About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2009
>>
[2009] ZALCJHB 38
|
|
Northern Platinum Mines v Commission for Conciliation Mediation And Arbitration and Others (JR825/07) [2009] ZALCJHB 38 (22 July 2009)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD IN JOHANNESBURG
CASE
NO: JR 825/07
In the matter
between:
NORTHERN PLATINUM MINES
APPLICANT
and
THE COMMISSION FOR
CONCILIATION
MEDIATION
&
ARBITRARTION 1
ST
RESPONDENT
ABEL
RAMOLOTJE 2
ND
RESPONDENT
NUM obo OJ
DANIELS
3
RD
RESPONDENT
JUDGMENT
NYATHELA AJ
Introduction
[1]
This is an application for review in terms
of
section 145
of the
Labour Relations Act 66 of 1995
of an
arbitration award issued by the second respondent on 04 January 2007
under case number LP 4321/05.
[2]
The second respondent found in favour of
the third respondent by ordering as follows:
“
2.1
The dismissal of the employee was substantively unfair.
2.2 I order the
employer to reinstate the employee to the position he held prior to
his dismissal, on the same terms and conditions
that prevailed
before.
2.3 The reinstatement
is with effect from 1
st
February 2007
2.4 I further order
the employer to pay the employee his five months salary in the amount
of twenty one thousand, five hundred and
thirty three rand (R21
533-00)
2.5 The amount is to
be paid on or before 15
th
February 2007”.
[3]
The review application was filed outside
the prescribed six weeks time limit.
[4]
The applicant has filed an application for
condonation which is opposed by the third respondent.
[5]
Third respondent has also filed an
application for condonation for the late filing of its answering
affidavit. The said application
will only be considered depending on
the outcome of
applicant’s
application for condonation.
The parties
[6]
The applicant is Northern Platinum Limited,
a company with limited liability, duly registered as such in terms of
the laws of the
Republic of South Africa.
[7]
The first respondent is the Commission for
Conciliation Mediation and Arbitration, a juristic person established
in terms of
section 112
of the
Labour Relations Act 66 of 1995
.
[8]
The second respondent is commissioner Abel
Ramolotje NO, an adult male commissioner of the first respondent. The
second respondent
is cited in his official capacity as Commissioner
who arbitrated the dispute between the applicant and third
respondent.
[9]
The third respondent is National Union of
Mineworkers acting on behalf of Johannes Dennis Daniels, a former
employee of the applicant.
The employee had been employed by the
applicant as a Learner Miner prior to his dismisal.
Application for
condonation
The applicant stated
amongst others the following:
[10]
The arbitration award was issued on 04
January 2007. It came to its knowledge on 05 February 2007.
[11]
Due to the internal administration of
applicant, certain procedures had to be followed before authorization
was granted to proceed
with the application for condonation. The
necessary approval was obtained whereafter the attorneys of the
applicant were instructed.
[12]
Applicant instructed counsel to prepare the
necessary application on 2 March 2007.
[13]
Due to the fact that the above instructions
were made mid-term when both the attorneys and counsel were involved
in running court
cases, the application was only finalised on 29
March 2007.
[14]
Respondents did not suffer any prejudice as
a result of the applicant’s delay in filing the matter.
[15]
The applicant has made out a case for the
relief set out in the notice of motion and the honourable court is
asked to grant the
relief set out in the notice of motion.
Legal
position
[16]
Rule 12(3)
of the Rules of the Labour
Court, provides as follows: “
The
court may, on good cause shown, condone non-compliance with any
period prescribed by these rules”
.
[17]
The Labour has expressed its disapproval of
a practice in which applications for condonation appear to be more of
a general rule
rather than an exception. In
Classiclean
(Pty) Ltd v CWUI (1999) 291 at 293 para 6 –
the LAC stated the following:
“
In
the recent past this court had had to deal with a depressing and
monotonous number of matters where the failure of practitioners
and
the parties to adhere to the rules has come to the fore. In my view,
the rules are drafted in simple, understandable language.
They
provide procedures to deal simply and inexpensibly with problems such
as those that arose in this matter. Failure to adhere
to them will be
viewed with an increasingly jaundiced eye in the future”.
[18]
In
CWIU
v Ryan
(2001) 3 BLLR 337
at 342 para 36,
the
Labour Court per Pillay J held as follows:
“
Of
late proceedings in this court are too frequently prefaced by
applications for condonation. Rather than being an exceptional
procedure, it is fast becoming a standard practice. More oftern than
not, fault rests with the representatives and not the litigants
personally. This is posing an unnecessary burden on the Labour Court
and its diminishing resources. The time has come when such
representatives should not be allowed to go unscathed for their own
sins”.
See
also in this regard,
Darries v Sheriff,
Magistrate’s Court Wynberg & Another
1998 (3) SA 34
(SCA).
[19]
The High court dealt with the issue of
whether negligence by an attorney should serve as a ground to justify
the granting of condonation
in
Salojee &
another v Minister of Community Development 1965(2) SA 135.
At
page 141 (c), the court held as follows: “
There
is a limit beyond which a litigant cannot escape the result of his
attorney’s lack of deligent or the insufficiency
of the
explanation tendered. To hold otherwise might have a disastrous
effect upon the observance of the rules of this court”.
[20]
In
Allround
Tooling (Pty) Ltd v NUMSA
(1998) 8 BLLR 847
(LAC),
the
Labour Appeal Court held that a practitioner’s busy schedule is
not an accepted explanation for a delay in observing the
prescribed
time frames. See also
PPWAWU &
others v AF Dreyer & Co. (Pty) Ltd
(1997) 9 BLLR 1141(LAC)
[21]
The above authorities show that the
granting of condonation should not be treated as a mere formality
since it has adverse implication
of the rules of court and eventually
the efficiency of the court in finalising the matters referred to it.
Thus condonation should
only be granted where an applicant has shown
good cause.
[22]
The factors which should be considered in
determining whether the applicant has shown good cause or not have
been dealt with extensively
in
Melane v
Santam Insurance Company Ltd
1962 (4) SA 531
(A).
However,
the
Melane
test has been amplified by the LAC decision in
NUM
v Council for Mineral Technology
(1999) 3 BLLR 209
(LAC).
[23]
At page 211 para G-H, of the
NUM
v
Council
for Mineral Technology
decision, the
Labour Appeal Court has added a further principle to be considered,
namely, “
that without a reasonable
and acceptable explanation for the delay, the prospects of success
are immaterial and without prospects
of success, no matter how good
the explanation for the delay, an application for condonation should
be refused”.
Analysis
[24]
It is common cause that both parties were
served with the arbitration award on 05 February 2007.
[25]
In the application for condonation, the
applicant stated that the application was made a few days after the
six weeks prescribed
time limit. The applicant’s representative
also argued that the application was filed on 30 March 2007 and is
one and a half
weeks late. In response, third respondent’s
representative argued that the application for condonation was signed
on 10 April
2007 and therefore it could not have been filed on 30
March 2007. I have perused the papers and I agree with the
respondent’s
representative that the application was only filed
on the 10
th
April 2007 and not the 30
th
March 2007.
Degree for lateness
[26]
Although I have not been provided with the
exact period of delay, I am satisfied that both parties were served
with the arbitration
award on 5 February 2007. The six weeks period
for lodging the review application therefore expired on 20 March
2007. The notice
of motion and the founding affidavit were filed with
the Labour Court on 10 April 2007. The period of delay is therefore
about
three weeks.
Reasons for
lateness
[27]
In this matter, the applicant has provided
an explanation for the lateness for the period up to the 30
th
March 2007. The applicant has however not furnished any explanation
for the delay in respect of the period 31 March 2007 to 10
April
2007. It is the applicant’s duty to provide a reasonable and
acceptable explanation for the delay for the full period
for which
the application has been out of time. The applicant has therefore
failed to justify the delay under the circumstances.
[28]
The applicant’s explanation for the
delay for the period 20 March to 30 March 2007 is that there were
certain internal procedures
which needed to be complied with before
authorisation could be obtained to proceed with the application.
Applicant only instructed
attorneys to lodge the application after
its internal procedures have been complied with.
[29]
The applicant has however not explained the
nature of the internal procedures which caused the delay in this
matter. There is further
no explanation as to why the said internal
procedures were not complied with timeously since the internal
procedures appear to
be things within the control of applicant. The
applicant has further not indicated the dates on which the said
internal procedures
were complied with so as to enable the court to
evaluate the extent of the delay properly.
[30]
The applicant’s second explanation
for the delay is that both the instructed attorney and Counsel who
handled this matter
were too busy with other cases since it was
mid-term. The applicant did not give any date on which the attorney
was instructed.
However, it is clear from applicant’s papers
that Counsel was instructed on 02 March 2007. It follows therefore
that since
the applicant only received the award on 05 February 2007,
the applicant was still within the six weeks period for lodging a
review
application when Counsel was instructed to handle the matter.
[31]
In my view, the period for lodging a review
application expired while the matter was in the hands of both the
instructing attorney
and Counsel. The only explanation which has been
provided as to why the attorney and Counsel did not lodge the
application timeously
is because both of them were too busy as it was
mid-term. As pointed out above, the Labour Appeal Court has already
expressed its
disapproval of a tendency by parties and their
representatives to simply disregard the rules of court and eventually
submit an
application for the court to condone non-compliance with
the rules. See in this regard:
Classiclean
(Pty) Ltd v CWUI
and
CWIU
v Ryan (supra).
Rules of court cannot
be observed only when it is convenient for the parties to do so.
[32]
The Labour Appeal Court has already held in
Allround Tooling (Pty) Ltd v NUMSA
(supra)
that a practitioner’s
busy schedule cannot serve as a reasonable explanation for the delay
in complying with the rules of
court. In this matter, the applicant
did not explain why it did not instruct another practitioner who had
time to handle this matter
to lodge the application on its behalf so
that the application should be lodged timeously. Apart from merely
stating that both
the instructing attorney and Counsel were too busy
to lodge the application timeously, applicant has not provided any
indication
of what the busy schedule entailed which could assist the
court in determining whether it was not possible for the chosen
representatives
to lodge the application timeously. Applicant has
further not provided an explanation of the steps which it had taken
to ensure
that the application is lodged timeously save to state it
had instructed an attorney and Counsel who were too busy to handle
the
matter. In my view, both the applicant, the attorney and Counsel
are therefore to blame for the delay in this matter. Applicant
has
therefore not provided a reasonable and acceptable explanation for
the delay in this matter.
[33]
In
NUM v
Council for Mineral Technology (supra),
the
LAC stressed that in the absence of a reasonable and acceptable
explanation for the delay, the prospects of success are immaterial.
As the applicant has failed to provide a reasonable and acceptable
explanation for the delay, it is academic to proceed to determine
whether the applicant has prospects of success on the merits or not.
[34]
In view of the above findings, it is not
necessary to deal with the third respondent’s application for
condonation.
Order
[35]
I make the following order:
(a)
Applicant’s application Condonation
fails
(b)
The application for review is dismissed
(c)
There is no order as to costs.
_____________
NYATHELA AJ
Date of
hearing:
23 April 2009
Date of
judgement:
22
July 2009
Appearances:
For
the applicant:
Adv. Hulley
For the respondent
Adv.
G Bergeuthuin