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[2011] ZALCJHB 175
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Ngoepe v South African Police Service and Another (JR489/09) [2011] ZALCJHB 175 (15 February 2011)
JR489/09-mb
11
JUDGMENT
Not reportable
Of interest to other judges
Edited 250211
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
CASE NO
: JR489/09
DATE
: 2011-02-15
In the matter between
NGOEPE, MAFETA PAUL
Applicant
and
SAPS
1
st
Respondent
CCMA
2
nd
Respondent
_____________________________________________________________
J U D G M E N T
_____________________________________________________________
VAN NIEKERK, J
:
This is an application to review and set aside an arbitration award
made by the second respondent. Prior to dealing with the
application
properly, I wish to deal with the circumstances in which this
application was set down for hearing. The Registrar
notified the
parties in terms of a telefax sent on 24 November 2010, that the
matter was enrolled for hearing today, 15 February
2011 at 14:00.
Some two weeks ago, the legal representative for the applicant, a Mr
Johan Gouws, filed what purports to be a Notice of Postponement
of
the matter, indicating that he had come to an agreement with the
legal representatives of the third and fourth respondents,
that the
matter should be removed from the roll and re-enrolled for hearing on
some future date.
The applicant’s attorney Mr Gouws, was advised that it was not
open to the parties to unilaterally agree to remove the matter
from
the roll and that the matter would remain on the roll for
15 February 2011. Mr Gouws then indicated that he
had
another commitment in the CCMA and was unable to attend the
proceedings on 15 February.
Ultimately in terms of a letter addressed to the Court on
14 February 2011, Mr Gouws said the following, I quote:
“In order to finalise the matter on the said date [i.e.
15 February 2011] and to propose a solution to the situation,
I
indicated to Mr Sole that whether it shall be possible that I agree
that the Honourable Judge consider the application on applicant’s
document filed. He indicated that I should forward such consent to
the Judge’s office, which shall consider such.
I discussed the proposal with applicant on 11 February 2011,
and he consented to the fact that the Judge may consider
the
application of applicant on the documents filed and that the
applicant has no further submissions to forward pertaining to
the
application.
The respondents’ counsel therefore still has the right to
submit verbal arguments pertaining to the application on the contents
thereof, in absence of the applicant’s legal representative.”
On the same date, i.e.14 February 2011, my associate addressed a
letter to Mr Gouws in which he recorded that he had been directed
by
me to advise him that the application would be considered on the
basis of the papers filed and in the absence of any appearance
by the
applicant’s legal representative.
On this basis then the proceedings continued in the absence of the
applicant’s legal representative, but with the applicant’s
consent and on the basis of brief verbal submissions made by Mr
Dlamini, the counsel appearing for the third and fourth respondents.
In this regard, I wish to note briefly that one of the fundamental
purposes of the Labour Relations Act, is expeditious dispute
resolution. This purpose is not met by practitioners who reach
agreements between themselves to the effect that matters be postponed
and elect simply to advise the Court in terms of a Notice of
Postponement, in this case filed a week before the scheduled hearing
of a postponement to which they agree.
This matter was the subject of a notice of set down issued, as I
have indicated, in November 2010. There is ample opportunity
to any
legal practitioner of the fact of the set down and the fact that a
matter would proceed on the scheduled date.
It is not open to practitioners simply to agree that matters be
postponed and removed from the roll. This court has a significant
backlog and efforts are being made to address that backlog. Those
efforts are not served by the conduct reflected by the applicant’s
attorney, especially since the Notice of Postponement was filed as I
have indicated, five days prior to the date of the hearing.
Having said that, I am moving on the merits of the application. The
application for review was filed some one year and four months
late.
There is an application for condonation contained in the
Founding Affidavit. The facts are briefly the following,
the
arbitration award that is the subject to these proceedings, was
issued on 27 November 2007. The award was delivered to
the
applicant’s then legal representative, a Mr Lebea, on 29
November 2007.
The applicant states that he thereafter consulted Mr Lebea regarding
the award, and that Mr Lebea advised him that he was no longer
willing to assist the applicant. He then sought alternative
representation which he obtained through the auspices of a
Mr Makafola,
a legal representative from Tshwane.
He had difficulty obtaining the documents from Mr Lebea, but
eventually during the course of January or February 2008, these
documents were obtained and submitted to Mr Makafola.
Nothing appears to have transpired between February 2008 and
September 2008 when the applicant ultimately confronted Mr Makafola
about progress in his applicant. He was advised that Mr Makafola
had spoken to a few policemen around Pretoria and was advised
that
the chances of success at the Labour Court were very slim.
During the course of March 2009, some six months later, the
applicant states that he was advised by a former colleague to consult
with the applicant’s current attorney of record, Mr Gouws. The
applicant consulted with Mr Gouws on 3 March 2009 and submitted
all
the relevant documents to him.
Mr Gouws on 5 March 2009, applied to this court for a case number.
The review application was ultimately filed on 9 April.
Well,
the application was signed on 9 April 2009, it was received by the
first and second respondents on 23 April 2009. It was
served on the
third respondent, the state attorney, on 15 May 2009 and ultimately
filed in this court on the same date, i.e. 15
May 2009.
This is an excessive delay. Section 145 of the Labour Relations
Act requires applications for review to be filed within
a period of
six weeks following the date of the arbitration award. This
provision is fundamental to achieving the purpose of expeditious
dispute resolution to which I have referred, and parties who fail to
file applications for review within the required period, are
expected
or as the section permits to show good cause why the statutory time
limit was not met.
The test to be applied in an application such as this, is the one
enunciated almost 50 years ago by Holmes JA
and
Melane v Santam Insurance Company Limited
,
1962 4
SA 531
A, where the Court said the following:
“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 inter-related: they are not individually decisive …
save of course that if there are no prospects of success
there would
be no point in granting condonation.”
These principles had been restated and applied in numerous
instances, both by this court and the Labour Appeal Court, subject
to
the caveat that where the explanation for delay is unacceptable, the
prospects of success are irrelevant.
The rule that without an acceptable explanation for delay, thus
itself justifies the refusal of condonation, was reiterated by
Myburgh JP in
NUM v Council for Mineral Technology
,
[1999] 3
BLLR 670
(LAC), where the Court said the following:
“These factors are interrelated, they are not individually
decisive. A slight delay and a good explanation may help to
compensate for prospects of success which are not strong. The
importance of the issue and strong prospects of success may intend
to
compensate for a long delay. An unsatisfactory and unacceptable
explanation for the delay remain so, whatever the prospects
of
success on the merits.”
Now in the present matter as I have indicated, the delay, a period
of some one year and four months, is excessive. The explanation
proffered for that delay as I have indicated, is broadly an inability
by the applicant to secure a legal representative willing
to take on
his case.
Now it is trite that there is a limit to the extent to which an
applicant in a condonation application, may seek to lay the blame
for
any delay, at the feet of his or her legal representatives. In the
present matter, Mr Lebea, the applicant’s representative
at the
arbitration hearing, indicated it would seem to the end of November
2007, that he was no longer willing to assist the applicant
in the
matter.
There is no indication from the applicant as to when he consulted
with Mr Makafola, the representative from Tshwane, although
he does
aver that documents were ultimately provided to him during January or
February 2008.
What remains then, is a period between at best for applicant,
February 2008 and September 2008, which is completely unexplained.
It seems to me from the affidavit, that the applicant was contend to
leave the matter in the hands of his representative in circumstances
where he failed to make enquiry, it would seem, as to any progress
that would have been made.
This is particularly so where the applicant avers as he does, that
he had paid for the legal services to be rendered by Mr Makafola.
It was only in March 2009 that the applicant decided to seek
alternative means to prosecute his interest in this matter. That
is
a period of more than a year since Mr Makafola was instructed.
Once Mr Gouws had been instructed, matters proceeded and the period
of delay between the consultation with him, 3 March 2009 and
the date
on which the papers were ultimately filed, mid May 2009, is not
excessive, but the Court must take into account the
lapse or the
delay between November 2007 and March 2009, which is not the subject
of a satisfactory explanation to say the least.
Now in the absence of a satisfactory explanation, in terms of the
authority to which I have referred and the
NUM Min Tech
case
in particular, it is not necessary for this Court to consider the
applicant’s prospects of success. However, to the
extent that
those may be relevant on a perusal of the Founding Affidavit, it
seems to me that the applicant has misconceived
the nature of the
proceedings.
The Constitutional Court has made it clear that despite the test of
reasonableness that must be applied in the context of an application
brought in terms of section 145, the distinction to be drawn between
an appeal and a review, remains intact and this Court is not
entitled
to entertain what amounts to an appeal against an arbitration award
under the guise of an application for review.
Now in the present circumstances, the applicant does not make out a
case that meets the threshold for a review application, i.e.
that the
decision reached by the Arbitrator, is a decision to which no
reasonable decision maker could come on the available evidence.
Instead, the review application is or comprises largely an attack on
the Arbitrator’s consideration of the evidence before
him and
more particularly, the conclusions drawn from that evidence.
Now turning for a moment to the arbitration award itself, the award
summarises accurately the evidence of each of the witnesses
called by
the applicant in these proceedings and the third and fourth
respondents in these proceedings.
It records further the closing submissions made on behalf of both
parties and concludes with an analysis of the evidence and
submissions made.
The Arbitrator recorded that there were several inconsistencies in
the evidence of one Smit, a witness for the fourth respondent
in
relation to his testimony at the disciplinary hearing, but given the
length of time between the disciplinary hearing and the
arbitration
hearing, the Arbitrator was satisfied that on the whole, Smit was not
an unreliable witness.
Similarly in respect of Captain Williamson and Captain (Inaudible),
both were found to be reliable, forthright and honest
witnesses. On
the other hand, the employee’s evidence was confounded to a
bare denial. The Arbitrator found that his version
of events given
at the arbitration hearing, differed quite markedly from what he
stated in the disciplinary hearing, and the basis
for that finding is
recorded in paragraph 13.10 of the award.
Similarly the discrepancies in the evidence given by the employee’s
witness, his girlfriend, are recorded in the arbitration
award and
the Arbitrator was clearly left in no doubt that the evidence of the
applicant and his girlfriend was unsatisfactory
and applying the test
of a balance of probabilities, the fourth respondent’s version
was found to be the more probable.
Now again it is not apparent to me from these papers and from the
award itself, that it can be said that the Arbitrator’s
decision falls into a band of decisions to which no reasonable
decision maker could come on this evidence.
The hurdle that has to be overcome in these proceedings, is set high
for an applicant. Indeed the Labour Appeal Court has gone
so far as
to say that after the
Sidumo
judgment by the Constitutional
Court, it would be rare for this court to interfere with an
arbitration award.
In short, I am not satisfied that any basis for interference with the
award has been made out on the papers before me. In so far
as the
applicant’s prospects of success are concerned, in my view
these are minimal.
In summary then, the delay in filing this application is excessive.
The explanation for the delay is wholly unsatisfactory. The
applicant’s prospects of success in the main application are
minimal. In those circumstances, the application for condonation
must fail.
With regard to costs, I see no reason why the rule that costs are to
follow the result, should not be applied and for those reasons,
I
make the following order:
The application for condonation for the late filing of the
application for review is dismissed
.
The applicant is to pay the costs of these proceedings.