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[2009] ZALCD 35
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Independent Municipal And Allied Union obo Zungu v South African Local Government Bargaining Council and Others (802/08) [2009] ZALCD 35 (15 December 2009)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT DURBAN
CASE
NO: 802/08
Reportable
In the matter between:
INDEPENDENT MUNICIPAL
AND ALLIED UNION
obo EM
ZUNGU
APPLICANT
and
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL
FIRST RESPONDENT
BS HLELA
N.O.
SECOND RESPONDENT
ETHEKWINI
MUNICIPALITY
THIRD RESPONDENT
JUDGMENT
Conradie
AJ
Background
1.
In this matter the Applicant, a
registered trade union, has brought an application on behalf of its
member, Mr Zungu, in which it
requests this court to review and set
aside the award of the Second Respondent under case number
EMD020861. I will refer
to this as the Review Application in
this judgement.
2.
The Applicant’s Review Application is approximately 9 weeks out
of time. An application for condonation has been
filed with
this court by the Applicant. I will refer to this as the
Condonation Application.
3.
When the matter was heard I requested counsel for the parties to
address me on the Condonation Application. I also heard
them on
the Review Application on the basis that I would have regard to these
arguments in the event that the Condonation Application
succeeded.
Facts
Relevant to the Condonation
4.
The Applicant received the
arbitration award on 20 August 2008.
5.
In terms of section 145(1)(a) of the Labour Relations Act the
Applicant was therefore required to apply for the review of the
award
within 6 weeks of the award being served on it. In the
circumstances of this case this meant that the review application
should have been filed with this court by no later than 1 October
2008.
6.
The Review Application was, however, only filed on 8 December 2008,
which is closer to 10 weeks late according to my calculation.
7.
The Applicants explanation for the delay consists of the following:
7.1.
After it received the award on 20 August
2008 it was tabled at the Applicant’s Dispute Resolution
Committee meeting held on
17 September 2008.
7.2.
The Dispute Resolution Committee determined
that a formal opinion should be sought from the Applicant’s
attorneys before proceeding
with any review application.
7.3.
The Applicant’s attorneys were
contacted and instructed to provide a written opinion on 16 October
2008.
7.4.
Upon receipt of the opinion from the
attorneys the Applicant instructed them to prepare the necessary
papers for filing the Review
Application. These papers were
prepared during the first week of November 2008.
7.5.
In order to finalise the review papers a
consultation was necessary with Mr Zungu. The Applicant
experienced difficulty in
contacting Mr Zungu as he had returned to
his homestead. Mr Zungu was eventually contacted after about
two weeks via his
brother.
7.6.
Mr Zungu consulted with the attorneys on 20
November 2008, whereafter the review papers were finalised and filed
with this court
on 8 December 2008.
8.
As far as prospects of success are
concerned the Applicant states that it is advised that these are good
as is apparent from the
substantive merits of the matter which are
set out in the founding affidavits in support of the Review
Application.
9.
As far as the balance of convenience is
concerned the Applicant contends that the delay is not excessive and
that the Third Respondent
will suffer no prejudice “
should
this matter be permitted to be dealt with in the ordinary course”.
Dealing with Review
Applications
10.
In dealing with review applications this
court is specifically empowered by section 145(1A) of the Labour
Relations Act to condone
the late filing of a review application on
good cause shown.
11.
In
NUM
v Council for Mineral Technology
[1999] 3 BLLR 209
(LAC)
[1]
it was stated that in considering an application for
condonation a 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 parties. Among the facts usually relevant
is
the degree of lateness, the explanation therefore, the prospects of
success and the importance of the case. According
to the court
these facts are interrelated and are not individually decisive.
What is needed is an objective conspectus of
all the facts. A
slight delay and a good explanation may help to compensate for
prospects of success which are not strong.
The importance of
the issue and the prospects of success on the other hand may tend to
compensate for a long delay. These
principles referred to by
the Labour Appeal Court are consistent with the approach adopted in
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A)
and the long line of cases thereafter.
12.
In the Num case the Labour Appeal Court
also pointed out that there is a further principle which is applied
and that is 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.
Explaining the Delay
13.
In explaining the reason for the delay it
is necessary for the party seeking condonation to fully explain the
reason for the delay
in order for the court to be in a proper
position to assess whether or not the explanation is a good one.
This in my view
requires an explanation which covers the full length
of the delay. The mere listing of significant events which took
place
during the period in question without an explanation for the
time that lapsed between these events does not place a court in a
position to properly assess the explanation for the delay. This
amounts to nothing more than a recordal of the dates relevant
to the
processing of a dispute or application, as the case may be.
14.
In the matter before me the founding
affidavit in support of the Condonation Application explains the
delay as follows:
“
Satisfactory
Explanation for the Delay
4. Following receipt
of the Arbitration Award, such Award was tabled at Dispute Resolution
Committee (“DRC”) meeting
of the Applicant’s Trade
Union on 17 September 2009.
5. It was determined
that a formal Opinion should be sought from the Applicant’s
Legal Advisors, prior to proceeding with
any Review Application.
6. Our Attorneys were
contacted and instructed to provide a written Opinion on or about 16
October 2008.
7. Upon receipt of the
Opinion recommending that the matter be Reviewed, we instructed our
Attorneys to prepare the necessary Review
papers for filing.
8. Such documents were
prepared during the first week of November 2008.
9. In order to
finalise the Application Papers it was imperative that consultation
be undertaken with Mr Zungu. I experienced substantial
difficulties
in contacting Mr Zungu, and having him attend our offices in order to
finalise the Review papers. The reason for this
was that Mr Zungu had
returned to his homestead having had no income in Durban. I contacted
Mr Zungu’s brother telephonically
and requested that he
personally proceed to Mr Zungu’s residence and inform Mr Zungu
that he needed to contact the Union
offices with a view to a meeting.
It took approximately two weeks for the message to reach Mr Zungu and
for him to contact our
offices. Upon his contacting our offices, I
explained the need for a consultation to Mr Zungu, and made
arrangements for him to
meet with our Legal Representatives.
10. Mr Zungu consulted
with our Legal Representatives on 20 November 2008, whereafter the
Review papers were finalized and duly
served upon this Honourable
Court, on 8 December 2008.”
15.
From the above explanation it is apparent
that:
15.1.
The Applicant does not explain to the Court
why the award had to be tabled at the Dispute Resolution Committee on
17 September 2008.
Relevant information in this regard may have
included an explanation of the reason why this committee exists, the
frequency of
these committee meetings, the fact that no litigation
can be launched without its approval, and if so, whether or not any
approval
from the committee which may be required can be dispensed
with in any circumstances. In argument, Mr Smithers who
appeared
on behalf of the Applicant submitted that I should accept
that as an organisation the Applicant cannot just engage in
litigation
and that there is obviously good reason as to why the
committee exists. The problem of course is that none of this
appears
from the affidavits.
15.2.
There is no explanation as to why it took
about one month from the Dispute Resolution Committee meeting for the
Applicant to refer
this matter to its attorneys. Was this
because the person tasked with dealing with the matter was
unavailable or had other
commitments or was not aware of the time
periods for filing a review application? This critical period
is simply not explained
to this court in the founding affidavit.
An attempt is made in the replying affidavit to explain what happened
during this
period. This is however as a result of the Third
Respondent stating in its answering affidavit that the Applicant has
failed
to explain why its attorneys were only instructed to provide a
written opinion on 16
th
October 2008, when a decision to instruct the attorneys was taken on
17 September 2008. The Applicant’s reply to this
is that
“
The period between the decision
being taken by the DRC, and the instruction being given to our
attorneys is less than four weeks.
Legal argument will be
advanced at the Hearing of this matter, that such period is not
unreasonable.
Mr Zwane who
deposed to the affidavits further states that “
In
my capacity a Shop-Steward I am daily concerned with approximately 8
matters. I had prioritised the instruction to our
attorneys, in
relation to the other matters, which I was at that time concerned.
Having instructed our attorneys a consultation
was arranged”
.
15.3.
No detail is given as to what information
was required from Mr Zungu for purposes of the Review Application and
why this information
was so critical that the application could not
proceed without his input. This particularly in light of the
fact that the
Applicant assisted Mr Zungu at the arbitration and must
have been able to provide the required information. Further,
reviews
are generally of a “technical” nature and as such
do not necessarily require information from the parties to the
arbitration.
In addition, and very importantly, any uncertainty could
have been cleared up after the record was received from the First
Respondent
and transcribed. The Rules of this court anticipate
such difficulties and therefore allows an applicant in a review
application
to file a preliminary founding affidavit and to
supplement this affidavit if need be after the record of the matter
has been received
and perused.
15.4.
There is no explanation in the founding
affidavits as to why it took from 20 November 2008 when the
consultation with Mr Zungu was
held to 8 December 2008 to file the
application with this court.
16.
Certain of these issues are picked up in
the Applicant’s replying affidavit but even then the level of
detail which in my
view is required is still not satisfied. In
this regard there is still no explanation regarding the “workings”
of the Dispute Resolution Committee”.
17.
In his founding affidavit in support of the
Review Application Mr Zwane states that “
my
Founding Affidavit was deposed to on 2 December 2008 and, whereafter
our Attorneys of Record served and filed the application
without
delay.”
I am of the view
that this statement is without merit if one considers that it took
from Tuesday 2 December 2008 until Monday
8 December 2008 for the
application to be served on the respondents and filed with this
court. It also strongly suggests
to me that the Applicant was
not possessed with any sense or urgency to comply with the time
periods required of it by the Labour
Relations Act.
18.
A confirmatory affidavit from Mr Zungu is
attached to the replying papers in response to the Third Respondent
having raised this
issue in its answering papers. No
explanation is given as to why this affidavit was not filed along
with the founding affidavit
in the condonation application as it
ought to have been.
19.
Based on the above I am of the view that
the Applicant has failed to adequately explain the reason for the
delay. If anything
the explanation that has been offered leaves
one with a sense that the Review Application was not given the
priority which was
required in order to ensure compliance with the
time periods in the Labour Relations Act.
20.
In the absence of a satisfactory delay I
see no need to evaluate the prospects of success. As sated in
the cases referred
to above, in the absence of a reasonable or
acceptable explanation for the delay, the prospects of success are
immaterial.
Should Mr Zungu be
prejudiced?
21.
There is however an additional
consideration in this matter which needs to be dealt with. That
is the contention by Mr Smithers
than even if I find that the
Applicant has been tardy in launching the review application, Mr
Zungu should not be punished for
the Applicant’s failing.
22.
While courts have traditionally
demonstrated their reluctance to penalise a litigant on account of
the conduct of his representatives
they have at the same time
emphasised that there is a limit beyond which a litigant cannot
escape the results of his representatives
lack of diligence or the
inefficiency of the explanation tendered (
NUM
v Council for Mineral Technology
supra
at 211 [10];
Saloojee and Another NNO v
Minister of Community Development
1965
(2) SA 135
(A) at 140H – 141D;
Buthelezi
& Others v Eclipse Foundries Ltd
1997 18 ILJ 633 (A) 638I – 639A.) These cases referred to
are in the context of an attorney failing to comply with
stipulated
time periods.
23.
In this case it is a trade union which has
failed to process a review on behalf of a member timeously.
There is however no
affidavit before this court from Mr Zungu setting
out why he should not be prejudiced because the Applicant has not
complied with
the six week period. As mentioned above, it was
only during argument that Mr Smithers contended that Mr Zungu should
not
be prejudiced.
24.
It appears that Mr Zungu was
content with the Applicant processing this matter. After his
dismissal he returned to his homestead.
There was an onus on
him to enquire from his union what the Review Application entailed
and what was required of him. It
does not appear that he kept
in contact with the Applicant about his case. When the
Applicant needed to speak to him they
had to get word to him through
his brother. I would imagine that they indicated to him that it was
urgent that he contact the union
about his case and come to Durban as
soon as possible. When he met with the Applicant and the
attorneys it was again incumbent
on him to get details of his case
and to enquire what was to be done about the fact that they were out
of time. It is clear
that none of this has taken place
otherwise an affidavit would have been produced explaining why Mr
Zungu should not be penalised.
25.
Trade unions exist for the very reason of
looking after the interests of their members. When employees
join a trade union
they entrust responsibility for issues relating to
their employment and the termination thereof to the trade union. In
the circumstances
of this relationship I believe that there is an
even greater limit on the extent to which a trade union member can
escape the results
of their trade unions lack of diligence. Trade
unions have a vested interest in the processing and outcome of
disputes referred
on behalf of their members. Their very
existence is about acting in the interests of their members.
Members for their
part are happy to entrust their labour relations
affairs to their union. This case is a good example of where
the trade union
has been involved with the dispute from the
inception. It represented Mr Zungu at the arbitration and as
the Applicant in
this matter have deposed to the affidavits in
support thereof. It engaged the attorneys to provide an
opinion and to
launch the Review Application. Based on the
papers the involvement of Mr Zungu was only towards the end when the
papers had
to be finalised. In these circumstances a member
such as Mr Zungu would have to put up good reasons as to why he
should be
allowed to escape the consequences of the union’s
lack of diligence in launching the Review Application timeously.
In this case there is no explanation at all before this court from Mr
Zungu that would enable it to come to his assistance.
The
Condonation Application must according fail.
26.
As far as costs are concerned I can
see no reason why the Third Respondent should not be entitled to its
costs in this matter.
27.
In the circumstances it is ordered that
27.1.
The application for condonation is
dismissed
27.2.
The Applicant is to pay the Third
Respondent’s costs.
____________
Conradie
AJ
Date
of Hearing: 10 December 2009
Date
of Judgment: 15 December 2009
Appearances:
For
the Applicant: Adv M Smithers instructed by Futcher Attorneys
For
the Respondent: Adv L Naidoo instructed by Shepstone and Wylie
[1]
at
page 211.