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[2009] ZALCJHB 24
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Security Patrol Experts CC v Commission for Conciliation Mediation And Arbitration And Others (JR1010/07) [2009] ZALCJHB 24 (14 January 2009)
IN
THE LABOUR COURTS OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
CASE NR: JR1010/07
In
the matter between
SECURITY
PATROL EXPERTS
CC Applicant
and
COMMISSION FOR
CONCILIATION,
First
Respondent
MEDIATION
AND ARBITRATION
COMMISSIONER
KC
MOODLEY Second
Respondent
LYLE
DENNIS
NESBITT Third
Respondent
JUDGEMENT
AC
BASSON, J
[1]
This was an application in terms of section
158(1)(g) of the Labour Relations Act (“the LRA”) to
review and set aside
a jurisdictional ruling handed down by the
Second Respondent (hereinafter referred to as “the
Commissioner”) on 17
January 2006 under case number
GAJB6062/05. The Applicant also applied for condonation for the late
filing of the review application.
[2]
The Applicant seeks to review the
jurisdictional ruling on the following grounds: Firstly that the
Commissioner had committed a
material error of law and thereby a
gross irregularity in the conduct of the proceedings in concluding
that the Third Respondent
(hereinafter referred to as “Nesbitt”)
was an employee of the Applicant. Secondly, the Commissioner had
failed to properly
apply his mind to the relevant evidence and
considerations placed before him and thereby exceeded his powers as a
Commissioner
in concluding that the CCMA had the necessary
jurisdiction to arbitrate the dispute between the Applicant and
Nesbitt. More in
particular, it was submitted that the Commissioner
(i) failed to consider the oral evidence and the written argument led
by the
Applicant’s representative; (ii) failed to consider the
documents submitted by the Applicant in support of the point
in
limine
; (iii) unduly delayed the
ruling. Argument was heard on 4 August 2005. The ruling was only made
on 17 January 2006.
POINTS
IN LIMINE
BEFORE THE CCMA
[3]
At the commencement of the proceedings
before the CCMA on 4 August 2005 the Applicant raised two points
in
limine:
(i) Firstly, the CCMA had no
jurisdiction to preside over the matter as Nesbitt (the Applicant
before the CCMA) was not an employee
of the Applicant. (ii) Secondly
it raised the point that should the CCMA rule that Nesbitt was an
employee of the Applicant, the
CCMA had no jurisdiction as the
termination of the relationship between the parties was based on
operational requirements affecting
a number of employees. No oral
evidence was led in support of the points
in
limine
and the points
in
limine
were dealt with with reference
to the written submissions submitted on behalf of the respective
parties.
CONDONATION
APPLICATION
[4]
Before turning to the merits of the review,
it is necessary to first consider the application for condonation for
the late filing
of the review application.
[5]
It is common cause that the CCMA only
issued its ruling on 17 January 2006 despite the fact that the
Commissioner had heard argument
in respect of the points
in
limine
as far back as 4 August 2004.
The Applicant alleges in its papers that it only became aware of the
ruling when it attended the
arbitration hearing on 22 March 2007 and
that it therefore applies for condonation to the extent that is
necessary. No explanation
for the delay is tendered, no indication of
the length of the delay is tendered nor is any explanation tendered
in respect of the
steps that the Applicant and/or his representative
took in order to ascertain whether an award was issued by the
Commissioner.
In all respects the application for condonation is
defective and should be dismissed on this basis alone. I will
return to
these points hereinbelow.
[6]
As already pointed out in the aforegoing
paragraph, there is very little before this Court in respect of the
circumstances or reasons
for the delay as the Applicant merely
applies for condonation to the extent that it may be necessary. The
heads of argument filed
on behalf of the Applicant also fail to deal
with the aspect of condonation. The supplementary affidavit and the
replying affidavit
filed on behalf of the Applicant also do not take
the matter any further.
[7]
Nesbitt disputes the allegation that the
Applicant only became aware of the ruling of the Commissioner on 22
March 2007 and places
the following facts before the Court:
(i)
Even if the First Respondent (“the
CCMA”) did not fax the award to the Applicant, the previous
attorney of record faxed
a copy to the Applicant’s employer’s
organisation on 24 January 2006. This is confirmed by the
transmission report
which also confirms that five pages were
successfully transmitted.
(ii)
On 24 January 2006, the previous attorneys
also faxed through the award to the Applicant’s offices. This
is also confirmed
by the transmission report. The transmission report
further confirms that five pages were successfully transmitted to the
Applicant.
(iii)
A letter was addressed to the Applicant’s
employer’s organisation on 26 June 2006. In this letter
reference is specifically
made to the existence of the arbitration
award.
(iv)
The Applicant’s employer’s organisation replied on 28
June 2006 confirming receipt of the letter dated 26 June
2006. It is
instructive that this letter does not state that the award has not
been received by the employer’s organisation.
It does not even
express surprise as to the existence of such an award.
(v)
On 15 September 2006, after the Applicant’s employer’s
organisation’s mandate was terminated, Nesbitt’s
attorney
wrote directly to the Applicant and raised the issue of previous
correspondence.
[8]
It is, in my view, clear from the papers
and the facts set out in the previous paragraph that the Applicant
and its representatives
were aware of the award in January 2006. At
the latest, they should have been aware of the award in February
2007. In an urgent
application launched to postpone the further
arbitration hearing of the matter, the Applicant concedes that the
CCMA (on 14 February
2007) issued a further date for the arbitration
hearing (22 March 2007). It is indeed strange why the Applicant had
made no enquiries
as to the outcome of the point
in
limine
at that stage. In fact, no
explanation is tendered as to why no enquiries were made between 14
February 2007 and 22 March 2007.
What is particularly strange about
the circumstances is the fact that the Applicant should have known
that the point
in limine
must have been dismissed by the Commissioner hence the notice of set
down for the arbitration. Put differently, if the point
in
limine
was upheld, in other words, if
the Commissioner had upheld the point that Nesbitt was not an
employee, a notice of set down for
the arbitration would not have
been issued.
[9]
In the replying affidavit the Applicant
merely denies the allegations and states that the letters and proof
of telefaxing were not
conclusive proof that they were received. In
respect of the replying affidavit, it must, however, be pointed out
that the replying
affidavit is out of time. No application for
condonation has been filed in respect of the replying affidavit.
[10]
It is trite that in order for an
application to be properly before this Court, it has to be brought
timeously. Where an application
is not brought timeously, the review
application should be accompanied by an appropriate application for
condonation for the late
filing thereof. It is also trite that an
application for condonation should comply with the requirements for
such an application
for condonation as set out in
Melane
v Santam Insurance Co Ltd
1962 (4) SA
531
(AD):
"
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
is the
degree of lateness, the explanation therefore, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what should
be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects of success may tend
to compensate for a
long delay. And the respondent's interests in finality must not be
overlooked."
[11]
In the founding affidavit the Applicant
merely alleges that it only became aware of the award on 22 March
2007 which is the day
on which the arbitration was set down. The
supplementary affidavit does not take the matter any further nor does
the replying affidavit.
It is trite that the founding affidavit must
deal with the various considerations necessary in order to
substantiate an application
for condonation. They are: the degree of
lateness; the explanation therefore; the prospects of success on the
merits; the importance
of the case; and other considerations. None of
these considerations are addressed in the founding affidavit, the
supplementary
affidavit nor in the replying affidavit (although I
must point out that a case must be made out in the founding affidavit
or, at
the very least, the supplementary affidavit). Not even the
heads or argument deal with the issue of condonation.
[12]
In light of the aforegoing, the application
for condonation is dismissed. I can find no reason why costs should
not follow the result.
ORDER
The
application for condonation is dismissed with costs.
_________________
AC
BASSON, J
Date
of judgement:
14 January 2009
For
the Applicant
: Blake Bester Inc
For
the Third Respondent:
Adv MA
Lenox instructed by Dogulin Shapiro & Da Silva In