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[2010] ZALCCT 39
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A Black CC and Another v Department of Labour and Another (C466/2008) [2010] ZALCCT 39 (26 January 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT CAPE TOWN)
CASE
NO: C466/2008
In
the matter between
A
Black CC
1
st
Appellant
BlackJacsam
CC
2
nd
Appellant
and
The
Department of
Labour 1
st
Respondent
LM
Copping
2
nd
Respondent
REASONS
FOR ORDER
AC
BASSON, J
[1]
On 27 May 2009 I gave an order setting aside the compliance order
issued by the 1
st
Respondent on 29 January 2009 under case
number N219/0729. Here are my brief reasons for the order.
[2]
This was an appeal to this Court against the whole of the compliance
order dated 29 January 2008 which was issued by the 1
st
Respondent (hereinafter referred to as “the Department”).
[3]
The 1
st
and 2
nd
Appellants are closed
corporations incorporated in accordance with the laws of South
Africa. The 2
nd
Respondent (Ms. LM Copping –
hereinafter referred to as “Copping”) rendered services
to the Appellants as from
September 2005 – August 2007. It is
in dispute whether or not Copping was employed or whether she
rendered her services as
an independent contractor. I will return to
this point hereinbelow. (I will refer to the two respondents jointly
as “the
respondents”.)
Condonation
[4]
The appeal was filed on 18 July 2008. The
opposing papers were filed by the Respondents acting jointly on 9
December 2008. The opposing
papers were thus filed approximately 123
days late. Although the respondents ask for condonation in the Notice
of Motion, no averments
are made in the founding affidavit to
substantiate the condonation application. The respondents do not
offer any explanation for
the delay nor is any attempt made to
address the other factors that a court must take into account in
considering an application
for condonation.
[5]
It
is trite that an applicant for condonation must file a proper
application for condonation in which the factors that the court
must
consider are set out. These considerations have been confirmed in
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531 (AD)
[1]
where the Appellate Division sets out at page 532B–E the
factors that must be taken into account when considering a
condonation
application: The court will therefore take into account
the degree of lateness; the explanation therefore; the prospects of
success
on the merits; the importance of the case; and other
considerations. It is clear from this quoted dictum in
Melane
that
these factors are interrelated and should not be considered
separately. The approach in the
Melane
's
case has been followed with approval in various decisions of this
Court and the Labour Appeal Court. In
NUM
v Council for Mineral Technology
[1999]
3 BLLR 209
(LAC) at paragraph [10] the Labour Appeal Court held that
the absence of a reasonable and acceptable explanation for the delay
was pertinent to the enquiry into whether or not condonation should
be granted. Where no such an explanation is forthcoming, no
examination of the prospects of success needs to be undertaken (see
also
NUM
and others v Western Holdings Gold Mine
(1994)
15
ILJ
610
(LAC) at 613E and Waverley Blankets Limited v Sithukuza and others
(1999) 20
ILJ
2564
(LAC) paragraph [11]. If an Applicant for condonation does not
explain the default or tender an unsatisfactorily explanation,
condonation will not be granted (see
Ferreira
v Ntshingila
1990
(4) SA 271
(A). The mere fact that a party has decidedly strong
prospects of success is also not in itself sufficient cause to grant
condonation. See
Torwood
Properties (Pty) Ltd v SA Reserve Bank
1996
(1) SA 215
(W) at 230H and
Chemical
Energy Paper Printing Wood & Allied Workers Union & Others v
Metal Box t/a MB Glass
(2005) 26 ILJ 92 (LC)
[6]
As already pointed out, no reasons are advanced by the respondents
for the lateness of the opposing papers. I am therefore in
agreement
that the respondents’ opposition of this appeal accordingly
stands to be rejected.
[7]
There is a further reason why the opposition stands to be rejected.
In the appellants’ Notice of Motion, the respondents
are called
upon to file the record of the proceedings that gave rise to the
issuing of the compliance order and the reasons for
the decision
within 15 days of receipt of the Notice of Motion. No record has been
filed. The compliance order is not even attached
to the papers of the
respondents. The reasons that are attached to the respondent’s
papers appear to be that of the manager
of inspection and enforcement
services: Western Cape and the provincial executive manager. They
appear to confirm the compliance
order dated 29 January 2008. The
report is, however, undated.
[8]
I will now turn to the merits of the appeal. In the compliance order
the department ordered the two appellants jointly to pay
to Copping
certain amounts in lieu of notice, leave pay and outstanding
remuneration. At the outset is should be pointed out that
no
distinction is made between the two appellants and no indication is
given as to what extent each appellant is deemed to be liable.
[9]
The appellants appealed against the order on the grounds that the
department had no jurisdiction to issue such a compliance
order and
on the basis that the BCEA does not apply to the relationship between
the appellants and Copping. It was also submitted
that Copping was
not employed by the appellants and that no employment relationship
between the appellants and Copping was terminated.
It was in essence
the case of the appellants that Copping was an independent
contractor. The appellants set out in their papers
that they have
submitted a written objection to the order to the department in which
the appellants pointed out that the nature
of the relationship was
that of an independent contractor.
[10]
It was also argued that the compliance order was issued without
properly hearing the appellants. I have already pointed out
that no
record has been fined by the department to show what was considered
in coming to the conclusion. No affidavit was even
filed by the
individual who has made the compliance order. The court is thus left
completely in the dark as to what has been taken
into account in
coming to the conclusion that Copping was indeed an employee. I am
therefore in light of the aforegoing persuaded
that the appeal should
succeed.
Order
[11]
The compliance order issued by the 1
st
Respondent on 29
January 2008 under case number N219/0729 is set aside. I make no
order as to costs.
_______________________
AC
BASSON, J
26
JANUARY 2010
For
the Appellants
W
Jacobs of Jacobs Lotz Inc.
For
the Respondents
Ms.
Mathe
[1]
"
In
deciding whether sufficient cause has been shown, the basic
principle is that the 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 sides. Among the facts usually
relevant is the degree of lateness, the explanation therefore, the
prospects of success and the importance of the case. Ordinarily
these facts are interrelated, they are not individually decisive,
save of course that if there are no prospects of success there
would
be no point in granting condonation. Any attempt to formulate a rule
of thumb would only serve to harden the arteries of
what should be a
flexible discretion. What is needed is an objective conspectus of
all the facts. Thus a slight delay and a good
explanation may help
to compensate prospects which are not strong. Or the importance of
the issue and strong prospects of success
may tend to compensate for
a long delay. And the respondent's interests in finality must not be
overlooked."