Neumann v Western Cape Department of Education and Others (C383/2023) [2024] ZALCCT 17 (21 May 2024)

THE LABOUR COURT OF SOUTH AFRICA

AT CAPE TOWN

Of interest to other judges

Case no:C383/2023

In the matter between:

WESLEY NEUMANN Applicant and WESTERN CAPE DEPARTMENT OF EDUCATION First Respondent EDUCATION LABOUR RELATIONS COUNCIL Second Respondent JOHNATHAN GRUSS N.O Third Respondent PREMIER OF WESTERN CAPE Fourth Respondent HELEN ZILLE Fifth Respondent MR. BRIAN SCHREUDER Sixth Respondent PUBLIC SERVICE COMMISSION Seventh Respondent DEPARTMENT OF PUBLIC SERVICE AND ADMINISTRATION Eighth Respondent

Heard: 15 May 2024

Delivered: 21 May 2024

Summary: (Rule 11 application to dismiss review application – review application deemed withdrawn in terms of clause 11.2.3 of the labour

court practice manual – Rule 11 application dismissed despite procedural defects in the review applicant’s attempts to obtain an extension of time – LAC decision in Coericius applied in determining if good cause was shown for condoning non-compliance with clause 11.2.2. of the practice manual - Application to set aside supplementary affidavit as an irregular step dismissed – references to the record do not have to be mentioned in the supplementary affidavit)

JUDGMENT

LAGRANGE, J

Introduction

[1] This is an opposed interlocutory application to dismiss a two-part review application on the basis that the reviews are deemed withdrawn in terms of the Labour Court Practice Manual (‘the practice manual’). The applicant in the interlocutory application, the Western Cape Department of Education (‘the department’), is the first respondent in the review application and the respondent, Mr W Neumann, is the applicant in the review application.

[2] It should be mentioned that before proceedings commenced, Mr Neumann’s attorney, Mr Seymour, conveyed to myself in chambers that his client had expressed ‘discomfort’ that I was hearing the application because I had previously presided in an urgent application involving his client. I asked him to consult with his client to take instructions whether he wished to bring a recusal application and that the matter would be dealt with in open court. When the court convened the court was advised that Mr Neumann did not want to bring a recusal application. It was mentioned in court that the previous occasion concerned an urgent application involving the same parties a few years earlier, which I did not recall until I was referred to it in the course of the argument.

[3] In the event the review application is reinstated, the department asks the court to set aside the supplementary affidavit filed by Mr Neumann as an irregular step.

The review proceedings and Rule 11 application.

[4] Mr Neuman was employed as a school principal and was dismissed by the department in May 2022 after being found guilty of a range of misconduct he allegedly committed during the Covid-19 pandemic in June and July 2020. He referred an unfair dismissal claim to the Education Labour Relations Council (‘the ELRC’) and on 20 June 2023, after very lengthy arbitration proceedings, the arbitrator found the dismissal was substantively and procedurally unfair.

[5] The applicant launched a two-pronged review on 28 July 2023. The first review concerned a decision of the department in September 2018 to extend the appointment of the provincial head of the department (‘HOD’). The purpose of this application was to challenge the legal authority of the HOD to have initiated disciplinary proceedings against Mr Neumann. The second review application seeks to set aside the arbitration award confirming the fairness of his dismissal.

[6] In his answering affidavit in the Rule 11 application, Mr Neumann confirmed that he had abandoned the first review application to set aside the HOD’s re-appointment before the Labour Court. I note that there is a similar application still pending in the High Court which was launched on 14 December 2023.

[7] In any event, the only review application still in contention in this court is the one to set aside the arbitration award, which the department claims had lapsed in terms of deeming provisions of the practice manual. More specifically, it claims that the review application had lapsed in terms of Clause 12.2.2 of the practice manual because the record had not been filed withing 60 days of receipt of the Registrar’s notice under Rule 7A(5) that the bargaining council had filed the documents and recording of the evidence with the court. The application is opposed primarily on the basis that the application had not lapsed. However, in his answering affidavit, Mr Neumann presents an explanation for the delay in the event that he is wrong about the calculation of the dates.

Brief chronology

[8] As mentioned, the two-pronged review was launched on 28 July 2023. In relation to the review before this court, the application was launched timeously before the expiry of the six-week period from the receipt of the award.

[9] The Rule 7A(5) notice was issued on 18 August 2023 by the Registrar. The notice advised that no compact disc had been provided by the bargaining council, but ‘other documents’ were filed. Manifestly a complete record had not been filed by the bargaining council by that time. At that time the review application was still a dual application and it is clear from the Rule 7A(5) notice that the Registrar was only referring to records from the bargaining council and would not have included the record of the decision leading to the HOD’s re-appointment. However, in his supplementary founding affidavit, Mr Neumann acknowledges that on 18 August 2023 he received the record of the decision to re-appoint the HOD. The department points out that he had been in possession of this since he first launched a similar application in 2020 but ultimately never pursued that.

[10] On 27 September 2023, his attorneys obtained the digital record of the arbitration hearing from the bargaining council. Mr Neumann contends that the sixty-day period should commence then, when the missing record was made available, in which case he only needed to have filed the record by about 8 December 2023. If this is correct, then the sixty-day period had not expired by the time it was filed on 27 November 2023.

[11] On 9 October 2023 the court file was uplifted by Mr Neumann’s attorneys. On 13 November 2023, the sixty-day period expired for filing the record on the basis that the period commenced once the Rule 7A(5) notice had been issued.

[12] On 22 November 2023, Mr Neumann’s attorneys wrote to the State Attorney, advising that “…we have been unable to meet the 60-day deadline in filing the records in two matters”. The other matter concerned a different case. In relation to the application before this court, they claimed they only became aware of the registrar’s notice on 25 August because Mr Seymour’s Telkom email to which the notice had been sent “has had problems”. The letter continued:

“Thereafter we obtained the web transfer and sent it to the transcriber. The web-transfer had many challenges, but the ELRC was very helpful and engaged with our transcriber directly. The transcript is now ready and currently being copied and placed in files. We intend to serve the record bundles with lever arch files on Monday. It is a very lengthy transcript with more than 2500 pages.”

The letter ended by requesting the department to consent to the filing of the records in both matters by 30th November 2023 at the latest. No consent was granted. The department queried the veracity of the claim that Mr Seymour’s email had problems, noting that the email address is the same he had used throughout the correspondence and proceedings. It also disputes that Mr Neumann’s attorneys only received the digital record in late September 2023, because there are emails from the bargaining council’s attorneys showing that links to the digital record were conveyed to the parties in early August 2023.

[13] On 24 November 2023, the state attorney queried whether Mr Neumann was persisting with the review of the decision to re-appoint the HOD because he had previously launched this application in October 2020 and had been furnished with the record of the decision by 2 November 2020 and should have filed any supplementary affidavit within 10 days thereafter but had not done so. The department followed up with a warning that it would seek a special cost order if he persisted with the re-launched application to review the HOD’s re-appointment.

[14] In the event, the record was served on the department on 28 November 2023, and the supplementary affidavit was filed on 11 December 2023, within the ten day period prescribed by Labour Court Rule 7A(8). In his supplementary affidavit, Mr Neumann adopted the stance that since there had been no positive objection to the late filing of the record by the department, he assumed that it had impliedly consented to his request even though it had not expressly done so. He also filed an amended notice of motion in which he withdrew the application to set aside the decision to re-appoint the HOD.

[15] In his answering affidavit, he contends that the calculation of the sixty-day period should commence from the date he received the digital audio record of the proceedings, namely 27 September 2023 because it was only then that he was in a position to prepare a transcript. Alternatively, he argues that the court should consider that his request to the department in terms of clause 11.2.3. for an extension of time to file the record, was only seven days late, at worst.

[16] He further contends that the failure of the department to respond to the request for an extension of time coupled with the service of record on it by 27 November 2023, without any complaint from it, gave rise to reasonable assumption on his part that it had tacitly condoned the late filing.

[17] The department wasted no time in launching the Rule 11 application on 19 December 2023 to dismiss the review, five days after Mr Neumann launched an application in the High Court, which effectively replicated the relief he has now abandoned before this court. On 10 January 2024, he filed a notice of opposition to the Rule 11 application, but only filed his answering affidavit on 8 February 2022.

[18] On 12 January 2024, Mr Neumann launched a self-styled ‘application’ in the form of a notice of motion with a supporting affidavit, seeking that the court file be placed before a judge in chambers ‘as contemplated’ by clause 11.2.3 of the practice manual to (retrospectively) grant an extension of time for the filing of the record and to condone the late filing of record of proceedings in the review of the decision to re-appoint the HOD.

[19] On 16 January 2024, in response to this ‘application’, the state attorney pertinently pointed out that the purported application for an extension of time was made outside the sixty-day period, whereas clause 11.2.3 clearly stipulates that any request for an extension of time to file the record must be made before the sixty-day period expires. The department complained that the purported application was an attempt to sidestep the Rule 11 application by means of subterfuge.

[20] In the answering affidavit, Mr Neumann offers an explanation for the delay in filing the transcript. Mr Seymour confirmed the explanation in a confirmatory affidavit. They state that they first communicated with the bargaining council about the audio record on 26 August 2023. They received the audio recordings from it a few weeks after the registrar’s notice, which would have been around the first week of September. Within a week of receiving the records a transcription firm had been engaged. They claim that the appointment of the transcriber was delayed by negotiations over the price of the transcription, which initially had been estimated to be R 200,000-00 owing to the length of the arbitration hearing. The transcriber also encountered problems with the audio recordings. In support of this a letter dated 4 January 2024 from the transcriber was attached to the answering affidavit. This letter had originally been attached to Mr Neumannn’s purported clause 11.2.3 application. Although not confirmed by an affidavit, the letter essentially conveys that the transcriber encountered technical difficulties caused by the poor quality of the audio recordings.

Evaluation

Is the review application deemed withdrawn in terms of clause 11.2.2 read with clause 11.2..3 of the practice manual?

[21] The relevant provisions of the practice manual read:

“ 11.2.2 For the purposes of Rule 7A (6), records must be filed within 60 days of the date on which the applicant is advised by the registrar that the record has been received.

11.2.3 If the applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period requested the respondent's consent for an extension of time and consent has been given. If consent is refused, the applicant may, on notice of motion supported by affidavit, apply to the Judge President in chambers for an extension of time. The application must be accompanied by proof of service on all other parties, and answering and replying affidavits may be filed within the time limits prescribed by Rule 7. The Judge President will then allocate the file to a judge for a ruling, to be made in chambers, on any extension of time that the respondent should be afforded to file the record.

(emphasis added)

[22] Having regard to the date of the Rule 7A(5) notice from the registrar, the sixty-day period expired on 13 November 2023 and the record was filed 10 court days late. Mr Neumann argued that the commencement date of the sixty-day period is 27 September2023, when the complete record of the arbitration hearing had been received. The crisp legal issue which arises is whether the 60 day period does not commence with the issuing of the Rule 7A(5) notice if the CCMA or bargaining council has not lodged a complete record with the registrar by that date. I was not referred to any judicial authority to support this interpretation of the commencement of the sixty-day period, nor have I been able to find any. Moreover, clause 11.2.2 does not state that the clock starts ticking only when the registrar issues a Rule 7A(5) notice to the effect that a complete record has been received. In the circumstances, I am satisfied that clause 11.2.2 of the practice manual was intended to set a clear time limit for the filing of a record and that required a clear commencement date. If that date is no longer clear because it can only be determined when a complete record is lodged with the registrar, it will create inordinate problems. I do not think it was intended that the registrar should get involved in determining if the record lodged is sufficiently complete before issuing the Rule 7A(5) notice. If the registrar makes a judgment call on the completeness of the record, is the Rule 7A(5) notice to be set aside? The provisions of the practice manual relating to review applications were intended to speed up the processing of such applications and stop parties taking advantage of the absence of time limits in the labour court rules for prosecuting them. That aim would be undermined by complicating the identification of the starting date for filing arbitration records.

[23] In the circumstances, I must find that the review application was deemed withdrawn on 13 November 2023, sixty court days from the date of the Rule 7A(5) notice being issued.

Failed attempts to timeously utilise mechanisms to extend the time for filing the record

[24] There were options available to Mr Neumann to avoid the effect of the deeming provision. The Constitutional Court itself has taken judicial notice of the frequent problems with arbitration records provided by the CCMA and bargaining councils[1]. However, clauses 11.2.3 and 11.2.4[2] of the practice manual give a party faced with such difficulties some breathing space to remedy deficient or missing records, which they are expected to utilise when encountering them.

[25] In this case, Mr Neumann’s attempts to invoke the safety mechanisms to avoid falling foul of the deeming provisions were not invoked timeously. He requested an extension of time to file the record from the department but by the time he made the request on 22 November 2023, the sixty-day period had expired just over a week earlier. He should have made the request within the sixty day period. Similarly, his attempt to retrospectively obtain an extension of time from the court ought to have been launched within the same time frame[3]. Neither of his belated attempts to follow the procedures to obtain an extension of time could undo the deeming effect of clause 12.2.3.

[26] The proper recourse for Mr Neumann, in light of the deemed withdrawal of his review application, was to have applied to reinstate the review application in which he had to show good cause why it should be revived. The Labour Appeal court has characterised such an application as a form of condonation application:

‘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. …’ [4]

[27] The department in this instance was quick to raise the effect of the deeming provision as a bar to the review proceeding continuing. To obtain affirmation of the application of the deeming provision it brought the Rule 11 dismissal application, though arguably this was unnecessary except perhaps to forestall the possible greater prejudice of a belated reinstatement application being launched at a much later stage.

[28] Mr Neumann has opposed the dismissal application. Because his review application is dormant, he should have brought an application to resurrect it. Nonetheless, the issues arising in such an application, to all intents and purposes, would have been indistinguishable from the issues the court has to consider in any event in considering the merits of a Rule 11 application where there is no pending review application. This is a different situation from Rule 11 applications which were brought before the deeming procedures of the practice manual were introduced to terminate a stagnating review application. In opposing a Rule 11 application now, the employee is on the back foot, so to speak, because their review application is already dormant, and they must persuade the court that it should be resurrected.

Consideration of the effect of the procedural deficiencies in resisting the dismissal application and failing to bring a counter-application

[29] Is the absence of a counter-application to revive the review application fatal to Mr Neumann’s case? He ought to have included one when he filed his answering affidavit, but the LAC has held that a court may still consider if there is good cause to condone the lapses which led to the application being deemed withdrawn even without the defaulting party making a formal

condonation application.

[30] In South African Police Services v Coericius and others[5], the LAC was dealing with a case in which the appellant (SAPS) had instituted review proceedings which were deemed withdrawn under

clause 11.2.3 of the practice manual. The respondent had launched a dismissal application which was enrolled as an unopposed application.

At the eleventh hour, SAPS applied for condonation for the late filing of the record and its supplementary affidavit as well as

reinstatement of the review if the court found the file was archived. The court a quo had held that SAPS failure to oppose the Rule 11 application was decisive and dismissed the review application. Even though SAPS did not file an affidavit in support of its condonation application, the LAC nonetheless found that SAPS’s supplementary affidavit explained its difficulties in getting a transcript and why it was not at fault, though it failed to explain why it had not followed the procedure in clause 11.2.3. Despite SAPS’s failure to oppose the Rule 11 application or to file an affidavit in support of its condonation application, the LAC held:

“[12] There were indeed procedural blunders committed by the attorneys of the appellant. But a fair-minded examination of all the circumstances should have led to an appreciation that, despite the untidiness of the papers, the substance of a reinstatement and condonation application was before the court. We offer no comment on the merits of the reinstatement application.

[13] The penalty for procedural blunders that have no substantive implications lie in costs orders, not in the dismissal of the application. The policy objectives of the Practice Manual do not require a mechanical application of its provisions. A purposive interpretation of the Practice Manual cannot lead to such an outcome as illustrated in this case. As was remarked upon in Adams v National Bargaining Council for the Road Freight and Logistics Industry and others:

“Although it is highly desirable for good order that rules be complied with on their own terms, the function of the rule is the paramount consideration and, where it can be safely found that the purpose of the rule is achieved, it is highly undesirable to approach the matter in a literalist way. Mechanical thinking is anathema to our law: cessante ratione legis cessat et ipsa lex. The objectives of the Labour Relations Act 66 of 1995 inform the context of interpretation and its penumbra of pragmatism. Our law is not an ass.”

[14] In our view, the Labour Court ought to have found, on a charitable view of the papers, that a reinstatement application was before it and as such, was the answer in opposition to the respondent’s Rule 11 application. Such an approach is consistent with the dictum by Kathree-Setiloane AJA in Macsteel Trading Wadeville v Van der Merwe NO and others:

“. . . The Labour Court does, however, have a residual discretion to apply and interpret the provisions of the Practice Manual, depending on the facts and circumstances of a particular case before the court.”

[31] In this instance, the Rule 11 application is opposed, but there was no formal application for condonation and reinstatement. It stands to reason that if Mr Neumann’s failure to comply with clause 11.2.2 should be condoned, the dismissal application should not succeed. If that is the case, then it will follow that the review application should be reinstated.

[32] Has Mr Neumann shown good cause for condoning his non-compliance with practice manual? Following the approach of the LAC in Coericius, the question is whether a case for condonation has been made out in his affidavits. The first issue is the period of delay. In this instance, the record was filed some ten court days late, or to put it differently seventy days after the Rule 7A(5) notice rather than within sixty days. That is not a significant delay considering the length of the transcript and it is difficult to discern any material prejudice the department suffered as a result. While it was entitled to treat the review application as withdrawn, it ran the risk that it might be reinstated. There is no evidence to show that Mr Neumann or his attorneys dragged their heels unduly in prosecuting the review. The explanation in the supplementary affidavit is not an implausible one. It seems from the email record of the bargaining council’s attorneys that digital copies of the audio record were successfully transmitted to Mr Seymour’s email address in early August before the registrar issued the Rule 7A(5) on 18 August 2023, even though but he denies receiving them and it is not entirely improbable that emails with such large attachments might not have been received. In any event, it appears that the attorneys nonetheless did approach the bargaining council to obtain the links to the record during September and by the end of the month they had been received the bargaining council. As mentioned, the length of the proceedings was considerable and a transcript of 2500 odd pages would have taken longer to finalise, even if the claimed audibility issues are discounted. Even though it appears that Mr Neumann ought to have had access to the audio record in early August and could have started to make arrangements for transcription earlier, the extent of his default in relation to 60 day time period was only approximately 15 % longer than the practice manual permits. The actions of Mr Neumann and his attorneys do not disclose a party who was pursuing his application in a desultory manner. Taking these factors into consideration I am satisfied that this is not a case in which the applicant in the review should be barred from finalising his application on the basis of the deeming provisions of clause 11.2.3 of the practice manual. I have not referred to, nor attempted to evaluate the prospects of success because I believe, in the circumstances, these are not a significant consideration in granting condonation given the length of the delay. However, as some of the charges against Mr Neumann related to his alleged non-compliance with Covid-19 policies in the context of a school environment, I believe it would be in the interest of justice for the review application to be allowed to proceed.

Was the supplementary affidavit an irregular step?

[33] The department argues that Mr Neumann’s failure to refer to particular pages in the record in his supplementary affidavit is an irregularity warranting the supplementary affidavit being set aside as an irregular step. It is trite law that an applicant in review proceedings cannot set out grounds of review without stating the facts on which they are based[6]. Rule7A(1)(c) requires an applicant party to set out the “factual and legal grounds” on which they rely to set aside the award or ruling. However, there is no requirement that the applicant must cite extracts from the record in their supplementary affidavit, helpful though that may be. Nevertheless, when heads of argument are filed then specific references to the record are mandatory in terms of Rule 18(2)(b) of the labour court rules.

[34] Mr Kahanovitz SC, who appeared with Ms Williams for the department, referred me to the High Court case of Maepa v Minister of Police[7]. The judge in that matter bemoaned the vagueness of the applicant’s founding affidavit and his failure to identify the reviewable

administrative action in issue. However, that matter concerned an application to compel the respondent to file a record of proceedings

under Uniform High Court Rule 30A in which it was the identification of the very decision the application sought to review was in issue, which is not on all fours with the objection raised here.

[35] Mr Neumann does articulate specific issues which he claims the arbitrator failed to consider as grounds of review. Whether he has made out a cogent case in law for review and can support his claim with specific references to the record, is a matter for the court hearing the review application.

[36] If an applicant seeks to expand on the factual grounds pleaded in the founding and supplementary affidavit, that is a matter the respondent party can address when the review application is argued. I am not persuaded that a failure to provide references to the record is necessary in the supplementary affidavit for it to avoid being set aside as an irregular step.

[37] The department also complains about the pagination of the record. That is a matter that Mr Neumann must sort out in terms of the requirements of Rule 22B of the Labour Court rules read with clause 11.2.8 of the practice manual. A direction is included in the order below to this effect.

Costs

[38] On the question of costs, I am mindful of what the LAC said in Coericius to the effect that procedural blunders on the part of the applicant in review proceedings are better dealt with by appropriate cost awards rather than completely non-suiting the errant party. However, in a case such as this where the delay was so short, there was no reason for the department to have sought to have pressed home the advantage it obtained from the deeming provision, instead of simply agreeing that it would not oppose an application for reinstatement, which could be heard together with the review

application itself. Accordingly, I do not think it would be appropriate to make a cost award based on considerations of law and

fairness.

Order

1. The application to dismiss the review application is dismissed and the review application of the arbitration award dated 19 June 2023 issued under case number ELRC147-22/23 is reinstated.

2. The application to set aside the supplementary affidavit of the Applicant in the review application is dismissed.

3. The Applicant in the review application must paginate the review pleadings and record in accordance with Rule 22B of the Rules of the Labour Court rules read with clause 11.2.8 of the Labour Court Practice Manual within 30 calendar days of the date of this order.

4. The Registrar must enrol the review application on the opposed motion roll before another judge.

5. No order is made as to costs.

R Lagrange

Judge of the Labour Court of South Africa.

Appearances:

For the Applicant: V Seymour of Lionel Cay Attorney For the Respondent: C Kahanovitz SC & J Williams instructed by State Attorney P Melapi

[1] Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2016) 37 ILJ 313 (CC) at paragraphs 186-7.

[2] Viz: 11.2.4 If the record of the proceedings under review has been lost, or if the recording of the proceedings is of such poor quality that the tapes are inaudible, the applicant may approach the Judge President for a direction on the further conduct of the review application. The Judge President will allocate the file to a judge for a direction, which may include the remission of the matter to the person or body whose award or ruling is under review, or where practicable, a direction that the relevant parts of the record be reconstructed.

[2] Viz:

11.2.4 If the record of the proceedings under review has been lost, or if the recording of the proceedings is of such poor quality that the tapes are inaudible, the applicant may approach the Judge President for a direction on the further conduct of the review application. The Judge President will allocate the file to a judge for a direction, which may include the remission of the matter to the person or body whose award or ruling is under review, or where practicable, a direction that the relevant parts of the record be reconstructed.

[3] See Govender and Others v Commission for Conciliation, Mediation and Arbitration and Others (DA 2/2022) [2024] ZALAC 6; [2024] 5 BLLR 453 (LAC) at paragraph [62].

[4] Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC) at para 17

[5] [2023] 1 BLLR 28 (LAC)

[6] See, for example, Comtech (Pty) ltd v Commissioner S Molony N.O. (LAC) [2007] ZALAC 35 (21 December 2007) at paragraph [18] and South African State and Allied Union & Ano v GSPSBC & others (Case no JR 1103/2009 dated 7 August 2015) at paragraphs 17 to 20.

[7] (63797/2020) [2022] ZAGPPHC 469 (4 July 2022)