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2024
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[2024] ZALCJHB 43
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Thakani v Transnet Freight Rail and Others (JR1301/22) [2024] ZALCJHB 43 (6 February 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 1301/22
In
the matter between
SHAI
THAKANI
Applicant
And
TRANSNET
FREIGHT RAIL (RME)
First
Respondent
COMMISSIONER
KENNETH MOSIME
Second Respondent
TRANSNET
BARGAINING COUNCIL
Third Respondent
Heard:
31 January 2024
Delivered:
6 February 2024
JUDGMENT
EDWARDS,
AJ
Introduction
[1]
The applicant
brought an application to review and set aside the arbitration award
issued by the second respondent under the auspices
of the third
respondent.
[2]
While the
opposing papers refer to the third respondent as the party opposing
the condonation application, it is evident that this
is a
typographical error due to the similarity in the names of the first
and third respondents and that the condonation application
was
opposed by the first respondent.
Background
[3]
As the
arbitration award which the applicant seeks to have reviewed and set
aside was received by the applicant on 17 May 2022,
the review
application ought to have been filed by no later than 29 June 2022.
However, the founding affidavit in the application
was deposed to by
the applicant on 19 July 2022 (at which stage, the application was
three weeks out of time), the application
was served on the first
respondent by email on 28 July 2022 (approximately four weeks out of
time), and the application was then
filed at this Court on 4 August
2022, at which point it was five weeks out of time.
[4]
The applicant
has furnished no explanation as to why the review application was
only served on the first respondent seven days after
the founding
affidavit was deposed to or why the application was filed five days
after it was served on the first respondent (which
was 12 days after
it was signed). When I raised this with the applicant who appeared in
person at the hearing of the matter, he
was unable to provide me with
an explanation.
[5]
Despite the
fact that the review application was, according to the first
respondent, served on it by email on 28 July 2022, there
is no
service affidavit deposed to by the applicant or his representatives
regarding the service of the application by email as
required in
terms of the directive of the Judge President of this Court on 5
January 2022, regarding the requirements for service
in this manner.
[6]
There is also
nothing in the file to suggest that the review application was served
on the second or third respondent.
[7]
Again, when I
raised these issues with the applicant at the hearing of this matter,
he was unable to provide an explanation other
than that he had relied
on his representatives to do what was required.
[8]
The applicant
has brought an application for the condonation of the late filing of
the review application. This application was
signed on 28 July 2022.
There is again no affidavit of service or indeed any indication of
when it was served on any of the respondents,
however, it is apparent
that it did come to the attention of the first respondent around this
time as the application was been
opposed by it on 12 August 2022.
[9]
The
condonation application was filed at this Court on 4 August 2022.
[10]
Again no
explanation has been furnished as to why the condonation application
was only filed five days after it was signed.
[11]
In the
condonation application, the explanation proffered for the late
filing of the review application is that the applicant consulted
a
labour consultant regarding bringing the review application, however,
at some stage the labour consultant became ill and was
unavailable
and informed him ‘telepathically’ (one can only assume
this was telephonically) that he would attend to
the review
application on his return to work.
[12]
The applicant
also explains that, the day after he received the award, 18 May 2022,
his uncle passed away in Venda and he had to
attend the funeral and
manage the affairs of the deceased estate there. He only returned to
Gauteng on 19 July 2022, at which time
the labour consultant had
still not returned to work and was unavailable. As a result, he then
had to seek legal advice from an
attorney.
[13]
The applicant
submits that he was not in wilful default of the prescribed time
period for the filing of the review application but
that the family
emergency in Venda and his consultant’s unavailability were
circumstances beyond his control. He also states
that he relied on
the consultant to file the review application but it was only on his
return to Gauteng that he consulted with
an attorney and the review
application was drafted. Oddly, he alleges that the review
application was finalized on 19 May 2022.
Again, one can only assume
that this is a typographical error and that this should read 19 July
2022.
[14]
At the hearing
of the matter, I raised various concerns with the applicant, the
first being that it appeared from the notice of
motion in the review
application that he was represented by Umusa Legal Advisors and
Employment Law Practitioners (Umusa) and that
he was no longer
represented by them but represented himself in the condonation
application. I asked if he was still represented
by Umusa and I
queried how it could be that the address for Umusa on the notice of
motion in the review application was the address
for himself in the
condonation application. In response, the applicant indicated that
the address was in fact his address and that
he was no longer
represented by Umusa. On further questioning, he confirmed that in
fact, Umusa were not attorneys but the labour
consultants that he
referred to in the condonation application.
[15]
I asked the
applicant who the attorney was that he had consulted with when he
returned to Gauteng on 19 July 2022 and established
that the labour
consultant had not returned to work and was still unavailable. After
a fairly long exchange, it became apparent
that Umusa and the
attorney were in fact one and the same.
[16]
The other
concern with the condonation application that I raised with the
applicant at the hearing was the lack of detail regarding
the timing
of events and the people involved as described in the application.
The applicant attempted to provide further details
from the bar,
however, as Mr Peter, the attorney representing the first respondent,
pointed out, all of the details relating to
why the review
application was filed late had at all times been within the
applicant’s knowledge, however, the applicant
had, kept the
full facts from this court in the application. Mr Peter argued that
the applicant had simply adapted and changed
his explanation as I
asked him questions rather than genuinely taking this court into his
confidence.
[17]
I have to
agree with him.
[18]
In opposing
the condonation application, the first respondent argued that the
delay was significant and required a good explanation.
It further
argued that the explanation furnished by the applicant was untruthful
and wholly inadequate for a variety of reasons.
The first respondent
argues that in the absence of a full and reasonable explanation for
the delay, the prospects of success are
immaterial.
[19]
In
NUM
v Council for Mineral Technology
[1]
(NUM),
the Labour Appeal Court confirmed that the approach set out in
Melane
v Santam Insurance Co Ltd
[2]
,
is the approach that should be adopted in considering condonation
applications. That is, “
that
the
court has a discretion to be exercised judicially upon a
consideration of all the facts and that, in essence it is a matter
of
fairness to both sides”
.
The
factors to be considered are the “
degree
of lateness, the explanation”
for the delay, the “
prospects
of success”
and the prejudice to both parties.
[20]
The
Labour Appeal Court added a further principle that is to be applied,
that is, that without a reasonable and acceptable explanation
for 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.
[3]
[21]
In
Grootboom
v National Prosecuting Authority and another
[4]
,
the Constitutional Court held that it is trite that condonation
cannot be had for the mere asking and that a party seeking
condonation
must make out a case entitling it to the court’s
indulgence. It must show sufficient cause which requires a party to
give
a full explanation for the non-compliance with the rules or
court’s directions. The explanation must be reasonable enough
to excuse the default.
[5]
[22]
Furthermore,
it held that
the
granting or refusal of condonation is a matter of judicial discretion
which involves a value judgment by the court seized with
a matter
based on the facts of that particular case.
[6]
[23]
Having read
the papers and after having considered the submissions of the
parties, I am satisfied that the explanation for the delay
of five
weeks in bringing the review application is entirely unreasonable and
inadequate. It is replete with vague assertions and
provides no real
detail on the steps that were taken by the applicant to ensure that
his review application was brought timeously.
[24]
Neither the
explanation contained in the condonation application nor the further
explanations offered by the applicant at the hearing
of the matter
made sense and as such were neither adequate nor reasonable.
[25]
In
NUMSA
& another v Hillside Aluminium
[7]
,
this court held that “
there
should be an acceptable explanation tendered in respect of each
period of delay”
.
Parties seeking condonation for non-compliance are obliged to set out
full explanations for each and every delay throughout the
process. An
unsatisfactory and unacceptable explanation for any of the periods of
delay will normally exclude the grant of condonation,
no matter what
the prospects of success on the merits.
[8]
[26]
As I have
already pointed out, the explanation given for the delay in filing
the review application is not a full explanation for
every period of
delay, particularly for the periods between the signing of the two
founding affidavits and the service of same
on the first respondent
and thereafter filing the papers at this court.
[27]
In the
circumstances, the applicant’s prospects of success are
immaterial regardless of how good they may be.
[28]
It
is also noted that no further steps have been taken by the applicant
to proceed with the review application since the application
was
filed on 4 August 2022. The practice manual
[9]
of this court requires that the record of the arbitration proceedings
must be filed within 60 days of the applicant being notified
that the
record has been received by this court and is ready for collection. A
year and five months have passed since the review
application was
filed.
[29]
The applicant
advised me from the bar that he had been notified by the registrar
and had uplifted and transcribed the record, however,
there is
nothing in the file to suggest that the record has been filed as
required. The applicant also did not have any proof that
this had
been done.
[30]
In the
premises, it is likely that the review application has in any event
been deemed to have been withdrawn in terms of the provisions
of the
practice manual. I do not make a definitive finding in this regard,
however.
[31]
On the basis of the explanation
furnished by the applicant for the late filing of the review
application, I am of the view that
the applicant has not made out a
case entitling him to the indulgence he seeks. It follows that the
condonation application must
fail.
[32]
I
make
the following order:
Order
1.
The
application for the condonation of the late-filing of the review
application is dismissed.
2.
There is no
order as to costs.
M
Edwards
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: In person
For
the Respondent: O Peter of Majang Inc Attorneys
[1]
[1999]
3 BLLR 209 (LAC); [1998] ZALAC 22.
[2]
1962 (4) SA 531
(A) at 532 C – F.
[3]
NUM
at
para 10.
[4]
[2014]
1 BLLR 1 (CC); [2013] ZACC 37 (CC).
[5]
Ibid
at
para 23.
[6]
Ibid
at
para 35.
[7]
[2005]
6 BLLR 601 (LC); [2005] ZALC 25.
[8]
Ibid
at
para 12.
[9]
Practice Manual of the Labour Court of South Africa, effective 2
April 2013.