IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR1726/2021
In the matter between:
TRUELOVE MKHONZA Applicant
and
COMMISSIONER DIDA MASENYE N.O. First Respondent
NATIONAL BARGAINING COUNCIL FOR THE ROAD Second Respondent
FREIGHT AND LOGISTRICS INDUSTRY
SEQUENCE LOGISTICS (PTY) LTD Third Respondent
Heard: 06 December 2023
Delivered: 09 January 2024
JUDGMENT
PHAKEDI, AJ
Introduction
[1] The applicant seeks to review and set aside the condonation ruling dated 19
June 2021. In terms of section 158(1)(g) of the Labour Relations Act 1 (LRA),
the Labour Court may , subject to section 145, review the performance or
1 No. 66 of 1995, as amended.
2
purported performance of any function provided for in the LRA on any
grounds that are permissible in law. The application is not opposed by any of
the Respondents.
[2] The condonation ruling is dated 29 June 2021 and the Applicant allegedly
received it on 29 June 2021. The application to review and set aside the
condonation ruling was served and filed on 17 August 2021. In terms of
section 158(1)(g), I am satisfied that this application was brought within a
reasonable time.
[3] I will now proceed to consider the applicant’s review application on the merits
thereof, starting with the setting out of the relevant factual background.
The relevant background
[4] The Applicant was called to attend a disciplinary hearing on 22 and 29
October 2020 on the following charge:
“Unauthorized absence / Abscondment and/or breach of Company Policy and
Procedure in that from 22 nd August 2020 to 10 September 2020 you were
absent from work without authorization or permission and without a valid
reason. You further failed to inform the Company of your absence as per the
Company policy”.
[5] He was only notified on 29 October 2020 that his disciplinary hearing was
proceeding on that same day and he declined to attend the hearing because
his witnesses and representative were not available as they had been working
night shift. The hearing proceeded in his absence and he was dismissed.
[6] The Applicant lodged an appeal and he succeeded. On 12 November 2020,
the chairperson of the appeal hearing recommended that he should be
granted a new disciplinary hearing for the following reason:
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“The chairperson took into consideration the Applicant’s right to call witnesses
during a disciplinary hearing as per the Code of Good Practice and therefore
believes that the Appellant should be afforded the opportunity to present his
case so that a finding can be made by balancing probabilities and selecting a
conclusion which seems to be more natural, or plausible, amongst several
conceivable ones, even though that conclusion may not be the only
reasonable one”.
[7] The second disciplinary hearing was reconvened on 24 November 2020 and
the Applicant was dismissed on 27 November 2020. The Applicant did not
refer his matter to the Bargaining Council within the period prescribed in
section 191(1)(b)(i) of the LRA .2 The dispute was submitted to the Bargaining
Council on 12 April 2021 and on 13 April 2021 the Applicant was directed to
file a condonation application. The Applicant duly served and filed a
substantive application for condonation on 2 9 April 2021 alleging that the
dispute is three months and 16 days late.
[8] Mr Voyi submitted on behalf of the Applicant that he consulted with a certain
Ms Nellie Ntuli on 11 December 2020. Ndumiso Voyi Incorporated moved
offices on 15 December 2020 and his file was misplaced during the process of
moving. He was only able to contact Mr Voyi on 29 March 2021 to enquire on
the progress of his matter and they attended a consultation on 31 March
2021. The Respondent will not suffer any prejudice should condonation be
granted. On prospect s of success, the Applicant submitted that he was
dismissed twice for the same misconduct and as such the principle of double
jeopardy finds application.
[9] No opposing papers were filed on behalf of t he Third Respondent but its
representative made oral submissions opposing condonation application on
31 May 2021. The First Respondent issued a condonation ruling on 19 June
2021 rejecting the applicant’s explanation and reasons for delay. He further
found that the Applicant was not subjected to double jeopardy because the
2 A dismissed employee may refer the dispute in writing to council within thirty (30) days of the date of
a dismissal.
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appeal outcome did not find his dismissal unfair but merely recommended that
he should be given another chance to be heard.
Applicant’s grounds for review
[10] In the founding affidavit , the applicant avers that the ruling is unreasonable
and is not one that a reasonable arbitrator could reach on all the material that
was before the First Respondent.
[11] Furthermore, t he First Respondent committed a reviewable irregularity by
refusing to allow parties to make oral submissions the during in limine hearing
in violation of the audi alteram principle3; and in concluding that the Applicant
had lesser prospects of success because the principle of double jeopardy did
not find application.
[12] In his condonation ruling, the First Respondent opined that this is a case of a
representative who was negligent and did not have the interests of the
Applicant and he concluded that the reasons submitted by the Applicant’s
representative in terms of the cause of the delay are unjustifiable and weak.
The ruling is also challenged on this ground.
Analysis
[13] I am of the view that t he Arbitrator’s decision to allow the parties to make oral
submissions was correct on the basis of the Labour Appeal Court decision in
Kungwini Residential Estate and Adventure Sport Centre Ltd v Mhlongo NO
and others4 and the decision of this court in Silver Unicorn Trading 33 (Pty)
Ltd v Commission for Conciliation, Mediation and Arbitration and others5. In
these cases, the Court held that the arbitrator should not have decided the
application on papers but should have set the matter down for oral
submissions.
3 This ground was abandoned by the Applicant in his supplementary affidavit (para 21, 22, 23).
4 (2006) 27 ILJ 953 (LAC)
5 (2011) 32 ILJ 1760 (LC)
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[14] Section 191(2) of the LRA provides that “if the employee shows good cause at
any time, the council or the Commission may permit the employee to refer the
dispute after the relevant time limit in subsection (1) has expired.”
[15] The approach which the Labour Court and the Labour Appeal Court have
followed in determining whether good cause has been shown, is the often
referred to passage enunciated by Holmes JA in Melane v Santam Insurance
Co Ltd6:
‘In deciding whether sufficient cause has been shown, the basic principle is
that the Court has a discretion, to be exercised judicially upon a consideration
of all the facts, and in essence it is a matter of fairness to both sides. Among
the facts usually relevant are the degree of lateness, the explanation therefor,
the prospects of success and the importance of the case. Ordinarily these
facts are interrelated: they are not individually decisive … save of course that
if there are no prospects of success there would be no point in granting
condonation.’
[16] The Court in Academic and Professional Staff Association v Pretorius NO and
Others7 summarized the principles for consideration as follows:
‘The factors which the court takes into consideration in assessing whether or
not to grant condonation are: (a) the degree of lateness or non -compliance
with the prescribed time frame; (b) the explanation for the lateness or the
failure to comply with time frame; (c) prospects of success or bona fide
defence in the main case; (d) the importance of the case; € the respondent’s
interest in the finality of the judgment; (f) the convenience of the court; and (g)
avoidance of unnecessary delay in the administration of justice. …. It is trite
law that these factors are not individually decisive but are interrelated and
must be weighed against each other. In weighing these factors for instance, a
good explanation for the lateness may assist the applicant in compensating
6 1962 (4) SA 531 (A) at p. 532 at para C – E.
7 (2008) 29 ILJ 318 (LC) at paras 17–18.
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for weak prospects of success. Similarly, strong prospects of success may
compensate the inadequate explanation and long delay.’
[17] In applying the above principles in this matter, the Commissioner accepted
that the degree of lateness or non -compliance with the prescribed timeframe
is three months and 16 days. The Applicant was dismissed on 27 November
2023 and ought to have referred his dispute on or before 27 December 2020.
The referral was only filed on 12 April 2021. However, the application for
condonation was only served on the Third Respondent on 29 April 2021. The
explanation provided by the Applicant for this non-compliance is that his file
was misplaced when his legal representatives were moving offices. The
Applicant did not file any confirmatory affidavit confirming the averments
made by his legal representative.
[18] In respect of prospects of success, the Arbitrator found that because the
reasons provided for the non -compliance are weak and unjustifiable, the
Applicant’s prospects of success are weak in that he was not subjected to
double jeopardy when he was afforded another opportunity to be heard since
the first hearing proceeded in his absence without presenting his defence.
[19] In National Union of Mineworkers v Council for Mineral Technology 8, the
Labour Appeal Court held as follows:
“The approach is that the court has a discretion, to be exercised judicially
upon a consideration of all facts, and in essence, it is a matter of fairness to
both parties. Among the facts usually relevant are the degrees of lateness,
the explanation therefore, the prospects of success and the importance of the
case. These facts are interrelated; they are not individually decisive. What is
needed is an objective conspectus of all the facts. A slight delay and a good
explanation may help to compensate for prospects of success which are not
strong. The importance of the issue and strong prospects of success may
tend to compensate for a long delay. There is a further principle which is
applied and that is that without a reasonable and acceptable explanation for
8 [1999] 3 BLLR 209 (LAC) at para 10.
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the delay, the prospects of success are immaterial, and without prospects of
success, no matter how good the explanation for the delay, an application for
condonation should be refused.”
[20] The Court in Independent Municipal and Allied Trade Union on behalf of
Zungu v SA Local Government Bargaining Council and Others9 held:
‘In explaining the reason for the delay, it is necessary for the party seeking
condonation to fully explain the reason for the delay in order for the court to
be in a proper position to assess whether or not the explanation is a good
one. This in my view requires an explanation which covers the full length of
the delay. The mere listing of significant events which took place during the
period in question without an explanation for the time that lapsed between
these events does not place a court in a position properly to assess the
explanation for the delay. This amounts to nothing more than a recordal of the
dates relevant to the processing of a dispute or application, as the case may
be.’
[21] In order to exercise its discretion whether or not to grant condonation, this
adjudicator must be appraised of all the facts and circumstances relating to
the delay. Condonation cannot be had for the mere asking, and a party is
required to make out a case entitling it to the co mmissioner’s indulgence by
showing sufficient cause, and giving a full, detailed and accurate account of
the causes of the delay. 10 Between 12 December 2020 and 28 March 2021,
the Applicant did not take any positive steps to enquire from his legal
representative on the status of his matter, he only called on 29 March 2021.
[22] The Applicant’s representative submitted in the condonation application that
the cause of the delay should not be apportioned on the Applicant. In
Saloojee and Another NNO v Minister of Community Development 11, Steyn
CJ stated the following in relation to a lack of diligence on the part of an
attorney and how a litigant that chose that attorney as its representative
9 (2010) 31 ILJ 1413 (LC) para 13
10 Mulaudzi v Old Mutual Life Assurance Co (South Africa) Ltd 2017 (6) SA 90 (SCA) at para 6.
11 1965 (2) SA 135 (A) at 141C - E.
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should not be absolved from the normal consequences of such a relationship,
no matter what the consequences of the failure by the attorney are:
“I should point out, however, that it has not at any time been held that
condonation will not in any circumstances be withheld if the blame lies with
his attorney. There is a limit beyond which a litigant cannot escape the results
of his attorney’s lack of diligence, or the insufficiency of the explanation
tendered. To hold otherwise might have a disastrous effect on the
observance of the Rules of this Court. Considerations ad misericordiam
should not be allowed to become an invitation to laxity. In fact, this Court has
lately been burdened with an undue increasing number of applications for
condonation in which the failure to comply with the Rules of this Court was
due to neglect on the part of the attorney. The attorney, after all, is the
representative whom the litigant has chosen for himself, and there is little
reason why, in regard to condonation of a failure to comply with a Rule of
Court, the litigant should be absolved from the normal consequences of such
a relationship, no matter what the consequences of the failure are.”
[23] This principle was enunciated in the PPWAWU and Others v AF Dreyer and
Co (Pty) Ltd,12 where the court held that employees are not entitled to rely on
the tardiness of their representative. Although the delay was caused by the
negligence of the representative, there are limits to which applicants can rely
on such negligence even when they are personally innocent of any tardiness.
The Applicant failed to account for a full period of delay between 15
December until 28 March 2021 when he eventually made contact with his
legal representatives. A prescribed period of thirty days within which his unfair
dismissal dispute ought to have been lodged expired on or during December
2020 and he waited until 29 March 2021 to enquire on progress on his matter.
Relief sought by Applicant
[24] In his notice of motion, the Applicant is seeking an order in the following
terms:
12 [1997] 9 BLLR 1141 (LAC).
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24.1 reviewing and setting aside the condonation ruling issued by the First
Respondent on or about 19 June 2021 under case number:
GPRFBC63446;
24.2 Condoning the Applicant’s late referral of his unfair dismissal dispute
under case number GPRFBC63446.
[25] Having regard to all the evidence and material filed in this matter, I cannot find
any basis to review and set aside the condonation ruling on any of the
grounds submitted by the Applicant. The explanation for the delay is wholly
inadequate and non -existent, it was his legal representatives who were
moving offices not him.
Prospects of success
[26] I agree with the Arbitrator’s conclusions on the interpretation of the appeal
outcome. The Applicant employee’s guilt or innocence was never pronounced
by the appeal chairperson; he/she took into account that the employe r acted
unfairly towards the employee by proceeding with a disciplinary hearing in his
absence. I believe that the sanctioning of the second disciplinary hearing was
meant to afford the employee a right to be heard and adduce evidence in
defence of allegations against him and this was a fair approach.
[27] Fairness for a n employee is to have an adequate opportunity to respond to
the allegations. In BMW (South Africa) (Pty) Ltd v Van der Walt 13 the LAC
dealt with the question of whether or not it would be fair for the employer to
subject an employee to a second disciplinary inquiry and held as follows:
‘Whether or not a second disciplinary inquiry may be opened against an
employee would, I consider, depend upon whether it is, in all the
circumstances, fair to do so… In labour law fairness and fairness alone is the
yardstick.’
13 [2000] 2 BLLR 121 (LAC).
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[28] Therefore, and even if it can be said that the arbitrator committed a
reviewable irregularity by allowing the Third Respondent to make oral
submissions without filing opposing papers as prescribed by Council Rules ,
the fact is that this did not affect the fair determination of the applicant’s
condonation application. Section 138(1) of the LRA enables commissioners to
arbitrate disputes in a manner they consider appropriate in order to determine
them fairly and quickly with the minimum of legal formalit ies. This Court, in
considering the condonation application on the merits, comes to the same
conclusion that the Applicant failed to give adequate explanation for the
delays and give a full account of the full period of delay. The condonation
ruling must therefore be upheld. The matter was unopposed, and thus the
issue of costs do not arise.
[28] In the premises, I make the following order:
Order
1. The review application is dismissed.
_________________
GC Phakedi
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant : Mr S Ntshaba of Voyi Incorporated Attorneys
For the Respondent : No appearance.