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IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

 

Reportable

CASE NO: PR 155/22

 

In the matter between:

 

MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT OF ECONOMIC DEVELOPMENT,
ENVIRONMENTAL AFFAIRS AND TOURISM,
EASTERN CAPE	Applicant
And
BRIANT NONCEMBU	First Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL	Second Respondent
SOLOMZI MPIKO N.O.	Third Respondent
SHERIFF OF THE HIGH COURT, EAST LONDON	Fourth Respondent

Heard: 9 June 2023

 

Delivered: This judgment was handed down electronically by circulation to the Applicant’s and the Respondent’s legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing - down is deemed to be 10h00 on 15 June 2023.

 

JUDGMENT

 

JOLWANA AJ

 

Introduction

 

[1]      The applicant has approached this Court on an extremely urgent basis seeking an order staying the enforcement of the arbitration award granted by the third respondent on 18 July 2022 in favour of the first respondent. The order is sought pending the final determination of review proceedings instituted by the applicant. A further relief is sought interdicting the fourth respondent from removing the attached movable property from the custody of the applicant pursuant to the writ of execution issued by the Bargaining Council enforcing the arbitration award.

 

The parties

 

[2]      The applicant shall henceforth be referred to as the department. Save for the first respondent, none of the other three respondents are opposing the relief sought. Consequently they did not participate in these proceedings. The first respondent shall be referred to simply as the employee while the fourth respondent shall be referred to simply as the sheriff. The second respondent shall be referred to as the Bargaining Council. This is done to avoid prolixity and confusion.

 

Background

 

[3]      Before his dismissal, the employee worked for the department serving as the Regional Manager in its Amathole Regional Office in East London. At the time of his dismissal he was holding the position of deputy director. On18 March 2020 he was served with a notice to attend a disciplinary hearing in respect of which he was charged with, inter alia, sexual harassment which allegedly took place during August 2014 while he and his female colleague, the complainant, were accommodated at a guest house in Idutywa for work purposes. He was found guilty in respect of the sexual harassment charge only consequent to which he was dismissed. After the employee was dismissed, he referred his dismissal dispute to the Bargaining Council contending that his dismissal was substantively unfair.

 

[4]      Following arbitration proceedings, the Bargaining Council issued an arbitration award ordering his retrospective reinstatement with no loss of benefits previously enjoyed including the salary which he lost as a result of his allegedly unfair dismissal. The said award was delivered on 18 July 2022. On 2 August 2022 the department instituted review proceedings in this Court challenging the said arbitration award. In this regard a bond of security in favour of the employee was issued for purposes of suspending the enforcement of the arbitration award[1]. The department filed the record in respect of the arbitration proceedings on 1 September 2022. However, the said record was incomplete with certain portions of the arbitration proceedings missing. In October 2022 the department instituted an application compelling the Bargaining Council to dispatch to the registrar a complete record of the arbitration proceedings together with reasons as the Bargaining Council may, by law be required to provide, if any. That order was granted on 7 March 2023.

 

[5]      The department having received the outstanding portion of the record, served it upon the employee on 20 April 2023. The department thereafter on 5 June 2023, filed a notice in terms of Rule 7A(8) of the Labour Court Rules[2].  The department avers that in light of all the above it is now up to the employee to file his answering affidavit in respect of the review application. The department further states that it would soon be making an application for the condonation of its late filing of the record of the arbitration proceedings and the late filing of the Rule 7A(8) notice which the department indicated, would be served before the date of the hearing of this application.  

 

The department’s case

 

[6]      The notice of motion indicating the relief sought is dated 5 June 2023. It calls upon the respondents, if they intend opposing the application, to file their notice to oppose and opposing affidavits on or before the 7 June 2023. It is further indicated that the application would, in any event, be moved on 9 June 2023 at 09:30.

 

[7]      In the founding affidavit deposed to by the chief director of the department he states that on 23 June 2023 he received a telephone call from the department’s legal services director informing him that the sheriff came to the applicant’s premises armed with a warrant of execution for the attachment of the applicant’s assets in enforcement of an arbitration award granted in favour of the employee. Motor vehicles belonging to the fleet management agency of the Department of Transport together with desk top computers and other electronic equipment which are on lease from Sizwe IT Africa (Pty) Ltd and the furniture of the department were all placed under judicial attachment. It is apparent from the papers that reference to the 23 June 2023 was a typographical error. The correct date on which the sheriff visited the premises of the department is the 23 May 2023. On 24 May 2023 the legal services director sought legal advice from the office of the State Attorneys. Counsel’s advise was thereafter sought and he indicated that he was out of town and would only be returning on 1 June 2023. Consultation was therefore arranged for 2 June 2023 and the papers were issued on 5 June 2023 for this application to be heard on 9 June 2023.

 

[8]      The department contends that this application is urgent because they are being harassed by the sheriff who is said to be uncontrollable and intends to remove the attached movable property from the department’s custody. If the sheriff removes the attached assets, the department will suffer irreparable harm because the attached goods are used in the daily operations of the department. The vehicles and the electronic equipment do not belong to the applicant but belong to the Department of Transport and Sizwe IT Africa respectively. Furthermore, some of the attached goods that could be removed contain very important information which is necessary for the department’s day to day operations. If they are removed into the custody of the sheriff, they are open to all sorts of risks including theft and destruction.

 

[9]      It is further stated that because of all the reasons stated above the department will be prejudiced if the sheriff is not interdicted. Furthermore, it is contended that the balance of convenience favours the department for the following reasons. The department is in greater need of the attached goods. The employee will not be prejudiced by the granting of the relief sought. At the conclusion of the review application and if he is successful, and the review application is dismissed, he will be entitled to reinstatement. A bond of security has been filed and therefore there is no possibility of the employee not getting paid as determined in the arbitration award. It is further contended that the employee had no tangible reasons for instructing the sheriff to attach the department’s movable property in light of what the department calls, the established facts. Lastly, the department has a clear right, so goes the submissions, to protect the property of third parties in its custody to prevent chaos that could be created by the imminent removal of the attached goods.

 

The employee’s case

 

[10]    The employee opposes this application and to that end, has filed an answering affidavit in which he makes the following contentions. The first point the employee raises is that the review application is deemed to be withdrawn in terms of clause 11.2.3 of the Practice Manual of this Court. The issue raised about the deemed withdrawal of the review application is dispositive of this entire application. Accordingly, I deal with this aspect of the employee’s opposition first. I will deal with the issue of urgency later as urgency is, in some ways, interlinked with the issue of the deemed withdrawal as will become apparent later in this judgment. It seems that the department also accepts that the review application is indeed deemed to be withdrawn hence their stated intention to apply for the condonation of the late filing of both the record of the arbitration proceedings and their Rule 7A(8) notice. I therefore regard as common cause that the review application is indeed deemed to be withdrawn.

 

The relevant clauses of the Practice Manual

 

[11]    Clause 11.2.1 – 11.2.3 of the Practice Manual provides:

 

“11.2.1 Once the registrar has notified an applicant in terms of Rule 7A(5) that a record has been received and may be uplifted, the applicant must collect the record within seven days. 

 

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 file a record within the prescribed period, 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 affidavit, apply to the Judge President in chambers for an extension of time. The application must be accompanied by proof of service on 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 the file to a judge for a ruling, to be made in chambers, on any extension of time that the respondent should be afforded to file the record.”

 

[12]    The contention of the employee based on the above provisions of the Practice Manual is essentially that department failed to file a complete record of the arbitration proceedings within the prescribed period of 60 days. The department has furthermore not sought the reinstatement of the review application together with a condonation application for the non-compliance with the Rules of Court. The result of all of this, submits the employee, is that there is presently no pending review application as it is deemed to have been withdrawn by the department. The employee further contends that a bond of security in respect of a review application that is no longer pending consequent upon its deemed withdrawal is of no moment. This is so because while the department complied with section 145(7) and (8) of the LRA in filing the bond of security, that was in respect of a pending review. Once the review is no longer pending as it is deemed withdrawn the filing of the bond of security is irrelevant. I understand this contention to mean that absent a live review application, there is no pending review and therefore the bond of security is no longer a consideration.

 

[13]    The employee further contends that his attorneys of record wrote to the department’s attorneys of record on 26 September 2022 enquiring about the filing of the notice in terms of Rule 7A(8) (a) or (b) of the Rules of Court. On 27 September 2022, the department’s attorneys wrote back to his attorneys indicating that the record they had filed was incomplete and requested an extension of time to file a complete record. The employee’s attorneys responded to that letter indicating that the department’s attorneys had up until the 9 November 2022 within which to file a complete record in terms of the Practice Manual. They further informed them that should the department fail to file a complete record, its review application would be deemed to have been withdrawn and they would consequently take steps to enforce the award.

 

[14]    Indeed in their letter dated 26 September 2022 the employee’s attorneys indicated that the department filed the record on 31 August 2022 and reminded them to comply with Rule 7A(8). They further said that they were unable to file their client’s answering affidavit without the department complying with Rule 7A(8) (a) or (b). Only in response to that correspondence did the department’s attorneys indicate that the record they filed was incomplete and were therefore unable to comply with Rule 7A(8). It is important to point out that from 31 August 2022, the date on which the record was filed, the department had 10 days within which to comply with Rule 7A(8) (a) or (b) by filing an amended notice of motion and supplementary affidavit, if so advised, or deliver a notice stating that they stood by their original notice of motion. However, they did nothing and only when they were reminded almost a month later did the department’s attorneys advise their counterparts of their predicament of having been furnished with an incomplete record by the Bargaining Council.

 

[15]    They then asked for an extension of time to file a complete record. They were immediately advised in writing on 27 September 2022 that the filing of an incomplete record was as good as on not filing one at all and were told that they had until the 9 November 2022 within which to file a complete record. It was further indicated that no extension of time would be granted for their failure to comply with the Practice Manual. It was further pointed out to the department’s attorneys that should they fail to file a complete record the review application would be deemed to be withdrawn in terms of the Practice Manual. There is no record of a response to this correspondence. On 14 November 2022 the employee’s attorneys wrote to those representing the department pointing out that in terms of clause 11.2.2 (sic) of the Practice Manual the review application was deemed to be withdrawn and that their client had instructed them to enforce the arbitration award. Again there is no record of a response to this correspondence from the department’s attorneys.

 

[16]    On the department’s own version in this application, the outstanding portion of the record of the arbitration proceedings was served on the employee’s attorneys on 20 April 2023. This means that since the 14 November 2022 when they were warned in writing that their client’s review application was deemed to be withdrawn as from the 9 November 2022, they did nothing for the remainder of November 2022, the whole of December 2022, and the whole of January 2023, February 2023, March 2023 and only on 20 April 2023, on their version, did they file the remaining portion of the record. What is troubling is that the department’s attorneys did not even have to look very far for a solution to their problem of not being able to properly file the record of the arbitration proceedings. The solution is in the Practice Manual itself to which they were directed by their counterparts. All they needed to do was to ask for consent for an extension of time from the employee’s attorneys. If the latter refused, clause 11.2.3 tells them what to do. They must approach, on notice of motion, the Judge President in chambers. Not only was this not done, there is no explanation why it was not done.

 

[17]    What is also shocking, to say the least, is that having received the employee’s answering affidavit in which all these issues are pointed out, the department’s attorneys elected not to file a replying affidavit. This was an opportunity for them to correct any inaccuracies in the employee’s version, if any existed. Furthermore, it was an opportunity for them to explain any difficulties they had and the situation with which they were confronted in not being able to do any of the things they were required to do. This is in particular, their failure to comply with the Rules of Court and why they did not comply with the Practice Manual.  

 

[18]    In any event, it was up to the department to make a clean breast of its situation and explain its predicament in the founding affidavit. None of the facts alleged by the employee were new to them when they instituted this urgent application. They had a duty to be candid with the court about anything in respect of which they may have fallen short as they were asking for an indulgence from the court after all.

 

[19]    The court was informed from the bar that the condonation application was filed on the 7 June 2023 or so, which was about two days before this application was heard. This is almost a year since they were first told about the deemed withdrawal of the review application in September 2022. This is a high level of ineptitude and more concerning is the flagrant disregard of the Rules of Court and the Practice Manual. They are a display of terribly poor and inefficient services by the State Attorneys’ office to their clients. In not complying with the Rules of Court they have a huge potential to undermine the rule of law, a constitutional issue. The lackadaisical approach to litigation by the State Attorneys’ office is not only a matter of huge concern to the court but also affects the proper adjudication of disputes by the courts. To make matters worse and after all the innumerable and  inexplicable missteps, a replying affidavit is not filed on behalf of the department, even if to apologise to the court for not keeping their eyes on the ball, if nothing else. Therefore, everything alleged by the respondent stands uncontested and must be accepted as the department spurned a golden opportunity to file a replying affidavit and explain itself.

 

[20]    In this regard the department is the author of its own misfortune and deserves no sympathy from this Court. Again as if things could not get any worse, the department’s counsel, representing, the dominus litis in these proceedings, came to court with nothing to argue on as there were no heads of argument. It was the employee’s counsel who, despite all the time constraints, handed up heads of argument to assist the court in appreciating the employee’s contentions on facts and the law.  The department’s counsel and his instructing attorneys did not even have on hand, the condonation application that had, on his submission, been filed on the 7 June 2023. It is not clear to me why that application was not filed on an urgent basis with this application. The significance of this point is that, on counsel’s own submissions, that application is intended to revive or reinstate the deemed withdrawn review application. I do not quite understand how an urgent application is moved to stay an execution process on the back of an already deemed withdrawn review application.

 

The deemed withdrawal of a review application.

 

[21]    It seems that there is no proper understanding of the import of the deeming provision provided for in the Practice Manual and the role it plays in standardizing procedures in this Court.  That said, I consider it necessary to look at how our courts have, in previous cases, dealt with deeming provisions in general. In particular, how the Labour Court and the Labour Appeal Court have dealt with similar situations in the past. In Ralo[3] the court said:

 

“To the extent that the applicant contends that the meaning of the word ‘deemed’ is such that the dispute between the parties remains unresolved and that the application has not been withdrawn, the meaning of ‘deemed’ in a context similar to the present has been the subject of an instructive judgment by the Labour Court of Namibia. While Municipal Council of the Municipality of Windhoek v Marianna Esau 2010 (2) NR 414 (LCA 25/2009, 12 March 2010) concerned the lapsing of appeals, the wording of the Rule under consideration in that instance is not dissimilar. Rule 17(25) of the Rules of the Labour Court of Namibia provides that an ‘appeal to which this Rule applies must be prosecuted within 90 days after the noting of such appeal, and unless so prosecuted it is deemed to have lapsed.’ The word ‘deemed’ in this instance was clearly considered to have conclusive effect - in the absence of the prosecution of the appeal within the prescribed period, the appeal was held to have lapsed. (See also Pereira v Group Five (Pty) Ltd & Others [1996] 4 All SA 686 (S) at 698, where the court referred with approval to Steel v Shanta Construction (Pty) Ltd & Others 1973 (2) SA 537 (T), in which Coetzee J stated that the word ‘deemed’ means ‘considered’ or ‘regarded’ and is used to denote that ‘something is a fact regardless of the objective truth of the matter’.) The plain and unambiguous wording of the Practice Manual is to the effect that the applicant must be regarded as having withdrawn the review application.”

 

[22]    In MJRM Transport Services[4]  Tlhotlhalemaje J referred with approval to Ralo and said:

 

“In Ralo v Transport Port Terminals & Others, Van Niekerk J in examining the status of the Practice Manual, and further reference to Tadyn Trading CC t/a Tadyn Trading Consulting Services v Steiner & Others held that:

 

‘I agree. The Practice Manual contains a series of directives, which the Judge President is entitled to issue. In essence, the manual sets out what is expected of practitioners so an to meet the imperatives of respect for the court as an institution, and the expeditious resolution of labour disputes (see paragraph 1.3). While the manual acknowledges the need for flexibility in its application (see paragraph 1.2) its provisions are not cast in the form of a guideline, to be adhered to or ignored by parties at their convenience.’

 

The views expressed in the authorities above are on point and find support in the objectives of the Manual, as can be gleaned from its ‘Introduction’ part which are essentially to promote access to justice by all those whom the Labour Court serves; to promote consistency in practice and procedure; to set guidelines on the standards of conduct expected of those who practice in this court; to tell representatives and litigants how things are done in this Court, and what is expected of them; to address the need to maintain respect for the court as an institution; to promote efficiency in the adjudication of disputes; to improve the quality of the court’s service to the public, and to promote the statutory imperative of expeditious dispute resolution.

 

The manual as it states in its “Introduction” is not a substitute for the Labour Court Rules. Its purpose is to fill in gaps not adequately catered for in either the Rules or the provisions of the LRA for the proper functioning of the court and the expeditious resolution of disputes. Inasmuch as its provisions call for flexibility in their application where required, litigants are nevertheless bound by them. To hold otherwise would lead to a dysfunctional court system, where parties can litigate in any manner that they deem fit, simply because it suits them to do so.”

 

[23]    With all of the above having been said and in particular, the deemed withdrawal of the department’s review application as provided for in the Practice Manual, the question is, what should an applicant such as the department do in that situation? The answer is not far to seek as Prinsloo J so eloquently explained very recently in this very court in Department of Transport[5]. In that matter, the court said:

 

“It is evident from the provisions of the Practice Manual and the applicable authorities that when an applicant is unable to file the record within the prescribed period of 60-days or fails to ensure that all the necessary papers in the application are filed within twelve months of the date of the launch of the application, specific legal consequences would follow. However, an applicant finding him or herself in such a position, is not without a remedy.

 

In the event that the review application is deemed withdrawn due to the failure to file the record timeously or is being archived and regarded as lapsed, with the same consequences as to the matter having been dismissed, an applicant still has recourse. The LAC made it clear that the effect of lapsing or archiving of a matter is that the case shall not be dealt with by a court unless an application to reinstate or to retrieve the file from the archive has been made.

 

The LAC confirmed that a procedure exists to reinstate the case on good cause shown. The deemed withdrawn or archived case acquires a peculiar status which requires the delinquent party to justify why it should be reinstated or retrieved from the archive and thereafter be entertained by a court. The deemed withdrawn or archived application must be resuscitated before it can proceed on its merits. This is achieved by the filing of a reinstatement or retrieval application, which is akin to a condonation application and in which the applicant must show good cause.”

 

[24]    It follows therefore that the fact that the department’s review application is deemed withdrawn means that it cannot be dealt with by the court. Even the interlocutory applications as may be applicable to it cannot, in my view, be dealt with save for one application that must first be dealt with, the reinstatement or retrieval application. Therefore, the department should have moved the condonation application referred to in its papers whose status is unknown, together with or before this application even on an urgent basis, if necessary. The point of urgently interdicting the enforcement of an award pending a review application that is deemed withdrawn is a contradiction in terms. This is so because, pending the reinstatement, retrieval or condonation application, whatever it is called, and until it is granted, there is no pending review application that can be spoken of. At best for the applicant, this application should have been moved on an urgent basis together with what the applicant calls, a condonation application which it was submitted, has been filed to achieve the reinstatement of the deemed withdrawn application. That was ill-advisedly not done.

 

The State Liability Act

 

[25]    There is another matter of substantial concern in how this application was handled. Section 3 of the State Liability Act[6] makes provisions for the process that must be followed to satisfy court orders against the State sounding in money. Assuming that all the processes provided for in various subsections of section 3, as may be necessary to be followed in any particular case were followed up to the point at which on 23 May 2023 the sheriff visited the applicant’s premises and attached the movable property, what then?

 

[26]    The following provisions of section 3 of the State Liability Act are instructive:

 

“(7) (a) Subject to paragraph (b), the sheriff of the court concerned must, pursuant to the writ of execution or the warrant of execution, as the case may be, attach, but not remove, movable property owned by the State and used by the department concerned.

 

(b) The sheriff and the accounting officer of the department concerned, or an official of his or her department designated in writing by him or her, may, in writing, agree on the movable property owned by the State and used by the department concerned that may not be attached, removed and sold in execution of the judgment debt because it will severely disrupt service delivery, threaten life or put the services of the public at risk.

 

(c)  If no agreement referred to in paragraph (b) is reached, the sheriff may attach any movable property owned by the State and used by the department concerned, the proceeds of the sale of which, in his or her opinion, will be sufficient to satisfy the judgment debt against the department concerned.

 

(8)      In the absence of any application contemplated in subsection (10), the sheriff of the court concerned may, after the expiration of 30 days from the date of attachment, remove and sell the attached movable property in execution of a judgment debt.

 

(9)      Subject to this Act, the Rules of Court, where applicable, apply to the issuing of a writ of execution or a warrant of execution, as the case may be, and the attachment, removal and sale of movable property in execution of a judgment debt against the State.

 

(10) (a) A party having a direct and material interest may, before the attached movable property is sold in execution of the judgment debt, apply to the court which granted the order, for a stay on the grounds that the execution of the attached movable property-

 

(i)              would severely disrupt service delivery, threaten life or put the security of the public at risk; or

 

(ii)             is not in the interests of justice.

 

(b) If an application referred to in paragraph (a) is brought by the department concerned, the application must contain a list of movable property and the location thereof, compiled by the department concerned, that may be attached and sold in execution of the judgment debt.

 

(c) Notice of an application in terms of paragraph (a) must be given to the judgment creditor and sheriff concerned.”        

 

 [27]   It may very well be that some of the above provisions are not applicable in this case. However, the point being made is that section 3 of the State Liability Act was completely ignored by the department. Nothing is said about it or about any of its provisions. This includes subsection (8) in terms of which the sheriff, as a matter of law, would not be able to remove the attached goods for a period of 30 days from 23 May 2023. This application was instituted with such haste is if the buffer period of 30 days was not in existence and this section was completely ignored as if none of its provisions apply. It follows that the extreme urgency with which this application was moved was misguided. Possibly a knee-jack reaction to the department’s own failure to comply with the Rules of Court leading to the crisis which was created by the department’s officials including department’s attorneys who should know better.  

 

[28]    In terms of section 3 (8) of the State Liability Act, from the 23 May 2023, which is the date on which the attachment was effected, the department, had, as a matter of law, a period of 30 days during which the attached movable property could not be removed by the sheriff. On the face of this legal provision, bald allegations are made in the department’s founding affidavit by a senior official of the department, the chief director. Some of these allegations are self-contradictory and were clearly made for purposes of embellishment and are possibly false. The chief director of the department says:

 

“33. The Applicant’s officials tried to persuade the Fourth Respondent not to remove the Applicant’s assets, but in vain. The Fourth Respondent displayed his intention to come back and remove the attached assets and his conduct clearly shows that he is not desisting from his intention. Clearly, the Applicant is left with no other option but to approach this Court in this fashion for a proper legal redress.

 

34.     I respectfully contend that in the circumstances set out above the Applicant needs urgent relief for the following reasons:

 

34.1 I have mentioned above that the Applicant is being harassed by the Fourth Respondent who is uncontrollable and had attached the assets of the Applicant and has the intention to remove the assets from the custody of the Applicant.”

 

[29]    Here is the contradiction, a glaring one at that. If the department’s officials tried to persuade the sheriff not to remove the attached movable property but in vain, this suggests, misleadingly so, and in an alarmist fashion, that the goods were removed. But in the very next sentence the deponent says the sheriff displayed an intention to come back and remove the attached goods. Clearly those submissions cannot co-exist.  If the attempt to persuade the sheriff not to remove the goods was in vain, it must follow that the goods were in fact removed. How then is it said that he displayed an intention to come back and remove them?

 

[30]    The applicant goes on to make further submissions evidently to create a non-existent immediate crisis, just to get an extremely urgent hearing in this Court. He says that the applicant is being harassed by the sheriff who is uncontrollable. But the factual averments about how the harassment by the sheriff was done and how the sheriff displayed that he was not controllable, whatever that means, are nowhere to be found in the founding affidavit. The averments about the conduct of the sheriff through which he showed uncontrollability are absent. Words are just thrown in the affidavit with no regard to whether or not the court may be misled.

 

The urgency

 

[31]    Just on the issue of the extreme urgency with which this application was made even putting aside the 30-day period referred to above, the sheriff, on applicant’s own showing, arrived and attached the goods on 23 May 2023. The department’s director of legal services arranged a consultation on 24 May 2023 with Ms Yoba from the office of the State Attorneys to get legal advice. Yoba contacted counsel, who was out of town at that time and only came back on 1 June 2023. Consultation was then arranged to take place on 2 June 2023. The reason for waiting for a specific counsel is not given in the founding affidavit. I can only assume that the reason was that, that particular counsel was the one handling the review application. However, this is not clarified. What is clear from the papers is that a decision was taken to wait for counsel from the 24 May 2023 and consultation only took place on 2 June 2023, almost 10 days later.

 

[32]    There is simply no legal basis for waiting for a specific counsel to be available and the time frames and the chosen date for the moving of an urgent application to be made to suit counsel’s diary. This is another shocking display of the lackadaisical attitude of the legal team involved. In D’ Anos[7] more than 70 years ago, the issue of the non-availability of counsel was settled and what the court said in that case remains the legal position to date. The court said in D’Anos:

 

 “I do not suggest that the defendant is to be regarded as unreasonable because he desired a particular counsel to conduct his case. I think that that is quite a natural desire on the part of a litigant; but it is not one which can be permitted to be decisive in these matters, as I will presently more fully explain.

…

And while the availability of counsel is an element, the desire of the party to have a particular counsel is in no way a decisive factor; the non-availability of counsel cannot be allowed to thwart the bringing before the Court of the matter in issue. In all but the rarest of cases, other suitable counsel will be available. The test is not the convenience of counsel; it is the reasonable convenience of the parties – and by that I mean both parties - and the requirement of getting through the Court’s work which must be the dominant considerations. The availability of counsel is a subsidiary consideration. A party’s predilection for a particular counsel to take his case can, in my view, seldom, if indeed ever, be regarded as a decisive objection to a date of set down which is in all other respects reasonable and acceptable to both parties.”

 

[33]    The week from the 24 May 2023 to the 1 June 2023 is unaccounted for save for the unconscionable reason of waiting for counsel’s availability. Once the department’s counsel of choice became available on 2 June 2023, consultation took place and papers were issued on 5 June 2023. The matter was then set down, with no regard for the respondent or the court, for hearing on the 9 June 2023, a mere three days after the papers were issued. It appears that as far as the department or the legal representatives of the department were concerned, it was fine for them to wait for their preferred counsel for almost 10 days.  Once he became available, only then was action taken and an extremely truncated time table was made setting this application for hearing on 9 June 2023. This is totally unacceptable and displays a way of litigation on the part of those representing the department including the applicant’s director for legal services, that could expose government departments and other organs of State to all manner of risks. It must be emphasized that there are no special rules and no special privileged status is to be accorded to government litigants save as may be provided for in the Rules of Court.  

 

[34]    These papers were poorly drafted, with glaringly huge gaps, inconsistencies and contradictions. This is probably because of the 10 days that were wasted which resulted in the papers being drawn under pressure. Certain remedies available within the legal framework were not explored before rushing to court in the manner in which the matter was brought to court. State organs are not entitled to be accorded some special treatment by the courts. They spend a huge amount of their budget on litigation. They must ensure that the legal services they receive are of the required standard. If this is not done, such expenditure is just a waste of scarce public resources. Just to make an example, it is not clear to me why there was no sense of urgency when the department’s attorneys were warned in writing on 14 November 2022 that the employee would take steps to enforce the award as the review was deemed to be withdrawn. Nothing was done about that correspondence. The so-called application to compel the Bargaining Council to furnish the department with a complete record was launched in October 2022. It was not opposed.  The fact that it was only set down for a hearing on 7 March 2023 in those circumstances is bothersome. What was the department doing during the whole of November 2022, December 2022, January 2023 and February 2023?

 

[35]    Once the order was obtained, the records suddenly became available and were served on the employee’s attorneys on 20 April 2023. Even from that point, nothing was done about the elephant in the room, the fact that the review application was deemed withdrawn about which the department’s attorneys were warned by the employee’s attorneys months earlier. Even the reinstatement application or condonation application for the late filing of the record, the court was told from the bar that it was issued only days before the hearing of this application. Clearly it was issued in an attempt to show that something was being done about the fact that the review application was deemed to be withdrawn. It was moved, not as an urgent application with this application but as an ordinary application that will be dealt with in the normal course. All of this shows a lack of appreciation about the issues involved or lack of concern about further unnecessary delays in finalizing the review.  

 

[36]    Even after the department’s movable property was placed under judicial attachment, the department still found comfort in its counsel not being immediately available and they waited for him and did nothing for more than a week. Not even a letter was written to the employee’s attorneys to point out to them that the attached goods may not and should not be removed, as a matter of law, before the expiry of the statutory 30-day period. They were not told that the department intended to make an urgent application in court for the stay of the enforcement of the award or the stay of execution before that 30-day period expired and sought an undertaking from them that no further steps would be taken. Instead, some averments are made about the sheriff refusing to be persuaded not to remove the attached movable property. Further unfounded statements are made about the sheriff harassing the department and being uncontrollable.

 

[37]    Instead of dealing with the real issues that led to its failure to comply with the Rules of Court and the Practice Manual, the department resorted to an emotional appeal crying for the court’s commiseration. This was done evidently to cover the shockingly poor manner in which this matter has been handled for months from the very beginning. The emotional appeals were taken to another level when counsel submitted in court during the hearing of this application that the employee was found guilty of sexual harassment and that sexual harassment is a huge problem in this country. It is so that the scourge of the unacceptably high levels of various forms of abuse against women in our society cannot be ignored. But that is the very reason why the department should have paid greater attention to this matter and acted with promptitude because of this very sensitivity.

 

[38]    Rules of urgency are an avenue, not for solving self-created crises but for allowing litigants to have access to the courts by the relaxation of the very same court rules as they relate to time frames where it becomes necessary because of the exigencies of a particular matter. They are not there to be misused to cover inefficiencies and downright carelessness in the handling of the matter, not to mention disregard for the Rules of Court and the Practice Manual.

 

[39]    In Nelson Mandela Metropolitan Municipality[8] Plasket J gave a detailed exposition of the rules of urgency as follows:

 

“It is trite that applicants in urgent applications must give proper consideration to the degree of urgency and tailor the notice of motion to that degree of urgency. It is also true that when Courts are enjoined by Rule 6(12) to deal with urgent applications in accordance with procedures that follow the Rules as for an possible, this involves the exercise of a judicial discretion by a Court ‘concerning which deviations it will tolerate in a specific case.’

 

… [I]t is not in every case in which the applicant may have departed from the Rules to a unwarranted extent that the appropriate remedy is the dismissal of the application. Each case depends on its special facts and circumstances. This is implicitly recognized by Kroon J in the Caledon Street Restaurants CC case when he held-looking at the issue from the other perspective, as it were – that the ‘approach’ should rather be that there are times where, by way of non-suiting an applicant, the point must clearly be made that the Rules should be obeyed and that the interests of the other party and his lawyers should be accorded proper respect, and the matter must be looked at to consider whether the case is such a time or not?”     

 

   Conclusion 

 

[40]    In all these circumstances and in particular, the poor handling of this matter, the department’s application must accordingly be struck off the roll. I do hope that this judgment will be brought to the attention of the Head of Department of the applicant. Clearly, a conversation must be had within the department itself for purposes of strengthening the legal services section of the department. If the problem is under resourcing including being understaffed, if that is the case, something needs to be done. I have no reason to doubt about the competencies of the legal services director and her ability to do what needs to be done.  If it is training that she needs, especially in labour matters, that too must be done. They know better what their problems are and they must deal with those problems.

 

[41]    It cannot be that it is correct for the legal services section of the department to allow the notoriously understaffed and overworked attorneys at the State Attorneys’ office to lead to the improper, inefficient handling and even the bungling of their cases to happen. The department may not have full control on how the State Attorneys’ office with all its many challenges, handles their matters. But a mechanism needs to be found to ensure that proper monitoring systems are put in place within the department. There is just no basis for expecting any court to be more tolerant of the mishandling of cases brought by or on behalf of State parties. State litigants must, through their legal services sections, ensure that their cases are handled properly by the office of the State Attorneys and ensure that the under resourcing of the State Attorneys’ office does not compromise their cases. Everybody who knows anything about the office of the State Attorneys across the country would know that in addition to being understaffed, they get pulled in different directions by various State litigants. While that needs to be addressed urgently by the relevant Ministry, the client departments have a responsibility to monitor their own cases so that they are not, as it happened in this case, put in an embarrassing situation of having their movable property attached by the sheriff.

 

[42]    In the result the following order shall issue:

 

Order:

 

1.    The application is struck off the roll.

 

2.    The applicant is ordered to pay the costs of this application.

 

M. JOLWANA

Acting Judge of the Labour Court of South Africa

 

APPEARANCES:

For the Applicant:	Adv. M. Simoyi
Instructed by:	The State Attorneys’ office
For the Respondents:	Adv. M. Thys
Instructed by:	Mhlanga Incorporated

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