Minister of Justice and Constitutional Development v General Public Service Sectoral Bargaining Council and Others

Mahada was employed by the Department of Justice from 1971 and seconded to the Western Cape Department of Health from 1996-1999. After applying for early retirement in 1999 (which he later withdrew), he failed to report for duty after his secondment ended on 30 September 1999. Despite not working, he continued receiving salary until it was frozen in February 2000. On 2 August 2002, he was informed he had been discharged effective 1 October 1999 under section 17(5)(a)(i) of the Public Service Act for absconding (being absent without permission for over one month). After the Director-General refused to reinstate him on 12 September 2003, Mahada referred an unfair dismissal dispute to the GPSSBC. After multiple jurisdictional rulings and court reviews spanning years, Commissioner Ramabulana arbitrated the matter in 2019-2020 and issued an award on 14 July 2020 finding Mahada was unfairly dismissed, ordering retrospective reinstatement and back-pay totaling over R6.2 million. The Minister filed a review application on 3 December 2020. Commissioner Ramabulana then brought an ex parte application which resulted in the review being archived on 26 October 2021. This was not served on the Minister until February 2022. The Minister brought this rescission and reinstatement application on 2 June 2022.

• Whether the arbitrator (Ramabulana) had locus standi to bring an application to archive the review of his own award
• Whether the archiving order should be rescinded under rule 46(1)(b) (formerly rule 16A)
• Whether the review application should be reinstated despite lapsing under paragraph 11.2.7 of the 2013 Practice Manual
• Whether the GPSSBC had jurisdiction to arbitrate an unfair dismissal dispute where the employee was discharged by operation of law under section 17(5)(a)(i) of the Public Service Act
• Whether the plea of res judicata applied based on Lagrange J's 2016 order
• Whether the arbitrator's award was reviewable for gross irregularity and misconduct in receiving extra-curial evidence and making calculations without admissible evidence

1. The archiving order of 26 October 2021 by Moshoana J is rescinded. 2. The review application is reinstated. 3. The first respondent (GPSSBC) is ordered to convene a reconstruction hearing to remedy deficiencies in the record within 30 days. 4. No order as to costs.

1. An arbitrator has no locus standi in judicio to bring an application to archive a review of his or her own award, as the arbitrator has only a nominal or academic interest in the outcome, not an adequate, actual, non-remote and non-hypothetical interest required for standing. 2. Where a review application has been archived by court order following an ex parte application not served on the affected party, rescission under rule 46(1)(b) is appropriate. 3. Reinstatement of an archived review application is a form of condonation application requiring: (a) a reasonable explanation covering the entire period of delay; (b) demonstration of prospects of success in the review; and (c) showing it is in the interest of justice to grant reinstatement. 4. Where an employee absents himself from duty without permission for over one month under section 17(5)(a)(i) of the Public Service Act, the discharge operates by law and does not constitute a dismissal. The GPSSBC therefore lacks jurisdiction over unfair dismissal disputes in such cases. The proper remedy is judicial review under section 158(1)(h) of the LRA of the decision refusing reinstatement under section 17(5)(b). 5. An arbitrator commits gross irregularity and misconduct by seeking extra-curial documents and consulting external parties to calculate remedies without receiving admissible evidence at the arbitration. 6. Where there is an adequate explanation for delay and excellent prospects of success on review, the interest of justice may require reinstatement despite technical deficiencies in how the reinstatement application was formulated.

The court expressed concern and "a sense of unease" about the unprecedented involvement of the arbitrator Ramabulana in bringing an ex parte archiving application, the failure to serve it on the Minister for five months, and the sequence of events including Mahada's subsequent enforcement attempts. The court stated this "fills me with a sense of dread" and suggested the circumstances "smack of opportunism" on Mahada's part, particularly his ex post facto reliance on lack of clear instructions about where to report given his 30 years' experience and his earlier statements about retiring. The court noted it "simply cannot come to the conclusion that it is in the interest of justice" to refuse reinstatement and allow Mahada to receive over R6.5 million at taxpayer expense in these circumstances. The court also observed that a senior employee with 30 years' experience should know where to report for duty even without explicit instructions.

This case clarifies important principles regarding: (1) Arbitrators have no locus standi to bring applications to archive reviews of their own awards as they have only nominal/academic interest, not adequate personal interest. (2) The proper application of section 17(5)(a)(i) of the Public Service Act - discharge for absconding operates by law and does not constitute a dismissal, meaning unfair dismissal disputes cannot be referred to bargaining councils in such cases (following Grootboom and NEHAWU obo James). The proper remedy is judicial review under section 158(1)(h) of the LRA of the decision refusing reinstatement. (3) Reinstatement applications after archiving under the Practice Manual are akin to condonation applications requiring good cause. (4) Courts will consider the merits and prospects of success even where the condonation/reinstatement application is not perfectly formulated, particularly where there are excellent prospects and the interest of justice strongly favors reinstatement. (5) Arbitrators commit reviewable gross irregularity and misconduct when they seek extra-curial evidence and consult external parties to make award calculations without admissible evidence before them. The case also demonstrates judicial concern about suspicious procedural conduct including ex parte applications by arbitrators and subsequent enforcement attempts.