Zwane v University of South Africa (J 326/ 21) [2021] ZALCJHB 152 (22 June 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: J 326/ 21

In the matter between:

PHUMLANI

ZWELITHINI

ZWANE

Applicant

and

THE UNIVERSITY OF

SOUTH AFRICA

Respondent

Heard: 15 June 2021

Delivered: 22 June 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 22 June 2021.

JUDGMENT

PRINSLOO, J

Background facts

[1] On 25 March 2021 the Respondent (UNISA) filed an urgent application under case number J 326/21. The relief sought was twofold: Part A sought the stay of arbitration proceedings under case number GATW2504-20, set down for 6 April 2021, pending the outcome of the review application. The relief in Part A was sought on an urgent basis.

[2] The relief sought in Part B was for the review and setting aside of the jurisdictional ruling issued on 6 December 2020 under case number GATW2504-20, wherein the arbitrator found that the Commission for Conciliation, Mediation and Arbitration (CCMA) has jurisdiction to adjudicate the dispute and the CCMA’s case management was directed to set the matter down for arbitration. UNISA also seeks condonation for the late filing of the review application. Part B of the application is to be enrolled in the normal course and on further direction from the Registrar of this Court.

[3] Part A was set down for hearing on an urgent basis and on 1 April 2021 this Court (per Cele J) issued an order to the effect that the application is enrolled as urgent and that the forms and service provided for in the Rules of the Labour Court, be dispensed with and that the arbitration proceedings set down for hearing on 6 April under case number GATW2504-20 and GATW8092-20 be stayed pending the review in Part B of the notice of motion.

[4] On 4 June 2021 the Applicant filed an application with this Court, under the same case number, to ‘strike out and /or remove the matter from the roll and / or permanent stay of the review process.’

[5] On the same date the Respondent filed an answering affidavit in opposition. In the answering affidavit the Respondent raised four points in limine. The first point in limine is that there is no application before Court, as the affidavit supporting the application had not been commissioned, but was simply

signed electronically by the Applicant.

[6] Subsequently and on 8 June 2021 the Applicant filed what purports to be a notice of motion with a founding affidavit, signed by a commissioner of oaths.

Non-compliance with the Rules of the Labour Court

[7] In its heads of argument the Respondent took issue with the subsequent filing of another affidavit and submitted that there is no application before this Court.

[8] This application is a spectacular and shocking display of non-compliance with the Labour Court Rules (the Rules).

[9] Rule 7 provides for applications and Rule 7(1) prescribes that an application should be brought on notice to all persons who have an interest in the application. In casu there was no notice of motion, thus no notice to the Respondent. In the subsequent second application that was filed, a notice of some sort was filed.

[10] The Rules do not make provision for the filing of an application and when the defects of the application are pointed out by a respondent, for another application to be filed without withdrawing the first application. Furthermore, litigants are not entitled to file further affidavits without the permission of this Court, which the Applicant has not sought and which was therefore not granted. The second application filed by the Applicant, clearly in an effort to rectify the obvious defects, is irregular and cannot be considered by this Court in circumstances where the first application and affidavit had not been withdrawn and where the further filing of an affidavit had not been permitted by this Court.

[11] Rule 7(3) prescribes that an application should be supported by affidavit, setting out the names, description and addresses of the parties. In casu compliance with Rule 7(3) is glaringly absent. There is no name, description or address of any party set out, there is no deponent and no affidavit. In short, there is no application before this Court.

[12] This should be fatal to the Applicant’s case.

Urgency

[13] Rule 8 provides for urgent relief and requires of any party seeking urgent relief to file an affidavit wherein the reasons for urgency and why urgent relief is necessary, must be set out.

[14] The Respondent took issue with urgency and submitted that by no stretch of the imagination could the application be regarded as urgent.

[15] The Respondent has merit in its submissions that there is no proper application before this Court and that the matter is not urgent. However and notwithstanding the fact that there is no proper application, let alone an urgent one, before Court, I will exercise my discretion and deal with the merits of this case. This Court has limited resources and a meritless case like the present one, should not make its way back to Court, should not be allocated another Court day and should not require the attention of another Judge, as it no doubt would if it is struck off the roll for lack of urgency or disposed of due to non-compliance with the Rules.

This matter should be determined on the merits and put out of its misery, sooner rather than later.

The merits

[16] This application is premised on the Applicant’s incorrect understanding of the order granted by this Court on 1 April 2021. This much is evident from the grounds of urgency, set out in his papers. The Applicant stated that the application is urgent because in the order of 1 April 2021 it was stated that “the application be enrolled as urgent and that the forms and service provided for in the Rules of this Court, be dispensed with to the necessary extent.”

[17] According to the Applicant, the aforesaid judgment has been ignored by the Respondent as it is more than 36 working days since the order was granted, without the Respondent acting on it. It is evident from his statement that the Applicant’s understanding is that the Respondent brought an urgent review application and that the relief that was granted by this Court on 1 April 2021 pertained to the review application. He stated that “the matter has lost its urgency due to the employer’s failure to bring its review application to finality on an urgent basis. The employer has not provided any reason for its non-compliance with a specific court order to bring the matter on an urgent basis but simply ignored the judgment as if it were of no consequence to the employer.

[18] It is evident from the application filed by the Respondent that there was relief sought in terms of Part A and Part B and that only the relief sought in Part A was sought on an urgent basis. On 1 April 2021 the Court granted relief in respect of Part A only and it is clear from the order granted that the arbitration proceedings were stayed pending the review in Part B. It is astonishing that the Applicant could understand that the review application was brought on an urgent basis, when the notice of motion clearly stated that it would be brought on a date to be determined by the Registrar of this Court or that he could understand that the Court granted any relief whatsoever on an urgent basis relating to the prosecution of the review application. The Applicant’s

interpretation and understanding of the Court order of 1 April 2021 are unique and disconnected from the actual wording of the relief sought and the order that was subsequently granted.

[19] The relief sought by the Applicant in casu is incompetent. I say so for a number of reasons.

[20] Firstly, the Applicant seeks for the review application to be struck off the roll and for the proceedings to be permanently stayed. The reality is that the review application is still pending, it has not been enrolled and thus there is no application on the roll that could be struck off the roll. The review application will be enrolled in due course and there is no basis for those proceedings to be stayed, more so where UNISA has indicated that the pleadings have closed and that it is awaiting a date for enrolment from the Registrar.

[21] Secondly, the Applicant seeks an order that the stay of the CCMA proceedings be uplifted with immediate effect and for the CCMA to be instructed to enrol his case on an urgent or priority basis.

[22] Section 165 (5) of the Constitution of the Republic of South Africa, 1996 (the Consitution) reads that: “An order or decision issued by a court binds all persons to whom and organs of State to which it applies.” In casu the CCMA proceedings have been stayed by an order of this Court on 1 April 2021, pending the review application. It is not competent for the Applicant to seek an ‘upliftment’ of the stay of the CCMA proceedings, when those proceedings were stayed by an order of Court. This Court has no power to ‘uplift’ an order that was granted by the same court. The Applicant has not appealed the Court order of 1 April 2021 and absent an application

for appeal, court orders must be complied with. Be that as it may, the Court order granted on 1 April 2021 is interim in nature and therefore in any event not appealable.

[23] Furthermore, the Applicant seeks for the Respondent to be barred from appeals or re-enrolment requests. This relief is incompetent as it would constitute a contravention of section 34 of the Constitution.

[24] In short: the relief sought by the Applicant is premised on his incorrect understanding of the Court order of 1 April 2021 and the application has no merit. Furthermore, the relief sought by the Applicant is wholly incompetent and cannot be granted by this Court.

[25] The Applicant’s case has to fail for lack of merit.

Costs

[26] The last issue to be decided is the issue of costs. In so far as costs are concerned, this Court has a broad discretion in terms of section 162 of the Labour Relations Act[1] to make orders for costs according to the requirements of the law and fairness.

[27] The requirement of law has been interpreted to mean that the costs would follow the result. In considering fairness, the conduct of the parties should be taken into account and mala fides, unreasonableness and frivolousness are factors justifying the imposition of a cost order.

[28] It is evident from his papers that the Applicant seeks a punitive cost order against the Respondent. In argument the Applicant submitted that he is unemployed and unable to afford to pay costs. He is self-represented and merely seeks to enforce his labour rights.

[29] Ms Maganye for the Respondent submitted that the Applicant should be ordered to pay the costs on a punitive scale. In support of her argument, she submitted that this application was defective, not urgent and unnecessary. The application is an abuse of process, as the review application has been filed, with the record and the Respondent is awaiting a date for enrolment from the Registrar. This application was reckless and should not have been brought.

[30] In Zungu v Premier of Kwa Zulu-Natal and Others[2] the Constitutional Court confirmed that the rule that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand allowing those parties to bring to this Court (or oppose) cases that should not have been brought to Court (or opposed) in the first place.

[31] This is a case where the Court has to strike a balance, considering the requirements of law and fairness. The general accepted purpose of awarding costs is to indemnify the successful litigant for the expense he or she has been put through by having been unjustly compelled to initiate or defend litigation.

[32] In Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others[3] it was emphasized that:

‘…unless there are sound reasons which dictate a different approach, it is fair that the successful party be awarded its costs. The successful party has been compelled to engage in litigation and incur legal costs. An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in the Labour Court, whether as applicant in launching proceedings or as respondent opposing proceedings.’

[33] In my view this is a case where it is appropriate to make a cost order. A cost order is a method of ensuring that decisions to litigate in this Court are taken with due consideration of the law and the prospects of success.

[34] This Court is ordinarily reluctant to make orders for costs against individuals, for whom the prospect of an adverse costs order may serve to inhibit the exercise of what they perceive as their rights. This is not an immutable rule.

[35] In casu, the Applicant brought an opportunistic and meritless application to this Court and fairness dictates that the Respondent cannot be expected to endure enormous costs defending litigation where more thought and consideration had to be put in before approaching this Court, and that on an urgent basis. The Applicant is not an illiterate person who is unable to read and comprehend what the content of the Court order of 1 April 2021 was or what it had ordered. On the contrary, he held a senior position at the Respondent and he does not appear to be unable to comprehend the simple terms of a Court order.

[36] I am alive to the fact that the Applicant is an individual and that he is unemployed, but I cannot ignore the fact that he ultimately initiated this application in circumstances when he should not have done so. Unemployment is not a licence to approach this Court without merit and that on an urgent basis. The Applicant is the author of his own misfortune.

[37] In the present circumstances, the interests of justice require that the Applicant pays at least a portion of the Respondent’s costs. In my view, a sum equivalent to 20% of the Respondent’s costs will best serve those interests.

[38] In the premises, I make the following order:

Order

1. The application is dismissed;

2. The Applicant is to pay the costs of the application, limited to 20% of the Respondent’s taxed costs.

______

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

On behalf of the Applicant: Mr Zwane in person

On behalf of the Respondent: Advocate M S Maganye

Instructed by:

Diale Mogashoa Attorneys

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

[2] (2018) 39 ILJ 523 (CC) at para 24.

[3] (2012) 33 ILJ 2117 (LC) at para p 2119 I-J.