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[2011] ZALCJHB 86
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Mashigo and Another v Sibeko (Arbitrator) and Others (J1039/07) [2011] ZALCJHB 86 (9 September 2011)
9
REPUBLIC OF SOUTH AFRICA
Reportable
Of interest to other judges
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
case no: J1039/07
In the matter between
MARTIN PULENG MASHIGO
…..............................................................
First
Applicant
SIPHO NORMA SKOSANA
…............................................................
Second
Applicant
and
Z.S SIBEKO (ARBITRATOR)
…..........................................................
First
Respondent
SAFETY & SECTORAL BARGAINING COUNCIL
…....................
Second
Respondent
MINISTER OF SAFETY & SECURITY
…...........................................
Third
Respondent
SOUTH AFRICAN POLICE SERVICE AND OTHER
…..................
Fourth
Respondent
Heard:
09 September 2011
Delivered:
09 September 2011
Summary:
Application for condonation in a review application
to set aside a ruling dismissing a condonation application for late
referral
of dispute. Application for condonation dismissed for
unsatisfactory explanation for lengthy delay and weak prospects of
success
in the review application.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
REDDY AJ:
This is an
ex tempore
judgment
[1] This is an application for various prayers:
1) condoning the late filing of the application for review by the
first and second applicants;
2) reviewing and setting aside the arbitration award of the
Arbitrator, which award is dated 11 November 2005;
3) to substitute the Arbitrator's award that condonation is granted
for the late referral of the applicants' dismissal dispute
to the
Bargaining Council and that the matter is re-enrolled for arbitration
before the Safety and Security Sectoral Bargaining
Council; and
4) for costs to be paid by the fourth respondent, alternatively that
no order of costs be made.The applications are opposed by
the 4
th
respondent.
Condonation
[2] The main application for review starts off with a condonation
application.
The Delay
[3] The review application was due on 3 January 2006; the award being
delivered to the applicants' previous attorney on 22 November
2005.The application for review was delivered on 27 June 2007
which is approximately one year and six months late.
The Explanation for the Delay
[4] The explanation for the delay is as follows: the applicants in
their Founding Affidavit submit that they instructed their erstwhile
attorney, Mr Maseka, to launch review proceedings when the award
dismissing their condonation application was received on 22 November
2005.They believed that he was carrying out their mandate.
[5] Approximately a year later they found out that the Director of
Public Prosecutions had issued a letter dated 20 December 2006
wherein a decision not to prosecute them criminally for robbery was
communicated. The letter was addressed to their attorney and
somehow
or the other the applicants found out about this decision.
[6] It was at this point in time that the applicants found out that
the review application before this Court had not been launched.
There
is no explanation by the applicants as to what they did for more than
a year whilst they were waiting for the review application
to be
launched. All that they say is that they paid Mr Maseka money from
time to time and that they were informed that the matter
was
proceeding.
[7] There is no detail as to when they met with him, how often they
met with him, what details they required of him insofar as
the
progress in their matter is concerned. These are all relevant issues
that would have been discussed by any client with his
attorney,
especially clients who want to have their names cleared of a
dismissal and who want to be reinstated.
[8] On 26 March 2007, the applicants submit that they consulted with
a second attorney, a Mr Gouws.They instructed this attorney
to launch
the review application however their file remained with their
erstwhile attorney, secondly they needed to place Gouws
in funds. As
a result further delays occurred.
[9] Eventually Gouws obtained the file from Maseka and applied for a
case number in May 2007.Gouws was placed in funds by the applicants
at the end of May 2007 and the review application was served on 22
June and filed on 27 June 2007.There is no explanation for the
delay
between the end of May when Gouws was placed in funds and for
approximately one month later when he served and filed the
review
application. If they were not properly represented by Maseka they
took no steps with Gouws to make sure that their matter
was filed in
court without delay when they placed him in funds at the end of May.
Neither is there an explanation for the delay
between 26
th
March 2007 and May 2007.
[10] There is no confirmatory affidavit by Maseka; there is also no
confirmatory affidavit by Gouws.I find that the explanation
is weak
and highly improbable. I am also bound by previous case law of this
Court and other courts in this country which hold that
litigants are
bound by the conduct of their attorneys and that they cannot escape
the conduct of their attorneys especially when
they do not do not
take any steps themselves. There are no averments in the papers that
lead me to believe and accept that the
applicants took steps of their
own accord to ensure that the matter was prosecuted without delay.
Prospects of success
[11] Insofar as the grounds of review are concerned, the review
application is in respect of a condonation ruling dismissing an
application for condonation for the late filing of the referral of
the dismissal dispute to the Bargaining Council.
[12] The facts of the matter are briefly that the applicants were two
policemen and they were charged, with robbery of R3 680
and of a
cellphone belonging to ET Sihlangu.They were also charged, with the
misappropriation of state property for personal use,
being a state
vehicle, a pistol and uniforms.
[13] The facts relating to the charge are set out in the award and it
is not necessary for me to repeat them. The dismissal occurred
on 2
March 2004, there was a dispute as to whether the dismissal was in
March or April, but the Arbitrator correctly found that
this was not
an issue that determined whether condonation should be granted.
[14] The applicants appealed against the decision of dismissal. The
appeal hearing was held in September 2004 and on 16 September
2004
the outcome of the appeal was issued. The finding and the sanction of
the disciplinary hearing were upheld.
[15] The referral to the Bargaining Council should have been made 30
days from 16 September which would have been around 16 October
2004.The matter was only referred to the Bargaining Council on 7 July
2005, approximately nine months later.
[16] The explanation that was placed before the Arbitrator for the
delay is contained in documents before this Court from page
37 of the
record to page 55. These documents are the referral of the matter to
the Bargaining Council together with the applicants'
condonation
application and the opposing affidavit by the fourth respondent.
[17] The explanation for the delay that was presented to the
Arbitrator was twofold: 1) that they were awaiting the transcript
of
the disciplinary hearing from the fourth respondent; and 2) that the
matter had been referred to the CCMA and that referral
was incorrect
and after a month from the date of referring the matter to the CCMA
they were informed that the CCMA did not have
jurisdiction.
[18] The Arbitrator finds in his award that: 1) there were no steps
whatsoever taken by the legal practitioner who represented
them at
the disciplinary hearing to obtain the transcript and that the
applicants are bound by such omission by their representatives;
and
2) that the applicants were not clear as to when they referred the
dispute to the CCMA.
[19] From the documents before this Court, the CCMA’s response
is dated 23 June 2005.The applicants do not state exactly
when they
received this information from the CCMA.The matter was then referred
to an incorrect Bargaining Council. Even though
they referred the
dispute to the wrong Bargaining Council, there is no explanation as
to what they did between the date of receipt
and 7 July 2005 when the
matter was referred to the Bargaining Council.
[20] I am also aware of the fact that in their condonation
application, they refer to a period of one month after referring the
matter to the CCMA that they were informed that the CCMA did not have
jurisdiction. If that is so and if we are guided by the date
of the
letter from the CCMA which is 23 June 2005, then it must be that the
referral to the CCMA was made approximately on 23 May
2005.There is
no explanation before the Arbitrator as to what the applicants did
from 16 September 2004 to approximately 23 May
2005, which is a
period of eight months before they referred the matter to the CCMA.
[21] On the prospects of success, the Arbitrator summarised the
evidence that was before him at paragraphs 4, 5 and 6 of the award,
and in there, he dealt with the evidence that was dealt with by the
parties. He analysed the evidence on page 31 of the record
before me
and despite the fact of the applicants denying any misconduct and
denying the robbery that took place, he found that
the complainant
knew Skosana's name and that he could also identify them in the
identity parade.
[22] He came to the conclusion that the applicants do not have good
prospects of success in the main matter as the complainant
was not
known to the applicants prior to the incident and he therefore could
not possibly have positively identified them had they
not committed
the misconduct in question.
[23] After making reasonable findings on the papers that were before
him, he dismissed the application for condonation because
there was a
long delay which was approximately nine months without a good
explanation and the prospects of success in the main
matter were
slim.
[24] In this application for review before me, the applicants cite
several grounds of review. The first ground is that the Arbitrator
should have taken cognisance of the fact that: 1) the appeal decision
was not communicated to the applicants on 16 September 2004
but at
some later date. There is no explanation by the applicants as to when
exactly they were informed of the appeal decision
if it was on any
date other than 16 September. It is assumed that they would know and
would be in the knowledge of this information
as this matter concerns
them.
[25] Even if their explanation, and it is a vague explanation, (that
they would only have found out about the appeal decision a
month
after September) is accepted, this would take us to October 2004: 30
days run from October 2004 and the matter should have
been referred
to the Bargaining Council or the CCMA (even though it would have been
incorrectly done) around November 2004.
[26] There is no explanation for the delay from November 2004 to the
date that the matter was referred to the CCMA which I assume
to be
around May 2005. Also I find that the submission that they would not
have known about the appeal decision until a month after
September
2004 to be unbelievable and improbable because the applicants in
their own documents refer to 2 March 2004 as the date
of dismissal
and this can be found in the referral form to the Bargaining Council
at pages 41, 45 and 47 of the record.
[27] There is no reason for them to have referred to any other date
if they believed at the time of referring the matter to the
Bargaining Council that the dismissal was any date other than 2 March
2004.
[28] The second ground of review is that the matter was referred to
the CCMA: I have dealt with this ground already, and even if
I accept
the applicants' contention that they only found out about the appeal
decision in October, there is no explanation for
the delay from
October 2004 to May 2005 and I find this submission also to be highly
improbable and unacceptable.
[29] The third ground is that the Arbitrator found that the
applicants did nothing since finding out about the CCMA's lack of
jurisdiction. It is submitted that the applicants took two weeks
since 23 June 2005 to refer the matter to the Bargaining Council
on 7
July.
[30] It is submitted on behalf of the applicants that they took
immediate action and it is without delay. I disagree with this
as a
further two-week delay is not immediate action and it certainly is
with delay. There was no explanation before the Arbitrator
as to the
two-week delay.
[31] The fourth ground of review is that the Arbitrator should have
been provided with the transcript of the disciplinary hearing
by the
employer. From the record there is no agreement between the parties
to this effect. There was also no application by the
applicants to
compel the fourth respondent to produce the transcript to the
Arbitrator prior to him making his decision known.
[32] It was therefore not necessary for the Arbitrator to have regard
to the transcript.
[33] I find that the grounds of review that are submitted are without
merit and that the Arbitrator in any event did what a reasonable
Commissioner would have done by arriving at a decision that was
reasonable on the evidence that was placed before him. It is not
for
applicants in a review application to provide information which was
not before the Arbitrator before the Labour Court and expect
the
Labour Court then to substitute the decision of the Arbitrator. That
is not the test for review. I am bound by the evidence
that was
placed before the Arbitrator and on the evidence that was placed
before him I find that he made reasonable decision.
[34] Coming back to the application for condonation for the late
filing of the review application, the fourth respondent submits
that
the complainant in this matter is a private citizen, this matter is
seven years old, there is going to be difficulty in locating
the
complainant should the matter go back to be reheard. There are also
other witnesses who dealt with the investigation and the
disciplinary
hearing who no longer work for the fourth respondent and it will not
be able to mount its case should it be reheard.
[35] Further, it was submitted by the fourth respondent's counsel
that the matter was twice before this Court. There have been
many
delays in this matter. I am satisfied that the fourth respondent will
be prejudiced should the matter be remitted back to
another
Commissioner. I am satisfied that the evidence that was placed before
the Arbitrator was sufficient for him to make a decision
in respect
of the application for condonation.
[36] Having regard to all the issues that are before me and a
conspectus of all the factors as set out in the Appellate Division
case of
Melane v Santam Insurance Company Limited
1962 (4) SA
531
AD, I am of the view that there is a weak explanation for the
delay in bringing the review application. The review application is
very late; it is one year and six months late. There are no prospects
of success that can be found. I find that the Arbitrator
concluded
reasonably, correctly and justifiably on the evidence before him that
it was appropriate to dismiss the application for
condonation for the
late referral of the matter to the Bargaining Council.
[37] In the circumstances, I make the following order:
1. The application for condonation for the late filing of the review
application is dismissed.
2. The applicants are to pay the costs of the fourth respondent.
__________________
Reddy AJ
APPEARANCES:
FOR THE APPLICANT: Adv Molobedi instructed by Johan Gouws Attorneys
FOR THE RESPONDENT: Adv T Makhuble instructed by the state attorney