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[2024] ZALCJHB 243
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One Nation Super Store CC v Mbongwa and Others (JR2364/22) [2024] ZALCJHB 243 (1 March 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR2364/22
In
the matter between:
ONE
NATION SUPER STORE CC
Applicant
and
MANDLA
ERNEST MBONGWA
First Respondent
CCMA-JOHANNESBURG
Second Respondent
NTHABISENG
NGWANE N.O
Third Respondent
SHERIFF
SANDTON NORTH
Fourth Respondent
Heard:
05 December 2023
Delivered
1 March 2024
This
judgment was handed down electronically by emailing a copy to the
parties. The date for hand-down is deemed to be 1 March 2024.
JUDGMENT
MAFA-CHALI,
AJ
Introduction
[1]
On 5 February 2020, the Third Respondent (Commissioner), acting under
the auspices of the Commission for Conciliation,
Mediation and
Arbitration (CCMA) issued an arbitration award under case no
GAEK274-20 in terms of which she found the dismissal
of the First
Respondent (employee) to be procedurally and substantively fair and
ordered the Applicant, One Prince Store (employer)
to pay the
employee compensation in the amount of R41 568.00 on or
before
21 February 2020.
[2]
The employer subsequently lodged an application for rescission of the
arbitration award with a condonation application
on 5 February 2021.
The same Commissioner who issued the arbitration award entertained
the condonation and rescission applications
and issued a rescission
ruling on 21 May 2021. The Commissioner refused the condonation
application and found that the rescission
application automatically
fell to be dismissed. The award and the rescission ruling were issued
with the employer cited as One
Prince Store. The same Commissioner
issued a variation ruling changing the name of the employer from One
Prince Store to One Nation
Super Store.
[3]
The
employer has launched these proceedings in terms of Section 145 of
the Labour Relations Act
[1]
(LRA) to review and set aside the arbitration award of the
Commissioner
,
seeking an order that the relief of 12 months compensation awarded in
favour of the employee in the amount of R41 568.00
be stayed
pending the conclusion of its condonation and review applications.
The review application is unopposed, although the
employee, Mandla
Ernest Mbongwa, was in attendance at Court.
Background
facts
[4]
The employee was employed by the company from 2008 to 2019. In
November 2019, the employee reached 60 years, which is
a common cause
issue. However, the parties differed in terms of how the employee’s
services were
terminated
; the employee
alleged that he was dismissed whilst the employer submitted that the
employee retired during Christmas time of 2019.
[5]
The employee however alleged that after he advised his employer that
he wanted to go on pension, Mr De Sousa, the business
owner, told him
that he should resign but he refused to do so and he reported for
duty on 6 January 2020 to work as normal but
Mr De Sousa told him to
leave the company premises.
Arbitration
proceedings
[6]
The employee referred an unfair dismissal
dispute to the CCMA challenging the fairness
of
his
dismissal. The dispute was scheduled as a con/arb process on 30
January 2020 and arbitrated in the absence of the employer.
The
Commissioner issued an arbitration award in favour of the employee
finding that the employee’s dismissal was unfair both
substantively and procedurally. Compensation in favour of the
employee was ordered in the amount of R41 568.00.
[7]
The evidence presented by the employee was
that he refused to sign the resignation form as instructed by the
employer because he
was due to go on pension and it is apparent from
the employee’s evidence during the arbitration proceedings that
the employer
refused him to work on 6 January 2020 because he refused
to sign the resignation form.
The award
[8]
The Commissioner found that the employee
was dismissed for unknown reasons and had referred a dispute in terms
of section 192(1)
and (2) of the LRA, as well as the Code of Good of
Practice: Dismissal, Schedule 8. The Commissioner held that,
according to the
employee’s testimony, he did not know the
reason for his dismissal,
but
that, when he
refused to resign from work, he was dismissed by De Sousa. The
Commissioner further made a finding that the dismissal
of the
employee was unfair as the employer had failed to prove that the
reason for the dismissal was for a fair reason related
to the
employee’s conduct, capacity or the employer’s
operational requirements and that it was not effected in accordance
with a fair procedure.
The condonation
application
[9]
The review application was filed outside of
the six weeks’ time period and the employer seeks condonation
for the late filing
of the review application. If condonation is not
granted, then this Court lacks the necessary jurisdiction to consider
the review
application and it stands to be dismissed. I will deal
with the condonation application first.
[10]
The Commissioner’s award was issued
on 5 February 2020. Condonation application was filed with a review
application to this
Court on 4 November 2022. The company, through De
Sousa’s affidavit, contended that the award came to its
attention
on 11 January 2021, when the
sheriff appeared at its premises and attached some equipment and
stock worth R70 000.00; therefore
the application was 29 months late.
It was also submitted by De Sousa that the company believed that the
matter was settled as
Shadrach, whom he did not know his surname but
engaged on the advice of a friend as a labour expert, told him so,
until the employee
tried to enforce the award; and the sheriff
failing to take further steps after attaching the company’s
property on two occasions.
[11]
Regarding
prospects of success, it was submitted by the company that the merits
of the case clearly show that the Commissioner’s
award was
defective as she exceeded
her
powers
to award compensation that exceeded more than 12 months’
remuneration of the employee calculated at the employee’s
rate
of remuneration on the date of dismissal.
[2]
Further that, at the time of the employee’s alleged dismissal,
he earned a basic salary of R1 600.00 per month as well
as
commission, but the Commissioner used an amount of R3 464.00 per
month to calculate the total of the award whereas no evidence
was led
to the salary received by the employee other than the incorrect
amount of R400.00 mentioned in the referral form.
[12]
It was submitted on prejudice by the
company that the employee will not be prejudiced as he has the
benefit of a government pension,
which he will receive due to the
company
changing the UIF form as requested
to state that he had retired, which was the exact desired outcome of
the employee to the alleged
dismissal. It was also submitted that the
employee will not suffer great prejudice if the execution of the
award is taken through
by the sheriff soon as the value of the
attachment far outweighs the award and is excessive as the goods
attached are of significant
value and vital to the company’s
operations and business. Furthermore, it was submitted that the
sheriff has already attached
the company’s property to the
value of R175 000.00 and the company will clearly be able to satisfy
the award should the review
application fail. A prayer was made to
stay the enforcement process pending the outcome of the review
application.
Applicable legal
principles
[13]
The
principles applicable in an application for condonation are trite. In
accordance
with
the provisions of section 191(11) (b) of the LRA, the Court may, on
good cause shown, condone the non-observance of the time
frames. Good
cause was explained in
Melane
v Santam Insurance Co Ltd
[3]
in the following terms:
‘
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, for that would be a
piecemeal approach incompatible with a true discretion,
save of
course that if there are no prospects of success there would be no
point in granting condonation. Any attempt to formulate
a rule of
thumb would only serve to harden the arteries of what should be a
flexible discretion. What is needed is an objective
conspectus of all
the facts. Thus a slight delay and a good explanation may help to
compensate for prospects of success which are
not strong. Or the
importance of the issue and strong prospects may tend to compensate
for a long delay. And the respondent’s
interests in finality
must not be overlooked.’
[14]
In
applying
the
principles in
Melane
,
the Court in
Academic
and Professional Staff Association v Pretorius NO and Others
[4]
(
Academic
and Professional Staff Association
),
summarised the factors for consideration as follows:
‘
[17]
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; (e) 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…
[18] 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
for weak prospects of success.
Similarly, strong prospects of success may compensate the inadequate
explanation and long delay.’
[15]
The
Court
in
Foster
v Stewart Scott Inc
[5]
,
also emphasised the same principles as stated in
Melane
and
Academic
and Professional Staff Association
.
The Labour Appeal Court (LAC) in
NUM
v Council for Mineral Technology
[6]
also said the following:
‘
The
approach 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 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 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.’
[16]
In
A
Hardrodt (SA) (Pty) Ltd v Behardien and Others
[7]
,
the LAC restated the guidelines laid down in
Queenstown
Fuel Distribution CC v Labuschagne NO and Others
[8]
inter
alia
that there must be good cause for condonation in the sense that the
reasons tendered for the delay have to be convincing. In other
words,
the excuse for non-compliance with the six-week time period must be
compelling. The onus is on the applicant for condonation
to satisfy
the Court that condonation should be granted.
[17]
In
this Court, the principles have long been qualified by the rule that
where there is an ordinate delay that is not satisfactorily
explained, the applicant’s prospects of
success
are
immaterial. The general principle applicable to deciding applications
for condonations apply even more stringently when it comes
to review
applications as explained in
National
Union of Metalworkers of SA on behalf of Thilivali v Fry’s
Metals (Pty) Ltd (A Division of Zimco Group) and Others
[9]
(
Thilivali
)
as follows:
‘
What
is clear from the judgment in
Hardrodt
is that general principles applicable to condonation applications are
even more stringently applied where it comes to a condonation
application for the late filing of a review application. In review
condonation applications, the explanation that needs to be submitted
must be compelling and the prospects of success need to be strong.
Where it comes to the issue of prejudice, the applicant in fact
has
to show that a miscarriage of justice will occur if the applicant's
case is not heard. The reason for these more stringent
requirements
is that review applications occur after the parties have already been
heard, presented their respective cases and
a finding has been made.
Under such circumstances, considerations of justice, fairness and
expedition require that challenges of
such findings must not be
delayed and must be completed as soon as possible.’
[18]
The
Court in
Thilivali
[10]
added the following consideration when evaluating condonation
application in reviews:
‘
It
must also always be considered that the applicant for condonation
actually bears the onus to prove good cause for condonation
to be
granted in terms of the principles set out above. There is, however,
an additional consideration which applies in employment
disputes in
determining whether an applicant for condonation has discharged this
onus. This is the fundamental requirement of expedition.
The
Constitutional Court has, as a matter of fundamental principle,
confirmed that all employment law disputes must be expeditiously
dealt with and any determination of the issue of good cause must
always be conducted against the back drop of this fundamental
principle in employment law’.
[19]
The
Courts have also held and emphasised that, in an application for
reviews to set aside
arbitration
awards,
an applicant must act with the necessary degree of diligence required
by the rules of this Court
[11]
and the Practice Manual
[12]
,
giving effect to the statutory imperative of expeditious dispute
resolution. Condonation for delays in labour litigation is not
simply
there for the taking but the applicant seeks an indulgence and bears
the onus to show good cause and a proper case should
be made out
before the indulgence could be granted.
Evaluation
The delay
[20]
The
employer
knew
about the award for the first time on 11 January 2021 already when
the sheriff came to the company’s premises to attach
some
equipment and stock. The review application was lodged on 4 November
2022, some 22 months later.
[21]
It is clear from the CCMA documents that the award was issued on 5
February
2020, and was varied. Enforcement
of an award was issued by the CCMA on 2 July 2020 and the award was
varied on 14 August 2020.
A rescission application accompanied by a
condonation application was then lodged by the employer on 5 February
2021. The rescission
ruling was issued by the Commissioner on 6 May
2021, four months later, dismissing the condonation for the late
filing of the rescission
application. The review application was
lodged on 4 November 2022, some 18 months after the rescission ruling
was issued.
The review application in this case
was filed excessively late
and there must be a good
explanation to account for such an excessive delay.
The
explanation
[22]
According to De Sousa, the explanation for
delay was that the employer was advised by a labour specialist called
Shadrach, whom
he engaged his services on the advice of a friend, and
the said Shadrach misled the company that the matter was settled. It
was
also submitted that Shadrach advised De Sousa that he had engaged
with the employee and the real issue was with the pension that
the
employee wanted and Shadrach advised the company to change the UIF
forms to reflect that the employee had retired and not resigned,
which the employer did making it possible for the employee to receive
his pension from the government.
[23]
It was further submitted for the employer
that when the sheriff came back on 7 September 2021 to again attach
some goods to the
value of R87 000.00, Shadrach advised the company
that it was an error and he would sort it out with the CCMA, but the
sheriff
came again on 26 September 2022 to attach goods to the value
of R 175 000.00. That is when the employer realised that Shadrach
must have been taking advantage of the inexperience of the employer
with regard to labour matters and hence approached the current
legal
representatives who advised to review the award.
[24]
The above explanation is not acceptable. On
5 February 2021, the employer lodged a condonation for the late
filing of the rescission
application and stated the reason for the
delay was that the labour consultant assisted with the proceedings of
the case and awaited
response. This is in contradiction to the
submission made that the labour consultant Shadrach advised and
misled the company that
the matter was settled by changing the UIF
form for the employee to retirement.
[25]
Based on this material contradiction in the
submissions made by the company, I find that there is a lack of a
reasonable explanation
for the delay, under the circumstances of this
case with such an excessive delay. There cannot be a
bona
fide
mistaken belief that the matter is
settled in the circumstances where the sheriff has visited the
company premises and attached
the goods of so much value on almost
three occasions and still the employer believed that the matter is
settled. Any reasonable
employer would have acted diligently to
ensure that it acted promptly in the light that there was already
non-compliance with the
statutory time-frames after the rescission
application was dismissed on 6 May 2021 and the sheriff having
visited the employer
for attachment of goods on 7 September 2021 and
again on 22 September 2021. There was an obligation on the employer
to have acted
with caution under the circumstances of pending
attachments and execution processes by the sheriff already.
[26]
On
the issue of the advice of the employer’s representative
misleading the applicant that the matter had been
settled
,
the Court in
Saloojee
and Another NO v Minister of Community Development
[13]
,
stated the following in relation to a lack of diligence on the part
of an attorney in respect of condonation applications:
‘
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 the
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 upon 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
and 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 circumstances
of the failure are.’
Similarly,
in this case, the employer must be held accountable for the lack of
diligence on the part of its representative, the
labour specialist
whom it selected to advise in the matter
. It
appears like the employer left everything in the hands of the labour
specialist and therefore to that end, there is no reason
for the
employer to be absolved from the tardiness of their chosen
representative.
[27]
The employer’s argument, that the
review application was brought within six
weeks,
is
totally misplaced. In the end, the explanation proffered by the
employer for the delay in lodging the review, taking into account
that there is no good explanation in the condonation application for
the delay after the CCMA issued the rescission ruling on 6
May 2021
is not acceptable and not compelling at all.
[28]
It is
required that the company must account for the whole duration of the
delay. It is trite that an application for condonation
must be filed
without delay and as soon as the applicant becomes aware of the need
to do so. This is in accordance with the important
principle that
labour disputes must be resolved expeditiously as held in
Food
and Allied Workers Union obo Gaoshubelwe v Pieman’s Pantry
(Pty)
Limited
[14]
:
‘
Our courts have,
on occasion, pronounced on the importance of labour disputes to be
conducted with expedition. For example, in
National Research
Foundation
the Labour Court held:
“
It is trite that
there exists a particular requirement of expedition where it comes to
the prosecution of employment law disputes.”’
[29]
In
Steenkamp
and Others v Edcon Limited
[15]
,
the Constitutional Court placed emphasis on the fact that expeditious
resolution of labour disputes is one of the primary objects
of the
LRA. The Court referred with approval to the judgment of
Toyota
SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and others
[16]
which stated as follows:
‘
Time periods in
the context of disputes are generally essential to bring about the
timely resolution of the disputes.’
The
further points made by the courts include that the labour dispute by
their nature require speedy resolution and that any delay
in the
resolution of labour disputes undermines the primary object of the
LRA.
[30]
The Constitutional Court has unanimously endorsed the approach of the
Labour
Courts in these matters, which
expressly contemplates what may be described as a more restrictive
approach to the granting of condonation
because of the vital
importance of expeditious dispute resolution in the dispute
resolution system established by the LRA.
[31]
In
NUM
[17]
,
it was held that in considering whether good cause has been shown,
and notwithstanding the well-known
approach
that all factors to be considered are interrelated as enunciated in
Melane
[18]
,
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 the delay, an
application for condonation should be refused.
Prospects
of success
[32]
I
have however, noted that on prospects of success, the employer argued
that the Commissioner exceeded her powers in awarding compensation
which exceeded 12 months’ remuneration at the date of the
employee’s alleged dismissal and that there is no evidence
by
the employee that he earned below the National Minimum Wage Act
[19]
.
[33]
The interests of justice must be determined with reference to all
relevant factors. However, some factors may justifiably
be left out
of consideration in certain circumstances, for example, where the
delay is unacceptably excessive and there is no explanation
or
reasonable explanation for the delay, there may not be a need to
consider
the prospects of success. Despite
the presence of reasonable prospects of success, condonation may be
refused where there is an
excessive delay, the explanation is
non-existent and granting the condonation would prejudice the other
party.
[34]
I am satisfied that the above properly summarizes what I am required
to consider when exercising my discretion on whether
or not to grant
condonation for the late filing of the
review
application and what constitutes a proper basis upon which this court
should decide condonation.
[35]
The Applicant has failed to advance a compelling explanation for the
full duration of the delay. What the applicant has
provided does not
constitute a reasonable,
acceptable
and
satisfactory explanation. The absence of such an explanation will be
fatal to the condonation application irrespective of the
applicant’s
prospects of success when the length of delay is excessive.
[36]
The Courts have endorsed the principle that failure to provide a
reasonable and acceptable explanation for the delay
renders prospects
of success immaterial. In the light of
the
aforesaid authorities and given that the applicant has not provided a
comprehensive, compelling or convincing explanation for the
delay,
when the delay is very excessive, the prospects of success are
immaterial and thus need not be considered.
Conclusion
[37]
A proper case must be made out for condonation. In my view, on an
overall
conspectus
of all the facts, good
cause has not been shown for the granting of condonation and it will
not be in the interests of justice
to grant condonation in a matter
that has clearly not been prosecuted with the required degree of
diligence as it will affect the
employee’s right to certainty
and the statutory purpose of expeditious dispute resolution.
Condonation is not there for the
mere asking but must be filed
without delay and each part of the delay must be explained, and such
explanation must be reasonable
and acceptable.
Costs
[38]
In terms of the provisions of section 162(1) of the LRA, which
regulates orders for cost in this Court, I have a discretion
when it
comes to the issue of costs, having
regard
to the requirements of law and fairness after taking into account all
of the relevant facts and circumstances. In my view, to the
extent
that the application for condonation is to be dismissed for the
reasons given, I do not consider it appropriate to make
a costs order
as the review application is also unopposed.
[39]
In the premises, I make the following order:
Order
1. The condonation
for the late filing of the review application is refused.
2. The review
application is dismissed.
3. There is no
order as to costs.
G.
Mafa-Chali
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
J D Crawford of Crawford & Associates
Attorneys
For
the First Respondent: Mandla Ernest Mbongwa
[1]
Act
66 of 1995, as amended.
[2]
Section
194 (1) of the LRA.
[3]
1962 (4) SA 531
(A) At 532B – F.
[4]
[2007] ZALC 118
; (2008) 29 ILJ 318 (LC) at paras 17 - 18.
[5]
(1997) 18 ILJ 367 (LAC).
[6]
(1999) 3 BLLR 209
(LAC)
at
para 10.
[7]
(2002)
23 ILJ 1229 (LAC) at para 3.
[8]
(2000)
21 ILJ 166 (LAC)
.
[9]
(2015) 36 ILJ 232 (LC) at para 22.
[10]
Ibid at para 25.
[11]
GN
1665 of 1996: Rules for the Conduct of Proceedings in the Labour
Court.
[12]
Practice
Manual of the Labour Court of South Africa, effective 2 April 2013.
[13]
1965 (2) SA 135(A)
at 141C-E.
[14]
[2018] 6 BLLR 531
(CC) at para 187.
[15]
[2019] 11 BLLR 1189
(CC) at para 39.
[16]
2016 (3) BCLR 374
(CC) at para 1.
[17]
NUM
at
para 15.
[18]
Melane
supra
at para 13.
[19]
Act
9 of 2018.