NEHAWU obo Mofokeng and Others v Charlotte Theron Children's Home (JA35/ 03) [2004] ZALAC 9; [2004] 10 BLLR 979 (LAC); (2004) 25 ILJ 2195 (LAC) (9 July 2004)

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[2004] ZALAC 9
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NEHAWU obo Mofokeng and Others v Charlotte Theron Children's Home (JA35/ 03) [2004] ZALAC 9; [2004] 10 BLLR 979 (LAC); (2004) 25 ILJ 2195 (LAC) (9 July 2004)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG.
CASE NO: JA
35/ 03
In the matter between:-
NEHAWU on behalf of
MOFOKENG
AND OTHERS

Appellant
And
CHARLOTTE THERON
CHILDREN’S HOME Respondent
JUDGMENT
DAVIS AJA.
INTRODUCTION.
[1] During the latter part of 1999 respondent retrenched three of its
workers, Elizabeth Ndaba, Lucia Mofokeng and Sheila Diamond,
all
members of the appellant union on whose behalf the appellant has
acted.
[2] There is some dispute as to when the three workers were
dismissed. Appellant contended that the workers were dismissed on 20
November 1999. Respondent contended that their dismissal took place
on 1 December 1999. Nothing turns on this particular dispute.
[3] Shortly after their dismissal, appellant referred a dispute for
Conciliation to the Commission for Conciliation, Mediation and
Arbitration (‘CCMA’),on December 1999. The dispute was
conciliated by a CCMA Commissioner and was certified as unresolved
with
effect from 17 July 2000.
[4] It took the CCMA seven months to conciliate the dispute. It was
common cause that this was not due to any fault on behalf of
appellants.
[5] The Commissioner certified the dispute to be unresolved and
described it as one concerning ‘unfair discrimination’. He
directed
appellants to refer the matter to the Labour Court in terms
of the certificate. Appellants referred the matter to the Labour
Court
on 2 March 2001, some seven months and eighteen days after the
certificate of non-resolution was issued.
[6] Appellants then delivered a statement of claim and an application
for condonation. In part, the statement of claim reads thus:
‘The Respondent dismissed three applicants unlawfully on the 29
November 1999. Respondent refuses to disclose relevant information
informing his decision to retrench. Respondent failed to hear our
alternative view because applicants were black’
[7] In the application for condonation appellants by way of an
affidavit from Mr Motoia Masooa said:
“The dispute about
the dismissal of the three applicants happened on November 1999 after
the Respondent failed to respond to the
alternative argument we put
on the table. On the 17
th
July 2000 the case was put on
the roll for conciliation hearing by the CCMA and on the same day we
got a certificate of non-resolution.
The case should have been
referred on or before the 17
th
October 2000. It therefore
means that this case is late by four months to date. The delay is
therefore not unreasonably late to
render it unattainable.
EXPLANATION OF THE
DELAY
The Applicants were
scattered over an inaccessible places after they were dismissed and
it was difficult for me to consult with them
and get the proper
instructions. The Applicants, including their representative at the
work place, were/are laypersons in law and
could not understand nor
appreciate the consequences of the delay.”
[8] 4The respondent
took two points in limine when it delivered its response together
with an answering affidavit. The one point in
limine was that the
Labour Court did not have jurisdiction to entertain the dismissal
dispute on the basis that such dispute had
not first been referred to
conciliation as required by sec 191 of the Labour Relations Act, 1995
(Act 66 of 1995) (“the Act”).
The other point in limine was that
the dispute relating to an alleged unfair labour practice based on
discrimination was required
to have been referred to the Labour Court
for adjudication within 90 days from the date of the issue of the
CCMA outcome certificate
but was referred way out of that period and
that, therefore, the Labour Court did not have jurisdication to
entertain that dispute
either. The referral of the allegedly
automatically unfair dismissal dispute to the Labour Court was
clearly out of time because
of the failure to comply with the ninety
day time period prescribed in section 191. That is assuming that that
dispute had been referred
to conciliation. The other dispute had also
been referred out of the 90 days period but there was a dispute
between the parties on
whether or not that dispute was required to
have been referred to the Labour Court within 90 days.
[10] Appellant
contended in the court
a quo
that the ninety day
time period was however not applicable to the referral of the unfair
labour practice dispute. It was contended
that the unfair labour
practice dispute related to the failure on the part of respondent to
employ black housemothers to take care
of white children. They
further contended that the respondent’s answering affidavit
manifested that this practice had been in
existence at the time of
the deposition of the affidavit and that respondent had a policy in
terms of which it did not wish to employ
black housemothers to take
care of white children. Accordingly, appellant sought to declare the
policy an unfair labour practice.
[11] The court
a
quo
held that the unfair labour practice referral had
to be determined with reference to the Employment Equity Act 55 of
1998 (‘Equity
Act’). This Act came into force on 12 October 1998
and was applicable to the unfair labour practice dispute between the
parties.
The Court
a quo
found that the provisions of
section 10(7) of the Equity Act required appellants to comply with
the ninety day time period set out
in the Act in order to have the
unfair labour practice dispute adjudicated. Appellants were
therefore required to apply for condonation,
but the court concluded
that there were no prospects of success on the merits, and that, for
that reason the application for condonation
was refused.
APPELLANT’S CASE ON APPEAL.
[12] With regard to the unfair dismissal, Barrie AJ refused to deal
with the point in limine that the Labour Court had no jurisdiction
as
the dispute had not been referred to conciliation. The learned Acting
Judge took the view that it was arguable that the referral
of the
unfair labour practice dispute may have been wide enough to include
the unfair dismissal dispute. However, he said that oral
evidence was
required to decide that. He could not hear oral evidence as he was
sitting in Motion Court when this matter came before
him. He said
that
“(i)t is a matter that has to be determined by the trial
Court whether separately in limine or during the course of the
trial.”
No appeal was noted against this finding and,
accordingly, this issue was not before this Court. In the light
thereof appellants
may take such steps as they may deem appropriate
in regard to it.
[13] Mr Boda raised two particular arguments to support appellants’
case in relation to the refusal by the Court a quo of the condonation
application relating to the unfair labour practice dispute based on
unfair discrimination. The one related to the time period and
the
other the merits of the case.
THE TIME PERIOD.
[14] Mr Boda submitted that the Court
a quo’s
conclusion that the appellants had to apply for condonation in
respect of the unfair labour practice dispute on the basis that a
ninety day time period applied equally to section 10 of the Equity
Act was incorrect.
[15] The Court
a quo’s
decision in this regard rests
upon the interpretation of section 10(7) of the Equity Act. Relying
upon the provisions of section
10(7) of the Equity Act the Court
a
quo
concluded that 136(1) (b) of the Act required a dispute
to be referred for arbitration within ninety days after it was
certified
as being unresolved, That period applied to the referral to
the Labour Court of an unfair labour practice dispute under the
Equity
Act for adjudication.
[16] Section 10(7) of
the Equity Act provides: “The relevant provisions of Parts C and D
of Chapter VII of the
Labour Relations Act, with
the changes
required by the context, apply in respect of the dispute in terms of
this Chapter”. Section 136(1) of the Act provides:
“if this Act
requires a dispute to be resolved through arbitration, the Commission
must appoint a commissioner to arbitrate a dispute
if –
a commissioner has issued a certificate stating that the dispute
remains unresolved; and
within ninety days after the date on which that certificate was
issued….”
[17] Mr Boda submitted that the provisions of section 136 were not
applicable as they applied to arbitrations and not to adjudications.
Indeed the heading to this section is ‘employment of a Commissioner
to resolve disputes through arbitration’. The appellants’
referral of the unfair discrimination dispute was thus a referral for
adjudication at the Labour Court in terms of section 10(6)(a)
of the
Equity Act and was not a referral to the CCMA for arbitration.
[18] Mr Boda thus
submitted that the legislature had deliberately decided upon a
different procedural regime for the referral of unfair
discrimination
disputes under the Equity Act as compared with disputes under the
Act. He contended that this was evident, firstly
from the fact that
a party alleging an unfair labour practice had six months as opposed
to thirty days to refer a matter for conciliation.
He contended that
the legislature deliberately failed to stipulate a specific time
period in section 10(6) of the Equity Act for
reference to the Labour
Court whereas time periods had been stipulated elsewhere in the
Equity Act such as in sections 39(1), 39(2),
39(4) and 40(2).
[19] Mr Boda contended
further that the court
a quo
erred in coming to the
conclusion that appellant was required to refer the dispute for
adjudication within ninety days in respect
of the unfair labour
practice dispute. He contended that the absence of a specified time
period could be cured by the application
of the
Prescription Act 68
of 1969
; hence, the existence of the three year time period which
would clearly have made any application for condonation unnecessary
in
the present dispute.
[20] However, as Ms Da
Costa, who appeared on behalf on respondent submitted, section 10(6)
of the Equity Act provides, ‘If the
dispute remains unresolved
after conciliation –
(a) any party to that
dispute may refer it to the Labour Court for adjudication; or
(b) all the parties
dispute may consent to arbitration of the dispute’’
Reading section 10(6)
and 10(7) of the Equity Act together, it would appear that the Equity
Act must be read together with the applicable
provisions of the Act.
By reference to the words ‘with the changes required by the
context’ in section 10(7) the ninety day
time period as provided
for in section 136(1) of the Act, which itself appears in part C of
Chapter VII of the Act, becomes applicable
to the dispute. In other
words, although the present dispute involves adjudication after an
unresolved conciliation and section
136(l) refers expressly to
arbitration, the savings provision in section 10(7) of the Equity Act
then becomes operative; hence the
ninety day requirement is of equal
application in the new context to the adjudication as envisaged in
section 10(6) of the Equity
Act.
[21] On this
reasoning, appellant was significantly out of time and for this
reason an application for condonation was necessary.
That
application for condonation contained the skeletal excuse proffered
in the unfair dismissal dispute as referred to in paragraph
seven
above. For this reason, the question of the merits of appellants’
case becomes of critical importance.
THE MERITS.
[22] Mr Boda submitted that appellants had a strong case in respect
of the allegation of an unfair labour practice. In his submission,
the merits of appellants’ case rested upon a concession contained
in the answering affidavit to the effect that respondent had
a policy
of employing black housemothers to look after white children. The
relevant passage of the answering affidavit deposed to
by Reverend
Botha on behalf of respondent reads thus:
‘At the time of the consultative process very few children of a
black race were accommodated in the home. The respondent was and
still is busy with the transformation process, which process is not
something which can be meaningfully implemented overnight. It
was
made clear to the applicant that once sufficient numbers of black
children were admitted to the home a black housemother with
the
necessary skills and qualifications will be appointed as respondent
recognized these black children’s rights to be brought
up by
someone understanding their cultural and social background and other
relevant considerations. To this extent a skilled and
competent
black housemother was appointed during 2000 and she is presently in
control of her unit filled with black children.’
[23] Ms Da Costa submitted that Reverend Botha’s affidavit
notwithstanding, the appellants who were employed as cleaners had not
disputed on the papers that they did not possess the necessary
qualifications to be employed as housemothers. Furthermore,
appellants
now sought to make out their case on the basis of the
answering affidavit. In her submission, no proper case had been made
out on
the founding affidavit.
EVALUATION.
[24] This court has previously confirmed the principle that without a
reasonable and acceptable explanation for a delay the prospects
of
success are immaterial:
Miya v Putco Limited
; unreported judgment of the Labour Appeal
Court DA 17/98 See also
PPAWU and Others v A F Dreyer and Company
(Pty) Ltd
[1997] 9 BLLR 1141
(LAC);
Toyota Marketing v
Schmeizer
[2002] 12 BLLR 1164
LAC at para. 15. It should be
noted that in the two latter cases, the approach as set out in
Miya
was qualified with a measure of flexibility, in that failure to
provide a reasonable and acceptable explanation for a delay was not
regarded necessarily as an absolute bar to condonation.
[25] In the present dispute, appellants’ case is based upon a
statement by respondent’s duly authorized representative that makes
clear that respondent followed a policy in which only white
housemothers could supervise white children. On this basis,
appellants
contended that they could never have been considered for
appointment as housemothers precisely because of their race. If
properly
proved by appellants, this allegation represents the most
egregious form of an unfair labour practice. It would be a practice
of
a kind that is fundamentally subversive of the very constitutional
community that is promised in the Constitution of the Republic
of
South Africa Act 108 of 1996.
[26] It is clearly in
the interests of justice that this kind of case be heard,
particularly when appellants are able to support their
submissions
regarding the prospects of success with a statement of respondent’s
policy given on affidavit and which appears to
confirm that the
policy is saturated with a racist outlook.
[27] In a dispute of
this exceptional nature, less weight should be given to the
unexplained delay than would usually be the case.
There is the
important additional consideration which flows from respondents’
papers, namely, that the racism inherent in only
permitting white
housemothers to look after white children may be an ‘ongoing’
practice.
[28] For these reasons, appellants’ application for condonation
should have been granted in respect of the alleged unfair labour
practice, based as it is, on a substantial allegation of a racist
policy.
[29] For the reasons
given I make the following order:
The appeal is upheld with costs.
The order of the Court a quo is set aside and replaced by the
following order:
“
(a) The applicant’s failure to refer the dispute to the
Labour Court within 90 days from the date of the issue of the
certificate
that was unresolved at conciliation is hereby condoned.
(b) the respondent is to pay the costs of this application.”
___________
DAVIS AJA
I agree

________
ZONDO JP
I agree

_________
WILLIS JA
Appearances
For the
appellant : Mr F.A Boda
Instructed
by : Kathrada Norval Rice Patel Attorneys
For the
respondent : Mrs B Da Costa
Instructed
by : Grant Rae Attorneys
Date of judgement : 9 July 2004