POPCRU obo Matjele v Minister of Justice and Correctional Services and Others (JR 1025/2019) [2021] ZALCJHB 14 (8 February 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHAANESBURG

Not reportable

Case No: JR 1025/2019

In the matter between:

POPCRU obo EDWIN MATJELE

Applicant

and

MINISTER OF JUSTICE AND CORRECTIONAL SERVICES First Respondent

NATIONAL COMMISSIONER: DEPARTMENT OF

CORRECTIONAL SERVICES

Second

Respondent

DEPARTMENT OF CORRECTIONAL SERVICES

Third Respondent

AREA COMMISSIONER: DEPARTMENT OF

CORRECTIONAL SERVICES Fourth

Respondent

Heard:

10 November 2020

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to Saflii. The date and time for hand-down is deemed to be at 13h00 on 8 February 2021.

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] POPCRU approached this Court on behalf of its member, Mr Edwin Matjele (Matjele), to seek orders condoning the late filing of the review application, and a review and setting aside of the decision of the Fourth Respondent (Area Commissioner), to summarily terminate the services of Matjele. The review application is brought under the provisions of section 158(1)(h) of the Labour Relations Act (LRA).[1] Both applications were opposed by the respondents.

Background:

[2] Matjele was employed by the third respondent (Department) as a Correctional Services Officer and was stationed at Barberton Maximum Correctional Centre in Mpumalanga Province. The Department falls under the scope and jurisdiction of the General Public Services Sector Bargaining Council (GPSSBC). Resolution 1 of 2006 applies in the GPSSBC’s chamber of Correctional Services, and it is a collective agreement that makes provision for a disciplinary code and procedure applicable to all officers in the Department.

[3] Clause 9.1 of the Resolution provides that;

‘An employee who absents him/herself for 30 consecutive (calendar) days without permission or without notifying the employer shall be summarily dismissed. However, before dismissing the employee, the employer must endeavour to establish the whereabouts of the employee. Upon the employee’s reappearance after desertion, he/she may not be reinstated. The employee must make written representations to the delegated authority within 5 days from his/her reappearance should he/she wishes reinstatement/reemployment to be considered’.

[4] On 20 August 2018, the Department took a decision to temporarily transfer Matjele to Barberton Town Youth Centre as a precaution, pending investigations into complaints of misconduct against him. There is a dispute as to how Matjele was notified, it being the respondents’ contention that the notice was hand delivered to him on 22 August 2018, and that he had refused to accept it, having insisted that any communications to him be made through his attorneys. The respondents also contends that the notice was indeed despatched to Matjele’s attorneys by fax. Matjele however contends that he was merely verbally informed of the decision.

[5] Despite the decision to transfer him, Matjele had on 23 and 25 August 2018 reported for duty at Barberton Maximum Correctional Centre. On both occasions he was informed that he had been transferred to Barberton Town Youth Centre. He was therefore refused entry into the Barberton Maximum Correctional Centre. Matjele thereafter resorted to stay at home, and failed to report at the Barberton Town Youth Centre.

[6] Whilst at home, Matjele was visited by two officials, Messrs Mkhabela and Mgoma, who had presented him with documents related to his transfer to Barberton Town Youth Centre and requested him to sign acknowledgement thereof. He had refused to sign the documents unless he was furnished with a copy.

[7] On 18 September 2018, Matjele’s erstwhile attorneys (MM Labe Attorneys) sent correspondence to the Department alleging that his transfer was unlawful, and had threatened to approach the Court. On 20 September 2018, the Department’s written response was that Matjele remained absent from duty and if he continued being absent for 30 consecutive days, he would be summarily dismissed.

[8] As a consequence of Matjale’s absence from duty without authorisation between 23 August 2018 and 30 September 2018,

which constituted more than 30 consecutive days, he was then on 30 September 2018, issued with a notice of summary dismissal. He was deemed to have been dismissed by virtue of the provisions of section 17(3) of the Public Service Act (The PSA),[2] and was granted an opportunity to make written representations within 5 days in accordance with Clause 9.1 of the Resolution.

[9] Matjale through his erstwhile attorneys had on 27 October 2018, sent correspondence to the Department, advising that since receipt of the notice of summary dismissal, sufficient particulars of the allegations of misconduct had not been provided, and Matjale was therefore unable to advance reasons as to why he should make written representations for reinstatement.

[10] There does not appear to have been a response to the correspondence. On 23 November 2018, Matjale made written submissions to the second respondent (National Commissioner). When no response was received, he then made a follow-up on his previous correspondence on 10 January 2019 with the fourth respondent (Area Commissioner), and still no response was received.

The review application and condonation:

[11] The review application which encompassed what Matjele refers to as his application for condonation for its late filing was filed on 4 June 2019. The review application is before the Court in terms of section 158(1)(h) of the LRA.

[12] In Gcani v Minister of Justice and Correctional Services and Others[3], it was held that whilst it may be true that there is no specified time limit within which a review application in terms of section

158(1)(h) must be brought, this does not mean that an applicant has an open licence to bring such an application when he or she wants, and that any delay occasioned is of no consequence[4].

[13] Further flowing from the authorities referred to in Gcani[5], it was reiterated that the LRA places a premium on the expeditious resolution of labour disputes, and thus the application to review had to be brought within a reasonable time, despite there being no prescribed time limits. This therefore requires of the applicant to at the very least, proffer some explanation for the undue delay, and for the Court to investigate the facts of the matter, in determining whether a delay which has been found to be unreasonable, should be condoned.

Evaluation:

[14] In this case, the decision to invoke the deemed dismissal provisions was taken on 30 September 2018. In my view, even if the provisions of section 158(1)(h) of the LRA do not provide any time frames, at most, in determining what is a reasonable delay, guidance should be sourced from the time frames stipulated in section 145(1)(a) of the LRA, as this would be in line with the objectives of expeditious resolution of disputes as envisaged in the LRA.

[15] Without being confined to the time frames stipulated in section 145(1)(a), in the final analysis, the issue remains whether the delay in this case is unreasonable, and if so, whether it has been explained in order for the Court to overlook it and determine the merits of the application.

[16] The respondents contended that there is no proper application for condonation before the Court in view of the manner with which such an indulgence was sought by Matjele. The respondents are correct in pointing out that applications should be brought on notice of motion and accompanied by an affidavit, and that Matjale failed to bring such a substantive application.

[17] Even if what is contained in the review application can remotely be viewed as an application for condonation, the principles applicable in that regard need no repetition, other than to point out that in such cases, there is an obligation to inter alia explain the circumstances surrounding the delay.

[18] Matjele readily conceded that at worst, the delay is about six months. He however contended that the delay is minimal and insignificant. I disagree. A delay of six months is indeed unreasonably excessive.

[19] In explaining the delay, Matjele contended that the impugned decision of 30 September 2018 was made known to him through his erstwhile attorneys on 15 October 2018. He had again made reference to the correspondence sent to the respondents on 27 October 2018, and his written submissions on 23 November 2018, and his follow up on 10 January 2019

to which had not received a response. He however contended that the delay was attributed to having waited with the hope that there would be a response from the respondents.

[20] It was only in February 2019 that he had again requested his attorney to intervene, and the latter undertook to do so and revert to him in due course. In March 2019 he had learnt that POPCRU had terminated the mandate of his erstwhile attorneys. The current attorneys of record were only appointed on 15 May 2019, who had filed then filed and served the review application.

[21] The explanation clearly does not cover each period of the six months delay. Matjele’s contention that he had waited for a response to the various correspondence from his erstwhile attorneys to the respondents cannot equate to a reasonable explanation, given the clear indication as early as 27 October 2018 that no responses was forthcoming. As it was correctly stated on

behalf of the respondents, Matjele was legally represented throughout and it is inexcusable that his erstwhile attorneys could not have known or had advised him and POPCRU of the need to take urgent steps to challenge the decision.

[22] The nonchalance in approaching this matter in my view is apparent, and Matjele cannot simply apportion blame to the respondents’ failure to respond to his attorneys’ correspondence, his erstwhile attorneys, or POPCRU, without taking responsibility for the delay. This is particularly so in the light of his failure to demonstrate what it was that he had done, in ensuring that this matter was promptly attended to, beyond mere periodic instructions to his erstwhile attorneys to follow on its correspondence, and/or waiting for a response from the respondents that was clearly not forthcoming. In the end, the explanation proffered by Matjele in the light of the unreasonable delay is neither reasonable nor acceptable.

[23] Based on the authorities referred to in Gcani[6], the next enquiry is whether the Court should nonetheless exercise its discretion, overlook the unreasonable delay, and entertain the application. This entails an assessment of the potential prejudice to the affected parties, as well as a consideration as to the possible consequences of setting aside the impugned decision. In my view, one cannot make an assessment of prejudice to the parties and consequences of setting aside the decision without regard to the merits of the matter.

[24] The background facts leading to the deemed dismissal are hardly uncontested. From the outset, it should be stated that for the Court to exercise its discretion and overlook the unreasonable delay would clearly be more prejudicial to the respondents than to Matjele. Even if it can be said that Matjele would suffer prejudice should the matter not be disposed of on the merits, the reality is that given the facts and circumstances of this case, any prejudice he complains of is completely self-inflicted.

[25] For the sake of completeness, it is common cause that Matjele was informed of his temporary transfer to Barberton Town Youth Centre on no less than three occasions. The last time he reported for duty was on 25 August 2018 when he was again informed of his transfer. On his own version, he then ‘resorted to stay at home’, despite being informed of the transfer. It is not clear what informed his decision to stay at home rather than reporting for duty, except that on his own version, he did so as he was denied access to Barberton Maximum Correctional Centre. This was however in circumstances where he had been notified of his transfer to another site.

[26] It was further not in dispute that Matjele was not suspended from duty pending the investigations into allegations of misconduct against him. The transfer did not prejudice him or his terms of conditions of employment in any manner, since it was merely to a different site in the same area. Furthermore, even if he was aggrieved by the transfer, there is nothing in the pleadings that indicates that he took some steps to remedy the grievance, if there was any, other than for his attorneys to threaten legal action.

[27] Further on Matjele’s own version, he had refused to sign documents regarding the transfer presented to him at his home by two Department officials. His refusal to accept or sign the documents in respect of the transfer is indeed spurious, as all he needed to do was sign the documentation, go back to his new temporary post, and thereafter request a copy of the transfer at a later stage. At worst, he did not even have to sign the transfer documents if he was suspicious of the respondents’ motives.

However, he was still obliged to report for duty at his new site.

[28] Furthermore, despite being notified of the deemed dismissal and being afforded an opportunity to make written representations as to why he should be reinstated, Matjale unreasonably refused to take that opportunity to explain his absence between 25 August 2018 and 30 September 2018, and had raised contrived arguments in the correspondence of 27 October 2018, that he was not furnished with sufficient particulars.

[29] To the extent that Matjele had alleged that he only got to know of the summary dismissal on 15 October 2018, he merely responded on 27 October 2018 to seek further particulars, some 12 days after receipt of the notice. Inasmuch as it is appreciated that Clause 9.1 of the Resolution makes reference to the employee’s ‘reappearance after desertion’, in this case, Matjele had not made a ‘reappearance’ in the ordinary sense, and in such circumstances, logic would dictate that upon service of the notice, the implications would be that he still had 5 days within which to make written representations.

[30] As it was correctly pointed out on behalf of the respondents, Matjele had missed the five-days’ deadline. The respondent’s contentions in regards to the belated written submissions of 23 November 2018 was that a discretion to reinstate could only have been exercised in the event that Matjele had made his written submissions on time, and that his response beyond the five day period was of no value, and did not require their attention.

[31] The requirement to make written submissions was an opportunity for Matjele to give an explanation for his absence. He nonetheless rebuffed that opportunity on the grounds that the notice did not contain sufficient particularity. This posture as supported by his erstwhile attorneys was clearly unreasonable, especially in circumstances where it was common cause that Matjele was absent from work for a period of 30 days, and was notified of a summary dismissal on those grounds. In fact, in his belated submissions of 23 November 2018, he acknowledged the grounds of the summary dismissal.

[32] I therefore fail to appreciate what other particulars could have been be added to the notice of summary dismissal. That notice was unambiguous, and had clearly stated that Matjele was ‘summarily dismissed for desertion as he had absented himself from work for more than 30 consecutive days’. The Department had nothing to add beyond what was contained in the notice of summary dismissal.

[33] Furthermore, on Matjele’s own version, he knew that he had not reported for duty since 25 August 2018. He had been warned through his erstwhile attorneys on 20 September 2018 that should he remain absent from duty, and if he continued to absent himself for 30 consecutive days, he would be summarily dismissed. That warning went unheeded. He therefore could not have alleged that he did not know the reasons leading to his summary dismissal.

Conclusions:

[34] To the extent that Matjele had not taken the opportunity to explain his continued absence within the prescribed time frames when afforded the opportunity to do so, the deemed dismissal remained. When the provisions of Clause 9.1 of the Resolution read together with those of section 17(3) of the PSA are invoked to terminate the services of an employee, that termination is by operation of the law. In the absence of timeous written submissions, there can therefore be no basis upon it could be said that the respondents had not considered or applied their mind to ‘evidence’ in regards to the deemed dismissal or went about an enquiry in the wrong manner. There was no other evidence beyond the common cause facts that Matjele was absent for more than 30 consecutive calendar days, and equally so, there was no enquiry that one can speak of, as none was held. In this case therefore, there is no factual or legal basis for the challenge to the impugned decision. It follows that an enquiry into the possible consequences of setting aside the impugned decision becomes moot.

[35] The respondents did not with any vigour, pursue costs against POPCRU and in the circumstances, I am of the view that upon a consideration of law and fairness, a costs order is not appropriate in this case.

[36] Accordingly, the following order is made;

Order:

1. The ‘application’ to condone the late filing of the review application is dismissed.

2. The review application is dismissed.

3. There is no order as to costs.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant:

B Maphasa, instructed by MM Mitti INC Attorneys

For the Third Respondent:

S Mpakane, instructed by the State Attorney, Pretoria

[1] Act 66 0f 1995, as amended

[2] Act 103 of 1994, as amended

[3](2019) 40 ILJ 358 (LC)

[4] At para 37

[5] At paragraphs 38 - 41

[6] supra