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[2021] ZALAC 8
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National Education Health and Allied Workers Union (NEHAWU) and Others v Metrofile (Pty) Ltd and Others (JA53/2019) [2021] ZALAC 8; [2021] 8 BLLR 768 (LAC); (2021) 42 ILJ 1914 (LAC) (29 March 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case No: JA53/2019
In the matter between:
NATIONAL EDUCATION
HEALTH AND
ALLIED WORKERS UNION
(NEHAWU)
First Appellant
BONGA GEORGE
DLADLA
Second Appellant
CATHERINE
MOLEFE
Third Appellant
HLENGIWE
BUTHELEZI
Fourth Appellant
SONGEZE
JIYS
Fifth
Appellant
GLADYS
MAMATSHELE
Sixth Appellant
MATLHODI
MASIPA
Seventh
Appellant
LESIBA JIMMY
MOGALE
Eighth
Appellant
JOSEPH
DIPUO
Ninth
Appellant
CADWELL
MAKHALE
Tenth
Appellant
LUCKY
MPOFU
Eleventh
Appellant
LESETJA THOMAS
LEDIGA
Twelfth Appellant
DUDU VERONICA
MBULI
Thirteenth Appellant
DORAH
MALEBYE
Fourteenth Appellant
AUDREY KITIRENG
NOGE
Fifteenth Appellant
KEDIMETSE ANNA
ABRAHAMS
Sixteenth Appellant
and
METROFILE (PTY)
LTD
First Respondent
INFOVAULT (PTY) LTD
Second Respondent
DISCOVERY (PTY)
LTD
Third Respondent
ZAHEER CASSIM
N.O.
Fourth Respondent
Heard:
19 November 2020
Delivered:
29 March 2021
Summary:
Practice and
procedure—Condonation—Labour Court proceedings—Where
prospects of success not addressed condonation
refused.
Practice
and procedure—Condonation—Labour Court proceedings—Labour
Appeal Court will only interfere where Labour
Court not exercising
discretion to grant condonation judicially.
Practice
and procedure—Motion proceedings—Affidavits constitute
pleadings and evidence---Applicant stands or falls by
its papers---
Failure to incorporate statement of claim into founding affidavit
fatal to the determination of prospects of success.
Coram:
Phatshoane ADJP, Coppin JA, Kathree-Setiloane AJA.
JUDGMENT
PHATSHOANE ADJP
[1]
This is an appeal, with leave of this court, against the whole of the
judgment and order of the Labour
Court (
per
Nieuwoudt AJ)
dated 08 March 2019 dismissing the application for condonation of the
late filing of the first to the sixteenth appellants’
statement
of claim and their dismissal claim with no order as to costs.
[2]
The second to the sixteenth individual appellants were retrenched on
04 July 2017. There is a dispute
of fact on the question whether they
were dismissed by Metrofile (Pty) Ltd, the first respondent, or
Infovault (Pty) Ltd, the second
respondent. It suffices, at this
point, to state that the appellants referred their dismissal dispute
to the Commission for Conciliation
Mediation and Arbitration (“the
CCMA”) in terms of s 191 of the Labour Relations Act, 66 of
1995 (“the LRA”)
for conciliation.
[3]
Following an unsuccessful attempt at conciliation of the dispute on
01 August 2017 the dismissal claim
ought to have been referred to the
Labour Court for adjudication in terms of s 191(11)
(a)
of the
Labour Relations Act, 66 of 1995 (“the LRA”). However, on
or about 20 September 2017, the appellants referred
their dispute to
the CCMA for arbitration.
[4]
On 20 November 2017, at arbitration, a commissioner of the CCMA ruled
that the CCMA lacked jurisdiction
and that the dispute be referred to
the Labour Court for adjudication. The appellants failed to lodge
their dispute with the Labour
Court within the prescribed timeframe.
Ms Pumla Nkosi (“Ms Nkosi”), a candidate attorney in the
employ of Mdhluli Pearce
and Mdzikwa, the attorneys of record for
National Education Health and Allied Workers Union (NEHAWU), the
first appellant, and
the individual appellants, explained the delay
as follows. NEHAWU’s offices were closed for the 2017 December
holiday season
and reopened on 10 January 2018. Some of the
individual appellants went to their respective hometowns throughout
South Africa and,
therefore, she could not consult with them or
obtain instructions. Mr Lindokuhle Mzimela, NEHAWU’s
regional organiser,
managed to consult with the individual appellants
later in January 2018 and gave instructions to the legal
representatives on 23
January 2018. On 29 January 2018 counsel was
briefed to consider the individual appellants’ dispute; to
provide legal advice
on the process to follow; and to lodge a dispute
with the Labour Court. Counsel requested certain undisclosed
information and only
consulted with NEHAWU and Ms Nkosi on 28
February 2018. Ms Nkosi had a further consultation with counsel
sometime in March 2018
following her endeavour to locate some of the
individual appellants who had moved out of the Gauteng Province.
[5]
The appellants referred their retrenchment dispute to the Labour
Court on 11 April 2018, approximately
163 days outside the time
allowed, through motion proceedings as opposed to delivering a
statement of claim. On or about 09 May
2018, Metrofile and Infovault
served on the appellants a notice of an irregular step in the
proceedings. They contended that rule
6 of the Rules for the conduct
of proceedings in the Labour Court provided that the referral of an
unfair dismissal dispute, based
on operational requirements, in terms
of s 191(5)
(b)
of the LRA, had to be instituted through a
statement of claim and not by way of motion proceedings. The
appellants were urged to
remove the cause of complaint within a
period of 10 days.
[6]
Following an exchange of correspondence between the parties the
appellants reconsidered their position
and withdrew their application
on 24 May 2018. They served and filed their statement of claim on 29
May 2018, almost 211 days outside
the time allowed, together with the
application for condonation. The period of delay is approximately six
months calculated from
the date the certificate of outcome of
conciliation was issued to the date the statement of claim was filed.
The judgment of the
Labour Court
[7]
The Labour Court found that the period within which the referral of
the dispute ought to have been made
to it, 01 August 2017 to 20
November 2017, was not essential in assessing the delay because
NEHAWU had incorrectly referred the
dispute to arbitration. The court
was also of the view that the inactivity over the Christmas season
ought not to be subjected
to heightened scrutiny as people do take
vacation. The court noted that by 10 January 2018, when NEHAWU
reopened its offices for
business, it must have been clear to it that
its statement of claim was out of time and required urgent attention.
A period of
three months lapsed before the ill-conceived application
in terms of Rule 7 was lodged with the Labour Court. The court found
that
the explanation for this delay was woefully inadequate.
[8]
The Labour Court noted that the appellants had failed to address
their prospect of success in their
founding papers. On the basis of
the t
rite principle, that in motion proceedings
a party stands or falls by its papers, the Labour Court
declined an invitation to consider the statement of claim for
purposes of assessing the appellants’ prospects of success
because the statement was not incorporated by reference into the
condonation affidavit. The court concluded that the appellants
had
not shown any prospects of success and that the prejudice that they
stood to suffer did not outweigh other factors. As already
alluded
to, the court refused to condone the late filing of the appellants’
statement of claim and dismissed the claim.
The grounds of appeal
[9]
The appellants attack the judgment of the
Labour Court on five primary grounds, namely, that it erred in
finding: that the explanation
for delay for the period commencing 10
January 2018 to 11 April 2018 was woefully inadequate; that there was
inactivity on the
part of the appellants during the period in
question; that the appellants had no prospects of success; and that
it was not pertinent
to have regard to the statement of claim. The
appellants further argued that insofar as the parties had exchanged
pleadings, this
signified that there were triable issues that the
Labour Court completely disregarded.
The discussion
[10]
To
grant condonation is an exercise of judicial discretion that is only
fettered by being judicially explained.
[1]
The test is whether the court whose decision is challenged on appeal
has exercised its discretion judicially. The exercise of the
discretion will not be judicial if it is based on incorrect facts or
wrong principles of law
[2]
or
where the court of first instance acted capriciously, or in a biased
manner, or committed a misdirection or an irregularity,
or exercised
its discretion improperly or unfairly.
[3]
If none of these grounds is established, it cannot be said that the
exercise of discretion was not judicial. In those circumstances
the
claim for interference on appeal must fail.
[11]
Where time-limits are set, whether statutory or in terms of the
rules of court, a court has an inherent discretion
to grant
condonation where the interests of justice demand it and where the
reasons for non-compliance with the time-limits have
been explained
to the satisfaction of the court.
[4]
The following dictum by the Constitutional Court in
Steenkamp
& others v Edcon Ltd
[5]
is
instructive:
‘
[41]
In giving effect to this primary object, the LRA imposes strict
time-limits within which various applications and referrals
must be
launched. Non-adherence to these time-limits may be
condoned. Both the Labour and the Labour Appeal Courts have
incorporated the general principles for condonation referred to
above. But they have also infused factors and considerations
specific to labour law:
Condonation
in the case of disputes over individual dismissals will not readily
be granted.
The
explanation for non-compliance would have to be compelling, the case
for attacking a defect in the proceedings would have
to be cogent and
the defect would have to be of a kind which would result in a
miscarriage of justice if it were allowed to
stand. Whether
the delay was a result of a deliberate, wilful decision not to comply
with a lawful and binding award in terms
of the LRA is also an
important factor to consider.
Where
the explanation for the delay is the internal processes and
procedures of trade unions, the Labour Court has taken a stricter
view
.’
(Emphasis added)
[12]
The well-established principles applicable to the consideration
of condonation were restated by this court
in
Department
of Agriculture , Forestry & Fisheries v Baron &
others
[6]
as follows:
‘
[41]
It is trite that in condonation applications, good or sufficient
cause must be shown by the party seeking condonation for a
delay. This not only involves giving a full explanation for the
delay, but also showing that it has reasonable prospects
of
success. Generally, a slight delay and good explanation for the delay
could compensate for weak prospects of success, and good
prospects
could make up for a long delay..’
[13]
In terms of s 191(11)
(a)(b)
of the LRA read with s 191(5)
(b)
(ii)
the referral of a dispute
to
the Labour Court for adjudication,
concerning
a dismissal based on the employer’s operational requirements,
must be made within
90 days after the council or (as the case may be) the
commissioner has certified that the dispute remains
unresolved. The Labour Court may condone non-observance of that
timeframe on good cause shown. The 90-day period clock commenced
ticking for the appellants to file their statement of case from the
date the CCMA certified their dispute unresolved on 01 August
2017.
The period expired on 30 October 2017.
[14]
The Labour Court, as it were, condoned the delay between 01 August to
20 November 2017 because, as alluded to,
the dispute had been
referred to arbitration. However, the court could not discern the
lodging of the arbitration proceedings by
NEHAWU when it should have
been acutely aware that where more than one employee had been
dismissed due to operational reasons,
their dispute had to be
adjudicated by the Labour Court. Apart from this, the certificate of
outcome of conciliation indicated
that the dispute be referred to the
Labour Court. This court warned in
Edcon
Ltd v Steenkamp & others
[7]
that the explanation in support of condonation, relying on a
failed legal strategy to justify the delay, is not
acceptable.
[15]
There is a complete lack of detail in the explanation of the delay
between 29 January 2018, when counsel was briefed,
up until the
incorrect application was filed on 11 April 2018. The appellants do
not explain why it took a month for counsel to
finally consult with
them on 28 February 2018 when he had already been briefed on 29
January 2018. The founding affidavit
does not cast any light on
the reasons Ms Nkosi had to consult with counsel again on the
unspecified date in March 2018, after
her attempt to locate some of
the individual appellants. There is a dearth of information on who
these appellants were; whether
she was able to make contact with them
and if she did so, when?
[16]
The pursuit to resolve the labour dispute, the filing of which was
already inordinately late (by more than five
months), was again
frustrated by the appellants when they lodged the defective
application as opposed to filing a statement of
claim in terms of
rule 6 of the Rules for the conduct of proceedings in the Labour
Court which applies to referrals including those
concerning a
dismissal for operational requirements.
[8]
A further month of legal skirmishes through correspondence ensued
until it dawned on the appellants to withdraw the fatally defective
application. The Labour Court carefully analysed the appellants’
explanation for the delay. Its finding that the explanation
for the
delay was deplorably inadequate cannot be faulted.
[17]
The appellants did not address their prospects of success at a
hearing in due course in their founding papers save
to state: “
The
applicants have good prospects of success procedurally and
substantively
.”
Metrofile
refuted this. In its answering affidavit it averred that the contents
of the special pleas contained in its [Metrofile’s]
statement
of response were incorporated into its answering affidavit as if
specifically traversed.
[9]
There are three special pleas in the statement of response. The first
is to the effect that Metrofile was not the appellants’
employer, and therefore the jurisdiction of the Labour Court was
ousted. The second is that, prior to referring their dispute to
the
Labour Court, the appellants failed to properly refer their dispute
to the CCMA or at all. In its third special plea, Metrofile
states
that it concluded a settlement agreement with the sixteenth
applicant, thus the Labour Court did not have jurisdiction to
adjudicate her dispute.
[18]
In what had become an established pattern of inadequate attendance to
their dispute, the appellants did not file
a replying affidavit to
address any of the issues set out in Metrofile’s answering
affidavit. Hence, the three special pleas
that Metrofile specifically
incorporated by reference into its answering affidavit remained
unanswered. Instead, the appellants
resorted to some legal stratagem
in order to circumvent the fact that their founding papers did not
disclose their prospects of
success. They contended that their
statement of claim ought to be incorporated by reference to their
founding affidavit because
Metrofile’s answering affidavit
incorporated its special pleas. They furthermore
criticised the Labour Court for its failure to
determine the identity of the employer because, in their view, this
was dispositive
of their case against Metrofile. In any event, it was
not necessary for the appellants to show their prospects of success
where
the identity of their employer had been brought into question,
so the argument ran.
[19]
The appellants rely on
Shell
SA Energy (Pty) Ltd v National Bargaining Council for the
Chemical Industry & others (“Shell SA”)
[10]
and
SATAWU
and Others v Country Meat Market CC (“SATAWU”)
[11]
as
support for their argument that the Labour Court ought to have dealt
with the preliminary question regarding the identity of
the employer.
[20]
In
Shell
SA
the employer challenged the jurisdiction of the Bargaining Council at
conciliation on the basis that there was no employer-employee
relationship between
Shell
SA
and a certain Ali, the employee. The conciliator allowed,
inter
alia
,
argument and the submission of documents on the identity of the
employer but refused
Shell
SA's
application to lead oral evidence on the issue. In the end, the
conciliator ruled that Ali was an employee of
Shell
SA.
On this aspect, the Labour Court, on review of the conciliator’s
ruling, found that the conciliator correctly determined
the existence
of an employer-employee relationship without recourse to oral
evidence. On appeal, one of the questions for determination
was
whether the Labour Court erred in upholding the conciliator's refusal
to allow the presentation of oral evidence to establish
the existence
of an employment relationship. The LAC held that the preliminary
point which was raised at conciliation proceedings,
disputing the
existence of an employer-employee relationship, necessitated a
decision on the issue before the dispute was conciliated.
[21]
Shell SA
did not concern an application for condonation where an applicant is
required to address his/her prospects of success in its founding
papers. The circumstances and the manner in which the preliminary
point on the employer-employee relationship was taken and dealt
with
in
Shell SA
is quite distinguishable from the present. It is illogical that the
court would determine a special plea on the identity of the
employer
without first disposing of the condonation aspect.
[22]
S
ATAWU
concerned
an opposed application for condonation for the late filing of the
respondent’s response to the statement of claim.
It does not
advance the appellants’ case for their failure to address the
prospects of success. At para 19 of
SATAWU
and Others
the court held:
‘
[19]…
The
Respondent’s averments in respect of its prospects of success
are not contained in Leach’s founding affidavit.
He
had however referred the court to the Respondent’s response (to
prevent unnecessary duplication
). The
difficulty with relying on a response as in this case is that what is
contained therein, is not in the form of an affidavit,
and ultimately
the question arises as to how much weight should be attached to those
allegations made in that response in determining
whether a party has
any prospects of success.
It was only in
his replying affidavit that Leach attempted to shed some light on
these disputes of fact. In my view, special circumstances
are
applicable in this case for consideration of these averments in
Leach’s replying affidavit. This is due to the reason
that the
issue of prospects of success is crucial in the determination of this
application,
albeit
not the main consideration
.”
(Emphasis added)
[23]
Furthermore, in
SATAWU,
the
court had the benefit of a replying affidavit with some supporting
documents.
In
this case, the appellants did not file a replying affidavit. It is
trite that the applicant in motion proceedings must make out
a
proper case in the founding papers. In
Shakot
Investments (Pty) Ltd v Town Council of the Borough of Stanger,
[12]
the court held:
‘
In
proceedings by way of motion the party seeking relief ought in his
founding affidavit to disclose such facts as would, if true,
justify
the relief sought and which would, at the same time, sufficiently
inform the other party of the case he was required
to meet.’
[24]
Truth be told, the appellants and their legal representatives bungled
their case. Their argument went off on a
tangent and did not
meaningfully, or at all, address their prospects of success. No
cogent criticism can be sustained in the Labour
Court’s
determination that the special pleas, including one concerning the
identity of the employer, were destined for separate
adjudication.
The appellants’ belated attempt to call in the aid of their
statement of claim, to show their reasonable prospects
of success, is
contrived. They failed to incorporate their statement of case into
their founding papers. The Labour Court correctly
invoked the time-
honoured convention
that an
applicant must, 'stand or fall’ by his/her founding affidavit
and resisted the temptation to consider the pleadings
in the referral
proceedings. Its finding that the appellants did not demonstrate
their prospects of success remains unassailable.
[25]
The appellants argued both in the Labour Court and in this Court that
they stood to suffer prejudice if the late
referral is not condoned.
It was submitted in their founding affidavit: “
The employees
have throughout the years contributed monthly towards their
subscription with the view that should a dispute of this
nature arise
they would receive assistance
.” Ms Nkosi furthermore
averred that: “
their (the appellants’) hope lies with
their union and should the application not be a success, they would
have been failed
dismally by the justice system.
.” What is
clear from the aforegoing analysis is that NEHAWU had contributed
significantly to the egregious delay. The Labour
Court had regard to
the question of prejudice and was of the view that it does not
outweigh other factors. The finding is beyond
reproach as any
prejudice the appellants stand to suffer is entirely of their own
making.
[26]
One of the primary objects of the LRA is to promote
the
effective resolution of labour disputes
[13]
which, by their very nature, require speedy resolution.
[14]
The
granting
condonation in the circumstances of this case would have defeated
this essential purpose. The appellants failed to
show that the
Labour Court did not exercise its discretion judicially which would
merit this court’s interference. It follows
that the appeal
must fail.
[27]
There
remains another matter upon which some remarks are called for,
that is, the manner in which the record of this appeal
was presented
to us. Metrofile submitted that only volume 1 of the record that
served before the Labour Court is relevant to the
appeal and that
volume 2 and 3 are not because the Labour Court was not required to
consider them in the adjudication of the condonation
application.
[28]
Numerous documents which naturally ought not to form part of the
record served before us. This ranges from the
full record of the
petition for leave to appeal (volume 2) and some of the pleadings in
the action proceedings (volume 3). This
slipshod manner of presenting
the record is to be deprecated in the strongest possible terms. I am
of the view that, in accordance
with the requirements of law and
fairness, NEHAWU, the first appellant, should bear the costs of this
appeal. I make the following
order.
Order:
1.
The appeal is dismissed.
2.
The National Education Health and Allied Workers
Union (NEHAWU), the first appellant, is to pay the
costs of
the appeal.
_________________________
MV
Phatshoane ADJP
Coppin
JA and Kathree-Setiloane AJA concur in the judgment of Phatshoane
ADJP
APPEARANCES:
FOR
THE APPELLANTS:
Adv T Moretlwe
Instructed
by Mdhluli Pearce Mdzikwa and Associates Inc.
FOR
THE FIRST RESPONDENT:
Adv GL van der Westhuizen
Instructed
by Norton Rose Fulbright South Africa Inc.
[1]
Steenkamp
& others v Edcon Ltd
(2019) 40 ILJ 1731 (CC) at 1741 para 31;
Moodley
v Department of National Treasury & others
(2017)
38 ILJ 1098 (LAC) at 1109 para 47-48.
[2]
Notyawa
v Makana Municipality & others
(2020)
41 ILJ 1069 (CC) at para 41
[3]
Coates
Brothers Ltd v Shanker & others
(2003) 24 ILJ 2284 (LAC) at 2288 para 5.
[4]
Steenkamp
& others v Edcon Ltd
(2019) 40 ILJ 1731 (CC) at 1740 para 26.
[5]
(2019)
40 ILJ 1731 (CC) at 1744 para 41.
[6]
(2019)
40 ILJ 2290 (LAC) a
t
2304 para 41.
[7]
(2018)
39 ILJ 531 (LAC) at 544 para 45.
[8]
See
Rules for the Conduct of Proceedings
in
the Labour Court, Published under GN 1665 in
GG
17495
of 14 October 1996.
[9]
Ad
para 42 of the Answering affidavit.
[10]
(2013)
34 ILJ 1490 (LAC).
[11]
(JS
71/12) [2014] ZALCJHB 27 (18 February 2014).
[12]
1976
(2) SA 701
(D ) at 704F-G.
[13]
Section
1
(d) (iv) of the
Labour Relations Act, 66 of 1995
.
[14]
Commercial
Workers Union of SA v Tao Ying Metal Industries & others
[2008] ZACC 15
;
2009
(2) SA 204
(CC)
;
(2008)
29
ILJ
2461
(CC)
;
[2009] 1 BLLR 1
(CC).