Ndlela v Department of Correctional Services: In Re: Department of Correctional Services v Ndlela and Others (JR2853/17) [2022] ZALCJHB 133 (9 June 2022)

The Labour Court of South Africa, JOHANNESBURG

Not Reportable

Case no: JR2853/17

In the matter between:

ZENZELE NDLELA

Applicant

and

DEPARTMENT OF CORRECTIONAL SERVICES

Respondent

In Re:

DEPARTMENT OF CORRECTIONAL SERVICES

Applicant

ZENZELE NDLELA

First Respondent

INGRID DIMO N.O

Second Respondent

GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL

Third Respondent

Heard: 17 May 2022

Delivered: 09 June 2022

(In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be 06 June 2022.)

Summary: Rescission application – the Labour Court has no jurisdiction to entertain a Rule 11 application to dismiss a defunct review application. Application to reinstate the deemed withdrawn review application – granted simply because fairness dictates that the review application be dealt with and disposed of on the merits rather than technicalities – any prejudice could

be cured by a suitable costs order.

Judgment

Nkutha-Nkontwana, J

Introduction

[1] In this application, the respondent (DCS), the applicant in the review application, seeks an order rescinding the default order granted by Mabaso AJ on 4 December 2018 which dismissed the review application and made the arbitration award, dated 16 November 2017 under case number GPBC 144/2017, an order of Court in terms of section 158(1)(c) of the Labour Relations Act[1] (LRA). The applicant (Mr Ndlela), who is the third respondent in the review application, is opposing this application.

[2] The DCS is represented by the State Attorney, and the allocated officer is Mr Thano Letageng (Mr Letageng). On 12 January 2018, the DCS filed the review application, challenging the arbitration award. On 2 February 2018, DCS was served with Rule 7A(2)(b) of the Labour Court Rules[2]. The record of the arbitration proceedings was duly uplifted on 5 February 2018. The DCS failed to take any further steps thereafter.

[3] On 2 October 2018, Mr Ndlela served the DCS, through the State Attorney, with the application in terms of Rule 11 of the Labour Court Rules to seek an order dismissing the review application due to the DCS’s failure to diligently prosecute it. Despite being duly served, the DCS did not oppose the application. On 26 October 2018, the notice of set down was served through the office of the State Attorney. On 4 December 2018, the matter served before Mabaso AJ. He accordingly granted the impugned order.

[4] On 11 December 2018, the DCS and the State Attorney were notified of the court order of Mabaso AJ. There was another lull thereafter up until 8 February 2019, when the rescission application was filed, supported by the application for condonation.

[5] It is common cause that the review application had already been deemed withdrawn when the order of Mabaso AJ was handed down. I asked the parties to file additional submissions on the consequences of the deeming provision. Indeed, the parties’ legal representatives duly obliged.

Deeming provision

[6] In terms of clause 11.2.2 of the Practice Manual of the Labour Court of South Africa (Practice Manual)[3], the transcribed record ought to have been filed within 60 days of the date on which it was uplifted, that is 7 May 2018.

[7] The DCS failed to comply with clause 11.2.2 of the Practice Manual as well as to seek consent for the extension of the 60-day period from Mr Ndlela or to apply to the Judge President of this Court in chambers in terms of clause 11.2.3 of the Practice Manual. As mentioned above, the review application had already lapsed when the impugned order was granted.

[8] Mr Ntshebe, who appeared for Mr Ndlela, contends in his supplementary heads of argument that, given the conflicting judgments of this Court on the legal effect of a Rule 11 application to dismiss a deemed withdrawn review application, I must follow the dicta in Mchunu v Rainbow Farms (Pty) Ltd in Re: Rainbow Farms (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[4] and MJRM Transport Services CC v Commission for Conciliation, Mediation and Arbitration and others,[5] where this Court, per Gush, J and Tlhotlhalemaje, J, respectively held that, despite the deeming provisions in terms of the Practice Manual, there is nothing preventing a respondent from bringing a Rule 11 application to have the review dismissed.

[9] On the other hand, Mr Ngobese SC, who appeared for the DCS, contends that once the review application has lapsed, there is nothing before the Court to be dismissed and accordingly, this Court lacks jurisdiction to dismiss a lapsed review application.[6] To fortify this argument, the DCS places reliance on various decisions of this Court, particularly, the case of Ralo v Transnet Port Terminals and Others[7] (Ralo), per Van Niekerk J, where it was stated that:

[8] The status of the Practice Manual was discussed by this court in Tadyn Trading CC t/a Tadyn Trading Consulting Services v Steiner & others (2014) 35 ILJ 1672 (LC). The court said the following, at para 11 of the judgment:

“The correct approach in my view, as to the force and effect of practice directives similar to the one in issue is the one adopted in In re Several Matters on the Urgent Roll [2013 (1) SA 549 (GSJ)] in which the court had to consider the force and effect of the provisions of the practice manual chapter 9.24 of the South

Gauteng High Court regarding the failure by the applicant to set out the explicit circumstances which rendered the matter urgent. The court held that in law the Judge President was entitled to issue practice directives relating to the procedure of setting down matters on the roll.”

[9] I agree. The Practice Manual contains a series of directives, which the Judge President is entitled to issue. In essence, the manual sets out what is expected of practitioners so as to meet the imperatives of respect for the court as an institution, and the expeditious resolution of labour disputes (see clause 1.3). While the manual acknowledges the need for flexibility in its application (see clause 1.2) its provisions are not cast in the form of a guideline, to be adhered to or ignored by parties at their convenience.

[10] To the extent that the applicant contends that the meaning of the word ‘deemed’ is such that the dispute between the parties remains unresolved and that the application has not been withdrawn, the meaning of ‘deemed’ in a context similar to the present has been the subject of an instructive judgment by the Labour Court of Namibia. While Municipal Council of the Municipality of Windhoek v Marianna Esau (LCA 25/2009, 12 March 2010) concerned the lapsing of appeals, the wording of the rule under consideration in that instance is not dissimilar. Rule 17(25) of the Rules of the Labour Court of Namibia provide that an ‘appeal to which this Rule applies must be prosecuted within 90 days after the noting of such appeal, and unless so prosecuted it is deemed to have lapsed.’ The word ‘deemed’ in this instance was clearly considered to have conclusive effect – in the absence of the prosecution of the appeal within the prescribed period the appeal was held to have lapsed. (See also Pereira v Group Five (Pty) Ltd and others [1996] All SA 686, at 698, where the court referred with approval to Steel v Shanta Construction (Pty) Ltd 1973 (2) SA 537 (T), in which Coetzee J stated that the word ‘deemed’ means ‘considered’ or ‘regarded’ and is used to denote that ‘something is a fact regardless of the objective truth of the matter’.) The plain and unambiguous wording of the Practice Manual is to the effect that the applicant must be regarded as having withdrawn the review application.’ (emphasis added)

[10] It settled that in terms of clause 11.2.3 of the Practice Manual, the review application is deemed to have been withdrawn when the record of the arbitration proceedings is filed outside of the 60-day period. What seems to persist, unfortunately, despite the clarity provided in Ralo, is the misperception about the effect of the deeming provision.

[11] It is clear from the founding affidavit in support of the Rule 11 application that Mr Ndlela was alive to the effect of the deemed withdrawn review application. Nonetheless, he avers that the reason for launching that application was to obtain certainty by means of a Court order dismissing the review application. This assertion is obviously in line with sentiments expressed in Mthembu v Commission for Conciliation, Mediation & Arbitration and others[8], where Tlhotlhalemaje J stated that:

‘…Inasmuch as the applicant is entitled to have his case finally determined by this court, this court cannot come to his assistance if he practically did nothing to pursue his matter. The fact that his review application was deemed withdrawn, does not imply that South Deep is precluded from taking steps to bring it to finality. South Deep is entitled to continue with its affairs, without having to wonder when the applicant will ever take any steps in prosecuting the review application and bringing the matter to finality.’

[12] In SA Police Union on behalf of Mnisi v Safety & Security Sectoral Bargaining Council & others[9] (Minsi), Moshoana J, following Ralo, held that:

‘Where a matter is withdrawn, there can never be talk of a dispute that would require application of the law to decide. This court and other courts refuse to hear applications or matters that are moot. The same principle must apply. A case is moot and therefore not justiciable if it no longer presents an existing or live controversy which should exist if the court is to avoid giving advisory opinions on abstract propositions of law. The dismissal of a review that has been withdrawn no longer affects the interest of the parties. It has no practical effect to the parties nor does it serve the interests of justice.’

[13] In my view, the answer to this persisting confusion is well crafted by Lagrange, J, in Overberg District Municipality v Independent Municipal & Allied Trade Union on behalf of Spangenberg and others[10] (Overberg), where having interrogated the conflicting decisions of this Court on the interpretation of the deeming provisions in terms of clauses

11.2.3, 11.2.7 and 16.3 of the Practice Manual, reminded us of the objects of same. The mischief was obviously a gap in the Labour Court Rules as an applicant in review proceedings was not bound to any fixed timetable for the filing of the record, once it had been lifted for transcription, or for a timeous prosecution of the review application; hence the introduction of clauses 11.2.3, 11.2.7 and 16.3.

[14] I agree with the following sentiments expressed by Lagrange J in Overberg, which in a sense follows Ralo and Mnisi, that:

‘…it is less clear what role, if any, rule 11 dismissal applications have to play when a review has been rendered defunct by operation of a deeming provision. It was clearly an important remedy prior to the advent of the deeming provisions when a review was pending but was not being actively pursued. Where a deeming provision has de-activated a review, the only way an employer as a respondent party could be put at risk is if the applicant successfully brings an application to reinstate the application. That is very different from the situation prior to the Practice Manual’s introduction, when a review which had been dormant for years could suddenly be enrolled for hearing.’[11]

[15] This Court is indeed bound by the Labour Appeal Court (LAC) decision in Macsteel Trading Wadeville v Van der Merwe NO and others[12] (Macsteel), which confirmed the powers of the Labour Court in terms of Rule 11, specifically the discretion afforded by Rule 11(4) to take any course of action to achieve the objects of the LRA. Nonetheless, in that case, the LAC was presented with a review application that was instituted prior to the promulgation of the Practice Manual but was finally heard after its promulgation. As such, the reference to Rule 11 was clearly aimed at dealing with the view of the Labour Court that the Practice Manual was not applicable. The LAC opined that the respondent ought to have been afforded an opportunity to challenge the inordinate delay in the prosecution of the review application in terms of a Rule 11 application. However, to the extent that the Practice Manual was applicable, the LAC made it clear that the Labour Court lacks jurisdiction to deal with a deemed withdrawn or lapsed review application. Therefore, in my view, Macsteel is not the authority for the proposition that the Labour Court has jurisdiction to entertain a defunct review application in terms of Rule 11. The expediency contemplated in the LRA is adequately achieved through clauses 11.2.3, 11.2.7 and 16.3 of the Practice

Manual.

[16] In the premises, it is my view that the rescission application must succeed. The next enquiry is whether to reinstate the deemed withdrawn review application.

Reinstatement application

[17] In Samuels v Old Mutual Bank (Samuels),[13] the LAC, even though dealing with the retrieval of an archived file, stated that:

‘[15] The Practice Manual is not intended to change or amend the existing Rules of the Labour Court but to enforce and give effect to the rules, the Labour Relations Act as well as various decisions of the courts on the matters addressed in the practice manual and the rules. Its provisions therefore are binding. The Labour Court’s discretion in interpreting and applying the provisions of the Practice Manual remains intact, depending on the facts and circumstances of a particular matter before the court.

[16] Clause 16.2 does not specifically state that in an application for the retrieval of the file, a party who brings that application must show good cause why the file must be retrieved from the archive. It however states in no uncertain terms that the provisions of rule 7 will apply in an application brought under the clause 16.2. Clause 11.2.7 applicable to rule 7 and 7A applications requires that a party who applies for a file to be removed from the archive must show good cause why the file must be removed from the archive. Furthermore, an applicant who applies for a file that has been archived for failure to comply with an order by a judge to file a pretrial minute, to be removed from archives, has to show good cause why such a file should be removed from the archives. There is therefore no doubt that showing good cause is a requirement for a file to be removed or retrieved from the archives in terms of clause 16.2.

[17] In essence, an application for the retrieval of a file from the archives is a form of an application for condonation for failure to comply with the court rules, time frames and directives. Showing good cause demands that the application be bona fide; that the applicant provide a reasonable explanation which covers the entire period of the default; and show that he/she has reasonable prospects of success in the main application, and lastly, that it is in the interest of justice to grant the order. It has to be noted that it is not a requirement that the applicant must deal fully with the merits of the dispute to establish reasonable prospects of success. It is sufficient to set out facts which, if established, would result in his/her success. In the end, the decision to grant or refuse condonation is a discretion to be exercised by the court hearing the application which must be judiciously exercised.’ (Footnotes omitted and emphasis added)

[18] The applicant must obviously show good cause why the review application should be revived. It is well-accepted that condonation cannot be had for the mere asking and it is expected that a party seeking condonation should give a full explanation for the non-compliance with the Labour Court Rules or the Practice

Manual.[14] To determine whether good cause has been shown, one is guided by the well-known approach adopted in Melane v Santam Insurance Co Ltd,[15] and penitently, the further principle that “without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without good prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused”.[16]

[19] Once more, the present matter brings to light the continuous failure of the officer of the State Attorney’s office to fulfil that office’s professional duties to the State and the taxpaying public at large. The following sentiments enunciated by Tuchten J, in Tasima (Pty) Ltd v Department of Transport and Others[17] (Tasima) still hold true today:

'36. I deprecate strongly the conduct of Ms Lithole as disclosed in her own affidavits before us and the correspondence admittedly sent and received. Her conduct seriously prejudices the administration of justice. Even more importantly, the dysfunctionality to which she refers demonstrates that the office of the state attorney, Pretoria, an important organ of state, is presently unable to comply with its constitutional and statutory obligations.

37. To take but one, very important, function of the state attorney: under rule 4(9), service of court process on the state and on ministers and deputy ministers in the national government as representative of the departments which they head may legitimately take place by service on the state attorney. If that office is dysfunctional, a court cannot be confident that the process in question has come to the attention of responsible officers within the department concerned. Indeed, the experience of each of the members of this full bench has been that frequently, and most disturbingly, civil litigation against the state in this division is allowed to go by default.

38. Under s 1(1) of the State Attorney Act, 56 of 1957, the several offices of the state attorney are under the control of the Minister of Justice. This court too is an organ of state and subject to the duties under s 41 of the Constitution. With this in mind, it is appropriate that, as foreshadowed in argument, both the Minister of Justice and the Parliamentary Portfolio Committee for Justice be provided with copies of this judgment. In my view the Law Society of the Northern Provinces should be sent a copy of this judgment, with the request that the Law Society investigate the conduct of Ms Lithole and the office of the state attorney, Pretoria, as disclosed in this judgment and the papers in the postponement application. I emphasise that while I consider the conduct of Ms Lithole, as disclosed in her own affidavits, to be worthy of censure, the primary purpose in publicising this judgment in the way described is to prompt those in a position to do so to ensure that the office of the state attorney, Pretoria, fulfils its important constitutional and statutory obligations.’ (Emphasis added)

[20] Regrettably, despite the escalation of the challenges bought about by the dysfunctional office of the State Attorney, nothing much has changed. The present case is a typical example of the persisting catalogue of bungles to attend to the most rudimentary of administrative tasks in an attorney’s office, such as, inter alia, diarising files, observing deadlines set by the Rules and orders of Court, the failure to render a professional service to the department and the Court, the unacceptable excuses proffered for failing to protect the litigant’s interests, some of which constitute a sheer dereliction of duties.[18]

[21] In the present case, Mr Letageng, nonetheless, takes full responsibility for the failure to attend to the review application diligently, despite the constant reminders by the DCS. He attributes his remiss conduct to the workload he had to attend to from the date he received the brief up until the hearing of the Rule 11. He also gave a catalogue of all the other matters he prioritised at the expense of the present case. Put differently, he is too busy to study the Rules and Practice Manual of this Court and to supervise the prosecution of the review application.[19] This explanation is patently unacceptable.

[22] While it is true that there is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered,[20] the present instance is slightly distinct. As stated in Tasima, since the office of the State Attorneys is dysfunctional, it stands to reason that the Rule 11 application was never brought to the attention of the DCS. In fact, Mr Letageng concedes that the DCS was not aware of that application. The DCS has shown continuous interest in the matter and made the necessary follow up with Mr Letageng. In addition, once the DCS was served with the order of Mabaso AJ, it took further steps to ensure that it was challenged. Once more, any delay thereafter is also attributed to the office of the State Attorney as Mr Letageng was on vacation between 11 December 2018 and 22 January 2019.

[23] However, Mr Letageng has since redeemed himself. He acted with necessary urgency and took decisive actions. He attended to the launching of this application soon upon his return from vacation, that is, 5 February 2019. It is also clear from the DCS’s replying affidavit that the letter seeking the alleged missing parts of the record was served on the General Public Service Sector Bargaining Council (GPSSBC) on 05 February 2019. The GPSSBC swiftly responded and filed the additional record on 28 February 2019. The additional record was uplifted and sent for transcription on 8 March 2019. As stated, in Overberg:[21]

‘On the approach adopted, as one pre-condition for reinstatement, the court needs to be satisfied that the non-compliance with the manual which led to the application being deemed inactive, should be condoned. If that conduct should be condoned, its dilatoriness up to the point the application was deemed inactive will be excused. Further, if it is to ultimately succeed in reinstating the application it should still demonstrate that it acted promptly in launching the reinstatement application and has provisionally taken further steps in a bona fide attempt to ensure the expeditious finalisation of the review if reinstatement is permitted. To the extent that those further steps would also need to be condoned if the application is brought back to life, the court must determine if they should be. If not, that will sometimes prevent the reinstatement of the application, just as the failure to obtain condonation for the initial non-compliance would. However, if the condonation required relates to some step that is not a pre-condition for pursuing a review, such as the late filing of a replying affidavit, then it would not be an obstacle to reinstating the review application, even if that step is not condoned.’ (Emphasis added)

[24] I have accordingly considered the prospects of success and I am convinced that the applicant has reasonable prospects. As stated in Samuels,[22] the purpose of the practice directives pertaining to the lapsed review applications and their reinstatement “is to facilitate expeditious but fair adjudication of disputes in the Labour Court. The manual should not be used to enable a party to gain an unfair advantage over the other”.

[25] There is no evidence that Mr Ndlela would be prejudiced by the reinstatement of the review application. Mr Ntshebe, who appeared for Mr Ndlela, conceded that Mr Ndlela has since secured employment elsewhere. Also, it is apparent from the papers before me that Mr Ndlela resigned from his employment with the DCS soon after the issuing of the impugned arbitration award in his favour, which the DCS refused to accept. However, following the order of Mabaso AJ, he has tendered to withdraw the resignation letter and avail himself to all the orders of the arbitration award, including reinstatement. In any event, a cost order should deal with any other

prejudice could be cured by a suitable costs order.

[26] In my view, fairness, which is “[a] key purpose of the LRA, if not one of the foundational values it espouses”[23], dictates that the review application be dealt with and disposed of on the merits rather than technicalities. Moreover, Mr Ndlela was a senior official accused of being involved in a process that led to the irregular expenditure of public funds.

Conclusion

[27] In the circumstances, the order of Mabaso AJ of 4 December 2018 stands to be rescinded. In addition, the DCS has successfully shown good cause for the reinstatement of the review application.

Costs

[28] Tritely, costs do not follow the result in this Court. However, in matters like the present one, it is fair that a party who expended funds to nudge the opponent who is dominus litis (the master of a suit) into action should recover such costs.

[29] In the premises, I make the following order:

Order

1. The order of Mabaso AJ of 4 December 2018 is rescinded.

2. The review application, deemed withdrawn in terms of clause 11.2.3 of the Practice Manual, is reinstated.

3. The DCS shall pay Mr Ndlela’s costs, including the costs of the Rule 11 application.

P. Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the applicant: Mr Thabang Ntshebe from Thabang Ntshebe Attorneys

For the respondent: Advocate I.P. Ngobese SC

Instructed:

State Attorneys from P

[1] Act 66 of 1995, as amended.

[2] GN 1665 of 14 October 1996: Rules for the conduct of proceedings in the Labour Court.

[3] Effective, 2 April 2013.

[4] Unreported judgment under case no: D203/15 delivered on 12 June 2017.

[5] (2017) 38 ILJ 414 (LC).

[6] See: National Union of Metal Workers of South Africa obo Matabane v Fabricated Steel Manufacturing and others unreported judgment under case no: JR1343/10 delivered on 7 February 2017.

[7] (2015) 36 ILJ 2653 (LC) at paras 8 - 10.

[8] (2020) 41 ILJ 1168 (LC) at para 25.

[9] Unreported judgment under case no JR2597/2001 delivered on 19 August 2019 at para 11.

[10] (2021) 42 ILJ 1283 (LC) at para 19 -35.

[11] Ibid at para 34.

[12] (2019) 40 ILJ 798 (LAC).

[13] (2017) 38 ILJ 1790 (LAC) at paras 15 – 17.

[14] See: Steenkamp and others v Edcon Limited (2019) 40 ILJ 1731 (CC) and Grootboom v National Prosecuting Authority and another 2014 (2) SA 68 (CC).

[15] 1962 (4) SA 531 (A) at 532C–D.

[16] NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) at para 10.

[17] 2013 (4) SA 134 (GNP) at paras 36-38.

[18] See: Minister of Rural Development and Land Reform v Griffo Trading CC; In Re: Griffo Trading CC v Minister of Rural Development and Land Reform [2014] ZAGPPHC 666 at para 41.

[19] See: Kgobane and another v Minister of Justice and another 1969 (3) SA 365 (A) at 369B.

[20] See: Saloojee and another NNO v Minister of Community Development 1965 (2) SA 135 (A).

[21] Supra n 10 at paras 39.

[22] Supra n 13 at para 23.

[23] Groom v Daimler Fleet Management (Pty) Ltd (2021) 42 ILJ 2179 (LAC) at para 45.