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[2010] ZALCJHB 72
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Ramadiba v Limpopo Legislature and Others (JR152/09) [2010] ZALCJHB 72 (21 July 2010)
Reasons
given 210710
Not
reportable
Not of
interest to other judges
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO:JR 152/09
In the
matter between:
MOTLATSO
ANGELINA RAMADIBA
APPLICANT
And
LIMPOPO
LEGISLATURE
1
ST
RESPONDENT
JOSIAI
SELLO MAAKE
2
ND
RESPONDENT
THE
COMMISSION FOR CONCILIATION
MEDIATION
&
ARBITRATION 3
RD
RESPONDENT
REASONS
FOR JUDGMENT
VAN
NIEKERK J
[1]
On 28 May 2010, I made an order dismissing an application to review
and set aside a ruling made by the second respondent, with
costs. A
request for reasons was filed in this court on 14 June 2010. For
reasons that are not apparent to me, the request languished
in the
office of the registrar until it was drawn to my attention today, 22
July 2010. These are my reasons for making the order.
[2]
On 15 December 2008, the second respondent (the commissioner) issued
an in limine ruling in which he refused to condone the
late referral
of an unfair dismissal dispute to the third respondent, the CCMA. The
applicant was dismissed on 4 March 2005.. The
dispute was referred on
10 October 2008, some three years and eight months late. The
commissioner observed that this delay was
inordinate, but that that
in itself, did not warrant a refusal of condonation. He considered
the relevant facts, and in particular,
a failure by the applicant
after 10 December 2007, when she was advised by the CCMA to re-refer
her dispute to conciliation, and
10 October 2008, when the dispute
was in fact referred. This 10 month delay was not satisfactorily
explained, and on this basis,
and without considering the applicant’s
prospects of success, condonation was refused.
[3]
In these proceedings, the applicant set out in some detail the action
she took after disputing the fairness of her dismissal.
This included
the filing of an urgent application for review in this court in
December 2004 to review and set aside the findings
of the
disciplinary enquiry. The application was dismissed on 11 January
2005, for lack of urgency and a failure to exhaust internal
remedies.
The applicant thereafter launched an internal appeal against
her dismissal. In March 2005, the appeal was dismissed.
Thereafter, a
dispute was referred to the CCMA. A point in limine relating to the
jurisdiction of the CCMA given the applicant’s
pending review
application was taken by the first respondent, and dismissed. That
ruling became the subject of an application for
review. In or about
the same period, the applicant withdrew her review application.
Thereafter, the applicant attended at court
to hear the first
respondent’s review application, without opposing the
application. She was directed to file reasons setting
out the basis
of her non-opposition to the application. The review application was
ultimately heard on 7 November 2006, when the
application was
granted. The applicant states that she was advised to seek clarity on
the terms of the order. The applicant engaged
various attorneys, and
was unsuccessful in locating the court file and obtaining the clarity
she sought. When she referred the
dispute to the CCMA in December
2007 for re-enrollment of an arbitration hearing, she was advised by
the CCMA to apply for condonation
for the late referral. The
applicant states that she attended at court during May 2008 to seek
clarification on the order granted
during November 2006, but
without success. Attorneys that she later appointed advised that she
should re-refer the dispute
with an application for condonation,
which she did in October 2008.
[4]
The principal ground for review articulated in the founding affidavit
is that the commissioner erred in finding that it was
unnecessary for
the applicant to search for the file at this court since she knew
that the application for review had been granted,
and that there was
accordingly no longer any impediment on the applicant referring her
dispute to the CCMA again. Further,
the applicant attacks the
commissioner’s failure to deal with her prospects of success.
[5]
The test to be applied in this court is well-established. It requires
that an applicant demonstrate that the decision under
review is a
decision that is so unreasonable that no reasonable decision maker
could come to it. The test encompasses not only
outcomes, but also
conduct related reviews. These are of course linked, since no
commissioner that conducts him or herself unreasonably
in a CCMA
proceeding is likely to produce a result that is reasonable.
[6]
In
Minister of Health & another v New Clicks South Africa
(Pty) Ltd & others (Treatment Action Campaign & another as
amici
curiae)
2006 (2) SA 311
(CC), Ngcobo J made the point in
the following way:
“
There is obviously an overlap
between the ground of review based on failure to take into
consideration a relevant factor and one
based on the unreasonableness
of the decision. A consideration of the factors that a decision-maker
is bound to take into account
is essential to a reasonable decision.
If a decision maker fails to take into account a factor that he or
she is bound to take
into consideration, the resulting decision can
hardly be said to be that of a reasonable decision-maker”
[15]
In his judgment in
Sidumo v Rustenburg
Platinum mInes Ltd & others
[2007]
12 BLLR 1097
(CC), Ngcobo J reaffirmed the role of reasonableness in
relation to conduct (as opposed to result) in these terms:
“
It follows therefore that where
a commissioner fails to have regard to material facts, the
arbitration proceedings cannot in principle
be said to be fair
because the commissioner fails to perform his or her mandate.
In so doing … the commissioner’s
action prevents the
aggrieved party from having its case fully and fairly determined.
This constitutes a gross irregularity in
the conduct of the
arbitration proceedings as contemplated in section 145 (2) (a) (ii)
of the LRA. And the ensuing award falls
to be set aside not because
the result is wrong but because the commissioner has committed a
gross irregularity in the conduct
of the arbitration proceedings’.
[7]
In the present instance, the commissioner carefully reviewed the
evidence before him. There can be no suggestion (nor is any
made)
that he had regard to irrelevant evidence or that he ignored relevant
evidence. He applied the correct legal test, that based
on the
well-established principles enunciated in
Melane v Santam
Insurance Company Ltd
1962 (4) SA 531
(A)
.
It is equally
well-established that where a period of delay is not satisfactorily
explained, the prospects of success are not determinative.
In
NUM
v Council for Mineral Technology
[1999] 3 BLLR 209
(LC), the
Labour Appeal court said the following
“
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.”
The
commissioner clearly gave the applicant the benefit of the doubt in
respect of the period preceding the advice given to her
by the CCMA
to re-refer her dispute, with an application for condonation. The
explanation before the commissioner in relation to
the period
following that advice and the date on which the dispute was
ultimately referred was thin, to say the least, and the
commissioner
cannot be faulted for concluding that there was an inadequate
explanation for what amounted to an inordinate delay.
In short,
the commissioner took into account all of the relevant facts and
applied the correct legal test.
[8]
Both counsel, at least in their heads of argument, appeared to regard
this matter as one in which the matter of condonation
ought to be
reassessed on the merits. An application for review is not an appeal.
This court is not at liberty to substitute its
own view for that of
the commissioner simply because on the same facts, the court would
have come to a different conclusion. The
test is narrow, and places a
significant hurdle before an applicant in a review application. In my
view, for the reasons recorded
above, the applicant failed to
establish that the ruling to which the commissioner came was so
unreasonable that it fell outside
of the band of decisions to which
reasonable decision-makers might come.
[10]
Finally, and in relation to costs, the present application was
entirely misguided. In addition to the principle that cost should
follow the result, there is the question of the conduct of these
proceedings and those under review. The LRA places a premium on
expeditious dispute resolution, and requires parties to act without
delay to further their interest. The applicant has clearly
litigated
at her leisure. To grant the application for review will have the
effect of triggering the first step in the dispute
resolution process
in circumstances where the dispute arose almost six years ago. In
these circumstances, there is no reason why
the applicant should not
pay the costs of the application.
[9]
For these reasons, I dismissed the application for review, with
costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date of
reasons for judgment 21 July 2010