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[2010] ZALCJHB 39
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Padayache v Munnik Basson Dagama Attorneys and Others (JR1153/08) [2010] ZALCJHB 39 (26 January 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
NOT
REPORTABLE
CASE
NO: JR1153/08
In
the matter between:
PADAYACHE
BIANCA ODELIA
APPLICANT
and
MUNNIK
BASSON DAGAMA
ATTORNEYS
1
ST
RESPONDENT
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
2
ND
RESPONDENT
ROBERT
MUDAU
N.O.
3
RD
RESPONDENT
JUDGMENT
Molahlehi
J
Introduction
[1]
This
matter concerns two review applications that have been filed by both
parties respectively. The first review application which
was filed by
first respondent in the present matter is not before this court for
consideration. The matter that is before this
court for consideration
is the counter review application filed by the applicant.
[2]
The
present review application for which the applicant is seeking
condonation for its late filing is confined to seeking an order
reviewing and setting aside the arbitration award issued under case
number GAJB32185-07 dated 21
st
April 2008, in terms of which the third respondent (the commissioner)
found the dismissal of the applicant to have been substantively
fair
but procedurally unfair.
Background
facts
[3]
The
applicant is the former employee of the first respondent, a firm of
attorneys. Prior to her dismissal the applicant was employed
as a
letter’s administrator in the debt collecting department of the
first respondent.
[4]
On
the 7
th
September 2007, the employee was charged with misconduct consisting
of 4 (four) charges relating to failure to comply with certain
specific duties relating to proof reading and activation of bulk
letters of demand on the employer’s IT system.
[5]
On
the 2
nd
day of the three day disciplinary hearing the employer successfully
sought an amendment categorizing the misconduct of the applicant
as
gross negligence. The employee opposed the amendment. Before
proceedings with the hearing after granting the amendment the
chairperson of the disciplinary offered both parties an adjournment
to consider their positions and if necessary to present further
evidence that may be relevant in relation to labelling of the charges
as gross negligence. Both parties chose to continue with
the hearing.
The employee was found guilty of 2 (two) of the 4 (four) charges of
misconduct and was dismissed.
The
reasons for the delay
[6]
It
is common cause that the delay in filing the counter review
application was over 8 (eight) weeks outside the prescribe 6 (six)
weeks period as prescribed by
section 145
of the
Labour Relations Act
66 of 1995
. The reasons for the delay according to the applicant is
that after receipt of the arbitration award she approached her
current
attorneys of record and sought their legal advise on the
issue of the finding of the commissioner that her dismissal was
substantively
fair. At that stage according to her the attorneys
advised that she had two options in dealing with the matter,-one
being to resist
the first respondent’s review application and
the second being to launch the counter review application in which
she would
challenge the substantive fairness of the award.
[7]
As
concerning the payment of the fees the attorneys advised that the
applicant could enter into a contingency fee arrangement with
them or
pay the fees directly herself. She opted for the option of having to
pay the fees directly. She however had difficulties
in raising the
funds to cater for the fees, resulting in the delay in instructing
the attorneys to file this application. She managed
to raise the
required funds at the end of December 2008.
[8]
As
concerning the prospect of success the applicant contended that the
commissioner in his award made no reference to her version
which was
presented during the arbitration proceedings. She in this respect
further contended that the commissioner’s finding
that the
dismissal was substantively fair is not supported by the evidence and
was accordingly unjustifiable in that it bears no
rationale
connection whatsoever to the evidence that was properly before him.
[9]
Before
dealing with the analysis and evaluation of the condonation
application, it is also important to deal with the background
information relating to the review application which was filed prior
to this application.
[10]
The
first respondent being unhappy with the finding of the commissioner
that the dismissal was procedurally unfair filed a review
application
on the 13
th
June 2008. The applicant responded to that application by filing an
intention to oppose on the 3
rd
July 2008.
[11]
On
the 10
th
July 2008, the applicant’s attorneys addressed a letter to the
first respondent’s attorneys indicating that the applicant
intended to bring a counter-review application in order to set aside
that part of the arbitration award in which the commissioner
found
that the dismissal of the applicant was substantively fair. In the
same letter the applicant indicated that the counter-review
application would be included in the answering affidavit to the first
respondent review application.
[12]
Thereafter,
and on the 25
th
August 2008 the first respondent filed its notice in terms of Rule
7(A) (6) and 7(A)(8) of the Labour Court Rules wherein it delivered
the record of arbitration proceedings including its supplementary
affidavit.
[13]
The
applicant delivered her answering affidavit in response to the review
application on the 8
th
September 2008, which contrary to what was indicated in the letter
referred to earlier did not include the counter-review application.
[14]
On
the 23
rd
October 2008, the attorneys of the applicant addressed a letter to
the first respondent’s attorneys indicating that the applicant
still intended to institute a counter-review application. The first
respondent’s attorneys responded to this letter by indicating
to the applicant that they believed that the time limits to bring a
review application had already lapsed and that any such application
including its application for condonation would be opposed.
[15]
The
applicant’s attorneys addressed a further letter on the 14
th
January 2009 again indicating that the applicant still intended to
bring a counter review application.
The
legal principles governing condonation
[16]
In
order to succeed in persuading the Court that he or she deserves the
indulgence for the non compliance with the time frames provided
for
in the rules or the law, the applicant must show the following: (a)
the degree of lateness or non compliance with the prescribed
time
frames is not excessive, (b) provide a full explanation of every
aspect of the period the lateness or the failure to comply
with the
time frames, (c) show that there are prospects of succeeding or that
there exists a bona fide defence when the matter
is to be considered
in the main case, (d) show the importance of the cases, (e) show that
the delay was not due to the fact that
the applicant was not interest
in the finality of the matter. See
Forster
v Steward Cott Inc (1997) 18 ILJ 367 (LAC)
and
also
Gaoshubelwe
and others v Pie Man’s Pantry (Pty) Ltd (2009) 30 ILJ 347 (LC).
[17]
In
Van
Wyk v UNITAS Hospital and Another (Open Democratic Advice Centre As
Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC),
the Court in dealing with an application for condonation held at
paragraph 22:
“
[22]
An applicant for condonation must give a full explanation for the
delay.
In addition, the explanation must cover the entire period of
delay. And, what is more, the explanation given must be reasonable.”
[18]
The
Court in that case found that the explanation which was proferred by
the applicant fell shot of the requirements for condonation.
It was
further found in that case that the explanation for the inordinate
delay (the period was 11 months delay) was superficial
and
unconvincing. And more importantly the Court found that the financial
affordability to bring the application within the time
frame is not a
compelling reason for a delay.
[19]
In
the often quoted decision of
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532 C-F
the Court held that without a reasonable and acceptable 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. Another important
consideration whether or not to grant condonation is the steps that
the applicant took as soon as it became aware that he or she
was late
in terms of the required time frames. In order words the applicant
should bring the application for condonation as soon
as he or she
becomes aware of the lateness of his or her case.
[20]
In
NUM
v Council for Mineral Technology
[1999] 3 BLLR 209
(LAC),
the Court held that:
“
The
approach is that the Court has discretion to be exercised judicially
upon the consideration of all facts, and in essence it
is the matter
of fairness to both parties. Amongst the facts usually relevant are
the degree of lateness, the explanation thereof,
the prospects of
success and the importance of the case. These facts are interrelated,
they are not individually decisive. What
is needed is an objective
conspectus of all the facts. As slight delay and a good explanation
may help to compensate for the prospects
of success which are not
strong. The importance of the issue and strong prospects of success
may turn to compensate for a long
delay. There is a further principle
which is applied and that is without a reasonable and acceptable
explanation for the delay,
the prospects of success, no matter how
good the explanation for the delay an application for condonation
should be dismissed.”
[21]
As
indicated earlier part of the delay as explained by the applicant was
due to lack of funds. This issue has received attention
of this Court
in the case of
Gaoshubelwe
and others v Pie Man’s Pantry (Pty) Ltd (2009) 30 ILJ 347 (LC).
In that case the Court in dealing with the issue of whether or not
lack of funding could be a reasonable explanation observed as
follows:
“
[35]
I now proceed to consider the explanation of the delay after the
applicants
became aware of the outcome of the review application. The
explanation for this period is as indicated earlier that, firstly, Mr
Gaoshubelwe, had to find the other applicants and also seek funds to
pay an attorney to assist them in processing their claim.
I align
myself to the view expressed by Ncamu AJ in Mabunda’s case that
it is not in every case where the delay is occasioned
by the
applicant seeking funds that the application for condonation should
be dismissed. The explanation based on lack of funds
has to be
evaluated within the context of the facts and the circumstances of a
given case.”
[36]
In my view there is no rule that the explanation that the delay was
occasioned by lack of funds should automatically
lead to the
dismissal of the application for condonation. If this was to be the
case then in my view the court would be ignorant
of the economic
reality that in most instances faces unrepresented dismissed
employees. I do however agree that as a general approach
the lack of
funds should not on its own constitute a reasonable explanation.”
[22]
In
the present instance the applicant has, in my view, failed to make
out a case for the condonation of the late filing of her counter
review application. The explanation proferred by the applicant is
wholly unsatisfactory and in the circumstances also totally
unreasonable. In this respect the applicant fails to deal with
certain significant aspects of her delay in particular fails to
explain why the counter-review application was not filed with her
opposing papers to the first respondent’s review application.
[23]
The
applicant states in her founding affidavit to the condonation
application that the reason for the delay was because she did
not
have sufficient funds to pay for her attorneys’ fees to
prosecute her review application. She states that she only managed
to
raise the required funds at the end of December 2008, after
eventually managing to rearrange her financial affairs. She does
not
in this respect indicate in what way she managed to rearrange her
financial affairs neither she indicates why she could not
have done
the same earlier. Put differently she does not take the Court into
her confidence to explain why it took 8 (eight) months
to rearrange
her financial affairs in order to be able to challenge the
arbitration award. Of importance also in this regard is
that the
applicant in her replying affidavit does not in a satisfactory manner
deal with the averments contained in the answering
affidavit of the
first respondent. In its answering affidavit and at paragraph 34 of
the answering affidavit the first respondent
avers as follows:
“
34.
In addition, the employment status of the Applicant was discussed at
the arbitration which took place on the 8
th
and 9
th
April 2008. I represented the First Respondent at the arbitration and
I specifically recall that it was common cause between the
parties
that the applicant was already employed at the time that the
arbitration took place. The only issue in dispute regarding
the
Applicant’s employment status was length of time it took for
her to find new employment after her dismissal.”
[24]
The
applicant in her replying affidavit respondent as follows:
“
6.1.1
AD PARAS’ [31]-[35]
I
reiterate the contents of the paragraph [13] to [16] of my Founding
Affidavit. In my respectful review, the issue of lack of funds
is not
something I could have disclosed to the First Respondent. It was a
matter between me and my attorneys, and had nothing to
do with the
First Respondent.”
[25]
In
my view the case of the applicant is one of those cases envisaged by
Zondo JP in the case of
Moiloa
v Shai N.O. and Others (2007) 28 ILJ 1028 (LAC),
when he said:
“
If
ever there was a case in which one can conclude that good cause has
not been shown for condonation, without even considering
the
prospects of success, then this is it. Where, in an application for
condonation the delay is excessive and no explanation has
been given
for what the delay or explanation has been given but such
‘explanation’ amounts to no explanation at all,
I do not
think that it is necessary to consider the prospects of success.”
[26]
There
can be no doubt that the period of 8 (eight) months is excessive
regard being had to the facts and the circumstances of this
case.
Accordingly, the applicant’s application for condonation for
the late filing of the counter review application stand
to be
dismissed for this reason alone.
[27]
The
applicant’s application for condonation would still be not
sustainable even the prospects of success were to be considered.
The
prospects of success are extremely weak, if they exist at all. In
this respect, the view that the commissioner’s
award does meet
the standard set out in the
Sidumo
and Another v Rustenburg Platinum Mines and Others
[2007] 12 BLLR
1097
(CC).
[28]
The
attack on the arbitration award is based on the finding by the
commissioner that:
“
3.2
Evidence was led that the applicant failed to activate letters and
also failed to approve samples. These facts were not
disputed during
the arbitration proceedings, and it is what led to the dismissal. I
do not have the reason not to accept the respondent’s
submission that this were serious offences and that the dismissal was
appropriate under the circumstances.”
[29]
In
my view this attack bears no merit and fails to set out any of the
grounds provided for under section 145 of the LRA for reviewing
an
arbitration award. The commissioner arrived at the above conclusion
after considering evidence presented before him including
that of the
applicant. Accordingly, the applicant’s application stands to
be dismissed. I see no reason in the circumstances
of this case why
even though the applicant is an individual costs should not follow
the results.
[30]
In
the premises the applicant’s application for the condonation of
the late filing of her review is dismissed with costs.
_______________
Molahlehi
J
Date
of Hearing :
11
th
September 2009
Date
of Judgment :
26
th
January 2010
Appearances
For
the Applicant :
Mr N Voyi of Ndumiso P. Voyi Attorneys
For
the Respondent: Adv A L
Cook
Instructed
by :
Edward Nathan Sonnenbergs
Inc