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[2015] ZALAC 79
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Khosa v ABSA Bank Limited (JA55/2013) [2015] ZALAC 79 (15 January 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA55/2013
In
the matter between:
ARTHUR
LAYANI
KHOSA
Appellant
and
ABSA
BANK
LIMITED
Respondent
Heard:
06 November 2014
Delivered:
15 January 2015
Summary:
Condonation application – principles restated –
reasonable
prospects of success
and
interest of justice justifying the granting of condonation -
condonation granted- Labour Court’s judgment set aside -
appeal
upheld.
Coram:
Waglay
JP, Dlodlo AJA
et
Setiloane AJA
JUDGMENT
DLODLO
AJA
Introduction
[1] This is an appeal
against the order of the Labour Court (Basson, J) handed down on 12
March 2013 in terms of which the Appellant’s
application for
condonation for the late referral of his dispute to the Labour Court
was refused. The Respondent opposed the appeal
on grounds,
inter
alia
, that the condonation application itself is late; it is not
in the interests of justice to grant condonation; and that there were
no prospects of success in the main claim.
[2] By way of background,
the factual matrix of this matter is as follows: The Appellant was
employed by Absa Brokers (Pty) Ltd
which later on changed its name to
Absa Insurance and Financial Advisors (Pty) Ltd. The Appellant was
dismissed from the employ
of the Respondent on 29 February 2012 on
the basis of the Respondent’s operational requirements. The
Appellant referred an
alleged unfair dismissal dispute to the
Commissioner for Conciliation, Mediation and Arbitration (“CCMA”)
on 20 March
2012. The certificate of outcome indicating that the
dispute remained unresolved was issued on 12 April 2012.
[3] In terms of section
191(11) (a) of the Labour Relations Act 66 of 1995 (“LRA”)
the Appellant was obliged to refer
his dispute to the Labour Court
within 90 days of the CCMA certifying that the dispute remained
unresolved. Thus the Appellant’s
statement of claim was due to
be delivered on or before 11 July 2012. The statement of claim was
delivered on 3 September 2012.
The referral to the Labour Court was
thus 54 days late.
[4] The Respondent
delivered the Statement of Defence on 6 September 2012. In the
Statement of Defence a preliminary point was raised
regarding the
Appellant’s failure to apply for condonation. The condonation
application was delivered on 28 January 2013.
That was 147 days after
the delivery of the statement of Claim.
[5]
One of the factors to determine whether or not the condonation
application ought to have been granted is whether it was in the
interests of justice to do so. See:
NEHAWU
obo Mafokeng and Others v Charlotte Theron Children’s Home
[1]
.
Also an application for condonation must be brought as soon as the
party which applies for it becomes aware of the default. See:
Seatlolo
and Others v Entertainment Logistics Service (A Division of Gallo
Africa Ltd).
[2]
[6]
This Court has endorsed the abovementioned approach advocating the
bringing of the application for condonation as soon as the
litigant
becomes aware of the need to do so. See:
Allround
Tooling (Pty) Ltd v NUMSA and Others;
[3]
NEHAWU
v Nyembezi
[4]
and
Librapac
CC v Fedcraw and Others.
[5]
I emphasize that a condonation application must itself be pursued
with diligence. However, one must always bear in mind that most
individual litigants (such as the Appellant in the instant matter)
depend wholly on the advice and expertise of their legal
representatives.
The individual litigant hardly knows about time
limits within which disputes must be referred.
[7] I say the above
well-aware of numerous authorities to the effect that the negligence
of a legal representative is not considered
an acceptable excuse for
the delay. In this matter it is clear that the Appellant and his
legal team did not believe that the statement
of claim was filed out
of time and that the Appellant had to apply for condonation. This was
so because the appellant initially
referred the matter for
arbitration to the CCMA. The CCMA refused to arbitrate the dispute on
the grounds that it did not have
the necessary jurisdiction to
entertain the dispute. Once the CCMA made a finding that it did not
have the jurisdiction to entertain
the dispute the Appellant referred
his matter to the Labour Court. In doing so, the Appellant and his
legal representative were
under the mistaken belief that because they
filed their statement of case within 60 days of the CCMA dismissing
its referral for
lack of jurisdiction, the referral to the Labour
Court was made in time and there was therefore no need to apply to
apply for condonation.
The Appellant thus contended that calculation
for purposes of the referral should start on the day the CCMA made a
ruling that
it did not have jurisdiction. The Appellant although
wrong in its belief cannot be said to lack
bona fides
.
[8] In
Num
v Council for Mineral Technology
[6]
this Court stated the principle applicable to a condonation
application as follows:
‘…
..without
a reasonable and acceptable explanation for the delay, the prospects
for success are immaterial and without prospects
of success, no
matter how good the explanation for the delay, an application for
condonation should be refused’
.
The
above principle was also pronounced upon in
Melane
v Santam Insurance Co Ltd.
[7]
In the instant matter, the Appellant set out his case in the
Statement of Claim. This, read together with the Statement of Defence
filed on behalf of the Respondent, puts forth a
prima
facie
case for the Appellant. I differ from the contention of the
Respondent that the Appellant has not shown prospects of success. In
my view, the Appellant did indeed show that there are prospects of
success if he were to be allowed to prosecute his claim against
the
Respondent.
[9] In
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others,
[8]
the
court stated the following:
‘
It is
appropriate that an application for condonation be considered on the
same basis and that such an application should be granted
if that is
in the interests of justice and refused if it is not. The interests
of justice must be determined by reference to all
relevant factors
including the nature of the relief sought, the extent and cause of
the delay, the nature and cause of any other
defect in respect of
which condonation is sought, the effect on the administration of
justice, prejudice and the reasonableness
of the applicant’s
explanation for the delay or defect.’
[10]
It is trite that the factors to be considered in a condonation
application are not individually decisive but are interrelated.
I
agree with the statement to the effect that even if it is found that
the explanation put forth does not constitute a reasonable
explanation, it will not necessarily be regarded as an absolute bar
to condonation.
[9]
What is
needed is indeed an objective conspectus of all the facts; the
importance of the issue and strong prospects of success
may tend to
compensate for a long delay.
[10]
[11] I also differ from
the Respondent on the assertion made, on its behalf, that it is not
in the interests of justice that this
matter should be allowed to
proceed. What interests of justice will be served by denying the
Appellant an opportunity to state
his case before Court? Why should
the “doors of justice” be closed on him, particularly
where,
prima facie
, there appears to be a reasonable prospects
of success? Certainly it is in the interests of justice that both the
Appellant and
the Respondent be allowed an opportunity to ventilate
their respective issues before Court. I would accordingly grant
condonation
in the instant matter.
Order
[12] In the result, I
make the following order:
(a)
The
appeal is upheld and the order of the Court
a
quo
is altered to read:
“
The
Condonation application is hereby granted with no order as to costs.”
(b)
There
is no order as to costs.
Dlodlo
AJA
I agree
Waglay
JP
I agree
Setiloane AJA
APPEARANCES:
FOR
THE APPELLANT:
Mr R F Mafuyeka
Instructed
by Mafuyeka & Associates Inc.
FOR
THE RESPONDENT: Adv FA Boda
Instructed
by Cliffe Dekker Hofmeyr Inc
[1]
[2004] 10 BLLR 979 (LAC).
[2]
[2011] JOL 27264
(LC).
[3]
[1998] 8 BLLR 847 (LAC).
[4]
[1999] 5 BLLR 463
(LAC) at 464 D-F.
[5]
[1999] 6 BLLR 540
(LAC) at 543.
[6]
[1999] 3 BLLR 209 (LAC).
[7]
1962 (4) SA 531
(A).
[8]
2000 (5) BCLR 465
(CC).
[9]
PAPWAWU
and Others v AF Dreyer and Co (Pty) Ltd
[1999]
BCLR 1141
(LAC);
Toyota
Marketing v Schneizer
[2002]
12 BLLR 1164
(LAC) at para. 15.
[10]
Melane v Santam
Insurance Co Ltd
1962 (4) SA 531
(A.D).