Tlolane v Department of Public Works and Others (JR1696/17) [2021] ZALCJHB 378 (19 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR1696/17

In the matter between:

MOKGAETJI BELLA TLOLANE Applicant

and

THE DEPARTMENT OF PUBLIC WORKS First Respondent

THE DIRECTOR GENERAL: DEPARTMENT OF

PUBLIC WORKS Second Respondent

THE GENERAL PUBLIC SERVICE

SECTORAL BARGAINING COUNCIL (GPSSBC) Third Respondent

SS THOKA N.O. Fourth Respondent

Heard: 21 July 2021

Delivered: In view of the measures implemented as a result of the Covid-19 pandemic, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be 19 October 2021.

JUDGMENT

PHEHANE, J

Introduction

[1] This opposed[1] review application in terms of Section 145 of the Labour Relations Act[2] (LRA), served before me on the 21 July 2021. Judgement was reserved.

Condonation

[2] At the time of writing the judgment, it occurred to me that the review application was filed outside the six-week prescribed period in section 145(1)(a) the LRA, within which to launch a review application. In the premises, on 27 July 2021, I issued a directive

requiring the applicant to apply for condonation and directing the first and second respondents to reply thereto, after which, I would decide the condonation application in chambers.

[3] The aforesaid directive read as follows:

1. This matter was heard on the opposed motion roll on 21 July 2021, by means of a virtual platform.

2. Judgment was reserved.

3. While drafting the judgment, the presiding judge realised that the review application was launched out of time. In this regard:

3.1 The arbitration award, which is the subject matter of the review application, was received by the applicant’s attorneys on 26 June 2017 (founding affidavit, para 9).

3.2 In the explanatory affidavit by the applicant’s attorney of record, filed on 27 January 2021, regarding the filing of the record, it is stated in paragraph 4 thereof, that the applicant instructed the said firm of attorneys to launch the review application on 18 August 2017. The review application was indeed launched on 18 August 2017, and therefore, outside the prescribed time frame as contemplated in section 145 of the Labour Relations Act, Act 66 of 1995, as amended.

3.3 The late filing of the review application raises an issue of this Court’s jurisdiction to adjudicate the review application.

3.4 There is no condonation application filed of record, to seek condonation for the late filing of the review application. Both parties are represented by legal practitioners and neither raised the issue regarding this Court’s jurisdiction. It is now being raised by the presiding judge, having realized the issue in the preparation of the judgment, as set out above.

4. The purpose of this directive is to afford the applicant an opportunity to file a condonation application for the late filing of the review application by no later than Friday, 6 August 2021. The respondents are to file their answering affidavit, if any, by no later than 11 August 2021. The applicant may file her replying affidavit, if any, by no later than 13 August 2021, whereafter, the presiding judge will consider the application for condonation in chambers.

5. If no application for condonation is received as directed, the presiding judge will hand down her judgment based on the papers currently filed of record.

[4] On 29 July 2021, the applicant’s attorney of record sent correspondence addressed to me, attaching a copy of an “explanatory” affidavit, “addressing the directive in full” and enquiring whether the applicant was still required to file a condonation application. The respondents were copied in this correspondence.

[5] The gist of this explanatory affidavit was that the applicant’s attorney made a bona fide error in his affidavit of January 2021 by mentioning the date of 18 August 2017[3] and that the review application was delivered on 8 August 2017. The deponent proceeded to state that the review application was launched on time and that “[o]ne must have recorded the actual date on which the application was signed, served and delivered in accordance with the rules of the Labour Court being the 8th of August 2017”.[4]

[6] On 16 August 2021, a substantive application for condonation was launched by the applicant, which is opposed by the first and the

second respondent (the respondents). I mention that this condonation application is filed 10 days after the deadline specified in the directive that was issued by me on 27 August 2021, with no explanation as to why it was issued beyond the clear deadline that was directed by the Court.

[7] I issued the clear timeframes within which to deliver an application for condonation to dispose of the matter expediently. The directive

was clear that in the absence of a condonation application, I would decide the review application on the papers that were before me.

[8] In my view, the applicant sought to argue that the review application was launched on time and failed to adhere to the Court’s

directive, which gave her the opportunity to apply for condonation. Such condonation was delivered after the time frame in the directive. In the interests of justice, I deal with the condonation application.

Degree of delay and reasons

[9] The applicant’s attorneys of record contend that they received the arbitration award on 26 June 2017[5] and that the review application was launched on 8 August 2017 and the applicant relies on fax reports and a service affidavit on pages 83 to 98 of the review application.[6]

[10] Pages 83 to 98 contain failed fax transmission reports to the respondents, which the applicant attempted to send after 15h30, a filing notice pertaining to the review application dated 10 August 2021 (filed in this Court on 18 August 2017), bearing a received stamp by the first and second respondents, evidencing service on 10 August 2017, a service affidavit stating that the

application was emailed to the first respondent’s attorney of record on 8 August 2017 at 03h52pm, that telephonic receipt was confirmed on 14 August 2017 and that the application was emailed to the third and fourth respondents on 8 August 2017 at 15h48. An annexure “SA4” is mentioned as evidence of this email dispatch, but the annexure is not attached to the service affidavit. Telephonic confirmation of receipt was made on 15 August 2017. In a confirmatory affidavit, it is stated that service of the application was made by hand on the second respondent and that “[p]roof of such service can be found on page 2 of the Notice of Motion, which is not attached hereto in order to prevent unnecessary

duplication”.[7] No proof of service on the second respondent appears on the notice of motion. It appears on the filing sheet mentioned above. The deponent states that the application was emailed and delivered by hand as a result of failed attempts to serve the application by email on all respondents at 15h30 on 8 August 2017. The deponent proceeds to state that the firm attends at this Court bi-weekly due to the distance from its office and for this reason, the application was delivered to this Court on 18 August 2017. The deponent maintains that the application was launched on time, in the same breath, concludes that the delivery of the application on the first and second respondents is two days late and delivery to this Court is 10 days late. Nothing is said about delivery to the third and fourth respondents.

Prospects of success:

[11] The applicant contends that she has good prospects of success in the review application, the merits of which have been fully ventilated

before this Court.

Prejudice:

[12] The deponent contends that should the condonation application be refused, that the applicant would be prejudiced, as the respondents did not raise the jurisdictional issue. Strangely, the deponent states: “Should it be deemed that the Applicant’s Review Application was filed outside the allowed time frames, it is respectfully submitted that same would have no effect on the status of the matter other than the Honourable Court's Jurisdiction”.[8] This Court has mero motu, raised jurisdiction for failure to file the review application within the prescribed time frame. This has a direct bearing on the status of the matter, as until such time as condonation is granted, this Court lacks jurisdiction to adjudicate the application. It is trite that jurisdiction can be raised at any point in the proceedings.

[13] This principle was confirmed by the Constitutional Court in Commercial Workers Union of SA v Tao Ying Metal Industries and Others,[9] where the Court held that:

‘[68] … Where a point of law is apparent on the papers, but the common approach of the parties proceeds on a wrong perception of what the law is, a court is not only entitled, but is in fact also obliged, mero motu, to raise the point of law and require the parties to deal therewith. Otherwise the result would be a decision premised on an incorrect application of the law.’

Opposition

[14] The respondents contend that the review application was delivered on them on 10 August 2017, and therefore, 2 days late.[10] Further, that delivery to this Court is 10 days late.[11] The respondents contend that it was an oversight on their part not to raise jurisdiction and that in any event, the Court may do so mero motu. The respondents further contend that the applicant has failed to provide an explanation for the delay between 10 to 17 August 2017 and that no explanation is provided as to why the applicant failed to hand deliver the application to this Court on 10 August 2017. The respondents submit that the explanation for the delay is weak, that the applicant has poor prospects of success in the review application.

Analysis

[15] The applicant has not provided good reason for the delay in launching the review application. From the facts, the applicant’s attorney received the arbitration award on 26 June 2017.[12] The applicant, legally represented, waited until the eleventh hour to deliver the review application to the respondents.[13] There was no delivery on the respondents on 8 August 2017. The application was delivered to the respondents on 10 August 2017, and to this Court on 18 August 2017. The reason for delivery to the Court on 18 August 2017, is due to the distance of the Court from the offices of the applicant’s attorney of record and thus only attending at this Court bi-weekly. This explanation is unacceptable. For this reason alone, condonation should not succeed.[14]

[16] In Grootboom v National Prosecuting Authority & Another,[15] the Constitutional Court gives guidance as to the factors that should be considered in the interests of justice in determining whether

condonation should be granted.

[17] I have considered the prospects of success in the review application and I am of the view that they are weak. On the totality of evidence before the fourth respondent (in an arbitration proceeding that took place over a period of approximately one year and in which a voluminous record exists), as a public service official holding a senior position involving procurement, the applicant passed the buck to her seniors; her defence was that the material documents in question were in the file, yet, on the evidence before the fourth respondent, none of the critical documents that had to be in the file were present, thus calling into question the procurement process for which she was charged and dismissed. The fourth respondent found the applicant’s dismissal to be both procedurally and substantively fair.

Filing of record

[18] The applicant’s challenge does not end here.

[19] From the notices contained in the Court file, the third and fourth respondent served a Rule 7A(2)(b) notice on 24 August 2017. An

application to compel the third and fourth respondents to deliver a complete record of the arbitration proceedings was launched by the applicant on 26 January 2018 (although the notice of motion and founding affidavit were signed on 30 November 2017). Before this application to compel was launched, the third and fourth respondents deposed to an explanatory affidavit on 20 December 2017,

explaining the absence of digital recordings due to a computer crash. What is critical, is that the third and fourth respondent furnished an explanation before the application to compel was launched, stating that the digital recordings are unavailable. It would appear that the applicant was not aware of this explanatory affidavit when it launched its application to compel the following new year.

[20] Over and above the late filing of the review application, it transpires from paragraphs 5 and 6 the explanatory affidavit by the applicant’s attorney of record of 21 January 2021, that the parties agreed in June 2018, that it would be impossible to file the record within the period stipulated in the Practice Manual[16] of this Court and that the record should be reconstructed. The record was filed on 20 July 2018.

[21] From the notices, it is evident that in December 2017, the applicant was notified of missing records. No explanation is provided as to what transpired in the six-month period between December 2017 to June 2018 in respect of reconstructing the record and any compliance with clause 11.2.4[17] of the Practice Manual in this regard. (The evidence of Eulala Kruger is missing from both the record of the disciplinary hearing and the arbitration hearing and nothing has been placed before this Court regarding any attempts to reconstruct this evidence at the very least). No explanation is provided as to whether the parties agreed to the extension of time to file the record during the 60-day period as contemplated in clause 11.2.2 and 11.2.3 of the Practice Manual.[18]

[22] The record was filed on 20 July 2018, approximately one year after the launch of the review application. The deponent to the explanatory

affidavit of January 2021 further states that in October 2018

[23] Clause 11.2.7 of the Practice Manual reads as follows:

‘A review application is by its nature an urgent application. An applicant in a review application is therefore required to ensure that all the necessary papers in the application are filed within twelve (12) months of the date of the launch of the application (excluding Heads of Argument) and the registrar is informed in writing that the application is ready for allocation for hearing. Where this time limit is not complied with, the application will be archived and will be regarded as lapsed unless good cause is shown why the application should not be archived or removed from the archive’.

(Emphasis added).

[24] Macsteel Trading Wadeville v Francois van der Merwe N.O & Others,[19] the Labour Appeal Court stated as follows regarding the binding nature of the Practice Manual:

“The underlying objective of the Practice Manual is the promotion of the statutory imperative of expeditious dispute resolution. It enforces and gives effect to the rules of the Labour Court and the provisions of the LRA. It is binding on the parties and the Labour Court.”

[25] It is trite that the ethos of the LRA, is that disputes are to be resolved expeditiously. The time frames in the Rules applicable in this Court[20] and the Practice Manual are designed to achieve the speedy resolution of disputes.

[26] In view of the afore-going, in the absence of consent from the respondents obtained within the 60-day period, and failing such consent, an application in terms of Rule 7 to the Judge President for an extension of time within which to file the record, the review application is deemed withdrawn. Further, in failing to file all necessary papers within twelve months of the launch of the review application, the application has lapsed and is archived and in the absence of any application to reinstate the application, this Court lacks jurisdiction to adjudicate an application that is deemed withdrawn, has lapsed, and is archived.

[27] In the premises, the following order is made:

Order

1. Condonation for the late filing of the review application is refused.

2. The review application is struck off for lack of jurisdiction.

3. There is no order as to costs.

MTM Phehane

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv.

Van As

Instructed by: Len

Dekker Attorneys Inc.

For the First and Second Respondent: Adv. Harriett Mutenga

Instructed by: Mamabola Phajane Inc

[1] The first and second respondents oppose the review application.

[2] Act 66 of 1995, as amended.

[3] Para 4 of this affidavit reads as follows: ‘On the 18th of August 2017 the Applicant, Ms MB Tlolane, instructed our officers to file a Review Application on her behalf in the Labour Court of South Africa against an Arbitration Award made by the Honourable Commissioner SS Thoka being the 4th Respondent in the matter.’

[3] Para 4 of this affidavit reads as follows:

‘On the 18th of August 2017 the Applicant, Ms MB Tlolane, instructed our officers to file a Review Application on her behalf in the Labour Court of South Africa against an Arbitration Award made by the Honourable Commissioner SS Thoka being the 4th Respondent in the matter.’

[4] Para 13 of the explanatory affidavit dated 29 July [2021].

[5] Condonation Application, founding affidavit, para 6, p 005.

[6] Condonation Application, founding affidavit, para 9, p 006.

[7] p 98.

[8] Condonation application, founding affidavit, para 18, p 008.

[9] (2008) 29 ILJ 2461 (CC) at para [68].

[10] Condonation application, answering affidavit, paras 4.8 and 4.9, p 035.

[11] Condonation application, answering affidavit, paras 4.15, p 036.

[12] Para 9 of the founding affidavit in the review application, p 8.

[13] The records show that the applicant, legally represented, applied for a case number on 1 August 2017, as contemplated in Rule 3(1), yet failed to launch the application on time.

[14] Collett v Commission for Conciliation, Mediation and Arbitration [2014] 6 BLLR 523 (LAC); NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC); and Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C-D.

[15] 2013 (5) ZACC 37 at paras [50] and [51].

[16] Effective April 2013.

[17] Clause 11.2.4 of the Practice Manual reads as follows: If the record of the proceedings under review has been lost, or if the recording of the proceedings is of such poor quality to the extent that the tapes are inaudible, the applicant may approach the Judge President for a direction on the further conduct of the review application. The Judge President will allocate the file to a judge for a direction, which may include the remission of the matter to the person or the body whose award or ruling is under review, or where practicable, a direction to the effect that the relevant parts of the record be reconstructed’.

[17] Clause 11.2.4 of the Practice Manual reads as follows:

If the record of the proceedings under review has been lost, or if the recording of the proceedings is of such poor quality to the extent that the tapes are inaudible, the applicant may approach the Judge President for a direction on the further conduct of the review application. The Judge President will allocate the file to a judge for a direction, which may include the remission of the matter to the person or the body whose award or ruling is under review, or where practicable, a direction to the effect that the relevant parts of the record be reconstructed’.

[18] Clause 11.2.2 and 11.2.3 of the Practice Manual provide as follows: ‘11.2.2 For the purposes of Rule 7A(6) records must be filed within 60 days of the date on which the applicant is advised by the registrar that the record has been received. 11.2.3 If the applicant fails to follow record within the prescribed, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period, requested the respondent’s consent for an extension of time and consent has been given. If consent is refused, the applicant may, on notice of motion supported by an affidavit, apply to the Judge President in chambers for an extension of time. The application must be accompanied by proof of service and all other parties, and answering and replying affidavits may be filed within the time limits prescribed by Rule 7. The Judge President will then allocate their file to a judge for a ruling, to be made in chambers, on any extension of time that the [applicant]

should be afforded to file the record’.

[18] Clause 11.2.2 and 11.2.3 of the Practice Manual provide as follows:

‘11.2.2 For the purposes of Rule 7A(6) records must be filed within 60 days of the date on which the applicant is advised by the registrar that the record has been received.

11.2.3 If the applicant fails to follow record within the prescribed, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period, requested the respondent’s consent for an extension of time and consent has been given. If consent is refused, the applicant may, on notice of motion supported by an affidavit, apply to the Judge President in chambers for an extension of time. The application must be accompanied by proof of service and all other parties, and answering and replying affidavits may be filed within the time limits prescribed by Rule 7. The Judge President will then allocate their file to a judge for a ruling, to be made in chambers, on any extension of time that the [applicant]

should be afforded to file the record’.

[19] (2019) 40 ILJ 798 (LAC) at para [22].

[20] The Rules for the Conduct of Proceedings in the Labour Court, as promulgated by GN 1665 in GG 17495 of 14 October 1996.