South African Police Services v Malgas N.O. and Others (PR 33/21) [2022] ZALCPE 29 (31 October 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH

Reportable

PR 33/21

In the matter between:

SOUTH AFRICAN POLICE SERVICES

Applicant

and

ARBITRATOR TERRY MALGAS-N.O.

First Respondent

SAFETY AND SECURITY SECTORAL

BARGAINING COUMCIL

Second Respondent

THEUNIS JONCK Third Respondent

Heard: 05 October 2022

Delivered: 31 October 2022

JUDGEMENT

MAMA AJ

Introduction

[1] This is an unopposed application seeking, in its notice of motion, an order declaring as unlawful the first and second respondents' failure, refusal to furnish the Registrar with the complete record, and to compel them to dispatch same.

[2] The respondent, for its part, approaches Court not so much to oppose the desired relief but to assist the Court about what it regards as an impermissible mechanism for the desired relief, and the futility of the desired order:.

[3] Although nothing is said about seeking a mandamus in the notice of motion, the applicant makes an averment relating to it, in its outline of the court’s jurisdiction.

[4] It is worth stating further that attorneys for the third respondent filed a Rule 30 notice on 18 October 2022, objecting to issuing of a bond of security, until the review is finally determined.

Discussion

[5] Ms Govender, on behalf of the applicant, gave an outline of the path traversed in securing the record. It was an exhaustive effort. The Third respondent, in its assistance to the court, submitted that the applicant has failed to make the necessary averments when seeking a mandamus.

[6] Further, Adv Ntsepe submitted that the relief pursued by the applicant in its present format, is an exercise in futility as, in her view, it is manifestly clear that the first and second respondents cannot possibly be in possession of the records. In support of her view, Counsel pointed out that, given the exhaustive efforts the applicant has gone about in its pursuit of the record, a reasonable inference could be made that it does not exist.

[7] Ms Ntsepe added that the practicable manner of expediting the resolution of the dispute would be a re-construction of the record by the parties themselves. In reply, Ms Govender conceded that, given that the parties themselves have the record, they could collaborate and produce a record.

Evaluation

[8] It is trite that, in confronting the all too common problem of non-provision of the record timeously, or at all, one of the options is an application to the Labour Court for an order to compel.

[9] This is aimed at realizing on of the primary objectives of the Labour Relations Act[1] (LRA), which is the effective resolution of disputes.[2] Although this Court has, on numerous occasions, correctly equated "effective" with "speedy" or "expeditious", I am also of the view that a court's intervention should be effectual or consequential.

[10] This Court, when it had its sight on the goal of effective resolution of a dispute, has refused to allow the elevation of technicalities to delay or frustrate the resolution of the substantive dispute.[3] That is the approach I intend to follow.

[11] Courts are generally loathe of handing down inchoate judgements - valid, but of no force and effect.[4] Lending support to this stance, this Court has found that although the Labour Court is empowered to order compliance with any provision of the LRA, it discouraged compliance with procedures that would result in an ineffective way of resolving a dispute.[5]

[12] I accept the point made by Adv Ntsepe in relation to the impermissibility of invoking an intervention by way of a mandamus in the current circumstances. I further agree with Counsel, and submissions, that compelling the first and second respondents would be futile, given the exhaustive effort the applicant had expended on seeking compliance from the first and second respondent .

[13] Ultimately, the parties harmonize on the necessity of reconstructing the record themselves. Ms Govender submitted, without contest, that the parties possess the necessary information to produce a reconstructed record, on their own. It is trite that this Court has allowed, on numerous occasions, that parties, to the extent possible, should reconstruct a record , or a missing portion thereof.

[14] I am inclined to allow the commonly held submission that a reconstruction of the record would advance the effective resolution of this dispute. The irregular process notice referred to above does not disrupt the need for acceleration of the reconstruction of the record.

[15] In the premises, the following order is made

Order:

1. The parties are ordered to reconstruct the record and file with the registrar not later than 60 days from the date of receipt of judgement.

2. There is no order as to costs.

J. Mama

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicant Ms M. Govender of the State Attorney

For the respondent Adv L Ntsepe

Instructed by

Karsans Incorporated

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

[2] Section 1 (d) (iv) of the LRA

[3] MTN (Pty) Ltd v Pragraj and Another [2001] 2 BLLR 179 (LC) at para 17.

[4] The Constitutional Court, in a matter involving constitutional invalidity decried the spectre of an inchoate judgement

[5] P Moeller and Co (Pty) Ltd v Levendal [2002] 8 BLLR 782 (LC) at para 19. In this matter the court held that if there was no prospect of resolving a dispute by means of conciliation, then compelling compliance with the requirements of conciliation would be an ineffective way of attempting to resolve the dispute.