Sihlali and Others v South African Local Government Bargaining Council and Others (JR1544/18) [2021] ZALCJHB 199 (29 July 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 1544/18

In the matter between:

SITHA SIHLALI AND 96

OTHERS Applicants

and

SOUTH

AFRICAN LOCAL GOVERNMENT

BARGAINING

COUNCIL First Respondent

RHULANI

MARIVATE N.O. Second Respondent

JOSEPH MPHAPHULI N.O.

Third Respondent

CITY

OF TSHWANE METROPOLITAN MUNICIPALITY Fourth Respondent

Heard: 09 July 2021 (Virtual Hearing)

Delivered: 29 July 2021 (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be 29th July 2021.)

JUDGMENT

MANCHU, AJ

Introduction

[1] In this review application the 97 applicants seek an order reviewing and setting aside rulings made by the second and third respondent.

[2] The first ruling, dated 22 June 2017, is a jurisdictional ruling by the second respondent in which he found that the applicants had failed to adduce evidence or proof that the applicants were gainfully employed by the fourth respondent, City of Tshwane Metropolitan Municipality (the City). The applicants seek an order condoning the late filing of a review against this ruling.

[3] In the second ruling, dated 24 April 2018, the third respondent dismissed the applicants’ application for condonation for their late referral.

[4] This application was before Court in November 2019, with no appearance or opposition from the City. On that occasion, the application was postponed because service on the City had not been properly effected. The applicants have filed a supplementary affidavit evidencing that service has now been properly effected.

[5] Until the morning of the hearing, the application remained unopposed. However, Mr Majang, from Majang Inc, appeared on behalf of the City and applied for a postponement of the matter. I dismissed his application in an ex-tempore judgment. Following dismissal of the postponement application, Mr Majang elected to remain and participate in the proceedings, limited to the applicant’s affidavits, which were the only affidavits before Court.

[6] The facts against which this application is brought are as follows.

Summary of facts

[7] The applicants were previously employed by a company known as Boffin and Fundi (Pty) Limited (Boffin). In 2014, Boffin were contracted by the City to provide credit control functions, i.e., metre reading, termination of services and other related services. The contract was for an initial period of six months and thereafter continued on a month-to-month basis for a period not exceeding 12 months.

[8] The applicants allege that they were absorbed by the City, after Boffin’s contract with the City was terminated. The City in turn disputes that it absorbed them and disputes that the applicants are their employees.

[9] On 30 March 2017, the applicants referred an unfair dismissal dispute to the first respondent. The matter was conciliated, with no resolution, and referred to arbitration before the second respondent.

[10] At the commencement of the arbitration hearing, the City raised a legal point challenging the first respondent’s jurisdiction to arbitrate the dispute, on the basis that the applicants were not employees of the City.

[11] The second respondent considered both parties submissions and upheld the jurisdictional challenge. In this respect, the second respondent found that the applicants failed to adduce evidence or proof that they were gainfully employed by the City. The second respondent’s ruling is dated 22 June 2017.

[12] The applicants did not challenge or seek to review the ruling by the second respondent. Instead, on 23 March 2018, the applicants chose to make another referral to the first respondent. The applicants sought condonation for their late referral, which the fourth respondent did not oppose.

[13] The condonation application was considered on the papers by the third respondent. The third respondent found that the application “is on the face of it extremely late and there was no attempt to explain the reason for the delay” and that the “failure to explain the reason for the delay alone disqualifies an application for condonation.”

[14] As mentioned above, the applicants seek an order reviewing and setting aside the rulings made by the second and third respondents. If I am to uphold their review, the applicants seek an order remitting the matter back to the first respondent for a hearing de novo before a commissioner other than the second and third respondents.

The 22 June 2017 jurisdiction ruling

Application for condonation

[15] The second respondent’s ruling is dated 22 June 2017, whereas the review application was instituted on 03 August 2018. The review application has therefore been brought over 13 months late. The reasons for late application can be summarized as follows:

15.1. The applicants were advised not to challenge the first ruling but to rather make another referral. At paragraph 22 of the founding affidavit, the deponent says that the applicants chose not to challenge this ruling in order not to unnecessarily burden the work of this Honourable Court, as well as saving valuable time and costs.

15.2. It was only after condonation for the second late referral was refused, that the applicants decided to bring this application.

[16] The fact that the applicants seek to review and set aside the first ruling shows that the applicants now question the wisdom of their previous decision to rather pursue another referral. However, before considering the merits of their review application, the first issue to address is whether the applicants have made out a case for condonation.

[17] The factors to be considered in condonation applications were set out by the Appellate Division (as it was then), in the well-known decision of Melane v Santam Insurance Co Ltd[1]. These factors have been repeated and applied in the Labour Court, including in the Labour Appeal Court (LAC) judgment of Foster v Stewart Scott Inc[2] where the LAC held:

“It is well settled that in considering applications for condonation the court has discretion, to be exercised judicially upon a consideration of all the facts. Relevant considerations may include the degree of non-compliance with the rules, the explanation therefor, the prospects of success on appeal, the importance of a case, the respondent’s interest in the finality of the judgment, the convenience of the court, and the avoidance of unnecessary delay in the administration of justice, but the list is not exhaustive. These factors are not individually decisive, but are interrelated and must be weighed one against the other. A slight delay and good explanation for the delay may help to compensate for prospects of success which are not strong. Conversely, very good prospects of success on appeal may compensate for an otherwise perhaps inadequate explanation and long delay.”

[18] Therefore, in considering whether to grant condonation, a Court is required to exercise a judicial discretion upon a consideration of all the facts. The list of considerations is not exhaustive, but includes a consideration of the degree of non-compliance with the rules and the explanation thereof, the applicant’s prospects of success, the importance of the case and prejudice to either parties.[3]

[19] These factors are not individually decisive, but are interrelated and must be weighed against each other.

[20] Ms Manentsa, appearing on behalf of the applicant, argued that the interests of justice weighed in favour of granting condonation. Even so, as pointed out by Mr Majang, the interests of justice are to be anchored by the facts and I am still guided by the factors mentioned in Melane v Santam, although not limited to them.[4]

[21] Although a delay of almost 13 months is excessive, the mere fact of the delay is not conclusive to whether condonation should be granted. This Court, in NUMSA and others v Eberspächer SA (Pty) Ltd[5] held that the granting of condonation is “a matter within the discretion of the court, which it must exercise judicially, and the mere fact that there was a long delay is not per se conclusive and dispositive of the question of whether or not the relief sought ought to be granted.”

[22] As explained above, the applicants delay was caused by the fact that the applicants had pursued the incorrect legal remedy.[6] The fact that the applicants continued to pursue a remedy, albeit an incorrect one, evidences that the applicants were not mala fide in their default. This is not a matter where the applicants sat back and delayed in pursuing their claim, instead its one where the applicants were active in challenging their dismissal, but they did so not in the appropriate way.

[23] The prospects of success are another factor weighing in favour of granting condonation. As explained more fully below, the second respondent’s jurisdictional ruling falls to reviewed and set aside. This therefore means that, for purposes of condonation, the applicants have prospects of success.

[24] Lastly the number of applicants, raises the importance of this application. The fact that this matter is an application involving a significant number of applicants is also a factor weighing in favour of granting condonation.

[25] In the premises, the reasonableness of the explanation for delay, the fact that the applicants were not mala in their default, the prospects of success and the importance of the application, are all factors that compel the granting of condonation. The application for condonation is therefore granted.

The review application against the 22 June 2017 ruling

[26] As mentioned above, in determining the City’s point in limine, the second respondent found that the applicants “failed to adduce evidence or proof that they were gainfully employed” by the City. The applicants argue that the second respondent committed a gross irregularity in making this award.

[27] In Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and others[7], the Court considered the review test postulated by Sidumo and another v Rustenburg Platinum Mines Ltd and others[8] and said:

“. . . Nothing said in Sidumo means that the CCMA’s arbitration award can no longer be reviewed on the grounds, for example, that the CCMA had no jurisdiction in a matter or any of the other grounds specified in section 145 of the Act. If the CCMA had no jurisdiction in a matter, the question of the reasonableness of its decision would not arise . . .”

[28] The applicants rely on the LAC judgment of Arends and others v South African Local Government Bargaining Council and others[9], where the LAC found that:

“The manner in which the jurisdictional point was raised and the speed with which the arbitrator handed down his award meant that the appellants were not afforded an opportunity to address him on the point. To that extent the arbitration proceedings were not conducted fairly. The enquiry was undertaken in the wrong manner with the result that the appellants were denied their right to have their case fully and fairly determined. The principal cause of that denial or failure was the inept manner in which the case was put before the arbitrator. Be that as it may, the undertaking of the enquiry in the wrong or in an unfair manner by an arbitrator is an irregularity in the conduct of the proceedings reviewable in terms of section 145 of the LRA as suffused by the constitutional right to administrative action that is lawful and procedurally fair.

(Emphasis added)

[29] Therefore, the applicants review is on the basis that the wrong and unfair manner in which the second respondent conducted the enquiry, constitutes a reviewable irregularity. In this respect, the applicants claim that the second respondent made a determination on whether the applicants were employees of the City, without affording them an opportunity to present evidence on this issue, in circumstances where it was necessary that evidence be presented and where this issue is intricately linked to the dispute referred to arbitration.

[30] In their referral form, the applicants summarized the facts of the dispute as “the employer, after having agreed on 01 September 2016, to absorb the employees who were employed by its 3rd party contractor, Boffin and Fundi (Pty) Ltd, unilaterally terminated their employment.”

[31] Therefore, it was evident from the referral form that the question whether the applicants were employees of the City, was one of the main issues for arbitration. This should have informed the manner in which the second respondent approached the dispute, and should have alerted him to the fact that this was an issue to be determined at arbitration.

[32] I agree that this jurisdictional issue was intricately linked to the merits of the dispute and that it was irregular for the second respondent to have made a jurisdictional determination without hearing any evidence and engaging with the merits of the matter.

[33] In any event, the question of whether the applicants were employees of the City, is not a jurisdictional issue as ordinarily raised or in the true sense, rather it’s an issue that is best dealt with together with determining whether there was an unfair dismissal. This was confirmed in Bombardier Transportation (Pty) Ltd v Mtiya NO and others[10], where the Court held;

“The first step in this approach is to recognise that many “jurisdictional issues” raised by parties in conciliation proceedings are not jurisdictional questions in the true sense. For example, whether a person is an independent contractor or an “employee” as defined in section 213 of the LRA is more properly a question that falls within the power of the

CCMA to determine in the course of the arbitration proceedings (ie the adjudication stage of the matter) in relation to a dispute before it. It is not a question that must necessarily be determined prior to conciliation taking place, nor is it a jurisdictional question contemplated by rule 14 of the CCMA’s Rules. A challenge to the CCMA’s jurisdiction on the basis that there was no dismissal falls into the same category.”

(Emphasis added)

[34] Mr Majang argued that nothing prevented the applicants from leading evidence to show that they were employed by the City, however, as the record shows, the second respondent did exactly that.

[35] The applicants’ shop steward, in arguing the jurisdictional point, specifically asked that evidence be led on whether the applicants were employees of the City. The second respondent did not allow him to do so and the jurisdictional ruling does not state why this was not done.

[36] Furthermore, the applicants asked that they be permitted to obtain their payslips, as evidence that they were employed by the City. Apart from a certain Mr Masipha Kenneth Maepa (who was one of the applicants before the second respondent) none of the applicants had their payslips with them at the time that the jurisdictional challenge was argued.

[37] Relying on Mr Maepa’s payslip, the second respondent found that Mr Maepa had proven that he was an employee of the fourth respondent. Given the weight and siginificance he gave to Mr Maepa’s payslip, and having been advised that the remaining applicants had similar payslips, the second respondent should have afforded the applicants an opportunity to present them or other evidence.

[38] Instead of allowing the applicant’s request to lead evidence on whether they were employees of the City, the second respondent found that they failed to lead evidence on this issue. The finding that no evidence was led to show that the applicants were employees of the City, supports the claim that it was in the circumstances necessary for evidence to have been led. However, as already mentioned, the second respondent did not allow them an opportunity to do so.

[39] The above evinces that the second respondent conducted the hearing in a wrong and unfair manner, and that is an irregularity in the conduct of the proceedings, thus making it reviewable.

The 22 June 2017 condonation ruling

[40] Since I have already granted a review of the first jurisdictional ruling, it is not necessary to consider the condonation ruling. This is because the order on the first jurisdictional ruling paves a way for the rehearing of the applicants dispute before the first respondent.

[41] In the premises the following order is made:

Order

1. The late filing of the review application against the jurisdictional ruling by the second respondent, dated 22 June 2017, is hereby condoned

2. The ruling made by the second respondent is hereby reviewed and set aside.

3. The matter is remitted back to the first respondent for hearing de novo before a commissioner other than the second and third respondents.

4. There is no order as to costs.

T. Manchu

Judge of the Labour Court of South Africa

Appearances:

For the applicant : Z Manentsa

Instructed by : Mabuza Attorneys

For the fourth respondent : Mr Majang from Majang Inc.

[1] 1962 (4) SA 531 (A) at page 532C–F

[2] (1997) 18 ILJ 367 (LAC).

[3] S v S (Centre for Child Law as amicus curiae) 2011 (7) BCLR 740 (CC).

[4] See: Steenkamp v Edcon Limited (2019) 40 ILJ 1731(CC), at para 36.

[5] [2003] 8 BLLR 804 (LC), at paragraph 22.

[6] It is incorrect because, even if the applicants had obtained condonation from the third respondent, the second respondent’s

ruling that they are not employees of the City would be unaffected.

[7] (2008) 29 ILJ 964 (LAC) at paragraph 101.

[8] (2007) 28 ILJ 2405 (CC).

[9] [2015] 1 BLLR 23 (LAC) at paragraph 19.

[10] [2010] 8 BLLR 840 (LC).