PSA obo Proctor v Department of Water Affairs & Forestry and Others (J1562/2017) [2022] ZALCJHB 175 (7 July 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No. J1562/2017

In the matter between:

PSA obo MALCOLM NEIL PROCTER

Applicant

and

DEPARTMENT OF WATER AFFAIRS & FORESTRY First Respondent

MINISTER B. SONJICA: DEPARTMENT OF

Second Respondent

WATER AFFAIRS & FORESTRY

MR MOSES KHANGALE

Third Respondent

MS TAMMI GUGUSHE

Fourth Respondent

MR LIVHU NEMOKHONDO

Fifth Respondent

Heard: 29 April 2022

Delivered: 07 July 2022

Summary: Application in terms of section 158(1)(c) of the Labour Relations Act, 1996, to have an arbitration award made an order of court and review application dismissed. Principles in SG Bulk, a division of Super Group Africa (Pty) Ltd v Khumalo and another [2021] JOL 50273 (LC) restated. Review application not before the Court, therefore the Court lacking jurisdiction to dismiss the review application. Change in name of employer, and employer’s failure to defend the matter while being well aware of the litigation, and electing for another department to defend the matter constituting a contrivance and the employer is formally joined as a party in the discretion of the Court.

JUDGMENT

GOVENDER, AJ

Introduction

[1] The application before the Court is one brought in section 158(1)(c) of the Labour Relations Act[1] (LRA) to make an arbitration award dated 4 March 2011 granted under the auspices of the General Public Sectoral Bargaining Council an order of court and to have the review application under case number JR1122/2011 dated 25 May 2011 dismissed with costs.

[2] Immediately, the date of the arbitration award (4 March 2011) and the date that the review application was brought (5 May 2011) are alarming to say the least, given that some 11 years have since passed.

Hearing on 13 April 2022

[3] The matter was set down for hearing on 13 April 2022 and at the outset I asked the parties whether they intended to persist with opposing the respective late filings of the answering affidavit and replying affidavit. Since the parties indicated that this was not an issue that they had taken instructions on or spoken to each other about, I adjourned the matter briefly for this purpose. When the hearing resumed, the respective representatives indicated that they did not oppose the respective condonation applications.

[4] Counsel for the Department of Water and Sanitation, Mr Tjiana indicated that he had certain preliminary issues to raise which were:

4.1 that he had not received a copy of the applicant’s heads of argument;

4.2 he had not received a paginated pleadings bundle, which is why there were gaps in his referencing in his heads of argument; and

4.3 there was a further issue concerning why the Department of Water and Sanitation was before the Court.

[5] The Court enquired as to whether Mr Tjiana required a further adjournment to obtain these documents, whether he was seeking a postponement or what relief specifically was sought from the Court in this regard.

[6] Mr Tjiana ultimately expressed the intention to bring a postponement application to which the Court again enquired whether he had discussed this with the applicant’s counsel, Mr Van Den Berg. Mr Tjiana indicated that he had not and expressed an intention to do so. The Court accordingly adjourned the matter again for this purpose.

[7] When the proceedings resumed the parties approached the Court with a proposed draft order, with the Department of Water and Sanitation tendering the wasted costs occasioned by the postponement and with a rather indulgent proposed procedural timeline on the future conduct of the matter, including that the applicant would provide, inter alia, an indexed and paginated pleadings bundle by 28 April 2022; the applicant would serve and file its supplementary heads of argument by no later than 6 May 2022; and that the respondent would serve and file its supplementary heads of argument by no later than 13 May 2022.

[8] I found the proposal nonsensical, not only from a timing perspective, but also when the seminal issue which Mr Tjiana raised was him not having a copy of the applicant’s heads of argument and the pleadings bundle, which according to him, rendered it impossible for him to follow the proceedings, but there being no mention of the exchange of the said heads of argument in the proposed draft order.

[9] I advised the parties that I took a dim view of the time that had already lapsed in the matter and that while I was prepared to accept the parties’ postponement by agreement, I was not amenable to the procedural timeline prepared and that I wanted to hear the matter in due course, having already read the papers and applied my mind.

[10] After adjourning the matter for about the third time to consider dates for the hearing of the matter, I issued the following order:

10.1 The matter was postponed by agreement between the parties with the Department of Water and Sanitation tendering the wasted costs occasioned by the postponement;

10.2 The following procedural timeline for the future conduct of the matter was endorsed:

10.2.1 The applicant would provide an indexed and paginated pleadings bundle and a copy of his heads of argument to the legal representatives of the Department of Water and Sanitation by no later than 15 April 2022;

10.2.2 The Department of Water and Sanitation would provide a copy of its supplemented heads of argument, bearing reference to the pleadings by no later than 20 April 2020; and

10.2.3 The matter would be heard by me on 29 April 2022 at 10h00.

[11] After handing down the order, I cautioned the parties on finalising the hearing of the matter and advised the parties that the Court file would remain behind, in the event that either of the parties wanted to make a copy of the indexed and paginated pleadings bundle, which was readily available.

[12] The matter was then heard on 29 April 2022.

The section 158(1)(c) application

[13] This application was brought on about 3 October 2017. The application warrants some interrogation. The prayers have been set out above.

[14] While the notice of motion records that the affidavit of Mr Charles Miles Dell, together with annexures, would be used in support of the application, Mr Dell being an attorney at the applicant’s erstwhile attorneys of record, Lovius Block Attorneys, the actual affidavit is deposed by a Ms Linda Patricia Young (Ms Young), a legal secretary employed at Lovius Block Attorneys.

[15] The founding affidavit deposed to by Ms Young is a mere six paragraphs, paragraphs 5 and 6 of which warrant quotation:

“5.

On 25 May 2011 the State Attorneys on behalf of the Respondents lodged a review application at the Labour Court under case number JR1122/11. The record was duly served and filed but thereafter the matter was not taken forward by the Respondents’ attorneys of record. Upon enquiring as to what is transpiring in the matter was advised that the attorney who handled the matter left the employ of the State Attorney’s office and the file was never allocated to another attorney.

6.

To date however the Respondents have failed and/or refused to implement the arbitration award and an order is therefore prayed for as set out in the notice of motion to which this affidavit is annexed.”

[16] Other than the date upon which the review application was brought, there are no further details as to the date that the record was filed nor concerning Ms Young’s enquiries with the State Attorney concerning the progress of the matter.

[17] On 19 December 2018 the State Attorney, care of Mr Hongo, entered a notice of opposition on behalf of the “respondents”.

[18] On about 11 January 2019 the first and second respondents filed an answering affidavit. The answering affidavit is deposed to by Ms Mihloti Josephine Malandula (Ms Malandula), an erstwhile Acting Chief Director of the Department of Water Sanitation. The answering affidavit incorporates an application for condonation concerning the late filing of Ms Malandula’s answering affidavit. Ms Malandula’s affidavit conveys the following:

18.1 She states that the Department of Water Affairs and Forestry had during about 2009/2010 been divided into the Department of Water and Sanitation and the Department of Agriculture, Forestry and Fisheries (DAFF), the latter Department being the applicant’s employer[2];

18.2 When the dispute arose during about 2009 the applicant was employed by the Department of Water Affairs and Forestry, but by the time that the arbitration award was issued, the applicant had been relocated to DAFF, which is the Department that brought the review application to set aside the arbitration award on 25 May 2011[3];

18.3 Ms Malandula further states that when she received the notice of motion and founding affidavit concerning the current application in June 2018 from Mr Hongo of the State Attorney, she immediately forwarded this to the Employee Relations Department, who in turn said that the matter should be referred to DAFF[4];

18.4 However, on engaging with DAFF, Ms Malandula was told by the said Department’s legal advisors that the matter belonged to the Department of Water and Sanitation, because the dispute arose when the applicant was still employed by the latter department[5]. While she was surprised by the turn of events, she searched for the review application to get a better understanding as to what has transpired[6];

18.5 Ms Malandula also makes mention of Mr Hongo, the State Attorney, being swamped with work and that she was too, as part of the submission

that neither party was in wilful default and that the delay was attributable to unforeseen circumstances in the context of seeking

condonation[7];

18.6 Most interestingly, when grappling with the merits of the matter, Ms Malandula states that the application is defective because the first and second respondents cited by the applicant, namely “the Department of Water Affairs and Forestry” and “Minister B Sonjica: Department of Water Affairs and Forestry” did not exist as at the date that the application was initiated, 16 October 2017;

18.7 This is quite a revelation given that earlier on in her affidavit Ms Malandula concedes that there was a name change of the Departments concerned and that the applicant became an employee of DAFF.

[19] Interestingly, the review application was brought by the Minister of Water Affairs as the first applicant and the Minister of Agriculture, Forestry and Fisheries as the second applicant and not solely by DAFF as contended by Ms Malandula. Paragraphs 11 and 15 of the founding affidavit in the review application bear emphasis and state as follows:

“11. The aforesaid award was served on the first applicant because at the time when the dispute between the first applicant and the third respondent arose, the employee (third respondent) was still in the employee of the first applicant. The third respondent is, however, now in the employ of the second applicant as the division which he is attached (Forestry division) is now part and parcel of the second applicant.

15. On or by the end of April 2011, the legal division of the second applicant concluded considering the issue of locus standi and advised me that the award affected both the two departments. Immediately thereafter I instructed the State Attorney to brief counsel in order to prepare the necessary review papers.”

[20] In support of Ms Malandula’s opposing affidavit, are confirmatory affidavits deposed by Mr Hongo of the State Attorney and Ms Kedibone Prudence Mhlaba (Ms Mhlaba) the Senior Legal Administration Officer of the Department of DAFF.

[21] Both the Ministries referred to above had brought the review application, there can be no doubt as to whom the employer is at present, and the confirmatory affidavit by Ms Mhlaba demonstrates that DAFF was well aware of this application, but chose to not enter the fray.

[22] It appears that the application was set down for hearing on 5 February 2019 before La Grange J and that the matter was removed from the roll, with the first and second respondents being jointly and severally liable for the wasted costs of the day.

[23] In addition to the court order per La Grange J, there is also a letter from the office of the State Attorney in the Court file dated 28 January 2019 wherein the State Attorney per Mr Hongo, agrees that the matter be removed from the roll and tenders the applicant’s wasted costs.

[24] At this juncture it is safe to state that there appears to have been no dispute concerning who the applicant’s employer was, regardless of the old citation. I will return to this later in this judgement.

[25] On 22 February 2019 the applicant filed a replying affidavit, this time being the deponent thereto. He records in the opening paragraph of his replying affidavit that he is employed at DAFF in Bloemfontein

and he attaches a letter from a Mr MC Green, the Principal Human Resources Officer confirming that the applicant is currently employed

by DAFF as a Deputy Director: Forestry Regulations, among other things. The applicant also attached a copy of his salary advice / payslip which confirms that he is employed by DAFF.

[26] I have dealt above with the fact that it is clear that the applicant is employed by DAFF following the renaming and reconstitution of the Department of Water and Sanitation and DAFF.

[27] As an aside, DAFF has during about 2021 been renamed again and is now the Department of Forestry Fisheries and Environment (DFFE)[8].

[28] The applicant similarly seeks condonation for the late filing of his replying affidavit, which appears to have been delayed as a result of not only the answering affidavit deposed to by Ms Malandula being late, but also that he appointed a firm of attorneys in Johannesburg to search for the review file, which had been archived as early as 24 November 2017 which contributed to the delay.

[29] As stated, concerning the alleged confusion between the proper names of the respondents, the applicant attached the letter and salary advice referred to above and also states that the change of names was

not brought to the attention of the parties nor the Panellist of the arbitration at the time.

[30] The applicant further records that the review application was opposed on 21 June 2011 and that by June 2018, the Court file had already been archived without an application to retrieve the file from the archives. The applicant also states that the respondents’ internal issues should not prejudice him and that the respective

workloads of the respondents and their attorneys is not a matter that should interfere with the rules of Court and reasonable time frames.

[31] In essence, the applicant states that his application in terms of section 158(1)(c) was served on the respondents on about October 2017. In addition, the applicant states that there are no prospects of success concerning the review application since it was archived and has not been retrieved with the requisite application.

[32] While the applicant stated that he would bring an application to rectify the names of the parties, this has not been done. I will return to whether an application of this nature was necessary.

[33] From the attachments to the replying affidavit, it is clear that Ms Young of the applicant’s erstwhile attorneys was involved in the service of the replying affidavit and subsequent correspondence with Mr Hongo of the State Attorney.

[34] I now turn to deal with the relevant legal principles.

Legal Principles

Standing of Ms Young to have deposed to the founding papers

[35] While this was not a pointed issue raised in opposition, it is clear that the ultimate deponent to the founding affidavit was not the person as intended in the notice of motion, but nothing really turns on this.

[36] In addition, a distinction is to be drawn between a.) the legal standing of the party bringing an application; b.) the basis for deposing to an affidavit and c.) the authority to represent a party. Legal standing is guided by whether a person has a direct and substantial interest in the subject matter.

[37] Concerning the issue of authority to depose to an affidavit, in Ganes and Another v Telecom Namibia Ltd[9] the Court held that a deponent in motion proceedings need not be authorised by the party concerned to depose to the affidavit. It is the institution of the proceedings and the prosecution thereof which must be authorised.

[38] The Supreme Court of Appeal recently in Masako v Masako and Another[10] had occasioned to consider a matter where an attorney, Ms Moduka, deposed to a rescission application because the facts that gave rise to the need for a rescission application lay squarely within her knowledge as the attorney who was dealing with the matter. The Court found that it stood to reason that a deponent to an affidavit is a witness who states under oath facts which lie within her personal knowledge. She swears and affirms to the truthfulness of such statements. She is no different from the witness who testifies orally, on oath or affirmation, regarding events within her knowledge. Thus, when Ms Moduka deposed to the founding affidavit,

she needed no authorisation from her client. In any event, the appellant had clearly indicated that she had given Ms Moduka instructions to act on her behalf in all proceedings.

[39] When considering the above as against Ms Young being the deponent, it is quite clear that she similarly appears to have been a witness as to the review application not been prosecuted diligently by the State

Attorney, even though she does not provide the specifics concerning her enquiries as quoted above.

[40] In any event, Ms Young’s personal involvement in the matter is borne out by the correspondence attached to the replying affidavit, and any questions concerning Ms Young deposing to the initial founding affidavit are dispensed with by virtue of the applicant being the deponent to the replying affidavit.

Condonation applications

[41] As stated above, both parties did not oppose the respective condonation applications concerning the late filing of their respective

affidavits. This does not however deprive the Court of its overarching discretion in this regard. In applying the principles in

Melane v Santam Insurance Co Ltd[11] the following is clear:

41.1 Concerning the late filing of the Department of Water and Sanitisation’s answering affidavit, while the delay was lengthy, the reason for the delay somewhat convincing, there being some prejudice to the applicant, it is in the interests of the justice that the late filing of the answering affidavit be condoned. The version presented in the answering affidavit is important in considering the matter;

41.2 Concerning the late filing of the applicant’s replying affidavit, the delay was minimal, the explanation for the delay was reasonable, there is limited prejudice, but ultimately, it is in the interests of justice that condonation be granted.

Whether the correct employer is before the Court

[42] Mr Tjiana submitted that the Department of Water Affairs was before the Court in an abundance of caution. This appears to be at odds with the opposing affidavit which recorded that this Department was before

the Court because DAFF had passed the buck.

[43] What was concerning was that Mr Tjiana went further to make submissions in DAFF’s defence that since it was the employer and was not before the Court, a finding could not be made against DAFF.

[44] A submission of this nature beggars belief, particularly when DAFF was aware of the application as per the confirmatory affidavit referred to above. It unfortunately appears that this was a contrivance, i.e. DAFF not entering the fray and the Department of Water Affairs and sanitation coming to Court and saying that it is not the employer, but that the Court cannot find against the employer, DAFF, since the employer is not before the Court.

[45] All of this because of misplaced reliance on the Department changing names and being reconstituted into two departments.

[46] It bears emphasis that Minister Sonjica was the Minister of Water an Environmental Affairs from about May 2009 to November 2010. The Minister has obviously changed and the Ministry has changed names, but it cannot be said that the Minister and Ministry don’t exist. This is a mischievous assertion.

[47] In Footware Trading CC v Mdlalose[12] the Court held as follows:

‘The abuse of juristic personality occurs too frequently for comfort and many epithets have been used to describe the abuse against which the courts have tried to protect third parties, namely puppets, shams, masks and alter ego. However, the general principle underlying this aspect of the law of lifting the veil is that when the corporation is the mere alter ego of business conduit of a person, it may be disregarded. The lifting of the veil is normally reserved for instances where the shareholders or individuals hiding behind the corporate veil are sought to be made responsible. I do not see why it should not also apply where companies and closed corporations are juggled around like puppets to the bidding of the puppet master.

....

I therefore conclude that Fila and Footwear were separate legal personalities, but the effect of the mechanisation of Kotkin and his staff were such that they were in effect joint or co-employers. To the extent that the appellant would like it otherwise, it is estopped from denying that fact by virtue of the numerous representations that were made that either Footwear was the employer or Footwear and Fila were the joined employers. The principles of estoppel are well established in our law. In Alfred McAlpine and Son (Pty) Ltd v Transvaal Provincial Administration 1977(4) SA 310 (T) the court at 335A said that estoppel arises where there has been some representation of fact upon the faith of which the other party acted to his prejudice or detriment.’

[48] In any event the distinguishing factor in this matter being that the applicant is in any event an employee of the State.

[49] Wessels J in Whittaker v Roos and another; Morant v Roos and another held as follows in the context of granting amendments[13]:

‘This Court has the greatest latitude in granting amendments, and it is very necessary that it should have. The object of the Court is to do justice between the parties. It is not a game we are playing, in which, if some mistake is made, the forfeit is claimed. We are here for the purpose of seeing that we have a true account of what actually took place, and we are not going to give a decision upon what we know to be wrong facts. It is presumed that when a defendant pleads to a declaration he knows what he is doing, and that, when there is a certain allegation in the declaration, he knows that he ought to deny it, and that, if he does not do so, he is taken to admit it. But we all know, at the same time, that mistakes are made in pleadings, and it would be a very grave injustice, if for a slip of the pen, or error of judgment, or the misreading of a paragraph in pleadings by counsel, litigants were to be mulcted in heavy costs. That would be a gross scandal. Therefore, the Court will not look to technicalities, but will see what the real position is between the parties.'

[50] The Court is well aware that an amendment has not been sought, but the principles enunciated above are apposite. The Court also has an inherent discretion to correct the citation of the parties, particularly given the facts of this matter.

[51] Even if the Court were to accept that the Department of Water and Sanitation entered the fray in an abundance of caution, this would not necessarily vest this Department with locus standi to oppose the application in terms of rule 11 of the Rules for the Conduct of Proceedings in the Labour Court (the Rules), in the

circumstances where it disavows being the employer. On the best case scenario for the Department of Water and Sanitation, it is not the applicant’s employer and it should not be before the Court.

[52] But unfortunately, the submissions made by Mr Tjiana demonstrate an opportunistic approach orchestrated to deprive the applicant of the relief sought, premised on “the wrong party being cited” on the papers.

[53] There is no confusion concerning who the parties are regardless of the applicant citing the former name of his employer prior to its reconstitution. Any other interpretation would be opportunistic and would offend the interests of justice.

[54] As such the Court is engaging its inherent discretion to grant further and alternative relief by formally joining the DFFE to the proceedings, even though in substance, they have been party to the proceedings, from the side lines.

Relief sought by the applicant

[55] The applicant is not entitled to an order in terms of section 158(1)(c) in the event that a review application is pending[14]. This begs the question, is the review application pending?

[56] It is common cause that the review application was initiated in 2011, was archived in November 2017 and that there has not been an application to retrieve the application from the archive or to reinstate the review, premised on what is recorded in the applicant’s replying affidavit.

[57] In SG Bulk, a Division of Supergroup Africa (Pty) Ltd v Khumalo and another[15] the Court per Moshoana J departed from the judgment in Mthembu v CCMA and Others[16] in the context of a rule 11 application which was to dismiss both an action and a review application.

[58] Clause 11.2.3 of the Labour Court Practice Manual states that an application that was archived would be regarded as lapsed. Clause 16.3 of the Labour Court Practice Manual provides that the consequences of an archived file are the same as if the matter had been dismissed.

[59] Ultimately, Moshoana J found that until an order is issued reinstating a withdrawn or lapsed review, the Labour Court lacks jurisdiction to entertain a rule 11 application. The second prayer sought by the applicant is akin to a rule 11 application in this context.

[60] In the circumstances where the Ministries have not brought an application to reinstate the clearly lapsed review application, the Court lacks the jurisdiction to entertain prayer two of the notice of motion that the review application under case no. JR1122/11 dated 25 May 2011 be dismissed with costs, because there is no review application before the Court, since it is deemed to have lapsed in terms of the Labour Court Practice Manual. As such the Court lacks the jurisdiction to grant this prayer.

[61] In terms of prayer one where the applicant asks the Court to make the arbitration award dated 4 March 2011 under case no. GPBC202/2010 an order of court in terms of 158(1)(c), I am satisfied that the applicant has made out a case for the relief sought.

Costs

[62] It is trite that in labour matters that costs do not follow the result. In order for costs to be granted against a party the Court’s judicial exercise of its discretion to award costs must be engaged, there must be a justification from the departure of the ordinary rule that costs should not be ordered and the dictates of fairness in terms of section 162 of the LRA and the constitutional and statutory imperatives that underpin it, must be considered[17].

[63] The fact that the review application was initiated some 11 years ago by the respective Ministries and has been marred by inactivity since, the attempted disownment of responsibility by DAFF/ DFFE in trying to shunt its responsibilities on the Department of Water Affairs and Sanitation all point to the poor conduct of the matter by the State.

[64] The Department of Water and Sanitisation are not entirely innocent in this matter. They have advanced the disingenuous preliminary point that the application was deficient by virtue of the incorrect parties

being cited, knowing full well the history of the name change and division of the respective departments.

[65] This leads to the undeniable conclusion that DAFF/ DFFE and the Department of Water and Sanitisation have left much to be desired in the manner of litigation and have prejudiced the applicant in the extreme. It is worth mentioning that all of this was done to deprive the applicant of compensation of four months awarded for an unfair labour practice in 2011. By all accounts both Departments’ conduct in this regard is worthy of a costs order.

[66] As such costs are awarded in favour of the applicant and are to be borne equally by the Department of Water and Sanitisation and DAFF, the one paying the other to be absolved.

[67] The following order is accordingly made:

Order

1. The DFFE is formally joined to the proceedings as the sixth respondent.

2. The arbitration award dated 4 March 2011 under case no. GPBC 202/10

is made an order of court and is enforceable as against the DFFE as employer.

3. The Department of Water and Sanitation and the DFFE are to bear the

costs of the application jointly, the one paying the other to be absolved.

T. Govender

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicant: Mr Van Den Berg

Instructed by:

PGMO Attorneys Inc

For the respondent: Mr Tjiana

Instructed by: State Attorney

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

[2] AA, paras 2.4 and 2.5

[3] AA, paras 2.6 and 2.7

[4] AA, paras 2.10 and 2.11

[5] AA, para 2.12

[6] AA, para 2.13

[7] AA, paras 2.15 and 2.16

[8] For the sake of consistency, DAFF is referred to despite the name change to DFFE, save for at the end of the judgment.

[9] 2004 (3) SA 615 (SCA).

[10] [2021] JOL 51783 (SCA).

[11] 1962 (4) SA 531 (A).

[12] (2005) 26 ILJ 443 (LAC) at para 34 to 39.

[13] 1911 TPD 1092 at 1102. See also: Rosenberg v Bitcom 1935 WLD 115 at 117.

[14] See: Gauteng Department of Education v Saunders [2015] 12 BLLR 1187 (LAC).

[15] [2021] JOL 50273 (LC).

[16] (2020) 41 ILJ 1168 (LC).

[17] Union For Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and Others (2021) 42 ILJ 2371 (CC), specifically at paragraph 35, read with Goba v Rand West City Local Municipality and Others [2021] ZALCJHB at 301 (20 September 2021), specifically at paragraph 30 and 31.