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[2010] ZALCD 20
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Securicor (Pty) Ltd v Ngwane and Others (D678/09) [2010] ZALCD 20 (25 March 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
Case
No. D 678/09
In
the matter between:
SECURICOR
(PTY) LTD
Applicant
And
COMMISIONER
J
NGWANE
First
Respondent
CCMA
Second Respondent
RAJENDRAN
PILLAY
Third
Respondent
JUDGMENT
GUSH,
J.
1.
In this matter the applicant applies for
condonation for the late filing of its application to review and set
aside the award of
the first respondent that the Applicant’s
decision to dismiss the Third Respondent was unfair.
2.
The Applicant’s application is some
13 months out of time. The Award is dated the 19
th
July 2005 and the Applicant admits having received the award on the
17
th
August 2005 and accordingly the review should have been filed on the
28
th
September 2205. The Applicant’s review was filed on the 30
th
November 2006. This is a substantial delay.
3.
Whilst it might be so that the award of the
first respondent is startling in that the misconduct of the third
respondent was serious
it is necessary to firstly consider the
Applicant’s reasons for the delay.
4.
It has been held that if an Applicant has
no prospects of success condonation will fail even in the face of a
reasonable and convincing
explanation for the delay. However it is
also so that if a party can offer no reasonable explanation for the
delay the presence
of reasonable prospects of success will not avail
that party. It is therefore necessary to first consider the
Applicants reasons
for having waited thirteen months to file its
review.
5.
The applicant’s application is some
13 months late but for reasons best known to the Applicant the
founding affidavit
refers to a delay of thirteen days which Mr
Hutchinson indicated was a typographical error. However inexplicably
this error is
repeated in his heads.
6.
In dealing with the explanation for
the delay the Applicant does not take the Court into its confidence
by setting out in its founding
affidavit the extent of the
various delays and in fact only refers to one date and that is the
date of the award. The Applicant
does not deal with the dates on
which the third Respondent served his applications for the variation
of the award or its certification
and the Applicant’s response
thereto, nor does it record the date on which the contempt
application was enrolled. All the
Applicant says is that having
learnt of the application it sought to have the matter adjourned in
order to bring this application.
The Applicant however not only fails
to mention that this application was only filed ten weeks later but
gives no explanation whatsoever
as to this delay.
7.
The founding affidavit offers a variety of
reasons for not timeously proceeding with the review including that
the Applicant had
not carried out the instruction to its branch
office and that as a result of that not being carried out the third
respondent became
disgruntled and sought a contempt order; that the
Applicant believed that the Third Respondent had found other
employment and that
the Third Respondent had abandoned portion of his
award; that the Third Respondent wasn’t seeking reinstatement
and that
it was uneconomical to pursue the review if the Third
Respondent was not seeking reinstatement.
8.
Unfortunately much of this is not borne out
by the facts.
9.
In his replying affidavit the third
Respondent points out that subsequent to the award being received by
the Applicant on 17 August 2005,
he sought a variation of
that award on the 22 December 2005 in order to correct the
amount of the salary which was recorded
in the award. This
application was served on the applicant. A fact not mentioned in the
Applicants papers. This issue is
not dealt with at all by the
Applicant.
10.
On 30 January the Third Respondent
applied for the arbitration award to be certified. A copy of
this application was
served on the applicant. A fact not mentioned in
the Applicants papers.
11.
On 5 May 2006, as the Applicant
had not complied with the award, a contempt application was served on
the Applicant. On
20 September 2006 the application for
contempt was in fact set down and was adjourned
sine
die
on the basis that the applicant
intended bringing a review application.
12.
Finally on 30 November 2006 some
ten weeks after the contempt application had been adjourned
sine
die
the applicant deigned to file its
review application.
13.
All these dates are set out in the
answering affidavit. The Applicant elected not to file a
replying affidavit dealing with
any of these averments or details.
The Applicant does not deal with the specific delays nor what
specifically caused the Applicant
to delay the filing of the review
particularly in the light of the various applications brought by the
Third Respondent which applications
were served on the Applicant.
14.
In the matter of
MOILA
v SHAI NO & OTHERS (2007) 28 ILJ (LAC)
the court held the following:
“
I
do not have the slightest hesitation in concluding that this is a
case where the period of delay is excessive and the applicant’s
purported explanation for the delay is no explanation at all. I
accept that the case is very important to the appellant,
however the
weight to be attached to this factor is too limited to count for
anything where the period of delay is as excessive
as is the case in
this matter, and the explanation advanced is no explanation at all.
If ever there was a case in which one
could 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 that delay or an
‘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.”
15.
It is my view that in this matter the
explanation for the delay given by the Applicant in this matter
“
amounts to no explanation at
all”.
Specifically the
failure of the Applicant to account for or even attempt to explain
the delay between the adjournment of
the contempt application on the
20
th
September and the filing of the review on the 30
th
November, some ten weeks later is tantamount to “
a
disdain of the rules”.
16.
In
CHETTY V
LAW SOCIETY TRANSVAAL 1962 (2) 756 (A)
the
court held that:
“
An
ordered judicial process would be negated if, … a party who
could offer no explanation of his default other than his disdain
of
the Rules was nevertheless permitted to have a judgement against him
rescinded on the ground that he had reasonable prospects
of success
on the merits”
(at page 765 D-E)
17.
Accordingly in the absence of a reasonable
explanation for the delay which amounts to no explanation at all the
application it is
not necessary to consider the prospects of success,
no matter how good they might be.
18.
In the circumstances I make the following
order:
The
application is
DISMISSED WITH COSTS
.
_____________
Gush J
DATE OF HEARING
: 25 MARCH 2010
DATE OF JUDGMENT
: 25 MARCH 2010
APPEARANCES
FOR
APPLICANT
:
Adv W J HUTCHINSON
Instructed
by
: MOODIE
& ROBERTSO
ATTORNEYS
FOR
RESPONDENT
: JAYSHREE
MOODLEY of
JAYSHREE
MOODLEY & ASSOCIATES