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2024
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[2024] ZALCJHB 55
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Mphephu v Commission of Conciliation Mediation and Arbitration Limpopo Province and Others (JR 1809-2021) [2024] ZALCJHB 55 (20 February 2024)
THE
LABOUR COURT OF SOUTH AFRICA
AT
JOHANNESBURG
Not
Reportable
Case
no:
JR 1809/2021
In
the matter between:
EMMANUEL MPHEPHU
Applicant
and
CCMA (LIMPOPO
PROVINCE)
First
Respondent
COMMISSIONER NICHOLAS
MATLOGA
N.O.
Second Respondent
SAFCOL
(PTY) LTD
Third
Respondent
Heard
:
07 February 2024
Delivered
:
(This judgment was handed down electronically by emailing a copy to
the parties. The 20
th
February 2024 is deemed to be the
date of delivery of this judgment).
Summary:
(Condonation for late filing of review application – delay
inordinately long and explanation wholly inadequate – Applicant
also misrepresenting reason for delay for a period a period of at
least two months – application dismissed without consideration
of merits.)
JUDGMENT
LAGRANGE,
J
Introduction
[1]
The applicant, Mr E Mphephu (‘Mphephu’) worked as a truck
driver for the third respondent (‘Safcol’) from
1 October
2013. He was dismissed on 17 June 2020 for refusing to obey the
instructions of his regional manager, Mr L Tshivhidzo
(‘Tshivhidzo’).
The first instruction was given telephonically that he should drive
his truck that afternoon to Wilge
plantation in Mpumulanga to load
gravel. Having provided other reasons not to go the plantation, that
evening, he explained that
he was unable to do so because his father
had been hospitalised and was seriously ill. His manager asked him to
provide an explanation
in writing, but Mphephu said he could not
write. The conversation ended on the basis that he would be at
work the next day.
[2]
The next morning he went to the sawmill, not the plantation. The
manager then told him to stop working and go home due to
insubordination
and to hand over the keys to his lorry after parking
it. He did not respond verbally to this instruction, but drove off to
offload
the sawdust at a site at least 6 kilometers away, before
returning with the truck.
[3]
The arbitrator found that his dismissal was substantively and
procedurally fair. In particular, he found that the applicant had
given conflicting reasons for not complying with the first
instruction and had not furnished a proper explanation for doing so.
In relation to the second instruction, the arbitrator did not accept
the applicant’s reason for not parking the truck as
instructed,
namely that he wished to offload sawdust loaded on the vehicle before
he parked the truck, in circumstances where the
distance he had to
travel to dump the sawdust was over 6 kilometres away. The arbitrator
found that it was not his choice to prioritise
what he did after he
received the instruction.
[4]
The arbitration award was issued on 6 September 2020, but received on
9 September. The review application was launched more than
a year
later, on 8 October 2021. Mphephu’s attorneys notified Safcol's
attorneys on 7 December 2021 that the record had been
received and
had been sent for transcription.
[5]
In late March 2022, five months after launching the review
application, the applicant applied for condonation for the late
referral
of his review application.
[6]
On 14 July 2022, the applicant filed his supplementary affidavit,
having apparently filed the record on 16 May 2022 at the Labour
Court, though he appeared to have already served the record on the
respondents on 22 January 2022.
[7]
The respondent claims that the applicant failed to comply with the
court’s directive to index and paginate the court fire
within 5
days and thereafter file its own heads of argument. It had argued
that a failure to comply with the directive means that
the file
should be archived, but correctly abandoned this line of argument at
the hearing.
[8]
At the request of both parties, the application was heard virtually
using Microsoft Teams.
The condonation
application
[9]
Condonation
is not there merely for the asking, nor are applications for
condonation a mere formality (see
NUMSA
& another v Hillside Aluminium
[1]
and
Grootboom
v National Prosecuting Authority & another
[2]
).
A party seeking condonation must make out a case for the indulgence
sought and bears the onus to satisfy the court that condonation
should be granted.
[10]
The length of the delay in filing the review application was two
weeks short of a year late. Such an extraordinarily long delay
requires a comprehensive explanation for the whole period of the
delay. The various periods of the delay can be briefly mentioned
below.
[11]
The applicant claims that he approached Legal Aid South Africa for
assistance on 25 September. At that stage he was well within
time.
[12]
However, the next time he spoke to the legal advisor was on an
unspecified date in November 2020, by which stage the six-week period
for filing his review application had already expired.
[13]
Thereafter, on another unidentified date, Mphephu said he received an
SMS from Legal Aid confirming that his application had been
approved
but it was only sometime in March 2021 that he discovered that the
approval for assistance had been erroneously granted
on the basis
that his case concerned a divorce not a labour matter. Because no
dates are specified it is difficult to know what
the length of time
was between receiving the SMS and his follow-up in March 2021. A
failure to provide clarity on this amounts
to an inadequate
explanation for period of delay of at least three months and cannot
constitute an acceptable one. The court cannot
speculate about when
certain events took place.
[14]
In any event, he then claims he sought legal advice from a private
attorney, Somo Thabisa Attorneys, again on an unspecified date.
He
claims he was unable to consult with his new attorney until June 2021
owing to the COVID-19 lockdown. The period between
March 2021
and a consultation on an unspecified date in June constitutes an
unexplained gap of approximately three months or more.
[15]
What
Covid regulations were applicable then? Since Mphephu relied on the
regulations, the court can take judicial notice of the
applicable
alert levels during 2021 which were gazetted under the
Disaster
Management Act 57 of 2002
. From 1 March to 30 May 2021, the country
was on adjusted alert level 1
[3]
.
Clause 68 of the regulation notice in question limited free movement
of persons during a night-time curfew. Thereafter,
the country
was on adjusted alert level 2 from 31 May to 15 June 2021
[4]
.
In terms of clause 50 of the latter regulation notice, similarly to
clause 68 of the previous regulation, no restriction was placed
on
the movement of persons except during a nighttime curfew from 22h00
until 04h00. The only other limitations concerned observance
of
Covid-19 safety protocols. Even the introduction of adjusted
alert level 3 on 15 June 2021
[5]
which lasted until 12 September 2021, did not impose greater
restrictions on the movement of persons. Thereafter, the regulations
were relaxed further.
[16]
What this demonstrates is that the applicant is trying to mislead the
court in stating that he could not consult with his attorneys
because
of Covid lockdown regulations. There were no restrictions on the
movement of persons during that time. His willingness
to
blatantly misrepresent the facts relating to part of the delay, casts
doubt on the veracity of his other vague explanations
for different
periods of delay.
[17]
When he did consult with his attorneys on some unspecified date in
June 2021, it was then that he claimed he realised they had
not even
commenced with his application. He approached his current attorneys
record on an unspecified date in July 2021. Why his
current attorneys
of record could not have identified the date on which he first
consulted them is a mystery as they provided no
confirmatory
affidavit.
[18]
No explanation is provided by him or his attorneys on why it took a
further two or more months to file the application. In
this
regard, it is important to bear in mind that the founding affidavit
in a review application can be completely amended in a
supplementary
affidavit and consequently does not have to be comprehensive, so
there is no reason why it needed two months to draft
the notice of
motion and founding affidavit.
[19]
In summary, there is simply insufficient detail provided for long
periods of delay which might explain why it took so long before
the
next step was taken. Even on a generous interpretation of his
explanation, allowing for a months’ delay at each of the
stages
mentioned above to be excused, excluding the period when he falsely
claimed he could not consult his attorneys it would
still leave a
period of nine months of unexplained inactivity.
[20]
In
NUM
v Council for Mineral Technology
[6]
, the LAC said:
“
[W]ithout
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.”
[21]
In
Colett
v Commission for G Conciliation, Mediation & Arbitration &
others
[7]
,
the LAC held:
‘
[38]
There are overwhelming precedents in this court, the Supreme Court of
Appeal and the Constitutional Court for the proposition
that where
there is a flagrant or gross failure to comply with the rules of
court condonation may be refused without considering
the prospects of
success. In
NUM v Council for Mineral Technology
it
was pointed out that in considering whether good cause has been shown
the well-known approach adopted in Melane v Santam Insurance
Co Ltd
1962 (4) SA 531
(A) at 532C-D should be followed, but —
“
[t]here
is a further principle which is applied and that is without a
reasonable and acceptable explanation for the delay, the prospects
of
success are immaterial, and without good prospects of success, no
matter how good the explanation for delay, an application
for
condonation should be refused”.
[39] The submission that
the court a quo had to consider the prospects of success irrespective
of the unsatisfactory and unacceptable
explanation for the gross and
flagrant disregard of the rules is without merit.”
[22]
In this case there is an egregious delay and inadequate explanation.
To compound matters, Mphephu offered a false justification
for a
significant portion of the delay. In the circumstances, and bearing
in mind the authorities above, the condonation application
should be
dismissed without consideration of the merits.
Order
1.
The Applicant’s condonation application for the late referral
of his review application is dismissed, and consequently the
review
application is also dismissed.
2.
No order is made as to costs.
RG
Lagrange
Judge
of the Labour Court of South Africa.
Appearances:
For
the Applicant:
M Mapila instructed by Ernest Rammela
Attorneys
For
the Respondent: KG Kemp
instructed by FourieFismer Inc.
[1]
[2005] 6 BLLR 601 (LC);
[2]
2014 (2) SA 68 (CC)
[3]
Notice No R 152, GG 44201, dd 28 February 2021
[4]
Notice No R 477, GG 44642, dd 30 May 2021.
[5]
[5]
Notice No R 530, GG 44715 dd 15 June 2021 and Notice No R 4 869, GG
45156, dd 12 September 2021
[6]
[1999] 3 BLLR 209 (LAC)
[7]
(2014) 35 ILJ 1948 (LAC);