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[2010] ZALCJHB 76
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Mametja v Department of Home Affairs and Others (JR80/10) [2010] ZALCJHB 76 (25 August 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
NOT
REPORTABLE
CASE
NO:
JR 80/10
In
the matter between:
S
J MAMETJA
A
pplicant
And
DEPARTMENT
OF HOME
AFFAIRS
1
st
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
&
ARBITRATION
2
nd
Respondent
M
RAMOTSHELA
N.O.
3
rd
Respondent
JUDGMENT
Molahlehi
J
Introduction
[1]
This is an application to review and set aside the
arbitration award issued by the 3
rd
respondent under case number LP 13374-09, in terms of which the
application for the condonation of the late referral of the dispute
to the 2
nd
respondent was dismissed.
[2]
The applicant who was initially employed by the
Department of Justice in Limpopo as administrative clerk and later
promoted to the
position of senior administrative clerk was at some
point seconded to the Department of Home Affairs.
[3]
It would appear that after his transfer; the
Department of Home Affairs informed him that he ought to have been
dismissed by the
Department of Justice. The dismissal ought to have
been effected because the applicant had been charged with corruption
and extortion.
The dismissal was according to the founding affidavit
of the applicant based on the conviction on the same charges by the
criminal
court.
[4]
Thereafter the applicant referred a dispute to the
CCMA concerning an alleged unfair dismissal. The referral of the
dismissal dispute
was accompanied by an application for condonation
for the late referral of the dispute.
[5]
As indicated earlier in this judgment the
commissioner dismissed the condonation application on the basis that
the applicant had
failed to make out a case for condonation. The
commissioner in dismissing the condonation application reasoned that
the period
of 11 years was too extensive and that the explanation
proffered by the applicant was not satisfactory.
[6]
In the grounds for review, the applicant contends
that the commissioner in declining to grant him condonation committed
a gross-irregularity
in that he failed to properly determine the
evidence which was before him. The applicant further complained that
the commissioner
failed to apply his mind to the merit of the case
and the prejudice that the applicant had to suffer if the condonation
was not
granted. The other ground for challenging the arbitration
award is based on the allegation that the commissioner committed a
misconduct
in arriving at the decision that he made.
[7]
During argument, the applicant who represented
himself sought to put the blame of the delay on his attorneys and
accused them of
having to sabotage his case. This allegation is not
made anywhere in his papers. He also argued that he was reinstated in
October
1996 and January 1997. However, when asked to explain this he
said that he received a letter on 26 August 1996 informing him that
he was dismissed and the dismissal would take effect as from the 30
September 1996. He also stated that he never reported for work
since
the 30 September 1996. He also stated that he did not deny the
charges which were levelled against him but strangely, argued
that he
was never dismissed.
The
applicable legal principles
[8]
It is clear that in applying for condonation for
the late referral of his dismissal dispute the applicant was seeking
to have the
time frames for such a referral as provided for in the
Labour Relations Act (the LRA) extended. Thus in this respect what
the applicant
needed to do was the following:
“
(a)
To show that the degree of lateness or non-compliance with the
prescribed time frame is not excessive;
(b)
To provide an explanation for every aspect of the period of the
lateness or the failure to comply with
time frames;
(c)
To show that there prospects of succeeding or has bona fide defence
when the matter is considered when
considered in the main case;
(d)
To show the importance of the case;
(e)
To show interest in the finality of the matter and the convenience of
the court and;
(f)
Has to show avoidance of unnecessary delay in the administration of
justice. See
Foster v Stewart Scott Inc (1997) 18 ILJ 367 (LAC)
.”
[9]
The commissioner or the court has judicial
discretion to grant condonation and does so by taking into account
the above factors
which are not individually decisive but are
interrelated and must be weighed against each other. And in weighing
these factors
for instance, a good explanation for the lateness may
assist the applicant in compensating for weak prospects of success.
Similarly,
strong prospects of success may compensate the inadequate
explanation and the long delay.
[10]
An applicant in an application for condonation has
to show good cause by providing an explanation that shows how and why
the default
occurred. There is authority that the court could decline
the granting of condonation if it appears that the default was wilful
or was due to gross negligence on the part of the applicant. In fact
the court could not on this ground decline to grant an indulgence
to
the applicant.
[11]
The prospects of success or
bona
fide
defence on the other hand mean
that all what needs to be determined is the likelihood or chance of
success when the main case is
heard. See
Saraiva
Construction (Pty) Ltd v Zulu Electrical and Engineering Wholesalers
(Pty) Ltd
1975 (1) SA 612
(D) and Chetty v Law Society 1985 (2) SA at
765A-C.
[12]
In
Melane v
Santam Insurance Co Ltd 1962 (SA) 531 (A) at 532C-F,
the
Court held 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.
Another
important consideration of 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 others words
the applicant should bring the application
for condonation as soon as
he or she becomes aware of the lateness of its case.
[13]
The reasons for the delay is set out in the
founding affidavit for condonation before the CCMA. In brief the
reasons were as follows:
“
1.
The applicant was engagement in negotiations with the respondent.
2.
The applicant engaged the Public Protected.”
[14]
Under the headings ‘
Prospects
of success”
the applicant states:
“
4.1
On / about January 1988, the applicant was employed as a
Administration Clerk by the
Department of Justice with
Persal No 16224631.
4.2
On the 15 November 1995, the Department of Justice seconded the
Applicant to
work under the Respondent and was promoted to the
position of a Senior Administrative Clerk. The applicant was
dismissed on the
5 February 1997.
4.3
It is submitted that there was a procedural defect in that there was
no hearing conducted.
Regard must be had to the fact that the onus of
prove in a criminal case is “beyond reasonable doubt”
whereas in Labour
matters prove is on the balance of probabilities.
4.4
The applicant was dismissed by the Respondent on the grounds that the
Department of
Justice should have dismissed the Applicant on charges
of corruption and extortion, based on the Criminal Court sanction.
The Respondent
claimed to have given effect to it, which is clearly
in contravention of the provisions of the Labour Relations Act
pertaining
to the law of unfair dismissal.
4.5
The Respondent requested the Applicant to make written Representation
to show cause why I should not be suspended without pay. After having
made the representations, the applicant was promoted to the
rank of
Senior Administrative clerk.”
Evaluation
[15]
It cannot, in my view, be disputed that the
periods of 11 years was indeed excessive and for that reason the
commissioner was correct
in dismissing the condonation application.
The applicant has also failed to make out a case for prospects of
success. The applicant
both at the CCMA and the court level does not
state in what way there exists prospects of success in his case. In
this respect
all what the applicant states is that his dismissal was
both substantially and procedurally unfair.
[16]
The applicant in dealing with prospects of success
particularly failed to take the commissioner in to his confidence in
that he
failed to address the contents of the letter dated 21 August
1996, which was addressed to him by the Department of Home Affairs.
The applicant needed to in particular deal with paragraph two the
letter which reads as follows:
“
In
terms of section 26(3) of the Public Services Act, 1994 you are
hereby informed by the Department that you are discharged from
the
Public Service, in terms of section 24 (2) (a) (v) of the Public
Service Act, 1994 with effect from 1 October 1996 in accordance
with
the recommendation of the former Lebowa Public Service Commission.
Your last working day will therefore be 30 September 1996.
In
terms of section 26 (1) of the Act, you have the right to appeal
directly to the Public Service Commission, Private Bag X121,
Pretoria, 0001, against this decision, within 21 days of receipt of
this letter. It would be appreciated if a copy of your notice
of
appeal could also be forwarded through your Regional Director to the
Director: Personnel Management at Head Office.”
[17]
In the light of the above, I am of the view that
the applicant fails to make a case justifying interference with the
ruling of the
commissioner. The applicant has also failed to make out
a case that this court should on its own consider to condone the 11
years
day in referring his dispute to the first respondent.
[18]
In the premises the review application is
dismissed.
___________________
Molahlehi
J
Date
of Hearing: 25 August 2010
Date
of Hearing: 25 August 2010
Representation
Applicant
appeared in person.