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[2008] ZALCJHB 41
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Hltatswayo v South African Police Service and Others (JR684/06) [2008] ZALCJHB 41 (25 April 2008)
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IN
THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR684/06
DATE:
2008-04-25
In
the matter between
M
Z
HLTATSWAYO Applicant
And
SOUTH
AFRICAN POLICE SERVICE &
OTHERS Respondent
J
U D G M E N T
BASSON,
J:
This is an
application to review and set aside of the arbitration award of the
second respondent (I will refer to the second respondent
as “the
arbitrator”), under the auspices of the Safety & Security
Sectorial Bargaining Council (the first respondent).
The
applicant also seeks condonation of the late filing of the
application to review.
I
will first deal with the application for condonation. It is
trite that an applicant for condonation is seeking the indulgence
of
this court and must therefore show good cause for this court to
exercise a discretion in its favour.
[1]
The applicant for condonation must set out all the facts that are
necessary to enable this Court to determine whether or
not there is
good cause to grant condonation. These facts should be set out in the
founding affidavit supporting the application
for condonation.
In the leading case of condonation applications,
Melane
v Santam
,
1962 (4) SA 531 (AD), the Appeal Court (as it
then was) sets out at pages 532B-E, the various factors that
a Court
must take into account when considering an application for
condonation. They are: the degree of lateness, the explanation
for
the delay, the prospects of success, the importance of the case and
other considerations. It is clear from this decision
in
Melane
(
supra
)
that these factors are interrelated and should not be considered
separately. The approach in the
Melane
-
case, has been
cited
with approval in various decisions of this court and the Labour
Appeal Court. See, for example,
NUM v Council for Mineral
Technology
1999 (3) BLLR 709 (LAC).
A
reasonable and acceptable explanation for the delay is pertinent to
the enquiry as to whether or not condonation should be granted.
Where
no such explanation is forthcoming, no examination of the prospects
of success needs to be undertaken. See also
NUM
& Others v Western Holding Gold Mine
,
1994 (15) ILJ 610 (LAC) at 613D
et
seq
[2]
and
Waverly
Blankets Limited v C Tokoza & Others
,
1999 (20) ILJ 2564 (LAC) at para 11.
[3]
In
other words, if an applicant for condonation does not explain the
default or tenders an unsatisfactory explanation, condonation
will
not be granted. See also
Ferreira
v Silinga
,
1994 SA 271A.
The mere fact that the party has decidedly strong
prospects of success is not in itself sufficient cause to grant
condonation.
See in this regard,
Torwood
Properties (Pty) Ltd v SA Reserve Bank
,
1996 (1) SA 215
(W) at 230H
[4]
The court was also referred to a decision of
Uitenhage
v SA Review
,
2004 (1) SA 292 (SCA) at para [6],
[5]
where the court referred to the kind of detail that an applicant for
condonation should set out in the application for condonation.
It is
stated in this decision that the applicant for condonation must set
out in fair detail the obstacles that it had encountered
or
experienced in complying with the time limits as provided for in the
rules.
In
the present case, the review application was submitted nine months
late. The applicant concedes in his application for
condonation
that this delay is substantial. The essence of the explanation for
the delay is the allegation that the applicant did
not have money to
pay for the services of an attorney to prosecute the application for
review. He explains that his erstwhile
attorney withdrew from
assisting him due to lack of funds. No confirmatory affidavit
from Mr Morotolo is attached. He also
states that he had approached
various other attorneys to assist him and that he also approached a
law clinic to assist him.
No particulars whatsoever are given
of the law clinics that he had approached, nor does the applicant
explain when he approached
the legal clinics and the reasons why the
law clinics declined to assist him. No proof whatsoever of these
efforts are attached
to the papers.
The
applicant then sets out that he had approached his union on
14 January 2007 to assist him. The applicant does not
explain why he only sought the assistance of his union almost one
year after he became aware of the arbitration award. The applicant
also does not explain why he did not approach the Labour Court in
person.
In
the light of the aforegoing, I am of the view that the condonation
application should be refused, on the basis that the applicant
has
not shown that he had exercised diligence and that he had taken the
necessary steps to prosecute the application for review
within the
prescribed time period. The explanation for the delay is extremely
vague and in my view entirely unsatisfactory. In
the premises I am of
the view that the application for condonation stands to be dismissed
on this ground alone.
The
review application
Although
not necessary to do so in light of the aforegoing, I have,
nonetheless in the interest of finality, proceeded to consider
the
review application. Having considered the papers and the submissions
advanced on behalf of both parties, I am of the view that
the review
of the award should also be dismissed. I intend giving very brief
reasons for this decision in light of the fact that
it is not
necessary to consider the application for review in view of the fact
that the application for condonation has been refused.
It
appears from the papers that the parties have agreed that the
arbitrator (the second respondent) need not hear evidence and that
the arbitrator will dispose of the arbitration and the dispute with
reference to the record only. It was further agreed that the
parties
would submit their representations in writing.
The
issue before the arbitrator was whether or not the applicant’s
dismissal was substantively and procedurally fair.
It
was common cause that cargo belonging to Hi Fi Corporation was
hijacked on the R21 on or about 23 October 2002.
It was
further common cause that a certain Mr. Scholz (witness for the third
respondent – the South African Police Service)
had identified
the applicant (Hlatswayo) as the person from whom he had bought the
allegedly hijacked goods. The applicant was
subsequently charged with
misconduct. The first charge was a charge of theft and the second
charge was a charge of possession of
suspected stolen or robbed
property. He was found guilty on the second charge, namely
possession of suspected stolen or robbed
property and was dismissed.
It was essentially the applicant’s case that he was not guilty
of misconduct.
The
arbitrator (the second respondent) accepted in his award that there
was no evidence that the applicant was actively involved
in the
highjacking of the cargo in light of the fact that the driver of the
highjacked vehicle was not able to identify the applicant
as one of
the highjackers. It was, however, the evidence of Scholz that he had
been offered stolen goods by the applicant, whom
he was able to
clearly identify and that he had paid the applicant in cash for the
stolen goods.
Scholz
also testified at the disciplinary hearing that he had taken the cell
number of the applicant in order to place a further
order. The police
arrived a few days later and confiscated some of the goods.
Scholz testified that it was pointed out to
him that the goods were
stolen and that the goods emanated from a hijack a few days earlier.
Scholz was adamant that it was
the applicant who had offered the
stolen goods to him.
Although
it was the applicant’s evidence that he was not guilty as
charged, he admitted that he went to Scholz’s business
and that
he had at least one telephone conversation with Scholz. The
applicant could not explain why Scholz would implicate
him in the
hijack.
The
arbitrator accepted that Scholz was a reliable witness and took into
account that there was no reasonable explanation as to
why Scholz
would have wanted to implicate an innocent person. The arbitrator
concluded that the evidence showed on a balance of
probabilities,
that the applicant did deliver the hijacked cargo or part thereof to
Scholz. He also concluded that it would
be nonsensical to
suggest that the person delivering the goods, was not or could not
have been in possession of the goods.
He therefore concluded
that he was satisfied that the applicant was guilty of misconduct and
that the conduct was serious enough
to warrant a dismissal and that
the penalty (of dismissal) fell within the reasonable band of
penalties available to the employer
in such circumstances.
The
applicant on the other hand submitted that the arbitrator’s
should be reviewed on various grounds. I do not intend repeating
what
these grounds are. Suffice to point out that these grounds are set
out on page 9 of the founding affidavit and that I have
considered
them against the record and the submissions on behalf of both
parties.
The
review test has been laid down by the Constitutional Court in
Sidumo
& Others v Rustenburg Platinum Mines Ltd & Others
2007 (20) ILJ 2405 (CC) where the court stated that the
test is whether or not the decision arrived at by the decision
maker
was one that a reasonable decision maker could not reach?
I
also had regard to a recent, yet unpublished decision by the Labour
Appeal Court in
Edcon Limited
v Pilmar
,
DA4/06,
[6]
where the Labour
Appeal Court held as follows in respect of this discretion:
“
[21]
The so called 'reasonable decision maker test' serves as a basis for
the decision in Sidumo. If the commissioner made
a decision that a
reasonable decision maker could not reach, he/she would have acted
unreasonably which could then result in interference
with the award.
This, in my view, boils down to saying the decision of the
commissioner is to be reasonable. To my understanding
the dictum in
Sidumo is not about shifting from the 'reasonable employer test' in
favour of the so-called reasonable employee test.
Instead, meaningful
strides are taken to refocus attention on the supposed
impartiality of the commissioner as a decision
maker at the
arbitration whose function it is to weigh all the relevant factors
and circumstances of each case in order to come
up with a reasonable
decision. It is in fact the relevant factors and the circumstances of
each case, objectively viewed, that
should inform the element
of reasonableness or lack thereof.”
In
Bato Starfishing (Pty) Limited v Minister of Environmental
Affairs
,
2004 (4) SA 290
(CC), Ncobo, J pointed out that it was
the intention of the LRA that as far as possible, arbitration awards
should be final and
should only be interfered with in very limited
circumstances.
I
have evaluated the evidence presented to the chairperson of the
disciplinary hearing (since it was placed before the arbitrator
by
agreement) and I am of the view that is clear that the arbitrator had
taken into account all the evidence that was presented
and that the
arbitrator then came to a reasonable decision. It certainly is
a decision to which a reasonable decision maker
could have arrived at
in light of the evidence. Put differently, it is not a decision that
no reasonable decision maker could reach.
Insofar
as the applicant had alleged that there was an element of
inconsistency in respect of Mr Mofokeng, who was a co accused
and who was acquitted, I am of the view, if regard is had to the
evidence, that it was reasonable for the chairperson to have
acquitted Mr Mofokeng of the charges against him.
In
the premises, I am of the view that the decision reached by the
arbitrator is one that a reasonable decision maker could have
arrived
at. In the premises the application for review is dismissed.
I
make no order as to costs.
____________________
AC
BASSON, J
REVISED
AND SIGNED ON: 15 July 2009
[1]
See
Saraiva
Construction (Pty) Ltd v Zululand Electrical & Engineering
Wholesalers (Pty)
Ltd
1975 (1) SA 612
(D) at 614H – A: “
It
is clearly necessary for the applicant to furnish an explanation of
his default, and if it to be of any assistance to the Court
in
deciding whether ‘good cause’ has been shown the
explanation must show how and why the default occurred. If such
an
explanation is furnished the correct approach, I think is to
consider all of the circumstances of the case, including the
explanation, for the purpose of deciding whether it is a proper case
for the grant of relief. If it appears that the default
was willful
or was due to gross negligence on the part of the applicant the
Court may well decline, on that ground alone, to
grant the
indulgence sought.”
[2]
“
Condonation
of the non-observance of the rules of this court is not a mere
formality. It is for the appellants to satisfy
this court that
there is a sufficient cause for excusing them from compliance:
Saloojee & another v Minister of Community
Development
1965 (2)
SA 135
(A) at 138E-F. An unsatisfactory and unacceptable explanation
for the delay remains so, whatever the prospects of success on the
merits: cf Chetty v Law Society, Transvaal 1985 (2) SA E
756 (A) at 768A-C. The factors to be taken into account
are the
following: 1 The delay of more than seven weeks is
substantial. The appellants' explanation for the delay
is
unsatisfactory in a number of material respects: (a) No
explanation at all is provided for the delay from 12 February,
when
the determination was made in Pretoria, and 23 February, when a copy
of the determination arrived at NUM's head office in
Johannesburg.
(b) It appears from the affidavit of Masebo that NUM considered the
determination and by 26 February had brought
an application for the
variation of the determination in respect of the successful
applicants. (c) The date of the meeting referred
to in para 8 of
Masebo's affidavit is not given nor is it said who participated in
the meeting. Was it the Welkom branch
of NUM or the branch
committee at Western Holdings?”
[3]
“
[11]
The fact of the matter is that in the absence of any attempt at
justifying the delay which occurred after 10 May 1999, the
employees' prospects of success did not even fall to be considered
(NEHAWU v Nyembezi
[1999] 5 BLLR 463
(LAC) at para [10]; Mziya
v H Putco Ltd
[2002] ZACC 30
;
[1999] 2 BLLR 103
(LAC) at 107A-C;
Zondi & others v President of the Industrial Court &
another
[1997] 8 BLLR 984
(LAC) at 989E-F).”
[4]
“
To
regard a mere belief in the correctness of one's case as being good
cause for a failure to take steps to protect oneself against
the
eventuality that that view is held to be wrong is not tenable. It
has been held in a number of cases that the mere fact that
a party
has a strong case is not of itself sufficient cause to grant
condonation. See, for example, Immelman v Loubser en 'n
Ander
1974
(3) SA 816
(A) at 824B-C, where Muller JA put the J matter in
these terms: 'Redelike vooruitsigte op sukses by appèl
is natuurlik ook 'n belangrike oorweging. Maar hoewel dit 'n
belangrike oorweging is, is dit nie noodwendig in elke geval 'n
deurslaggewende oorweging nie.'
[5]
[6]
One would have hoped that the many admonitions concerning what is
required of an applicant in a condonation application would
be trite
knowledge among practitioners who are entrusted with the preparation
of appeals to this Court: condonation is not to
be had merely
for the asking; a full, detailed and accurate account of the causes
of the delay and their effects must be
furnished so as to enable the
Court to understand clearly the reasons and to assess the
responsibility. It must be obvious that,
if the non-compliance is
time-related then the date, duration and extent of any obstacle on
which reliance is placed must be
spelled out.”
[6]
Now reported as
(2008)
29 ILJ 614 (LAC).