks an order reviewing and setting aside a decision by the Respondent dated 22 May 2017, in terms of which the latter refused to reinstate Mmotsa following his deemed dismissal in terms of the provisions of section 17(3)(a)(i) of the Public Service Act (The PSA)[1].

[2] An order is further sought directing the Respondent to reinstate Mmotsa to his former post with retrospective effect, or in the alternative, directing the Respondent to pay him all his lost remuneration and benefits from the date of dismissal to the date of his retirement. Mmotsa has since his deemed dismissal, reached retirement age, and accordingly, it was submitted on his behalf that he only sought payment in lost remuneration and benefits.

[3] Mmotsa was employed by the Department of Finance in the North West Province as a Deputy Director, Risk Based Audit, with effect from April 2002. He was deemed to be dismissed on 15 November 2011 following his alleged absenteeism from work without authority.

Mmotsa’s case:

[4] In challenging his deemed dismissal, Mmotsa’s case was that;

4.1 He had experienced marital problems prior to June 2011, and had to move out of his marital home. He further had to appear at a maintenance court in August 2011. As a result of these marital problems he had to attend an employee wellness programme available to state employees, and was diagnosed by a Dr Tshabalala in July 2011 with ‘major depressive disorder’. He had also attended counselling sessions.

4.2 In September 2011 he had an operation on his arm. He alleged that his supervisor was aware that he was not recovering well from that operation, and was also ‘aware of his deteriorating mental health’.

4.3 Due to his poor recovery and subsequent pains he had experienced to his right shoulder, he was booked off duty by a Dr Bogatsu from 30 September 2011 and was to return to work on 1 October 2011.

4.4 Because of the pain in his shoulder, he could not report for duty, and he then saw Dr Bogatsu again on 7 October 2011, who had booked him off until 18 October 2011, and again from 19 to 21 October 2011. He was however only able to return to Dr Bogatsu on 28 October 2011 and was again booked off.

4.5 He had returned to work on 11 November 2011. On 15 November 2011, he realised that his salary was frozen amd he had approached the Labour Relations Directorate in the Premier’s Office to complain. A meeting was subsequently held on the same date, where he was informed of the intention to terminate his services. Formal notification in this regard was issued to him.

4.6 In his supplementary Affidavit, Mmotsa further contended that he was not made aware of the Respondent’s letter delivered on 10 October 2011 to his marital home, as his wife, with whom he had an acrimonious relationship, did not bring it to his attention. He further viewed the second letter delivered at his home 25 October 2011 calling upon him to give reasons

before 29 October 2011 as to why his services ought not be terminated to be a nullity. He contended that this letter was also served on his domestic worker in his absence, and that its contents were not brought to his attention.

4.7 Upon being informed in writing on 16 November 2011 of his deemed dismissal, he had then with the assistance of his Union, made representations to the Head of the Department. On 18 January 2012, the Head of Department confirmed his deemed dismissal.

4.8 On 2 February 2012, and with the assistance of his Union, Mmotsa had made representations to the MEC, requesting that the deemed dismissal be set aside and for him to be reinstated. The MEC only responded to the representations on 22 May 2017.

The Respondent’s case:

[5] The Respondent invoked the provisions of section 17(3)(a)(1) of the PSA on the grounds that;

5.1 Mmotsa absented himself from work for a continuous period from 30 September 2011 without authority from his managers and/or supervisors, and/or informing them of the reasons for his absence. He had only returned to work on 15 November 2011, not to render his services, but to complain about the non-payment of his salary.

5.2 After Mmotsa was absent from work since 30 September 2011, an official of the Department was sent to his last known residential address on 10 October 2011, to deliver a letter advising him of the possibility of his employment being terminated should he continue to absent from work, and further calling upon him to respond within five days. The letter was received by his wife, and no response was received from Mmotsa. On 25 October 2011, another letter was delivered at his house, requesting him to provide reasons why action should not be taken against him, and to submit representations in that regard by no later than 29 October 2011. Mmotsa did not respond.

5.3 On 15 November 2011, the Respondent had stopped the payment of Mmotsa’s salary, further terminating his employment. On the same date, Mmotsa reported the matter to the Office of the Premier, leading to a meeting being arranged with the Director of Labour Relations in the Office of the Premier. The meeting was attended by Mmotsa and other officials of the Department.

5.4 In that meeting, Mmotsa had challenged the authority of the Department to freeze his salary. He had alleged that he had submitted a copy of his medical certificate on 11 November 2011 indicating that he was unfit for duty. The Respondent however denied that Mmotsa reported for duty on 11 November 2011. At that meeting, Mmotsa had further conceded that he did not contact the Department about his absence, or to report that he was indisposed between 30 September 2011 and 15 November 2011.

5.5 Another meeting was held with Mmotsa on 18 January 2012, which was attended by his Union representative and the then acting Head of Department. Following that meeting, the Head of Department sent correspondence to the Union on 25 January 2012, confirming the decision to terminate Mmotsa’s services. The letter further advised Mmotsa to approach the MEC if he was aggrieved with the decision.

The review application and the preliminary points:

[6] Mmotsa contends that since no response was forthcoming from the MEC in regards to his representations made on 2 February 2012, he had approached this Court with an application to compel the MEC to make a decision. Before the matter could be enrolled, the MEC had issued an outcome on 22 May 2017.

[7] The application to review and set aside the MEC’s decision was launched on 4 December 2017, some five years since the deemed dismissal, together with an application for condonation. In April 2018, the Respondent had not as yet dispatched a record of proceedings, and following an application to Compel launched on 10 April 2018, the Respondent had delivered the record on 14 January 2019.

[8] A Notice in terms of Rule 7A(6) of the Rules of this Court was filed on 25 April 2019, and a Supplementary Affidavit followed on 30 May 2019. The Respondent filed an Answering Affidavit on or about 25 July 2019. A Notice of Objection to the late delivery of the Answering Affidavit on 31 July 2019, and the Respondent’s response was to file an application for condonation in that regard on 2 August 2019.

[9] Mmotsa did not file a replying affidavit to the review application. His application for condonation and a similar application by the Respondent remains unopposed. Before the Court therefore, are applications for condonation for the late filing of the review application; condonation for the late filing of the answering affidavit to the review application; the review application itself, and an objection to the filing of a Supplementary Affidavit by the Respondent on 22 January 2021. Aligned to these preliminary points are the Respondent’s contentions that the MEC’s decision is not reviewable, and that as a consequence of an initial referral of a dispute by Mmotsa to a bargaining council, he was not entitled to any relief, as the matter was disposed of at that forum.

Reviewability of the MEC’s decision:

[10] To the extent that it was submitted by the Respondent that the MEC’s decision was not reviewable, this point ought to be swiftly

dismissed. The Applicants seek to have the MEC’s decision set aside in terms of section 158(1)(h) of the Labour Relations Act (LRA)[2], which provisions empower this Court to review any decision taken or any act performed by the State in its capacity as an employer.

[11] It should be accepted, as was re-stated in Ramonetha that the MEC’s decision was capable of review under those provisions on the grounds of legality. This was so in that inherent in our constitutional order is the principle of legality in terms of which by virtue of the rule of law, public functionaries in their exercise of public power are required to act within the powers granted to them by law, and arrive at decisions which are lawful, not arbitrary and are rationally related to the purpose for which the power was given[3].

The Respondent’s late filing of the answering affidavit;

[12] The Applicants’ Supplementary Affidavit having been filed in June 2019, the Answering Affidavit ought to have been filed within a period of ten days after receipt thereof. The Answering Affidavit was filed some 15 days outside of the 10 days period. The Respondent in an affidavit deposed to by Peter Mokotedi, its Labour Relations Officer, attributed the delay to the filing of an ‘incorrect’ answering affidavit within the prescribed timeframes, which had an incorrect case number and which related to a different matter.

[13] Having had regard to the extent of the delay which is clearly not excessive, the explanation proffered in that regard, the parties’ prospects of success and potential prejudice to the Respondent should condonation not be granted, it ought to be concluded that the interests of justice dictate that condonation for the late filing of the answering affidavit be granted.

The Respondent’s Supplementary Affidavit:

[14] The Applicants further objected to the filing of the Respondent’s Supplementary Affidavit a few days before the hearing of this matter. The objection however lacks merit. Inasmuch as the affidavit was filed without the leave of the Court, nothing turns on it in view of the contents thereof. The Respondent in the affidavit raised preliminary points related to the period of the delay occasioned by the bringing of the review application; the mootness of the application in the light of Mmotsa having reached retirement age as at the time the application was heard; the effect of the arbitration award issued by the General Public Service Sectoral Bargaining Council (GPSSBC) in terms of which Mmotsa’s referral of an alleged unfair dismissal dispute was dismissed, and

the reviewability of the MEC’s decision, which has already been dealt with somewhere in this judgment.

[15] The issues raised in the Supplementary Affidavit are merely legal points that the Respondent was entitled to raise even in argument, or which could have been raised by the Court mero motu. These issues are clearly nothing new or out of kilter with the answering affidavit.

The referral to the GPSSBC:

[16] The Respondent takes issue with the competency of this Court to grant Mmotsa the relief that he seeks in the light of the outcome of the arbitration proceedings before the GPSSBC. It is not in dispute that subsequent to his deemed dismissal, Mmotsa had referred an alleged unfair dismissal dispute to the GPSSBC on 19 December 2011 under Case Number GPBC145-2012.

[17] After conciliation failed, the matter was referred to arbitration, and in the latter proceedings, the Respondent had objected to the jurisdiction of the GPSSBC, pointing out that Mmotsa was deemed dismissed in accordance with the provisions of section 17(3)(a)(i) of the PSA. Mmotsa had however opposed the preliminary point, contending that the GPSSBC had the requisite jurisdiction, since the provisions of section 17 of the PSA did not apply to his case as he was dismissed for misconduct related to abscondment.

[18] Following the hearing of submissions on jurisdiction, the appointed Arbitrator had on 29 May 2012, issued a ‘Jurisdiction Ruling’ and determined that the GPSSBC in the light of Mmotsa’s claim had the requisite jurisdiction to determine the dispute. Subsequent to the full ventilation of the merits of the dispute at arbitration proceedings, the Arbitrator had on 2 September 2012, issued an award, finding that the dismissal of Mmotsa was procedurally and substantively fair.

[19] The question that arises then is whether Mmotsa, upon his unsuccessful referral to the GPSSBC, is nevertheless entitled to pursue this review application, or whether he is precluded from so doing by the principles of res judicata, and more specifically, the rule against collateral challenges[4].

[20] In these proceedings, the Respondent contended that in the absence of an application to review and set aside that award, its effect was to put an end to the dispute between the parties, since the merits of the dismissal were dispensed with.

[21] It was however submitted on behalf of the Applicants that the Arbitrator’s award was subsequently taken on review, which process was abandoned since the GPSSBC had in any event, lacked jurisdiction to determine the dispute in the first place. To this

end, it was submitted with reference to Vidasky v Body Corporate of Sunhill Villas[5], that the arbitration award was ultimately a nullity, and that there was no need to even review or set it aside[6].

[22] It is trite that a deemed dismissal in terms of the provisions of section 17(3)(a)(i) of the PSA constitutes a termination of employment by operation of law. There is therefore no dismissal for the purposes of seeking remedies for any alleged unfairness in that regard[7]. It follows that to the extent that the GPSSBC lacked the competent jurisdiction, there is merit in the Applicants’ contentions[8].

The delays in bringing the review application;

[23] The review application having been brought under the provisions of section 158(1)(h) of the LRA, it is accepted that there are no

specified time limits within which such review applications must be brought before the Court, and that there is no requirement for a formal application for condonation[9]. It was nonetheless held in Khumalo[10] that courts have the power (as part of their inherent jurisdiction to regulate their own proceedings) to refuse a review application in the face of an undue delay in initiating proceedings or to overlook the delay. This discretion is not open-ended and must be informed by the values of the Constitution.

[24] In essence therefore, despite there being no time limits stipulated in section 158(1)(h) of the LRA, it is still required of an applicant to bring such applications within a reasonable period, and to at least demonstrate that they had acted with some alacrity in approaching the Court for relief. This is so in that any delays in approaching the Court do not only have the effect of defeating the overall objectives of expeditious resolution of disputes as envisaged in the LRA, but also because they are obviously prejudicial to the other party to the dispute[11]. In Weder v MEC for the Department of Health, Western Cape[12], it was held that anything more than six weeks should at least trigger an application for condonation.

[25] In Khumalo, the Constitutional Court in re-affirming the approach in Gqwetha[13] held that the assessment of a plea of undue delay involves examining: (1) whether the delay is unreasonable or undue (a factual enquiry upon which a value judgment is made in the light of “all the relevant circumstances”); and if so, (2) whether the court’s discretion should be exercised to overlook the delay and nevertheless entertain the application[14].

[26] In Gqwetha, it was added that such an assessment includes an examination of the extent of that delay, the explanation provided in that regard, its potential prejudice to the affected parties, the nature of the impugned decision, the legal challenge made against it and its merits, and the possible consequences of setting aside the impugned decision[15]. The Court in Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited[16] further reiterated that the approach to undue delay within the context of a legality challenge necessarily involves the exercise of a broader discretion, and that if the delay is found to be unreasonable, the enquiry should be whether the interests of justice requires that the unreasonable delay be overlooked.

Is the delay unreasonable or undue?

[27] In addressing the question whether the delay is unreasonable or undue, it is worth repeating that the deemed dismissal was confirmed by the Head of Department on 25 January 2012, and that despite representations having been made by Mmotsa to the MEC on 2 February 2012, a response was only favoured on 22 May 2017. The inaction and tardiness on the part of the

MEC for over a period of five years in making a decision on the representations is egregious and unconscionable. It is made even

worse by the fact that no attempt was made to give an explanation in that regard.

[28] As if that delay was not sufficient, upon the review application having been delivered on 4 December 2017, and the Respondent being called upon to dispatch the record, it took it another 12 months to do so. Again, no explanation was proffered in that regard. In a nutshell, some of the delays occasioned in this matter were clearly caused by the inaction of the Respondent either in responding to the representations or filing a record of proceedings.

[29] It is accepted that in the absence of a decision by the MEC after the representations were made in February 2012, Mmotsa was hamstrung and could not approach the Court with a review application. However, the matter does not end at that point. This is so in that even if the MEC was to blame for parts of the delay, Mmotsa and his Union are not less blameworthy in causing the delays.

[30] The first consideration is that when Mmotsa initially referred the dispute to the GPSSBC, the Respondent had as far back as May 2012,

disputed that the forum had jurisdiction. Given Mmotsa’s stance towards the issue of jurisdiction and his persistence before the GPSSBC that his dispute should be determined by that forum, it is my view that he cannot hide behind the erroneous approach adopted by the GPSSBC. Furthermore, it has been held that litigants must be held to the consequences of the conscious and informed decision and course of action they elect when pursuing their disputes[17].

[31] A second consideration is that after the adverse arbitration award was issued on 2 September 2012, there are no substantial averments made in the founding papers, let alone in the ‘application for condonation’ as to what steps were taken thereafter to secure the MEC’s response to the representations made in February 2012.

[32] I did not understand it to be in dispute that an application to compel the MEC to make a decision was launched under case number

JR2506/2016. The application does not form part of the pleadings before the Court in this matter. It can only be assumed that based on the relevant case number, the application was brought some time in 2016. There is no explanation however as to the reason that such an application was not brought immediately after the adverse arbitration award. All that was averred in the papers by Mmotsa was that it was only ‘after years of requesting a decision on my representations’[18] that the decision was made by the MEC on the representations. However, nothing much is said about what steps were taken between

September 2012 when the award was issued and 2016 when the application to compel was launched, let alone when those ‘requests’

were made. There is thus a complete period of about four years (between the adverse arbitration award and the filing of the Notice

to Compel the MEC to make a decision), which remains unexplained. That period is indeed excessive.

[33] Other than the above unexplained delays, despite being in receipt of the belated decision by the MEC, Mmotsa took a further five months to bring this application, which delay is equally excessive. In an attempt to explain this further delay, Mmotsa averred that upon receipt of the MEC’s decision, he sought assistance from the Union, resulting in an application to compel the Respondent to deliver the record. To the extent that Mmotsa was a member of NUPSAW, the explanation that he had no income as a consequence of the termination of his employment and thus could not bring this application timeously is clearly not an acceptable one. There is nothing to suggest that he was not a member in good standing of the Union, and to the extent that he was a member, the Union was obliged to assist him without delays.

[34] Equally unsatisfactory is a simple explanation that Mmotsa had after he had made his representations, merely on a ‘monthly basis’, reminded his Union to seek a response from the MEC. This explanation pertains to the events before the outcome was issued, and does not assist Mmotsa in explaining the delay after the decision was received.

[35] Mmotsa’s further explanation was that upon the outcome being received, his attorneys of record sent correspondence to the Union calling for further instructions on the matter, and which were only issued on 23 November 2017. There is however no reasonable explanation proffered in respect of that delay, especially since the Union was clearly aware of the outcome by the MEC. To the extent that no attempt was made at explaining the delay since the attorneys of record called for further instructions, it follows that no reasonable explanation for the delay between 25 May 2017 and 23 November 2017 has been proffered.

[36] In the end, the overall delay in bringing this application before the Court since the deemed dismissal, or the confirmation thereof by the MEC is excessive in the extreme and unreasonable. To reiterate, the initial referral of the dispute to the GPSSBC cannot even serve as an excuse in the light of the delays between the date of the adverse award and steps taken in prosecuting this review application. As was the case in Gcani[19], the delay and the facts of this case can hardly be comparable to those in MEC For The Department Of Health, Western Cape v Weder, In Re: MEC For The Department Of Health, Western Cape v Democratic Nursing

Organization Of South Africa obo Mangena[20]. In the latter case, the employees had also erroneously initially referred their disputes to the relevant bargaining councils. However,

when jurisdiction was declined, the employees in those cases had acted immediately and with the necessary haste and thereafter

approached the Court with a review application. In this case however, Mmotsa despite the Respondent’s objections, persisted with the dispute before the GPSSBC, and notwithstanding the adverse arbitration award, it still took him a further four years to approach this Court with this application.

[37] To the extent that the unreasonableness of the unexplained delay is serious, the next question that should be answered is whether this Court should nonetheless ignore that delay and determine the application. As was pointed out in Gqwetha, this requires an assessment of potential prejudice of the delay to the affected parties, the nature of the impugned decision, the legal challenge made against it and its merits, and the possible consequences of setting aside the impugned decision[21].

[38] In this case, Mmotsa seeks payment of remuneration and all benefits from the date of the deemed dismissal being 15 November 2011, and it can be accepted that to the extent that it may be found that there was no basis for the deemed provisions to be invoked, he will remain prejudiced. However, the prejudice to be suffered by the Respondent cannot equally be overlooked. Afterall, it had resisted the jurisdiction of the GPSSBC when the dispute was initially lodged. Even if it had contributed to the delay as already pointed out, Mmotsa also as already pointed out, is no less blameworthy. Even in the absence of a computation, lost renumeration and benefits over a period of ten years as claimed by Mmotsa is no small feat. The prejudice to the Respondent as a consequence of the delay can hardly be disputed, and it would be iniquitous for the Respondent, should the Court find in favour of Mmotsa, to be required to compensate him for the period, in circumstances where it has been concluded that the delay caused by him is in large parts, unexplained, extreme, and unreasonable.

[39] The Court is nonetheless in its consideration of whether to overlook the undue delay, required to look at the impugned decision, the legal challenge made against it, the merits of that challenge, and the possible consequences of setting the decision aside.

[40] For the deemed provisions under section 17(3)(a) of the PSA to be invoked, the Respondent must demonstrate that Mmotsa absented himself from official duties without permission of the employer or the HOD for a period exceeding one calendar month. It has been held that since the deemed dismissal takes effect by operation of law and not by any act on the part of the employer, the jurisdictional requirements prescribed by the legislature in s 17(3)(a) of the PSA must be met before an employee can be said to be deemed dismissed[22].

[41] In attacking the decision of the Respondent, it was submitted on behalf of Mmotsa that;

a) The deemed provisions ought not to have been invoked as Mmotsa’s absence was not for a calendar month.

b) Mmotsa’s dismissal could not be justified in circumstances where the evidence illustrated that he had an excellent explanation for his absence in the form of medical evidence;

c) No regard was had to the applicable legal test, i.e., whether his conduct had rendered a continued employment relationship intolerable, having had regard to the principles contained in the Code of Good Practice, and that this amounted to a material error of law;

d) The Respondent failed to conduct the correct enquiry, and the fact that she had regarded her response as a mere academic exercise since Mmotsa had reached retirement age, indicated that she failed to properly apply her mind, and her decision was irrational and unreasonable.

[42] In rejecting Mmotsa’s representations, the MEC in her outcome[23] had considered the three copies of medical certificates he had submitted. The MEC’s stance was that Mmotsa was continuously

absent between 30 September 2011 to 15 November 2011, which was a period exceeding one calendar month. The MEC also concluded that attempts were made to contact him and that letters were delivered at his place of residence to warn him of the consequences of his continuous absence; that these did not persuade him to return to work; and that his representations lacked persuasive substance that could lead to a decision to reinstate him.

[43] In these proceedings, it was further submitted that the MEC could not have accepted the copies of the medical certificates submitted by Mmotsa, as their validity was challenged on various fronts, including that;

43.1 The certificates were issued on the same date on 28 October 2011 to address absenteeism that had already occurred, and that by the time they were issued and submitted, the deeming provisions had been invoked;

43.2 Even if the medical certificates were to be accepted, there were anomalies in that, a Specialist Orthopaedic Surgeon, Dr TS Bogatsu, declared Mmotsa unfit for one day on 30 September 2011, but that he nonetheless failed to report for duty on 1 October 2011;

43.3 Furthermore, whilst the medical certificate was signed on 28 October 2011, it however recorded that Mmotsa was attended to on 30 September 2011.

43.4 A medical certificate issued by a Dr Marumulwa, who had examined Mmotsa for ‘right shoulder pain’ on 7 October 2011 and granted him sick leave from 8 to 18 October 2011. Even then, Mmotsa’s absence from 1 to 6 October 2011 was unexplained.

43.5 A further medical certificate was issued by a Dr Tshabalala on 19 October 2011, a Specialist Psychiatrist, who had granted Mmotsa sick leave for issues related to ‘matrimonial dysfunction’. Mmotsa was granted two days of absence ending on 21 October 2011, and after this period, Mmotsa did not return to work nor did he contact the employer to report his reasons for absence.

43.6 Another medical certificate was issued by Dr Bogatsu on 28 October 2011 and Mmotsa was granted one day sick leave. Mmotsa however did not report for duty on 29 October 2011, nor did he contact the employer.

43.7 A further certificate issued by Dr Bogatsu on 3 November 2011 related to Mmotsa’s left foot, and he was granted sick leave ending on 11 November 2011. The certificate is signed on 9 November 2011. However, even then, Mmotsa did not report for duty, but only came in on 15 November 2011 to enquire about his frozen salary. It was denied that he had reported for duty on 11 November 2011.

43.8 To the extent that Mmotsa in his founding papers had alleged that he had marital and psychological problems, the Respondent’s contention was that he never raised those issues at a meeting held with him on 15 November 2011, and had only raised them after the deemed dismissal.

43.9 The Respondent contended that even if Mmotsa was sick, none of the ailments as indicated in the medical certificates prevented him from communicating with his managers and/or supervisors, and he had not provided any explanation as to the reason he failed to do so.

[44] In the light of the above contentions which went unanswered since Mmotsa had not filed a replying affidavit, and further in the light of the issues the MEC took into account in determining whether good cause was shown, it can hardly be concluded that the MEC failed to apply the correct test or had not applied her mind to the issue she was required to determine, i.e. which was whether Mmotsa was absent from work in excess of one calendar month. This is further in circumstances where it was not in dispute that Mmotsa during the period of his absence, was on no less than two occasions, notified of that absence and the consequences thereof, and where he had not responded to correspondence from the Respondent. His excuse that he did not receive the correspondence as delivered at his residential home is hardly a reasonable one, and further demonstrates the consequences of his failure to contact the Respondent during his absence, to advise of his whereabout during his absence. In the end, the Respondent cannot be accused of failing to contact him and to warn him of the consequences of his actions.

[45] It was submitted on behalf of Mmotsa, and in reliance on what was stated in Ramonetha[24], that to the extent that he had returned to work on 11 November 2011, submitted his sick notes, and tendered his services which were accepted, he ought therefore not to have been deemed dismissed. The difficulty however with this proposition is that even if Mmotsa had submitted copies of his sick notes on 11 November 2011 together with applications forms for leave, the Respondent contends that he still failed to report for duty thereafter until 15 November 2011 after his salary was frozen. Other than this considerations, as at 11 November 2011, the period within which the deemed provisions were to be invoked had passed. Furthermore, there was no explanation as to how the medical certificates relied on could have been issued on the same date in respect of previous dates, or why these copies could not have been forwarded to the employer as far back as 30 September 2011, when Dr Bogatsu booked him off duty until 1 October 2011, and also as and when they were issued. It cannot amount to good cause, where an employee absents him/herself for a continuous period, and merely present copies of medical certificates purportedly covering the period of absence. At the most it must be demonstrated that the employee made some attempts to inform the employer of his/her whereabouts during absence. Where there are no such attempts, and where the employer had in turn made attempts to contact the employee, the employer would be justified in invoking the deemed provisions.

[46] In the end, clearly the jurisdictional requisites of section 17(3)(a)(i) of the PSA were present in this case. This is so in that Mmotsa had absented himself from his official duties; the absence was in excess of a calendar month and without permission of the head of the department[25], and had he had not demonstrated good cause as to why he should be reinstated. I am therefore satisfied that the material facts of this case indicate that the MEC as required of her in line with MEC For The Department Of Health, Western Cape v Weder, In Re: MEC For The Department Of Health, Western Cape v Democratic Nursing

Organization Of South Africa obo Mangena,[26] gave proper reasons for a refusal to reinstate Mmotsa.

[47] In conclusion, it ought to be repeated that inasmuch as the MEC’s conduct had caused delays, at the same time however, Mmotsa was to a large extent more blameworthy for the reasons already advanced. The delay was extreme and unreasonable, and the potential prejudice to the Respondent can hardly be disputed. Further having had regard to the nature of the impugned decision, the legal challenge made against it and its merits, and the possible consequences of setting aside the impugned decision, I am satisfied that the interests of justice requires that the unreasonable delay ought not be overlooked.

[48] In regards to costs, it is my view that in the light of the conclusions reached in regards to the multiple issues raised in this matter, the requirements of law and fairness dictate that each party be burdened with its own costs.

[49] Accordingly, the following order is made;

Order:

1. The late filing of the Respondent’s answering affidavit is condoned.

2. The Applicant’s application for condonation for the late filing of the review is dismissed.

3. The application to review and set aside the decision of the Respondent dated 22 May 2017 refusing to reinstate Mr Jeremiah Mmotsa is dismissed.

4. There is no order as to costs

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

B. Mkhize, instructed by Ndumiso Voyi Incorporated Attorneys.

For the Respondent:

A.K. Pulenyana, instructed by the State Attorney, Mahikeng

[1] Act 103 of 1994 which provides: ‘(3) (a)(i) An employee, other than a member of the services or an educator or a member of the Intelligence Services, who absents

himself or herself from his or her official duties without permission of his or her head of department, office or institution

for a period exceeding one calendar month, shall be deemed to have been dismissed from the public service on account of misconduct with effect from the date immediately succeeding his or her last day of attendance at his or her place of duty. (ii) … (b) If an employee who is deemed to have been so dismissed, reports for duty at any time after the expiry of the period referred to in paragraph (a), the relevant executive authority may, on good cause shown and notwithstanding anything to the contrary contained in any law, approve the reinstatement of that employee in the public service in his or her former or any other post or position, and in such a case the period of his or her absence from official duty shall be deemed to be absence on vacation leave without pay or leave on such other conditions as the said authority may determine.’

[1] Act 103 of 1994 which provides:

‘(3) (a)(i) An employee, other than a member of the services or an educator or a member of the Intelligence Services, who absents

himself or herself from his or her official duties without permission of his or her head of department, office or institution

for a period exceeding one calendar month, shall be deemed to have been dismissed from the public service on account of misconduct with effect from the date immediately succeeding his or her last day of attendance at his or her place of duty.

(ii) …

(b) If an employee who is deemed to have been so dismissed, reports for duty at any time after the expiry of the period referred to in paragraph (a), the relevant executive authority may, on good cause shown and notwithstanding anything to the contrary contained in any law, approve the reinstatement of that employee in the public service in his or her former or any other post or position, and in such a case the period of his or her absence from official duty shall be deemed to be absence on vacation leave without pay or leave on such other conditions as the said authority may determine.’

[2] Act 66 of 1995, as amended

[3] Ramonetha v Department of Roads and Transport Limpopo and Another [2017] ZALAC 68; [2018] 1 BLLR 16 (LAC); (2018) 39 ILJ 384 (LAC) at para 21

[4] NEHAWU obo Kgekwane v Department of Development Planning and Local Government (JA 68/13) [2015] ZALAC 5; (2015) 36 ILJ 1247 (LAC); [2015] 6 BLLR 575 (LAC) at para 26, where it was held; ‘The rule against collateral challenges has been accepted in South African law with one qualification: unless proceedings of a coercive nature have been brought against a party, he or she is not entitled to launch a collateral challenge against an earlier juridical act, until the earlier act is itself set aside. Allied to the rule against collateral challenges is the exceptio res judicata, which is available where another court (or tribunal) of competent jurisdiction has already pronounced finally on the same issue

between the same parties. The previous judgment must have been given by a competent court, the matter must have involved the same parties (or their successors-in-title) and must have been based on the same cause of action with respect to the same subject matter or thing... Importantly, in this regard, the exceptio res judicata is applicable also to arbitration awards whether obtained in private arbitration proceedings or in proceedings under the LRA.’

[4] NEHAWU obo Kgekwane v Department of Development Planning and Local Government (JA 68/13) [2015] ZALAC 5; (2015) 36 ILJ 1247 (LAC); [2015] 6 BLLR 575 (LAC) at para 26, where it was held;

‘The rule against collateral challenges has been accepted in South African law with one qualification: unless proceedings of a coercive nature have been brought against a party, he or she is not entitled to launch a collateral challenge against an earlier juridical act, until the earlier act is itself set aside. Allied to the rule against collateral challenges is the exceptio res judicata, which is available where another court (or tribunal) of competent jurisdiction has already pronounced finally on the same issue

between the same parties. The previous judgment must have been given by a competent court, the matter must have involved the same parties (or their successors-in-title) and must have been based on the same cause of action with respect to the same subject matter or thing... Importantly, in this regard, the exceptio res judicata is applicable also to arbitration awards whether obtained in private arbitration proceedings or in proceedings under the LRA.’

[5] 2005 (5) SA 200 (SCA) at 207C - D

[6] See also Tralex Limited v Maloney and Another (823/2015) [2016] ZASCA 128 at paras 11 - 13; Communication Workers Union v Telkom SA Ltd 1999 (2) SA 586 (TPD) at 593 F – G

[7] Ramonetha at para 19, where it was held; ‘The current matter is concerned with the exercise of a power in terms of s17(3)(b), which neither has its source in the contract of employment, nor falls within the ambit of either the LRA’s unfair dismissal or unfair labour practice jurisdiction. As such, the decision whether to approve the reinstatement of an employee on good cause shown, while a decision taken by the state as employer, involves the exercise of a legislated public power by a public functionary.’

[7] Ramonetha at para 19, where it was held;

‘The current matter is concerned with the exercise of a power in terms of s17(3)(b), which neither has its source in the contract of employment, nor falls within the ambit of either the LRA’s unfair dismissal or unfair labour practice jurisdiction. As such, the decision whether to approve the reinstatement of an employee on good cause shown, while a decision taken by the state as employer, involves the exercise of a legislated public power by a public functionary.’

[8] See MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd (CCT 77/13) [2014] ZACC 6; 2014 (5) BCLR 547 (CC); 2014 (3) SA 481 (CC) at para 103 and fn 78, where it was held; ‘In The Master of the High Court (North Gauteng High Court, Pretoria) v Motala NO and Others [2011] ZASCA 238 ; 2012 (3) SA 325 (SCA) the Supreme Court of Appeal, reaffirming a line of cases more than a century old, held that judicial decisions issued without jurisdiction or without the citation of a necessary party are nullities that a later court may refuse to enforce (without the need for a formal setting aside by a court of equal standing). This seems paradoxical but is not. The court, as the font of legality, has the means itself to assert the dividing line between what is lawful and not lawful. For the court itself to disclaim a preceding court order that is a nullity therefore does not risk disorder or self-help.’

[8] See MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd (CCT 77/13) [2014] ZACC 6; 2014 (5) BCLR 547 (CC); 2014 (3) SA 481 (CC) at para 103 and fn 78, where it was held;

‘In The Master of the High Court (North Gauteng High Court, Pretoria) v Motala NO and Others [2011] ZASCA 238 ; 2012 (3) SA 325 (SCA) the Supreme Court of Appeal, reaffirming a line of cases more than a century old, held that judicial decisions issued without jurisdiction or without the citation of a necessary party are nullities that a later court may refuse to enforce (without the need for a formal setting aside by a court of equal standing). This seems paradoxical but is not. The court, as the font of legality, has the means itself to assert the dividing line between what is lawful and not lawful. For the court itself to disclaim a preceding court order that is a nullity therefore does not risk disorder or self-help.’

[9] See Khumalo and Another v Member of the Executive Council for Education: KwaZulu Natal (CCT 10/13) [2013] ZACC 49; 2014 (3) BCLR 333 (CC); (2014) 35 ILJ 613 (CC); 2014 (5) SA 579 (CC) at para 42; G4S Secure Solutions (SA) (Pty) Ltd v Gunqubele NO and Others (2018) 39 ILJ 131 (LAC) at para 11; Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited (CCT91/17) [2019] ZACC 15; 2019 (6) BCLR 661 (CC); 2019 (4) SA 331 (CC) at para 48

[10] At para 44

[11] See Gqwetha v Transkei Development Corporation Ltd and others 2006 (2) SA 603 (SCA) at paras 22 – 23, where it was held; ‘It is important for the efficient functioning of public bodies… that a challenge to the validity of their decisions by proceedings for judicial review should be initiated without undue delay. The rationale for that longstanding rule … is twofold: First, the failure to bring a review within a reasonable time may cause prejudice to the respondent. Secondly, and in my view, more importantly, there is a public interest element in the finality of administrative decisions and the exercise of administrative functions. As pointed out by Miller JA in Wolgroeiers… “It is desirable and important that finality should be arrived at within a reasonable time in relation to judicial and administrative decisions or acts. It can be contrary to the administration of justice and the public interest to allow such decisions or acts to be set aside after an unreasonably long period of time has elapsed – interest reipublicae ut sit finis litium… Considerations of this kind undoubtedly constitute party of the underlying reason for the existence of this rule… Underlying the latter aspect of the rationale is the inherent potential for prejudice, both to the efficient functioning of the public body, and to those who rely upon its decisions, in the validity of its decisions remains uncertain. It is for that reason in particular that proof of actual prejudice to the respondent is not a precondition for refusing to entertain review proceedings by reason of undue delay, although the extent to which prejudice has been shown is a relevant consideration that might even be decisive where the delay has been relatively slight.’

[11] See Gqwetha v Transkei Development Corporation Ltd and others 2006 (2) SA 603 (SCA) at paras 22 – 23, where it was held;

‘It is important for the efficient functioning of public bodies… that a challenge to the validity of their decisions by proceedings for judicial review should be initiated without undue delay. The rationale for that longstanding rule … is twofold: First, the failure to bring a review within a reasonable time may cause prejudice to the respondent. Secondly, and in my view, more importantly, there is a public interest element in the finality of administrative decisions and the exercise of administrative functions. As pointed out by Miller JA in Wolgroeiers… “It is desirable and important that finality should be arrived at within a reasonable time in relation to judicial and administrative decisions or acts. It can be contrary to the administration of justice and the public interest to allow such decisions or acts to be set aside after an unreasonably long period of time has elapsed – interest reipublicae ut sit finis litium… Considerations of this kind undoubtedly constitute party of the underlying reason for the existence of this rule…

Underlying the latter aspect of the rationale is the inherent potential for prejudice, both to the efficient functioning of the public body, and to those who rely upon its decisions, in the validity of its decisions remains uncertain. It is for that reason in particular that proof of actual prejudice to the respondent is not a precondition for refusing to entertain review proceedings by reason of undue delay, although the extent to which prejudice has been shown is a relevant consideration that might even be decisive where the delay has been relatively slight.’

[12] (2013) 34 ILJ 1315 (LC); See also Khumalo at para 42

[13] Supra

[14] At para 49

[15] See Gqwetha v Transkei Development Corporation Ltd and Others; Ntshangase v MEC for Finance: KwaZulu-Natal and Another (2009) 30 ILJ 2653 (SCA)

[16] Supra at paras 50,

[17] Gcani v Minister of Justice and Correctional Services and Others (PR170/16) [2018] ZALCPE 24; (2019) 40 ILJ 358 (LC), where it was held; ‘[46] Turning then to the explanation itself, as provided in the founding affidavit, it is firstly clear that the applicant deliberately decided on the course of action he wanted to pursue in order to challenge his termination of employment. He chose not to challenge the appeal outcome refusing reinstatement, but to rather pursue an unfair dismissal dispute to the GPSSBC. There is of course nothing wrong with this decision, but taking this decision must have consequences. One of these consequences has to be that this deliberate decision simply cannot be used as a basis for justifying a delay occasioned as a result, when one chose not to pursue the other course of action in the first place. In short, one has to live with the consequences of what one decides to do.’ And, ‘[54] I am quite satisfied that the only reason why the applicant decided to pursue the review application now before me, was because his original and chosen course of action did not work out the way he wanted. He chose his original route, and cannot now use this chosen course of action as an excuse for being late when it caused him to arrive at a destination he did not like, and he then had to turn around and go the other way.’

[17] Gcani v Minister of Justice and Correctional Services and Others (PR170/16) [2018] ZALCPE 24; (2019) 40 ILJ 358 (LC), where it was held;

‘[46] Turning then to the explanation itself, as provided in the founding affidavit, it is firstly clear that the applicant deliberately decided on the course of action he wanted to pursue in order to challenge his termination of employment. He chose not to challenge the appeal outcome refusing reinstatement, but to rather pursue an unfair dismissal dispute to the GPSSBC. There is of course nothing wrong with this decision, but taking this decision must have consequences. One of these consequences has to be that this deliberate decision simply cannot be used as a basis for justifying a delay occasioned as a result, when one chose not to pursue the other course of action in the first place. In short, one has to live with the consequences of what one decides to do.’

And,

‘[54] I am quite satisfied that the only reason why the applicant decided to pursue the review application now before me, was because his original and chosen course of action did not work out the way he wanted. He chose his original route, and cannot now use this chosen course of action as an excuse for being late when it caused him to arrive at a destination he did not like, and he then had to turn around and go the other way.’

[18] At para 24 of the Founding Affidavit to the Review application

[19] supra

[20] (CA4/2013, CA5/2013) [2014] ZALAC 13; [2014] 7 BLLR 687 (LAC); (2014) 35 ILJ 2131 (LAC) at para 21, where it was held; ‘The consequences of a successful review application are entirely distinguishable from the dispute in OUTA, supra. In addition, in both the cases of Weder and Mangena an explanation for the delay has been provided. As Mr Leslie, who appeared on behalf of the respondents, noted, while a trained lawyer might have realized that it was futile to refer an unfair dismissal dispute to the applicable bargaining council, this did not necessarily apply to the case of a union such as DENOSA. Furthermore, in both cases the referral to the bargaining council took place well within a six month period, and there was no undue delay about bringing the application for review subsequent to the adverse decisions which had been made by the bargaining council. In my view, therefore, this is a case in which condonation was correctly granted.’

[20] (CA4/2013, CA5/2013) [2014] ZALAC 13; [2014] 7 BLLR 687 (LAC); (2014) 35 ILJ 2131 (LAC) at para 21, where it was held;

‘The consequences of a successful review application are entirely distinguishable from the dispute in OUTA, supra. In addition, in both the cases of Weder and Mangena an explanation for the delay has been provided. As Mr Leslie, who appeared on behalf of the respondents, noted, while a trained lawyer might have realized that it was futile to refer an unfair dismissal dispute to the applicable bargaining council, this did not necessarily apply to the case of a union such as DENOSA. Furthermore, in both cases the referral to the bargaining council took place well within a six month period, and there was no undue delay about bringing the application for review subsequent to the adverse decisions which had been made by the bargaining council. In my view, therefore, this is a case in which condonation was correctly granted.’

[21] See also Khumalo at para 49

[22] Gangaram v Member of the Executive Council for the Department of Health, KwaZulu-Natal and Another [2017] 11 BLLR 1082 (LAC) at para 28

[23] Annexure ‘JM1’ to the Founding Affidavit

[24] Where it was held at para 23 - 26; ‘By its nature, an employment contract is an agreement in which an employee works for an employer in exchange for remuneration. In accepting the appellant’s tender of performance and remunerating him for his services, the only conclusion to be drawn

on the facts is that, on his return to work, the Department implicitly reinstated the appellant into his employment with it.

This is so given that his deemed dismissal took effect by operation of law in terms of s17(3)(a)(i) on “the date immediately

succeeding the employee’s last day of attendance at his or her place of duty” and not on any later date determined by the employer. The appellant could no longer be deemed to have been dismissed after he had been reinstated. If reinstatement did not follow his deemed dismissal, it is difficult to understand on what basis the Department then accepted the appellant’s tender of his services and compensated him for those services rendered. Furthermore, the fact that an investigation

may have been contemplated to determine the reason for the appellant’s absence from work, or that such investigation in

due course was undertaken, does not alter the fact that the law prescribed the date on which the appellant’s deemed dismissal

took effect. Nor does it alter the fact that the appellant had been reinstated into his employment subsequent to such deemed dismissal having been effected. The Department was, following the appellant’s reinstatement, not entitled thereafter to rely on his deemed dismissal, when no further period of unauthorised absence from work had arisen after the appellant’s return to work. Given such reinstatement, it was not open to the Department under s17(3)(a)(i), to indicate, as it did in its letter of 21 May 2012, 11 months after the appellant’s return to work, that his contract of employment had been terminated by operation of law. It follows that in relying on the appellant’s deemed dismissal after he had been reinstated, the MEC acted unlawfully, irrationally

and outside of the powers granted to him by law. This is so in that it was not legally permissible for the Department on 21 May 2012 to rely on a deemed dismissal, which by operation of law had taken effect on “the date immediately succeeding the employee’s last day of attendance at his or her place of duty” and when the employment relationship between the parties had thereafter been restored. The failure of the MEC on 3 September 2012 to find this to be so in considering the appellant’s representations in terms of s17(3)(b), was therefore unlawful, arbitrary and irrational and the Labour Court erred in failing on review to find so.’

[24] Where it was held at para 23 - 26;

‘By its nature, an employment contract is an agreement in which an employee works for an employer in exchange for remuneration. In accepting the appellant’s tender of performance and remunerating him for his services, the only conclusion to be drawn

on the facts is that, on his return to work, the Department implicitly reinstated the appellant into his employment with it.

This is so given that his deemed dismissal took effect by operation of law in terms of s17(3)(a)(i) on “the date immediately

succeeding the employee’s last day of attendance at his or her place of duty” and not on any later date determined by the employer. The appellant could no longer be deemed to have been dismissed after he had been reinstated.

If reinstatement did not follow his deemed dismissal, it is difficult to understand on what basis the Department then accepted the appellant’s tender of his services and compensated him for those services rendered. Furthermore, the fact that an investigation

may have been contemplated to determine the reason for the appellant’s absence from work, or that such investigation in

due course was undertaken, does not alter the fact that the law prescribed the date on which the appellant’s deemed dismissal

took effect. Nor does it alter the fact that the appellant had been reinstated into his employment subsequent to such deemed dismissal having been effected.

The Department was, following the appellant’s reinstatement, not entitled thereafter to rely on his deemed dismissal, when no further period of unauthorised absence from work had arisen after the appellant’s return to work. Given such reinstatement, it was not open to the Department under s17(3)(a)(i), to indicate, as it did in its letter of 21 May 2012, 11 months after the appellant’s return to work, that his contract of employment had been terminated by operation of law.

It follows that in relying on the appellant’s deemed dismissal after he had been reinstated, the MEC acted unlawfully, irrationally

and outside of the powers granted to him by law. This is so in that it was not legally permissible for the Department on 21 May 2012 to rely on a deemed dismissal, which by operation of law had taken effect on “the date immediately succeeding the employee’s last day of attendance at his or her place of duty” and when the employment relationship between the parties had thereafter been restored. The failure of the MEC on 3 September 2012 to find this to be so in considering the appellant’s representations in terms of s17(3)(b), was therefore unlawful, arbitrary and irrational and the Labour Court erred in failing on review to find so.’

[25] Gangaram v Member of the Executive Council for the Department of Health, KwaZulu-Natal and Another [2017] 11 BLLR 1082 (LAC) at para 28

[26] Supra