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Kosheva and Others v Gauteng Department of Health and Others (JR 2328/05) [2007] ZALC 65 (19 September 2007)

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CASE NO: JR 2328/05

In the matter between:










Molahlehi AJ


  1. This is an application terms of which the applicants seek an order to review and set aside the arbitration award issued under case number PSHS 558-04/05, dated 11 July 2005.

  1. The applicants raised a point in limine concerning the late filing of the first respondents answering affidavit and the respondent on the other hand raised a point in limine concerning the locus standing of the first applicant.

Locus standi

  1. Before dealing with other issues in this matter, it seems to me appropriate to dispose off the issue of locus standi as raised by the respondent.

  1. The respondent contended that Mr Kocks, the deponent to the founding affidavit, did not have locus standi to bring this application because he failed to proof this fact in his founding affidavit. In this regard the respondent contended that the applicant has failed to make averments in his founding affidavit and attach supporting affidavits to show that he had indeed been authorized by the other applicants to bring this application.

  1. In my view fairness to both parties requires that rather than resolving the matter on the basis of a technicality, attention be had to the real issues that is confronting the parties at the workplace. However, having said this I will deal with the point raised by the applicants concerning the late filing of the answering affidavit by the respondent.

Background facts

  1. Facts in this case, are common cause. The applicants are doctors employed by the first respondent at its Leratong hospital in Gauteng.

  1. The dispute concerned the interpretation and application of the Commuted Overtime Policy. This policy was negotiated and agreed to between the four representative trade unions at the workplace. This policy was introduced apparently with the view to solving problems that had arisen in the previous system. The policy provided for a number of options concerning overtime. The options were A, B, C, D and E contained in Circular 27 of 1998. Option E applied to the applicants.

  1. Prior to 1997 the principles governing overtime as contained in the Basic Conditions of Employment Act 75 of 1997 (BCEA) were not applicable to the public service employees. The principles were introduced to the public service by the provisions of section 94 of BCEA which made the provisions of the BCEA binding on the state as an employer.

  1. Significant changes were also introduced in the public service labour relations by the Labour Relations Act 66 of 1995 (LRA) which amongst other things introduced collective bargaining structures with inter alia powers to set conditions of employment. The LRA provides for the establishment of the Public Service Coordinating Bargaining Council (the PSCBC) whose main objective is to facilitate bargaining in the public service including coordination of Sectoral Bargaining Councils. The Sectoral Councils may adopt resolutions that may govern the terms and working conditions in their respective sectors. The resolutions of the Sectoral Councils have to be aligned to both the BCEA and the PSCBC resolutions.

  1. Clause 7.1 of Resolution 3 of 1999 of the PSCBC deals with payment of overtime to public service employees. It provides that the employer shall provide compensation for night overtime when; (a) an employer requires an employee, in writing, to perform paid overtime between 20:00 hours and 6:00 hours and the employee does not work at night.

  1. Clause 8.1 provides that the employer may pay an employee a fixed monthly allowance to compensate for overtime if (a) the employee performs reasonable similar amounts of authorized overtime, Sunday work or night overtime from month to month, and (b) the employee agrees in writing.

  1. The provisions of Resolution 3 relating to payment of overtime were interpreted in the Financial Manual (the manual) issued by the Department of Public Service (DPSA) on 19 August, 1999. The interpretation of a Resolution 3 is provided for under paragraph 5 of the manual. The overtime rates for Sunday and during the nights, which is the period between 20:00 hours and 06:00 hours, are calculated at two times her or his normal hourly remuneration. Their overtime rates at other times are calculated at one and a third times her or his normal hourly remuneration.

Condonation Application

  1. The respondent received the supplementary affidavit of applicants on the 5 May 2005, and filed its answering affidavit on 30th June 2006, a period of six weeks delay. The explanation for this delay is set out in the respondent’s application for condonation and the essence thereof is that the delay was caused by having to wait for authorization to instruct counsel. The respondent also indicate that an approach was made to the applicants’ attorneys for an indulgence in this regard but was declined.

  1. It is trite that when considering a condonation application the court has to exercise discretion whether or not to grant such an indulgence. The factors which the court takes into consideration in assessing whether or not to grant condonation are (a) the degree of lateness or non-compliance with the prescribed time frame, (b) the explanation for the lateness or the failure to comply with time frames, (c) bona fide defense or prospects of success in the main case; (d) the importance of the case, (e) the respondent's interest in the finality of the judgment, (f) the convenience of the court; and (g) avoidance of unnecessary delay in the administration of justice. See Foster v Stewart Scott Inc (1997) 18 ILJ 367 (LAC).

  1. It is also trite that these factors are not individually decisive but are interrelated and must be weighed against each other. In weighing these factors for instance, a good explanation for the lateness may assist the applicant in compensating for weak prospects of success. Similarly strong prospects of success may compensate an inadequate explanation and a long delay.

  1. In an application for condonation, the applicant giving an explanation that shows how and why the default occurred shows good cause. There is authority that the court could decline the granting of condonation if it appears that the default was willful or was due to gross negligence on the part of the applicant. In fact the court could on this ground alone decline to grant an indulgence to the applicant.

  1. Prospects of success or a bona fide defense on the other hand mean that all that needs to be determined is the likelihood or chance of success when the main case is heard. See Saraiva Construction (Pty) Ltd v Zulu Electrical & Engineering Wholesalers (Pty) Ltd 1975 (1) SA 612 (D) and Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 765A-C.

  1. Depending on the circumstances of a given case, absence of a reasonable and acceptable explanation for the delay renders even excellent the prospects of success immaterial, and similarly absence of prospects of success will not assist even in the face of the most persuasive and good explanation for the delay. In those circumstance the accepted approach is that an application for condonation should be refused. In this regard see Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C-F, It has also been held by the courts that the applicant should bring the application for condonation as soon as it becomes aware of the lateness of its case

Explanation for lateness

  1. The period of six weeks delay is in my view a considerable period of delay taking into account that the calculation of the delay is from the date of receipt of the supplementary affidavit of the applicants. At this stage the respondent was already in possession of the founding affidavit of the applicants. While the explanation is not satisfactory, it is not so unreasonable that it could be said to close the need for consideration of any other factors that may influence the consideration of the indulgence requested.

  1. I now proceed to consider other factors, which influence the direction, that need to be taken in evaluating whether or not to grant condonation.

Prospects of success

  1. The applicants set out the grounds for review in their notice of motion in the following terms:

2 Determining the dispute between the parties on the record, alternatively referring the dispute between the parties back to the third respondent for arbitration be for an arbitrator other than the second respondent.”

    1. Directing that such of the respondents as may choose to oppose the relief sought herein be ordered to pay the costs of this application for review jointly and severally, the one paying the others to be absolved.

    2. Further and /or alternative relief.”

  1. There can be no doubt that the above does not comply with the requirement of the provisions of s145 of the LRA which will be discussed in details later in this judgment. The found affidavit of the applicants does not assist, as it does not take the case of the applicant any further than where the notice of application has left it.

  1. In essence the grounds of review as raised by applicants in their founding affidavit is that the arbitrator incorrectly interpreted the provisions of Circular Letter 27 of 1998 in that he failed to agree with their argument.

  1. The applicants contended that the dispute relates to the question as to which rate of remuneration should apply to compensate the applicants for additional overtime worked over and above 86 (eighty six) hours per month. They argued that whenever they work over time in excess of 86 (eighty six) hours a month, then in respect of hours worked after 20:00 and before 06:00 on weekdays and on Saturday they should receive double the ordinary tariff and not be remunerated at one third times the ordinary pay.

  1. The pre-arbitration minute, signed by the parties record the dispute as follows:


    1. In the first phase of the arbitration the parties require the arbitrator to decide-

      1. Which agreement/ policy applies when doctors work in excess of eighty six hours a month in respect of hours worked after 20:00 and before 06:00 on weekdays and (in respect of all hours worked) on Saturdays; and

      2. Whether the correct policy or agreement is being applied in respect of the employees employed at the Leratong Hospital.

    1. Should the arbitrator find that the correct agreement / policy is being applied correctly at the Leratong Hospital, that will be the end of the dispute.

    1. Should the arbitrator find the correct agreement / policy is not being correctly (sic) at Leratong Hospital, the employer shall then disclose to the employees and their attorney the rosters in respect of the employees from January 2002 to date and the official rate in respect of junior, senior and principal doctors (all three legs) from January 2002 to date, and the parties shall meet to resolve the amounts due to the employees in respect of back pay.

    1. Should the parties not resolve the amounts due to the employees in respect of back pay within two months from the date of the award on the first phase, the employees may request the arbitrator to determine the amounts due to them and to make an appropriate determination and order in that regard.”

  1. It is evidently clear that on this basis alone it can be concluded that the respondent has exceptional prospects of success in defending its case when the merits are considered. In the circumstances the late filing of the respondent’s answering affidavit is condoned.

The arbitration award

  1. The arbitrator in his award found that:

5.8 Therefore the policy in terms of Option E for doctors must be interpreted as follows:

      1. That commuted overtime worked between 20hOO und 06h00 on weekdays and Saturdays be calculated at a commuted rate of 16 multiply by 1.3;

      2. That overtime worked on Sundays and/or on public holidays calculated at the rate of 16 multiply by 2 (double);

That the contents of item 5.82 above are applicable to all the employees of the public service including doctors; and

      1. That both situations i.e, it concerns 5.8.1 and 5.8.2 comply with the provisions of the Basic Conditions of Employment Act.

      2. In the circumstance, I find that there is no sufficient evidence before me to suggest that the policy on commuted overtime for doctors at Leratong Hospital is not applied correctly.”

  1. The arbitrator in his award found that the policy of commuted overtime was applicable to doctors within the department of health and also that the respondent did not commit an unfair labour practice in relation to how it calculated the overtime worked by the applicants.

Grounds for Review

  1. In essence the grounds for review as raised by the applicants concerns the alleged incorrect interpretation of Circular Letter 27 of 1998 and the failure by the arbitrator to take into account the arguments of the applicants. The correct interpretation, according to the applicants is that the arbitrator should have found that commuted overtime should be interpreted on the basis of sixteen miltiplied by two whenever they worked overtime during the times referred to above.

  1. The test for a review is not the correctness of the decision of the arbitrator but as stated in Carephone (Pty) Ltd v Marcus N.O. and Others (1998) 19 ILJ 1425 at 1435 paragraph 37, whether or not there is a rational objective basis justifying the connection made by the arbitrator between the material properly available to him or her and the conclusion he or she arrived at.

  1. The rationality test was recently reaffirmed in the case of Rustenburg Platinum Mines Ltd v CCMA & Others (2006) 11 BLLR 1021 (SCA). The test for rationality is satisfied if there is reasonable logical connection between the evidential material properly placed before the arbitrator and his or her decision.

  1. The question in this matter is therefore whether there is a rational connection between the evidence, as was properly placed before the arbitrator relating to the interpretation of the policy of commuted overtime. The question raised by the applicants is not whether the decision of the arbitrator justifiable and rational but whether it is correct. In fact their case is that the arbitrator’s decision is incorrect because it does not agree with their interpretation.

  1. The case of the applicants is unsustainable. The arbitrator arrived at his decision after carefully summering the arguments of both parties and weighing them against each other. He then arrived at a rational conclusion that the respondent’s interpretation of the policy was correct and that the respondent as a result of the manner in which it implemented the policy on commuted overtime did not constitute unfair labour practice.

  1. I have no doubt in my mind that the circumstance of this case dictates that the costs should follow the result.

  1. In the circumstances the review application is dismissed with costs.


Molahlehi J

Date of Hearing : 31 May 2007

Date of Judgment : 19 September 2007


For the Applicant : J D Vester of J D Vester Labour Law Offices

For the Respondent: Adv M W Dlamini

Instructed by : State Attorney