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[2016] ZALAC 70
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Academic and Professional Staff Association v City of Tshwane Metropolitan Municipality (JA 61/14) [2016] ZALAC 70 (16 February 2016)
IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA, JOHANNESBURG
Not reportable
Case no: JA 61/14
In the matter between:
ACADEMIC AND PROFESSIONAL STAFF
ASSOCIATION
(“APSA”)
obo
26 MEMBERS
Appellant
and
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
(“CTMM”)
Respondent
In re:
ACADEMIC AND PROFESSIONAL STAFF
ASSOCIATION
(“APSA”)
obo 26 MEMBERS
Appellant
and
UNIVERSITY OF SOUTH AFRICA
(“
UNISA
”) First
Respondent
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
(“CTMM”)
Second
Respondent
Heard: 19 November 2015
Delivered: 16 February 2016
Summary: Condonation application -
one of the respondents not opposing the condonation application –
court
a quo
despite indicating that it would not consider
condonation against the non-opposing party refused condonation in
favour of all respondents
– court
a quo
misdirecting
itself – principle related to condonation application restated
– appellant having prospects of success
against non-opposing
party – condonation granted.
Coram: Tlaletsi DJP; Coppin JA and
Savage AJA
JUDGMENT
TLALETSI DJP
Introduction
[1]
This
appeal is against the judgment of the Labour Court (Molahlehi J) in
which that court dismissed with costs, an application for
condonation
(the Condonation Application) for the late filing of the Statement of
Claim brought by the appellant.
[2]
The
appellant is a Trade Union duly registered in terms of the Labour
Relations Act
[1]
and is acting
on behalf of its members. The respondent is the City of Tshwane
Metropolitan Municipality, a municipality duly constituted
in terms
of the Local Government Municipal Structures Act.
[2]
Factual background
[3]
The
appellant referred an unfair dismissal dispute to the Commission for
Conciliation, Mediation and Arbitration (CCMA). The dispute
was
between the appellant acting on behalf of its members and the
respondent (which was cited as the second respondent in the Labour
Court) as well as the University of South Africa (UNISA), which was
the first respondent in the Labour Court. The aforesaid referral
was
set down for conciliation on 30 May 2011 before a commissioner
appointed by the CCMA. On the same day, the commissioner issued
a
Certificate of Outcome endorsing that the dispute remained unresolved
and that the matter could be referred to the Labour Court
for
adjudication. Included in the certificate was an endorsement to the
effect that the point
in
limine
raised by UNISA on 15 November 2012 had not been decided.
[4]
On
31 August 2011, the appellant served and filed a Statement of Claim
against UNISA and the respondent in the Labour Court. The
said
Statement of Claim was issued three days late because the 90 day
period within which the Statement of Claim had to be issued
expired
on 29 August 2011, calculated from 20 May 2011 which is the day on
which the Certificate of Outcome was issued by the commissioner.
[3]
[5]
On
14 September 2011, UNISA served and filed its response to the
Statement of Claim. In the response, UNISA
inter
alia
,
raised a point
in
limine
challenging the Labour Court’s jurisdiction to entertain the
dispute on the basis that the referral was made out of time.
In due
course, the respondent filed its response to the Statement of Claim.
In the course of time, the parties exchanged further
correspondence
between themselves to move the litigation forward. In addition, pre
-trial meetings were held during the period
1 November 2011 to 12
December 2011 and 2 February 2012. A pre-trial minute was finally
concluded on 8 February 2013.
[6]
On
or about 4 March 2013, UNISA served and filed an application to
dismiss the appellant’s referral in terms of Rule 11.
[4]
[7]
On
9 March 2013, the appellant filed the Condonation Application for the
late filing of the Statement of Claim. Subsequently, on
14 March
2013, the appellant delivered an Answering Affidavit in response to
UNISA’s Rule 11 application.
[8]
UNISA
filed an answering affidavit in opposition to the Condonation
Application on 15 March 2013. The respondent did not file any
papers
to oppose the Condonation Application. On 2 April 2013, the appellant
filed its Replying Affidavit to the Condonation Application.
[9]
The
Condonation Application as well as the Rule 11 application was set
down for hearing on 4 September 2013. During the presentation
of the
arguments, the respondent’s counsel addressed the Labour Court.
She placed on record that the respondent was not opposing
the
Condonation Application and that they would abide by the court’s
ruling. She concluded that they only appeared to observe
the
proceedings or on what is commonly called “a watching brief”.
[10]
The
appellant’s explanation for the delay of three days in filing
the Statement of Claim was attributed to the fact that there
are a
considerable number of employees involved in the dispute. It took a
lot of time to compile the information required to prepare
the case.
The fact that the employees were working different shifts and
locations made it difficult to arrange for consultations.
Furthermore, interpreters had to be used in the consultations since
not all employees were conversant in the English language resulting
in consultations being prolonged.
[11]
The
appellant contended further that all the individual employees had at
all relevant times expressed their serious desire to persist
with
their claims of unfair dismissal. On the prospects of success, the
appellant contended that it had good prospects of success
for the
following reasons: there are two groups of employees; the first group
was employed by UNISA and the second group by both
UNISA and the
respondent. They mentioned that they were invited to apply for
positions as bus drivers by advertisements issued
by and displayed on
the premises of UNISA; they submitted themselves to an interview
process conducted by UNISA; they were handed
letters of appointment
to the positions of bus drivers by UNISA. These letters informed them
of the salaries they were to earn
as bus drivers; they reported to
UNISA’s employees who also gave them instructions relating to
the tasks they had to perform
as bus drivers. They also received
separate remuneration/salaries for the performance of their services
in their capacity as bus
drivers.
[12]
With
regard to the second group allegedly employed by both UNISA and the
respondent, the appellant alleged that they performed their
services
as bus drivers under the auspices and control of the respondent’s
employees and were remunerated on a monthly basis
by the respondent.
The appellant attached salary advices of some of the employees to
demonstrate that their income tax payments,
Unemployment Insurance
Fund contributions as well as the Bargaining Council levies were
deducted from their salaries by the respondent
as their employer.
[13]
In
response to the appellant’s allegations, UNISA disputed that it
employed the employees as bus drivers
but
that some of them were employed in positions ranging from overseeing
its estates to assisting with space and parking matters and
that it
was in fact the respondent who employed them as bus drivers. UNISA
contended further that the respondent’s stance
that it had a
“sub-contractor arrangement” with the individual
employees is opportunistic because all the affected
individuals were
in fact employed by the respondent as bus drivers. The allegation
that the employees were engaged as independent
contractors is
contained in the respondent’s response to the appellants’
Statements of Claim.
The Labour Court
[14]
The
main ground for opposition to the Condonation Application by UNISA
was the appellant’s delay in bringing the Application
for
Condonation. It was contended on behalf of UNISA that the appellant
gave no explanation for this delay in their founding affidavit
but
only gave the explanation in reply. The explanation for the delay in
bringing the Condonation Application was attributed to
an
administrative error and oversight, which cannot be attributed to the
individual employees.
[15]
The
Labour Court had the following to say in its evaluation of the
Condonation Application:
‘
[15]
In my view, the excessive delay in filing the condonation application
whilst aware of the need to do that is fatal to the applicants.
The
explanation for the delay is totally unsatisfactory, if it is for any
reason to be regarded as anything closer to an explanation.
In their
founding papers the applicants do not provide an explanation as to
why they did not heed the warning by the first respondent
that they
need to apply for condonation.
[16] The poor explanation, if there
is any, is not supplemented by the prospects of success. The version
that there were two distinct
contracts of employment between the
parties is unsustainable when the totality of the facts and the
circumstances of the case are
taken into account. There is no
explanation as to why, if there were two separate contracts was
payment for the bus driving services
paid as an allowance.
[17] In light of the above, I am of
the view that the applicants have failed to show that the interest of
justice favours the granting
of condonation. I see no reason in both
law and fairness why costs should not follow the results.
[18]
Having made the above
finding, it is not necessary to deal with the issue of the delay in
prosecuting the claim
.”[Emphasis provided]
The Condonation
Application was consequently dismissed with costs without any
indication in the order that it only applies to the
application in so
far as it relates to UNISA.
The appeal
[16]
The
grounds of appeal upon which the judgment of the Labour Court is
challenged are that the Labour Court erred:
15.1. in dismissing the
Condonation Application for the late filing of the Statement of
Claim against both the respondent
and UNISA instead of restricting
the determination of the application to UNISA only;
15.2. by failing to give
consideration to the appellant’s prospects of success against
the respondent; and
15.3. in not finding that
it was in the interest of justice to grant the Condonation
Application against the respondent in favour
of the appellant.
[17]
The
strange feature of this appeal is that the appellant is appealing
against the order of the Labour Court only in so far as it
relates to
the respondent before this Court even though the judgment and order
is based on the same facts and circumstances that
relate to both the
respondent and UNISA. Mr Goosen who appeared on behalf of the
appellant in the court
a
quo
and in this Court, informed us that the appellant has since accepted
that it does not have favourable prospects of success against
UNISA
as compared to the respondent and that, for that reason it only
applied for leave to appeal against the respondent. It further
confirmed that the appeal is consciously pursued against the
respondent only.
[18]
Counsel
for the appellant submitted that the judge in the court
a
quo
had indicated during argument that he was not going to dispose of the
appellant’s Condonation Application in so far as it
related to
the respondent who did not oppose the application and, as a result,
did not invite submissions from the respondent.
This attitude, it was
contended, resulted in the court
a
quo
not
considering the strong prospects of success against the respondent.
[19]
There
is merit in the submission that the court
a
quo
had decided to deal only with the Condonation Application only in so
far as it related to UNISA. This is because at paragraphs
[1] to [3]
of the judgment, the court
a
quo
recorded that it was dealing with an opposed application for
condonation and that “
the
opposition to the condonation is only by [UNISA]”
,
and that “
the
case for the applicants is that they were unfairly dismissed as bus
drivers for operational reasons by [UNISA]”
.
In addition, reference is made to the appellant’s contentions
against UNISA in the Statement of Claim and UNISA’s
defence in
the response to the Statement of Claim. There is no reference to the
appellant’s contentions against the respondent
and the
respondent’s defence to the Statement of Claim.
[20]
Furthermore,
the grounds of appeal formed the basis of the application for leave
to appeal. However, the court
a
quo
did not take issue with these grounds in its judgment granting leave
to appeal. The court
a
quo
acknowledged that the appellant was correct in stating that the
respondent did not oppose the Condonation Application and that
leave
is “
sought
on the ground that the respondent did not oppose the Condonation
Application and that the Court did not consider prospects
of success
in relation to them
”.
For these reasons, the court
a
quo
was persuaded that there are reasonable prospects that another Court
is likely to arrive at a different conclusion in as far as
the
application for condonation for the late filing of the Statement of
Claim in relation to the respondent.
[21]
Mr
Bekker, who appeared on behalf of UNISA in the court
a
quo
appeared on behalf of the respondent in this Court. He submitted,
inter
alia
,
that the court
a
quo
did consider the application in terms of Rule 11 in determining the
Condonation Application and as such, its decision to dismiss
the
Condonation Application disposed of the case of the appellant against
the respondent as well.
[22]
There
is no merit in this submission. The Labour Court made it clear at
paragraph [18] of its judgment quoted above, that it found
it not
necessary to deal with the Rule 11 application in view of its
decision to dismiss the Condonation
Application.
[23]
It
is clear from the judgment of the court
a
quo
that it found the delay of three days in serving and filing the
Statement of Claim not to be excessive. However, the court
a
quo
laid much emphasis in the fact that it took the appellant a period of
18 months (not 180 days as the court
a
quo
said) to bring the Condonation Application. This delay was found to
be “fatal” to the appellant’s application.
The
court
a
quo
further found the explanation of an administrative error and
oversight for this delay as totally unsatisfactory. Furthermore, the
prospects of success, which can only be those against UNISA in light
of the decision that the Condonation Application in relation
to the
respondent was not to be determined, were found to be weak.
[24]
It
is trite that an applicant has a duty to bring an application for
condonation without delay after he/she has become aware of
the need
to apply for condonation.
[5]
However, the distinction between the delay in filing a Statement of
Claim and the delay in applying for condonation should be kept
in
mind when considering whether condonation should be granted.
[25]
Although
the appellant delayed in bringing the Condonation Application despite
being alerted by UNISA of the need to bring the said
application, it
is common cause that the parties did not sit back and do nothing
during the period of 18 months. All the necessary
papers to move the
litigation forward were filed. Pre-trial procedures that culminated
in a Pre-Trial Minute being concluded were
followed. It can therefore
not be said that the respondent was prejudiced by the delay in
bringing the Condonation Application
on time. Neither of the parties
depended on the Condonation Application for preparation and
advancement of its case. The respondent
could not have claimed that
it suffered prejudice as a result of the delay in bringing the
Condonation Application since no papers
were filed to oppose the
Condonation Application.
[26]
In
my judgment, the court
a
quo
was required to consider and evaluate the prospects of success of the
appellant’s case against the respondent and the prejudice
to be
suffered by the parties should condonation be granted or denied in
addition to the factors it considered in the application
against
UNISA. The omission to do so is an oversight on the part of the court
a
quo
.
It would not be in the interest of justice to refer this matter to
the court
a
quo
to consider the merits of the appellant’s application. It would
serve the purpose of the labour relations of speedy finalisation
of
labour disputes to dispose of the condonation application at this
stage. All the facts necessary for the determination of the
Condonation Application are on record and this Court is in as good
position as the Labour Court to determine the application without
any
further delay.
[27]
The
appellant has shown that there are reasonable prospects of success
against the respondent. They have attached documents to demonstrate
that the individual employees entered into contracts of employment
with the respondent who in turn remunerated them for their services.
Furthermore, they are supported by UNISA which contends that the
individual employees were indeed employed by the respondent. In
return, the respondent has not filed papers to controvert the
averments made by the appellant in the Condonation Application. One
is however mindful of the respondent’s defence raised in the
response to the Statement of Claim which is to the effect that
the
individual employees were only engaged as independent contractors.
Should such a defence be unsuccessful, the appellant and
its members
stand a chance of succeeding with their claim.
[28]
In
my view, a case has been made for condonation for the late filing of
the Statement of Claim. It will also be in the interests
of justice
that condonation be granted in the circumstances.
[29]
As
pointed out the respondent did not oppose the condonation application
in the Labour Court. However, a cost order was made in
its favour.
There is no justification for such an order being made. Despite all
these factors, the respondent elected to oppose
the appeal on the
basis that the appellant could not contend that its application for
condonation was not considered by the Labour
Court because by
granting the Rule 11 application, the appellant’s claim was
dismissed against both the respondent and UNISA.
I have already found
that there is no merit in this submission. Other than this
contention, the respondent could not make any submission
to dispute
the fact that the Labour Court had decided not to consider the
Condonation Application against the respondent. For that
reason, the
respondent is not entitled to any costs on appeal.
The
appellant is seeking an indulgence from the court and it would be in
accordance with the requirements of the law and fairness
that there
be no order as to costs despite its success.
[30]
In
the result, the following order is made:
a)
The
appeal succeeds and the order of the Labour Court in so far as it
relates to the respondent is set aside.
b)
The
appellant is granted condonation for the late filing of the Statement
of Claim.
c)
Each
party is to pay its costs.
LP Tlaletsi DJP
Coppin JA and Savage AJA
concur in the judgment of Tlaletsi DJP.
APPEARANCE:
FOR
THE APPELLANT:
Mr C Goosen
Instructed
by Strydom Attorneys
FOR
THE RESPONDENT:
Mr W Bekker
Instructed
by Kuene Ramapala Botha INC
[1]
Act 66 of 1995.
[2]
Act 117 of 1998.
[3]
Section 191(11)
(a) of the Labour Relation Act.
[4]
Rule 11 of the
Rules for the conduct of the proceedings in the Labour Court.
[5]
See
Allround
Tooling (PTY) LTD v NUMSA
[1998] 8 BLLR 847
(LAC) at para 8;
NEHAWU
v Nyembezi
[1999] 5 BLLR 463
(LAC) at para 5;
Librapac
CC v Fedcraw and Others
(1999) 20 ILJ 1510 (LAC);
[1999] 6 BLLR 540
(LAC) at 543.