South African Municipal Workers Union (SAMWU) obo Nhlapho v Mantsopa Local Municipality and Others (JR2294/2021) [2024] ZALCJHB 363 (11 September 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR2294/2021

In the matter between:

SOUTH AFRICAN MUNICIPAL WORKERS UNION (SAMWU) obo ME NHLAPHO & 2 OTHERS Applicant and MANTSOPA LOCAL MUNICIPALITY First Respondent SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL Second Respondent ANNA FOURIE N.O. Third Respondent

Heard: 10 January 2024

Delivered: 11 September 2024 (This judgment was handed down electronically by emailing a copy to the parties.)

JUDGMENT

NXUMALO, AJ

Introduction

[1] This is an application brought by the South African Municipal Workers Union (SAMWU) on behalf of ME Nhlapho and two others, in terms of section 145 of the Labour Relations Act[1] (LRA) to review and set aside the arbitration award, dated 4 October 2021, issued by the third respondent under the auspices of the second respondent.

[2] The first respondent, Mantsopa Local Municipality, opposes the application.

Context

[3] The individual applicants were employed in 2011 as traffic wardens, to undergo training to become traffic officers.

[4] Subsequent to qualifying as traffic officers, in 2012, the applicants aver that they were verbally informed, by the first respondent, that they will progress and/or gradually be progressed from a level 7/1 to a level 5/4, which is on their version the entry level for traffic officers.

[5] On or about 30 May 2018, the individual applicants addressed a memorandum to SAMWU seeking the trade union's assistance for them to be upgraded to a level 5/4.

[6] On or about 11 June 2018, SAMWU addressed correspondence to the first respondent, requesting the first respondent to rectify the post levels and salaries of traffic officers to post level 5/4.

[7] On or about 9 July 2018 the Legal and Admin Manager of the first respondent, Mr Pule Hlahane, addressed a memorandum to the Municipal Manager titled 'Adjustment of Post Levels'. The memorandum stated the following:

‘RE TRAFFIC OFFICERS

The abovementioned refers.

I confirm that our traffic officials are currently on post level 7/1 and have been appointed on this level since inception of their employment. The LLF has made a request that their levels be adjusted from level 7/1 to level 5/4. I submit that the said request is in line with the post levels as per our bench marking municipality (Nketoana Local Municipality). I furthermore submit that duties along with their designations justifies the said request, as a result I humbly request that request be granted accordingly.

Regards’

[8] The internal memorandum indicates that it was supported and signed by Advocate Litobe, the Director: Corporate Services and approved and signed by TP Masejane, the late Municipal Manager.

[9] The internal memorandum is the source of contention and the focus of the applicants' dispute.

[10] The individual applicants became aware of the internal memorandum and relied on it to assert that they were entitled to an adjustment of their post levels and salaries.

[11] The individual applicants were aggrieved by the first respondent's decision not to change their levels and salaries, and lodged an internal grievance during November 2019.

[12] Various discussions took place between the parties until the individual applicants lodged a dispute with the second respondent. The dispute was conciliated unsuccessfully after which the applicants referred a dispute to arbitration.

[13] The first respondent's primary contention was that the memorandum was merely a recommendation which required further approval and implementation, which was not granted and therefore was not implemented.

[14] The first respondent also contended that the memorandum was an internal document, as part of internal management communication - and was not meant for the applicants. Furthermore, that the applicants had not lawfully obtained the internal memorandum and as such could not seek to rely on same.

Late filing of answering affidavit and non-filing of replying affidavit

[15] The first respondent's answering affidavit was not filed within the time periods set out in the old Labour Court Rules[2].

[16] The applicants initially objected to the late filing of the answering affidavit. This notwithstanding, when the matter was heard, the parties informed this Court that the applicants no longer objected to nor took issue with the late filing of the answering affidavit and that they (the parties) have agreed that the answering affidavit be admitted. Accordingly, this judgment shall not be burdened with the issues relating to condonation. The answering affidavit is accepted.

[17] Importantly however and of consequence, Counsel for the applicants, informed this Court that the applicants were waiving their right to file a replying affidavit and would not be filing a replying affidavit – and that the Court should proceed to hear their review application. This, despite the Court having cautioned and informed the applicants that it was inclined to postpone the matter so that they can file a replying affidavit. Consequently, this means that the first respondent's version is to be accepted as uncontested on those allegations and/or averments that challenge the content of the applicants' founding affidavit, as enunciated in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd[3].

Legal test on review

[18] The test on review, which is well known and established, as set out in Sidumo and another v Rustenburg Platinum Mines Ltd and others[4] is whether the decision reached by the arbitrator is one that a reasonable decision maker could not reach.

[19] In Head of the Department of Education v Mofokeng and others[5], the Labour Appeal Court (LAC) clarified the test/legal position with respect to the setting aside of arbitration awards. The LAC held that:

‘[32] However, sight may not be lost of the intention of the legislature to restrict the scope of review when it enacted section 145 of the LRA, confining review to “defects” as defined in section 145(2) being misconduct, gross irregularity, exceeding powers and improperly obtaining the award. Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.

[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator's conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome...’

[20] In Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curiae)[6], the Supreme Court of Appeal held the following:

‘In summary, the position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the

proceedings falls within one of the grounds in section 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by section 145(2)(a)(ii), the arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.’

[21] Consequently, the review test is stringent and a conservative test of reasonableness. The LAC in Makuleni v Standard Bank of South Africa Ltd and others[7] held as follows:

‘The court asked to review a decision of a commissioner must not yield to the seductive power of a lucid argument that the result could be different… At the heart of the exercise is a fair reading of the award, in the context of the body of evidence adduced and an even-handed assessment of whether such conclusions are untenable...’

Grounds of review

[22] The applicants have taken what appears to be a piecemeal approach in their grounds of review and have sought to attack each finding of the third respondent.

[23] This Court has identified and categorised the applicants' issues against the third respondent's arbitration award, in order to make it consumable for this Court and the parties.

First ground of review

[24] The applicants complain that the third respondent's failure to consider the objective contents of the internal memorandum in determining if the duties and designations of the applicants justified being upgraded to a level 5/4 was unreasonable, wrong in law and led to a conclusion which no reasonable arbitrator would have reached.

[25] The applicants' pleadings, however, appear silent and do not set out in any shape or form their duties in comparison to their level and that which they sought to be moved to and paid. The applicants also appear not to have, before the third respondent, led any substantial evidence as to how their current duties and functions do not match their level and salaries. Nor what the different levels entailed. This is also not addressed in their review application papers.

[26] Instead, the applicants asserted during the arbitration proceedings that they had been given a verbal undertaking that they would be progressed and/or appointed on level 5/4 in accordance with the first respondent's organogram. The applicants, however, do not assert when exactly this verbal undertaking was given and do not prove nor provide any evidence of an organogram to assist them.

[27] The applicants at the time of the arbitration proceedings appear to have been earning a monthly salary of R15 007.00. The applicants, however, appear not to have adduced evidence of how much exactly they should or ought to be paid and/or what their salaries should be on, as opposed to the monthly salary of R15 007.00 that they were currently on at the time of the arbitration proceedings. This is also not addressed in their review application papers.

[28] Of importance, during the arbitration, the applicants asserted that the Chief Traffic Officer, who was ultimately their supervisor, was employed on level 5/4 (i.e. the level which the applicants sought to be upgraded and/or moved to). The first respondent contended in the arbitration (and maintains in opposing this review application) that it could not be that the applicants as subordinates could be on the same level as their supervisor and that it was an unreasonable expectation for them to expect to be moved to and/or be appointed on the same level as their supervisor, the Chief Traffic Officer.

[29] The applicants have not addressed nor dealt with these critical points in their founding papers nor is there a replying affidavit by them replying to and dealing with these averments.

[30] The third respondent also considered this and agreed with the first respondent, i.e. that it was an unreasonable expectation for the applicants to expect to be moved to and/or be appointed on the same level as their supervisor, the Chief Traffic Officer. The third respondent considered this and found as following:

‘Is level 5/4 the appropriate level for a Traffic Officer and should the Applicants have been on the said level, at least from the date of the memo on p 4 of the bundle, 9 July 2018?

23. The onus was on the Applicants to prove that the Respondent committed an unfair labour practice against them by not adjusting them to post level 5/4. The first hurdle they needed to cross was showing what the appropriate post level was for Traffic Officers. The Applicants' case basically rested on their verbal testimony relating to undertakings given to them that they would be appointed on level 5/4, which was allegedly the entry level for Traffic Officers in terms of the Respondent's organogram. The three people who might have been able to substantiate the verbal testimony presented by two of the Applicants were all deceased. One was their former supervisor, and one was the MM at the time.

24. The Applicants did not include in their bundle of documents any documents confirming their allegations that they were informed upon qualifying as Traffic Officers that they would be appointed on level 5/4 or, after their appointment on level 7/4 that they would be gradually progressed to level 5/4. The Applicants furthermore failed to produce any document in support of their allegation that the entry level of a Traffic Officer in terms of the Respondent's organogram was level 5/4. Instead, they based their entire case on one document, a memo issued by the Legal and Admin Manager and addressed to the late MM, signed 9 July 2018 (p 4 of the bundle). The first witness for the Applicants also submitted under cross-examination that they knew they had to be appointed on level 5/4 as their former supervisor and Chief Traffic Officer, the late Mr Tamas, had been appointed on

said level. She could not give a reasonable explanation why they should have been appointed on the same level than their supervisor.

With respect, this argument cannot stand. It is commonplace that staff members be appointed on different levels of a certain post and that they may then, based on certain criteria, progress to better levels within a certain post. It simply does not make sense for any reasonable employee to expect to be appointed on the same level as his or her Chief Traffic Officer and supervisor.’

[31] In casu, I cannot, on review and/or on the review test, fault the third respondent's findings in this regard. The applicants' failure to

provide sufficient evidence to substantiate the demand for their post levels and salaries to be adjusted was, in my view, critical to their case.

[32] It is also not for this Court to assume what the duties of the applicants were in comparison to their level and/or salaries – more is required from the applicants, particularly given that they bear the onus. The applicants' pleadings also appear silent and do not set out in any shape or form their duties in comparison to their level and/or salaries nor did they provide any evidence of the levels or an organogram to assist them. The applicants also appear not to have, before the third respondent, lead any substantial evidence as to how their current duties and functions do not match their level and/or salaries.

[33] The applicants have also not addressed nor dealt with the contention and averments that it could not be and it was an unreasonable expectation from them that they as subordinates could be on the same level and/or earn as their supervisor, the Chief Traffic Officer. The applicants also appeared not to have adduced evidence of how much exactly their salaries should be on, as opposed to the monthly salary of R15 007.00 that they were currently on at the time of the arbitration proceedings.

[34] On the basis set out above, as well as on the review test, I am of the view that this ground of review cannot succeed.

Second ground of review

[35] The gravamen of the applicant's review application lies on the contention that the internal memorandum was approved. The applicants complain that the third respondent failed to appreciate that the municipal manager is the administrative head of the first respondent and that the municipal manager's approval was final.

[36] On the applicants' version, even if further steps had to be taken to give effect to the municipal manager's approval, the first respondent was obliged to take such steps.

[37] The first respondent denies this. The first respondent's contention, as mentioned above, was that the memorandum was merely a recommendation which required further approval and implementation, which was not granted and therefore was not implemented. The first respondent also contended that the memorandum was an internal document, as part of internal management communication - and was not meant for the applicants. Furthermore, that the applicants had not lawfully obtained the internal memorandum and as such could not seek to rely on same.

[38] The first respondent further contended that the adjustment required approval of and by the Director: Community Services, under whose department the applicants' belonged and ultimately reported to. The first respondent contends that the Director: Community Services did not approve the adjustment. It is further contended that further steps would have needed to be taken to implement the recommendation had it been approved (which it was not).

[39] Importantly on this and in addition, there does not appear to be any challenge by the applicants (and their review application papers are silent) on/to the version presented by Advocate Litabe, the Director: Corporate Services, who had initially supported the memorandum. Advocate Litabe had initially supported the recommendation based on the facts before him at the time. However, he later could not recommend the implementation based on concerns from the Auditor General relating to job evaluation and descriptions. The applicants' review application papers are silent on these aspects.

[40] Importantly also or rather strangely so, the applicants in compiling and filing the record – as dominus litis – appear not to have included nor furnished the transcript of Advocate Litabe's evidence. His evidence is, however, summarised by the third respondent, in the arbitration ward, as follows:

‘21. Nthama Litabe, Director: Corporate Services, testified under oath that he did sign in support of the recommendation on the memorandum, dated 9 July 2018, relating to the adjustment of post levels, p 4 of the bundle. He explained that the memorandum was not a final document, but merely communication between him, the MM and management. He did not know how the document leaked out. Had there been proper consultation, the memo on p 4 would have been elevated to his office to check the contents for compliance with the law and he would then draft a letter for Payroll to confirm the appointment. A letter would also be addressed to the individual Applicants, indicating the level of remuneration, the expectations, the effective date and the actual monetary figures. Promotion was possible only if vacant higher posts existed and were graded. In the present case, there were no higher graded posts.

22. Under cross-examination he reiterated that he merely signed the memo on p 4 of the bundle in support of the recommendation by the Legal Manager. He did so without interrogating, as it made sense on the facts given to him. However, he could only recommend it when he was satisfied and it had not reached that stage yet. Upon his talks with the MM and the Legal Manager he stated that he could not recommend it based on a concern from the Auditor General relating to job evaluation and descriptions. The matter ended there. He insisted that, even though the MM approved the memo on p 4 of the bundle, it merely remained a recommendation until all prerequisites were met.’

[41] These are critical aspects, which the third respondent considered and included in the arbitration award, which the applicants appear not to have dealt with nor addressed at all in their review papers before this Court. This Court cannot come to the assistance of the applicants, when the applicants – as dominus litis - in compiling and filing the record, have not included and/or furnished the transcript of Advocate Litabe's evidence nor in any event addressed or dealt with it in their review papers. Moreover, the applicants – as dominus litis - have had ample opportunity to fix the record and ensure that the record of proceedings before this Court consisted of all the necessary portions, especially the transcripts.

[42] I am therefore of the view that it would not be appropriate to simply ignore/disregard the summary of the evidence of Advocate Litabe, which is set out by the third respondent in the arbitration award. It would also not be in the interests of justice to do so; this matter already dates back to almost three years ago and this Court is backlogged with other matters. In my view, there are sufficient (and uncontested) factual summaries of the evidence in the arbitration award, which I rely on in these proceedings.

[43] Furthermore, during the arbitration proceedings, the author of the internal memorandum, Mr Hlahane, testified that the internal memorandum was prepared by him as a recommendation to the municipal manager.

[44] Mr Hlahane, however, reiterated in no uncertain terms that the internal memorandum and recommendation were not approved by the Director: Community Services, under whose department the applicants' belonged and ultimately reported to and also could not be effective until the implementation process is concluded. In this instance, Mr Hlahane described the process as follows: the municipal manager would instruct him to prepare an implementation memorandum in the name of the municipal manager. The implementation memorandum would also have to be formally approved (i.e. in writing) and signed by the Director: Community Services. This memorandum would thereafter be directed to Human Resources and Payroll for same to be implemented. The applicants would thereafter have been issued with letters confirming the implementation.

[45] This process was never undertaken by the first respondent or the municipal manager and the recommendation was not approved by the Director: Community Services, under whose department the applicants' belonged and ultimately reported to. The process described by Mr Hlahane was not disputed by the applicants. The applicants, however, contend that the approval was given verbally by the municipal manager and Director: Community Services. The third respondent denied this.

[46] The third respondent accepted the versions of Mr Hlahane and that of Advocate Letibe. The third respondent found that the applicants had conceded that the approval by the Director: Community Services was not given in writing and found the first respondent's version that formal written approval [and thereafter for implementation of the recommended changes] was needed, was more probable – particularly given that the internal memorandum does not provide any detail in terms of the implementation.

[47] In the circumstances, I cannot, on review and/or on the review test, fault the third respondent's findings in this regard – based on what has been placed before this Court and appears to have been before the third respondent.

Third ground of review

[48] The applicants assert that the third respondent placed too much emphasis on the question of how the internal memorandum was obtained by the applicants. The applicants contend that nothing in the internal memorandum suggested that the memorandum had to be treated as confidential.

[49] The first respondent contended that the memorandum was an internal document, as part of internal management communication - and was not meant for the applicants. The first respondent asserted that the memorandum was not obtained lawfully and that the applicants should not have been in possession of the internal memorandum.

[50] The applicants placed two versions before the third respondent- that the document was either handed to their shop steward by the late municipal manager in response to the letter he had written on their behalf and/or it was obtained from their personnel files.

[51] The third respondent appears to have taken a dim view and/or drawn a negative inference against the applicants for providing inconsistent versions of how they obtained a copy of the internal memorandum and for failing to call the relevant shop steward. The third respondent found that the applicants' version was not substantiated in any way and the applicants failed to call their shop steward to confirm that he in fact received the internal memorandum from the late municipal manager.

[52] This Court has held on numerous occasions that a presiding officer is entitled to draw such negative inference where a party fails to call a witness who is available to elucidate the facts. The third respondent also relied on the decision of this Court in Tshishonga v Minister of Justice and Constitutional Development and Another[8] to draw the negative inference from the failure of the applicants to call their shop steward to substantiate their allegations that the late municipal manager gave them a copy of the internal memorandum.

[53] Of importance is that while the third respondent appears to have accepted that the document was not properly obtained – she, however, found (after considering the evidence and issues) that the internal memorandum did not, in any event, serve the purpose

relied upon by the applicants.

[54] I do not agree with the applicants' assertion that the third respondent placed too much emphasis on the question of how the internal memorandum was obtained. The factor of how the memorandum was obtained was merely one of the other factors considered by the third respondent in reaching her conclusion. It is apparent that the third respondent not only considered how the internal memorandum was obtained but also considered that insufficient evidence had been tendered by the applicants to support a finding that they ought to have been placed on post level 5/4 and their salaries changed.

[55] All in all, the third respondent appears to have considered and addressed the following other factors/issues, that were before her, in deciding the matter, as appears from the arbitration award (as captured by the third respondent):

'11 The following issues were in dispute:

11.1 Whether or not the three Applicants should be on level 5/4 and whether said level is the appropriate level for a Traffic Officer.

11.2 Whether or not the grievance filed by the Applicants in January 2021 was entertained by the Respondent.

11.3 Whether it was necessary for any steps to be taken following the memo of the late Municipal Manager, relating to the Applicants' levels of employment, for changes to their levels of employment to be implemented.

11.4 Whether or not the documents relied upon by the Applicants were authentic.

11.5 Whether or not the Applicants should have been on level 5/4 from the date of the original memo, 9 July 2018.'

[56] Wholistically, I see no reason why, on review and/or on the review test, I should interfere with the arbitration award of the third respondent on this ground of review and the other grounds mentioned above.

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

Order

1. The application for review is dismissed.

2. There is no order on costs.

M Nxumalo

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Instructed by: Advocate T Du Preez Kramer Weihmann Incorporated For the First Respondent: Instructed by: Advocate RM Schmidt Matlho Attorneys

[1] Act 66 of 1995, as amended.

[2] GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court.

[3] [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E – 635C.

[4] [2007] ZACC 22; (2007) 28 ILJ 2405 (CC) at para 110.

[5] [2014] ZALAC 50; [2015] 1 BLLR 50 (LAC) at paras 32 - 33. Also see Makuleni v Standard Bank of South Africa Ltd and others [2023] 4 BLLR 283 (LAC) at paras 2 to 4.

[6] [2013] ZASCA 97; [2013] 11 BLLR 1074 (SCA) at para 25.

[7] [2023] ZALAC 4; [2023] 4 BLLR 283 (LAC) at para 4.

[8] [2006] ZALC 104; [2007] 4 BLLR 327 (LC).