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[2002] ZALCJHB 15
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Mould v Roopa NO and Others (JR822/01) [2002] ZALCJHB 15; [2003] 1 BLLR 38 (LC) (26 August 2002)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: JR 822/01
Heard on : 7 August
2002
Delivered on : 26
August 2002
In
the matter between:
TREVOR
OWEN
MOULD Applicant
and
MR.
P ROOPA
N.O. First
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
&
ARBITRATION Second
Respondent
LONMIN
PLATINUM LIMITED also
known
as LONMIN PLATINUM and/or
LONMIN
PLATINUM
MINES Third
Respondent
J U D G M E N T
PILLAY , J
This is a review of the
ruling of the first respondent Commissioner, who refused condonation
of the late delivery of the referral
to arbitration.
Whether
this review should proceed in terms of section 145 or section
158(1)(g) of the Labour Relations Act No 66 of 1995 (the
LRA) was an
issue in these proceedings. Mr Howitz submitted that once the
conciliation phase had passed, and a certificate in
terms of section
135(5)(a) had been issued, the ensuing process was arbitration,
irrespective of whether it was an application
for condonation. A
condonation application was, it was submitted, an act performed by
the Commissioner in the course of his duties
as an arbitrator in
terms of section 145(2)(a)(ii) and had final effect.
Not
every process that follows the issue of a certificate can be an
arbitration. The LRA differentiates between arbitration and
other
acts in sections 145 and 158(1)(g) respectively.
While
processes under both sections may be adjudicative and similar, their
form, content and purpose are not the same. The fact
that
arbitration and a ruling can have final effect does not alter the
distinction between these processes. An application for
condonation
is not an arbitration and its outcome is not an award, but a ruling.
A ruling, like any act other than an award,
must be reviewed in
terms of section 158(1)(g) of the LRA.
(Carephone
(Pty) Ltd v Marcus N.O. & Others
(1998) BLLR 1093
(LAC); Kwazulu
Transport (Pty) Ltd v Mnguni & Others (2001) 22 ILJ 1646 (LC);
Els Transport v Du Plessis & Others (2001)
22 ILJ 1390 (LC))
I respectfully disagree with the approach in
Ruijgrok
v Foshini (Pty) Ltd & Another (1999) 20 ILJ 635 (LC).
Section
158(1)(g) however, must be interpreted as being “subject to
section 145. (
Carephone,
above) But, it is not limited to the grounds of review in section
145. The test common to both processes is, as correctly relied
upon
by Mr Snider, that of justifiability and rationality.
(Carephone,
above;
Kotze
v Minister of Health
1996 (3) BCLR 417
(T)).
That is the test I intend to apply in this case.
The applicant received a
certificate of non-resolution of the dispute immediately after
conciliation on the 14
th
June 2000. It did not bear the
stamp of the CCMA, the second respondent. The applicant filed the
referral to arbitration on 13
th
September 2000,
ninety-one days after the certificate was given to him without
demur. On the direction of the CCMA, the applicant
applied for
condonation.
The first ground of
review was that the referral was not late and that the application
for condonation was not necessary, as the
certificate of
non-resolution of the dispute had not been issued. The issuing of
the certificate, it was submitted, included
making it available to
the CCMA and ensuring that it was stamped in terms of Regulation 8
(2) of the Regulations to the LRA.
The receipt of a signed
certificate did not amount to issuing of the certificate as it had
not yet been stamped and filed with
the CCMA. It is a wrong such as
that contemplated in section 158(1)(a)(iii) which must be set aright
by the Labour Court. So
Mr Howitz submitted for the applicant.
Mr Snider for the
respondent countered, firstly, that this point was not canvassed
before the Commissioner. It was therefore new
material, which could
not found a valid ground of review. Secondly, there was no direct
case law on the point. This court was
being asked in this
application to make such law. It could not be expected of the
Commissioner, therefore, to apply law that
did not exist. Thirdly,
even if the Commissioner erred, his ruling is not a reviewable
irregularity. Fourthly, the cases relied
upon by the applicant in
support of this ground, are distinguishable.
Contrary to Mr Howitz’s
submission, section 158(1)(a)(iii) is not an omnibus to ride
roughshod over well-established principles
of the common law, labour
law and practice. The Commissioner was not called upon to consider
the submissions made in support
of this ground and accordingly made
no decision based on them. It is trite that there is nothing to
review. This ground of review
must therefore be dismissed.
In
Vista University v
Jones and Another (1999) 20 ILJ 939 (LC)
,
Basson J permitted argument about jurisdiction of the CCMA when it
was not canvassed in affidavits but raised for the first time
in
supplementary heads of argument. It is hardly support for Mr
Horwitz’s proposition that a party can on review raise
new
material not presented at the original tribunal.
The applicant has also
not established that the CCMA and the Commissioner committed a wrong
such as that contemplated in section
158 (1) (a)(iii), by calling
for and ruling on the application for condonation. Once a
certificate is completed and signed by
the Commissioner, three
distinct steps are followed: the issuing, service and filing of the
certificate. The issuing of the certificate
does not include its
service, filing or stamping. It is the act which simply makes
available the signed certificate to the party
entitled to receive
it. (
Freestate Buying Association Ltd t/a Alpha Pharm v Saccawu
And Another
(1999) 3 BLLR 223
(LC))
A less formal approach
than that applied in
Chasen v Ritter
1992 (4) SA 323
(SE)
was followed in the
Protea Assurance Co. Ltd v Vinger
1970 (4) SA
663
(O)
where it was held that the issue of summons merely meant
to send or hand out, publish or put in circulation; the
official stamp was not required. Nothing in section 135(5) invokes
the restrictive interpretation that Mr Howitz seeks to place
on it.
(Queenstown Fuel Distributors CC v Labuschagne N.O & Others
(2000) 1 BLLR 45
(LAC)
Whether the certificate
is made available before or after it is filed in the CCMA, is
immaterial. The issuing of the certificate
immediately after the
conciliation is efficient. To require the further steps of filing
and stamping the certificate as prerequisites
for issuing it could
result in delay and costs for the CCMA and the parties.
If Mr Howitz’s
approach were to be followed, parties may not know when a
certificate is issued. They may only become aware
of the filing and
stamping of the certificate after these steps are taken, by which
time prescription could already have started
to run.
Whilst Mr Howitz’s
submission seeks to advance the cause of his individual client, it
is short-sighted as it does not benefit
the vast majority of
litigants who depend on the certificate being issued expeditiously
after conciliation.
Mr Howitz’s
submissions therefore, about sections 135(5) and 158(1)(a)(iii), are
not supported by a proper construction
of these sections, the case
law and the requirements of efficient dispute resolution. The
proposition that condonation was not
required at all, must therefore
fail for the further reason that the certificate was properly issued
on 14 June 2000.
The second ground of
review was that the Commissioner committed misconduct as an
arbitrator in that, he relied upon inadmissable
evidence in
assessing the applicant’s prospects of success on substantive
issues. The respondent’s representative,
C.A.J Potgieter, was
not authorised by resolution to depose to an answering affidavit. A
signed resolution passed by the directors
of Western Platinum
Limited subsequent to the deposition could not, it was submitted,
cure the defect.
Somewhat loftily,
considering that the applicant’s own non-performance within
time limits triggered this application, Mr
Howitz persisted that
when an act has to be done within a fixed time, performance thereof
by an unauthorised agent cannot be
ratified after the lapse of such
fixed time, to the prejudice of another who has acquired some right
or advantage from non-performance
within the fixed time. The right
he referred to was that of having the condonation application heard
on an unopposed basis.
The time limit for
filing the answering affidavit had been fixed by the Commissioner.
Despite the Commissioner having given directions
about the filing of
further affidavits, the respondent deviated from these directions by
filing its affidavit out of time and
by filing further affidavits,
which were not authorised. The Commissioner did not permit the
applicant to respond to the unauthorised
affidavit, nor did he deal
in any way with the third respondent’s non-compliance with the
time limits stipulated in his
directions. So it was submitted for
the applicant.
At
the condonation application hearing, the applicant objected to
Potgieter’s authority to depose to the answering affidavit
as
the resolution was unsigned. This was not vigorously pursued in its
pleadings in this application where he indicated that
he neither
admitted nor denied Potgieter’s authority but put the third
respondent to the proof thereof. Despite this, Mr
Howitz persisted
in arguing this ground of objection.
The
third respondent had handed to the Commissioner a signed resolution
at the hearing. It was proof of the authority that the
applicant
sought. The third respondent explained the logistical difficulties
it had experienced in delivering a signed resolution
simultaneously
with its answering affidavit. The applicant ought to have let the
matter rest there. Instead, Mr Howitz now submits
that the
resolution could not validly operate retrospectively to ratify the
answering affidavit.
The
applicant acquired no vested or substantive right to have his
application for condonation heard unopposed by the Commissioner.
The
general proposition is stated thus in
Finbro
Furnishers (Pty) Ltd v Peimer
1935 CPD 378
at 380
:
“
When
an act has to be done within a fixed time, performance of that act by
an unauthorised agent cannot be ratified by the principal
after the
lapse of such fixed time to the prejudice of another who has acquired
some right or advantage from non-performance within
the fixed time.”
But,
Goldstone J in
Baeck & Co. v Van
Zummeren
1982 (2) SA 112
(W)
disagreed
with Kannemeyer J in
South African
Milling Co (Pty) Ltd v Reddy
1980 (3) SA 431
(SE)
by holding that ratification of an unauthorised act operated
retrospectively to cure the original lack of authority. Harms JA
in
Smith v Kwanonqubela Town Council
1999
(4) SA 947
(SCA)
agreed with Conradie
J in
Merlin Gerin (Pty) Ltd v All
Current and Drive Centre (Pty) Ltd
1994 (1) SA 659
(C),
by accepting that a litigant does not have a right to prevent the
other party from rectifying a procedural defect. Contrary to
Mr
Howitz’s submission, the
Smith
case is hardly support for his proposition.
Irrespective
of whether an application for condonation is opposed or unopposed,
the Commissioner exercises an independent discretion
as to whether
to grant or refuse it. The Commissioner could have dismissed the
application on the applicant’s version alone
as he was not
satisfied with the explanation for the delay.
Mr
Potgieter was the human resources manager. He had personal knowledge
of facts material to the condonation application. These
two factors
enabled him to adduce evidence to the Commissioner. His deposition
was an ordinary act, authority for which was implied
from his status
with the third respondent. The resolution was merely corroboration
of his authority.
(Glofinco v Absa Bank
Ltd T/A United Bank
2001 (2) SA 1048
(W)).
Even if I am wrong about this, retrospective ratification of the
authority of a representative is permissible.
(Kritzinger
v Newcastle Local Transitional Council
2000 (1) SA 345
(N));
National Co-Op Dairies Ltd v Smith
1996 (2) SA 717
(N)).
The
third ground of review was that the Commissioner admitted the
allegations of misconduct in the answering affidavit which were
hearsay as they were not corroborated by affidavits of the
complainants. The contents of the answering affidavit influenced the
Commissioner to find that the prospects of success on the
substantive issues depended on allegations of misconduct. If the
Commissioner had struck out the third respondent’s answering
affidavit, either because it was not authorized by resolution,
or
that it was delivered late, or because it contained hearsay
evidence, then the Commissioner would have had only the evidence
of
the applicant about the substantive fairness of the dismissal.
So it was submitted.
Mr
Potgieter testified about evidence that was led in his presence at
the disciplinary enquiry. That is direct evidence of what
transpired
at the enquiry. He did not purport to be a witness to the actual
acts of misconduct. By insisting that the third respondent
ought to
have delivered affidavits by the complainants and witnesses to the
misconduct it is obvious that Mr Howitz fails to
distinguish between
the relevance of the evidence of the enquiry and that of the
misconduct.
In
my view the underlying reason for the applicant objecting to the
admissibility of the answering affidavit was because it provided
credible evidence of his misconduct.
Mr
Howitz relied on
Van Dyk v Autonet (A
Division Of Transnet Limited) 2000 (21) ILJ 2484 (LC),
as providing the armour against disclosure of the applicant’s
defence.
The
requirement of establishing prospects of success was confirmed in
Melane v Santam Insurance Co. Ltd. 1965
(2) 135 AD
thus:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success, and the importance of the case……if
there are
no prospects of success there would be no point in granting
condonation….. I would add that discursiveness should
be
discouraged in canvassing the prospects of success in the
affidavits.“
The
fact that the onus of proving the fairness of the dismissal rests on
the employer, does not relieve an applicant in a condonation
application of the obligation of proving that it has prospects of
success. It means that the test for prospects of success will
be
applied in the context of a dismissal dispute where the onus of
proving the fairness of the dismissal rests ultimately on
the
respondent employer. The test is not that it will, but could
succeed. It is a preliminary and not final assessment of the
merits
of an applicant’s case.
Van
Dyk
above, was an application for
condonation. Wagly J said the following:
“
[15]
Third respondent's further submission is that the application should
be refused because applicant has
failed to satisfy this court that it
has any prospects of success. In matters such as this, which relate
to unfair dismissal
all that the
applicant is required to satisfy this court about is that he was
dismissed and that the dismissal was unfair
.
The onus of proving the fairness of a dismissal is upon the
respondent. In such an event to require the applicant to allege that
he has good prospects of success is in effect requiring of him to
anticipate what evidence the respondent may come up with and
deal
with that - this cannot be tenable. Had the applicant in a
condonation application been a 'defendant' then consideration of
prospects of success would no doubt play a meaningful role but I do
not consider the factor relating to prospects of success as
a
deciding factor save that an applicant in a matter such as this must
satisfy this court that he was in fact dismissed and that
the
dismissal was based on such grounds over which the court has
jurisdiction and that he believes that the dismissal was unfair.
The
fact that the applicant was in fact dismissed, is not disputed by the
respondent, the fact that this court has jurisdiction
over the
dispute is not in issue. The belief by the applicant that the
dismissal was unfair is self evident, to expect anymore
of an
applicant is as stated earlier to expect the applicant to anticipate
the respondent's case which I believe would be placing
a burden on an
applicant which is not required by the LRA.” (my underlining)
32. The
learned judge expressed a similar view in
Jamela
v Accord (2000) 5 LTD 654 (LC)
. He
accepts that an applicant has to satisfy two requirements:
that
he was dismissed;
that
the dismissal was unfair.
33. I
imply from this that the learned Judge accepts that the requirement
imposed by the Appellate Division in
Melane
v Santam
above, about proof of the
prospects of success, is not dispensed with in an application for
condonation by a dismissed employee.
His further statement that the
onus of proving the fairness of a dismissal is upon the respondent
must be a reference to the
onus when the substantive dispute is
ultimately adjudicated.
34. My
learned brother’s judgment cannot be interpreted as a licence
to remain silent about the prospects of success.
The facts leading
to the dismissal and the reasons why the applicant alleges that the
dismissal was unfair should be pleaded
in such detail as to enable
the court to assess whether,
prima
facie,
there are prospects of
success. An applicant must provide in an application for
condonation such information about the prospects
of success that,
if proved in the main action, it would be entitled to relief. Thus,
if an applicant can anticipate the opposition’s
evidence it
must plead it in its founding affidavits. If it cannot, then it
must deal with it in reply. This approach does
not shift the onus
of proving the fairness of the dismissal away from a respondent
employer.
35. Human
nature is such that a party who genuinely believes that it has been
unfairly treated, would be inclined to vent its
dissatisfaction as
often as it can. Litigants who fail to plead adequately or at all
the prospects of success, may cause the
Court to draw an adverse
inference.
36. The
applicant was aware of the charges against him. The facts
underpinning those charges emerged at the disciplinary enquiry.
He
ought to have anticipated that the third respondent might plead its
version fully. His version should have been set out
in sufficient
detail in his founding affidavit. If he did not anticipate the
contents of the answering affidavit, then he should
have dealt with
the allegations fully in his reply.
37. The
charges included sexual harassment and behaviour not befitting a
senior employee. Detailed evidence of the complainants
and of the
corroboratory witnesses was led at the enquiry. They testified
inter alia
that : The applicant left love notes on his assistant’s
computer in full view of colleagues. This was humiliating. His
conversations often centred around sex, which the assistant found
disconcerting. He persisted in his conduct despite her protests.
She sought a transfer from her workplace. In the presence of
others, he made embarrassing remarks about her body and said that
if she slept with him, she would never sleep with anyone else
again. Waitresses at the Country Restaurant also testified about
his rude and aggressive behaviour.
38. All
of this was pleaded in the application for condonation and the
review. In his founding affidavit, the applicant testified
that he
had indicated to a secretary in his office that he was attracted to
her and that he wanted to ask her out. He had audibly
expressed his
dissatisfaction with the service at the restaurant, which was run
by an independent owner on premises rented
from the third
respondent. In reply, he simply denied all the allegations and put
the third respondent to the proof thereof.
More
than a bare denial was required of the applicant. The
applicant chose not to disclose his defence fully, either because
he
had none, or feared that he might be saddled with a version on oath
that he might want to change later. Either way, he obviously
did not
inspire the Commissioner as a convincing and credible witness.
The
applicants fourth ground of review was that the Commissioner allowed
the third respondent to deliver a replying affidavit
dated the 19
th
April 2001. The Commissioner had directed the third respondent to
file only a supplementary affidavit and the applicant to respond
thereto. So it was submitted.
The
third respondent’s supplementary affidavit was an explanation
of its failure to submit a signed resolution with its
answering
affidavit. The applicant’s response thereto raised matters
other than those relating to the unsigned resolution.
If any
affidavit should have been disregarded, it was the applicant’s
answering affidavit in so far as it dealt with matters
other than
the resolution.
Mr
Howitz called on the Commissioner to disregard the replying
affidavit. He did not ask for a further opportunity to respond
thereto. The Commissioner had a discretion about the procedure to be
followed in the circumstances. It is evident that he referred
to it
without ruling on its admissibility. However, the Commissioner did
not rely on it for accepting the signed resolution
ex
post facto.
About that, the
Commissioner reasoned thus:
“
The
above tug-of war between the warring parties, or their attorneys,
illustrates the over technical legal approach adopted by the
legal
profession, and further illustrates their ignorance of the recently
promulgated ‘RULES REGULATING THE PRACTICE AND
PROCEDURE FOR
RESOLVING DISPUTES THROUGH CONCILIATION AND AT ARBITRATION
PROCEEDINGS,’ which largely regulate the issues
they have
raised. Firstly, it is not only the practice of the Labour Court, but
also the practice in all our High Courts, to allow
for the production
of an original resolution at the commencement of a matter before it,
and does not amount to an irregularity
as such.
I
accept the distinction between the
South
West Africa National Union
matter from
the present one on the argument presented by the third respondent.
The
parties have ignored two further aspects of the above-mentioned
rules, namely my powers to join parties or substitute parties
in
terms of Rule 12 and that I can accept a simple written statement in
terms of Rule 19.6 of the said rules in place of affidavits
in
condonation applications.
That
being the case, the points raised by the parties
(sic)
becomes somewhat secondary, and I believe it would be fair and
equitable to disregard them and to make a finding on the matter
before me, namely the condonation application itself.
Quite
deftly, the Commissioner cut through the peripheral and procedural
issues and proceeded to deal with the substance of the
dispute. As
the applicant introduced the case of
South
West Africa National Union v Tsozongoro & Others 1985 (1) 376
(SWA),
the Commissioner referred to it
by distinguishing it, correctly in my view, from the dispute before
him. For the substance of
the dispute, i.e. whether condonation
should be granted, the Commissioner relied exclusively on the
material contained in the
founding, opposing and replying affidavits
filed before the hearing of the condonation application. The facts
and submissions
supporting the applicant and third respondent are
manifest at paragraphs 3 and 4 respectively of the award.
Mr
Howitz submitted that the Commissioner ought to have found that
there was procedural and substantive unfairness in the dismissal
of
the applicant. The Commissioner, he said, failed to deal at all with
procedural fairness.
The
award manifests that the Commissioner dispensed with the prospects
of success thus:
“
Turning
my attention to Mr Moulds prospects of succeeding should I grant him
condonation for the late filing of his referral, I
remain unconvinced
that he would succeed if I should decide to do so. His simplistic
version, challenged by the other party in
some detail, is not taken
up by him in any meaningful manner, which would leave the allegations
against him undisputed and of such
a nature, that I do not believe he
would succeed in proving his dismissal to be unfair.”
46.
This
reasoning is entirely consistent with the material before the
Commissioner at arbitration. The applicant chose not to take
the
Commissioner into his confidence and disclose his defence fully
either in his founding affidavit or in his reply. Once the
incriminating allegations were detailed in the answering affidavit,
he was compelled to give some explanation, which, if proved
at
arbitration, would have entitled him to relief. No other reasonable
inference could be drawn from his inadequate response but
that he did
not have a valid defence. Substantively therefore, the Commissioner
correctly inferred that the dismissal would have
been justified at
trial.
The
nature of the allegations were such that they over-rode any relief
for procedural unfairness. The fact that the applicant
had less than
one month’s service, could also have counted against the
granting of compensation. This reasoning can be
inferred from the
award even though the Commissioner did not distinguish explicitly
between substantive and procedural fairness.
From his notes, it
appears that he was alive to the complaint of procedural unfairness.
The
grounds of procedural unfairness, were pleaded by the applicant
thus:
“
The
disciplinary proceedings at which I was arraigned were procedurally
flawed since the Chairman failed to follow the Employer’s
Disciplinary Code, read out the charges in the presence of witnesses
later called, had no jurisdiction to entertain the charges
relating
to the alleged incidents at THE COUNTRY COTTAGE RESTAURANT, failed to
halt the proceedings when it appeared that my immediate
superior, Mr
M GCABO who was implicated in the said incidents refused to give
evidence on my behalf or had been influenced by the
employer not to
give evidence on my behalf alternatively since he failed to issue a
managerial order to the said GCABO to give
evidence and the said
GCABO’S evidence was relevant and essential and also since the
Chairman made comments at an early stage
in the proceedings which
indicated that the result of the hearing was pre-ordained and failed
to hold a separate enquiry into sanction.”
Firstly,
no one was prejudiced by the charges not being read out in the
presence of each witness. Secondly, it is trite law that
the third
respondent had jurisdiction in respect of any work–related
dispute even if it arose outside the workplace.
(Van
Zyl v Duhva Opencast Services (Edus) Bpk 1988 (9) ILJ 905).
Certain acts of misconduct were committed in the restaurant situated
in a village for which the applicant had responsibility
as estates
manager. It was also frequented by the third respondent’s
employees. These facts were not disclosed by the applicant.
Thirdly,
the third respondent had no authority to compel anyone to testify
for the applicant. As Mr M Gcabo elected not to testify
for the
applicant, there was nothing that the third respondent could do.
Fourthly, precisely what comments the Chairman
made is not evident
from the record. That “the results of the hearing was
pre-ordained”
(sic)
,
was a conclusion that the applicant came to, without pleading the
facts on which he relied therefor. Fifthly, it is trite law
and
practice in industrial relations that, unlike a criminal trial, a
separate enquiry into sanction is not a pre-requisite for
ensuring
procedural fairness.
From
the aforegoing, it is clear that none of the procedural grounds had
any prospects of success. They were made frivolously
and Mr Howitz
as an attorney ought to have advised the applicant accordingly.
The
Commissioner acknowledged that the period of delay of about 15 hours
was “minimal.” The reason for the delay was
found to be
“not satisfactory” because:
“
Ninety
days is a long time in which to consider whether one wants to proceed
to arbitration after a failed attempt to conciliate
a matter, and to
wait until the end of such period before taking any action is wholly
unsatisfactory. In addition, if Mr Mould
or Mr Howitz had immediately
acted on the 11
th
September 2000, when the referral to arbitration was signed, and had
referred the matter to arbitration, they would have no problems
in
respect of the late filing of this referral. No explanation for such
failure has been tendered, except that the period was miscalculated,
which is contrary to the 90 day limitation.”
On
the basis of this finding alone, the Commissioner could have
dismissed the application
(Chetty v Law
Society Tvl
1985 (2) SA 756
A at 765 E-F).
Having completed the form timeously on 11
th
September 2000, there was no explanation as to why it was not
delivered that day and why the applicant had delayed its delivery.
This reasoning cannot be faulted.
The
fact that the applicant, Mr Howitz and the CCMA were separated by
long distances, was no excuse as the applicant had access
to
telecommunication facilities.
Employed
as he was as a manager, the applicant ought to have experienced no
difficulty in completing the referral to arbitration;
he chose to be
represented by an attorney. He accepted the latter’s advice
that the referral should be drafted in the form
of a combined
summons. These choices cannot be allowed to prejudice the third
respondent.
The
Commissioner made no finding to the effect that the negligence of Mr
Howitz caused the delay because that was not pleaded
in the
application for condonation. In this regard, Mr Howitz and the
applicant were less than frank with the Commissioner.
A
miscalculation by the applicant was, in the discretion exercised by
the Commissioner, unacceptable in the circumstances.
The
condonation application failed therefore, on two legs i.e. the
explanation for the delay and the lack of prospects of success.
I
turn to the issue of costs. The kind of issues that the applicant
pursued is an indication of his belief in the strength or
otherwise
of his case. In this application and in the application for
condonation, the applicant and his attorney were preoccupied
with
technical, formal and procedural issues. They studiously avoided
having to deal with the substance of the dismissal which,
ultimately, is the heart of the matter. They must have
realised therefore that the applicant had little prospects of
success.
Mr
Horwitz raised issues that were long settled in labour jurisprudence
and referred the Court to inappropriate authority.
He ignored
Rule 18 of the Rules of the Labour Court which require “concise
heads of argument on the main points”
to be argued to be
delivered.
The
applicant’s plea that he should not be saddled with the costs
if unsuccessful must be rejected for these reasons.
The
application for review is dismissed with costs.
Pillay D, J