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2024
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[2024] ZALCJHB 114
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Council for Medical Schemes v Commission for Conciliation Mediation and Arbitration and Others (JR754/20) [2024] ZALCJHB 114 (29 February 2024)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR754/20
In the matter between:
COUNCIL FOR MEDICAL
SCHEMES
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
RICHARD BYRNE
N.O.
Second Respondent
SOLIDARITY obo DE
VILLIERS
Third Respondent
Heard:
29 February 2024
Delivered:
29 February 2024
EX TEMPORE
JUDGMENT
PHEHANE, J
Introduction
[1] This
Court is called upon to adjudicate a condonation application for the
late filing of a review
application.
[2]
The
applicant, legally represented, launched a review application in
terms of the provisions of section 145 of the Labour Relations
Act
[1]
(LRA) on 22 June 2020
[2]
,
approximately 6 weeks out of time. At the time of launching the
review application, the applicant was well aware that it was launched
out of time and undertook to file a separate application for
condonation for its late filing. The condonation application was
filed more than three years later.
Condonation
[3]
The
requirements that must be satisfied to succeed in an application for
condonation are well-known.
[3]
An applicant in a condonation application must set out the degree of
the delay and show good cause for the delay; further, the
applicant
must deal with the prospects of success on the merits and prejudice
to the respondent. It is trite that condonation is
not for the mere
asking. An applicant for condonation seeks an indulgence from the
Court and is to show sufficient cause to succeed
in the grant of
condonation by the Court.
Extent of delay
[4] The
review application is filed 6 weeks late.
[5] Although
the applicant stated in the founding affidavit in its review that it
was “
duty bound”
to file a condonation
application, and as stated above, the condonation application
however, was filed more than three years later
and on 8 January 2024.
No explanation is provided by the applicant in its condonation
application as to why it took more than three
years to launch this
application.
[6]
In
Allround
Tooling (Pty) Ltd v NUMSA and others,
[4]
the Labour Appeal Court (LAC) restated the well-established principle
that a condonation application must be filed without delay
and/or as
soon as an applicant becomes aware of the need to do so
.
This did not occur in the present case. The absence of a reason for
such failure is fatal to the condonation application.
Reasons for the
delay
[7]
The
reasons proffered in the founding affidavit for the delay in filing
the review application is that there were delays in obtaining
instructions from its client.
[5]
No detail is provided as to when this occurred. Every period of delay
is unexplained.
[6]
[8] In
its replying affidavit, in an attempt to meet the third respondent’s
challenge raised
in the answering affidavit that the delay is
unexplained, the applicant denies this and asserts that in its
supplementary affidavit
in the review application it stated that the
delay was occasioned by it not obtaining instructions from its client
as “
it is clear that the country was on lock down
”.
No details are set out as to what this means and at what stages and
during which period instructions could not be obtained.
In any event,
it is trite that an applicant is to make out or set out its case in
its founding affidavit. The delay and every period
of the delay
remain unexplained.
[9]
In
a letter dated 13 November 2023,
[7]
the third respondent reminded the applicant that the review
application was enrolled for hearing on 29 February 2024 and noted
that the condonation application had not yet been delivered by the
applicant. The third respondent invited the applicant to deliver
the
application by 31 December 2023, after which, it would consider
whether or not to oppose it. The applicant, disingenuously
states
that the parties agreed that the condonation application had to be
launched before the end of December 2023 and that it
“
did
not think that the condonation application will be opposed
”.
On a reading of the third respondent’s aforesaid letter to the
applicant, there was no basis for the applicant to
labour under the
impression that the condonation application would be unopposed. It
matters not what the agreement by the parties
is on condonation –
the failure to file a review application timely means that this Court
lacks jurisdiction to adjudicate
the review application. The Court
would only be clothed with jurisdiction to adjudicate a review
application filed out of time
if condonation is sought and it grants
condonation on good cause shown.
[8]
[10] The
applicant alleges that there would be no prejudice to the respondents
if condonation is granted,
as the respondents have already filed
their opposing papers in the review application and it is in the best
interests of the parties
that the review application be heard.
[11]
Insofar
as the prospects of success are concerned, the applicant avers that
the review application “
strikes
to the heart of the correct interpretation of a legislation”
and the
respondents will gain clarity on who, within the applicant, has
powers to employ and renew contracts of employment.
[9]
The review application concerns a dispute regarding the unfair
dismissal of the third respondent, who was dismissed on the basis
of
incompatibility. The second respondent found that the dismissal was
substantively unfair and ordered reinstatement and back
pay in the
amount of approximately R2.8 million. The review application did not
concern the interpretation of a piece of legislation,
which
legislation, the applicant does not explain. No further details are
pleaded in respect of the applicant’s prospects
of success on
review. The applicant did not participate in the entire arbitration
proceedings. This is not disputed.
[12]
In
addition to contending that the condonation application falls far
short of the requirements to succeed on condonation, the third
respondent further contends that the review application is deemed
withdrawn for failure to file the record timely.
[10]
It appears that consent was granted by the third respondent to the
applicant to file the record and that the record had to be filed
on
29 January 2021, but an incomplete record was filed on 19 March
2021.
[11]
In the absence of a
notices bundle setting out when the requisite notices in terms of
rule 7A were delivered, it cannot be ascertained
when the applicant
received the notice in terms of rule 7A(3) from the Commission for
Conciliation, Mediation and Arbitration (CCMA),
and when the notices
in terms of rule 7A(5), (6) and (8)(a) were filed.
The
supplementary affidavit in the review application was delivered on 15
March 2021. No notice in terms of rule 7A(6) notice has
been filed.
The non-mechanical record of the arbitration proceedings is attached
to the supplementary affidavit in a series of
annexures. As it
stands, there is no separate records bundle that has been filed by
the applicant and no bundle containing the
transcribed record of the
arbitration proceedings is contained in the Court file. I raised this
with Mr. Mpakane for the applicant
and he informed me that I will not
find the transcribed record in the Court file. I deal with this
submission below when I deal
with the costs.
[13]
The
applicant has failed dismally in its founding affidavit in the
condonation application to make out a case for condonation and
to
show good cause for the delay. The applicant’s reasons for the
delay are unsound and amount to no reasons. It is now accepted
that
in the absence of any reasons for the delay, the prospects of success
are immaterial.
[12]
[14]
Mr.
Mpakane submits from the Bar, that the prospects of success entail a
legal point regarding legislation that sets out who in
the applicant
may renew contracts of employment and that the second respondent
ought to have been aware of this legislation. Gleaning
from the
content of the supplementary affidavit, it would appear that this
legislation is the Medical Schemes Act.
[13]
I mention that the supplementary affidavit makes no referral to the
transcribed record, which is in any event, not before the Court.
[15] Ms.
Janse van Rensburg for the third respondent contends that this point
of law was not before
the second respondent and that the evidence
before him that was tendered by the third respondent was undisputed.
She substantiated
this by referring to the transcript of the
proceedings. Again, these are not before the Court.
[16] Mr.
Mpakane emphatically submits that the applicant has good prospects of
success on the merits
of the review application. The difficulty is
that the prospects of success are not pleaded in the condonation
application. The
condonation application is terse.
[17] The
applicant in my view, has paid lip service to the requirements to
succeed in an application
for condonation.
[18]
Review
applications are urgent applications.
[14]
The delay in launching this condonation application is excessive
taking into consideration that on 6 May 2020, when the founding
affidavit in the review application was deposed to, the applicant was
well aware that it was required to launch an application
for
condonation for the late filing of its review application, yet it did
not launch this application soon thereafter. As I have
stated, no
sound reason is proffered for the delay and every period of delay is
unexplained. The prejudice to the third respondent
is obvious, as it
is now four years down the line and the applicant has been tardy in
the manner in which it has proceeded with
the review application, as
the pleadings are in a state of disarray.
[19] In
view of the afore-going, the condonation application does not
succeed.
Costs
[20] The
manner in which the applicant has proceeded with this review
application to this Court leaves
a lot to be desired. In its founding
affidavit in the review application, the applicant states that the
application is brought
to review and set aside an arbitration award
dated 31 July 2017, which is said to be attached as annexure “DSK
1”.
No attachments are annexed to the founding affidavit. The
notice of motion in the review application mentions that the
arbitration
award is dated 25 March 2020.
[21] In
its supplementary affidavit filed on 15 March 2021, the applicant
clarifies that the arbitration
award that it seeks to review and set
aside is dated 25 March 2020. I have already stated that this
condonation application was
launched three years later and no
explanation was proffered for this delay.
[22]
The
applicant contends that the condonation application is not frivolous
and that there was no malice on its part in “
failing
to meet the time frames within which to file the answering
affidavit”.
[15]
While the reference to the answering appears to be an error, it is
apparent from the several errors in this application that the
applicant was nonchalant in progressing with this application.
[23] The
pleadings are not properly indexed and paginated and are not properly
bound as provided in
item 11.5.3 of the Practice Manual. The
transcribed record has not been placed in the Court file.
[24] For
the aforesaid reasons, I exercise my discretion to make an award as
to the payment of costs
due to the conduct of the applicant in
proceeding before this Court.
[25] In
view of the afore-going, the following order is made:
Order
1. The
condonation application is dismissed.
2. The
applicant is to pay the costs.
M. T. M. Phehane
Judge of the Labour
Court of South Africa
[1]
Act 66 of 1995, as amended.
[2]
Supplementary affidavit in the review application at para 4.2.
[3]
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531
(A). In
Grootboom
v National Prosecuting Authority and another
2013 (5) ZACC 37
; (2014) 35 ILJ 121 at para [50], the Constitutional
Court stated that the factors that are to be considered, in the
interests
of justice, in determining a condonation application
include the following:
‘
(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.’
The Constitutional Court
went on further to state at para [51] as follows:
‘
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.’ [Own emphasis]
[4]
[1998] ZALAC 8
; [
1998]
8 BLLR 847
(LAC) at para [8].
[5]
Founding affidavit, at para 12, on p 7.
[6]
In
Ntsele
v Commission for Conciliation, Mediation and Arbitration
[2017]
ZALCJHB 161 at para [9], this Court stated that a party seeking
condonation must set out all the facts and circumstances
of the
delay and most importantly, must provide a satisfactory explanation
for each period of the delay. Where the reasons proffered
lack
detail and no account is made for each period of the delay, the
explanation amounts to none at all.
[7]
Annexure
“MJVR1”to the answering affidavit on p 22.
[8]
See:
Section
145(1A) of the LRA.
[9]
Founding
affidavit, at para 17, p 8.
[10]
See: para 2.12 of the answering affidavit in the condonation
application.
[11]
See: third respondent's heads of argument at para 1.12.
[12]
National
Union of Mineworkers v Council for Mineral Technology
[1998]
ZALAC 22; [1999] 3 BLLR 209 (LAC).
[13]
Act
131 of 1998.
[14]
See:
item 11.2.7 of the Practice Manual
of
the Labour Court of South Africa, effective 2 April 2013.
In
Toyota
SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration
[2015]
ZACC 40
; (2016) 37 ILJ 313 (CC), the Constitutional Court stated
that one of the purposes of the LRA is expeditious dispute
resolution
and this must be borne in mind when considering the
reasonableness of delay in a condonation application.
[15]
Founding affidavit at para 18 on p 8.