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THE LABOUR COURT OF SOUTH AFRICA

AT CAPE TOWN

 

Not Reportable/Of interest to other judges

case no: C 127/2022

 

In the matter between:

 

NONTSIZI YVONNE MAGXALE		Applicant
and
DEPARTMENT OF HEALTH, NORTHERN CAPE		First Respondent
MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH, NORTHERN CAPE PROVINCE		Second Respondent
PUBLIC HEALTH AND SOCIAL DEVELOPMENT SECTORAL BARGAINING COUNCIL (“PHSDSBC”)		Third Respondent
COMMISSIONER DAVID PETERSEN N.O		Fourth Respondent
COMMISSIONER JULES MCGILLAVRAY-TEALE N.O		Fifth Respondent
ALBERT LINKS		Sixth Respondent

 

Heard:         22 January 2025

Delivered:    5 February 2025

Summary:   (Application for review of two awards and condonation – very excessive delay – explanation wholly inadequate marked by a complete lack of meaningful detail)

 

JUDGMENT

 

LAGRANGE, J

 

Introduction

 

[1]  This is an application to review and set aside two arbitration awards. The first award, handed down on 29 June 2020 by the fourth respondent, concerned an unfair labour practice relating to promotion. In that matter, the employee party was the sixth respondent, Mr A Links (‘Links’).  The outcome of the award was that the post he occupied was declared to be that of CEO of the West End Specialist Hospital (‘WEH’) in Kimberley and a job evaluation grading his post at salary level 13 had to be given effect to.

 

[2]  The second award was issued ten months later, on 29 April 2021. The employee party in that dispute is the applicant, Ms N Magxala (‘Magxala’). The dispute concerned Magxala’s unsuccessful application for appointment as the CEO of the new Kimberly Mental Health Hospital (‘NMH’). She had applied for the position on 20 December 2019. Magxala claims she joined Links as a respondent in the arbitration proceedings, though he is not reflected as a respondent in the award.

 

[3]  Magxala seeks to set aside both awards and wants the court to substitute the second award with an order that the Northern Cape Department of Health and its MEC, being the first and second respondents respectively, must “finalise” the recruitment process for the post of CEO of the NMH which began with the advertisement of the post, but was never concluded, owing to the outcome of the first award which resulted in Links’ appointment as the CEO of the West End Specialist Hospital (‘WESH’), of which the NMH was a part.

 

[4]  Links had been employed as the CEO of WESH since 2014. It was common cause this was the only specialised hospital in the Northern Cape. In October 2019, the third respondent (‘the department’) had refused to implement a job evaluation which had determined that his post should be upgraded from salary level 12 to 13. It was common cause that in his post he was managing both the DRTB and Mental Health clinics of the WESH and that the Mental Health Clinic was a stand-alone facility subsequently housed in new hospital premises, also referred to as the NMH. Links’s office had moved to the new NMH premises. He had argued that the relocation of the mental health clinic to new premises did not entail the establishment of a new hospital since the Minister of Health never gazetted its re-classification, nor had the provincial MEC applied to have it re-classified as such under the Mental Health Care Act 17 of 2002. He had applied for a job evaluation to be conducted on his post because a DPSA circular had indicated that job evaluation results of hospital CEOs did not address the position of provincial specialised hospitals. The new job evaluation of his post in May 2018 determined that his post be upgraded to salary level 13 and the MEC approved it, but it was not implemented.

 

[5]  Subsequently, the department indicated it wanted him to act as CEO of the Mental Health Clinic and he became aware at the end of 2019 that a new post as CEO of the NMH had been advertised. This prompted him to interdict that process. This the court halted the recruitment process pending the outcome of his dispute concerning his promotion. The department’s witness testified that advertising the CEO post of the New Mental Hospital (‘NMH’) without a job evaluation of the post being conducted first, was irregular. Further, because the NMH facility had not been designated as a stand-alone hospital, no CEO could be appointed for it.

 

[6]  The arbitrator found that because the MHC had not been designated as a hospital in its own right, the status of the two specialist facilities remained unchanged, namely the only designated specialist hospital was the WESH comprising the two specialist clinics. The arbitrator found that in terms of  Public Service Regulation[1] 45(1), if a post was undergraded, it was mandatory that the executive authority had to increase the grade to a higher salary level subject to budgeted funds being available. He also considered Regulation 45(2):

“45.   Undergraded posts.­(1)  If the job weight demonstrates that a  post is undergraded and the department's budget and  the    medium­term expenditure framework­

(a)      provides for sufficient funds, an executive authority shall increase the grade of the post to a higher salary level; or

(b)      does not provide for sufficient funds, an executive authority shall redesign the job to equate with the grade of the post prior to regrading.

(2)    If an executive authority increases the grade of a filled post as provided under subregulation (1) (a), he or she shall continue to employ the incumbent employee in the higher­graded post without advertising the post if the incumbent­

(a)      already performs the duties of the post;

(b)      has received a satisfactory rating in his or her most recent annual moderated and approved performance assessment in the post and where the incumbent has not yet been assessed, his or her performance shall first be assessed to determine whether the performance is satisfactory;

(c)      meets the inherent requirements of the post; and

(d)      has been in the post for at least twelve calendar months.”

“(2)   If an executive authority increases the grade of a filled post as provided under subregulation (1) (a), he or she shall continue to employ the incumbent employee in the higher graded post without advertising the post if the incumbent

a)   already performs the duties of the post;

b)   has received a satisfactory rating in his or her most recent annual 

      moderated and approvedperformance assessment in the post; and 

 c)    where the incumbent has not yet been assessed, his or her performance shall first be assessed to determine whether the performance is satisfactory;meets the inherent requirements of the post; and has been in the post for at least twelve calendar months

(3)  The higher salary applicable to the incumbent employee in the higher graded post as provided under subregulation (2) shall take effect on the first day of the month following the month of approval by the executive authority in terms of subregulation (1).”

 

[7]  Satisfied that the evidence was uncontested that Links met the requirements of Regulation 45(2), the arbitrator concluded that the department had failed to comply with its own national policy. He rejected the department's submission that the job evaluation required ministerial approval before it could be implemented and found that the approval by the MEC in April 2019 was sufficient. Further, he decided that because Links was managing both specialist clinics it was obvious he was the CEO of WESH, because it comprised the two units. In the circumstances, in terms of his declaratory power under s 138(9)(c) of the Labour Relations Act, 66 of 1995 (‘the LRA’) he was entitled to make a declaration to the effect that Links occupied the post of CEO of a Specialised Hospital on salary level 13.

 

[8]  It is unclear when Magxala referred her own unfair labour practice dispute to conciliation, but on 13 April 2021 that the arbitration of her dispute commenced. The award in her matter was handed down on 29 April 2021. The gist of the award was that in the advertisement of the post the department had expressly reserved the right not to fill it, and the creation of the post in its entirety had subsequently been abandoned after Links’ award was handed down. Accordingly, Magxala could not show that she had been unfairly denied an opportunity to compete for the post together with other applicants, in circumstances where none of the applicants were considered and the post itself had been abandoned.

 

[9]  Before either of the review applications can be considered, Magxala must persuade the court that her condonation application for the late filing of both review applications should be condoned.

 

The condonation application

 

The extent of the delay

 

[10]  On her own account, Magxala became aware of the first award on 22 September 2020, about three months after it had been issued. This was when she was advised by the department that Links had been appointed to the position in terms of the award. It also advised her that the selection and recruitment process for the MHC had been halted pending the outcome of that award as a result of the interdict obtained by Links. She states that “it took time to get a copy of the award”, but in a glaring omission fails to state when she did, thus obscuring when the six-week period for launching the review commenced. As mentioned, the second award was handed down on 29 April 2021.  The review application was only launched on 6 April 2022, nearly a year after the second award and nearly a year-and-a-half after she became aware of the first award. A review of the first award should have been launched no later than 3 November 2021, and a review of the second award, no later than 10 June 2021. Consequently, the review of the first award was approximately 520 days late and the second about 300 days late.

 

[11]  Even is some allowance is made for the unspecified time it took for Magxala to obtain a copy of the first award, by May 2021 she had instructed attorneys to launch the review application, so she had it by then.  At best for Magxala, that still makes the review of the first award at least as late as the review of the second award. In any event that is hypothetical in the absence of her disclosing when she did receive it. Both periods of delay are very excessively long, having taken twelve and seven times longer, respectively, than the time permitted in terms of s145(1)(a) of the Labour Relations Act, 66 of 1995 (‘the LRA’). The delay must also be considered in light of a policy underlying dispute resolution under the LRA, namely that there is an imperative disputes must be conducted expeditiously[2].

 

The explanation for the delay.

 

[12]  In Grootboom v National Prosecuting Authority & another [3] the Constitutional Court stated:

“[23] It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court's indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the rules or court's directions. Of great significance, the explanation must be reasonable enough to excuse the default.”

(emphasis added)

In Chetty v Baker McKenzie [4], the LAC reaffirmed that:

“[10] However, the further principle applicable in conjunction with the broad approach of Melane is that in the absence of a full and reasonable (acceptable) explanation for the delay, the prospects of success are immaterial, and that if there are no prospects of success an application for condonation should be refused even if there is a good explanation for the delay. It is important that the explanation for the delay, considered objectively, must be ‘sufficiently cogent to warrant a consideration of the prospects of success’. There are those explanations that do not meet the objective standard. In such cases the court would be justified in not considering the prospects of success, because they are immaterial, unless issues are raised that would justify the court’s interference. The explanation for the delay must thus be full and reasonably clear, logical and convincing to excuse the default.”

(emphasis added)

 

[13]  Where the delay is extensive, as it is in this instance, if the delay cannot be justified, prospects of success may be immaterial to the condonation application.[5]. An applicant for condonation is expected to give a reasonable explanation for all periods delay[6].

 

[14]  There is some dispute that Magxala only became aware of the first award in September 2020, but for the purposes of this analysis I will assume in her favour that her version must be accepted. What is entirely missing from her account is any explanation what steps she took after that to obtain a copy of the award and when she did receive it.  She refers vaguely to the fact that it took “some time”, but what “some time” was, remains a mystery.  In her replying affidavit she added that, at some other unspecified time, she appointed “other attorneys from Engelsman Magabane Attorneys in Kimberely but did not get any joy from them as they did not even issue the application on my behalf I had to get an alternative”. This implies that previous attorneys had been appointed, but she does not tell the court who those attorneys were, when they were instructed, when their mandate was terminated, when she appointed the Kimberley attorneys she mentions, and when their mandate was also terminated. Insofar as the very sketchy details of her supposed dealings with previous attorneys are concerned, her account is completely opaque and reveals nothing of value in explaining the delay.  It is difficult to understand how Magxala could believe that she has furnished any explanation for the delay in reviewing the first award, for the period from September 2020 until mid-March 2021. For the subsequent period she offers another explanation relating to the illness of her sister and mother, both of whom passed away in June and October 2021 respectively.

 

[15]  Magxala’s sister had been caring for their mother in De Aar who had been suffering from diabetes and hypertension for some years. In late March 2021, her sister also fell ill and was hospitalised owing to Covid-19 infection and subsequently was diagnosed with cancer. Owing to her sister being incapacitated, Magxala could no longer care for their mother, and she had to find an alternative carer. This situation caused her considerable distress and by May 2021 she was suffering high levels of anxiety and was diagnosed with major depression and was placed on treatment. She was advised to avoid stressful activity and to focus on activities which were more conducive to a positive mental outlook.

 

[16]  Magxala’s sister succumbed to her illness at the end of June 2021 and her mother passed away in early October that year. Magxala says the strain of grieving their loss led to her failing to comply with one of her work obligations. In March 2022, her psychiatrist issued her with a letter confirming that she had been under treatment since May 2021 and that her grief disorder and treatment in the form of medication had negatively affected her cognitive, social and occupational functions.  The letter stated that it was recommended that she be granted “time concessions where she so requests.” This letter is the only document Magxala provided in support of her illness.

 

[17]  Doubtless Magxala’s situation must have been very stressful.  However, nowhere does she state she missed any work as a result, or that she took sick leave. The psychiatrist’s letter only asks that she be granted time concessions when she requested it. She did not claim she was booked off work or that she could not perform her work, apart from one duty she neglected. Magxala also was able to testify at her arbitration hearing on 13 April 2021, which was after her sister had fallen ill. In passing, I note that by that stage she definitely had a copy of the first award because she referred to the document when she gave her evidence at the arbitration.  

 

[18]  In argument, her attorney, Mr Lobi urged the court to have regard to the general impact of the Covid-19 epidemic as a further factor justifying the delay, but apart from the illness of her mother and sister, any detail of the specific impact of the pandemic on Magxala’s ability to launch her review is entirely absent from her account.  For the time when her mother passed away in October 2021 and launching the review application in early April 2022, Magxala provides no explanation what prevented from acting.

 

[19]  The upshot is that the explanation tendered for such a long delay is wholly lacking in the necessary detail from which the court could infer that she was engaged in a serious endeavour to initiate the review application but was thwarted by obstacles in her way. In the circumstances, I am satisfied that her condonation application should be dismissed for this reason alone.

 

[20]  Even if I were to consider the prospects of success, the problems she would face are formidable.  Essentially, in order to succeed Magxala would have to be able to compel the department to re-advertise a position which it had withdrawn, and which would overlap with the position occupied by Links. Even if she were able to establish that she had locus standi to review the first award and if she could demonstrate that the first arbitrator had no authority to ‘appoint’ Links to the post of CEO of WESH, it does not follow that the department has to resuscitate the post she applied for, which it abandoned once the first award was issued.

 

[21]  In view of the analysis above, the following order is made:

 

Order

 

1.  The application to condone the late filing of the review application of arbitration awards dated 29 June 2020 (case number PSHS 848-19/20) and 29 April 2021 (case number PSHS 601-20/21) issued by the Fourth and Fifth Respondents respectively is dismissed.

2.  No order is made as to costs.

 

R Lagrange

Judge of the Labour Court of South Africa.

 

Representatives:

For the Applicant: Lulama Lobi of Lulama Lobi Inc.

 

For the Sixth respondent: Donald Carls from Carls Attorneys

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