THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR3002/2012
In the matter between:
TSHEPO EDWARD THUSI Applicant
and
DEPARTMENT OF PUBLIC WORKS & RURAL
DEVELOPMENT First Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL (GPSSBC) Second Respondent
H. HLATSHWAYO N.O. Third Respondent
Heard: 30 January 2024
Delivered: 30 January 2024
EX TEMPORE JUDGMENT
PHEHANE, J
[1] The applicant brings this application to review and set aside the arbitration
award dated 12 June 2012 and the rescission ruling dated 1 September 2012, both
by the third respondent (Commissioner).
[2] The applicant avers that he received the arbitration award on 3 July 2012 and
the rescission ruling on 28 September 2012.
[3] The review application was launched on 18 December 2012.
2
[4] The review application dates back some 12 years. In that time period, an
application to reinstate the review application was launched and granted.
[5] There exists an unsigned order dated 30 May 2017 that purports to grant
condonation for the late filing of the review application. There is no record of such
official Court order . Mr. Louw for the applicant submitted that no such Court order
could be located and that the parties that appeared in Court on that day could not
confirm its existence. In the circumstance of no Court order determining condonation
for the late filing of the review application, the parties are in agreement that
condonation be argued before me.
Background
[6] The applicant was dismissed from the employ of the first respondent for
serious acts of misconduct. He subsequently launched an unfair dismissal dispute
with the second respondent. At the arbitration proceedings before the Commissioner,
the first respondent failed to appear. The applicant alleges that his union
representative (Mr. Greeff) impressed upon the Commissioner that he intended to
argue a preliminary point on the first respondent’s failure to adhere to the disciplinary
code and procedure as set out in a collective agreement (Public Service
Coordinating Bargaining Council Resolution 1 of 2003), in that it appointed an
external chairperson to preside over the applicant’s internal disciplinary hearing. On
hearing this, the applicant avers that the Commissioner and Mr. Greeff , it would
seem, concluded an agreement in terms of which Mr. Greeff would submit his written
arguments on the point in limine , after which , she would make a decision. I discuss
more about this “agreement” below.
[7] To the applicant ’s utter surprise and dismay, when the arbitration award was
received, the Commissioner dealt with the merits of the referral and dismissed it on
account of the applicant not making any submissions on substantive un fairness and
in so far as procedural unfairness is concerned, the Commissioner found that the
applicant failed to produce the aforesaid collective agreement and failed to make his
written submissions under oath.
3
[8] The applicant avers that Mr. Greeff attempted to contact the Commissioner to
discuss “the agreement”. When he reached her, the Commissioner advised him to
bring an application to rescind the arbitration award, which he did. In considering the
rescission application, the Commissioner found that the applicant did not make out a
case for rescission in that he failed to indicate the grounds for rescission in terms of
section 144 of the Labour Relations Act1 (LRA). In the premises, the rescission
application was dismissed.
[9] The applicant avers that Mr Greeff once again attempted to contact the
Commissioner to ascertain as to whether she could rectify the rescission ruling.
When he could not reach her, Mr. Greeff decided to approach this Court to review
both the arbitration award and the rescission ruling.
Condonation
[10] The applicant seeks condonation for the late filing of his review application.
[11] The test to succeed on condonation is trite.
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Extent of delay and reasons therefore
[12] In his founding affidavit, the applicant avers without providing a full account for
every period of delay, that upon receipt of the arbitration award, Mr. Greeff
“immediately” attempted to contact the Commissioner, who when contacted, advised
him to launch a rescission application. Having received the arbitration award on 3
July 2012, the applicant did not explain with any elaboration when he contacted the
Commissioner. It is not explained when the rescission application was launched.
[13] Upon receipt of the rescission ruling, the applicant avers that Mr. Greeff, well
aware, it would seem, that the dies within which to launch an application to review
1 Act 66 of 1995, as amended.
2 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) ; Grootboom v National Prosecuting
Authority [2013] ZACC 37; (2014) 2 SA 68 (CC).
4
and set aside the rescission ruling would expire on 9 November 2012, yet again,
attempted to reach the Commissioner, who he discovered had relocated and all
attempts to reach her proved futile. At this point, Mr. Greeff decided to approach this
Court to review and set aside the arbitration award as well as the rescission ruling.
[14] The applicant fails to set out the extent of the delay in launching the
application to review and set aside the arbitration award. The review application was
brought some six months after he received the arbitration award.
[15] The applicant’s reason for launching the application to review and set aside
the arbitration award late is due to Mr. Greeff having brought the rescission
application. His reason for launching the application to review and set aside the
rescission application late is due to Mr. Greeff undertaking a futile expedition to
ascertain the whereabouts of the Commissioner in the hope that she could rescind
her ruling “mero muto”.
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[16] The further reasons proffered by the applicant for failing to launch the review
application timely is due to him not having the necessary funds, and when obtaining
the services of his current attorney of record who agreed to represent him pro amico ,
that attorney was unavailable to launch this application as he attended an ‘ indaba’ in
Durban from 5 to 8 December 2012.
[17] The applicant brings this review application in terms of the provisions of
section 145(2) of the LRA.
4 This review application was only launched on 18
December 2012. It is trite that a review application is an urgent application.5 Section
145(1)(a) of the LRA provides that the timeframe within which to launch a review
application is 6 weeks. Section 145(1A) of the LRA states that this Court may
condone the late filing of a review application on good cause shown.
[18] The delay in launching the application to review and set aside the arbitration
award is inordinate and well beyond the statutorily prescribed 6- week period. The
3 See: founding affidavit at paras 3.10 to 3.12 on pp 7 to 8.
4 See: founding affidavit, at para 5.1 on p 11, although the reference to section 145 (2) of the LRA
appears to be incorrect.
5 See: Item 11.2. 7 of the Practice Manual of the Labour Court, effective 2 April 2013.
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application to review the arbitration award is approximately six months late and the
application to review the rescission ruling is approximately 5.5 weeks late.
[19] The applicant, represented by a trade union official , elected to launch a
rescission application as opposed to launching a review application. Ca sting blame
on the trade union for the delay in bringing the review application with respect to the
arbitration award and the rescission ruling) is not a sound reason for the delay.
6
Similarly, blaming the attorney of record for not being available to launch his review
application is also not an acceptable reason for the delay.7
[20] In my view, it was improper for Mr. Greeff to make attempts to contact the
Commissioner instead of simply approaching this Court to review and set aside the
arbitration award in the first instance and the rescission ruling in the second
instance. The applicant, after all, was represented by a trade union which ought to
know the relevant provisions of the LRA and should apply them correctly in seeking
the appropriate remedy on behalf of its member and complying with the time- frames
for doing so.
[21] As stated above, the applicant falls short in explaining every period of delay.
In Independent Municipal and Allied Trade Union on behalf of Zungu v South African
Local Government Bargaining Council and others,
8 this Court held as follows:
‘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.’
6 See: Saloojee and another v Minister of Community Development 1965 (2) SA 135 (A).
7 See: Mngomezulu and Another v Mulima NO and Others (JR2744/12) [2017] ZALCJHB 415 (7
November 2017) with this Court stated as follows at para [12]:
‘… In National Union of Metalworkers of South Africa v Kroon Gietary and Staal , the Court refused
a condonation application w herein the deponent attributed the delay to his representative. The
Court quoted in approval the case of Regal v African Superstate (Pty) Ltd where the court held that
there is a limit beyond which a litigant cannot escape the result s of his attorney's lack of diligence
or the insufficiency of the explanation tendered. A litigant is not entitled to hand over his matted his
attorney and washes hands of it’.[Footnotes omitted]
8 [2009] ZALC 137; (2010) 31 ILJ 1413 (LC) at para [13].
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[22] In eThekwini Municipality v Ingonyama Trust,9 the Constitutional Court held as
follows, whether an explanation furnished by the applicant did not cover the entire
period of delay or part of the delay was unexplained:
‘As stated earlier, two factors assume importance in determining whether
condonation should be granted in this case. They are the explanation furnished for
the delay and prospects of success. In a proper case these factors may tip the scale
against the granting of condonation. In a case where the delay is not a short one, the
explanation given must not only be satisfactory but must also cover the entire period
of the delay. Thus in Van Wyk v Unitas Hospital and Another (Open Democratic
Advice Centre as Amicus Curiae), this Court stated in this regard:
“An applicant for condonation must give a full explanation for the delay. In addition,
the explanation must cover the entire period of delay. And, what is more, the
explanation given must be reasonable. The explanation given by the applicant falls
far short of these requirements. Her explanation for the inordinate delay is superficial
and unconvincing.”’
[23] In casu, the explanation proffered by the applicant is inadequate and does not
constitute a good reason for the delay in the late filing of the review application.
[24] The further reason proffered by the applicant for the delay , that he was not
placed in funds, is not an acceptable explanation. He was represented by a trade
union and inasmuch as he was later pointed to an attorney to represent him pro
amico, it is more likely than not that he could have been pointed to pro bono legal
assistance earlier, as opposed to placing himself at the mercy of a trade union and
its internal workings regarding the approvals for assistance from the union’s head
office to pay for his review application.
[25] The applicant’s reasons for delay (where proffered) are untenable, where
there is no explanation for the full account of delay, it amounts to no explanation at
all.
10 In the circumstances, the prospects of success are immaterial.11
9 [2013] ZACC 7 (CC); 2013 (5) BCLR 497 (CC) at para [28].
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[26] I have considered, in the interests of justice, the prospects of success and
prejudice to both parties.
[27] In consideration of the prospects of success, I took into account the grounds
of review. 12 The crux of the applicant’s case justifying the review of the arbitration
award is premised on an “agreement” concluded, it would seem, although this is not
specified by the applicant, between the applicant, as represented by Mr. Greeff and
the Commissioner, that the applicant submits written submissions on the preliminary
point on procedure only and should such preliminary point fail, the dispute would be
set down for the hearing of oral evidence.
[28] There is not an iota of evidence to substantiate the existence of any such
written agreement. As such agreement would be in his knowledge, Mr. Greeff does
not, in his confirmatory affidavit,
13 make any mention of it , what the terms were and
who the parties to such agreement are. The Commissioner mentions no such
“agreement” in her arbitration award. On the contrary, she states that the respondent
was absent and the applicant opted to submit documents as part of the evidence by
way of written submissions.
14 The Commissioner further records that an agreement
could not be secured in the absence of the respondent permitting the filing of written
submissions.. She proceeds to record that the applicant’s written submissions are
not under oath. 15 In my view, this demonstrates that the Commissioner expressly
records that there was no agreement between the parties to the dispute regarding
the securing of written submissions i n the absence of the respondent and t he
applicant’s election therefore, to submit written submissions as part of the evidence
is inadequate, as such written submissions are not under oath.
10 Ntsele v Commission for Conciliation, Mediation and Arbitration (JR1459/15) [2017] ZALCJHB 161.
11 See: National Union of Mineworkers v Council for Mineral Technology [1998] ZALAC 22; [1999] 3
BLLR 209 (LAC).
12 See: founding affidavit at para 5 on pp 11 to 12.
13 At pp 26 to 27.
14 See: para 2 of the arbitration award on p 19.
15 Ibid at para 8 on p 20.
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[29] The first respondent denies any knowledge of such agreement and further
states that the conclusion of such an agreement between the Commissioner and one
party to the dispute would be improper. I agree.
[30] In the absence of the respondent, the applicant chose the manner of
disposing of the referral to his own peril. In view of the afore- going, I am not
persuaded that the prospects of success on review of the arbitration award are good.
[31] Instead of simply launching an application to review the arbitration award, the
applicant proceeded on protracted and improper conduct of “hounding” (to borrow
the words of Ms. Cassim) the Commissioner to revise her arbitration award and
continued with this conduct of contacting her twice or thrice a week after she
rendered her ruling on rescission.
16
[32] There are similarly, no prospects of success in the rescission application.
Once again, not only is there no mention of any “agreement” as alleged by the
applicant, no case is made out on rescission. The Commissioner therefore, cannot
be faulted for her decision to dismiss the rescission application.
[33] Insofar as prejudice is concerned, Ms. Cassim submits that the first
respondent would be greatly prejudiced should condonation succeed in light of the
substantial amount of time that has lapsed since the applicant was dismissed.
[34] In view of the afore- going and in consideration of the substantial amount of
time that has lapsed (notwithstanding that a reinstatement application was launched,
facts which the applicant did not place before this Court in a supplementary affidavit
to substantiate its condonation application), the inordinate delay in launching the
review application, the prejudice to the respondent and the unacceptable reasons for
the delay, in the interests of justice, I exercise my discretion to refuse the grant of
condonation for the late filing of the review application.
[35] In the premises, the order is as follows:
16 See: founding affidavit at para 3.11 on p 7.
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Order
1. Condonation for the late filing of the review application is refused.
2. There is no order as to costs.
M. T. M. Phehane
Judge of the Labour Court of South Africa