The MEC for Economic Development, Environment and Tourism for Limpopo Province (the “Appellant”) brought an application in terms of section 158(1)(h) of the Labour Relations Act 66 of 1995 (the “LRA”) to review and set aside the appointment of Madimetja Mogahlane (the “Respondent”) as the Senior Manager of the MEC for the abovenamed State department.
The Respondent applied for the vacant position of Senior Manager: MEC Support Services in or during April 2013 and was appointed to the position on a temporary basis, until such time as a permanent Senior Manager was selected.
On 15 July 2013, interviews for the position of permanent Senior Manager took place and the Respondent was deemed the most suitable candidate. The Applicant’s appointment letter was signed off by the Head of Department (the “HOD”) and sent to the Respondent on 17 July 2013. However, on 24 July 2013, the Appellant instructed the HOD to reverse the Respondent’s appointment due to an alleged irregularity in that the applicable procedures for appointment in the public sector were not complied with. As such, the Appellant made application to the Labour Court for an order declaring the Respondent’s appointment as Senior Manager unlawful and null and void.
Labour Court decision:
The application to declare the Respondent’s appointment unlawful and invalid was instituted on the basis of a review application in terms of section 158(1)(h) of the LRA. Section 158(1)(h) states that the Labour Court may review any decision taken or an act performed by the State in its capacity as an employer, on such grounds as are permissible in law.
Although the Respondent was appointed to the position of Senior Manager on 16 July 2013, the application for review was only brought on 13 January 2014, some six months later. The Respondent opposed the application and filed a counter-application to be reinstated as Senior Manager. The Respondent furthermore contended that the application before the Labour Court must be dismissed, as the Appellant was dilatory in instituting the review proceedings and additionally failed to provide a reasonable explanation for delay.
The Court held that a formal request for condonation justifying the Appellant’s undue delay in instituting proceedings was necessary, as the application was brought more than six weeks after the date on which the decision subject to review was made (i.e. the appointment of the Respondent to the position of Senior Manager in the present matter).
Whilst the Appellant did eventually file an application for condonation, the Labour Court held that the delay of almost six months was unreasonable and excessive, and condonation of the Appellant’s failure in this regard was untenable. Accordingly, the Appellant’s review application was dismissed and the Respondent’s counter-application was granted.
Labour Appeal Court decision:
The Appellant petitioned the Labour Appeal Court (“LAC”) in order to challenge the Labour Court’s “failure to overlook the [Appellant’s] delay” in instituting proceedings. It was accordingly held that the Court a quo erred in its contention that a condonation application is necessary where a section 158(1)(h) application is brought more than six weeks after the date of an act in respect of which a review is sought. Whilst the LAC confirmed that there is “no requirement for a party who has unduly delayed” the institution of an application for review in terms of section 158(1)(h) to bring an application for condonation, the defaulting party must nevertheless provide a reasonable explanation for any undue delay.
The LAC stated that the Labour Court “did not misdirect itself by not overlooking the undue delay” as same was excessive and unreasonable.
The LAC dismissed the Appellant’s challenge to appeal the Labour Court’s decision as it lacked sufficient prospects of success and, furthermore, the Labour Court did not mislead itself by dismissing both the Appellant’s review application and condonation application. Accordingly, the appeal was dismissed with costs.
Even though legislation does not prescribe a time limit for bringing a review application in terms of section 158(1)(h) of the LRA, such application must be launched within a reasonable time without undue delay. One does not need to launch a formal condonation application for the delay. However, a reasonable explanation as to the delay must be provided and the court would then exercise its discretion in hearing the review application.
Written by Mohau Ledwaba and supervised by Jarryd Spargo, 12 November 2018