Department of Agriculture, Land Reform and Rural Development v Kelvin Kayster N.O. and Others

Two employees, Abie Olyn and Daisy Mongwai, were alleged to have awarded a tender to XB Connection trading as Lesego Promotions in October 2012 without following proper processes and policies while employed by the applicant as Assistant Director: Bids Management and Admin Officer. Following an internal forensic investigation, the employees were charged and issued with notices to attend disciplinary hearings in January and April 2023. At the disciplinary hearing, both employees, represented by PSA, raised points in limine objecting to excessive delays and the employer's use of external legal representatives contrary to Resolution 1 of 2003. The disciplinary chairperson ruled on 14 September 2023 that external legal practitioners could be used. The PSA referred a dispute to the PSCBC for interpretation. At a pre-arbitration meeting on 20 October 2023, parties agreed to shorten proceedings by means of pleadings and a hybrid arbitration. The PSA failed to file a stated case as agreed, instead filing a replying affidavit. On 17 January 2024, the arbitrator issued a preliminary ruling that the matter must be rescheduled for arbitration, stating that arbitration without oral evidence in the absence of a written and signed stated case constitutes an irregularity. The applicant filed a review application on 01 February 2024.

• Whether the Labour Court has jurisdiction to review a preliminary ruling before the issue in dispute has been finally determined
• Whether it is just and equitable for the Labour Court to review the preliminary ruling under section 158(1B) of the LRA
• What test applies when determining whether to intervene in incomplete arbitration proceedings
• Whether the arbitrator committed a gross irregularity in remitting the matter for arbitration

The application was dismissed with no order as to costs. The second respondent was ordered to enrol the dispute under case number PSCBC 564-23/24 for arbitration. The Registrar was ordered to serve a copy of the judgment on the second respondent.

The Labour Court may not review any decision or ruling made during arbitration proceedings before the issue in dispute has been finally determined, except if the Court is of the opinion that it is just and equitable to do so in terms of section 158(1B) of the LRA. To establish that it is just and equitable to intervene, an applicant must demonstrate exceptional circumstances. The threshold for intervention in incomplete arbitration proceedings is stringent, and applicants must specifically plead such exceptional circumstances in their papers. The legislative policy underlying section 158(1B) is to avoid piecemeal processing of arbitration proceedings through reviews of interlocutory rulings and to promote expeditious dispute resolution. A review application of an interlocutory ruling that fails to plead or establish exceptional circumstances must be dismissed.

The Court expressed displeasure at state-owned entities abusing taxpayer resources by pursuing hopeless cases. The Court distinguished between robustly defending one's interests and consciously using superior resources to deny an employee access to justice. The Court noted that this application was an element of a broader tactic to delay the finalization of the matter, particularly given that the employees were being charged for conduct allegedly occurring in 2012 but only charged in 2023. The Court commented that had the applicant and its legal representatives studied the case law upon which the commissioner based his decision (Department of Agriculture & Rural Development, Limpopo v Phooko N.O. & Others), the application would not have been brought. The Court noted that more than ten years after the promulgation of section 158(1B), the Labour Court is still burdened with applications to review preliminary rulings when the legal principles are obvious and have been repeatedly restated.

This case reinforces the strict approach taken by the Labour Court to applications seeking to review preliminary or interlocutory rulings before the final determination of arbitration proceedings. It confirms the high threshold set by section 158(1B) of the LRA, which was introduced in 2015 to discourage piecemeal processing of arbitration proceedings and to promote expeditious dispute resolution. The judgment emphasizes that such reviews are only permissible in exceptional circumstances and that the legislative policy requires speedy finalization of labour disputes. The case serves as a reminder to litigants that they must specifically plead and establish exceptional circumstances justifying early intervention, and that failure to do so will result in dismissal of the review application.