Ngobeni v City of Johannesburg Metropolitan Municipality South African Local Government and Others (JR 1504 /2020) [2023] ZALCJHB 48 (8 March 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 1504 /2020

In the matter between:

SERIES NGOBENI Applicant

and

CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY

SOUTH AFRICAN LOCAL GOVERNMENT First

Respondent

BARGAINING COUNCIL Second

Respondent

AMOS MTHIMUNYE N.O Third Respondent

Heard: 28 February 2023

Delivered: 8 March 2023

This judgment was handed down electronically by consent of the parties’ representatives by circulation to them via email. The date for hand-down is deemed to be 8 March 2023.

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant was employed by the First Respondent (Respondent or Municipality) as a metropolitan police constable with effect from 1 October 2017. On 17 July 2018, the Applicant and another metro police constable, Mr Mmutlane, were stationed at Eloff street, Johannesburg, to perform their duties. Constables Nemukula and Pillay, being members of the Respondent’s internal affairs department, arrested them after they were observed when they stopped a vehicle driving in the bus lane. The Applicant and Mr Mmutlane’s conduct was investigated and they were subsequently charged with serious charges of misconduct to wit gross dishonesty in they solicited bribery from a member of the public. They were found guilty of misconduct and were dismissed on 30 January 2019. After their internal appeal failed, they referred an unfair dismissal dispute to the Second Respondent (SALGBC) on 26 June 2019.

[2] The dispute was conciliated on 26 July 2019 but remained unresolved. The dispute was referred for arbitration and it was set down for hearing on 16 September 2019. On the said date, it was postponed on the request of Mr Mmutlane and the Applicant.

[3] On 17 December 2019, the SALGBC issued a notice of set down and the dispute was set down for arbitration on 6 February 2020. Mr Mmutlane and the Applicant failed to attend the arbitration hearing on 6 February 2020 and the arbitrator issued a dismissal ruling. The arbitrator recorded that the matter was set down for hearing at 09:30, but that the applicant was absent and after waiting for a grace period of 30 minutes, he checked if the parties were properly served with the notice of set down. The arbitrator was satisfied that the parties were properly notified, that they had adequate notice of the date, time and place of the scheduled arbitration and he dismissed the case.

[4] A rescission application followed the dismissal of the unfair dismissal dispute and after a number of rulings and applications, the final rescission ruling, which is the subject of this review application, was issued on 27 August 2020. The application for rescission was dismissed and the dismissal ruling of 6 February 2020 remained in place.

[5] The Applicant approached this Court to review and set aside the said rescission ruling and to remit the dispute for arbitration.

[6] The Municipality opposed this application and raised a point in limine which calls for consideration.

Point in limine: Locus standi

[7] The Respondent submitted that the Applicant does not have locus standi to bring this application for review as he was not a party to the rescission ruling, which is the subject of this review application.

[8] The Applicant referred an unfair dismissal dispute to the SALGBC with Mr Mmutlane. Pursuant to becoming aware of the dismissal ruling, only Mr Mmutlane sought to rescind the ruling. The Applicant was not a party to the rescission application, yet he is the Applicant in the review application before this Court and as such he does not have locus standi.

Locus standi: general principles

[9] Locus standi (Latin: a place to stand) in iudicio is the right to bring an action or to challenge a decision. It goes to the question of whether a person who approaches the court for relief has the right to do so and the question involves a consideration of whether the party is enforcing a legal right and has sufficient interest in the relief claimed.

[10] Legal standing must appear from the description of the parties and ex facie the initiating documents. The applicant for relief must have an adequate interest in the litigation and a direct interest in the relief sought. A party cannot as a general rule, litigate in another party’s case.

Analysis

[11] An unfair dismissal dispute could be referred to the CCMA or a bargaining council by any number of affected dismissed employees. After referral of such a dispute, there could be several possible outcomes, for instance, depending on the nature of the dispute, it could be referred to the Labour Court for adjudication, it could be arbitrated, with an outcome in favour of one of the parties, the dispute could be settled, could be withdrawn or could be dismissed.

[12] Whatever the outcome of the referral, the referring parties may decide to either accept the outcome and move on or they could decide to pursue further litigation in respect of the outcome.

[13] The Applicant submitted that he had referred the unfair dismissal dispute to the SALGBC and therefore it is evident that he has always been part of the dispute and the proceedings. Such argument is not sustainable.

[14] If the dispute is dismissed, the referring employees may institute further litigation to challenge the dismissal of their dispute, or they may accept the outcome and not pursue the matter any further. It is also possible that some of the referring parties may accept the outcome and others may elect to pursue the matter further. An employee who was a referring party is not automatically included as a party in pursuant litigation merely and by virtue of the fact that he or she was a party to the initial referral of the dispute.

[15] The Applicant’s attorney of record was placed on record for the proceedings in the SALGBC on 15 May 2020 and it was specifically recorded that “please note that we act for and on behalf of Mr Isaac Mmutlane in this matter”. The attorneys became aware of the dismissal ruling, subsequent to placing themselves on record for Mr Mmutlane and after making enquiries about the set down of the dispute. A rescission application was filed in May 2020, seeking the rescission and setting aside of the dismissal ruling and for the matter to be set down for arbitration.

[16] Rule 31 of the Rules for the conduct of proceedings before the SALGBC provides that the Rule applies to applications for rescission and requires of the party bringing the dispute to sign the notice of application in accordance with Rule 4 and for the application to be supported by affidavit. The affidavit must clearly and concisely set out the names, descriptions and addresses of the parties. This is required to identify the parties to the application, as I already alluded to, not every employee who was party to the referral of the dispute is automatically included as a party to further applications or subsequent litigation.

[17] Rule 4(2) provides that where proceedings are jointly instituted by more than one employee, the documents may be signed by an employee who is mandated by the other to sign documents and that a list of the employees who have mandated the employee to sign on their behalf, must be attached.

[18] The application for rescission was brought by Mr Mmutlane on his own acting as an applicant, and the founding affidavit filed in support of the application for rescission was deposed to by Mr Mmutlane, who clearly stated that he was the applicant. Mr Mmutlane did not cite himself as the ‘first applicant’, which could leave scope for the possibility that there might be more than one applicant. No mention whatsoever was made of Mr Ngobeni, the Applicant before this Court. In the affidavit, it is throughout stated that the notice of set down was never brought to the ‘applicant’s’ attention, that the ‘applicant’ became aware of the dismissal ruling on 18 May 2020 and that there is a reasonable explanation for the ‘applicant’s’ failure to attend the arbitration hearing on 6 February 2020, with ‘applicant’ clearly referring to Mr Mmutlane. Mr Ngobeni was not cited as an applicant or the ‘second applicant’, nor did he depose to a confirmatory affidavit, wherein he confirmed Mr Mmutlane’s version. There was also nothing to indicate that the Applicant has mandated Mr Mmutlane to institute the rescission application on his behalf.

[19] This issue was specifically raised by the Municipality in opposing the application for rescission when it was stated that Mr Mmutlane is the only applicant and that Mr Ngobeni was not a party to the rescission application and therefore he is not entitled to any relief from such application. Instead of addressing the issue and fixing the fact that Mr Ngobeni was clearly not cited as an applicant, a confirmatory affidavit was attached to Mr Mmutlane’s replying affidavit. In the confirmatory affidavit, the Applicant stated that he is the second applicant, that the facts ‘herein’ are within his personal knowledge and that he has read the affidavit of the applicant (in the rescission application) by Mr Isaac Mmutlane “who is my attorney and confirm the contents thereof insofar as they relate to this application”.

[20] The confirmatory affidavit deposed to by Mr Ngobeni is of no assistance for a few reasons. Firstly, it states that “I have read the affidavit of the applicant Isaac Mmutlane who is my attorney and confirm the contents thereof insofar as they relate to this application”. It is not apparent from the confirmatory affidavit what is confirmed. There is no indication whatsoever that the affidavit deposed to by Mr Mmutlane and the application for rescission that was launched, was also launched on behalf of Mr Ngobeni or that he had authorised Mr Mmutlane to launch the rescission application on his behalf. Secondly, Mr Mmutlane was a former colleague of the Applicant and he was at no stage an attorney who had acted on behalf of Mr Ngobeni. Thirdly, a confirmatory affidavit is just that – an affidavit to confirm facts, it is not a joinder, nor is it a means to introduce or cite a party who had not been cited as a party in the founding affidavit. The confirmatory affidavit which only accompanied Mr Mmutlane’s replying affidavit, did not contain any averments that could be of assistance to Mr Ngobeni, in fact, it contained statements that are factually incorrect and untrue.

[21] It is evident that the Applicant was not an applicant in the rescission application before the SALGBC and if he intended to be a party to that application, he should have been cited as a party, alternatively, he should have taken the necessary subsequent steps to become a party to the application.

[22] There is no indication ex facie on the papers filed in the rescission application that the Applicant is a party to that application or that he had authorised Mr Mmutlane to act on his behalf.

[23] Mr Mmutlane, who was the applicant in the rescission application, has a direct and substantial interest in the outcome of that application and he had the legal standing to approach this Court to challenge the ruling that was issued. However, Mr Mmutlane did not seek to challenge the ruling and he is not a party to this review application.

[24] The relief sought by the Applicant is an order to review and set aside the rescission ruling and to direct that the dispute between the parties be remitted for arbitration. Mr Mmutlane is not a party to this application and the relief sought, if granted, would have the effect that his dispute is remitted for arbitration, relief which he never sought in the first place.

[25] In casu, the Applicant was not cited as a party to the rescission application, nor did he depose to a confirmatory affidavit to the founding affidavit to confirm that Mr Mmutlane was acting on his behalf. The Applicant has no locus standi to challenge the outcome of an application he was not a party to.

Costs

[26] Mr Govender for the Respondent indicated that the Respondent was not seeking an order for costs, therefore no cost order is to be made.

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

Order

1.The First Respondent’s point in limine is upheld;

2.The application is dismissed;

3.There is no order as to costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate S Magaqa

Instructed by:

Pepu Attorneys

For the First Respondent: Mr C Govender of Salijee Govender

van der Merwe Inc Attorneys