About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2021
>>
[2021] ZALAC 41
|
|
Association of Mineworkers and Construction Union obo Shupping and Others v Africa Mining and Crushing SA (Pty) Ltd (JA11/20) [2021] ZALAC 41; (2022) 43 ILJ 610 (LAC) (2 November 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
JA11/20
ASSOCIATION
OF MINEWORKERS AND CONSTRUCTION
UNION
OBO OF SHUPPING AND 17
OTHERS Appellant
and
Africa
Mining and Crushing SA (Pty)
Ltd Respondent
Heard:
30
September 2021
Delivered:
02
November 2021
Coram:
Waglay JP, Davis JA and Kubushi
AJA
JUDGMENT
KUBUSHI
AJA
Introduction
[1] This
is an opposed appeal against the whole of the judgment and order of
the court
a quo
handed down on 4 December 2019. The appeal is
before us, leave to appeal having been refused by the court
a quo
but granted on Petition by this Court.
[2] The
appeal pertains to the condonation application wherein the appellant,
the Association of Mineworkers and
Construction Union, sought
condonation, on behalf of its members, for the late referral of a
dispute to the court
a quo
for adjudication. The court
a
quo
refused to grant the condonation and made no order as to
costs.
Factual
Matrix
[3] The
common cause facts between the parties are that on 14 December 2018,
the members of the appellant were
issued with a notice of a
disciplinary enquiry charged with taking part in an unprotected
strike and/or gross refusal to work due
to a related grievance.
[4] Subsequent
to a disciplinary enquiry that followed, eighteen (18) members of the
appellant were dismissed.
An unfair dismissal dispute was referred to
the Commission for Conciliation Mediation and Arbitration (“CCMA”)
by the
appellant on behalf of the said members. The matter was set
down for conciliation on 19 February 2019 but the conciliation was
unsuccessful and the matter remained unresolved. A certificate of
non-conciliation was issued and the matter was referred to
arbitration.
[5] At
the arbitration proceedings it became apparent that the CCMA did not
have the requisite jurisdiction to
arbitrate the dispute. As a
result, a ruling was issued by the commissioner concerned for the
matter to be referred to the Labour
Court.
[6] The
appellant served a Statement of Case on 7 August 2019 which it filed
in the Labour Court on 8 August 2019.
On 14 August 2019, the
appellant served and filed an application for condonation which was
set down for hearing on 29 November
2019. In the judgment that was
handed down on 4 December 2019, the court
a quo
refused
condonation and made no order as to costs. The appellant is
dissatisfied with the judgment and order of the court
a quo
,
and has approached this Court in an attempt to overturn the order.
[7] Consequently,
the issue for determination before us was whether there was a
misdirection on the part of the
court
a
quo
in
refusing to grant the condonation application. Underlying this
question is whether the court
a
quo
acted improperly and unreasonably or that it acted capriciously, or
upon the wrong principle or with bias, or whether or not the
discretion exercised was based on unsubstantial reasons or whether
the court
a
quo
adopted an incorrect approach.
[1]
Discussion
[8] The
court
a quo
, in refusing to grant the condonation, made a
finding that firstly, the degree of delay, which it found to be seven
(7) months,
was too excessive; secondly, that the appellant failed to
provide any explanation for such excessive delay and lastly that
there
were no prospects of success on the merits of the case.
[9] It
is common cause between the parties that the court
a quo
held
incorrectly that the delay involved was seven (7) months as opposed
to the period of two (2) months and three (3) weeks asserted
by the
appellant in its papers. This finding by the court
a quo
lies
at the heart of the appeal.
[10 As
such, when arguing before this Court, both counsel for the parties
were in agreement that there was a fundamental
error on the part of
the court
a quo
in considering that the delay was seven (7)
months when in fact it was two (2) months, and that, such error,
vitiated the court
a quo
’s thinking about the matter in
its entirety. Counsel were also in agreement that under such
circumstances, this Court was
at liberty to revisit the matter and
exercise the discretion afresh.
[11] The
submissions by counsel that the fundamental misdirection of the court
a quo
vitiated its thinking about the matter and entitled this Court to
consider the discretion afresh, is correct. It is trite that,
where
the wide discretion of a court below has not been judicially
exercised, either for example, as a result of the incorrect
application of the law or of the facts, the appeal court is required
to consider the matter on the facts that were before the court
a
quo
and
to determine if the discretion was correctly exercised, what would
the correct decision have been.
[2]
On
that basis, this Court was, therefore, at liberty to exercise the
discretion afresh.
[12] The
test for condonation is trite and well established. The
Constitutional Court in
Grootboom
v National Prosecuting Authority and Another
,
[3]
set out the test
succinctly
as follows:
“
[50] In
this Court the test for determining whether condonation should be
granted or refused is the interests of justice.
If it is in the
interests of justice that condonation be granted, it will be granted.
If it is not in the interests of justice
to do so, it will not be
granted. The factors that are taken into account in that inquiry
include:
(a) the
length of the delay;
(b) the
explanation for, or cause for, the delay;
(c) the
prospects of success for the party seeking condonation;
(d) the
importance of the issue(s) that the matter raises;
(e) the
prejudice to the other party or parties; and
(f) the
effect of the delay on the administration of justice.’
Although
the existence of the prospects of success in favour of the party
seeking condonation is not decisive, it is an important
factor in
favour of granting condonation.
[51] The
interests of justice must be determined with reference to all
relevant factors. However, some of the factors
may justifiably be
left out of consideration in certain circumstances. For example,
where the delay is unacceptably excessive and
there is no explanation
for the delay, there may be no need to consider the prospects of
success. If the period of delay is short
and there is an
unsatisfactory explanation but there are reasonable prospects of
success, condonation should be granted. However,
despite the presence
of reasonable prospects of success, condonation may be refused where
the delay is excessive, the explanation
is non-existent and granting
condonation would prejudice the other party. As a general proposition
the various factors are not
individually decisive but should all be
taken into account to arrive at a conclusion as to what is in the
interests of justice.”
[13] The
question, therefore, is whether it is in the interest of justice that
condonation be granted in this matter.
[14] It
was argued on behalf of the appe
llant that condonation should
be granted based on the grounds that: the two (2) months delay is not
excessive; there is an explanation
proffered for the delay in the
appellant’s papers; there are prospects of success for the
appellant; it is in the interests
of justice and the respondent would
not be prejudiced.
[15] Conversely,
on behalf of the respondent, it was submitted that condonation should
not be granted based on
the grounds that: firstly, the delay for the
two (2) months was not adequately explained for the whole period;
secondly, if there
was a delay the prospects of success on the merits
do not make up for such a delay; lastly, the interests of justice,
which is
the paramount consideration, will not be served if this
matter is allowed to proceed three years after the first occurrence
of
the dispute.
[16] For
the reasons that follow hereunder, it is my view that it is in the
interest of justice that condonation
be granted.
[17] Firstly,
counsel for the respondent approached the requirement for the
explanation for the delay on a wrong
footing in his submission that
the explanation proffered by the appellant is inadequate as it does
not cover the whole period of
the delay.
[18] In
my understanding, counsel did not, in his submission, necessarily
dispute that the two (2) months’
period of delay was excessive,
save to lament that if the initial period of ninety (90) days is
included it downplays the appellant’s
laxity in handling the
dispute. Once it is accepted that the period of delay is not
excessive, the approach is different. The test
is whether an
explanation has been tendered and not whether a satisfactory
explanation has been proffered.
[19] It
cannot be disputed that the appellant has furnished an explanation in
his papers that served before the
court
a quo
. The reasons for
the appellant’s lateness are set out at length in paragraphs 9
to 19 of the appellant’s founding affidavit.
[20] The
interests of justice sometimes demand that if there is an explanation
prospects of success on the merits
ought to be considered. The door
should not just be closed without considering the merits.
[21] There
appears to be no dispute that there are reasonable prospects of
success on the merits of this case.
I did not understand the
respondent’s counsel to be arguing that the appellant has no
prospects of success on the merits
of the case. What the respondent
is contending for is that the prospects of success did nothing to
salvage what it considers to
be the inadequate explanation proffered
by the appellant. In addition, the fact that there are diametrically
opposed versions before
the court means that there is an arguable
case that warrants referral to trial for resolution of the disputes.
[22] I
am in agreement with the argument by the appellant’s counsel
that it would be prejudicial to the eighteen
(18) members of the
appellant if the condonation is refused as it would result in the
slamming of the doors of justice in their
face and deny them an
opportunity to ventilate the matter. This prejudice will far outweigh
any prejudice that might be suffered
by the respondent as the
respondent would still be offered the opportunity to defend the
matter.
[23] I
find the contention by the respondent’s counsel that the
respondent would suffer prejudice if the
case is allowed to continue
due to the fact that the case has to date hereof taken three years,
to have no merit. The delay so
far would have no effect particularly
on the administration of justice as the parties have filed their
statement of claim and statement
of defence. The matter is ripe for
hearing and can be finalised as soon as possible. Thus the prejudice
the respondent may suffer
as a consequence of the delay can be
addressed by the court at the trial.
[24] Considering
the objective conspectus of all the facts in this instance, all the
boxes have been ticked. The
period of delay is short and there is an
explanation proffered. Further, the Court will not lose sight of the
fact that the appellant
has always persisted on proceeding with the
matter. It did not sit back and do nothing but erroneously referred
the matter for
arbitration instead of adjudication. But for this
error it is self-evident that the matter would have been referred to
the Labour
court timeously. Also, there are reasonable prospects of
success and the respondent will suffer no real prejudice. It is
therefore
in the interests of justice that condonation be granted.
Even if the respondent’s argument is to be accepted that the
explanation
tendered is not reasonable or adequate, in
Grootboom
,
it was held that if the period of delay is short and there is an
unsatisfactory explanation but there are reasonable prospects
of
success, condonation should be granted. Either way, whether on the
version of the appellant or on the version of the respondent,
condonation should be granted.
[25] I
am, therefore, of the view that condonation should be granted.
Costs
[26] Both
parties argued for an award of costs in their favour should they
succeed in this Court. The Constitutional
Court in
Union
for Police Security and Corrections Organisation v South African
Custodial Management (Pty) Ltd and Others
,
[4]
has affirmed the trite principle that in labour matters costs do not
simply follow the result. There is nothing forthcoming from
this
matter that justifies a departure from this important precedent. As
such I make no order as to costs.
Order
[27] In
the premises I make the following order –
1
The appeal is upheld.
2
The order of the court
a quo
is set aside and replaced with
the following order:
“
The condonation
for the late filing of the statement of claim is granted”.
3
There is no order of costs.
Kubushi
AJA
Waglay
JP and Davis JA concur.
APPEARANCES:
FOR
THE APPELLANT: A
L Cook
Instructed
by LDA Incorporated
FOR
THE RESPONDENT: S
Grobler
Instructed
by Phatshoane Henney Attorneys
[1]
See
Kemp
t/a Centralmed v Rawlins
(2009) 30 ILJ 2677 (LAC) at para 55.
[2]
See
Ferguson
and Others v Rhodes University
2018 (1) BCLR 1 (CC) para 21.
[3]
2014
(2) SA 68 (CC); 2014 (1) BCLR 65 (CC); [2014] 1 BLLR 1 (CC); (2014)
35 ILJ 121 (CC) paras 50 and 51.
[4]
[2021]
ZACC 26.