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[2010] ZALAC 37
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Basson v Oosthuizen NO and Others (JA34/08) [2010] ZALAC 37 (19 February 2010)
8
JUDGMENT
2010-02-19
JA34/08
- D K DE JAGER
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT
:
JOHANNESBURG
CASE NO
: JA34/08
DATE
: 2010-02-19
In
the matter between
BASSON,
MACHIEL PETRUS Appellant
And
SANTIE
OOSTHUIZEN N.O. 1
ST
Respondent
THE
COMMISION FOR CONCILIATION 2
nd
Respondent
AND
ARBITRATION
GRIFFIN, VERONICA 3
RD
Respondent
____________________________________________________________
Coram: DAVIS JA, JAPPIE JA, TLATETSI AJA,
_____________________________________________________________
J U D G M E N T
_____________________________________________________________
DAVIS JA:
This is an appeal with the leave of the
court
a quo
, against an order of Francis J of 14 February
2008, in which the learned Judge dismissed an application for
condonation, review
and declaratory order with costs.
Briefly the facts were as follows:
On 30 September 2002, the first respondent heard a case in which the
third respondent contended that she had been constructively
dismissed
on 1 August 2001 whilst in the employ of the appellant. The
appellant made no appearance and accordingly the arbitration
award
had the effect of a default award to the effect that the first
respondent had been constructively dismissed and that the
appellant
should be required to pay compensation in the amount of R168 000;
being
R14 000 for 12 months together with a certain amount of leave pay,
two week’s notice pay, thus totalling an amount of
R178 946,52.
As I have mentioned, the appellant did not enter an appearance at
the arbitration hearing. On 20 May 2004, Mr Pitzer who was
employed
by the appellant as his representative, the latter having being
referred to him by Scholtz attorneys as an expert in labour
matters,
brought a rescission application on behalf of the appellant regarding
this default award.
This was instituted on 8 June 2004. On 7 November 2004,
Commissioner Smith, a member of second respondent, dismissed
the
rescission application for want of a founding affidavit. On
25 February 2005, the second respondent sent by registered
post to appellant, an application in terms section 143 of the Labour
Relations Act 66 of 1995 (LRA),which certified the award.
On 2 June
2005, the second respondent varied the award of first respondent by
way of a change of citation of the parties to Veronica
Griffen and
Machiel Basson and confirmed the award of compensation, being in
an amount of R178 946, 52.
On 28 June 2005, appellant and his representative Mr Pitzer
signed affidavits which appeared to be in support of an application
to object to the variation of the original award of second
respondent.
Notwithstanding this award was certified on 4 July 2006. On 5 July
2006, the registrar of this court issued a writ of execution
against
the appellant’s immovable assets. On 22 August 2006, the
sheriff in Brakpan served a writ on appellant. The
appellant stated
that he did not own any immovable properties that were executable, a
contention which was subsequently proved
to be incorrect. On 1
September 2006, the registrar of the Labour Court issued a writ
of execution against immovable properties
owned by appellant. On 18
September 2006, the sheriff attached immovable property and on 19
September 2006, a review application
was brought by one Pitzer on
behalf of the appellant. On 9 October 2006, appellant
brought an urgent application which
sought to gain the relief, which
I have outlined, before the court
a quo
.
It is trite law that in terms of section 145(1)(A) of the LRA, a
review application should be brought within six weeks of the
date
that the award was served on the applicant. In terms of section
145(1) (A), on good cause shown, a court may condone the
late filing
of the application.
There is no doubt that this particular application for review has
been brought at an extremely late hour. As I have mentioned,
an
application for rescission of the award was launched, as I have
indicated, on 20 May 2004. When that was dismissed, it
appears
that little activity was generated by appellant, at least until
28 June 2005, when affidavits were signed dealing
with an
objection to the variation of the original award. No explanation is
given as to why there were such extraordinary delays
of more than a
year after the launch of this rescission application.
A reasonable litigant faced with a default award and with the
potentially disastrous financial consequences which such an award
would bring upon a person (allegations which are made by appellant in
this case), would have acted with a measure of expedition
and if not,
with a plausible explanation as to the delay. From 2005 onward, the
explanations proffered concerned the incompetence
and lack of
diligence of Mr Pitzer. That particular argument was employed to
shine the culpable light exclusively on Mr Pitzer
and to contend
that this court cannot allow the adverse consequences envisaged, upon
an innocent litigant who has been placed in
a position of jeopardy by
an incompetent representative.
It is correct that where a representative of a litigant has behaved
in an unprofessional manner, this is to be taken into account
in
consideration to whether an application for condonation should
succeed. In this case, there was a lengthy period in which no
explanation was proffered and no activity or even enquiry was
initiated by the appellant to indicate any interest in the matter.
Thus blaming Pitzer alone can never be sufficient cause for
condonation.
Realising his difficulty, Mr Grundlingh, who appeared on behalf of
appellant, submitted that the time limits to evaluate condonation
should not be considered from 2002 and even from 2004 when the
rescission application failed, but rather from the final
certification
of the award or its variation by the first and second
respondents in May 2006. On this basis, Mr Grundlingh contended that
it
was only on 22 August 2006, when the sheriff of Brakpan served a
writ on appellant, that the latter finally realised the legal
consequences which had been initiated by the award in 2002 and how
these would work to his significant financial disadvantage.
The question arises as to what the appellant did on 22 August 2006
to obtain relief. Assuming, if one is so prepared
in favour of the
appellant to ignore the sequence of events from 2002 to 2007, the
short answer is, appellant still did nothing.
On 18 September 2006,
the sheriff finally attached the immovable property, I might add,
appellant had stated on 22 August,
that he did not any immovable
property. Having being caught out on 18 September 2006,
appellant finally roused himself and
approached a firm of attorneys
to prosecute this urgent application. But no explanation was
proffered as to why no activity took
place in the period from 22
August 2006 to 18 September 2006.
It is trite law that condonation is not for the asking. Courts
must exercise a discretion judicially in granting condonation
application. The LRA was designed for expeditious, speedy and fair
resolution of labour disputes. It means that, when a party
sits on
its proverbial hands for as long as appellant and then finally comes
forward with an application, whatever other considerations
have to
be taken into account in a condonation application, expedition has
to be an important factor. It is simply unacceptable
for labour
disputes to limp for almost a decade and then for courts to grant
condonation applications on the slimmest and flimsiest
of grounds.
In effect this means that there will be cases when condonation
applications are justified, when prospects of success are clear,
where a justifiable explanation is rendered, all of which will then
be factors to be weighed in the decision as to whether to exercise
a
positive discretion. But the length of the process and the dilatory
nature of one of the parties, which only exacerbates the
length of
dispute, is most important factor, particularly in a case such as
present.
Mr Grundlingh sought to circumvent this difficulty. He submitted
that the award was unreasonable with regard to the amount of
the
compensation, particularly a year’s compensation being based
upon a gross amount of salary of R14 000 per month.
Further,
first Respondent was not entirely clear as to whether R14 000
was the precise remuneration, nor whether the maximum
compensation
was justified in this case.
The short answer to these contentions is that the first respondent
based her conclusion on the only evidence that was available
to her,
which in the circumstances cannot be considered to be unreasonable.
The obvious recourse for appellant was to proceed
by way of an
application for rescission of a default award which for reasons,
already indicated, was not successfully done.
The second argument concerns the application for a declaratory
order. The question of the declaratory order is itself problematic
because I am uncertain as to its purpose. It appears that the basis
for this order is to contend that, as the third respondent
was not an
employee, first respondent did not have the jurisdiction to hear the
matter.
It is possible to argue, and it has been done, that the question of
whether a person is an employee, is a jurisdictional fact
of a kind
which has to be decided upon prior to the second respondent being
visited with appropriate jurisdiction. There are clear
options open
to a party which wishes to object to jurisdiction on the basis of an
argument that the complainant is not an employee.
A party could
place proper evidence before the second respondent in order that an
informed decision can be so made. T
A second option would be to approach a court prior to the
matter being heard by the second respondent in order to obtain
an
order that there is no jurisdiction visited upon second respondent
because the complainant in the particular case cannot be
considered
to be an employee in terms of the LRA.
Again, all this depends on the expeditious prosecution of such an
argument which manifestly did not take place in this case. That
kind
of relief can only take place in the event that this court is
satisfied that condonation should be granted.
In my view, there is no basis by which condonation should be granted
in this case, even if one takes the more generous approach
to the
chronology as was urged upon us by appellant’s counsel.
In the result, I would dismiss the appeal with costs.
JAPPIE, JA
)
TLALETSI, AJA
) Concur.
---oOo---