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[2011] ZALCJHB 135
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Chauke v Motor Industry Bargaining Council and Others (JR 1267/05) [2011] ZALCJHB 135 (19 August 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR 1267/05
In
the matter between:
MASENYANI
MAURICE CHAUKE
..........................................
First Applicant
and
MOTOR
INDUSTRY BARGAINING COUNCIL
...................
First
Respondent
M
Tstatismpe
N.O
....................................................................
Second
Respondent
KEARNEY’S
TRUCK & TRAILER
............................................
Third
Respondent
Date
of hearing: 18 August 2011
Date
of judgment: 19 August 2011
JUDGMENT
LAGRANGE
J
Introduction
This
is an application to review and set aside a condonation ruling
issued by the second respondent under the auspices of the
Dispute
Resolution Centre of the Motor Industry Bargaining Counci. The
bargaining council was incorrectly sited as the CCMA in
the
pleadings in this matter, although it clearly accepted the parties’
intentions that they had meant to refer to it as
the first
respondent. The citation corrected in the headnote to this
judgement. To deal with the merits of the application a
brief
chronology of the matter should be provided.
The initial referral
According
to the applicant, his services were terminated on 21 June 2004. His
dispute was referred to the bargaining Council on
10 November 2004
making it 113 days late. Before court it was argued that the reason
for the late referral was that he had mistakenly
referred the matter
to the CCMA previously. However, according to the arbitration award,
the reason advanced for the lateness
then was that he had asked his
legal adviser to refer the dispute and had only recently discovered
that the attorney had not
done so. Nothing on the face of the award
of the arbitrator suggests that the applicant sought condonation on
the basis of an
error made in referring the matter initially to the
CCMA. I will return to this issue later.
The
review application
It
appears that the review application was originally filed on or about
1 June 2005 whereas it should have been filed six weeks
after the
applicant claimed to have received the arbitrator’s ruling on
23 February 2005. Consequently the review application
was filed 56
days late. To put this in perspective, this is more than twice the
length of time in which it should have been filed.
The reason
provided for the late filing of the review application was that the
applicant went back and forth between the attorneys
he was using and
Scorpion Legal Protection Services (his legal insurers): in what was
described as ‘the long journey’
between them, his
application was delayed.
The
striking off of the review application
After
the condonation application had been filed the matter was set down
for a hearing on 28 June 2006. At the hearing the matter
was struck
off the roll on account of a non-appearance by the applicant or his
representative, according to an affidavit from
one of the members of
the third respondent, Kearney Truck & Trailers C.C., who
attended court on that day. In the applicant’s
replying
affidavit no attempt was made to contradict this statement nor was
any explanation offered for the matter been struck
off the roll.
When
the matter came before me, applicant’s counsel, Mr Mbongela,
handed up a letter of explanation apparently written by
the
applicant’s former attorneys, Mdlalose Attorneys, to the Law
Society of the Northern Provinces in which they claimed
to have
attended court with the applicant on the day in question and the
matter had been struck off the roll. They indicated
that it was then
they discovered that no condonation application had been brought for
the late filing of the review application.
Although
the letter does not say so in so many words, it seems as if Mdlalose
attorneys were trying to suggest that the matter was
struck off the
roll in the absence of a condonation application being brought, but
the letter carefully avoids saying this expressly.
In the same letter
the attorneys claim that they advised Scorpion legal protection of
the prospects of the matter succeeding in
the labour court were not
good "despite the condonation application." As mentioned,
this version of what transpired in
court at the hearing on 28 June
2006 was never confirmed in an affidavit by the applicant or his
attorneys. It stands to reason
whether if the applicant was at court,
he would have been aware at that stage of the need to file a
condonation application.
Unfortunately,
for the applicant, the fact that the matter had been struck off the
roll apparently did not provide enough incentive
to ensure that, as
far as possible, the necessary condonation application was filed
without further delay: it was only filed another
18 months later in
December 2007.
At
the end of May 2010, the court Registrar archived the file because no
further steps had been taken in the matter. Despite this
and despite
the fact that no affidavit had been filed requesting the re-enrolment
of the matter in terms of Rule 15 of the Labour
Court Rules, the
matter was re-enrolled for a hearing before me on 18 August 2011.
Even if the requirements of Rule 15 are ignored,
the respondent
pertinently placed the issue of the application being struck off the
roll on record in its answering affidavit and
the applicant simply
avoided trying to address it in reply. His failure to do so at that
juncture strongly suggests that there
was no justifiable explanation
for the non-attendance of him and his attorneys on the day in
question. The letter subsequently
produced at the hearing today which
now claims that they were present, raises more doubts than it
answers. If indeed the applicant
and his attorney were present, it is
quite extraordinary that the respondent’s contentions to the
contrary were not vehemently
disputed in the replying affidavit. It
is also noteworthy that the letter written to the Law Society does
not really explain how
it happened that the matter was struck of the
roll in the presence of the applicant and his representative. If, as
the letter implicitly
tries to suggest, the reason was the absence of
a condonation application, it is difficult to understand why the
matter would simply
not have been postponed with an appropriate order
with costs to allow the condonation application to be filed. There is
no evidence
that the applicant’s attorneys requested a
postponement for this purpose which might have been expected in the
circumstances.
I
am satisfied that the matter ought never to have been re-enrolled,
and in hearing the applicant he was extended an indulgence
by the
court he was not really entitled to.
The
matter was first stood down in order to allow the applicant’s
representatives to supplement the missing portion of the
pleadings,
in particular the notice of motion and founding affidavit in the
review application. When the matter was recalled after
lunch, the
missing portion had still not been provided. No explanation was given
why a copy could not have been provided, but a
postponement was
requested in order to complete the application. As the file ought to
have been in a complete state before the
proceedings began and no
cogent explanation was provided why the applicant had not attended to
this, the application for postponement
was dismissed. In any event,
at least the ruling was in the matter was before the court and in so
far as the merits of the application
could be considered, the matter
could proceed.
Mr
Mbongela was unable to explain why there had been an 18 month delay
in filing the condonation application once it was known by
28 June
2006 that this had to be done. He could only speculate what the
reasons might have been, but as there were no affidavits
to provide a
basis for his speculation, in truth there was no explanation provided
at all for this very lengthy delay. It is a
well-established
principle that an applicant who is required to seek condonation
should file such an application without unnecessary
delay and that a
failure to do so timeously can itself lead to the application been
dismissed.
1
In
my view, given the history of delays in this matter and that the
applicant ought to have been mindful by June 2006 of the importance
of not delaying, the condonation application can be dismissed on this
ground alone.
Nevertheless,
I will consider the other merits of the application on the assumption
that the delay in filing the condonation application
itself ought not
to be the sole reason for dismissing it. As to the 56 day delay in
filing the review application I am satisfied
that such a delay is
considerable given that the applicant took twice as long to file the
matter as he should have. As mentioned,
the explanation for the delay
was his coming and going between his erstwhile lawyers and Scorpion
legal services. The respondent
correctly points out that no
confirmatory affidavits about these interactions were filed by either
of the other two parties involved.
While I accept that there may be
some difficulties obtaining an affidavit from an attorney in which he
might be admitting to professional
negligence, no explanation is
provided why an affidavit could not have been obtained from Scorpion
Legal Services. As it stands,
we only have the applicant’s word
for the difficulties he was encountering, and it is and it is
noteworthy that he does not
mention the name of the attorneys he was
allegedly trying to galvanise to pursue his matter on his behalf.
Consequently, it must
be said that the explanation for the lateness
of the review application stands on a slender and vague factual
foundation.
Moving
onto the merits of the review application itself, the inadequacies
of the applicant's papers in the matter become glaring
. As
previously mentioned, the applicant’s grounds of review were,
strictly speaking, not properly before the court because
his
founding affidavit and notice of motion in the review application
were missing. Even if a blind eye is turned to this and
if I
consider the applicant’s attempt to review the condonation
ruling on grounds of unreasonableness, which were the grounds
advanced by his counsel in court, the next problem the court is
confronted with is the absence of any transcript of the condonation
hearing or any other record of the submissions or evidence presented
to the arbitrator.
Mr
Mbongela suggested that if the arbitrator had been aware of the
applicant’s misguided attempt to first refer his dismissal
dispute to the CCMA before it was referred to the bargaining
Council, he would have condoned the late referral. The obvious
difficulty with this submission is that nowhere in the affidavits
and record before the court is there any concrete evidence of
the
alleged erroneous referral to the CCMA. Secondly, if the applicant
did not raise it with the arbitrator when the condonation
application was considered, the arbitrator can hardly be faulted for
his reasoning. No explanation is provided anywhere why this
matter
was not raised before the arbitrator, or is an explanation offered
why the arbitrator only appeared to consider the applicant’s
explanation that his legal representative had failed to make the
referral in time as the explanation for his lateness.
The
only basis on which the applicant could argue that the arbitrator
was unreasonable in such circumstances was if their evidence
was
placed before him and he simply did not deal with it or if he
disregarded it in evaluating the reasons for the delay. There
is no
evidence on affidavit that this was the case. To make matters worse,
because there is no record of the evidence placed
before the
arbitrator there is no basis at all for believing that such an
explanation was raised with him in any form.
The
length of delay the arbitrator was dealing with was nearly four
times in excess of the 30 day period which the applicant had
to
refer his unfair dismissal dispute. The arbitrator clearly did not
find that such a long delay could be solely blamed on the
applicant’s legal representative on the evidence before him.
The only point recorded under the consideration of the prospects
of
success is that the applicant claimed he did not know the reason for
his dismissal. There is nothing on the record to inform
the court
what was before the arbitrator regarding the merits of the
applicant’s case of unfair dismissal, and therefore
there is
no basis for concluding that his analysis of that issue was
unreasonable. He clearly records the relative prejudice
the parties
claimed they would suffer if the matter did or did not proceed, and
again there is no reason to find that he acted
irrationally in this
respect.
In
summary, even if an extraordinarily generous allowance is made to
overlook the glaring defects in the review application, there
is no
evidentiary basis for setting aside second respondent’s
condonation ruling, in any event.
To
summarise, the review application stands to be dismissed on a number
of grounds:
The
application is fatally defective in that there is no founding
affidavit and notice of motion before the court and this deficiency
was not rectified timeously by the applicant.
There
is no record of the evidence presented to the arbitrator in the
condonation application, nor was there any attempt made to
reconstruct the same or any explanation provided why this was not
done.
2
The
applicant failed to comply with Rule 15 of the Labour Court rules
which required him to file an affidavit explaining why the
matter
ought to be re-enrolled despite being struck off the roll in June
2006. The re-enrolment of the matter appears to have been
completely
fortuitous and done in error, thereby affording the applicant a
gratuitous opportunity to resurrect an application which
appears to
have been abandoned after 2007.
The
defects mentioned above justify the review application being
dismissed, and even if those deficiencies were overlooked, there
is
no basis on the evidence before the court to review and set aside
the arbitrator's ruling on account of it being unreasonable.
Costs
The
respondent asked for a punitive costs order in the light of the
manner in which the applicant has conducted his protracted
proceedings. I'm certainly sympathetic to that request, but believe
that the applicant was entitled to be warned of the prospects
of
such an application being made prior to today's hearing.
Nonetheless, it is clear that in the absence of a record of the
proceedings, or a serious attempt to reconstruct the record, the
applicant ought not to have proceeded with this matter and the
respondent should not have been required to defend the matter when
the application was in such an incomplete state. Accordingly,
the
respondent is at least entitled to ordinary wasted costs of opposing
the application.
Order
In
the light of the analysis above,
The
application to review and set aside the second respondent’s
condonation ruling of 5 February 2005 under case number
MINT 230C
is dismissed.
The
applicant is ordered to pay the third respondent’s costs.
1
See
SABC
Ltd v CCMA & others
[2010]
3 BLLR 251
(LAC)
2
See
JDG
Trading (Pty) Ltd t/a Russells v Whitcher NO & others
[2001]
3 BLLR 300
[2005] ZALC 1
;
[2001]
3 BLLR 300
(LAC)