Presidency of the Republic of South Africa and Another v Masete and Another (JR 2827/2019 (B)) [2023] ZALCJHB 188 (15 June 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 2827/2019 (B)

In the matter between:

THE PRESIDENCY OF THE REPUBLIC OF SOUTH AFRICA First Applicant THE NATIONAL PROSECUTING AUTHORITY Second Applicant And SERETSE MASETE N.O. First Respondent GENERAL PUBLIC SERVICE SECTORAL BARGAINING COUNCIL (GPSSBC) Second Respondent PSA obo LS MRWEBI Third Respondent

Heard: 13 June 2023

Delivered: 15 June 2023

(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 SAFLI. The date on which the judgment is delivered is deemed to be 15 June 2023.)

JUDGMENT

VAN NIEKERK, J

[1] The first applicant (the applicant) seeks to review and set aside a ruling issued by the first respondent (the arbitrator) on 15 October 2019. In his ruling, the arbitrator dismissed a preliminary point raised by the applicant to the effect that the second respondent (the bargaining council) had no jurisdiction to entertain an unfair labour practice dispute referred to arbitration by the third respondent (Mrwebi).

[2] The material facts are not in dispute. In November 2011, Mrwebi was appointed as a special director of public prosecution: specialised

commercial crime unit in terms of section 13(1)(c) of the National Prosecuting Authority (NPA) Act. On 1 August 2018, the President gave Mrwebi notice of the intention to suspend him, pending an inquiry into his fitness to hold office. Mrwebi made representations on 10 August 2018, and on 25 September 2018 he was suspended, on full pay, pending the inquiry. On 14 December 2018, Mrwebi referred a dispute to the bargaining council. In the referral form, Mrwebi contended that the applicant had committed an unfair labour practice by unfairly suspending him. In the interim, the enquiry into Mrwebi’s fitness to hold office continued during the first few months of 2019. The proceedings were chaired by a retired Justice of the Constitutional Court and after considering the recommendation that Mrwebi be removed from office, the President removed him on 25 April 2019. At the time of Mrwebi’s removal from office, he had already referred the dispute concerning his suspension to the bargaining council for adjudication.

[3] The dispute came before the arbitrator on 19 September 2019. The applicant disputed the bargaining council’s jurisdiction to entertain the referral, among other grounds, on the basis that the applicant was not a party to the bargaining council.

[4] The arbitrator dismissed the point in limine and ruled that the bargaining council should set the matter down for an arbitration hearing. Without intending to any injustice to the fuller reasoning that appears from the ruling, the arbitrator’s reasoning was that the position of a special director is akin to that of the prosecutor, also appointed in terms of the NPA Act, and that prosecutors are entitled to refer disputes to the bargaining council; that Mrwebi was an employee at the time he referred the dispute to the bargaining council; that appointment by the president was not a limiting factor because ‘it is a known fact that Directors General of government departments are appointed by the President’ but that the council has jurisdiction over them; and that the NPA falls within the registered scope of the bargaining council. Finally, the arbitrator noted that Mrwebi had not disputed that the matter was moot because he had been dismissed, but that he had referred the unfair labour practice dispute to the bargaining council before his dismissal. On this basis, the arbitrator concluded that ‘I therefore agree with the employee that the dismissal issues should not be a limiting factor’.

[5] The applicant contends that the arbitrator committed reviewable errors when he made the finding that the bargaining council had jurisdiction to arbitrate the dispute. First, the applicant attacks the finding that Mrewbi’s employer was the NPA and not the President, in circumstances where the applicable legislative framework makes clear that it is the President who employs, suspends and dismisses special directors. In particular, the applicant submits that the ruling makes clear that the arbitrator failed to appreciate the sui generis nature of the employment of special directors at the NPA, and that discrete regulatory regime that governs their employment. Further, the applicant contends that the arbitrator failed to take into account the fact that the Presidency is not a party to the bargaining council and that the council therefore lacks jurisdiction in the present dispute. The applicant submits that the arbitrator failed to appreciate the distinction between prosecutors, special directors in the NPA and directors- general of government departments in relation to the regulation of their respective employment. In particular, the applicants contend that the arbitrator failed to appreciate the fact that the appointment of the public prosecutor is done by the national director of public prosecutions, unlike special directors in the NPA who are appointed by the President, in consultation with the minister and the national director of public prosecutions.

[6] When the matter was first called on 30 May 2023, Mrwebi appeared in person and advised that the union that had initiated the proceedings, the PSA, was no longer representing him, and that he wished to raise a number of preliminary points regarding the filing of the application. The matter was stood down to 13 June 2023 to enable an exchange of affidavits on those points. In essence Mrwebi contends that the applicant has failed to comply with the Practice Manual, in particular clauses 11.2.7 and 16. Clause 11.2.7 requires an applicant in a review application to ensure that all the necessary papers are filed within 12 months of the date of the launch of the application, excluding heads of argument, and that the registrar is informed in writing that the application is ready for allocation for hearing. In the event of non-compliance with this provision, the clause provides that the application will be archived and regarded as lapsed unless good cause is shown why the application should not be archived, or should be removed from the archive, as the case may be. Clause 16 requires that despite any other provisions in the manual, the registrar will archive the file, in the case of a review application, when a period of six months has elapsed without any steps taken by the applicant from the date of filing the application, or the date of the last process filed.

[7] The chronology relevant to the filing of the present application is the following. The notice of motion was filed on 19 December 2019. On 15 January 2020, the registrar notified the applicant that the record had been received and could be uplifted. On 7 February 2020, the applicant filed a notice in terms of rule 7A(6) for the purposes of finishing the respondents with a record of the proceedings under review. On the same date, 7 February 2020, the applicant filed a notice in terms of rule 7A(8)(b) indicating that it stood by the notice of motion. Four days prior, on 3 February 2020, the applicant filed the indexed and paginated record, within the time period prescribed by clause 11.2.2 of the Practice Manual. On 20 June 2020, the applicant filed its heads of argument. A notice to enroll the matter for hearing was sent on 12 February 2021.

[8] On 28 January 2022, a notice of set down was issued by the registrar. In terms of that notice, the parties were informed that the review had been set down for hearing on the opposed motion roll for 30 May 2023. The set down notice, issued in standard form, set out instructions for the filing of heads of argument in the pagination of document. At this point, the applicant had already filed its heads, as had the PSA on behalf of Mrwebi, on 25 June 2020. The set down notice required the applicant to prepare a bundle of indexed and paginated documents not less than 10 days prior to the hearing. The applicant had prepared and filed this bundle on 7 February 2020. A supplementary index and paginated bundle was filed on 24 March 2023, more than two months prior to the set down date of 30 May 2023.

[9] The applicant contends that it complied with the time periods established by the Practice Manual in every respect, but for the requirement in clause 11.2.7 that the registrar be informed in writing that the matter is ripe for allocation for hearing. Although that might

strictly result in the application being archived and regarded as lapsed, I am not persuaded that this is the consequence that should necessarily be visited on the applicant for that oversight. While it is correct that the Practice Manual is binding on parties and the court (see Macsteel Trading Wadeville v Van der Merwe NO & others (2019) 40 ILJ 798 (LAC)), the Practice Manual is not an end to itself, to be observed for its own sake. In relation to the Uniform Rules, it has been said more than once that the Rules exist for the court, not the court for the Rules (see, for example, Mynhardt v Mynhardt 1986(1) SA 456 (T)). What matters ultimately is that Rules and practice directives should be interpreted and applied in a spirit that will promote and achieve their objectives - in the present instance, the statutory imperative of expeditious dispute resolution.

[10] What the facts in the present instance disclose is that applicant acted in good faith and with due diligence. There is no prejudice to Mrwebi to allow the matter to proceed. On the contrary, an order to declare the matter archived would achieve no more than invite the applicant to seek to have the application reinstated in circumstances where having regard to all of the relevant facts and circumstances, its prospects of success would be substantial. The delay that would be occasioned is substantial – the applicant was suspended almost five years ago. It is not likely given the backlog in the opposed motion roll that the matter would come before court again in the next year or two. It is in both parties’ interests that the review be determined without further delay and for that reason, any oversight by the applicant in complying with the Practice Manual is condoned.

[11] To the extent that Mrwebi has raised as a preliminary issue what he terms ‘suspicions’ regarding the registrar’s

handling of the application, the conspiracy theory advanced by Mrwebi is no more than that. The long period of inactivity after the heads of argument were filed are better explained by the backlog in the enrolment of opposed motion proceedings to which I have referred. The notice of set down is a pro forma document issued by the registrar that may well not account for the fact that certain steps (e.g. the filing of heads of argument and the pagination and indexing of papers) may already have been implemented. There is nothing untoward in the format of the documents issued by the registrar, or their dates of issue. There is certainly no evidence to suggest that the registrar or any other party somehow manipulated proceedings to deliberately disadvantage or prejudice Mrwebi.

[12] Turning then to the merits of the application, the applicable test is one of correctness – the review court must determine objectively the existence of facts which would give the bargaining council jurisdiction to entertain the dispute referred to it (see SA Rugby Players Association & others v SA Rugby (Pty) Ltd & others (2008) 29 ILJ 2218 (LAC); De Milander v Member of the Executive Council for the Department of Finance: Eastern Cape & others (2013) 34 ILJ 1427 (LAC).) The court must thus determine the correctness of the arbitrator’s decision, with reference to the grounds of review.

[13] The parties’ submissions raise two issues for decision. The first is whether the application is moot (as Mrwebi contends), the second is whether the bargaining council has jurisdiction over persons engaged in the Presidency and the NPA.

[14] Mootness is when a matter no longer presents an existing live controversy and precludes courts from the inefficient utilisation of limited judicial resources by the granting of advisory opinions or abstract, hypothetical propositions of law. Having said that, mootness is not an absolute bar to the justiciability of a matter and a court has the discretionary power to entertain issues that are admittedly moot when the interests of justice so require (see Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Exportation and Exploitation SOC Limited and Others 2020 (4) SA 409 (CC) at paras 47-48)).

[15] In the present instance, it will be recalled that Mrwebi was suspended in 2018 and dismissed in 2019 after the referral of his unfair

suspension dispute to the bargaining council. Mrwebi states that the present application is moot, given that any decision by this court will have no practical effect or value. This submission is predicated on the institution of proceedings by Mrwebi in this court under case number JS 923/2021, in which he avers that matters relating to his suspension and dismissal are pending. The papers in these proceedings are not before the court, and it is difficult in these circumstances to appreciate the extent, if any, to which the present proceedings may have been overtaken by events. But the fact remains that for the purposes of these proceedings, Mrwebi does not intend to pursue any claim pursuant to his referral to the bargaining council. In particular, given the fact of his subsequent dismissal, Mrwebi does not seek to have his suspension lifted, the primary relief that he originally sought. In these circumstances, there cannot be said to be a live controversy in relation to the arbitration proceedings that are the subject of review. Put another way, the relief sought has been overtaken by events and is now entirely academic. The application stands to be dismissed on that basis.

[16] In so far as the applicant expressed concern regarding the status of the arbitrator’s ruling should the review application be moot, the arbitrator’s reasoning is particularly unpersuasive, comprising as it does of a series of non sequiturs and inapt analogies that the arbitrator sought to draw. Given the conclusion to which I have come, it is not necessary for me to make any finding in relation to the merits of the arbitrator’s ruling, but it should be recalled that a ruling of this nature has no value as precedent and that ultimately, each dispute stands to be determined on the basis of its own facts.

[17] Finally, in relation to costs, this court has a broad discretion in terms of section 162 to make orders for costs according to the requirements of the law and fairness. Where a trade union and an employer party are in dispute, the court ordinarily refrains from making an order for costs. In the present instance, as I have indicated, the PSA acted on behalf of Mrwebi, at least until

the hearing on 30 May 2023 when Mrwebi appeared and advised the court that the union no longer acted on his behalf. What occasioned the postponement then was an indulgence sought by Mrwebi to raise matters that ought to have been raised by his union at an earlier stage. The applicant ought not in fairness to be held liable for the costs of proceedings on 30 May 2023 or the proceedings on 13 June 2023. The requirements of the law and fairness are best satisfied by each party paying its own costs.

I make the following order:

1. The application is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the applicant: Adv N Rajab – Budlender SC Instructed by: State Attorney For the third respondent: In person