About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2003
>>
[2003] ZALCJHB 19
|
|
Maseko v CCMA and Others (JR347/02) [2003] ZALCJHB 19 (25 September 2003)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
OF
INTEREST
CASE
NO. JR 347/02
In
the matter between :
VUSI
EPHRAIM
MASEKO APPLICANT
and
CCMA FIRST
RESPONDENT
NKOSINATHI
MASEKO
SECOND
RESPONDENT
TELKOM
S.A. (
LTD) THIRD
RESPONDENT
JUDGMENT
P.
Zilwa. A.J:
[1]
The applicant, a former employee of the Third Respondent, was
dismissed
from the Third Respondent’s employ after a misconduct
enquiry, on 18 June 2001. The charge on which
he was convicted
and dismissed was for misuse of a Company vehicle on 21 and 22 May
2001 without authorization. At the enquiry
the Applicant had pleaded
guilty to such charge.
[2]
An aggravating circumstance that was placed before the presiding
officer
for purposes of assessing the appropriate sanction was that the
Applicant had received a final written warning in September
2000 for
a similar offence, which warning was still valid at the time of the
transgression in issue. This is one of the factors
that led the
presiding officer to impose the sanction of dismissal.
[3]
At the enquiry the Applicant was represented by the Regional
Secretary of his Union (Communication Workers Union), one Mr Kahishi
Mphahlele. After the passing of the sanction the Applicant was
apprised of his right to appeal to the Labour Relations Department
of
the Third Respondent, which right he exercised on 21 June 2001. The
appeal or AinBhouse conciliation meeting@ (as it was termed)
was
proceeded with on 12 July 2001 under the chairpersonship of one
Ms Ursula Dos Santos Nunes, who upheld the dismissal
sanction.
In dismissing the Applicant=s appeal Ms Nunes further informed the
applicant of his right to refer the matter within
30 days of his
dismissal to the Commision for Conciliation Mediation and Arbitration
(CCMA).
[4]
It was only on 16 November 2001 that the Applicant referred the
matter to the CCMA. In referring the matter to the CCMA the
Applicant
also applied for condonation of his late referral of the matter
beyond the prescribed 30 day period.
[5]
In his condonation application to the CCMA the Applicant cited his
reasons for such lateness to be
Adue to appeal@.
[6]
Having been served with the referral documents and the Applicant=s
condonation application the Third Respondent filed with the
CCMA a
notice to oppose the application and an answering affidavit in
response to the condonation application. In such affidavit
the Third
Respondent’s deponent, a Mr M.M.L. Lesela, in dealing with the
lateness of the referral, deposed as follows:
AThe referral form is
dated 15 November 2001. The application is 118 days late. The
applicant has submitted no reason to explain
the late referral. The
Applicant was informed of his right to refer the matter within 30
days from date of dismissal at the representation
meeting.
Furthermore the Applicant was represented by a regional shop steward
of Commercial Workers Union (CWU), who is well vest
(sic) with the
requirements of the Labour Relations Act, at the internal enquiry@
[7]
The applicant never filed any further affidavit in response to the
averments of the Third Respondent=s deponent set out above.
This,
then, was the sum total of the documentation and information put
before the CCMA Commissioner, who is the Second Respondent
herein, at
the time that he had to consider the Applicant=s condonation
application.
[8]
On 6 November 2001 the Second Respondent issued his decision on the
Applicant=s condonation application in writing. It is appropriate
to
set out the decision in its entirety. It reads thus:
AThe applicant claims
that his referral is ninety (90) days late. He attributes the delay
to the appeal process.
Regarding the prospects
of success, he claims that his dismissal was unfair.
The respondent on the
other hand submits that the dispute was lodged 119 days outside the
prescribed time limit. He submits that
the applicant was advised of
his rights. He was also advised to present his appeal to the
Industrial Relations Department. He failed
to act as per the advice.
On prospects of success,
the respondent contends that prospects of success are poor as the
applicant was fairly dismissed.
DISCUSSION.
There seems to be a
dispute of facts regarding the degree of lateness. Be that as it may,
I find same to be high.
The applicant has failed
to give good reasons for the delay, and he does not appear to have
good case.
The application must
therefore fail.
Per, Commissioner
Nkosinathi Maseko
THUS DONE AND SIGNED IN
JHB ON 6 NOVEMBER 2001.”
The
decision was dispatched to both the Applicant and the Third
Respondent on 21 February 2002.
[9]
On 7 March 2002 the Applicant launched the present application. In
terms of his Notice of Motion the Applicant seeks an order
A
that the arbitration award dated 6 November under Case No. GA
255503 B01 be reviewed and set aside@
The Notice of Motion
further reflects that the application is in terms of Section 145 of
the Labour Relations Act (LRA) No 66 of
1995.
[10]
The First and Second Respondent’s filed a notice on 16 April
2002 indicating their intention not to oppose the application,
save
for the costs aspect, but to abide the decision of the Court. On 25
March 2002 the Third Respondent had filed a notice of
intention to
oppose the Application and it also filed its Answering Affidavit on
the same day.
[11]
In drawing the initial application papers the appplicant was
unassisted. On 25 October 2002 the Applicant, having obtained
some
legal assistance, amended his review application . In terms of the
amended Notice of Motion the application was no longer
in
terms of Section 145 of the Labour Relations Act but in terms of
Section 158 (1) (g) of the Labour Relations Act. A further
prayer was
added for the Court to direct the respondents to appoint another
commissioner to conduct fresh condonation application
/ proceedings
in terms of Section 138 of the Act in order to determine the dispute
between the Applicant and the Third Respondent
arising out the of
Applicant=s dismissal. Together with the amended Notice of Motion a
new Founding Affidavit was filed by the
Respondent.
[12]
In the new founding affidavit the Applicant explains his delay in
referring the matter to the CCMA in the following terms:
A5.4.1
DEGREE OF LATENESS
The dispute or matter has
been referred to the CCMA about (3) three months from the 12
th
August 2001 i.e due day for Concialiation referral.
It is my submission that
the degree of lateness is not successive (sic) but reasonable.
5.4.2
THE REASON FOR THE DELAY
It is my submission the
reason for the delay is, inter alia, due to late convening and
outcome of Appeal.
Further delay was
attributed by the fact that the Union representative confirm having
referred the matter whilst my own investigation
revealed otherwise.”
[13]
At paragraph 6 of his new Founding Affidavit the Applicant sets out
the grounds for the review thus:
A
6.
GROUNDS OR BASIS FOR THE REVIEW
The grounds or basis for
the review of the Arbitrator=sdecision are, among other things, that
in making condonation ruling the arbitrator:
6.1
ignored the condonation application or submissions which were
presented by the Applicant,
and /or
6.2
incorrectly made certain factual findings and/ or
assumptions against the
Applicant when he was
not in a position to do
so,
and/ or
6.3
took into consideration unfounded allegation and failed to take into
account the condonation
application by the Application and
accordingly misconceived the nature of the discretion conferred upon
him and failed to apply
his mind properly, fairly and reasonable,
and/or
6.4
under-emphasise (sic) and /or disregarded the Applicant
condonation
and/or
6.5
failed to resolve the dispute between the Applicant and the third
Respondent , due to the
failure in exercising his function
fairly,
properly and reasonably, and /or
6.6
committed gross irregularity whilst perfoming his function as an
arbitrator and further
failed to convene the Condonation hearing thus
enabling the Applicant to present full condonation details”.
[14]
The Third Respondent also filed a new Answering Affidavit in response
to the Applicants new Founding Affidavit.
[15]
In argument before me Mr Mphahlani, who appeared for the Applicant,
stated that the main thrust of his argument was that the
Second
Respondent erred in making a ruling on the condonation application
without getting proper information before him regarding
the reasons
for the Applicant’s late referral of his matter to the CCMA.
The Applicant=s terse statement explaining the delay
in condonation
application,
Adue to appeal@
, amounted to no explanation at
all, so argued Mr Mphahlani. On the information before him the Second
Respondent was correct in
finding that A
the Applicant has
failed to give good reasons for the delay
@, but then it was
incumbent upon him to solicit such reasons from the Applicant by
convening a hearing of the parties= oral evidence
before making his
ruling, submitted Mr Mphahlani. Upon being requested to refer the
Court to relevant legal authorities in support
of his argument, Mr
Mphahlani could not. He only contented himself by seeking refuge in
some CCMA document dated 03/12/01. Paragraph
3 of such document
provides as follows:
AIn terms of the Labour
Relations Act, section 191(2) the applicant is required to apply for
condonation to the commission because
the matter was referred to us
outside the statutory time limit of 30 days. A commissioner will
consider the application and make
a ruling, or convene a hearing and
then make a ruling@.
[16]
Mr Mphahlane argued that because of the dearth of an explanation for
the delay in the Applicant=s condonation application the
Second
Respondent was obliged to convene a hearing before making his ruling
as the document provides. His failure to do so
constitutes an
irregularity in his actions, argued Mr Mphahlani.
[17]
With regard to the issue of the prospects of success on the merits,
which the Second Respondent in his ruling had found
to be not
good, Mr Mphahlani argued that despite the Applicant=s plea of
guilty to the charges against him in the hearing
, this does not mean
that his prospects of success are bad. His plea of guilty could have
been meant to save time in the
hearing and to indicate remorse
on his part, submitted Mr Mphahlani.
[18]
In response to Mr Mphahlani=s argument Mr Basson, who appeared for
the Respondent, argued that the onus is on an applicant
for
condonation to show good cause to merit condonation of a late
referral, not on a commissioner to solicit or seek such good
cause on
his own. He further argued that in the light of the Applicant’s
failure to show the requisite good cause and to
furnish a tangible
explanation for his delay in his condonation application papers, the
commissioner had no duty to do anything
else but to dismiss the
application. I find a lot of merit in this argument.
[19]
Factors that need to be taken into account in condonation
applications have been set out in a number of decided cases, one
of
which is the well-known case of MELANE v SANTAM INSURANCE
1962 (4) SA
531
(A). Such factors are,
inter alia,
: the degree of lateness,
the reasonableness of the explanation given for the lateness, the
prospects of success on the merits and
the importance of the case.
The respondent=s interest in finality must also not be overlooked.
See also MLABA v MASONITE ( AFRICA)
LIMITED & OTHERS
(1998) 3
BLLR 291
( LC); PEP STORES (PTY) LTD v LAKA N.O. & OTHERS
(1998)
9 BLLR 952
(LC); TRANSNET LTD v HOSPERSA & ANOTHER (1999) ILJ
1293 (LC); POTGIETESRUS PLATINUM MINE LTD v CCMA & OTHERS (1999)
20
ILJ 2679 (LC).
[20]
The MELANE test has also been accepted and approved by the Labour
Appeal Court in NATIONAL UNION OF MINEWORKERS & OTHERS
v WESTERN
HOLDINGS GOLDMINE (1994) 15 ILJ 610 and FOSTER v STEWART SCOTT INC
(1997)18 ILJ 376 (LAC).
[21]
The Labour Appeal Court has held that condonation in cases of
disputes of individual dismissals will not be easily granted.
The
excuse for non- compliance has to be compelling, the case for
attacking a defect in the proceedings has to be cogent and the
defect
has to be of a kind which would result in the miscarriage of justice
if it were allowed to stand. See QUEENSTOWN DISTRIBUTORS
CC v
LABUSCHAGNE N.O & OTHERS (2OO0) 21 ILJ 166 (LAC); A. HARDRODT
(SA) (PTY) LTD v BEHARDIEN & OTHERS (2002) 23 ILJ 1229
(LAC).
[22]
An anlysis of the facts
in casu
and the application of the
principles set out in the authorities referred to above leave me
unconvinced that there is any merit
to this application. As already
stated, the Applicant was dismissed on 18 June 2001. His appeal
against such dismissal was heard
on 12 July 2001. On the same date he
was advised of his right to refer the matter to the CCMA within 30
days of his dismissal,
yet it was only on 16 November 2001, almost 5
months after his dismissal, that he referred the matter to the CCMA.
Even after the
finalisation of the internal appeal it took him more
than 4 months before referring the matter to the CCMA. This means
that even
the terse reason furnished for the delay,
Adue to
appeal@
, cannot be correct. The contention that the Commissioner
had a duty to solicit reasons for the delay from the Applicant by
convening
a hearing wherein he would solicit such reasons, after the
latter had failed to furnish the reasons as required in the
condonation
application, has no merit in my view. I do not understand
the relevent section of the Labour Relations Act to be impossing any
such duty on the Commissioner. The onus lies foursquare on the
Applicant=s shoulders to furnish the reasons, and he fails to do
so
at his own peril. I can also find no fault with the Commissioner=s
finding that the Applicant does not appear to have a good
case on the
merits.
[23]
In the result, I make the following order:
(i)
The application is dismissed;
(ii)
There will be no order as to costs.
__________________
P.
ZILWA
ACTING
JUDGE OF THE LABOUR COURT
APPEARANCES
FOR
THE APPLICANT
:
Mr Mphahlani
FOR
THE RESPONDENT
:
Mr Basson
DATE
ARGUED
: 9 September 2003
DATE
OF JUDGMENT
:
25 September
2003