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                                        ECJ NO:    044/2005

       Registrar: 165/05

DATE OF HEARING:       19TH MAY 2005

DATE DELIVERED:        26TH MAY 2005


         for the State/Applicant(s)Appellant(s): AM JOZANA
         for the accused/respondent(s): P MASEUMULE

Instructing attorneys:
             Applicant(s)/Appellant(s): NONE ON RECORD
             Respondent(s): BOQWANA LOON & CONNELLAN

Not reportable

In the High Court of South Africa
(South Eastern Cape Division)                              Case No 165/05
In the matter between

THOZAMILE MBETSHU                                                  Applicant


SOUTH AFRICAN BROADCASTING CORPORATION                             1st Respondent

ARBITRATION (CCMA)                                                 2nd Respondent

COMMISSIONER JOHN GROGAN                                           3rd Respondent

SUMMARY: Application for re-instatement of an employee on the ground that his
dismissal was not constitutional – application is in effect a constitutional review –
application failed because of unreasonable delay, insufficient factual foundation, and
the principle of res judicata, the applicant having previously failed in the Labour



[1]      The applicant was formerly an employee of the 1 st respondent (the

SABC). In 1997 he was dismissed from his employment after a disciplinary

enquiry. He now applies as a matter of urgency for an order in the form of a

rule nisi calling upon the SABC to show cause why it should not be ordered to

         ‘immediately reinstate [him] to his employment position or other
         alternative position without loss of benefits, status and salary enjoyed

        prior to the violation of his fundamental human and constitutional rights
        resulting in his unlawful dismissal at common law’.

[2]     I shall briefly outline the history of the matter.

[2.1]   The application had been employed by the SABC as a programme

producer for 20 years or more. In 1996 he faced disciplinary action on serious

charges which were set out in a communication to him dated November 1996.

In March 1997 a disciplinary hearing was held. The applicant was not present.

The hearing nevertheless proceeded in his absence, and after evidence was

led the applicant’s summary dismissal was recommended. He was thereafter

summarily dismissed.

[2.2]   The applicant considered that he had been dismissed unfairly. He

submitted the matter to the 2nd respondent (the CCMA) for conciliation. The

matter was referred to a commissioner, the 3rd respondent (Professsor

Grogan), who ruled that the CCMA did not have jurisdiction and that the

matter should go before a body known as the Independent Mediation Services

of South Africa (IMSSA) for arbitration. This ruling was based upon a

collective agreement which was binding on the parties and which required that

the dispute be submitted to private arbitration. The applicant now disputes that

there was such an agreement and considers that the CCMA in fact had

jurisdiction to consider his case and should have done so.

[2.3]   The application nevertheless went to arbitration before IMSSA, which

appointed the same Professor Grogan as the arbitrator. The applicant now

says that this was irregular and that Professor Grogan should have recused

himself because he had made a previous ruling against him. But he made no

application for recusal at the time although he was legally represented. He

participated fully in and gave evidence at the arbitration, which was in effect a

re-hearing of the disciplinary inquiry and which also considered and rejected

the objection that the inquiry was unfair because the applicant was not

present. Professor Grogan’s award is part of the application papers. It is dated

24 June 1999. It dealt comprehensively with the applicant’s complaints and

concluded that the SABC’s decision to dismiss the applicant was neither

procedurally nor substantively unfair.

[2.4]    On 19 June 2001 the applicant brought the award on review before the

Labour Court. Because his review was out of time he was obliged to apply for

condonation. The application was dismissed on 1 July 2002. Ngcamu AJ’s

judgment holds that the delay of about 4 years should not be condoned, the

applicant having failed to give a satisfactory explanation for the delay and

having failed to show that there were reasonable prospects of success in the

review application. With regard to the prospects of success the judgment


         ‘The arbitrator found his dismissal to have been both procedurally and
         substantively fair. The applicant had refused on 3 occasions to attend the
         disciplinary hearing. He was given an opportunity to give an explanation and
         he failed to do so. The right to remain silent cannot be reconciled with the
         right of an employer to obtain an explanation from the employee. The
         applicant involved himself with the community radio station in breach of the
         contract of service with his employer. He failed to produce a single

        programme over a period of 4 months. The applicant has failed to
        demonstrate prospects of success in the main application.’

[2.5]   Ngcame AJ refused leave to appeal to the Labour Appeal Court, and a

subsequent petition to that court for leave to appeal was dismissed. The

judgment of the Labour Court stands and so does the arbitration award.

[2.6]   The applicant was however still aggrieved. On 19 August 2003 he

persuaded the CCMA to re-open the matter in order to reconsider its ruling in

1997 that it had no jurisdiction. In a written ruling by its commissioner for the

Eastern Cape, one Lallie, the CCMA held that for as long as the CCMA

decision and the arbitration award exist, the CCMA will have no jurisdiction

over any issue pertaining to the applicant’s dismissal, and that in any event it

had no jurisdiction to pronounce upon the decision of the arbitrator.

[2.7]   The applicant then launched this application.

[3]     Mr Maserumule, who appeared for the SABC, commenced his

argument in opposition by explaining that he was confused about the legal

basis of the applicant’s cause of action. His confusion is understandable. It is

not easy to make sense of the applicant’s papers. As I understand it, the

applicant contends that whatever remedies he may have under the Labour

Relations Act No 66 of 1995, the High Court always had and still has the

competence to pronounce upon a violation of his fundamental and

constitutional rights, and that it should do so in terms of the Constitution and

the common law. Mr Jozana, for the applicant, is in my view really seeking a

constitutional and common law review of the original dismissal on the ground

that the hearing was conducted in the applicant’s absence in violation of his

fundamental right to procedural fairness. Mr Jozana’s further contention is that

the irregularity was compounded by a wrong decision by the CCMA that it had

no jurisdiction and that this led to an irregular arbitration which should not

have been held. I am by no means satisfied that I have jurisdiction where the

alleged violation falls squarely within the area of application of the Labour

Relations Act, and where the Labour Court has in fact dealt with it and its

judgment still stands. There is the further complication that the applicant

submitted to arbitration and that the award, which is binding on the parties,

has not been set aside. The objection that this court has no jurisdiction to

adjudicate upon this application was only raised obliquely before me and was

not fully argued. For that reason I prefer not to base my judgment on lack of

jurisdiction. There are other good reasons why the application must fail.

[4]      The first reason is that this application was brought after an inordinate


[4.1]    The applicant cannot bring a review in terms of the Promotion of

Administration Justice Act No 3 of 2000 because that Act does not have

retroactive application. He must rely on the Constitution, which entrenches his

rights to fair and just administrative action, and to the common law which, in

addition to the Promotion of Administrative Act, protects his right to fair and

just administrative action. Unlike the Act, the common law does not lay down

prescribed time limits within which review applications must be brought. But it

requires that an application for review must be brought within a reasonable

time. This application was served on the SABC on 20 January 2005, which is

7 years and 10 months after the applicant was dismissed. That is not a

reasonable time within which to bring an application for review. A delay as

lengthy as that is prima facie unreasonable, and an applicant on review would

ordinarily be obliged to place compelling reasons before the court to persuade

it to come to his relief. The applicant in this case has not done so. Indeed

there is no explanation for the delay. For this reason alone the application

must fail (Associated Institutions Pension Fund and others v Van Zyl and

others 2005 (2) SA 302 (SCA) paragraph 46, and Lion Match Co Ltd v Paper

Printing Wood & Allied Workers Union and others 2001 (4) SA 149 (SCA).

The last-mentioned judgment holds in paragraphs 29 and 32 that a delay of

large magnitude requires a proper explanation from the applicant in its

founding papers, failing which an applicant loses his right to complain of the

alleged irregularity which becomes, so to speak, 'validated' by his lack of

timeous objection).

[4.2]   Normally the issue of prejudice to the other side is important in

determining the unreasonableness of the delay and the consequences

thereof. The applicant has not suggested that there is no prejudice. The SABC

has not specifically itemized its prejudice in these papers – perhaps because

of the form of the relief sought in the notice of motion and the failure of the

application papers to spell out that it was bringing the result of the disciplinary

hearing on review. But the issue of prejudice was raised in the Labour Court

within the specific context of an explanation for delay in a condonation

application. The judgment on condonation refers to prejudice to the employer

by a delay of 4 years because of the unavailability of witnesses. Prejudice

caused by a lesser delay than the present was therefore dealt with in previous

litigation on the same point between the same parties, and it is part of the res

judicata point to which reference is made below.

[4.3]   In any event prejudice is not the only consideration. The good

administration of justice requires certainty and finality in the judicial process,

which is undermined if matters are brought on review after so many years

(Associated Institutions Pension Fund and others v Van Zyl and others supra

paragraph 46 and Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van

Kaapstad 1978 (1) SA 13 (A) at 41).

[5]     Related to the question of delay and the lack of any compelling reason

not to regard it as a disqualification is the applicant’s failure to allege any facts

from which an inference can be drawn that the disciplinary hearing was unfair,

whether substantively or procedurally. Mr Maserumule has argued that there

is no basis for a conclusion at common law that the applicant’s dismissal was

unlawful as alleged in the notice of motion. It is not enough to show that the

hearing was conducted in the applicant’s absence, which is common cause.

The applicant must go further and show that this was improper and

unreasonable in the circumstances and resulted in an unfair or unlawful

dismissal. The applicant has attached medical reports which indicate that at

about the time of the hearing he suffered from hypertension and depression,

part of which was caused by stress arising from his employment and from the

imminent disciplinary hearing. But he has led no evidence whatever to justify a

conclusion that the hearing was improperly conducted because he was not

present. Mr Maserumule argues that what evidence there is indicates that the

applicant was not treated unreasonably or unfairly. The facts attendant upon

his non-appearance at the hearing are set out in the arbitration award which

the applicant has made part of the application papers. The issue would

appear to have been fully considered. Indeed, Mr Maserumula, who appeared

for the SABC at the arbitration and in the Labour Court, submitted that his

non-appearance at the hearing is cured, if a cure be necessary, by his

participation in the arbitration. At that hearing the reasons for his non-

appearance were given and the reasonableness of the decision to hold the

hearing in his absence was considered. The applicant was represented by an

attorney, the witnesses were cross-examined, he gave evidence, and legal

argument was presented. Professor Grogan’s award gives reasons for his

conclusion that to hold the hearing in his absence was not procedurally unfair

in the circumstances, and those reasons appear to me to make sense. There

are no other facts before me to indicate the contrary. I agree with Mr

Maserumule that the application must fail because there is no foundation in

the evidence before me for a conclusion that the applicant was wrongfully or

unfairly dismissed in violation of his fundamental or constitutional rights.

[6]    In my view the additional points argued by Mr Jozana about alleged

irregularities do not take the applicant’s case any further.

[6.1]   The first point was based on the failure of the CCMA to deal with his

unfair dismissal. This is a red herring. The matter was considered and

reconsidered by the CCMA whose decision that it had no jurisdiction has not

been set aside on review.

[6.2]   The second point is based on allegedly irregular proceedings before

the arbitrator. This is also a red herring, and so is the applicant’s suggestion

that the arbitrator was biased. The applicant submitted to the arbitration and

he did not challenge the appointment of Professor Grogan as arbitrator. He is

bound by the award unless and until it is set aside.

[6.3]   Then there is the argument that the SABC’s opposing affidavit is a

nullity. The submission was that the deponent on behalf of the SABC could

not have had authority to depose to it because he describes himself as ‘group

employee relations consultant’ to the SABC, and if he is a consultant he

cannot be a proper employee. In the absence of an evidentiary challenge,

there is in my view no valid reason to go behind the deponent’s statement on

oath that he is employed by the SABC and authorised by it to act on its behalf

in this application.

[6. 4] Next is the question of urgency, which is also related to the issue of

delay. Mr Maserumule argued that the failure of the applicant to justify

bringing this application as a matter of urgency warrants dismissing the action

on that ground alone. He stressed the applicant’s failure to explain how the

matter has become urgent when he delayed for nearly 8 years before bringing

it. I think that there is merit in this argument as well.

[7]    I am of the view that Mr Maserumule’s next argument is also sound. It

is that the question of the procedural fairness of the applicant’s dismissal is

res judicata because of the Labour Court’s decision. Mr Jozana filed a notice

of motion to strike out references to res judicata in the SABC’s opposing

affidavit, but he wisely refrained from moving the application because it clearly

has no merit. Were a plea of res judicata not to be upheld and instead were

an order to be granted in terms of the notice of motion, there would be in

existence two conflicting orders of court dealing with the same dispute, the

same subject matter, and the same parties; – first, an order of the Labour

Court which in effect placed its imprimatur on the outcome of the disciplinary

hearing and the arbitration by denying the applicant the opportunity of setting

them aside; and, second, an order of the High Court reinstating the applicant.

[8]    In the result the application is dismissed with costs, which shall include

the costs of 31 March 2005 which were reserved.

Judge of the High Court
22 May 2005

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