Tokologo Local Municipality v Modibedi and Others (JR531/14) [2016] ZALCJHB 197 (25 May 2016)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case No: JR531/14

DATE: 25 MAY 2016

Not Reportable

In the matter between:

TOKOLOGO LOCAL MUNICIPALITY...............................................................................Applicant

And

PALO PHANUEL MODIBEDI...................................................................................First Respondent

ABRAHAM NTHAKO N.O....................................................................................Second Respondent

THE SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL........................................................................................Third Respondent

Heard: 12 January 2016

Delivered: 25 May 2016

PIENAAR, AJ

Introduction

[1] This is an application in terms of section 158(1)(g) of the Labour Relations Act, No 66 of 1995 ("LRA") to review and set aside a rescission ruling issued by the Second Respondent.

[2] On 24 February 2014, the Second Respondent refused to grant an application by the Applicant for rescission in terms of section 144 of the LRA of an arbitration award dated 22 January 2014, which is the subject of this review.

Background

[3] It is common cause that the First Respondent, Mr Modibedi, was appointed on 13 December 2010 as a Personal Assistant to the Mayor of the Applicant, which contract was extended from time to time. It was an express condition of the contract of employment that Modibedi's employment contract would be aligned to the term of office of the Mayor.

[4] According to Modibedi, he was thereafter formally appointed by the Applicant to the position of the Performance Management Assistant

Officer (PMAO), which was with effect from 1 July 2012.

[5] On 7 August 2013, Modibedi received a letter from the Applicant stating that the former Mayor had resigned on 23 July 2013. In the letter, the Applicant advised Modibedi to vacate his office on 12 August 2013 at 12h00. It must be noted that this letter of 7 August 2013 also stated that the Applicant's contractual obligations with Modibedi would be discussed in due course. It is common cause that no such discussion ever took place.

[6] On 12 August 2013, Modibedi once again received a letter from the Applicant notifying Modibedi of the termination of his employment on the grounds that his term of office was linked to that of the Mayor who had ceased to hold office on 23 July 2013.

[7] It is common cause that no procedures were followed in terminating the employment relationship.

[8] Modibedi proceeded to address a letter to the Applicant's Municipal Manager, advising the Municipal Manager that, insofar as he (Modibedi) was appointed in the position of PMAO, it was incorrect that his contract was linked to the term of office of the Mayor. No response to this letter by the Applicant was forthcoming.

[9] On 21 August 2013, Modibedi addressed another letter to the Applicant in which he once again stated that the grounds for his dismissal were invalid because his appointment as PMAO was not dependent on the term of office of the Mayor. Once again, no response to this letter by the Applicant was forthcoming.

[10] On 11 October 2013, the dispute was conciliated, whereafter, the dispute was referred for arbitration. The Applicant was represented

by an official of the Municipality at conciliation.

[11] The Applicant did not attend the arbitration proceedings. As such, an arbitration award was made by default in favour of Modibedi.

[12] The Applicant proceeded to bring an application for rescission of the arbitration award, which was opposed by Modibedi. The Applicant did not file any replying affidavit therein.

[13] In the application for rescission, the Applicant submitted that the notice of set down of the arbitration was not brought to the attention of the Municipal Manager before the arbitration date. As such, the Applicant submitted that it did not have an opportunity to present its case. The Applicant did, however, admit that the notice of set down was faxed to the municipality on 6 December 2015.

[14] The Applicant submitted that it always attends hearings when notices are received by it and that if the notice was brought to the Municipal Manager's attention, it would have attended the arbitration.

[15] In this regard, it must be noted that the Applicant, in its application for rescission, did not tender any possible explanation

or not receiving the notice of set down or if it was indeed received, why it did not come to the attention of the relevant authorities.

There was also no explanation with regard to what fax number was used, i.e. a general fax number or otherwise. The Applicant simply

denied having knowledge of the notice of set down before the arbitration date.

[16] Dealing with the prospects of success in the rescission application, the Applicant submitted that Modibedi was appointed as a Personal Assistant to the Mayor and that his (Modibedi's) contract was aligned to the term of office of the Mayor. Therefore, according to the Applicant, the reason for the termination of Modibedi's employment was the fact that the Mayor's term of office came to an end.

[17] The Applicant submitted that Modibedi was at no point appointed as “Performance Management System Officer”. I will assume that the Applicant intended to say Performance Management Assistance Officer.

[18] In his answering affidavit to the application for rescission, Modibedi referred to the fact that the notice of arbitration was sent to the same fax number as the notice as the notice of conciliation. The notice of conciliation was indeed received by the Applicant.

[19] What is important, however, is that Modibedi, in dealing with the prospects of success in his answering affidavit in the rescission

application, highlighted the fact that he was appointed as PMAO and annexed his contracts to that effect.

[20] The Applicant chose not to reply to this statement or to the contract that was put forward by Modibedi as proof of his appointment as PMAO.

[21] The application for rescission was accordingly refused on the grounds that the Applicant failed to fully explain why it did not receive the notice of set down and that it did not show good prospects of success, especially, in light of the fact that Modibedi provided proof of his appointment as PMAO.

[22] The Applicant proceeded to bring the present application for review and setting aside of the Second Respondent's rescission ruling. The Applicant's grounds for review were as follows:-

22.1 The Second Respondent failed to objectively consider or enquire as to the whereabouts of the Applicant on the arbitration date;

22.2 The Second Respondent failed to apply his mind to the facts in not granting the rescission application and finding that the Applicant had received the notice of set down. The Second Respondent also failed to apply his mind when he found that there were no prospects of success.

22.3 The Second Respondent made a decision which no reasonable decision maker would have made.

[23] In the founding affidavit of the Municipal Manager of the Applicant before this Court, Mr Mothale, submitted that, on 4 March 2013, the appointment of Modibedi as PMAO was reviewed and found not to be in line with the Municipal policies and/or procedures for the recruitment of staff and placement. A letter containing this information was attached to Mothale's founding affidavit. The letter is dated 4 March 2013 and addressed to Modibedi. The letter also states that Modibedi's employment and/or conditions will be in accordance with his initial appointment with the municipality. This information was not put before the Second Respondent in the application for rescission.

[24] Therefore, it was submitted by Mothale in his founding affidavit that Modibedi's appointment was lawfully terminated.

[25] I have noted that this version is different from the version in the Municipal Manager's affidavit put before the Second Respondent,

wherein the Municipal Manager stated under oath that Modibedi was at no point appointed as PMAO.

[26] In his opposing affidavit before this Court, Modibedi denies ever having seen the letter dated 4 March 2013. Modibedi submitted that the Applicant drafted this letter as an after-thought in an attempt to justify the termination of Modibedi's employment. To this end, Modibedi submits that there is no evidence as to when this supposed review of his appointment took place and that no minutes of such alleged review were attached to the Mothale's founding affidavit. Further, the letter was clearly not signed by Modibedi.

[27] As with the application for rescission, the Applicant again chose not to file a replying affidavit for purposes of the review application.

Analysis and findings.

[28] In my assessment of the application for review, I must consider the requirements for an application for rescission before the CCMA.

[29] In terms of Rule 32 of the CCMA Rules read with section 144 of the LRA, any affected party is entitled to apply for variation or rescission of a ruling or an arbitration award.

[30] Prior to the amendments of the LRA, which took effect on 1 January 2015, section 144 provided for the following grounds upon which an application for variation or rescission could be brought- (a) that the award or ruling was erroneously sought or made in the absence of any affected party; (b) that the award or ruling contains an ambiguity or an obvious error or omission; (c) that the award or ruling was granted as a result of a mistake common to the parties.

[31] While the majority of judgments historically held that it is necessary to show "good cause" when applying for rescission,[1] there are judgments which expressed the position that “good cause” was not required in terms of section 144 of the LRA.[2]

[32] However, in Shoprite Checkers (Pty) Ltd v CCMA and Others[3] ("Shoprite"), the Labour Appeal Court settled the question of whether “good cause” is required for the purposes of rescission applications. The Labour Appeal Court held that the requirement of good cause should be read into section 144 of the LRA.

[33] The Labour Appeal Court held further that the test for good cause in a rescission application involves the consideration of two factors, namely the explanation for the default and whether the applicant has a prima facie defence.[4]

[34] The Labour Appeal Court in Shoprite[5] also referred with approval to MM Steel Construction CC v Steel Engineering and Allied Workers Union of SA and Others[6] in which the Labour Appeal Court held that:-

‘These two essential elements ought nevertheless not to be assessed mechanistically and in isolation. While the absence of one of them would usually be fatal, where they are present they are to be weighed together with relevant factors in determining whether it should be fair and just to grant the indulgence.’[7]

[35] In Total Facilities Management Co (Pty) Ltd v CCMA and Others,[8] the Labour Court applied the Shoprite judgment and held as follows regarding the requirement of a prima facie defence:-

‘A commissioner in considering prospects of success does not have to pronounce on the merits of the case. All that the commissioner needs to do is to investigate whether, on the averments made by the applicant, there is a chance of succeeding when the main case is heard. The applicant need not deal with the merits of the case.’[9]

[36] It is noted that the amendments to the LRA, on 1 January 2015, introduced a further ground for variation and rescission of a ruling or arbitration award in section 144 of the LRA, namely, that an award or ruling may be varied or rescinded where same was ‘made in the absence of any party, on good cause shown’.

[37] I am not satisfied with the manner in which the Applicant dealt with its failure to attend the arbitration proceedings. One expects the Applicant to at least provide some explanation with regard to the fax number used, such as that it is a general fax number used by several employees etc.

[38] I am also not satisfied that the Applicant showed a prima facie defence for the reasons set out below.

[39] In the rescission application, the Applicant alleged that Modibedi's contract of employment was aligned to that of the Mayor. Modibedi

proceeded to submit a different contract of employment as proof of his appointment as PMAO, which position was not aligned to that of the Mayor.

[40] The Applicant did not file a replying affidavit before the Second Respondent to dispute the existence of such new contract, as it did in its application before this Court.

[41] One would have expected the Applicant to produce the letter dated 13 March 2013, purporting to withdraw the appointment of Modibedi as PMAO, in a replying affidavit before the Second Respondent. However, this letter was for the first time produced by the Applicant before this Court. As stated above, such version in any event seems to be contrary to the version put forward by the Applicant in the application for rescission. I cannot consider such new evidence that was never put before the Second Respondent.

[42] In my view, if an entirely new allegation is raised in an opposing affidavit, there is a duty to respond to it. In the absence of a response, the only inference which can be drawn is that the Applicant does not have a proper response.

[43] In addition, the Appellate Division in Plascon-Evans Paints Ltd v Van Riebeek Paints (Pty) Ltd,[10] referred with approval to the following dictum from Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd:[11]

‘… where there is a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant's affidavits justify such an order… Where it is clear that facts, though not formally admitted, cannot be denied, they must be regarded as admitted.’

[44] Therefore, I am in agreement with the Second Respondent that the Applicant did not show a prima facie defence. The Applicant, therefore, did not meet the second requirement for “good cause” as set out above, i.e. that

of a prima facie defence. Thus, there is no basis to review or set aside the ruling of the Second Respondent.

[45] The Application for review is, accordingly, dismissed and the Applicant is ordered to pay the travelling costs and accommodation for one night of Modibedi in this matter.

Pienaar, AJ

Acting Judge of the Labour Court of South Africa

Appearances.

For the Applicant: Advocate: B S Mene

Instructed by: Morobane Incorporated

For the Respondent: In person

[1] See Northern Province Local Government Association v CCMA and Others (2001) 22 ILJ 1173 (LC); Foschini Group (Pty) Ltd v CCMA and Others (2002) 23 ILJ 1048 (LC) and Northern Training Trust v Maake and Others (2005) 26 ILJ 1119 (LC).

[2] See Day and Night Investigators CC v Ngoasheng and Others [2000] 4 BLLR 398 (LC).

[3] [2007] 10 BLLR 917 (LAC) at para 33.

[4] Ibid at para 35.

[5] Shoprite (supra) at para 36.

[6] (1994) 15 ILJ 1310 (LAC)

[7]Ibid at 1311 I – 132A.

[8] [2007] ZALC 53; [2008] 1 BLLR 73 (LC).

[9] Ibid at para 26.

[10] [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634e-f.

[11] 1957 (4) SA234 (C) at 235E-G.