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[2011] ZALCJHB 176
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Chawe v Commission for Conciliation Mediation and Arbitration and Others (JR210/09) [2011] ZALCJHB 176 (1 March 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Not reportable
Case No: JR210/09
In the matter between:
TSEKO JOHANNES
CHAWE
A
pplicant
AND
COMMISION FOR CONCILIATION
MEDIATION AND ARBITRATION 1
st
Respondent
VAN VUUREN NO 2
nd
Respondent
WACO AFRICA (PTY) LTD/ SANAITECH 3
RD
Respondent
JUDGMENT
Molahlehi J
Introduction
This is an application to review and set aside the
arbitration award issued by the second respondent (the commissioner)
under
case number GAJB 31582/07 and dated 31 July 2008. In terms of
that arbitration award the commissioner found the dismissal of the
applicant not to have been unfair and accordingly confirmed the
dismissal.
The applicant has also applied for condonation for the
late filing of the review application which the third respondent is
opposing.
Background facts
The brief background facts of this matter are that the
applicant was charged with dishonesty and gross negligence. He was
found
guilty by the disciplinary hearing and accordingly dismissed.
He challenged the dismissal as being unfair at the CCMA. He was
unsuccessful in the arbitration proceedings hence this review
application.
In his ground for review the applicant contends that
the commissioner committed gross irregularity in respect of both his
assessment
of the procedural and substantive fairness. In respect of
the procedural fairness the applicant contends that he was not given
enough time to prepare for his case and make arrangements with his
witnesses to attend the hearing. The applicant further contends
that
the commissioner failed to explain to him his rights under the LRA.
The condonation application
It is trite that in considering
whether or not to grant condonation the court has a judicial
discretion to exercise. The principles
dealing with the approach to
be adopted when considering an application for condonation is
summarized by this court in
Gaubushubekwe
& others v Pie Man’s Pantry (Pty) Ltd
[2008] JOL 22302
(LC).
In that case the court
held that in an application for condonation the applicant is in
essence seeking the extension of the time
frames provided for in the
Act, through the indulgence of the court. The factors which the
courts have taken into account in
considering whether or not to
grant condonation are set out in that judgment as follows:
(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 (
sic
) prospects of succeeding or has bona
fide defence when the matter is 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
(g)
has to show avoidance of unnecessary delay in the administration of
justice.
[6]
The above factors are not individually decisive and have to be
weighed together in assessing whether or not condonation
should be
granted. 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.
[7] 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 on this ground alone decline
to grant an indulgence to the
applicant.
[8] This
court has previously stated that whilst the factors mentioned above
are interrelated and have to be weighed together, however
the two
factors that carry more weight are the reasonableness of the
explanation and prospects of success. It is trite that without
reasonable explanation for the delay, condonation is generally
refused. The approach to be adopted where the explanation is
unsatisfactory
or where there is no reasonable explanation was set
out in
Melane v Santam Insurance Co Ltd 1962 (4) SA 531
(A) at 532C–F
, where 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 other words the applicant should bring
the application for
condonation as soon as he or she becomes aware of
the lateness of its case.
[9]
In
National
Union of Mineworkers v Council for Mineral Technology
[1999]
3 BLLR 209
(LAC)
,
the court held that
:
“
What
is needed is an objective conspectus of all the facts. 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 tend to compensate for a long
delay. 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.”
[10] In applying the above legal principles the question
I have to ask myself is whether the applicant has made out a case for
granting
him condonation for the late filing of his review
application. Put differently the question in the present instance is
whether
the applicant has made out a case showing good cause as to
why the condonation application was not filed in time.
[11] In my view the applicant has not made out a case
for condonation. In fact the applicant does not deal with the above
factors
in his condonation application. In what appears to be the
explanation for the late filing of the review application the
applicant
says the following:
“
I
immediately approached a legal call centre on the said day for advice
on what appeared to me to be a malicious Arbitration Award.
The legal
call centre advised that the Award was a closed book and they would
prefer to get transcript of proceedings and/or comments
from the
legal representative who represented me during the proceedings
whereafter they would be able to advise me meaningfully.
They advised
that it would take time and had to give them several weeks to obtain
and study the records. I went to the call centre
several times until
07 January 2009 when they advised that they obtained a record which
manifest gross irregularity on the part
of the Commissioner. They
advised that they have posted to MKANSI ATTORNEYS instruction to
assist me in having the matter brought
to the Labour Court.”
[12] Mr Mkansi for the applicant explained that the
legal call center referred to above is the insurance policy taken by
the applicant
to cover him whenever he was faced with litigation. He
sought to lead evidence from the bar to suggest that the insurance
company
was the cause of the delay because it took too long to
approve payments for attorneys. He also in this respect tried to
introduce
from the bar evidence of what he did regarding the conduct
of the insurance in initially seeking to comply with the terms of the
policy. He says he reported them to the insurance ombudsman. He could
not however explain why if this was indeed the case, that
was not
included in the founding affidavit.
[13] The explanation tendered from the bar would still
not have assisted the case of the applicant because no details are
given
with regards to the dates when the insurance company was taken
to task. And also there is no explanation as to what happened after
the 7
th
July 2009, after the applicant went to see the
insurance company, when he was advised that they had obtained the
record and was
advised that the award was grossly irregular. There is
no explanation as to what happened between the 7
th
January
2009 and 2
nd
February 2009 when the founding affidavit was
signed.
[14] In summary the applicant has therefore failed to
provide a reasonable and satisfactory explanation as to why his
review was
filed 14 weeks later. The applicant’s application
stands to fail on this ground alone. The applicant’s
application
would still stand to fail even if I was wrong regarding
the reasonableness of the explanation. The application has to fail
because
there are no prospects of succeeding if the late filling of
the review application was to be condoned.
[15] The reading of the arbitration award reveals that
the commissioner arrived at his conclusion that the applicant was
guilty
as charged after canvassing the evidence which was presented
before him detailed. It seems from the proper reading of the
applicant’s
papers that the commissioner was incorrect in the
manner he addressed the evidence presented.
[16] It has to be remembered that the function of this
court in review matters is not to find fault with the commissioner
but to
consider whether the arbitration award made by the
commissioner is a reasonable one. In my view the only conclusion that
can be
reached when reading the arbitration award properly is that
the conclusion reached by the commissioner is reasonable and thus
satisfies
the test as set out in
Sidumo & another v Rustenburg
Platinum Mines Ltd &others
[2007] 12 BLLR 1097(CC).
The
commissioner can therefore not be faulted for unreasonableness.
[17] The case of the applicant in as far as prospects of
success is concerned is further weakened by the fact that he seeks to
rely
on averments that are not supported by the record. In this
respect the averments in support of the allegation of gross
irregularity
as made in the founding affidavit cannot be found in the
transcribed record as tapes 1-11 of the proceedings were not filed.
It
was submitted on behalf of the applicant that compelling the CCMA
to produce the tapes would have been a futile exercise. The applicant
did not however attempt to restructure the record or solicit the hand
written notes of the commissioner.
[18] The third respondent argued that whilst the
applicant is an individual, he can afford to pay the costs because he
has an insurance
cover. Whilst the general policy of this court is
not to grant costs orders against individuals who approach the court
for a relief,
different consideration applies in this case. The facts
and circumstances of this case strongly support the view that in law
and
fairness costs should follow the results.
[19] In the premises the following order is made:
1. The condonation application is dismissed.
The review
application is dismissed.
The applicant is to
pay the costs.
_______________
Molahlehi
J
Judge Of The Labour Court Of South Africa
Date of Hearing : 17 February 2011
Date of Judgment: March 2011.
Appearances
For the Applicant : M.N. Mkansi from Mkansi &
Associates Attorneys
For the Respondent: A.M. Dippenaar from Du Randt Du Toit
Pelser Attorneys
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