PSA obo Ngobeni v Minister of Home Affairs (JR2826/18) [2022] ZALCJHB 185 (13 July 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR2826/18

In the matter between:

PSA O.B.O GR NGOBENI

Applicant

and

MINISTER OF HOME AFFAIRS

Respondent

Heard: 8 July 2022

Delivered: 13 July 2022 (This judgment was handed down electronically by emailing a copy to the parties. The 13 July 2022 is deemed to be the date of delivery of this judgment).

Summary: Rescission application in terms of section 165 of LRA. Order erroneously sought in the absence of the applicant. Court can of its own accord grant application where it is apparent that reviewing court had no jurisdiction due to late delivery of review and absence of application for condonation.

JUDGMENT

K. NAIDOO AJ

Introduction

[1] On 26 November 2019 this court, per Conradie AJ, issued an order in terms of which the application by the respondent in the present application, the Department of Home Affairs, to review and set aside an arbitration award of the Commission for Conciliation, Mediation and Arbitration (CCMA), was granted.

[2] Pursuant to that order, the court proceeded to substitute the decision of the CCMA with an order declaring the dismissal of the applicant employee, Mr GR Ngobeni, to be substantively fair. Those orders were granted in the absence of the applicant and the trade union representing her at the time, the Public Servants Association (PSA).

[3] The present application before me is one in which the applicant seeks to rescind the decision of Conradie AJ in this Court. The application is brought in terms of rule 16A(1)(b) of the Rules for the Conduct of Proceedings in the Labour Court (the Rules).

Condonation

[4] Before dealing with the merits of the rescission application, I must first deal with two applications for condonation that are also before me. The first is brought by the applicant for the late delivery of the rescission application, approximately 47 days outside of the time-period prescribed by rule 16A(2)(b). The explanation tendered by the applicant is essentially that despite several unsuccessful attempts to follow up with his erstwhile representatives, the PSA, on the status of the rescission application, he eventually decided to pursue the matter on his own and appoint his current attorneys of record to bring the rescission application on his behalf. This he did on or about 25 May 2020. Thereafter, the matter proceeded with sufficient urgency and the application was eventually delivered on 3 June 2020, some nine days later. Though the delay in this regard is not insignificant, I am satisfied that the employee has tendered a reasonable explanation for the delay. I am therefore inclined to grant condonation in this respect.

[5] The second is an application for condonation brought by the respondent for the late delivery of its answering affidavit in the rescission application. Though the respondent suggests in its papers that this is a delay of a mere ten days, it appears that the affidavit was only delivered on 25 August 2020, some 53 days after the application was served on the respondent. The explanation tendered by the respondent is deficient in several respects and there are significant periods that are unexplained. It is however unopposed and during the hearing before me, counsel for the applicant indicated that the applicant was prepared to concede to this application. I am therefore also inclined to grant this application for condonation in the interests of justice.

Rescission

[6] I turn then to the merits of the rescission application itself. Given that the primary basis upon which the application is founded is that the order of Conradie AJ was granted in the absence of the applicant, a large part of the founding papers is devoted to the circumstances that led, firstly, to the engagements between the employee and the PSA relating to the notice of set down, secondly, to the non-appearance of the applicant or his representative in court on 26 November 2019, and ultimately to the applicant’s prospects of success in the review application. To this end, the applicant has sought to demonstrate good cause for the granting of the application for rescission.

[7] There is, however, a further issue that is raised in the papers upon which this application can be easily determined. The applicant states that the respondent’s review application was launched on or about 15 February 2019. The arbitration award is dated 1 October 2018. The time-period prescribed by section 145(1)(a) of the Labour Relations Act[1] (LRA) within which to bring the review application is six weeks. The application appears therefore to have been brought approximately three months outside of this period.

[8] This is addressed in paragraph 10 of the applicant’s founding affidavit in the rescission application in which the averment is made that no application for condonation has been brought for this delay. The applicant states further that had this information been placed before Conradie AJ on 26 November 2019, the court would not have heard the application at all.

[9] The respondent has delivered an answering affidavit in the rescission application. In its answer to paragraph 10, the deponent states simply that if the applicant wished to pursue its rescission application on the basis of the absence of the condonation application, he ought to have brought the rescission application in terms of rule 16A(1)(a) of the Rules. The respondent states further at paragraph 19.4 that “I am advised and submit with respect that the applicant is not being candid with the above Honourable Court especially by not stating the date upon which he became aware of the review application being launched”.

[10] That is the sum total of the respondent’s response in this regard. It has therefore not addressed at all the question of whether the review application was indeed delivered outside of the required time-period or whether an application for condonation was brought.

[11] I have considered the papers in the review application itself. On the face of it, it does appear that the review was launched only in February 2019, some three months outside of the required six-week period prescribed by section 145(1)(a) of the LRA. There is no application for condonation. During the hearing of this application, counsel for the respondent stated that he had no knowledge of whether an application for condonation had indeed been delivered or whether

its absence was brought to the attention of Conradie AJ on 26 November 2019.

[12] Section 165(a) of the LRA provides for this court, either of its own accord or on application by an affected party, to rescind an order erroneously sought or granted in the absence of any party affected by

that order. It is clear therefore that the question of condonation for the late delivery of the review application is pertinent to the determination of whether the order of Conradie AJ should be rescinded, regardless of the specific Rule under which the applicant

has chosen to bring this application.

[13] In F & J Electrical CC v Metal and Electrical Workers Union on behalf of Mashatola and Others,[2] Zondo J (as he then was) stated the following:

‘[27] A party may have an order of the Labour Court rescinded under section 165(a) if it is shown that the order was erroneously sought or granted in the absence of that party. Whether the court grants a rescission application under this provision does not depend upon the applicant showing good or sufficient cause. It is simply enough if the order was erroneously sought or granted in the absence of that party. That is also the position under rule 42(1)(a) of the Uniform Rules of Court. In respect of rule 42(1)(a) this was held to be the position by a full bench in Tshabalala and another v Peer. Both the Supreme Court of Appeal and this court have also made this point. The court may even rescind or vary its order on its own accord under this provision.’

[14] This application can therefore be determined without considering whether the applicant has shown good cause. Under section 165(a) of the LRA, it is in the present circumstances simply a question of whether the absence of the condonation application was brought to the attention of Conradie AJ. By all accounts, it had not. In the absence of an application for condonation, the court would not have had the jurisdiction to adjudicate the review application and make the orders that it did on 26 November 2019. The delay was therefore a material factor that ought to have been brought to the court’s attention and, had it been, would not have resulted in the court proceeding to adjudicate the review application.[3]

[15] In my view therefore, this is sufficient to find that the order handed down on 26 November 2019 was erroneously sought and/or granted in the absence of the applicant. It accordingly stands to be rescinded.

Costs

[16] Finally, on the question of costs, I am guided by the general approach in this Court that the ordinary rule of practice that costs follow the result does not apply to matters in this Court.[4] I see no reason to depart from this approach.

[17] In the result, the following order is made:

Order:

1. The applicant’s application for condonation for the late delivery of the rescission application is granted.

2. The respondent’s application for condonation for the late delivery of its answering affidavit in the rescission application is granted.

3. The default order granted by this court on 26 November 2019 under

case number JR2826/18 is rescinded.

4. There is no order as to costs.

K. Naidoo

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate Layne Quilliam

Instructed by: Ndebele Du Plessis Attorneys

For the Respondent: Advocate Ziphozihle Raqowa

Instructed by: The State

Attorney

[1] No. 66 of 1995, as amended.

[2] (2015) 36 ILJ 1189 (CC).

[3] See: Nyingwa v Moolman NO 1993 (2) SA 508 (Tk) at 510D–G and Occupiers, Berea v De Wet NO 2017 (5) SA 346 (CC).

[4] See: Zungu v Premier of the Province of KwaZulu-Natal and others 2018 (6) BCLR 686 (CC).