PSA obo Mokgaki v Department of Education: Gauteng Provincial Government and Others (J1447/13) [2014] ZALCJHB 305 (12 August 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

NOT REPORTABLE

CASE NO: J1447/13

In the matter between:

PSA obo MAIMANE ALFRED MOKGAKI Applicant

and

DEPARTMENT OF EDUCATION: GAUTENG First Respondent

PROVINCIAL GOVERNMENT

GENERAL PUBLIC SERVICES SECTORAL Second Respondent

BARGAINING COUNCIL

PEKALSKI, PGZ N.O. Third Respondent

Heard: 3 July 2014

Delivered: 12 August 2014

Summary: Application to dismiss a review application and make an arbitration award an order of court – considerations applicable similar to those which apply in the determination of applications for condonation – weighing all the factors together not in the interests of fairness and justice to grant the application – application dismissed.

BARNES, AJ

[1] This is an application in terms of Rule 11 of the rules of this Court for an order dismissing the First Respondent’s review application and making the arbitration award handed down by the Third Respondent an order of court. The First Respondent opposes the application.

[2] The First Respondent launched its review application on 30 January 2013. It was 29 days late and unaccompanied by an application for condonation. When by 25 March 2013 the First Respondent had taken no further steps in the matter, the Applicant’s attorney wrote to the First Respondent’s legal representative, the State Attorney, and enquired whether the First Respondent was still proceeding with its review application and, if so, when the record could be expected. The Applicant received no response to this

letter.

[3] On 27 March 2013 the First Respondent delivered an application for condonation for the late filing of its review application. Thereafter the First Respondent took no further steps in the matter.

[4] The Applicant’s attorney addressed letters to the State Attorney on 29 April 2013 and 14 June 2013 enquiring whether the First Respondent was proceeding with its review application and, if so, when the record could be expected. In its letter of 14 June 2013 the Applicant put the State Attorney on terms to deliver the record by 21 June 2013 failing which it gave notice of its intention to bring an application to dismiss the review application. The Applicant received no response to these letters.

[5] In its condonation application the First Respondent stated that, in an effort to expedite matters, it had written to the Second Respondent and requested it to despatch the record of the arbitration proceedings to the Labour Court.

[6] On 25 June 2013 the Applicant’s attorney made enquiries with the Second Respondent and was informed that it had received no such correspondence from the State Attorney and further that the First Respondent’s review application had not even been served on it.

[7] On 4 July 2013, the Applicant delivered its application to dismiss the First Respondent’s review application and to have the arbitration award made an order of court.

[8] On 29 August 2013 the First Respondent delivered its answering affidavit. The First Respondent stated that its review application had been handled by one Mr Phuroe, who had left the office of the State Attorney at the end of April 2013 and that the matter had fallen through the cracks as a result. As to the allegations that the State Attorney failed to serve the review application on the Second Respondent and failed to answer correspondence from the Applicant’s attorney, the First Respondent stated unsatisfactorily that it could not admit or deny these allegations.

[9] As stated above, the First Respondent’s answering affidavit was delivered in August 2013. This matter was heard on 3 July 2014, almost a year later. During this very lengthy period one would have expected the First Respondent either to have filed the record and delivered its Rule 7A(8) Notice, or to have delivered a supplementary affidavit explaining why it had not filed the record. The First Respondent did neither. Instead I was informed from the Bar that the First Respondent had not filed the record

because the recordings of the arbitration proceedings could not be found. This is unacceptable. If the First Respondent seeks to explain its conduct it is required to do so on affidavit.

[10] In the circumstances, the First Respondent has provided a wholly unsatisfactory explanation for its failure to prosecute its review application from January 2013 to August 2013. In respect of its inaction over the period from August 2013 to the present the First Respondent has provided no explanation at all.

[11] Notwithstanding this, Counsel for the First Respondent, Mr Pheto, urged me not to grant the application to dismiss. Mr Pheto stated that the First Respondent was prepared to give an undertaking that it would not seek to reconstruct the record, which would cause further delay, and was prepared to argue the review on the papers as they stand. The First Respondent further tendered the costs of the application to dismiss.

[12] The legal principles governing this court’s treatment of delays in the prosecution of review proceedings were set out by Van Niekerk J in the case of BP Southern Africa (Pty) Ltd v National Bargaining Council for the Chemical Industry & Others (2010) 31 ILJ 1337 (LC) as follows:

“From a policy perspective, there are two principal reasons why the court should have the power to dismiss a claim at the instance of an aggrieved party where the other has been guilty of unreasonable delay. In Radebe v Government of the Republic of South Africa 1995 (3) SA 787 (N), the court said the following:

“The first is that unreasonable delay may cause prejudice to other parties … The second reason is that it is both desirable and important that finality should be reached within a reasonable time in respect of judicial administrative decisions ….”

In Molala v Minister of Law & Order & Another 1993 (1) SA 673 (W), the High Court held that the approach to be followed was the one set out in Bernstein v Bernstein 1948 (2) SA 205 (W), where it was held that “it is in the discretion of the Court to allow proceedings to continue where there has been this lapse of time.” The Court referred with approval to Kuiper & others v Benson 1984 (1) SA 474 (W), where it was held that the court has “an inherent power to control its own proceedings and that accordingly the Court should assess whether the plaintiff is guilty of an abuse of process.”[1]

[13] In Moraka v National Bargaining Council for the Chemical Industry and Others (2011) 32 ILJ 667 (LC) La Grange J held that in addition to the common law prescripts governing unreasonable delay, the LRA requires that labour disputes be prosecuted expeditiously:

“… it is important to mention that one of the purposes of the LRA is to promote the effective resolution of disputes. A number of decisions

of this court have confirmed that part of what makes dispute resolution effective is that it is expeditious. There is thus a statutory policy imperative in addition to all the common law precepts which effectively enjoins a party pursuing its rights under the LRA not to allow the prosecution to lose momentum.”[2]

[14] In the same judgment, La Grange J held that the considerations applicable to the determination of an application to dismiss such as the present application, are similar to those which apply in the determination of applications for condonation:

“A party defending itself against an application to dismiss on account of undue delay is effectively asking the court to condone its dilatoriness and similar considerations which apply to the evaluation of condonation applications ought to be relevant in the evaluation of these applications.”[3]

[15] La Grange J held that while it is not always expressly articulated as a consideration in the case law, “in considering whether it would be in the interests of justice and fairness to dismiss the application, regard ought to be had to the merits of the review application.”[4] I agree.

[16] In the present case, the First Respondent has taken virtually no steps to prosecute its review application for a period of eighteen months. The First Respondent has provided a wholly unsatisfactory explanation for its inaction for only part of that period – from January 2013 to August 2013. For its inaction from August 2013 to the present the First Respondent has provided no explanation at all. Thus as far as the extent and unreasonableness of the delay are concerned, the First Respondent’s conduct is found seriously wanting.

[17] I now turn to consider the merits of the First Respondent’s review application. The dispute between the parties is one about promotion. The Applicant occupies the post of Senior Administrative Clerk in the Gauteng Department of Education. During 2009 the Applicant applied for the higher post of Chief Provisioning Clerk. The Applicant was short listed and interviewed. At some stage the Applicant learned that the interview panel had recommended him for the post. In the meantime however, the interview

file went missing and the post was re-advertised. The Applicant did not re-apply for the position and another candidate was appointed.

[18] The Applicant referred a dispute to the Second Respondent in which he contended that the First Respondent had committed an unfair labour practice in failing to promote him into the post. The Applicant sought retrospective instatement in the post.

[19] In his award, the Third Respondent found that the missing interview file was not sufficient reason to re-advertise the post. The Third Respondent found further that “the District Director ought to have taken note of the interview panel’s recommendation to appoint the Applicant.” The Third Respondent then concluded that the decision to re-advertise the post was unfair to the Applicant and ordered the First Respondent to promote the Applicant into the post with retrospective effect.

[20] The First Respondent seeks to review the award inter alia on the grounds that the Third Respondent exceeded his powers and that the award is one which a reasonable arbitrator could not have made. In my view, the prospects of success of the First Respondent’s review application are good.

[21] Weighing all these factors together I am not satisfied that it would be in the interests of fairness and justice to grant the application to dismiss. While the First Respondent has acted unreasonably, the delay has not been an inordinate one. The review application is serious and meritorious and it is in the interests of justice that it be ventilated before court. The First Respondent has undertaken to argue the review application on the papers as they stand and I am inclined to impose a time limit in relation to filing of the Rule 7A(8) Notice to ensure that there are no further delays in this regard.

[22] The First Respondent has tendered the costs of the application to dismiss. Had the First Respondent not done so the Court would have ordered it to pay the costs as a mark of displeasure at its conduct.

[23] I accordingly make the following order:

(a) The Applicant’s application in terms of Rule 11 to dismiss the First Respondent’s review application is dismissed.

(b) The First Respondent is ordered to deliver its Rule 7A(8) Notice within 30 days of the date hereof.

(c) The First Respondent is ordered to pay the Applicant’s costs.

________________

Acting Judge of the Labour Court

Appearances:

For the Applicant: Mr T Ntshebe

Instructed by:

Thabang Ntshebe Attorneys

For the First Respondent: Adv A M Pheko

Instructed by:

State Attorney

[1] At 2073 para 10.

[2] At para 18

[3] At para 20.

[4] At para 21.