Motloi v South African Local Government Association (JA3/04) [2005] ZALAC 12; [2006] 3 BLLR 264 (LAC); (2006) 27 ILJ 982 (LAC) (9 December 2005)

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[2005] ZALAC 12
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Motloi v South African Local Government Association (JA3/04) [2005] ZALAC 12; [2006] 3 BLLR 264 (LAC); (2006) 27 ILJ 982 (LAC) (9 December 2005)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE NO. JA 3/04
In
the matter between:
MOTLOI
JOY APPELLANT
and
SOUTH
AFRICAN LOCAL GOVERNMENT
ASSOCIATION RESPONDENT
J U D G M E N T
Mc
CALL AJA
[1] This is an appeal against the judgment of the Labour
Court refusing an application by the appellant for condonation, in
terms
of s 158 (1) (f) and s 191 (11) (b) of the Labour Relations
Act, No. 66 of 1995 (“
the Act
”)
of her failure to refer the dispute regarding her dismissal by the
respondent to the Labour Court for adjudication within the
period of
90 days specified in s 191 (11) (a) of the Act.
Chronology
[2] Although the respondent opposed the appellant’s
application for condonation, and this appeal, it at no stage filed
any opposing
affidavits. The appellant’s allegations in her
statement of claim, her affidavit in support of the application for
condonation
and in her petition for leave to appeal were not
contested. The sequence of undisputed relevant facts is, therefore,
as follows:-
a) The appellant was appointed as Labour Relations
Officer in the service of the respondent with effect from 1 October
1997.
b) By
letter dated 11 June 1998 the appellant was informed by the
respondent that on 5 June 1998 the Management Committee had resolved
that her contract be terminated with immediate effect for her refusal
to be deployed to the offices of the Northern Province Local
Government.
c) The appellant referred a dispute about her dismissal
to the Commission for Conciliation, Mediation and Arbitration (“
the
CCMA
”) on 10 July 1998, within the 30 days
specified in s 191 (1) (b) (i) of the Act.
d) The
conciliation meeting was held on 16 August 1998 and a certificate was
issued on 16 September 1998 that the dispute remained
unresolved as
at that date.
e) The matter was then referred to arbitration but,
apparently through no fault of the appellant, the matter was finally
argued only
on 10 July 2000. On that occasion the respondent’s
attorney submitted that the Commissioner who was assigned to
arbitrate the dispute
had no jurisdiction to arbitrate because the
appellant’s dismissal was due to her refusal to accept a demand to
be transferred
from Pretoria to Pietersburg. It was, therefore, he
argued, an automatically unfair dismissal in terms of s 187 (1) (c)
of the Act,
which should have been referred to the Labour Court in
terms of s 191 (5) (b) (i) of the Act.
f) The Commissioner accepted the respondent’s argument
and held that the CCMA did not have jurisdiction to hear the matter.
The Commissioner’s ruling was apparently served on the
appellant on or about 26 July 2000. It was unaccountably headed
“
RESCISSION AWARD
”.
g) The appellant alleges, in her second application for
condonation, that the matter was then referred to the Labour Court on
or about
11 August 2000, under case No. J3052, together with an
application for condonation of the late referral.
h) The appellant further alleges that the respondent
filed a counter “
application of exception to
the applicant’s statement of claim in terms of Rule 30 (1) of the
Rules of the High Court
”.
i) Neither the appellant’s first statement of claim
nor the exception form part of the record on appeal. However, it
appears from
a written order dated 19 October 2000 that the matter
was heard on 17 October 2000 in the Labour Court when the learned
Judge upheld
the exception and set aside the appellant’s first
statement of claim as an irregular step. He further ordered: “
2.
In the application for condonation the respondent has not filed an
answering affidavit. The applicant is granted leave to file
a new
statement of claim together with a new application for condonation.
The matter is then to proceed in terms of the Rules.”
j) The appellant alleges, in her second application for
condonation:
“After further consultation in
order to comply with all the requirements of the above Honourable
Court, the applicant identified
that since the conciliation
certificate was issued under a description of unfair dismissal in
terms of section 191 (1) of the Labour
Reglations Act 66 of 1995 as
amended, that may restrict the above Honourable Court to adjudicate.
As a result, a notice to suspend
the Applicant’s application in
this regard was filed and served to the Labour Court and the
respondent on/or about 27 October 2000
respectively, with the view of
addressing and/or to cure the issue of conciliation certificate with
the CCMA, in order to confer
the above Honourable Court jurisdiction
to adjudicate.”
k) There is indeed attached to the appellant’s
founding affidavit in the second application for condonation, marked
“AA 10”
a notice under case No. J 3052/00 headed “
NOTICE
OF INTENTION TO SUSPEND THE APPLICANT’S APPLICATION
”,
in which the appellant gives notice “of intention to suspend the
applicant’s application in the above matter until further
notice”.
After setting out the terms of the aforementioned order upholding
the exception, the notice continues:
“TAKE
NOTICE FURTHER THAT the above dispute is in relation to s 187 (1) (c)
of the LRA 66 of 1995 as amended (Automatic unfair dismissals).
It
appears that the matter was referred to the CCMA under s 191 (1) (b)
of the LRA, and the conciliation certificate from the CCMA
was issued
in related to a dispute about unfair dismissals. As a result, the
Applicant shall first have to contact the CCMA with
the view of
curing the defect in the said conciliation certificate, in order to
confer jurisdiction to the above Honourable Court.”
This
notice is addressed to the Registrar of the Labour Court and the
respondent’s attorneys.
l) It is therefore apparent that the appellant was
advised that because the Commissioner’s certificate dated 16
September, 1998
referred to a dispute “concerning an alleged unfair
dismissal” and not to an automatically unfair dismissal in terms of
s 187
(1) (c) of the Act, the appellant should, before proceeding
further with the application for condonation, contact the CCMA with a
view to “curing the defect” in the certificate, in case the point
was taken that the terms of the certificate restricted the
Labour
Court’s jurisdiction to hear the matter.
m) The appellant alleges that an application “
with
the view to cure the defect was filed and served to the CCMA
and
the respondent
on/or about 10 November
2000
” (my emphasis). She annexes a copy of
this application to the CCMA, dated 9 November 2000, which was
accompanied by an affidavit.
In the affidavit she sets out the facts
and the perceived problem about the certificate and says:
“the
applicant hereby submit an application to the CCMA, for condonation
of late referral of the said dispute for conciliation,
with the view
of curing the defect in the said conciliation certificate, in order
to confer jurisdiction to the Labour Court, to
determine the matter.”
n) The appellant alleges that:
“Despite
the said application filed on/or about 10 November 2000 including on
numerous occasions the CCMA being contacted by the
applicant to set
down a date and/or consider to determine the said referred matter,
the applicant was told to be patient as the CCMA
was dealing with the
backlog.”
She says that the matter was
finally set down for 31 July 2002 when she was notified that the CCMA
was unable to interfere with
the certificate.
o) On 20 August 2002 the appellant then brought the
second application to the Labour Court for condonation of the late
referral of
the dispute, (which I have referred to as her second
application for condonation). It is the Labour Court’s judgment on
that application
which is the subject matter of this appeal. The
second application for condonation was brought under a new case
number, JS 934/02,
and was accompanied by a new statement of claim.
The respondent filed a notice of intention to oppose on 27 August
2002, but, as
I have said, no answering affidavit.
p) It would appear that only the appellant filed heads
of argument in the Court
a quo
and judgment on the application was given on 30 October 2002.
The Court
a
quo’s
Reasons for Judgment
[3] In his judgment the learned Judge in the Court
a
quo
referred to the fact that in real terms
the appellant’s statement of claim was nearly four years out of
time. He said that no
explanation was provided as to why, after the
exception was upheld against the appellant, she did not file a
statement of claim which
removed the cause of embarrassment.
[4] Furthermore, he said, other than the appellant’s
ipse dixit
nothing was
placed before the Court to show that the appellant “
exercised
some degree of diligence to attempt to ensure that the CCMA attended
to the matter with some urgency
”.
[5] The learned Judge considered the prejudice to the
respondent, one of whose witnesses has since died.
[6] In the end result, he found that not only was the
appellant’s explanation for the delay unsatisfactory but that the
merits were
also “
extremely suspect
”.
After referring to the fact that the matter only related to a single
dismissal he refused the application for condonation.
Argument on Appeal
[7] In argument before us the attorney for the
respondent supported the finding of the Court
a
quo
that there was an insufficient
explanation for the delay. He submitted that the appellant’s
referral of the matter back to the
CCMA was “
illogical
and unreasonable
”. Accepting that the
appellant had acted on legal advice, he submitted that, in the
circumstances of this case, the appellant
could not rely on the
conduct of her representative in giving her incorrect advice. He was
prepared to concede, however, that whenever
it was within her own
power to do so, the appellant had acted timeously.
[8] With regard to the fact that one of the respondent’s
witnesses had since died, the attorney for the respondent correctly
conceded
that there was no merit in this point. The witness in
question was Mr Shoots Naidoo who had died before the dispute came
before
the CCMA for arbitration. Naidoo’s unavailability as a
witness could, therefore, not have had any bearing on the outcome of
the
matter had the appellant proceeded with the amendment of her
original claim instead of referring the matter of the certificate
back
to the CCMA.
[9] As far as the prospects of success are concerned,
the attorney for the respondent submitted that the Court
a
quo
had not made a finding in that regard and
it was unnecessary to do so as the appellant’s explanation for the
delay was hopelessly
inadequate.
Interference on appeal with the discretion
exercised by the Court a quo.
[10] Sections 158 (1) (f) and 191 (11) (b) of the Act
both provide that the Labour Court “
may
”
grant condonation for the late referral of a dispute and the latter
provision says it may do so “
on good cause
shown
”. It was not argued that the order
refusing the condonation was not appealable. In my view it clearly
was. In terms of s 166
of the Act a party to proceedings before the
Labour Court may, with leave, appeal to the Labour Court against any
final judgment
or final order of the Labour Court. As a general rule
the appealability of an order of the Court
a
quo
depends on whether it has a final and
definitive effect. See
Trope and Others v
South African Reserve Bank
[1993] ZASCA 54
;
1993 (3) SA 264
(A) at 269F; Maize Board v
Tiger Oats Ltd and Others2002 (5) SA 365 (SCA) at 370.
In
Beznbo International Agencies
(Pty) Ltd v Samuel A. May (Pty) Ltd1971 (3) SA 349 (T) at 352A-C
Nicholas J in an
obiter dictum
,
said:-
“
Where
an extension of time in the making of an application is refused,
however, that amounts in effect to the refusal of the application,
and it seems to me that the question of the appealability of the
order refusing the extension must in such a case depend upon the
appealability of an order refusing the application. Thus, in
Evander
Caterers (Pty) Ltd v Potgieter
1970
(3) SA 312
(T), the Court allowed an appeal by a defendant against
the judgment of the magistrate’s court refusing to extend, under
the provisions
of Rule 60 (5) (b), the period of six weeks within
which he might under Rule 49 apply for the rescission of a default
judgment obtained
against him by the respondent. There can be no
doubt, in my view, that that order was appealable. The refusal of
the extension
was equivalent in effect to the dismissal of an
application for rescission and, in terms of Rule 46 (7), if an
application for rescission
of a default judgment is dismissed “the
default judgment shall become a final judgment”. There was,
therefore, an order bearing
directly upon and affecting the decision
in the main suit.”
[11] In the present case, too, the refusal of the
application for condonation had the effect of refusing the
appellant’s claim for
relief. Putting it another way the refusal
of the application for condonation had a final and definitive effect
on the appellant’s
claim. The order was, therefore, appealable.
[12] The Court in
Shepstone &
Wylie and Others v Geyser NO
1998
(3)
SA 1036
(SCA) at
1044J-1045D
referred to the power of the
Court on appeal to interfere with the exercise of a discretion
conferred on a Court of first instance.
It touched upon the
distinction between discretion in the strict or narrow sense and
discretion loosely so called. The nature of
the discretion will
determine the extent to which the Court on appeal may interfere.
Hefer JA said, at 1045C-D:-
“
Accordingly, whenever such a Court is asked to
interfere, the nature of the discretion must first be ascertained.
This will not be
a simple exercise where a discretion is conferred in
a statute by the use of the word ‘may’ which, standing on its
own, is not
particularly informative.”
[13] The distinction between the two types of discretion
was analysed by Stegmann J in
Tjospomie
Boerdery (Pty) Ltd v Drakensberg Botteliers (Pty) Ltd and Another
1989 (4) SA 31
(T) at 36C-G and 40.
Again
,
in Bookworks (Pty) Ltd v Greater Johannesburg Transitional
Metropolitan Council and Another
1999 (4) SA 799
(W) at 804H-805B
,
Cloete J identified the two types of discretion conferred upon a
Court by the use of the word “
may”
.
He did so by reference to the nature of the power conferred upon the
Court by each type of discretion. Regarding a narrow discretion
he
said, at 805G-H:-
“
It is difficult to discern a general principle
underlying all cases in which a discretion conferred on a court of
first instance has
been categorised as narrow. What does seem clear
is that where the court of first instance is in a better position
than an appeal
Court to decide a question which involves the exercise
of a value judgment, especially a question of procedure (I use the
word in
a fairly loose sense), an appeal Court will be reluctant to
interfere.”
[14] A clue as to the distinction between the two types
of discretion is to be found in the following passage from the
judgment of
EM Grosskopf JA in
Media Workers
Association of South African and Others v Press Corporation of South
Africa Ltd (‘Perskor’)
[1992] ZASCA 149
;
1992
(4) SA 791
(A) at 800E-G
:-
“
The
essence of a discretion in this narrower sense is that, if the
repository of the power follows any one of the available courses,
he
would be acting within his powers, and his exercise of power could
not be set aside merely because a Court would have preferred
him to
have followed a different course among those available to him. I do
not think the power to determine that certain facts constitute
an
unfair labour practice is discretionary in that sense. Such a
determination is
a
judgment made by a Court in the light of all relevant considerations.
It does not involve a choice between permissible alternatives.
In respect of such a judgment a Court of appeal may, in principle,
well come to a different conclusion from that reached by the
Court
a
quo
on the merits of the matter.”
(My emphasis.)
[15] In
Knox D’Arcy Ltd and
Others v Jamieson and Others 1996 (4) 348 (A)
which dealt with an appeal in respect of an interim interdict EM
Grosskopf JA, said at 361H-J:-
“
In
the present context the statement that a Court has a wide discretion
seems to mean no more than that
the
Court is entitled to have regard to a number of disparate and
incommensurable features in coming to a decision
.”
(My emphasis.)
[16] In my judgement the discretion conferred on the
Court of first instance in deciding whether or not to grant
condonation for the
late referral of a dispute is a wide discretion
or a discretion “
loosely so called
”.
The Court of first instance is required to arrive at a decision “in
the light of all relevant considerations” such as the
length of the
delay, the prospects of success in the main application, the possible
prejudice to the parties and the blame attaching
to the parties.
(cf. the
Knox D’Arcy Ltd case (supra) at
362B-C
.) The Court on appeal is in as good a
position as the Court
a quo
to decide whether or not good cause has been shown for granting
condonation, and, that being so, it may substitute its decision for
that of the Court
a quo
if “it considers its conclusion more appropriate” (see the
Bookworks (Pty) Ltd case (supra) at 805A-D
).
[17] It is apparent from the chronology set out at the
beginning of this judgment that there were two long periods of delay
in finally
bringing this matter before the Labour Court, namely:
a) the period of almost two years between 16 August 1998
when the certificate was issued to the effect that the dispute
remained unresolved
and 26 July 2000 when the Commissioner ruled that
the CCMA did not have jurisdiction; and
b) the period of approximately 21 months between the
setting aside on exception of the appellant’s first statement of
claim, on
19 October 2000, and the date on which the CCMA notified
the appellant that it was unable to interfere with the certificate,
namely
31 July 2002.
[18] As far as the first period is concerned, it has not
been suggested that any blame for that delay can be laid at the door
of the
appellant. The delay appears to have been a delay in the
functioning of the CCMA.
[19] It is true that the second delay was a result of
incorrect advice given to the appellant by her representative. It is
not apparent
from the record precisely who that representative was.
The appellant refers in her affidavit in support of the second
application
for condonation and in her petition for leave to appeal
to acting as she did after “
further
consultation
”. The appellant was, at the
time, being represented by Mr Khoza from her trade union. He argued
the case before us on appeal
and obviously has some knowledge of
labour law. No doubt the appellant depended upon him for guidance on
procedural matters.
[20] Although the advice was, as it turned out,
incorrect, it cannot, in my view, be said that it was wholly
unreasonable to advise
the appellant to go back to the CCMA on the
issue of the certificate. Firstly, it was becoming apparent that the
respondent was
not adverse to taking any legal points which could
block the appellant’s case. It had objected to the jurisdiction of
the CCMA,
and, when the appellant had then sought relief in the
Labour Court, it had excepted to her statement of claim. Secondly,
when the
appellant sought to suspend the case before the Labour Court
and refer the matter back to the CCMA, towards the end of October
2000,
the decision of this Court in
National
Union of Metal Workers of SA & Others v Driveline Technologies
(Pty) Ltd & Another (2000) 21 ILJ 142 (LAC)
had
only very recently been handed down and had probably not been
reported. In that case it was decided, contrary to statements made
by the Labour Court in
National Union of
Metalworkers of SA & Others v Cementation Africa Contracts (Pty)
Ltd (1998) 19 ILJ 1208 (LC) at 1214J – 1215A
,
that a party wishing to take a dismissal
dispute further is not bound by the conciliating commissioner’s
description of the dispute
in the certificate of outcome (16\58A-C
and F-G). Although there is nothing in the papers which indicate why
those advisisng the
appellant at the time thought that the Labour
Court would not have had jurisdiction to adjudicate a claim for an
automatically unfair
dismissal if the Commissioner’s certificate
was not corrected, it may be that they were influenced by those
statements of the Labour
Court in the
Cementation
Africa Contracts
case.
[21] In so far as it was argued that the appellant had
ample time to realise the correct position without waiting for the
ruling made
by the CCMA many months later, the fact of the matter is
that the respondent was in as good a position as the appellant to
take steps
to avoid any further delay, had it seriously wished to do
so. It had been given the appellant’s Notice of Intention to
suspend
the pending application and a copy of the appellant’s
misconceived application to the CCMA to cure the perceived defect in
the
certificate. It did not object to the suspension of the
proceedings before the Labour Court nor did it communicate to the
appellant
the view that it was not necessary to get a new
certificate. It merely sat back and did nothing, despite the fact
that the appellant
had shown every intention to persist with her
case.
[22] In my view the learned Judge in the Court
a
quo
was not justified in criticising the fact
that only the appellant’s
ipse dixit
was before the Court regarding the steps taken by the appellant to
prompt the CCMA to deal with the matter. What she said she did
do is
referred to in item (n) in paragraph 1 of this judgment. That was
said by her on oath and was not disputed. It ought, therefore,
to
have been accepted by the learned Judge. It demonstrates that the
cause of the delay was, once again, the CCMA and that the appellant
had done everything reasonably possible to cause the CCMA to deal
with the matter. After all, it was in the appellant’s own interest
to have the matter expedited and she must be believed when she says
that the CCMA was contacted on numerous occasions.
[23] In all the circumstances I am of the view that the
appellant did provide a reasonable and acceptable explanation for the
delay
in finally filing a new statement of claim. The fact that she
did so under a new case number is neither here nor there and did not
cause any prejudice to the respondent.
[24] Turning to the prospects of success, I am of the
opinion that the appellant has shown that she has some prospects of
success.
It is not entirely clear whether her dismissal was for
misconduct or operational requirements, and it is not necessary to
decide
that issue at this stage. If the dismissal was for
misconduct, the question may arise as to whether or not the
appellant’s refusal
to relocate warranted a summary dismissal.
Furthermore, the respondent may have to show that it was a condition
of the appellant’s
conditions of service that she could be
transferred from Pretoria to Polokwane against her will or that the
instruction to relocate
was a lawful and reasonable one. There is a
suggestion by the appellant that she was told to relocate to
Polokwane because Mr Naidoo
was “
not happy
”
about her “
presence in Pretoria
”.
If that is so the dismissal may have been for operational
requirements. In the circumstances the appellant may well be able
to
establish that she was entitled to some compensation for her
dismissal.
[25] In my judgement, therefore, the appellant did make
out an adequate case for condonation. The fact that the matter
related to
a single dismissal should not, in the circumstances, have
weighed against the appellant.
[26] In the result I make the following order:-
(a) The appeal is upheld.
(b) The decision of the Court
a
quo
refusing the appellant’s application
for condonation is set aside.
(c)
The late referral of the appellant’s dispute with the respondent
to the Labour Court is condoned.
(d) The respondent shall deliver its response to the
appellant’s statement of claim within fourteen (14) days of the
date of this
order.
(e) The appellant’s costs, if any, of appeal and of
the application for condonation which gave rise to this appeal shall
be paid
by the respondent.
In view of the long delay in finalising this matter, the
Registrar of the Labour Court is directed to give preference to this
case
in allocating trial dates.
________________
McCALL
AJA
I agree.
________________
ZONDO
JP
I
agree.
________________
NICHOLSON
JA
Appearances
For the appellant: Retail and Allied Workers Union (Mr
Khoza)
For the respondent: Mabuza Mabunda Inc. (Mr. B I Baloyi)
Date
of Hearing: 17 August 2005
Date
of Judgment: 9 December 2005