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[2014] ZALAC 106
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OOSTHUIZEN v IMPERIAL LOGISTICS CC (JA74/2012 & JA75/2012) [2014] ZALAC 106 (21 March 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: JA74/2012 &
JA75/2012
In
the matter between:
LINDA
PENDORA OOSTHUIZEN
Appellant
and
IMPERIAL
LOGISTICS CC
First Respondent
COMMISSIONER
BERNARD VAN ECK
Second Respondent
THE
NATIONAL BARGAINING COUNCIL
FOR
THE ROAD FREIGHT INDUSTRY
Third Respondent
Heard:
21 November 2013
Delivered:
21 March 2013
Summary:
CCMA
- Conciliation proceedings - Referral of dispute - Completion of
form LRA7.11 and signature by referring party in compliance
with rule
4 of CCMA Rules - Form unsigned by referring party – unsigned
form defective referral
CCMA
lacking jurisdiction.
Condonation
for the late referral- principles governing condonation application
reinstated. Delay excessive and explanation unreasonable
-
Commissioner dismissing condonation.
Appeal
- Practice and procedure- Labour Appeal Court and Labour Court
entitled to
interfere
with commissioner’s discretion to grant condonation -
Principles applicable - Misdirection - Only misdirection that
is of
such nature that it shows that commissioner did not exercise
discretion or exercised it improperly or unreasonably to be
interfered with – Appeal dismissed with costs.
Coram:
Waglay JP, Dlodlo AJA and Musi AJA
JUDGMENT
DLODLO
AJA
Introduction
[1] In the Court
a
quo,
the Appellant sought to have the condonation Ruling made
against her by the Second Respondent reviewed and set aside. The
Court
a quo
delivered judgment in terms whereof the review
application was dismissed. This is an appeal against that judgment.
Leave to appeal
was granted by the Court
a quo
.
Factual background
[2] On 1 October 2009,
the Appellant was before a disciplinary hearing and was found guilty
of various charges relating to,
inter alia
gross negligence.
The chairperson of the disciplinary hearing recommended that the
Appellant be dismissed. The Appellant appealed
against the findings
of the disciplinary hearing to an internal appeal tribunal. It would
appear that the Appellant abandoned her
appeal in that on 9 0ctober
2009 she referred an alleged unfair dismissal dispute to the
Commission for Conciliation Mediation
and Arbitration (CCMA) for
conciliation.
[3] She was assisted by
a certain Gerald Nkoana (an employee of Legalwise insurance) in
completing the CCMA form 7.11. Neither
the Appellant nor Gerald
signed the referral form. But in other respects, form 7.11 was
properly completed for a claim of alleged
unfair dismissal. It,
however, transpired that the CCMA lacked jurisdiction to consider the
referral in that it ought to have been
referred to the Third
Respondent. Papers are silent though on how the Appellant and or
Legalwise were informed of this development.
The Appellant in her
founding Affidavit alleged that she was initially under the
impression that the referral had been “re-referred”
by
Legalwise to the Third Respondent but that she was subsequently
“informed” that it was “transferred”
by the
CCMA to the Third Respondent.
[4] On 10 November 2009,
the Third Respondent’s case management officer wrote to
Legalwise and informed it that the referral
had not been signed as
required by the Council’s Dispute Collective Agreement and that
it needed to be referred afresh to
the Council together with an
application for condonation. The Appellant appears to accept that she
was indeed advised of this on
10 November 2009 and that she was told
by Legalwise that she should consult with an attorney on their panel.
She, subsequently,
less than a week later did consult with an
attorney on the Legalwise panel. This was on 16 November 2009.
[5] The Appellant’s
attorneys advised her that they would first have to obtain “cover”
from Legalwise before rendering
any assistance to her. The record
shows that the cover to take instructions and to complete a referral
to the CCMA was granted
by Legalwise to the attorneys concerned on 27
November 2007. The attorneys in turn appear to have taken the view
that this only
constituted cover for the completion of a new referral
to Conciliation and thus they would need to obtain additional cover
from
Legalwise to finance the costs of the condonation application.
The attorneys did not perform the referral as an interim step. One
gathers no explanation for this from the papers. The papers do not
show that these attorneys sought cover from the Appellant herself;
nor did they advise her that her prospects of obtaining condonation
could be prejudiced as a result of further delays.
[6] On 18 March 2010, the
attorneys were advised by Legalwise that they had cover and that they
could proceed. Fortuitously, the
Appellant on that exact date had
attended the offices of her attorneys. But notwithstanding the above,
the condonation application
was only filed on 30 September 2010, a
period of more than six months after the cover sought from Legalwise
had been granted. The
condonation application was accompanied by a
signed referral form which appears to have been a copy of the
existing form 7.11 to
which the Appellant’s signature had now
been appended.
[7] The condonation
application was opposed by the First Respondent. The First Respondent
filed substantive opposing papers setting
out why it was of the view
that the Appellant should not be granted condonation. On 22 October
2010, the Commissioner found that
the Appellant had not provided an
acceptable explanation for her delay in referring her dispute.
Condonation was accordingly refused.
Discussion
[8] The first question
that comes to mind is whether the first referral was defective. In
terms of Rule 4 of the Rules regulating
the conduct of proceedings
before the CCMA a document may be signed by the party or by a person
entitled in terms of the Act or
Rules to represent that party in
proceedings. Rule 10 provides,
inter alia
, that a party must
refer a dispute to the Commission for conciliation by delivering a
completed LRA 7.11 (the referral document)
and that the referring
party must sign the referral document in accordance with Rule 4. Rule
10 further provides that if the referral
document is filed out of
time, the referring party must attach an application for condonation
in accordance with rule 9.
[9] Also a number of
decisions including
Rustenburg Platinum Mines Ltd (Rustenburg
Section) v CCMA and Others
[1997] 11 BLLR 1475
(LC) dealt with
this issue and found that the failure by the referring party to sign
personally or by those authorised to sign
the form in terms of the
LRA a referral to Conciliation constitutes a material defect
depriving the CCMA (or the bargaining council)
the jurisdiction to
hear the dispute. Clearly the authorised signature on a referral form
(being the very first step in submitting
to Conciliation) is a
jurisdictional fact which must be established before a forum such as
the CCMA or the bargaining Council can
exercise its jurisdiction over
the dispute. I thus fully agree with the Court
a quo
that the
first referral (in its original form) was so defective that it could
not have formed the basis of lawful jurisdiction
without some further
act. In the instant matter, the LRA 7.11 form was unsigned.
[10]
.
The
next question is whether the defective referral was capable of
ratification or was it in fact ratified. On behalf of the Appellant
it was contended that the latter question stands to be answered in
the affirmative. Reliance is wrongly placed on
ABC
Telesales v Pasmans
[2001]
4 BLLR 385
(LAC).
.
In
ABC
Telesales
,
a candidate attorney in the employ of an employee’s attorney of
record had signed the referral. The important finding by
the Labour
Appeal Court in
ABC
Telesales supra
is the following:
“
However,
the referring party’s participation in the conciliation process
without objection renders the requirement of her
signature redundant
at that stage. It follows that the rule-maker could not have intended
the rule to apply once such participation
had occurred and with it,
the ratification of the referral”.
[1]
The above authority is
clearly distinguishable from the instant case. In the instant case
conciliation had not taken place. ,The
Appellant applied for the
condonation on an unsigned referral form. Of significance is that the
Commissioner considered the date
on which the Appellant signed her
founding Affidavit in the condonation application (20
th
August 2010) as the date on which he considered the matter properly
referred. In the instant matter (unlike in the
ABC Telesales
matter) no tacit acceptance of the referral by the CCMA took place.
[12] The Third Respondent
was within its rights to take the view on whether the requisite
jurisdictional facts were present before
it. The Appellant having
been advised that the referral was defective in that the referral was
unsigned only filed a proper referral
after a substantial delay. No
ratification of the first referral took place. What took place is
that the first defective referral
was withdrawn and a fresh one
lodged. The Court
a quo
expressed the following sentiments
that I fully agree with:
“
[22]
….the First Respondent was entitled to object. The effect of
this objection was to require the Applicant to file a compliant
referral (or at the very least an amended one) together with a
condonation application. To hold otherwise would be to allow the
Applicant to proceed with a defective referral where one of the
prerequisite jurisdictional facts was missing and where the opposing
party had refused to give its consent to the non—compliance. In
this regard, the law now seems to be settled that the absence
of a
jurisdictional fact (such as a signed referral form) vitiates the
arbitrator’s jurisdiction being a question of objective
fact.
(See: CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461
(CC); Wardlaw v Supreme Moulding (Pty) Ltd
[2007] 6 BLLR 487
(LAC);
Bombardier Transportation (Pty) Ltd v Mtiya NO and Others
[2010] 8
BLLR 840
(LAC).”
[13]
The Commissioner found that no proof exists that the original
referral to the CCMA was valid
.
When considering the condonation application before him
,
the Commissioner was bound to give consideration to the degree of
lateness. As pointed out earlier, the Commissioner considered
the
matter properly referred on 20 August 2010 or on the date of the
condonation application (and on the date of signature of the
founding
Affidavit). According to the Commissioner’s calculation the
matter was properly referred 293 days outside the 30
day period
prescribed in section 191 of the LRA.
[14] In determining what
constitutes good cause the respective factors of degree of lateness,
the prospects of success and the importance
of the matter must be
considered. See:
Melane v Santam Insurance CO.
1962 (40 SA 531
(A). The above mentioned factors are inter-related and not
individually decisive. See:
National Union of Mineworkers and
Others v Western Holdings Gold Mine
(1994) 15 ILJ 610 (LAC) at
613B-E. The explanation of the delay must cover the entire
period thereof, that is, each and every
step throughout the process
must be covered by the explanation. See:
NUMSA and Another v
Hillside Aluminium
[2005] ZALC 25
;
[2005] 6 BLLR 601
(LC).
[15] An unacceptable
delay and unsatisfactory explanation will preclude the granting of
condonation irrespective of the prospects
of success. See:
NUMSA v
Council for Mineral Technology
[1993] 3 BLLR (LAC) at 211G-H. The
Appellant’s explanation of the lengthy delay in the instant
matter fell short of the yardstick
set out above. It is unconvincing
and wanting in material respects. The explanation does not
cover each and every step of
the period of the delay. I do not find
it necessary to document this explanation in this judgment. It is
contained in the record
and in the judgment appealed against.
[16] The Appellant set
out as grounds of review that the Commissioner failed to properly
consider the condonation application. It
is particularly averred that
the Commissioner failed to have due regard to the explanation given
by the Appellant for the delay
and that the Commissioner also simply
ignored the prospects of success. It is clear that both she and her
attorneys were unconcerned
with the urgency of this matter and the
time limits prescribed by the rules. Upon being told that the
application was defective
it appears there was absolutely no urgency:
they litigated at their leisure.
[17]
A litigant who intends applying for condonation is required to launch
such application as soon as she or he or it becomes aware
of the
necessity to do so. See:
CWIU
and Another v Ryan and Others
[2001] 3 BLLR 337
(LC). Dealing with this aspect the Court
a
quo
made
the following observation:
“
Whilst
the
Applicant has detailed some of her travails during this period, there
are glaring gaps and inconsistencies. Put simply, her
actions were
not those of a concerned litigant who wishes the expeditious
resolution of her dispute. In particular there is no
evidence to
suggest that the Applicant was incapable of taking reasonable steps
to instruct her attorneys. I am thus of the view
that this matter
differs markedly from that in Liberty Life Association of Africa Ltd
v Hiemstra and Others
(2001) 6 BLLR 620
(CC), where the applicant
employee took active steps himself to rectify a defective referral.”
I
agree with this observation and in my view it cannot be faulted. The
explanation by the Appellant is so hopelessly wanting that
one
immediately becomes reminded of the reasoning by Myburg JP in
Mziya
v Putco
[2002] ZACC 30
;
[1999] 2 BLLR 103
(LAC) which reads
inter
alia
:
‘
There
is
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, the application
for
condonation should be refused.’”
[18] The Appellant’s
attorneys do not appear to have given this matter the attention it
deserved. They have their own explanation
for this.
inter alia,
the Appellant disappeared; they waited for “cover” etc.
The Courts have traditionally demonstrated their reluctance
to
penalise a litigant on account of the conduct of his legal
representative. But Courts have emphasised that there is a limit
beyond which a litigant cannot escape the result of his
representative’s lack of diligence or the insufficiency of the
explanation
tendered. See,
Saloojee and Another NNO v Minister of
Community Development
1965 (2) SA 135
(A) 140H—141D;
Buthelezi and Others v Eclipse Foundries Ltd
(1997) 18 ILJ 633
(A) at 638I—639A.
[19] The Appellant herein
puts the blame on other people including her own insurance,
Legalwise. As recently as 2007 this Court
held in
Moila v Shai
(2007) 5 BLLR 432
(LAC) that where (in an application for
condonation) the delay is excessive and no explanation is given or an
explanation that
has been given amounts to no explanation at all, it
would not be necessary to consider the prospects of success. In my
view, the
Commissioner had due regard to the evidence placed before
him. The Appellant’s version was before the Commissioner was
that
she had signed the LRA 7.11 form but that somebody deleted her
signature using what she described as correction fluid. However,
in
the review application, the version she presented was that she in
fact did not sign the form known as LRA 7.11. It is important
to note
that in the review application she presented a version other than the
version presented before the Commissioner.
[20] She conceded in the
review application that she had in fact not signed the referral form
at all. This new version presented
for the first time in the review
application was obviously not before the Commissioner. This Court in
Moila
case
supra
emphasised that the Court must look at
the Affidavits that were legitimately before the forum in order to
determine if the Commissioner
committed any reviewable irregularity.
This Court is thus duty bound to consider the Appellant’s
version contained in the
Affidavit that served before the
Commissioner. The Appellant is disingenuous in contending that the
Commissioner’s decision
was irrational regard being had to what
was before the Commissioner.
[20] This Court shall not
lightly interfere with the exercise of a discretion by the Court
a
quo
. The test and guiding principles were set out by this Court
in
Coates Brothers Ltd v Shanker and Others
(2003) 24 ILJ 2248
(LAC) as follows:
“
An
Appellant
must show, in an appeal from a decision of a lower Court, that the
Court a quo acted capriciously, or acted on a wrong
principle, or in
a biased manner, or for insubstantial reason, or committed an
irregularity, or exercised its discretion improperly
or unfairly
.”
[2]
None of the above has
been shown by the Appellant in the instant matter.
[21] It follows that
there are no merits in this appeal. As far as the question of costs
is concerned, I bear in mind that this
Court may make such orders
regarding costs according to the requirements of the law and
fairness. The general rule is that a successful
party is entitled to
recover its costs. The First Respondent has been unnecessarily
dragged to Court and was bound to defend itself.
The Court is always
reluctant to order that employees pay costs to their employers
whenever these two become involved in litigation
emanating from the
employment relationship. However, there is a limit beyond which an
order of costs cannot be avoided, this is
one such matter
Order
[22] In the result, I
make the following order:
(a)
The Appeal is dismissed with costs.
Dlodlo
AJA
I
agree.
Waglay
JP
I
agree.
Musi AJA
APPEARANCES:
FOR THE
APPELLANT:
J
C M Roets of Roets & Du Plessis Attorneys
FOR THE FIRST RESPONDENT:
Adv
Chris Roodt
Instructed by AM Spies
Attorneys
[1]
At para 6.
[2]
At para 5.